ON THE EARLY HISTORY OF INSTITUTIONS
( H. J. S. Maine, Lectures on the Early History of Institutions, 7th ed., London, 1914 ).
• Lecture 7. Ancient Divisions of the Family.
• Lecture 8. The Growth and Diffusion of Primitive Ideas.
• Lecture 9. The Primitive Forms of Legal Remedies. I.
• Lecture 10. The Primitive Forms of Legal Remedies. II.
• Lecture 11. The Early History of the Settled Property of Married Women.
• Lecture 12. Sovereignty.
• Lecture 13. Sovereignty and Empire.
Lecture 7. – Ancient Divisions of the Family.
Before the establishment of the (English) common law, all the possessions within the Irish territories ran either in course of Tanistry or in course of Gavelkind. Every Signory or Chiefry with the portion of land which passed with it went without partition to the Tanist, who always came in by election or with the strong hand, and not by descent; but all inferior tenanties were partible between males in Gavelkind.’ (Sir J. Davis’ Reports, ‘Le Cas de Gavelkind,’ Hil. 3, Jac. 1., before all the Judges.)
This passage occurs in one of the famous cases in which the Anglo-Irish Judges affirmed the illegality of the native Irish tenures of land. They declared the English common law to be in force in Ireland, and thenceforward the eldest son succeeded, as heir-at-law, both to lands which were attached to a Signory and to estates which had been divided according to the peculiar Irish custom here called Gavelkind. The Judges thoroughly knew that they were making a revolution, and they probably thought that they were substituting a civilised institution for a set of mischievous usages proper only for barbarians. Yet there is strong reason for thinking that Tanistry is the form of succession from which Primogeniture descended, and that the Irish Gavelkind, which they sharply distinguished from the Gavelkind of Kent, was nothing more than an archaic form of this same institution, of which Courts in England have always taken judicial notice, and which prevailed far more widely on the European Continent than succession by Primogeniture.
It will be convenient that we should first consider the so-called Gavelkind of Ireland, which is thus described by Sir John Davis: ‘By the Irish custom of Gavelkind, the inferior tenanties were partible among all the males of the Sept, both Bastards and Legitimate; and, after partition made, if any one of the Sept had died, his portion was not divided among his sonnes, but the Chief of the Sept made a new partition of all the lands belonging to that Sept, and gave every one his part according to his antiquity.’
This statement occasions some perplexity, which does not, however, arise from its being antecedently incredible. It is made, you will observe, not of the Clan or Tribe in its largest extension, but of the Sept. The first was a large and miscellaneous body, composed in great part of men whose relationship of blood with the Chief and the mass of free tribesmen, was a mere fiction. The last was a much smaller body, whose proximity to a common ancestor was close enough to admit of their kinship either being a fact or being believed to be a fact. It apparently corresponded to the small Highland communities observed in Scotland, by an English officer of Engineers about 1730. ‘They (the Highlanders) are divided into tribes or clans under chiefs or chieftains, and each clan is again divided into branches from the main stock, who have chieftains over them. These are subdivided into smaller branches, of fifty or sixty men, who deduce their original from their particular chieftains. (Quoted by Skene, ‘Highlanders,’ i. p. 156.) Such a body, as I have already stated, seems to be the Joint Family well known to the Hindoos, but continued as a corporate unit (which is very rarely the case in India), through several successive generations. There is no difference in principle, and little in practical effect, between the mode of succession described by Davis and the way in which a Hindoo Joint Family is affected by the death of one of its members. All the property being held in common, and all earnings being brought into the ‘common chest or purse,’ the lapse of any one life would have the effect, potentially if not actually, of distributing the dead man’s share among all the kindred united in the family group. And if, on a dissolution of the Joint Family, the distribution of its effects were not per capita but per stirpes, this would correspond to what Davis probably means when he describes the Chief as giving to each man ‘according to his antiquity.’
The special novelty of the information supplied to us by the ancient Irish law consists in its revealing to us a society of Aryan race, settled, indeed, on the land, and much influenced by its settlement, but preserving an exceptional number of the ideas and rules belonging to the time when kinship and not the land is the basis of social union. There is, therefore, nothing extraordinary in our finding, among the ancient usages of the Irish, an institution savouring so much of the ‘natural communism’ of the primitive forms of property as this Irish Gavelkind. This ‘natural communism,’ I have repeatedly urged, does not arise from any theory or à priori assumption as to the best or justest mode of dividing the land of a community, but from the simple impossibility, according to primitive notions, of making a distinction between a number of kinsmen solely connected by their real or assumed descent from a common ancestor. The natural solvent of this communism is the land itself upon which the kindred are settled. As the common ancestry fades away into indistinctness, and the community gets to consider itself less an assemblage of blood-relations than a body of co-villagers, each household clings with increasing tenacity to the allotment which it has once obtained, and re-divisions of the land among the whole community, whether at fixed periods or at a death, become rarer and rarer, and at last cease altogether, or survive only as a tradition. In this way the widely diffused but modified form of tribal succession, which in England is called Gavelkind, is at last established; the descendants of the latest holder take his property, to the exclusion of everybody else, and the rights of the portion of the community outside the family dwindle to a veto on sales, or to a right of controlling the modes of cultivation. Nevertheless, surveying the Aryan world as a whole, and looking to societies in which some fragments of the ancient social organisation still survive, we can discover forms of succession or property which come surprisingly near to the Irish Gavelkind described by Davis. The best example of this occurs in a practice which existed down to our own day over a large part of Russia. The principle was that each household of the village was entitled to a share of the village-lands proportioned to the number of adult males it contained. Every death, therefore, of a grown-up man diminished pro tanto the share of the household, and every member of it grown to manhood increased its lot in the cultivated area. There was a fixed unit of acreage corresponding to the extent of soil cultivable by one man’s labour, and at the periodical division each household obtained just as much land as answered to its number of adult labouring men. The principal distinction between this system and that which seemed so monstrous and unnatural to Sir John Davis is, that under the first the re-division took place, not as each death occurred, but at stated intervals. I must not, indeed, be understood to say that I think the distinction unimportant. It is very possible that re-distributions at deaths of a common fund may mark a more advanced stage in the history of Property than periodical redistribution, and that the recognition of interests for an entire life may have preceded and paved the way for the final allotment of permanent shares to separate households. Until, however, this last point has been reached, all the modes of re-division known to us are plainly referable to the same principle.
The difficulty suggested by the recital in the ‘Case of Gavelkind’ is thus not a difficulty in believing it if it stood by itself, or if it were made with less generality. But it is distinctly stated that all the lands in Ireland which did not descend by the rule of Tanistry descended by the rule of Gavelkind. The indications of the state of law or custom furnished by the Brehon tracts certainly seem to me inconsistent with this assertion. They show us proprietary rights defined with a sharpness and guarded with a jealousy which is hard to reconcile with the degree of ‘natural communism’ implied in the language of Davis’s Report. The Corus Bescna, of which I said something before, and which deals with rights over tribal lands, implies that under certain circumstances they might be permanently alienated, at all events to the Church; and we shall presently have to discuss some very singular rules of succession, which, however they may affect the Family, certainly seem to exclude the Sept. Dr. Sullivan, who appears to have consulted many more original authorities than have been translated or given to the world, expresses himself as if he thought that the general law of succession in Ireland was nearly analogous to the Gavelkind of Kent. ‘According to the Irish custom, property descended at first only to the male heirs of the body, each son receiving an equal share. . . . . . Ultimately, however, daughters appear to have become entitled to inherit all, if there were no sons’ (Introd., p. clxx).
I do not expect that the apparent contradiction between the Brehon tracts and the language of Davis and his contemporaries respecting the Irish law of succession to land will be fully accounted for till the whole of the ancient legal literature is before the world; but meanwhile it is a plausible explanation of the discrepancy that the Irish and the English writers attended to different sets of phenomena. I cannot doubt that the so-called Irish Gavelkind was found over a great part of the country. The statements of English authorities on the point are extremely precise. They affirm that ‘no civil habitations were erected, and no enclosure or improvement was made of land where Gavelkind was in use,’ and they say that this was especially the case in Ulster, ‘which was all one wilderness.’ Nevertheless it is extremely probable that another set of facts justified the indications given by the Brehon tracts, and that there were other modes of succession known besides succession by Tanistry on the one hand, and besides on the other hand the peculiarly archaic system under which each lapsed share was at once divided between all the members of the Sept. Such an institution as the last, though exceptional circumstances may keep it alive, contains within itself a principle of decay. Each household included in the Joint Family gains a firmer hold on its share of the lands as the distance increases from the common ancestor; and finally appropriates it, transmitting it exclusively to offshoots from its own branch. Nothing is more likely than that there were frequent examples of Irish septs with their land-customs in this condition; and it is still more probable that usages of a similarly modern stamp prevailed in estates permanently severed or ‘booked off’ from tribal possession or established at a distance from the main seat of the tribe. It is true that, in society based on kinship, each family separated from the rest tends itself to expand into a joint family or sept; but in these severed estates custom would be apt to be enfeebled and to abate something of its tyranny. Thus, putting the rule of Tanistry aside, I can quite conceive that the Irish Gavelkind, the modern Gavelkind known to Kent, and many forms of succession intermediate between the two, co-existed in Ireland. Both the English and the Irish authorities on law had prejudices of their own which might lead them to confine their attention to particular usages. The Brehon writers seem to me distinctly biassed in favour of the descent of property in individual families, which commended itself to them as lawyers, as friends of the Church, and (it may be) as well-wishers to their country. On the other, the strange ancient form of ownership which he called Gavelkind would fascinate the observation of an Englishman resident in Ireland. He would assuredly have none of the curiosity about it which we feel nowadays, but surprise and dislike would fix his attention upon it, and perhaps prevent his recognising the comparatively wide diffusion of institutions of the opposite type.
This interpretation of the seeming contradiction between our authorities is consistent with the very little we know respecting actual divisions of land in ancient Ireland. It constantly happened both in Ireland and the Scottish Highlands that a Chief, besides the domain which appertained to his office, had a great estate held under what the English lawyers deemed the inferior tenure. There are two cases on record in which Irish Chiefs of considerable dignity distributed such estates among their kindred. In the fourteenth century Connor More O’Brien, a chief who had children of his own, is stated to have divided his land on principles which must have more or less corresponded to those condemned by the Anglo-Irish Judges. The bulk of the estate he assigned to the various families of the Sept formed by his own relatives. To himself he reserved only one-sixth of one-half of one-third, and even this sixth he divided between his three sons, reserving only a rent to himself. But at the end of the fifteenth century Donogh O’Brien, son of Brien Duff, son of Connor, King of Thomond, divided all his lands between his eleven sons, reserving to himself only the mansion and the demesne in its vicinity. The difference between the two cases, which (it is instructive to observe) are separated by at least a century, appears to me sufficiently plain. In the first the land had remained in a state of indivision during several generations; in the second it had been periodically divided. Connor More O’Brien was distributing the inheritance of a joint family; Donogh O’Brien that of a family (Vallancey, ‘Collectanea de Rebus Hibernicis,’ i. 264, 265.)
It is worthy of observation that in the more ancient example Connor More O’Brien appears to have paid regard to the various stirpes or stocks into which the descendants of the original founder of his family had branched out. The principle he followed I suppose to be the same as that pointed out by Davis when he speaks of the chief dividing a lapsed share between the members of a sept ‘according to their antiquity.’ The proceeding deserves to be noted, as showing an advance on the oldest known tribal customs. In the most archaic forms of the Joint Family, and of the institution which grew out of it, the Village-Community, these distributions are per capita; no one person who is entitled takes more than another, whether the whole estate or a portion is divided, and no respect is paid to the particular way in which a given individual has descended from the common ancestor. Under a more advanced system the distribution is per stirpes; careful attention is paid to the lines into which the descendants of the ancestor of the joint-family have separated, and separate rights are reserved to them. Finally, the stocks themselves escape from the sort of shell constituted by the Joint Family; each man’s share of the property, now periodically divided, is distributed among his direct descendants at his death. At this point, property in its modern form has been established; but the Joint Family has not wholly ceased to influence successions. When direct descendants fail it is even now the rules of the Joint Family which determine the taking of the inheritance. Collateral successions, when they are distant, follow the more primitive form of the old institution, and are per capita; when they are those of the nearer kindred they are adjusted to its more modern shape, and are per stirpes.
The remark has further to be made that both Connor O’Brien and Donogh O’Brien divided their own land among their sons or kindred during their own lifetime. Like Laertes in the Odyssee and like Lear in the tragedy of Shakespeare, the old Chief, in the decay of his vigour, parts with his power and retains but a fraction of the property he had administered; and the poorer freeman becomes one of those ‘senior’ pensioners of the tribe so often referred to in the tracts. Precisely the same practice is recognised, and even (as some think) enjoined, by the more archaic bodies of Hindoo jurisprudence. The principle is that the right of each member of a family accrues at his birth; and, as the family has in theory a perpetual existence, there is no particular reason why, if the property is divided at all, it should be exclusively divided at a death. The power of distributing inheritances vested in the Celtic chiefs has been made the basis of some very doubtful theories, but I have no doubt it is essentially the same institution as the humble privilege which is reserved to the Hindoo father by the Mitakshara. It is part of the prerogative belonging to the representative of the purest blood in the joint family; but in proportion as the Joint Family, Sept, or Clan becomes more artificial, the power of distribution tends more and more to look like mere administrative authority.
Under some systems of Hindoo law, the father, when making a distribution of property during his lifetime, is entitled to retain a double share, and by some Indian customs the eldest son, when dividing the patrimony with his brothers, takes twice as much as the others. There are a good many traces of the usage in this last form in a variety of communities. It is, for instance, the ‘birthright’ of the Hebrew patriarchal history. I mention it particularly because it seems to me to be sometimes improperly confounded with the right conferred by what we call the rule of Primogeniture. But the double share is rather given as the reward or (perhaps we should say) the security for impartial distribution, and we find it often coupled with the right to take exclusively such things as are deemed incapable of partition, the family house, for instance, and certain utensils. The proof that it is not essentially a privilege of the eldest son, we find in the circumstances that it is sometimes enjoyed by the father and sometimes by the youngest of the sons, and in this way it is connected with our own custom of Borough English, of which I shall have more to say presently. There is a difference of historical origin between this kind of privileged succession and that which we call Primogeniture. The first is descended from a custom of the Tribe; the last, to which I now pass, seems to me traceable to the special position of the Chief.
The Brehon tracts at present translated do not add much to the knowledge which we possessed of the Irish customs corresponding to the usage of exclusive succession by the eldest son; and Primogeniture remains what I called it thirteen years ago (‘Ancient Law,’ p. 227), ‘one of the most difficult problems of historical jurisprudence.’ The first of the difficulties which surround it is the total absence, before a particular epoch in history, of recorded precedents for any such mode of succession to property. It was unknown to the Hellenic world. It was unknown to the Roman world. It was unknown to the Jews, and apparently to the whole Semitic world. In the records of all these societies there are vestiges of great differences between the succession of males and the succession of females; but there was nothing like the exclusive succession of a single son to property, although the descent of sovereignties to the eldest son of the last reigning king was a familiar fact, and though the Greek philosophers had conjectured that, in an earlier state of society than theirs, the smaller groups of men—families and villages—had been governed by eldest son after eldest son.
Even when the Teutonic races spread over Western Europe they did not bring with them Primogeniture as their ordinary rule of succession. The allodial property of the Teutonic freeman, that share which he had theoretically received at the original settlement of the brotherhood to which he belonged on their domain, was divided at his death, when it was divided at all, equally between his sons or equally between his sons and daughters. It is quite certain, however, that the appearance of Primogeniture in the West and its rapid diffusion must be connected with the irruption of the barbarians, and with the tribal ideas re-introduced by them into the Roman world. At this point, however, we encounter another difficulty. The Primogeniture which first meets us is not uniformly the Primogeniture with which we are now familiar. The right of the eldest son sometimes gives way to the right of the eldest male relative of the deceased, and occasionally it seems as if neither the succession of the eldest son nor that of the eldest relative could take effect without election or confirmation by the members of the aggregate group to which both belong.
As usual, we have to look for living illustrations of the ancient system to the usages of the Hindoos. The Family, according to the Hindoo theory, is despotically governed by its head; but if he dies and the Family separates at his death, the property is equally divided between the sons. If, however, the Family does not separate, but allows itself to expand into a Joint Family, we have the exact mixture of election and doubtful succession which we find in the early examples of European primogeniture. The eldest son, and after him his eldest son, is ordinarily the manager of the affairs of the Joint Family, but his privileges theoretically depend on election by the brotherhood, and may be set aside by it, and, when they are set aside, it is generally in favour of a brother of the deceased manager, who, on the score of greater age, is assumed to be better qualified than his nephew for administration and business. In ancient Irish society the Joint Family, continued through many generations, has grown first into the Sept and then into the Clan, contracting a greater degree of artificiality in proportion to its enlargement. The importance, meanwhile, of the Chief to the Tribe has rather increased than diminished, since he is no longer merely administrator of its civil affairs but its leader in war. The system produced from these elements appears to me sufficiently intelligible. The veneration of the Tribe is not attracted by individuals of the Chieftain’s family, but by the family itself, as representing the purest blood of the entire brotherhood. It chooses its head and leader (save on the very rarest occasions) from this family, and there are instances of the choice being systematically made from two families in alternation. But the necessity of having a military leader in the vigour of his physical and mental powers is much too imperious to admit of his choice being invariably deferred to the death of the ruling Chief, or to allow of the election falling universally or even generally on his son. ‘It is a custom among all the Irish,’ says Spenser, ‘that presently after the death of any of their chief lords or captains, they do presently assemble themselves to a place generally appointed and known unto them to choose another in his stead, where they do nominate and elect for the most part, not the eldest son, nor any of the children of the lord deceased, but the next to him of blood that is eldest and worthiest, as commonly the next brother if he have any, or the next cousin, and so forth, as any is elder in that kindred or sept; and then, next to him, they choose the next of the blood to be Tanaist, who shall succeed him in the said Captaincy if he live thereunto. . . . For when their Captain dieth, if the Signory should descend to his child, and he perhaps an infant, another might peradventure step in between or thrust him out by strong hand being then unable to defend his right and to withstand the force of a forreiner; and therefore they do appoint the eldest of the kin to have the Signory, for that commonly he is a man of stronger years and better experience to maintain the inheritance and to defend the country. . . . And to this end the Tanaist is always ready known, if it should happen to the Captain suddenly to die, or to be slain in battle, or to be out of the country, to defend and keep it from all such dangers.’ (Spenser’s ‘View of the State of Ireland.’)
Primogeniture, therefore, considered as a rule of succession to property, appears to me to be a product of tribal leadership in its decay. Some such system as that represented by the Irish Tanistry belonged probably at one time to all the tribal communities which overran the Roman Empire, but no precise assertion can be made as to the stage in their history at which it began to be modified, especially since Sohm’s investigations (in his ‘Fränkische Reichs-und Gerichtsverfassung’) have shown us how considerably the social organisation of some of these communities had been affected by central or royal authority in the interval between the observations of Tacitus and the writing of the Salic Law. But I think we may safely conjecture that the transition from the older to the newer Primogeniture took place everywhere under circumstances nearly the reverse of those which kept Tanistry so long alive in Ireland. Wherever some degree of internal peace was maintained during tolerably long periods of time, wherever an approach was made to the formation of societies of the distinctive modern type, wherever military and civil institutions began to group themselves round the central authority of a king, the value of strategical capacity in the humbler chiefs would diminish, and in the smaller brotherhoods the respect for purity of blood would have unchecked play. The most natural object of this respect is he who most directly derives his blood from the last ruler, and thus the eldest son, even though a minor, comes to be preferred in the succession to his uncle; and, in default of sons, the succession may even devolve on a woman. There are not a few indications that the transformation of ideas was gradual. The disputes among great Highland families about the title to the chieftaincy of particular clans appear to date from a period when there was still a conflict between the old principle of succession and the new; and at a relatively later period, when throughout most of Western Europe tribal customs have been replaced by feudal rules, there is a visible uncertainty about such of these rules as affect succession. Glanville, writing of English military tenures in the later part of the reign of Henry the Second, observes: ‘When anyone dies, leaving a younger son and a grandson, the child of his eldest son, great doubt exists as to which of the two the law prefers in the succession to the other, whether the son or the grandson. Some think the younger son has more right to the inheritance than the grandson . . . . but others incline to think that the grandson ought to be preferred to his uncle.’ (Glanville, vii. 7.) This ancient doubt has left traces of itself on literature no less than on history, since it manifestly affects the plot of Shakespeare’s Hamlet; but the very question of principle arose between the descendants of daughters in the controversy between Bruce and Baliol. The succession to the Crown of Scotland was ultimately settled, as it would have been in earlier times, by what amounted to national election, but the decision of Edward the First in favour of Baliol was undoubtedly in accordance with principles which were gaining ground everywhere, and I quite agree with Mr. Burton (ii. 249) that the celebrity of the dispute and the full consideration given to it did much to settle the rule which prevailed in the end, that the whole of the descendants of an elder child must be exhausted before those of the younger had a title. When, however, the eldest son had once taken the place of his uncle as the heir to the humbler chieftaincies, he doubtless also obtained that ‘portion of land attached to the Signory or Chiefry which went without partition to the Tanaist;’ and, as each community gradually settled down into comparative peace under royal or central authority, this demesne, as it was afterwards called, must have assumed more and more the character of mere property descending according to the rule of primogeniture. It may be believed that in this way a principle of inheritance was formed which first of all extended from the demesne to all the estates of the holder of the Signory, however acquired, and ultimately determined the law of succession for the privileged classes throughout feudalised Europe. One vestige of this later course of change may perhaps be traced in the noble tenure once widely extended on the Continent, and called in French ‘Parage,’ under which the near kinsmen of the eldest son still took an interest in the family property, but held it of him as his Peers. There were, however, other causes than those just stated which led to the great development of Primogeniture in the early part of the Middle Ages, but for an examination of them I may be allowed to refer to the work of mine which I mentioned above. (‘Ancient Law,’ pp. 232 et seq.)
I do not think that the disaffirmation of the legality of Tanistry, and the substitution for it of the rule of Primogeniture, can justly be reckoned among the mistakes or crimes of the English in Ireland. The practice had been perpetuated in the country by its disorders, which preserved little groups of kinsmen and their petty chiefs in an unnatural vitality; and probably Sir John Davis does not speak too harshly of it when he charges it with ‘making all possessions uncertain, and bringing confusion, barbarism, and incivility.’ The decision against the Irish Gavelkind was far less justifiable. Even if the institution were exactly what Davis supposed it to be, there was injustice in suddenly disappointing the expectations of the distant kindred who formed the sept of the last holder; but it is probable that several different modes of succession were confounded under the name of Gavelkind, and that in many cases a number of children were unjustifiably deprived of their inheritance for the advantage of one. All that can be said for the authors of the revolution is that they seem to have sincerely believed the mischievousness of the institutions they were destroying; and it is some evidence of this that, when their descendants a century later really wished to inflict an injury on the majority of Irishmen, they re-introduced Gavelkind, though not in its most ancient shape. They ‘gavelled’ the lands of Papists and made them descendible to all the children alike. There seems to me a melancholy resemblance between some of the mistakes which, at two widely distant epochs, were committed by Englishmen, apparently with the very best intentions, when they were brought into contact with stages in the development of institutions earlier than that which their own civilisation had reached. Sir John Davis’s language on the subject of the Irish custom of Gavelkind might be that of an Anglo-Indian lawyer who should violently censure the Brahminical jurists for not confounding families with joint undivided families. I do not know that any such mistake has been made in India, though undoubtedly the dissolution of the Joint Family was in the early days of our government unduly encouraged by our Courts. But there is a closer and more unfortunate similarity between some of the English experiments in Ireland and those tried in India. Under an Act of the twelfth year of Queen Elizabeth the Lord Deputy was empowered to take surrenders and regrant estates to the Irishry. The Irish lords, says Davis, ‘made surrenders of entire countries, and obtained grants of the whole again to themselves only, and none other, and all in demesne. In passing of which grants, there was no care taken of the inferior septs of people. . . . So that upon every such surrender or grant, there was but one freeholder made in a whole country, which was the lord himself; all the rest were but tenants at will, or rather tenants in villenage.’ There are believed to be many Indian joint-families or septs which, in their later form of village-communities, had the whole of their lands similarly conferred on a single family out of their number, or on a royal taxgatherer outside them, under the earliest Indian settlements. The error was not in introducing absolute ownership into Ireland or India, but in the apportionment of the rights of which property is made up. How, indeed, this apportionment shall be wisely and justly made, when the time has fully come for putting individual property in the place of collective property by a conscious act of the State, is a problem which taxes to the utmost the statesmanship of the most advanced era, when animated by the highest benevolence and informed with the widest knowledge. It has been reserved for our own generation to witness the least unsatisfactory approach which has hitherto been made towards the settlement of this grave question in the great measures collectively known as the enfranchisement of the Russian serfs.
The Irish practice of Tanistry connects itself with the rule of Primogeniture, and the Irish Gavelkind with the rules of succession most widely followed among both the Eastern and Western branches of the Aryan race; but there are some passages in the Brehon tracts which describe an internal division of the Irish Family, a classification of its members and a corresponding system of succession to property, extremely unlike any arrangement which we, with our ideas, can conceive as growing out of blood-relationship. Possibly, only a few years ago, these passages would have been regarded as possessing too little interest in proportion to their difficulty for it to be worth anybody’s while to bestow much thought upon their interpretation. But some reasons may be given why we cannot wholly neglect them.
The distribution of the Irish Family into the Geilfine, the Deirbhfine, the Iarfine, and the Indfine—of which expressions the three last are translated the True, the After, and the End Families—is obscurely pointed at in several texts of the earlier volumes of the translations; but the Book of Aicill, in the Third Volume, supplies us for the first time with statements concerning it having some approach to precision. The learned Editor of this volume, who has carefully examined them, describes their effect in the following language: ‘Within the Family, seventeen members were organised in four divisions, of which the junior class, known as the Geilfine division, consisted of five persons; the Deirbhfine, the second in order; the Iarfine, the third in order; and the Indfine, the senior of all, consisted respectively of four persons. The whole organisation consisted, and could only consist, of seventeen members. If any person was born into the Geilfine division, its eldest member was promoted into the Deirbhfine, the eldest member of the Deirbhfine passed into the Iarfine; the eldest member of the Iarfine moved into the Indfine; and the eldest member of the Indfine passed out of the organisation altogether. It would appear that this transition from a lower to a higher grade took place upon the introduction of a new member into the Geilfine division, and therefore depended upon the introduction of new members, not upon the death of the seniors.’
It seems an inference from all the passages bearing on the subject that any member of the Joint-family or Sept might be selected as the starting-point, and might become a root from which sprung as many of these groups of seventeen men as he had sons. As soon as any one of the sons had four children, a full Geilfine sub-group of five persons was formed; but any fresh birth of a male child to this son or to any of his male descendants had the effect of sending up the eldest member of the Geilfine sub-group, provided always he were not the person from whom it had sprung, into the Deirbhfine. A succession of such births completed in time the Deirbhfine division, and went on to form the Iarfine and the Indfine, the After and the End Families. The essential principle of the system seems to me a distribution into fours. The fifth person in the Geilfine division I take to be the parent from whom the sixteen descendants spring, and it will be seen, from the proviso which I inserted above, that I do not consider his place in the organisation to have been ever changed. He appears to be referred to in the tracts as the Geilfine Chief.
The interest of this distribution of the kinsmen consists in this: whatever else it is, it is not a classification of the members of the family founded on degrees of consanguinity, as we understand them. And, even if we went no farther than this, the fact would suggest the general reflection which often occurs to the student of the history of law, that many matters which seem to us altogether simple, natural, and therefore probably universal, are in reality artificial and confined to limited spheres of application. When one of us opens his Prayer-book and glances at the Table of Prohibited Degrees, or when the law-student turns to his Blackstone and examines the Table of Descents, he possibly knows that disputes have arisen about the rights and duties proper to be adjusted to these scales of relationship, but it perhaps has never occurred to him that any other view of the nature of relationship than that upon which they are based could possibly be entertained. Yet here in the Book of Aicill is a conception of kinship and of the rights flowing from it altogether different from that which appears in the Tables of Degrees and of Descents. The groups are not formed upon the same principles, nor distinguished from one another on the same principles. The English Tables are based upon a classification by degrees, upon identity in the number of descents by which a given class of persons are removed from a given person. But the ancient Irish classification obviously turns upon nothing of the sort. A Geilfine class may consist of a father and four sons who are not in the same degree, and the Brehon writers even speak of its consisting of a father, son, grandson, great-grandson, and great-great-grandson, which is a conceivable case of Geilfine relationship, though it can scarcely have been a common one. Now, each of these relatives is in a different degree from the others. Yet this distribution of the family undoubtedly affected the law of inheritance, and the Geilfine class, to our eyes so anomalous, might succeed in certain eventualities to the property of the other classes, of which the composition is in our eyes equally arbitrary.
This singular family organisation suggests, however, a question which, in the present state of enquiry on the subject which occupies us, cannot fairly be avoided. I have spoken before of a volume on ‘Systems of Consanguinity and Affinity in the Human Family,’ published by the Smithsonian Institute at Washington. The author, Mr. Lewis Morgan, is one of the comparatively few Americans who have perceived that, if only on the score of the plain extant evidences of the civilisation which was once enjoyed and lost by some branches of their stock, the customs and ideas of the Red Indians deserve intelligent study. In prosecuting his researches Mr. Morgan was struck with the fact that the conception of Kinship entertained by the Indians, though extremely clear and precise, and regarded by them as of much importance, was extremely unlike that which prevails among the now civilised races. He then commenced a laborious investigation of the whole subject, chiefly through communications with correspondents in all parts of the world. The result at which he arrived was that the ideas on the subject of relationship entertained by the human family as a whole were extraordinarily various, but that a generalisation was possible, and that these ideas could be referred to one or other of two distinct systems, which Mr. Morgan calls respectively the Descriptive and the Classificatory system. The time at our command will only allow me to explain his meaning very briefly. The Descriptive system is that to which we are accustomed. It has come to us from the Canon law, or else from the Roman law, more particularly as declared in the 118th Novel of Justinian, but it is not at all confined to societies deeply affected by Civil and Canon law. Its essence consists in the giving of separate names to the classes of relatives which are formed by the members of the family who are removed by the same number of descents from yourself, the ego or propositus, or from some common ancestor. Thus, your uncle stands to you in the third degree, there being one degree or step from yourself to your father or mother, a second from your father or mother to their parents, a third from those parents to their other children, among whom are your uncles. And ‘uncle’ is a general name for all male relatives standing to you in this third degree. The other names employed under the Descriptive system are among the words in most common use; yet it is to be noted that the system cannot in practice be carried very far. We speak of uncle, aunt, nephew, niece, cousin; but then we get to great-uncle, grand-nephew, and so forth, and at length lose our way amid complications of ‘great’ and ‘grand’ until we cease to distinguish our distant kindred by particular designations. The Roman technical law went considerably farther than we do with the specific nomenclature of relatives; yet there is reason to think that the popular dialects of Latin were more barren, and no Descriptive system can go on indefinitely with the process. On the other hand, the Classificatory system groups the relatives in classes, often large ones, which have no necessary connection with degrees. Under it a man’s father and his uncles are grouped together, sometimes his uncles on his father’s side, sometimes on the mother’s side, sometimes on both; and perhaps they are all indifferently called his fathers. Similarly, a man’s brothers and all his male cousins may be classed together and called his brothers. The effect of the system is in general to bring within your mental grasp a much greater number of your kindred than is possible under the system to which we are accustomed. This advantage is gained, it is true, at the expense of the power of discriminating between the members of the several classes, but still it may be very important in certain states of society, since each of the classes usually stands under some sort of conjoint responsibility.
I am not now concerned with the explanation of the Classificatory system of Kinship. Mr. Morgan and the school to which he belongs find it, as I said before, in a state of sexual relations, alleged to have once prevailed universally throughout the human race, and known now to occur in some obscure fragments of it. The fullest account of the condition of society in which these views of relationship are believed to have grown up may be read in Mr. McLennan’s most original work on Primitive Marriage. The point before us, however, is whether we have a trace of the Classificatory system in the Irish division of the Family into four small groups, no one of which is necessarily composed of relatives of the same degree, and each of which has distinct rights of its own, and stands under definite responsibilities. Undoubtedly, the Descriptive system was that which the ancient Irish generally followed; but still it would be an interesting, and, in the opinion of pre-historic writers, an important fact, if a distribution of the Family only intelligible as a relic of the Classificatory system remained as a ‘survival’ among the institutions reflected by the Brehon Laws. My own opinion, which I will state at once, is that the resemblance between the Irish classification of kindred and the modes of classification described by Mr. Morgan is only superficial and accidental. The last explanation Mr. Morgan would admit of the remarkable ideas concerning kinship which form the subject of his book would be that they are connected with the Patria Potestas, that famous institution which held together what he and his school consider to be a relatively modern form of the Family. I think, however, I can assign some at least plausible reasons for believing that this perplexing four-fold division of the Celtic Family is neither a mere survival from immemorial barbarism nor, as most persons who have noticed it have supposed, a purely arbitrary arrangement, but a monument of that Power of the Father which is the first and greatest land-mark in the course of legal history.
Let me repeat that the Irish Family is assumed to consist of three groups of four persons and one group of five persons. I have already stated that I consider the fifth person in the group of five to be the parent from whom all the other members of the four divisions spring, or with whom they are connected by adoptive descent. Thus, the whole of the natural or adoptive descendants are distributed into four groups of four persons each, their rank in the Family being in the inverse order of their seniority. The Geilfine group is several times stated by the Brehon lawyers to be at once the highest and the youngest.
Now, Mr. Whitley Stokes has conveyed to me his opinion that ‘Geilfine’ means ‘hand-family.’ As I have reason to believe that a different version of the term has been adopted by eminent authority, I will give the reasons for Mr. Stokes’s view. ‘Gil’ means ‘hand’—this was also the rendering of O’Curry—and it is, in fact, the Greek word χείρ. In several Aryan languages the term signifying ‘hand’ is an expressive equivalent for Power, and specially for Family or Patriarchal Power. Thus, in Greek we have ὑποχείριος and χέρης, for the person under the hand. In Latin we have herus ‘master,’ from an old word, cognate to χείρ; and we have also one of the cardinal terms of ancient Roman Family Law, manus, or hand, in the sense of Patriarchal authority. In Roman legal phraseology, the wife who has become in law her husband’s daughter by marriage is in manu. The son discharged from Paternal Power is emancipated. The free person who has undergone mancipation is in mancipio. In the Celtic languages we have, with other words, ‘Gilla,’ a servant, a word familiar to sportsmen and travellers in the Highlands and to readers of Scott in its Anglicised shape, ‘Gillie.’
My suggestion, then, is that the key to the Irish distribution of the Family, as to so many other things in ancient law, must be sought in the Patria Potestas. It seems to me to be founded on the order of emancipation from Paternal authority. The Geilfine, the Hand-family, consists of the parent and the four natural or adoptive sons immediately under his power. The other groups consist of emancipated descendants, diminishing in dignity in proportion to their distance from the group which, according to archaic notions, constitutes the true or representative family.
The remains which we possess of the oldest Roman law point to a range of ideas very similar to that which appears to have produced the Irish institution. The Family under Patria Potestas was, with the Pater-Familias, the true Roman Family. The children who were emancipated from Paternal Power may have gained a practical advantage, but they undoubtedly lost in theoretical dignity. They underwent that loss of status which in ancient legal phraseology was called a capitis deminutio. We know too that, according to primitive Roman law, they lost all rights of inheritance, and these were only gradually restored to them by a relatively modern institution, the Equity of the Roman Prætor. Nevertheless there are hints on all sides that, as a general rule, sons as they advanced in years were enfranchished from Paternal Power, and no doubt this practice supplies a partial explanation of the durability of the Patria Potestas as a Roman institution. The statements, therefore, which we find concerning the Celtic Family would not be very untrue of the Roman. The youngest children were first in dignity.
Of course I am not contending for an exact resemblance between the ancient Roman and ancient Celtic Family. We have no trace of any systematised discharge of the sons from the Roman Patria Potestas; their enfranchisement seems always to have been dependent on the will of the Pater-Familias. The divisions of the Celtic Family seem, on the other hand, to have been determined by a self-acting principle. An even more remarkable distinction is suggested by passages in the Book of Aicill which seem to show that the parent, who retained his place in the Geilfine group, might himself have a father alive. The peculiarity, which has no analogy in ancient Roman law, may possibly have its explanation in usages which many allusions in the Brehon law show to have been followed by the Celts, as they were by several other ancient societies. The older members of the Family or Joint Family seem in advanced age to have become pensioners on it, and, like Laertes in the Odyssee, to have vacated their privileges of ownership or of authority. On such points, however, it is safest to suspend the judgment till the Brehon law has been more thoroughly and critically examined.
At the date at which the Book of Aicill was put together the Irish division of the Family seems only to have had importance in the law of succession after death. This, however, is the rule in all societies. When the ancient constitution of the Family has ceased to affect anything else, it affects inheritance. All laws of inheritance are, in fact, made up of the débris of the various forms which the Family has assumed. Our system of succession to personalty, and the whole French law of inheritance, are derived from Roman law, which in its latest condition is a mixture of rules having their origin in successive ascertainable stages of the Roman Family, and is a sort of compromise between them.
The authors of the Brehon Law Tracts frequently compare the Geilfine division of the Family to the human hand, but with them the comparison has at first sight the air of being purely fanciful. The Geilfine group has five members, and the hand has five fingers. Dr. Sullivan—who, however, conceives the Geilfine in a way materially different from the authorities whom I follow—tells us that ‘as they represented the roots of the spreading branches of the Family, they were called the cuic mera na Fine, or the ‘five fingers of the Fine.’ If the explanation of ‘Geilfine’ which I have partly taken from Mr. Whitley Stokes be correct, we must suppose that, at the time at which the Brehon tracts were thrown into their present form, the Patria Potestas of the ancient Irish, though frequently referred to in the tracts as the father’s power of ‘judgment, proof, and witness’ over his sons, had nevertheless considerably decayed, as it is apt to do in all societies under unfavourable circumstances, and that with this decay the association of the Geilfine group with ‘hand’ in the sense of Paternal Power had also become faint. There is, however, a real connection of another kind between the Geilfine group and the five fingers of the hand. If you ask why in a large number of ancient societies Five is the representative number, no answer can be given except that there are five fingers on the human hand. I commend to your attention on this point Mr. Tylor’s most instructive chapter on the infancy of the Art of Counting, in the first volume of his ‘Primitive Culture.’ ‘Finger-counting,’ he observes, ‘is not only found among savages and uneducated men, carrying on a part of their mental operations where language is only partly able to follow it, but it also retains a place and an undoubted use among the most cultured nations as a preparation and means of acquiring higher arithmetical methods’ (I. 246.) Five is thus a primitive natural maximum number. You will recollect that the early English Township was represented by the Reeve and the four men. The Council of an Indian Village Community most commonly consists of five persons, and throughout the East the normal number of a Jury or Board of arbitrators is always five—the punchayet familiar to all who have the smallest knowledge of India. The Geilfine, the representative group of the Irish Family, consisting of the Parent and the four descendants still retained under his Patria Potestas, falls in with this widely extended conception of representation.
The Patria Potestas seems to me the most probable source of a well-known English custom which has occasioned no little surprise to students of our law. ‘Borough English,’ under which the youngest son and not the eldest succeeds to the burgage-tenements of his father, has from time immemorial being recognised as a widely diffused usage of which it is the duty of our Courts to take judicial notice, and many writers on our real property laws, from Littleton downwards, have attempted to account for it. Littleton thought he saw its origin in the tender age of the youngest son, who was not so well able to help himself as the rest of the brethren. Other authors, as Blackstone tells us, explained it by a supposed right of the Seigneur or lord, now very generally regarded as apocryphal, which raised a presumption of the eldest son’s illegitimacy. Blackstone himself goes as far a-field as North-Eastern Asia for an explanation. He quotes from Duhalde the statement that the custom of descent to the youngest son prevails among the Tartars. ‘That nation,’ he says, ‘is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. The youngest son, therefore, who continues longest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other Northern nations, it was the custom for all the sons but one to migrate from the father, which one now became his heir.’ The explanation was really the best which could be given in Blackstone’s day, but it was not necessary to go for it so far from home. It is a remarkable circumstance that an institution closely resembling Borough English is found in the Laws of Wales, giving the rule of descent for all cultivating villeins. ‘Cum fratres inter se dividant hæreditatem,’ says a rule of that portion of the Welsh Law which has survived in Latin; ‘junior debet habere tygdyn, i.e. ædificia patris sui, et octo acras de terrâ, si habuerint’ (L. Wall., vol. ii. p. 780). And, when the youngest son has had the paternal dwelling-house, eight acres of land and certain tools and utensils, the other sons are to divide what remains. It appears to me that the institution is founded on the same ideas as those which gave a preference to the Geilfine division of the Celtic family. The home-staying, unemancipated son, still retained under Patria Potestas, is preferred to the others. If this be so, there is no room for the surprise which the custom of Borough English has excited, and which arises from contrasting it with the rule of Primogeniture. But the two institutions have a different origin. Primogeniture is not a natural outgrowth of the family. It is a political not a tribal institution, and comes to us not from the clansmen but from the Chief. But the rule of Borough English, like the privileges of the Geilfine, is closely connected with the ancient conception of the Family as linked together by Patria Potestas. Those who are most emphatically part of the Family when it is dissolved by the death of its head are preferred in the inheritance according to ideas which appear to have been once common to the primitive Romans, to the Irish and Welsh Celts, and to the original observers, whoever they were, of the English custom.
Lecture 8. – The Growth and Diffusion of Primitive Ideas.
Mr. Tylor has justly observed that the true lesson of the new science of Comparative Mythology is the barrenness in primitive times of the faculty which we most associate with mental fertility, the Imagination. Comparative Jurisprudence, as might be expected from the natural stability of law and custom, yet more strongly suggests the same inference, and points to the fewness of ideas and the slowness of additions to the mental stock as among the most general characteristics of mankind in its infancy.
The fact that the generation of new ideas does not proceed in all states of society as rapidly as in that to which we belong, is only not familiar to us through our inveterate habit of confining our observation of human nature to a small portion of its phenomena. When we undertake to examine it, we are very apt to look exclusively at a part of Western Europe and perhaps of the American Continent. We constantly leave aside India, China, and the whole Mahometan East. This limitation of our field of vision is perfectly justifiable when we are occupied with the investigation of the laws of Progress. Progress is, in fact, the same thing as the continued production of new ideas, and we can only discover the law of this production by examining sequences of ideas where they are frequent and of considerable length. But the primitive condition of the progressive societies is best ascertained from the observable condition of those which are non-progressive; and thus we leave a serious gap in our knowledge when we put aside the mental state of the millions upon millions of men who fill what we vaguely call the East as a phenomenon of little interest and of no instructiveness. The fact is not unknown to most of us that, among these multitudes, Literature, Religion, and Art—or what corresponds to them—move always within a distinctly drawn circle of unchanging notions; but the fact that this condition of thought is rather the infancy of the human mind prolonged than a different maturity from that most familiar to us, is very seldom brought home to us with a clearness rendering it fruitful of instruction.
I do not, indeed, deny that the difference between the East and the West, in respect of the different speed at which new ideas are produced, is only a difference of degree. There were new ideas produced in India even during the disastrous period just before the English entered it, and in the earlier ages this production must have been rapid. There must have been a series of ages during which the progress of China was very steadily maintained, and doubtless our assumption of the absolute immobility of the Chinese and other societies is in part the expression of our ignorance. Conversely, I question whether new ideas come into being in the West as rapidly as modern literature and conversation sometimes suggest. It cannot, indeed, be doubted that causes, unknown to the ancient world, lead among us to the multiplication of ideas. Among them are the neverceasing discovery of new facts of nature, inventions changing the circumstances and material conditions of life, and new rules of social conduct; the chief of this last class, and certainly the most powerful in the domain of law proper, I take to be the famous maxim that all institutions should be adapted to produce the greatest happiness of the greatest number. Nevertheless, there are not a few signs that even conscious efforts to increase the number of ideas have a very limited success. Look at Poetry and Fiction. From time to time one mind endowed with the assemblage of qualities called genius makes a great and sudden addition to the combinations of thought, word, and sound which it is the province of those arts to produce; yet as suddenly, after one or a few such efforts, the productive activity of both branches of invention ceases, and they settle down into imitativeness for perhaps a century at a time. An humbler example may be sought in rules of social habit. We speak of the caprices of Fashion; yet, on examining them historically, we find them singularly limited, so much so, that we are sometimes tempted to regard Fashion as passing through cycles of form ever repeating themselves. There are, in fact, more natural limitations on the fertility of intellect than we always admit to ourselves, and these, reflected in bodies of men, translate themselves into that weariness of novelty which seems at intervals to overtake whole Western societies, including minds of every degree of information and cultivation.
My present object is to point out some of the results of mental sterility at a time when society is in the stage which we have been considering. Then, the relations between man and man were summed up in kinship. The fundamental assumption was that all men, not united with you by blood, were your enemies or your slaves. Gradually the assumption became untrue in fact, and men, who were not blood relatives, became related to one another on terms of peace and mutual tolerance or mutual advantage Yet no new ideas came into being exactly harmonising with the new relation, nor was any new phraseology invented to express it. The new member of each group was spoken of as akin to it, was treated as akin to it, was thought of as akin to it. So little were ideas changed that, as we shall see, the very affections and emotions which the natural bond evoked were called forth in extraordinary strength by the artificial tie. The clear apprehension of these facts throws light on several historical problems, and among them on some of Irish history. Yet they ought not greatly to surprise us, since, in a modified form, they make part of our everyday experience. Almost everybody can observe that, when new circumstances arise, we use our old ideas to bring them home to us; it is only afterwards, and sometimes long afterwards, that our ideas are found to have changed. An English Court of Justice is in great part an engine for working out this process. New combinations of circumstance are constantly arising, but in the first instance they are exclusively interpreted according to old legal ideas. A little later lawyers admit that the old ideas are not quite what they were before the new circumstances arose.
The slow generation of ideas in ancient times may first be adduced as necessary to the explanation of that great family of Fictions which meet us on the threshold of history and historical jurisprudence. Specimens of these fictions may be collected on all sides from bodies of archaic custom or rudimentary systems of law, but those most to our present purpose are fictitious assumptions of blood-relationship. Elsewhere I have pointed out the strange conflict between belief or theory and what seems to us notorious fact, which is observable in early Roman and Hellenic society. ‘It may be affirmed of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. What was obviously true of the Family was believed to be true first of the House, next of the Tribe, lastly of the State. And yet we find that, along with this belief, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. Whether we look to the Greek States, or to Rome, or to the Teutonic aristocracies in Ditmarsh which furnished Niebuhr with so many valuable illustrations, or to the Celtic clan associations, or to that strange social organisation of the Sclavonic Russians and Poles which has only lately attracted notice, everywhere we discover traces of passages in their history when men of alien descent were admitted to, and amalgamated with, the original brotherhood. Adverting to Rome singly, we perceive that the primary group, the Family, was being constantly adulterated by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of one of the original Tribes, and concerning a large addition to the Houses made by one of the early Kings. The composition of the State uniformly assumed to be natural was nevertheless known to be in great measure artificial.’ (Ancient Law, pp. 129, 130.) The key to these singular phenomena has been recently sought in the ancient religions, and has been supposed to be found in the alleged universal practice of worshipping dead ancestors. Very striking illustrations of them are, however, supplied by the law and usage of Ireland after it had been Christianised for centuries, and long after any Eponymous progenitor can be conceived as worshipped. The Family, House, and Tribe of the Romans—and, so far as my knowledge extends, all the analogous divisions of Greek communities—were distinguished by separate special names. But in the Brehon Law, the same word, Fine (or ‘family’), is used for the Family as we ordinarily understand it—that is, for the children of a living parent and their descendants—for the Sept or, in phrase of Indian law, the Joint Undivided Family, that is, the combined descendants of an ancestor long since dead—for the Tribe, which was the political unit of ancient Ireland, and even for the large Tribes in which the smaller units were sometimes absorbed. Nevertheless the Irish Family undoubtedly received additions through Adoption. The Sept, or larger group of kindred, had a definite place for strangers admitted to it on stated conditions, the Fine Taccair. The Tribe avowedly included a number of persons, mostly refugees from other Tribes, whose only connection with it was common allegiance to its Chief. Moreover the Tribe in its largest extension and considered a political as well as a social unit might have been absorbed with others in a Great or Arch Tribe, and here the sole source of the kinship still theoretically maintained is Conquest. Yet all these groups were in some sense or other Families.
Nor does the artificiality solely consist in the extension of the sphere of kinship to classes known to have been originally alien to the true brotherhood. An even more interesting example of it presents itself when the ideas of kinship and the phraseology proper to consanguinity are extended to associations which we should now contemplate as exclusively founded on contract, such as partnerships and guilds. There are no more interesting pages in Dr. Sullivan’s Introduction (pp. ccvi et seq.) than those in which he discusses the tribal origin of Guilds. He claims for the word itself a Celtic etymology, and he traces the institution to the grazing partnerships common among the ancient Irish. However this may be, it is most instructive to find the same words used to describe bodies of co-partners, formed by contract, and bodies of co-heirs or co-parceners formed by common descent. Each assemblage of men seems to have been conceived as a Family. As regards Guilds, I certainly think, as I thought three years ago, that they have been much too confidently attributed to a relatively modern origin; and that many of them, and much which is common to all of them, may be suspected to have grown out of the primitive brotherhoods of co-villagers and kinsmen. The trading guilds which survive in our own country have undergone every sort of transmutation which can disguise their parentage. They are artificial to begin with, though the hereditary principle has a certain tendency to assert itself. They have long since relinquished the occupations which gave them a name. They mostly trace their privileges and constitution to some royal charter; and kingly grants, real or fictitious, are the great cause of interruption in English History. Yet anybody who, with a knowledge of primitive law and history, examines the internal mechanism and proceedings of a London Company will see in many parts of them plain traces of the ancient brotherhood of kinsmen, ‘joint in food, worship, and estate;’ and I suppose that the nearest approach to an ancient tribal holding in Ireland is to be found in those confiscated lands which are now the property of several of these Companies.
The early history of Contract, I need scarcely tell you, is almost exclusively to be sought in the history of Roman law. Some years ago I pointed to the entanglement which primitive Roman institutions disclose between the conveyance of property and the contract of sale. Let me now observe that one or two others of the great Roman contracts appear to me, when closely examined, to afford evidence of their having been gradually evolved through changes in the mechanism of primitive society. You have seen how brotherhoods of kinsmen transform themselves into alliances between persons whom we can only call partners, but still at first sight the link is missing which would enable us to say that here we have the beginning of the contract of partnership. Look, however, at the peculiar contract called by the Romans ‘societas omnium (or universorum) bonorum.’ It is commonly translated ‘partnership with unlimited liability,’ and there is no doubt that the elder form of partnership has had great effect on the newer form. But you will find that, in the societas omnium bonorum, not only were all the liabilities of the partnership the liabilities of the several partners, but the whole of the property of each partner was brought into the common stock and was enjoyed as a common fund. No such arrangement as this is known in the modern world as the result of ordinary agreement, though in some countries it may be the effect of marriage. It appears to me that we are carried back to the joint brotherhoods of primitive society, and that their development must have given rise to the contract before us. Let us turn again to the contract of Mandatum or Agency. The only complete representation of one man by another which the Roman law allowed was the representation of the Paterfamilias by the son or slave under his power. The representation of the Principal by the Agent is much more incomplete, and it seems to me probable that we have in it a shadow of that thorough coalescence between two individuals which was only possible anciently when they belonged to the same family.
The institutions which I have taken as my examples are institutions of indigenous growth, developed probably more or less within all ancient societies by the expansion of the notion of kinship. But it sometimes happens that a wholly foreign institution is introduced from without into a society based upon assumed consanguinity, and then it is most instructive to observe how closely, in such a case, material which antecedently we should think likely to oppose the most stubborn resistance to the infiltration of tribal ideas assimilates itself nevertheless to the model of a Family or Tribe. You may be aware that the ancient Irish Church has long been a puzzle to ecclesiastical historians. There are difficulties suggested by it on which I do not pretend to throw any new light, nor, indeed, could they conveniently be considered here. Among perplexities of this class are the extraordinary multiplication of bishops and their dependence, apparently an almost servile dependence, on the religious houses to which they were attached. But the relation of the various ecclesiastical bodies to one another was undoubtedly of the nature of tribal relation. The Brehon law seems to me fully to confirm the account of the matter given, from the purely ecclesiastical literature, by Dr. Todd, in the Introduction to his Life of St. Patrick. One of the great Irish or Scotic Missionaries, who afterwards nearly invariably reappears as a Saint, obtains a grant of lands from some chieftain or tribe in Ireland or Celtic Britain, and founds a monastery there, or it may be that the founder of the religious house is already himself the chieftain of a tribe. The House becomes the parent of others, which again may in their turn throw out minor religious establishments, at once monastic and missionary. The words signifying ‘family’ or ‘tribe’ and ‘kinship’ are applied to all the religious bodies created by this process. Each monastic house, with its monks and bishops, constitutes a ‘family’ or ‘tribe;’ and its secular or servile dependants appear to be sometimes included under the name. The same appellation is given to the collective assemblage of religious houses formed by the parent monastery and the various churches or monastic bodies sprung from it. These make up together the ‘tribe of the saint,’ but this last expression is not exclusively employed with this particular meaning. The abbot of the parent house and all the abbots of the minor houses are the ‘comharbas’ or co-heirs of the saint, and in yet another sense the ‘family’ or ‘tribe’ of the saint means his actual tribesmen or blood-relatives. Iona, or Hy, was, as you know, the famous religious house founded by St. Columba near the coast of the newer Scotia. ‘The Abbot of Hy,’ says Dr. Todd, ‘or Co-arb of Columba, was the common head of Durrow, Kells, Swords, Drumcliff, and other houses in Ireland founded by Columba, as well as of the parent monastery of Hy, and the “family of Colum-kille” was composed of the congregations or inmates and dependants of all those monasteries. The families, therefore, of such monasteries as Clonmacnois or Durrow might muster a very respectable body of fighting men.’ Let me add, that there is very good evidence that these ‘families of the saints’ were occasionally engaged in sanguinary little wars. But, ‘in general’ (I now quote again from Dr. Todd), ‘the “family” meant only the monks or religious of the house.’
It will be obvious to you that this application of the same name to all these complicated sets of relations is every now and then extremely perplexing, but the key to the difficulty is the conception of the kindred branching off in successive generations from the common stock, planting themselves occasionally at a distance, but never altogether breaking the bond which connected them with their original family and chief. Nothing, let me observe, can be more curious than the way in which, throughout these artificial structures, the original natural principle upon which they were modelled struggles to assert itself at the expense of the imitative system. In all the more modern guilds, membership always tended to become hereditary, and here we have the Brehon law striving to secure a preference, in elections to the Abbacy, to the actual blood-relatives of the sainted founder. The ecclesiastical rule, we know, required election by the monks, but the Corus Bescna declares that, on a vacancy, the ‘family of the saint’ (which here means the founder’s sept), if there be a qualified monk among them, ought to be preferred in elections to the Abbacy—‘though there be but a psalm-singer of them, if he be fit, he shall have it.’ And it proceeds to say that, if no relative or tribesman of the saint be qualified, the Abbacy shall go to some member of the tribe which originally granted the land.
A very modern example of this plasticity of the notion of kinship has recently been brought to my notice. The co-villagers of an Indian village call themselves brothers, although, as I have frequently observed, the composition of the community is often artificial and its origin very miscellaneous. The appellation, at the same time, is distinctly more than a mere word. Now, some of the Christian missionaries have recently tried an experiment which promises to have much success, and have planted in villages converts collected from all sorts of different regions. Yet these persons, as I am informed, fall into a ‘brotherhood’ quite as easily and talk the language and assume the habits appropriate to it quite as naturally as if they and their forefathers had been members from time immemorial of this peculiarly Indian association, the village-community.
There is, however, another set of phenomena which belong to the same class, but which seem to me to have been much misunderstood. When men, under the influence of the cast of thought we are discussing, are placed in circumstances which naturally breed affection and sympathy, or when they are placed in a relation which they are taught to consider especially sacred, not only their words and ideas but their feelings, emotions, and prejudices mould themselves on the pattern of those which naturally result from consanguinity. We have, I believe, a striking example of the process in the history of the Christian Church. You know, I dare say, that Spiritual Relationship or the tie between a sponsor and a baptized person, or between sponsors, or even between the sponsors and the family of the baptized, became by degrees the source of a great number of prohibitions against intermarriage, which stood on the same level with those based on affinity, and almost with those founded on consanguinity. The earliest evidence we have that this order of ideas was stirring the Christian community is, I believe, a Constitution of Justinian in the Code (v. 4. 26), which forbids the marriage of the sponsor with the baptized; but the prohibitions were rapidly extended by the various authorities which contributed to the Canon law, and were finally regulated and somewhat narrowed by the Council of Trent. Nowadays, I am told that they merely survive formally in the Roman Catholic Church, and that dispensations relaxing them are obtainable as of course. The explanation of the system by technical theologians is that it is based on the wish to give a peculiar sacredness to the bond created by sponsorship, and this I believe to be a true account of its origin. But I do not believe that Spiritual Relationship, a structure based on contract, would in every stage of thought have assimilated itself to natural relationship. The system developed itself just when Christianity was being diffused among races whose social organisation was founded on kinship, and I cannot but think that their ideas reacted on the Church. With such races a very sacred tie was necessarily of the nature of a family tie, and carried with it the same associations and the same order of feeling. I do not, therefore, consider that such terms as Gossipred, Godfather, Godson—to which there are counterparts in several languages—were created by the theory of Spiritual Relationship, but rather that they mark the process by which that theory was formed.
It seems to me accordingly in the highest degree natural that Spiritual Relationship, when introduced into a tribal society like that of the ancient Irish, should closely assimilate itself to blood-relationship. We know in fact that it did so, and that the stringency of the relation and the warmth of the affections which it produced moved the scorn, the wrath, and the astonishment of several generations of English observers, deriving their ideas from a social order now become very unlike that of Ireland. But by the side of Gossipred, or Spiritual Relationship, there stood another much more primitive institution, which was extraordinarily developed among the ancient Irish, though not at all peculiar to them. This was Fosterage, the giving and taking of children for nurture. Of the reasons why this practice, now known to have been widely diffused among Aryan communities, should have had an exceptional importance and popularity in Ireland, we can say little more than that they probably belong to the accidents of Irish history and of Irish social life. But of the fact there is no doubt. An entire sub-tract in the Senchus Mor is devoted to the Law of Fosterage, and sets out with the greatest minuteness the rights and duties attaching to all parties when the children of another family were received for nurture and education. It is classed, with Gossipred, as one of the anomalies or curses of Ireland by all her English critics, from Giraldus Cambrensis in the twelfth century to Spenser in the sixteenth. It seemed to them monstrous that the same mother’s milk should produce in Ireland the same close affections as did common paternity in their own country. The true explanation was one which is only now dawning on us. It was, that Fosterage was an institution which, though artificial in its commencements, was natural in its operations; and that the relation of foster-parent and foster-child tended, in that stage of feeling, to become indistinguishable from the relation of father and son.
The form of Fosterage which has most interest for the modern enquirer is called by the Translators of the Brehon tracts Literary Fosterage. It was an institution nearly connected with the existence of the Brehon Law Schools, and it consists of the various relations established between the Brehon teacher and the pupils he received into his house for instruction in the Brehon lore. However it may surprise us that the connection between Schoolmaster and Pupil was regarded as peculiarly sacred by the ancient Irish, and as closely resembling natural fatherhood, the Brehon tracts leave no room for doubt on the point. It is expressly laid down that it created the same Patria Potestas as actual paternity; and the literary foster-father, though he teaches gratuitously, has a claim through life upon portions of the property of the literary foster-son. Thus the Brehon with his pupils constituted not a school in our sense but a true family. While the ordinary foster-father was bound by the law to give education of some kind to his foster-children — to the sons of chiefs instructions in riding, shooting with the bow, swimming, and chess-playing, and instruction to their daughters in sewing, cutting out, and embroidery—the Brehon trained his foster-sons in learning of the highest dignity, the lore of the chief literary profession. He took payment, but it was the law which settled it for him. It was part of his status, and not the result of a bargain.
There are some faint traces of Fosterage in the Hindoo law, but substantially it has dropped out of the system. The vestiges of Literary Fosterage are, however, tolerably abundant and very plain. According to the general custom of India, the Brahmin teacher of Brahmin pupils receives no payment for his services, but the Hindoo law repeatedly reserves to him a remote succession to their property. In each of four Brahminical law-tracts of great authority, the Vyavahara Mayukha, the Daya-Bhaga, the Mitakshara, and the Daya-Krama-Sangraha, the same ancient text is quoted (sometimes but not always attributed to Manu), which is to the effect that ‘If there be no male issue the nearest kinsman inherits; or in default of kindred, the preceptor, or failing him the disciple.’ One commentator explains that the preceptor is the instructor in the Vedas, and another describes him as the person who affords religious instruction to his pupil after investing him with the Brahminical thread. These writers add that if neither teacher nor pupil have survived the deceased his fellow-student will succeed. Modern cases turning on these peculiar rules of succession may be found in the Anglo-Indian Law Reports.
We are thus brought face to face with a problem which possesses interest in proportion to its difficulty—the problem of the origin of Castes. I cannot profess to do more than approach it, but the opportunity of throwing even the least light on a subject so dark ought not to be neglected. First let me say that, among the comparatively few English writers who have noticed the Brehon lawyers, some have loosely described them as a caste. But this is an improper use of the word, though it is one not uncommon in India. As regards the position of the Brehons in very early times, the evidence of the Irish records is consistent with the testimony of Cæsar as to the literary class of the Gallic Celts, and seems to show that anyone who went through a particular training might become a Brehon. When, however, Ireland began to be examined by English observers, it is plain that the art and knowledge of the Brehon had become hereditary in certain families who were attached to or dependent on the Chiefs of particular tribes. There is nothing remarkable in this change, which has obviously occurred with a vast number of trades and professions in India, now popularly called castes. In societies of an archaic type, a particular craft or kind of knowledge becomes in time an hereditary profession of families, almost as a matter of course. The difficulty with a native of India, unsophisticated by English ideas, is not to find a reason why a son should succeed to the learning of his father, and consequently to his office and duties; his difficulty would rather be to explain to himself why it should not be so, and how the public interests could be consulted by any other arrangement. The States governed by native Indian Princes are becoming a good deal Anglicised, but still in them it is the practically universal rule that office is hereditary. We do not, however, thus arrive at a complete account of the growth of those castes which are definite sections of great populations. One only of these castes really survives in India, that of the Brahmins, and it is strongly suspected that the whole literary theory of Caste, which is of Brahmin origin, is based on the existence of the Brahmin caste alone. Now, the tendency of knowledge to become hereditary is, by itself, consistent with a great variety of religious and literary cultivation; but, as a fact, the Brahmins of India are a remarkably homogeneous class, admitting (though no doubt with considerable local qualifications) a general brotherhood of all members of the order.
While, then, I cannot say that our scanty information respecting changes in the status of the Brehon lawyers helps us much towards a comprehension of the beginnings of Caste in the true sense, I certainly think that we learn something more than we knew before from the references in the Brehon tracts to Literary Fosterage. They appear to me to give a new emphasis and point to the rules of Hindoo Law respecting the remote succession of the ‘spiritual preceptor’ to the property of families. It seems as if in the most ancient state of both systems Literary or Religious fatherhood had been closely assimilated to actual fatherhood. Under these circumstances, if great schools of Vedaic learning existed in India in very ancient times, as we have strong reason to think they did, the relation between Teacher and Pupil would closely follow and imitate the relation between father and son. A great profession would thus be formed, with stores of common knowledge; but the tie between the members would not be purely intellectual; it would from the first be conceived as of the nature of kinship. Such a system, as the old ideas decayed, would tend infallibly to become one of real consanguinity. The aptitude for sacred knowledge would come to be thought to run in the blood of sons whose fathers had been instructed in it, and none but such sons would be received into the schools. A Caste would thus be formed, in the eyes of its members the type of all Castes.
We have thus strong reason for thinking that societies still under the influence of primitive thought labour under a certain incapacity for regarding men, grouped together by virtue of any institutions whatsoever, as connected otherwise than through blood-relationship. We find that, through this barrenness of conception, they are apt to extend the notion of consanguinity and the language beginning in it to institutions of their own not really founded on community of blood, and even to institutions of foreign origin. We find also that the association between institutions arising from true kinship and institutions based on artificial kinship is sometimes so strong, that the emotions which they respectively call forth are practically indistinguishable. These phenomena of early thought and feeling appear to me amply to account for some facts of Irish history which nearly all English writers on Ireland have noticed with extreme surprise or indignation. The expressions of Sir John Davis, while stating that many of the early Anglo-Norman adventurers settled in Ireland became in time pure Irish chieftains, reflect the violent astonishment and anger which the transformation excited in Englishmen. ‘The English Colonists did embrace and use the Irish customs, after they had rejected the Civil and Honourable Laws and Customs of England, whereby they became degenerate and metamorphosed like Nebuchadnezzar, who, although he had the face of a man, had the heart of a beast; or like those who had drunk of Circe’s cup and were turned into very beasts, and yet took such pleasure in their beastly manner of life as they would not return to their shape of men again; insomuch as within less time than the age of a man, they had no marks or difference left among them of that noble nation from which they were descended.’ The fact, stated in this bitter language, is not especially marvellous. We have seen the general complexion of Irish society giving its colour to institutions of all sorts—associations of kinsmen shading off into assemblages of partners and guild-brothers—foster parentage, spiritual parentage, and preceptorship taking their hue from natural paternity—ecclesiastical organisation blending with tribal organisation. The Anglo-Norman captain who had thought to conquer for himself an Irish signory passed insensibly in the same way into the chieftain of an Irish tribe. The dependants who surrounded him did not possibly draw any clear distinction between the actual depositary of power and the natural depositary of power, and, as the contagiousness of ideas is in proportion to their fewness, it is intelligible that he too was affected by the mental atmosphere in which he lived. Nor were other motives wanting. The extreme poverty and constant distractions of Ireland did not prevent an extraordinary amount of the pride of authority, of the pride of birth, and even of the pride of wealth from centring in the dignity of an Irish Chief.
Lecture 9. – The Primitive Forms of Legal Remedies. I.
I stated on a former occasion (Lecture I. p. 8) that the branch of law which we now call the Law of Distress occupies the greatest part of the largest Brehon law-tract, the Senchus Mor. The importance thus given to Distress is a fact of much significance, and in this and the following Lecture I propose to discuss the questions it raises and the conclusions it suggests.
The value of the precious discovery made by Niebuhr, when he disinterred in 1816 the manuscript of Gaius, does not solely arise from the new light which was at once thrown on the beginnings of the legal system which is the fountain of the greatest part of civilised jurisprudence. There are portions of the treatise then restored to the world which afford us glimpses of something older than law itself, and which enable us to connect with law the practices dictated to barbarous men by impulses which it has become the prime office of all law to control. At the head of the passages in the work of Gaius which allow the mind’s eye to penetrate some little way into the chaos out of which social order sprang, I place the fragmentary and imperfect account, given near the commencement of the Fourth Book, of the old Legis Actiones, which in the age of Gaius himself had ceased to have more than an historical and antiquarian interest.
Legis Actio, of which the exact meaning does not seem to have been known to Gaius, may be conjectured to have been the substantive form of the verbal expression, legem or lege agere, and to have been equivalent to what we now call Procedure. It has been several times observed that among the Legis Actiones are included several proceedings which are not of the nature of Actions or Suits, but are rather modes of executing decrees. The fact seems to be that, by a course of change which may be traced in the history of Roman law, one portion, ‘Actio,’ of the venerable phrase ‘Legis Actio’ has been gradually disjoined from the rest, and has come to denote that stage of the administration of justice which is directly conducted by the Court, together, in some judicial systems, with the stage immediately preceding it. I suppose that originally lex, used of the assumed written basis of Roman law, and legis actio, corresponded roughly to what many centuries afterwards were called Substantive and Adjective Law, the law declaring rights and duties and the rules according to which the law declaring rights and duties is administered. On the expression just mentioned, Adjective Law, with which Bentham and his school have familiarised us, I will make a remark which applies to much in the phraseology and classifications of the Analytical Jurists, that it is correct and convenient according to the ideas of their day, but that, if used of very old law, it is apt to lead to an historical misconception. It would not be untrue to assert that, in one stage of human affairs, rights and duties are rather the adjective of procedure than procedure a mere appendage to rights and duties. There have been times when the real difficulty lay, not in conceiving what a man was entitled to, but in obtaining it; so that the method, violent or legal, by which an end was obtained was of more consequence than the nature of the end itself. As a fact, it is only in the most recent times or in the most highly developed legal systems that remedies have lost importance in comparison with rights and have ceased to affect them deeply and variously.
The first and in many respects the most interesting of these ancient modes of proceeding is the Legis Actio Sacramenti, the undoubted parent of all the Roman Actions, and consequently of most of the civil remedies now in use in the world. Several years ago I pointed out (Ancient Law, pp. 376, 377) that the technical formalities appeared plainly, upon inspection, to be a dramatisation of the Origin of Justice. ‘Two armed men,’ I said, ‘are wrangling about some disputed property. The Prætor, vir pietate gravis, happens to be going by and interposes to stop the contest. The disputants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time.’ ‘This interpretation,’ I then added, ‘would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by Gaius as the imperative course of proceeding in a Legis Actio is substantially the same with one of the two subjects which the God Hephæstus is described by Homer as moulding into the First Compartment of the Shield of Achilles.’ Since these passages were written, the labours of more recent enquirers enable us to class this judicial picture of the origin of one great institution, Civil Justice, with other pictorial or dramatic representations of forgotten practices which, in various parts of the world, survive in the forms attending institutions of at least equal importance. It may be seen, for example, from Mr. McLennan’s work on ‘Primitive Marriage,’ that a large part of mankind still simulate in their marriage ceremonies the carrying off the bride by violence, and thus preserve the memory of the reign of force which, at all events as between tribe and tribe, preceded everywhere the reign of law. It is not at the same time to be supposed that these long-descended dramas imply or ever implied any disrespect for the institutions with which they are associated. In all probability they intentionally commemorate not the evil but the remedy for the evil: and, until they degenerate into meaningless usages, they are enacted, not in honour of brute force, but in honour of the institutions which superseded it, Marriage and Civil Justice.
Almost every gesture and almost every set of formal words in the Legis Actio Sacramenti symbolise something which, in some part of the world or another, in some Aryan society or another, has developed into an important institution. The claimant places his hand on the slave or other subject of dispute, and this grasp of the thing claimed, which is reproduced in the corresponding procedure of the ancient Germans and which, from them, was continued in various modified forms far down into the Middle Ages, is an early example of that Demand before action on which all civilised systems of law insist. The wand, which the claimant held in his hand, is stated by Gaius to have represented a spear, and the spear, the emblem of the strong man armed, served as the symbol of property held absolutely and against the world, not only in the Roman but in several other Western societies. The proceedings included a series of assertions and reassertions of right by the parties, and this formal dialogue was the parent of the Art of Pleading. The quarrel between plaintiff and defendant, which was a mere pretence among the Romans, long remained a reality in other societies, and, though its theory was altered, it survived in the Wager of Battle which, as an English institution, was only finally abolished in our fathers’ day. The interposition of the Prætor and the acceptance of his mediation expanded into the Administration of Justice in the Roman State, one of the most powerful of instrumentalities in the historical transformation of the civilised world. The disputants staked a sum of money—the Sacramentum, from which the proceedings took their name—on the merits of their quarrel, and the stake went into the public exchequer. The money thus wagered, which appears in a singularly large number of archaic legal systems, is the earliest representative of those Court-fees which have been a more considerable power in legal history than historians of law are altogether inclined to admit. The very spirit in which a Legis Actio was conducted was that which, in the eyes of laymen, has been most characteristic of lawyers in all historical times. If, says Gaius, you sued by Legis Actio for injury to your vines, and called them vines, you would fail; you must call them trees, because the text of the Twelve Tables spoke only of trees. The ancient collection of Teutonic legal formulas, known as the Malberg Gloss, contains provisions of precisely the same character. If you sue for a bull, you will miscarry if you describe him as a bull; you must give him his ancient juridical designation of ‘leader of the herd.’ You must call the forefinger the ‘arrow’-finger, the goat the ‘browser upon leeks.’ There are lawyers alive who can recollect when the English system of Special Pleading, now just expiring, was applied upon principles not remotely akin to these and historically descended from them.
The description given by Gaius of the Legis Actio Sacramenti is followed by a lacuna in the manuscript. It was once occupied with an account of the Judicis Postulatio, which was evidently a modification of the older Sacramental Action by which this ancient remedy was adapted to a particular class of cases. The text of the treatise begins again with a description of the Condictio, which is said by Gaius to have been created, but which is believed to have been only regulated, by two Roman statutes of the sixth century of Rome—the Lex Silia and the Lex Calpurnia. The Condictio, which afterwards developed into one of the most useful of the Roman actions, originally derived its name from a notice which the plaintiff gave the defendant to appear before the Prætor in thirty days, in order that a Judex or referee might be nominated; and immediately (as I myself think) on this notice being given, the parties entered into a ‘sponsio’ and ‘restipulatio,’ that is, they laid a formal wager (distinct from the stake called Sacramentum) on the justice of their respective contentions. The sum thus staked, which was always equal to a third of the amount in dispute, went in the end to the successful litigant, and not, like the Sacramentum, to the State. Lawyers wondered, Gaius tells us, that such an action should be needed when property could have been recovered by the older and unmodified procedure. Many technical answers to this question have been given by modern commentators on Roman law, but we will see whether a better explanation of it cannot be obtained by approaching it from another side.
Gaius, leaving the Condictio, proceeds to discuss two of the Legis Actiones, the Manus Injectio and the Pignoris Capio, which cannot be made to square in any way with our modern conception of an action. The Manus Injectio is expressly stated to have been originally the Roman mode of execution against the person of a judgment debtor. It has considerable historical interest, for it was undoubtedly the instrument of the cruelties practised by the Roman aristocracy on their defaulting plebeian debtors, and thus it gave the first impetus to a series of popular movements which affected the whole history of the Roman Commonwealth. The Pignoris Capio also, possibly under a slightly altered name, was a mode of execution in later times against property after decree; but this was not its original purpose as a Legis Actio. It was at first a wholly extra-judicial proceeding. The person who proceeded by it seized in certain cases the goods of a fellow-citizen, against whom he had a claim, but against whom he had not instituted a suit. The power of seizure could be exercised by soldiers against public officers bound to supply them with pay, horse, or forage; and it could also be resorted to by the seller of a beast for sacrifice against a defaulting purchaser. It was thus confined to claims of great urgency or of highly sacred obligation; but it was afterwards extended to demands for overdue arrears of public revenue. I am indebted to Mr. Poste for the observation that the ideal institutions of Plato’s Laws include something strongly resembling the Roman Pignoris Capio; and here again it is a remedy for breach of public duties connected with military service or religious observance.
I take the Pignoris Capio as the immediate starting-point of all which I am about to say on the subject of Ancient Civil Procedure. First of all let us ask whether Gaius himself gives us any hint of its meaning and significance in the primitive Roman system. The clue is slender, but it seems to me sufficiently traceable in the statement that the Pignoris Capio could be resorted to in the absence of the Prætor and generally in that of the person under liability, and also that it might be carried out even when the Courts were not sitting.
Let us go back for a moment to the parent Legis Actio—the L. A. Sacramenti. Its venerable forms presuppose a quarrel and celebrate the mode of settling it. It is a passing arbitrator whose interposition is simulated by the Prætor. But suppose there is no arbitrator at hand. What expedient for averting bloodshed remains, and is any such expedient reflected in that ancient procedure which, by the fact of its existence, implies that the shedding of blood has somehow been prevented?
I dare say I shall at the outset appear to be making a trivial remark when I say that one method of gaining the object is to lay a wager. Even now this is one of the commonest ways of postponing a dispute as to a matter of fact, and the truth is that the tendency to bet upon results lies extremely deep in human nature, and has grown up with it from its remote infancy. It is not everybody who, when his blood is hot, will submit to have a quarrel referred to a third person present, much less to a third person absent; but he will constantly do so, if he lays a wager on it, and if, besides being found in the right, he has a chance of receiving the amount staked. And this I suppose—differing, I own, from several high authorities—to be the true significance of the Sponsio and Restipulatio, which we know to have been of the essence of the ancient Roman Condictio, and of the agreement to appear before the Prætor in thirty days. The Legis Actio Sacramenti assumes that the quarrel is at once referred to a present arbitrator; the Condictio that the reference is to the decision of an arbitrator after thirty days’ interval, but meantime the parties have entered into a separate wager on the merits of their dispute. We know that the liability to an independent penalty attached to the suitor by Condictio even when it had become one of the most important Roman actions, and that it was still exacted in the age of Cicero.
There is yet another primitive contrivance by which, in the absence of a present arbitrator, a quarrel may be prevented from issuing in bloodshed. The claimant willing to go to arbitration may, in the absence of his adversary, or if he be the stronger, in his presence, take forcible possession of his moveable property and detain it till he too submits. I believe this to have been the true primitive office of the Pignoris Capio, though the full evidence of my opinion will not be before you till I have tracked the same institution through the twilight of other legal systems. Among the Romans, even at the date of the Twelve Tables, it had become (to employ Mr. Tylor’s phrase) a mere survival, confined to cases when the denial of justice was condemned by superstition or by a sense of the sternest public emergency; and this was a consequence of the exceptionally rapid development of Roman law and procedure, and of the exceptionally early date at which the Roman tribunals became the organs of the national sovereignty. You will see hereafter how much reason there is for thinking that the progress of most societies towards a complete administration of justice was slow and gradual, and that the Commonwealth at first interfered through its various organs rather to keep order and see fair play in quarrels than took them, as it now does always and everywhere, into its own hands. To this period, long forgotten among the Romans, those peculiar rules pointed back which survived along with the Pignoris Capio, and which provided for its exercise out of court and during the judicial vacation.
I turn to the Teutonic societies for vestiges of a practice similar to that which the Romans called Pignoris Capio. They seem to be quite unmistakeable in that portion of our own English law which is concerned with the power of Distraint or Distress and with the connected legal remedy known as Replevin. The examples of the right to distrain another man’s property which are most familiar to you are, I dare say, the landlord’s right to seize the goods of his tenant for unpaid rent, and the right of the lawful possessor of land to take and impound stray beasts which are damaging his crops or soil. The process by which the latter right is made effectual retains far more of the ancient institution than does distress for rent. For the peculiar power of the landlord to distrain for rent, while it remains an extrajudicial remedy, has been converted into a complete remedy of its kind by a series of statutes comparatively modern. It has always, however, been the theory of the most learned English lawyers that distress is in principle an incomplete remedy; its primary object is to compel the person against whom it is properly employed to make satisfaction. But goods distrained for rent are nowadays not merely held as a security for the landlord’s claim; they are ultimately put up for sale with certain prescribed formalities, the landlord is paid out of the proceeds, and the overplus is returned to the tenant. Thus the proceeding has become merely a special method by which payment of rent, and certain other payments which are placed on the same footing, are enforced without the help of a Court of Justice. But the distraint of cattle for damage still retains a variety of archaic features. It is not a complete remedy. The taker merely keeps the cattle until satisfaction is made to him for the injury, or till they are returned by him on an engagement to contest the right to distrain in an action of Replevin.
The practice of Distress—of taking nams, a word preserved in the once famous law-term withernam—is attested by records considerably older than the Conquest. There is reason to believe that anciently it was resorted to in many more cases than our oldest Common-law authorities recognise; but about the reign of Henry the Third, when it was confined to certain specific claims and wrongs, the course of the proceeding was as follows: The person assuming himself to be aggrieved seized the goods (which anciently were almost always the cattle) of the person whom he believed to have injured him or failed in duty towards him. He drove the beasts to a pound, an enclosed piece of land reserved for the purpose, and generally open to the sky. Let me observe in passing that there is no more ancient institution in the country than the Village-Pound. It is far older than the King’s Bench, and probably older than the Kingdom. While the cattle were on their way to the pound the owner had a limited right of rescue which the law recognised, but which he ran great risk in exercising. Once lodged within the enclosure, the impounded beasts, when the pound was uncovered, had to be fed by the owner and not by the distrainor; nor was the rule altered till the present reign. The distrainor’s part in the proceedings ended in fact with the impounding; and we have to consider what courses were thereupon open to the person whose cattle had been seized. Of course he might submit and discharge the demand. Or he might tender security for its acquittal. Or again he might remain obstinate and leave his beasts in the pound. It might happen, however, that he altogether denied the distrainor’s right to distrain, or that the latter, on security being tendered to him for the adjustment of his claim, refused to release the cattle. In either of these cases the cattle-owner (at least at the time of which we are speaking) might either apply to the King’s Chancery for a writ commanding the Sheriff to ‘make replevin,’ or he might verbally complain himself to the Sheriff, who would then proceed at once to ‘replevy.’ The process denoted by this ancient phrase consisted of several stages. The Sheriff first of all demanded a view of the impounded cattle; if this were refused, he treated the distrainor as having committed a violent breach of the King’s peace, and raised the hue and cry after him. If the cattle (as doubtless constantly was the case) had been driven to a distance and out of his jurisdiction, the Sheriff sought for cattle of the distrainor and seized them to double the value of the beasts which were not forthcoming—the ‘taking in withernam’ of old English law. In more peaceable times, however, and among law-abiding people, the deputy of the Crown was allowed to see the cattle, which he immediately returned to their original owner on a pledge to abide by the decision of a Court of Justice. A day was then appointed for the trial, which took place with the proceeding well known to lawyers as the Action of Replevin. A great deal of technical learning has clustered round it, but for our purposes it is enough to say that the plaintiff in the action was the owner of the distrained cattle and the defendant was the distrainor.
The comparative antiquity of the various steps in the procedure are not, I think, difficult to detect. Nothing can be more archaic than the picture presented by its more venerable details. The seizure of the cattle, the rescue and the counter-seizure, belong to the oldest practices of mankind. We were carried back, by the Legis Actio Sacramenti of the Romans, to a sudden fight over disputed property barely stopped by a casual passer-by. Here, not in a city-community, but among the ancient legal forms of a half-pastoral, half-agricultural people, we come upon plain traces of a foray. But the foray which survives in the old Law of Distress is not, like the combat of the ancient Roman Action, a mere dramatic representation. Up to a certain point it is a reality, and the most probable account of its origin is that it is a genuinely disorderly proceeding which the law steps in to regulate. You will see presently that there are other independent reasons for thinking that some of the earliest interferences of the power which we call the Law, the State, or the King, with high-handed violence consisted, neither in wholly forbidding it nor in assuming active jurisdiction over the quarrel which provoked it, but in limiting it, prescribing forms for it, or turning it to new purposes. Thus the next series of incidents in the practice of distraint—the impounding, the stress laid upon pledge or security, and the acknowledgment of continuing ownership which is implied in the liability of the person distrained upon to feed the cattle, and in the rule that the distrainor shall not work them—belong to a newer range of ideas which dictate the first attempts to moderate reprisals and regulate revenge for wrong. Distress now becomes a semi-orderly contrivance for extorting satisfaction. Many vestiges of this ancient function remain. It has been observed by Blackstone and others that the modified exemption of certain classes of goods from distraint—plough-oxen, for example, and tools of trade—was not in its origin the least intended as a kindness to the owner. It was entailed by the very nature of the whole proceeding, since without the instruments of tillage or handicraft the debtor could never pay his debt. A passage in the ‘Dialogus de Scaccario’ (ii. 14), prescribing the order in which the goods of the King’s debtors are to be sold, strongly bears out this view.
Latest in the order of proceeding, and latest probably in date, came the direct interposition of the State. The King steps in, first, in what we should now call his administrative capacity. His administrative deputy, the Sheriff, on complaint made by their owner, follows up the cattle, demands a sight of them, raises the hue and cry if it be refused, and seizes twice their number if the beasts have been driven away. Even when he obtains his view, he can do nothing unless the cattle-owner, denying the right of his adversary to distrain, is prepared with security that he will try the question between them in a Court of Justice. Thus tardily does that power make its appearance which according to our notions should long since have appeared on the scene, the judicial power of the Commonwealth. Its jurisdiction is obviously acquired through the act of the Sheriff in restoring the cattle upon pledge given. The distrainor has lost his material security, the cattle. The owner of the cattle has become personally bound. And thus both are placed under a compulsion which drives them in the end to a judicial arbitration.
Nearly six hundred years ago, the contrast between the ancient proceedings in Replevin and suits conducted on what were then modern principles was already striking. The second chapter of the Statute of Westminster the Second is aimed at certain contrivances by which tenants contrived to defeat the lord’s remedy by distress; and, in giving the King’s Justices jurisdiction in such cases, it goes on to say that such a provision does not militate against the principle of the Common Law which forbids the removal of suits to the Justices on the petition of a defendant. ‘For,’ it adds, ‘although at first sight the tenant may seem to be plaintiff and the lord defendant, yet in reality, regard being had to the fact that the lord distrains and sues for services and dues behind, he is rather plaintiff or complainant than defendant.’ The action of Replevin is in fact an excellent illustration of the difference between ancient and modern juridical principles. According to ideas now confirmed in us, the person who sets a Court of Justice in motion is the person who complains of a wrong. In the case supposed, this is not the man distrained upon but the man who distrains. He it is who has suffered an injury for which he made reprisals on his adversary’s property. Yet it is his adversary who has to start the legal procedure and to constitute himself plaintiff in the Action of Replevin. The reason why a modern Court of Justice would insist on taking the whole dispute into its own hands, and dealing with it in its own way from the very beginning, is that, having always the full command of the public force, it is sure of being able to compel the submission of the defendant to its jurisdiction and of coercing him in the end till he does justice, however long the coercion may be delayed. But at the era to which the procedure in distress originally belonged, the Court had no such assurance of power; and hence the person assumed to have a grievance is allowed to proceed according to the primitive method, which has the advantage of giving the other side the strongest inducements to call in the judicial authority of the State and submit to its decision.
The information furnished to us respecting this primitive procedure by the various bodies of Continental Teutonic law known collectively as the Leges Barbarorum is of a very interesting kind. Almost all of them contain references to Pignoratio or distraint of goods. The Visigothic law expressly prohibits it; and, at the other end of the scale, the Lombardic law has a trace of that licence of distress which has survived in the English Common-law and permits it after simple demand of payment. But the Salic law, which the most learned Germans now believe to have been drawn up at some period between the time at which Tacitus wrote and the time at which the Franks broke into the Empire, contains a series of very peculiar and instructive provisions on the subject, which have been for the first time fully interpreted by Sohm. Under this system, Distress is not yet a judicial remedy; it is still an extrajudicial mode of redress, but it has been incorporated with a regular and highly complex procedure. A succession of notices have to be given in solemn form by the complainant to the person of whom he complains, and whose property he proposes to seize. Nor can he proceed to seizure until he has summoned this person before the Popular Court, and until the Popular Officer of the Court, the Thunginus, has pronounced a formula licensing distraint. Then, and not till then, he can make what we should call a distress upon his adversary. It seems quite clear that, before the Conquest, attempts were made in England to narrow the liberty of distraint by the same class of restrictions which we find in the Salic Law and the allied Teutonic bodies of usage. These provisions have their close counterpart in the ordinance of Canute that no man is to take nams unless he has demanded right three times in the Hundred; if he obtain no justice the third time, he is to go to the Shire-gemot; the shire is to appoint him a fourth time, and, if that fails, he may take the distress.
It is to be remarked that the process of the Salic Law which answers to our distress is especially a remedy in certain cases of breach of contract. Distraint, the seizing of nams, was certainly employed to enforce a similar class of demands under old English law before the Conquest; and the practice seems to have been known in Bracton’s day, though the brevity of his notice does not permit us to understand fully its course and character. In this respect the Pignoration of the Continental Teutonic law is more archaic than the distress with which we are familiar in England, since the fragment of the system which has survived in our Common law (and it is to this that it probably owes its survival) was from the first pre-eminently a remedy by which the lord compelled his tenants to render him their services. But on the other hand it is interesting to observe that our English distress is in some particulars of a more archaic character than the corresponding compulsory process of the Leges Barbarorum. Thus notice of the intention to distrain was never in England essential to the legality of distress (Trent v. Hunt, 9 Exch. Rep. 20), although statute-law renders it necessary to make a sale of the distrained property legal; and again, in the oldest ascertainable state of our Common-law, though distraint sometimes followed a proceeding in the lord’s Court, yet it did not necessarily presuppose or require it.
It should be understood that the Frankish procedure was completely at the disposal of the complainant. It is not a strictly judicial procedure, but rather a procedure regulating extrajudicial redress. If the complainant observes the proper forms, the part of the Court in licensing seizure is purely passive. Even after the exhaustive examination which this part of the Salic Law has undergone from Professor Sohm, it is very difficult to say whether at any point of the procedure the defendant had the opportunity of putting in a substantial defence; but it seems certain that, whenever he could do this, he appeared virtually as a plaintiff like the distrainee in our Action of Replevin, and there is no doubt that, if he submitted or was unsuccessful in attacking the proceedings of the other side, he paid not only the original debt but various additional penalties entailed by neglect to comply with previous notices to discharge it. Such a procedure seems to us founded on the now monstrous assumption that plaintiffs are always in the right and defendants always in the wrong. Yet the assumption would not perhaps have struck the earliest authors of legal improvement as altogether monstrous, nor could they have quite comprehended the modern principle which compels the complainant to establish at all events a primâ facie case. With them, the man most likely to be in the right would appear to be the man who faced the manifold risks attending the effort to obtain redress, the man who complained to the Popular Assembly, the man who cried for justice to the King sitting in the gate. It is only when violent wrong has ceased to be rife, when the dangers of contesting the oppressions of powerful men have become insignificant, when the law has been long and regularly administered according to technical procedure, that unjust claims are seen to be hardly less common than unjust refusals to satisfy them. In one particular case, the complaint of the King, the old assumption that complainants are presumably in the right was kept long alive among us, and had much to do with the obstinate dislike of lawyers to allowing prisoners to be defended by Counsel.
Gaius, speaking of the Legis Actiones generally, observes that ‘they fell into discredit, because through the excessive subtlety of the ancient lawyers, things came to such a pass that he who committed the smallest error failed altogether.’
Blackstone, many centuries afterwards, has the following remark on the English Law of Distress: ‘The many particulars which attend the taking of a distress used formerly to make it a hazardous kind of proceeding; for, if any one irregularity was committed, it vitiated the whole.’
I quote these passages, not only on account of the curious similarity of language between two writers of whom the later could not possibly have read the earlier, but because the excessive technicality of ancient law which they both notice goes some way to explain the severity and onesidedness of the old Teutonic procedure. The power of seizing a man’s property extrajudicially in satisfaction of your demand was, as Professor Sohm justly remarks, a sort of two-edged sword. You might bring your adversary to the ground by it, but you were extremely likely to injure yourself. For, unless the complainant who sought to distrain went through all the acts and words required by the law with the most rigorous accuracy, he in his turn, besides failing in his object, incurred a variety of penalties, which could be just as harshly exacted as his own original demand. The difficulty of putting the procedure into operation thus at once made disputants cautious in resorting to it, and seemed to men in general to compensate for its inherent inequitableness. This consideration, however, though it explains in part how the harsh ancient law reconciled itself to the sense of right, is not by itself sufficient to account for the form which it assumed in the Teutonic Codes, or for the vitality of a portion of it amid our own institutions.
I cannot doubt that the practice which I have called by the general name of Distress kept its place in ancient Teutonic law partly as a mere ‘survival.’ I have already insisted that one great characteristic of the primitive ages was the fewness of human ideas. Societies, just emerging from the savage state, had been used to associate redress of wrong with the seizure of a wrong-doer’s goods, and they were unable mentally quite to disconnect the two even when they began to regulate the practice. They did not, therefore, supersede distress by a wholly new system, but engrafted it on a later procedure, which occasionally took the form so curiously preserved in its main features to our own day by the English Common law, but which at a relatively later date and more generally may be believed to have shaped itself on the model of the rules observed by the Salian Franks.
It is not possible to explain all survivals by some convenience which they incidentally serve. Some have undoubtedly been continued by superstition, some by mere habit. But those relics of ancient thought and conduct which have been kept alive longest have generally had an usefulness of their own. Here the private redress of wrong, taken into the legal procedure, served to compel the appearance of the defendant and his submission to jurisdiction at a time when judicial authority was yet in its infancy, and when Courts of Justice could not as yet completely and regularly command the aid of sovereign power. Gradually, as the public force, the arm of the State, was more and more placed at the disposal of tribunals, they were able more and more to dispense with extrajudicial assistance. In the state of Teutonic law represented by the Frankish Code, we find a specific class of cases tried throughout judicially (in our modern sense of the word) from the initial stage to the judgment; but the judgment is not by its own force operative. If the defendant has expressly promised to obey it, the Count or royal deputy, on being properly summoned, will execute it; but if no such promise has been made, the plaintiff has no remedy except an application to the King in person. No long time, however, after the Franks have been settled within the Empire, we find that another step has been taken towards the administration of justice on modern principles, and now the royal deputy will execute the judgment even though there has been no promise to submit to it. At this point Distress is wholly taken out of the hands of private litigants and extrajudicial seizure becomes judicial seizure. The change is obviously a result of the growing vigour of Courts, greatly due in our own country to the development of royal justice at the expense of popular justice. Still English judicial proceedings long savoured of the old practices. Every student of our ancient English forms of proceeding will recollect on what small apparent provocation the King constantly took the lands of the defendant into his hands or seized his goods, simply to compel or perfect his submission to the royal jurisdiction. It seems probable that Distress was gradually lost in and absorbed by Attachment and Distringas. The theory of Attachment now is that it is the taking of property into the actual or constructive possession of the judicial power, and the later course of change under which it has faded into an occasional and exceptional proceeding, requiring to be justified by special reasons, corresponds with the growing confidence of Courts of Justice in their possession of irresistible power confided to them by the sovereign. As regards that fragment of the primitive institution which remains in our law, I imagine that Distress would at most have become a mere survival, confined perhaps to the impounding of stray cattle, if several statutory innovations had not turned it into a convenient extrajudicial remedy for landlords, by giving the distrainor a power of sale which in old English law was limited to a few very special demands. The modern theory of Distress is that a landlord is allowed to distrain because by the nature of the case he is always compelled to give his tenant credit, and that he can distrain without notice because every man is supposed to know when his rent is due. But this theory, though it explains the continuance of Distress to our day, does not at all fit in with the most ancient ideas on the subject, and could not indeed be easily made to square with the practice of distraint even at a date so comparatively late as that at which Bracton wrote. How accidental is the association of Distress with the powers of landlords may be seen from the fact that, though there are plentiful traces of the institution in the ancient Scottish law, the same practical results which the English system produces by allowing landlords to distrain for rent are chiefly attained in Scotland by applying to landlord and tenant the Romanised Law of Hypothek.
The comparison of the various Teutonic bodies of law suggests then to my mind, as regards those systems, the following conclusions respecting the historical development of the remedies which grew out of the savage practice of violently seizing property in redress for supposed wrong. Two alternative expedients were adopted by nascent law. One of these consisted in tolerating distraint up to a certain point; it was connived at so far as it served to compel the submission of defendants to the jurisdiction of Courts, but in all other cases it was treated as wilful breach of the peace. The other was the incorporation of distraint with a regular procedure. The complainant must observe a great number of forms at his peril; but if he observes them he can distrain in the end. In a still more advanced condition of legal ideas, the tribunals take the seizure of land or goods into their own hands, using it freely to coerce defendants into submission. Finally, Courts of Justice resort to coercion before judgment only on the rarest occasions, sure as they at last are of the effectiveness of their process, and of the power which they hold in deposit from the Sovereign Commonwealth.
Lecture 10. – The Primitive Forms of Legal Remedies. II.
I pass from the early law of procedure in the Roman and Teutonic societies to the corresponding branch of another ancient legal system which has been only just revealed to us, and which, so far as its existence was suspected, was supposed until lately to be separated by peculiarly sharp distinctions from all Germanic bodies of usage.
Rather more than half of the Senchus Mor is taken up with the Law of Distress. The Senchus Mor, as I told you, pretends to be a Code of Irish law, and indeed to be that very Code which was prepared under the influence of St. Patrick upon the introduction of Christianity into Ireland. I added that in the present state of our knowledge, no theory can be very confidently advanced as to the date of this Brehon compendium. It may be that some such revision of the pre-Christian law did take place; it may be that the Brehon lawyers only conjectured that it must have taken place; it may be that a tract of unusual dimensions and proportionately valued by the Brehon law-school which happened to possess it, came gradually to be associated with a name held in pre-eminent honour or pre-eminently sacred, a process of which there are believed to be several examples in the history of Eastern jurisprudence. These doubts, however, as to the true date of the Senchus Mor do not take away from the significance and instructiveness of the fact that in a volume of great antiquity, of undoubted genuineness, and evidently thought by its possessors to contain all that was important in the law, the Law of Distress, now an extremely subordinate branch of our legal system, occupies a space so extraordinarily large.
I borrow from the Editor of the First Volume of ‘Ancient Laws of Ireland,’ the following epitome of the old Irish law of distress as laid down in the Senchus Mor:—
‘The plaintiff or creditor, having first given the proper notice, proceeded, in the case of a defendant or debtor, not of chieftain grade, to distrain. If the defendant or debtor were a person of chieftain grade, it was necessary not only to give notice, but also to “fast upon him.” The fasting upon him consisted in going to his residence and waiting there for a certain time without food. If the plaintiff did not within a certain time receive satisfaction for his claim, or a pledge therefor, he forthwith, accompanied by a law-agent, witnesses, and others, seized his distress. The distress, when seized, was in certain cases liable to a Stay, which was a period varying according to fixed rules, during which the debtor received back the distress, and retained it in his own keeping, the creditor having a lien upon it. Such a distress is a “distress with time;” but under certain circumstances and in particular cases an “immediate distress” was made, the peculiarity of which was that during the fixed period of the Stay the distress was not allowed to remain in the debtor’s possession, but in that of the creditor, or in one of the recognised greens or pounds.
‘If the debt was not paid by the end of the Stay, the creditor took away the distress, and put it in a pound. He then served notice of the distress on the debtor whom he had distrained, letting him know where what was distrained was impounded. The distress remained in the pound a certain period, fixed according to its nature (dithim, translated “delay in pound,” is the name of this period). At the end of the delay in pound, the Forfeiting Time began to run, during which the distress became forfeited at the rate of three “seds” per day, until entirely forfeited. If the entire value of the distress thus forfeited was exactly equal to the original debt and the subsequent expenses, the debt was liquidated; if it was less than this, a second distress was taken for the difference; and, if more, the overplus was returned. All this proceeding was managed by the party himself, or his law-agent, with the several witnesses of the various steps, and other necessary parties.
‘But if, instead of allowing his cattle to go to pound, the debtor gave a sufficient pledge, e.g., his son, or some article of value, to the creditor, that he would within a certain time try the right to the distress by law, the creditor was bound to receive such pledge. If he did not go to law, as he so undertook, the pledge became forfeited for the original debt. At any time, up to the end of the “dithim,” the debtor could recover his cattle by paying the debt and such expenses as had been incurred. But, if he neglected to redeem them until the “dithim” had expired, then he could only redeem such as were still unforfeited.’
The very existence in ancient Ireland of the law thus summarised is almost enough by itself to destroy those reckless theories of race which assert an original, inherent difference of idea and usage between Teuton and Celt. The Irish system of Distress is obviously, in all essential features, the Germanic system. It wears, on its face, a very strong general resemblance to the corresponding branch of our Common Law; and I have seen some very ingenious attempts to account for the differences between the two by suggestions that the primitive contour of the English law of Distress has been impaired. The object of such speculations is to argue for the direct derivation of the English set of rules from the Celtic; but it does not appear to me necessary to resort to a supposition which has great and special difficulties of its own. The virtual identity of the Irish law of Distress with the Teutonic law is best brought out by comparing it with the Teutonic systems of procedure collectively. Thus the Distress of the Senchus Mor is not, like the Distress of the English Common Law, a remedy confined in the main to demands of the lord on his tenants; as in the Salic and other Continental Germanic Codes, it extends to breaches of contract, and indeed, so far as the Brehon law is already known, it would appear to be the universal method of prosecuting claims of all kinds. The Notice again to the person whose goods are to be distrained which it strenuously insists upon, though not found in the surviving English Common law, fills an important place, as I stated, in other Teutonic collections of rules. So too the attendance of witnesses is required by the Continental Codes; and, though the presence of the Brehon law agent is peculiar to the Irish system and very characteristic of it, certain persons having much the same duties are required by some of the Teutonic systems to be present during the process of distraint. Further, the Stay of proceedings, which has been compared to an Attachment, seems to me better explained by certain provisions of the ‘Leges Barbarorum.’ Under some of them when a person’s property is about to be seized he makes a mimic resistance; under the Salic law, he protests against the injustice of the attempt; under the Ripuarian law, he goes through the expressive formality of standing at his door with a drawn sword. Thereupon, the seizure is interrupted and an opportunity is given for enquiring into the regularity of the proceedings and, probably also, into the justice of the claim. The Lien or charge upon the distrained property, which the Irish law confers on the creditor during the currency of the Stay, is not found in the Continental Teutonic law in this exact shape; but, at a particular stage of the Salic proceedings, the creditor has the power of interdicting the debtor from selling or mortgaging any part of his property until the debt has been satisfied. On the other hand, several features of the Irish system, which are wholly absent from the Continental Teutonic procedure, or very faintly marked in it, belong conspicuously to the English law. Among these may be placed the impounding, and the ‘taking in withernam,’ but the great resemblance of all, and the common point of dissimilarity from the most ancient of the Leges Barbarorum, lies in the fact that the Irish procedure, like the English, requires neither assistance nor permission from any Court of Justice. In all the Teutonic bodies of custom except the English and the Lombardic, even when the greatest latitude of seizure is allowed to litigants out of Court, some judicial person or body must be applied to before they proceed to extremities. With us, however, the entire seizure is completed before authority is called in; and the Irish law has exactly the same peculiarity. Not only so, but the Irish law corresponds to the English law of Distress in a very advanced stage of development. It does not employ the seizure of cattle merely as a method of extorting satisfaction. It provides, as you have seen, for their forfeiture in discharge of the demand for which they were taken; and thus is distinguished by an improvement which was only added to the English law by statute after the lapse of several centuries.
The true difficulty in estimating the place of this Irish procedure in the historical development of law arises from doubts as to the part really played by the legal proceeding in which it terminated. The English process of Distress, wherever it was felt to be unjust, led up to, and ended in, the action of Replevin, and the Court, which ultimately tried the action, practically acquired its jurisdiction through the interposition of the Sheriff in restoring the cattle upon security given. No such interference with a high hand as that of the Sheriff appears to be contemplated by the Irish law; but the Brehon lawyer who ought properly to accompany the distrainor is expressly stated by the Senchus Mor to aid him ‘until the decision of a Court.’ (‘Ancient Laws of Ireland,’ i. 85.) What was the proceeding thus referred to? What authority had the Irish Courts at any time at which the Brehon law was held in respect? What were these Courts? To what extent did they command the public force of the sovereign State? Was there any sovereign power at any time established in any part of Ireland which could give operative jurisdiction to Courts of Justice and operative force to the law? All these questions—of which the last are in truth the great problems of ancient Irish history—must in some degree be answered before we can have anything like a confident opinion on the actual working of the Law of Distress set forth at such length in the Senchus Mor.
The learned Editors of the various Introductions prefixed to the official publications of Ancient Irish Law are plainly of opinion that such jurisdiction as any Irish Courts possessed was, to use the technical phrase, voluntary. The Law of Distress, in this view, was clearly enough conceived by the Brehon lawyers, but it depended for the practical obedience which it obtained on the aid of public opinion and of popular respect for a professional caste. Its object was to force disputants to submit to what was rather an arbitration than an action, before a Brehon selected by themselves, or at most before some recognised tribunal advised by a Brehon. At the same time, it would seem that there are ancient Irish tracts or fragments of tracts in existence which describe the ancient Irish as having had a most elaborate public organisation, judicial as well as legislative. Dr. Sullivan, in his Introduction, admits that the information which has come down to us on these subjects is very fragmentary, and so obscure that it will be impossible to give a satisfactory account of them until the whole of the law-fragments in Irish MSS. are published or at least made accessible to scholars; but he nevertheless believes in the historical reality of this organisation, and he speaks (Introduction, pp. cclii. cclxii.) of the Irish Courts in language of extremely modern tinge. Enough is known of Irish history to make it very difficult to understand when this elaborate judicial system can have existed; but a place is found for it by attributing it to a period not only before the Anglo-Norman invasions of Ireland, but before the Viking descents on the Irish coasts. The safest course is certainly to reserve one’s opinion on the subject until the authorities for Dr. Sullivan’s statements have been much more critically examined than they have been; but I am bound to say that they are not so inherently improbable, nor are Dr. Sullivan’s opinions so hard to reconcile with the views of the Editors of the translations, as persons unacquainted with legal history might suppose. There are analogies to many of the tribunals described among the rudimentary institutions of several communities. Such tribunals might further be highly developed and yet their jurisdiction might be only voluntary. Sohm appears to me to have proved that the Frankish Popular Courts did not execute their own decrees; if the defendant had promised to submit to an award, the local deputy of the King might be required to enforce it, but, if there had been no such promise, the plaintiff was forced to petition the King in person. There is much reason in fact for thinking that, in the earliest times and before the full development of that kingly authority which has lent so much vigour to the arm of the law in most Aryan communities, but which was virtually denied to the Irish, Courts of Justice existed less for the purpose of doing right universally than for the purpose of supplying an alternative to the violent redress of wrong. Even then if we suppose that the Ireland which is said to have enjoyed an elaborate judicial organisation was greatly ruder and wilder than Irish patriots would probably allow it to have been, there is no such inconsistency between the prevalence of disorder and the frequency of litigation as would make them exclude one another. The Norse literature, which Mr. Dasent has popularised among us, shows that perpetual fighting and perpetual litigation may go on side by side, and that a highly technical procedure may be scrupulously followed at a time when homicide is an everyday occurrence. The fact seems to be that contention in Court takes the place of contention in arms, but only gradually takes its place; and it is a tenable theory that many of the strange peculiarities of ancient law, the technical snares, traps, and pitfalls with which it abounds, really represent and carry on the feints, stratagems, and ambuscades of actual armed strife between man and man, between tribe and tribe. Even in our own day, when a wild province is annexed to the British Indian Empire, there is a most curious and instructive rush of suitors to the Courts which are immediately established. The arm of the law summarily suppresses violence, and the men who can no longer fight go to law instead, in numbers which sometimes make Indian officials believe that there must be something maleficent in the law and procedure which tempt men into Court who never saw a Court before. The simple explananation is that the same natural impulse is gratified in a new way; hasty appeals to a judge succeed hurried quarrels, and hereditary law-suits take the place of ancestral blood-feuds. If the transition from one state of society to another in modern India were not sudden but gradual and slow, as it universally was in the old Aryan world, we should see the battle with technicalities going on in Court at the same time that the battle was waged out of Court with sword and matchlock.
When, however, we are considering the place in legal history of the old Irish Law of Distress, the point to which we have to attend is not so much the mere existence of Courts of Justice as the effectiveness of their process, or in other words the degree in which they command the public force of the Commonwealth. I think I have shown it to be probable that, in proportion as Courts grow stronger, they first take under their control the barbarous practice of making reprisals on a wrongdoer by seizing his property, and ultimately they absorb it into their own procedure. Now, the Irish Law of Distress belongs in one respect to a very early stage in this course of development, since it is even more completely extrajudicial than is that fragment of the primitive barbarous remedy which has survived among ourselves. On the other hand, there are several particulars in which it is not more but distinctly less archaic than the English Common law. The ‘Notice’ to the defendant, for which it provides—the ‘Stay,’ or temporary retention of the goods by the owner, subject to a lien—the witnesses who have to be present, and the skilled legal adviser who has to attend throughout the proceedings—belong to a range of ideas greatly more advanced than that under which all these precautions are dispensed with. Even stronger evidence of maturity is furnished by the almost inconceivable multitude of rules and distinctions which the Senchus Mor applies to every part of the proceedings; and our own experience shows that the most remarkable feature of the old Irish law, the forfeiture of the property taken in distress when the original debt and the expenses of custody come up to its full value, has its place among the latest improvements in jurisprudence.
Whatever, then, be the truth as to the Ireland of the golden age, these characteristics of the Irish Law of Distress leave on my mind a very distinct impression that it was brought to the shape in which we find it amid a society in which the action of Courts of Justice was feeble and intermittent. It says much for the spirit of equity and reasonableness which animated the Brehon lawyers who gave it its form, and much also for their ingenuity, but suggests that they relied little on the assistance of Courts and directed their efforts to making the most of a remedy which was almost wholly extrajudicial. The comparison of the Teutonic laws shows that they had a basis of Aryan custom to work upon; but, while in other communities the superstructure on this foundation was the work of Courts ever feeling themselves stronger, in Ireland it seems to have been the work of lawyers dependent in the main for the usefulness of their labours on popular respect for their order. I do not affect to say how the ancient law of Ireland is to be fitted to the ancient history. It may be that the picture of judicial organisation found in some law-tracts is, like the description of private law found in others, rather a representation of what ought to be than of what is or has been. It may be also that the law laid down in the Senchus Mor is of much later date than the compilers of that tract pretend, and that therefore it received its shape in times of disturbance and confusion. But I cannot believe that it ever synchronised with a period of judicial activity and efficiency.
From what I have said I think you will have collected the chief points of difference between the Irish Law of Distress, as laid down in the Senchus Mor, and the English Common Law of Distress, as declared by the earliest authorities which our Courts recognise. Both had the same origin, but the Irish distraint was an universal, highly developed proceeding employed in enforcing all kinds of demands, while the corresponding English remedy, though much less carefully guarded by express rules, was confined to a very limited and special class of cases. I have a melancholy reason for calling your attention to the contrast. Edmund Spenser has spoken of it, in his ‘View of the State of Ireland,’ and here is the passage:—
‘There are one or two statutes which make the wrongful distraining of any man’s goods against the forme of Common Law to be fellony. The which statutes seeme surely to have been at first meant for the good of the realme, and for restrayning of a foul abuse, which then reigned commonly among that people, and yet is not altogether laide; that, when anyone was indebted to another, he would first demand his debt, and, if he were not paid, he would straight go and take a distress of his goods and cattell, where he could find them to the value; which he would keep till he were satisfied; and this the simple churl (as they call him) doth commonly use to doe yet through ignorance of his misdoing, or evil use that hath long settled among them. But this, though it be sure most unlawful, yet surely me seems it is too hard to make it death, since there is no purpose in the party to steal the other’s goods, or to conceal the distress, but he doeth it openly for the most part before witnesses. And again the same statutes are so slackly penned (besides there is one so unsensibly contryved that it scarcely carryeth any reason in it) that they are often and very easily wrested to the fraude of the subject, as if one going to distrayne upon his own land or tenement, where lawfully he may, yet if in doing thereof he transgresse the least point of the Common Law, he straight committeth fellony. Or if one by any other occasion take any thing from another, as boyes sometimes cap one another, the same is straight fellony. This is a very hard law.
Spenser goes on, in a passage which I need not quote in full, to account for these statutes by a special provision in the charters of most of the Anglo-Irish corporate towns. The English law had not currency, he tells us, beyond the walls, and the burgesses had the power conferred on them of distraining the goods of any Irishman staying in the town or passing through it, for any debt whatsoever. He suggests that the Irish population outside was led in this way to suppose it lawful to distrain the property of the townspeople. The explanation, if true, would be sad enough, but we know that it cannot convey the whole truth, and the real story is still sadder. The Irish used the remedy of distress because they knew no other remedy, and the English made it a capital felony in an Irishman to follow the only law with which he was acquainted. Nay, those very subtleties of old English law which, as Blackstone says, made the taking of distress ‘a hazardous sort of proceeding’ to the civil distrainor, might bring an Irishman to the gallows, if in conscientiously attempting to carry out the foreign law he fell into the smallest mistake. It is some small consolation to be able, as one result of the inquiries we have been prosecuting, to put aside as worthless the easy justification of those who pass over these cruelties as part of the inevitable struggle between men of different races. Both the Irish law, which it was a capital crime to obey, and the English law, which it was a capital crime to blunder in obeying, were undoubtedly descended from the same body of usage once universally practised by the forefathers of both Saxon and Celt.
Among the writers who have recognised the strong affinities connecting the English and Irish Law of Distress, I find it difficult to distinguish between those who believe in the direct derivation of the English law from pre-existing Celtic customs common to Britain and Ireland, and those who see a sufficient explanation of the resemblances between the two sets of rules in their common parentage. I am not at all prepared to deny that recent researches, and particularly those into old French customary law, render it easier to believe than it once was that portions of primitive or aboriginal custom survive the most desolating conquests. But I need scarcely say that the hypothesis of the direct descent of any considerable branch of English law from British usage is beset by extraordinary difficulties, of which not the least is the curiously strong case which may also be made out for the purely Roman origin of a good many institutions and rules which we are used to consider purely English and Germanic. On this last point a very interesting little volume, which has attracted too little notice, Mr. Coote’s ‘Neglected Fact in English History,’ may be read with advantage, and should be compared with the reply to its arguments, on the whole a successful one, which Mr. Freeman published in ‘Macmillan’s Magazine’ for July, 1870. The true rival of all these theories of the derivation of one body of custom from another is, of course, the theory of the common descent of all from an original basis of usage which we must, provisionally at all events, call Aryan. Confining ourselves to the practice which we have been investigating, the remedy for supposed wrong by distress, if there could be a doubt of its being a legacy from the primitive Aryan usages, it would be removed by the remarkable detail which connects the Irish with the Hindoo law. The Irish rules of distraint very strongly resemble the English rules, less strongly resemble the Continental Teutonic rules, but they include one rule not found in any Teutonic Code, almost unintelligible in the Irish system, but known to govern conduct even at this hour all over the East, where its meaning is perfectly clear. This is the rule that a creditor who requires payment from a debtor of higher rank than himself shall ‘fast upon him.’ What possible explanation will cover all the fact except that the primitive Aryans bequeathed the remedy of distress to the communities which sprang from them, and that varieties of detail have been produced by what Dr. Sullivan, in his Introduction, has happily called dynamical influences?
Here is the leading provision of the Senchus Mor on the subject (i. 113):—
‘Notice precedes every 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. 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.’
Mr. Whitley Stokes was the first, I believe, to point out that the institution here referred to was identical with a practice diffused over the whole East, and called by the Hindoos ‘sitting dharna.’ I will presently read you a passage in which the proceeding is described as it was found in India before the British Government, which has always regarded it as an abuse, had gone far in its efforts to suppress it. But perhaps the most striking examples of the ancient custom are to be found at this day in Persia, where (I am told) a man intending to enforce payment of a demand by fasting begins by sowing some barley at his debtor’s door and sitting down in the middle. The symbolism is plain enough. The creditor means that he will stay where he is without food, either until he is paid or until the barley-seed grows up and gives him bread to eat.
The corresponding Indian practice is known, I before stated, as ‘sitting dharna’—dharna, according to the better opinion, being exactly equivalent to the Roman ‘capio,’ and meaning ‘detention’ or ‘arrest.’ Among the methods of enforcing payment of a debt described in the collection of rules attributed to the semi-divine legislator, Manu (viii. 49), is one which Sir William Jones renders ‘the mediation of friends;’ but more recent Sanscrit scholars assert that the expression of the original text signifies ‘dharna.’ And in the Vyavahara Mayukha, a Brahminical law-book of much authority, Brihaspiti, a juridical writer sometimes classed with Manu, is cited as enumerating, among the lawful modes of compulsion by which the debtor can be made to pay, ‘confining his wife, his son, or his cattle, or watching constantly at his door.’ This remarkable passage not only connects Hindoo law with Irish law through the reference to ‘watching constantly at the door,’ but it connects it also with the Teutonic, and among them with the English bodies of custom, by speaking of the distraint of cattle as a method of enforcing a demand. We have not in the Western world, so far as I am aware, any example of so strong a form of distress as seizing a man’s wife or children, but it is somewhat curious that we have evidence of its having been common in ancient Ireland to give a son as a pledge to the creditor for the purpose of releasing the distrained property.
Lord Teignmouth has left us a description (in Forbes’ ‘Oriental Memoirs,’ ii. 25) of the form which the ‘watching constantly at the door’ of Brihaspiti had assumed in British India before the end of the last century: ‘The inviolability of the Brahmin is a fixed principle with the Hindoos, and to deprive him of life, either by direct violence or by causing his death in any mode, is a crime which admits of no expiation. To this principle may be traced the practice called dharna, which may be translated caption or arrest. It is used by the Brahmins to gain a point which cannot be accomplished by any other means, and the process is as follows: The Brahmin who adopts this expedient for the purpose mentioned proceeds to the door or house of the person against whom it is directed, or wherever he may most conveniently arrest him; he then sits down in dharna with poison or a poignard or some other instrument of suicide in his hand, and threatening to use it if his adversary should attempt to molest or pass him, he thus completely arrests him. In this situation the Brahmin fasts, and by the rigour of the etiquette the unfortunate object of his arrest ought to fast also, and thus they both remain till the institutor of the dharna obtains satisfaction. In this, as he seldom makes the attempt without the resolution to persevere, he rarely fails; for if the party thus arrested were to suffer the Brahmin sitting in dharna to perish by hunger, the sin would for ever lie upon his head. This practice has been less frequent of late years, since the institution of the Court of Justice at Benares in 1793; but the interference of the Court and even of the Resident has occasionally proved insufficient to check it.’
You will observe that the old Brahminical writer merely speaks of confining a man to his house by ‘watching constantly at the door’ as one among several modes of extorting satisfaction. He classes it with forms of distraint more intelligible to us—the seizure of the debtor’s cattle, of his wife, or of his child. Though the ancient rule has not descended to us along with its original context, we need not doubt that even in the earliest times it was enforced by a supernatural sanction, since every violation of the Brahminical Code was regarded by its authors not only as a civil offence but as a sin. Thus a Brahmin might quite well be conceived as saying with the writer in 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.’ Many centuries then elapse, which it would be vain to calculate, and almost in our own day we find the ancient usage practised in India, but with modifications corresponding to a great deal of change which is suspected to have occurred in Hindoo theology. The indefinite supernatural penalty has become the definite supernatural penalty incurred by destroying life, and particularly human life. The creditor not only ‘watches at the door,’ but kills himself by poison or dagger if the arrest is broken, or by starvation if payment is too long delayed. Finally, we have the practice described by Lord Teignmouth as one peculiarly or exclusively resorted to by Brahmins. The sanctity of Brahminical life has now in fact pretty much taken, in Hindoo idea, the place once occupied by the sanctity of human life, and ‘sitting dharna,’ when the English law first endeavoured to suppress it, was understood to be a special mode of oppression practised by Brahmins for a consideration in money. This is the view taken of it by the Indian Penal Code, which condemns it in the following terms (s. 508):—
‘Whoever voluntarily causes . . . any person to do anything which that person is not legally bound to do . . . by inducing . . . that person to believe that he . . . will become by some act of the offender an object of Divine displeasure, if he does not do the thing which it is the object of the offender to cause him to do . . . shall be punished with imprisonment, &c.’
It seems to me that a reasonable explanation may be given of the origin of these practices which now seem so strange. Let us not forget that all forms of Distress, the seizure of wife, child, or cattle, even when wholly unregulated by law, were improvements on older custom. The primitive proceeding was undoubtedly the unceremonious, unannounced, attack of the tribe or the man stung by injury on the tribe or the man who had inflicted it. Any expedient by which sudden plunder or slaughter was adjourned or prevented was an advantage even to barbarous society. Thus, it was a gain to mankind as a whole when its priests and leaders began to encourage the seizure of property or family, not for the purpose of permanent appropriation, but with a view to what we should now not hesitate to call extortion. Similarly, it was a step forwards when men learned to pause before attacking instead of attacking at once. We are told, in the Compendium of Kafir Laws and Customs published by Mr. Dugmore and other missionaries (p. 38), that the regular procedure of a Kafir law-suit simulates an expedition in force of the plaintiff and his friends against the village to which the defendant belongs. ‘On their arrival they sit down together in some conspicuous position and await quietly the result of their presence. This . . . is the signal for mustering all the adult male residents that are forthcoming. These accordingly assemble and also sit down within conversing distance.’ After long silence a conversation ensues, and the proceeding, which is a perfectly peaceable one, is continued by a long series of technical formalities and intricate pleadings. This silent pause of the attacking party is an early form of Notice, in itself one of the most valuable of institutions; and with it is connected another primitive contrivance, shutting a man up in his house till he gives satisfaction, instead of setting on him at once. A very striking illustration of it is found in a law of Alfred, familiar to historical scholars (Kemble, ‘Saxons,’ i. 272; Thorpe, ‘Ancient Laws,’ i. 91):—
‘Let the man who knows his foe to be homesitting fight not before he have demanded justice of him. If he have power to beset his foe and besiege him in his house, let him keep him there for seven days but not attack him if he will remain indoors. If then, after seven days, he be willing to surrender and give up his weapons, let him be kept safe for thirty days, and let notice be given to his kinsmen and friends. But if the plaintiff have not power of his own, let him ride to the Ealdorman, and, if the Ealdorman will not aid him, let him ride to the King before he fights.’ The passage ends with a provision of which the spirit, strange to say, survives in the modern Code making the loudest claim to civilised principle, the Code Napoléon (Code Pénal, s. 324), to the effect that if the man who is homesitting be really shut up in his house with the complainant’s wife, daughter, or sister, he may be attacked and killed without ceremony.
The object of the Law of Alfred is plainly the same with that aimed at by the ancient rule of Brihaspiti. The man who, if nature had her way, would be slain at once, is shut up in his house but left otherwise unharmed till he or his kinsmen pay the debt or compound for the money. The English rule is to be enforced by the civil power, the Ealdorman or the King; the Hindoo Brahminical rule by the fear of punishment in another world. The Irish law-tract retains the Brahminical rule as an alternative in certain cases to Notice. But an institution which was perfectly intelligible in a society which included an order of lawyers who were also priests has lost all meaning when this society has been introduced by Christianity to a wholly new set of religious ideas.
The course of our enquiry has led us backwards and forwards between the extreme Easterly and the extreme Westerly branches of the Aryan race. Let me now add one word to connect the Eastern usage with the most ancient law of the community which once occupied with its government nearly the whole space between the two. ‘Sitting dharna,’ placed under the ban of British law, chiefly survives in British India in an exaggerated air of suffering worn by the creditor who comes to ask a debtor of higher rank for payment, and who is told to wait. But it is still common in the Native Indian States, and there it is pre-eminently an expedient resorted to by soldiers to obtain arrears of pay. You will remember that the ‘pignoris capio’ of the Romans is stated by Gaius to have survived as a remedy in two classes of cases, one of them being the default of a military paymaster.
Lecture 11. – The Early History of the Settled Property of Married Women.
The subject on which I am about to speak may perhaps convey one lesson. It may serve as a caution against the lax employment of the words ‘ancient’ and ‘modern.’ There are few persons, I suppose, who, approaching the Settled Property of Married Women without previous knowledge of its history, would not pronounce it one of the most modern of subjects. It has given rise to vehement controversy in our own day; some of the questions which it suggests are not yet solved: and there are many here, I dare say, who believe that they remember the first dawn of sound ideas on these questions. Yet, as a matter of fact, the discussion of the settled property of married women is a very old discussion. I do not indeed say, considering the vast antiquity now claimed for the human race, that our very first forefathers troubled themselves about the matter; but nothing can be more certain than that very soon after those divisions of mankind which were destined to ultimate greatness are seen in possession of the institution which was the one condition of their progress to civilisation—the Family—they are discerned grappling with the very same problem, no doubt in an early form, which we ourselves have hardly yet succeeded in solving. This assertion, I may observe, is less incredible to a Frenchman, or indeed to a citizen of any Continental State, than it is possibly to an Englishman. The law of the Continent on the proprietary relations of husband and wife is in the main Roman law, very slightly transmuted; and through the institutions of the Romans the history of this branch of law may be traced to the earliest institutions of so much of the human race as has proved capable of civilisation.
The Roman and Hindoo systems of law from which I propose to illustrate my subject are very far indeed from being the only sources from which information can be gathered concerning the infancy of mankind, or even concerning the Aryan race of men. But the evidence supplied by each of them is highly authentic, and, while both of them run back to what may fairly be called a vast antiquity, they both assume at their starting-point the existence of the institution, by no means apparently universal among savage men, out of which, as I said, all civilisation has grown—the Family. I need scarcely add that, even for historical purposes, their value is very unequal.
There is no history so long, so continuous, and so authentic as that of the Roman Law; and yet it is not a little remarkable that till about half a century ago it was systematically treated, except by a small minority of jurists, as if it had no history at all. ‘This was a consequence of its great juridical perfection. Let me pause to observe that, considering the time and pains spent in acquiring the Latin language, it is much to be regretted that so little is known of the chief branch of Latin literature. For it is really so expressed, and so put together, as to deserve the name of literature. Moreover, it was the only literature of the Romans which has any claim to originality; it was the only part of their literature in which, the Romans themselves took any strong interest; and it is the one part which has profoundly influenced modern thought. One result, however, of its symmetry and lucidity was that it was long regarded as a birth of pure intellect, produced, so to speak, at a single effort. Those who attempted to construct a history for it were few, and not of the highest credit. But it happened that in 1816, the great German historian, Niebuhr, travelling in Italy, had his attention attracted at Verona to a manuscript of one of the Fathers, under the letters of which ancient writing appeared. This manuscript, when deciphered, proved to be a nearly perfect copy of an educational work, written in the second century of our era, for young Roman students of law, by one of the most famous of Roman lawyers, Gaius or Caius. At that period Roman jurisprudence retained enough of the traces of its most ancient state for it to be necessary that they should be explained to young readers by the author of such a treatise; and it thus became possible to reconstruct, from the book of Gaius, the whole past history of Roman law with some completeness. Certainly, without Niebuhr’s discovery the subject of this lecture could never have been understood, or its original outline restored.
Hindoo law, which I have placed by the side of Roman law, calls assuredly for no eulogy. It is full of monstrous iniquities, and has been perverted in all directions by priestly influence. But then a great deal of it is undoubtedly of prodigious antiquity, and, what is more important, we can see this ancient law in operation before our eyes. British legislation has corrected some of its excesses, but its principles are untouched, and are still left to produce some of their results. French law, as I said, is Roman law a little altered, but then it is the Roman law in its matured, developed, and refined condition, and the ancient institutions of the Romans are only seen through it dimly. But some of the institutions which the Romans and Hindoos once had in common may be seen actually flourishing in India, under the protection of English Courts of Justice.
The two societies, Roman and Hindoo, which I take up for examination, with the view of determining some of their earliest ideas concerning the property of women, are seen to be formed at what for practical purposes is the earliest stage of their history, by the multiplication of a particular unit or group, the Patriarchal Family. There has been much speculation of late among writers belonging to the school of so-called pre-historic inquiry as to the place in the history of human society to which this peculiar group, the Patriarchal Family, is entitled. Whether, however, it has existed universally from all time—whether it has existed from all time only in certain races—or whether in the races among whose institutions it appears, it has been formed by slow and gradual development—it has, everywhere, where we find it, the same character and composition. The group consists of animate and inanimate property, of wife, children, slaves, land, and goods, all held together by subjection to the despotic authority of the eldest male of the eldest ascending line, the father, grandfather, or even more remote ancestor. The force which binds the group together is Power. A child adopted into the Patriarchal family belongs to it as perfectly as the child naturally born into it, and a child who severs his connection with it is lost to it altogether. All the larger groups which make up the primitive societies in which the Patriarchal family occurs, are seen to be multiplications of it, and to be, in fact, themselves more or less formed on its model.
But, when first we view the Patriarchal Family through perfectly trustworthy evidence, it is already in a state of decay. The emancipation or enfranchisement of male children from parental power by the parents’ voluntary act has become a recognised usage, and is one among several practices which testify a relaxation of the stricter ideas of a more remote antiquity. Confining our attention to women, we find that they have begun to inherit a share of the property of the family concurrently with their male relatives; but their share appears, from several indications, to have been smaller, and they are still controlled both in the enjoyment of it and in the disposal Here, however, we come upon the first trace of a distinction which runs through all legal history. Unmarried women, originally in no different position from married women, acquire at first a much higher degree of proprietary independence. The unmarried woman is for life under the guardianship of her male relatives, whose primitive duty was manifestly to prevent her alienating or wasting her possessions, and to secure the ultimate reversion of these possessions to the family to whose domain those possessions had belonged. But the powers of the guardians are undergoing slow dissolution through the two great sapping agencies of jurisprudence, Legal Fictions and Equity. To those who are alive to the permanence of certain legal phenomena there is no more interesting passage in ancient law than that in which the old lawyer Gaius describes the curious forms with which the guardian’s powers were transferred to a trustee, whose trust was to exercise them at the pleasure of the ward. Meantime, there can be no reasonable doubt that among the Romans, who alone supply us with a continuous history of this branch of jurisprudence, the great majority of women became by marriage, as all women had originally become, the daughters of their husbands. The Family was based, less upon actual relationship than upon power, and the husband acquired over his wife the same despotic power which the father had over his children. There can be no question that, in strict pursuance of this conception of marriage, all the wife’s property passed at first absolutely to the husband, and became fused with the domain of the new family; and at this point begins, in any reasonable sense of the words, the early history of the property of married women.
The first sign of change is furnished by the employment of a peculiar term to indicate the relation of husband to wife, as different from the relation of father to child, or master to slave. The term, a famous one in legal history, is manus, the Latin word for ‘hand,’ and the wife was said convenire in manum, to come under the hand of her husband. I have elsewhere expressed a conjectural opinion that this word manus or hand, was at first the sole general term for patriarchal power among the Romans, and that it became confined to one form of that power by a process of specialisation easily observable in the history of language. The allotment of particular names to special ideas which gradually disengage themselves from a general idea is apparently determined by accident. We cannot give a reason, other than mere chance, why power over a wife should have retained the name of manus, why power over a child should have obtained another name, potestas, why power over slaves and inanimate property should in later times be called dominium. But, although the transformation of meanings be capricious, the process of specialisation is a permanent phenomenon, in the highest degree important and worthy of observation. When once this specialisation has in any case been effected I venture to say that there can be no accurate historical vision for him who will not, in mental contemplation, re-combine the separated elements. Taking the conceptions which have their root in the family relation—what we call property, what we call marital right, what we call parental authority, were all originally blended in the general conception of patriarchal power. If, leaving the Family, we pass on to the group which stands next above it in the primitive organisation of society—that combination of families, in a larger aggregate, for which at present I have no better name than Village Community—we find it impossible to understand the extant examples of it, unless we recognise that, in the infancy of ideas, legislative, judicial, executive, and administrative power are not distinguished, but considered as one and the same. There is no distinction drawn in the mind between passing a law, affirming a rule, trying an offender, carrying out the sentence, or prescribing a set of directions to a communal functionary. All these are regarded as exercises of an identical power lodged with some depositary or body of depositaries. When these communities become blended in the larger groups which are conveniently called political, the re-combination of ideas originally blended becomes infinitely more difficult, and, when successfully effected, is among the greatest achievements of historical insight. But I venture to say that, whether we look to that immortal system of village communities which became the Greek or Hellenic world—or that famous group of village-communities on the Tiber, which, grown into a legislating empire, has influenced the destinies of mankind far more by altering their primitive customs than by conquering them—or to the marvellously complex societies to which we belong, and in which the influence of the primitive family and village notions still makes itself felt amid the mass of modern thought—still I venture to say, that one great secret for understanding these collections of men, is the reconstruction in the mind of ancient, general, and blended ideas by the re-combination of the modern special ideas which are their offshoots.
The next stage in the legal history of Roman civil marriage is marked by the contrivance, very familiar to students of Roman law, by which the process of ‘coming under the hand’ was dispensed with, and the wife no longer became in law her husband’s daughter. From very early times it would appear to have been possible to contract a legal marriage by merely establishing the existence of conjugal society. But the effect on the wife of continuous conjugal society was, in old Roman law, precisely the same as the effect on a man of continuous servile occupation in a Roman household. The institution called Usucapion, or (in modern times) Prescription, the acquisition of ownership by continuous possession, lay at the root of the ancient Roman law, whether of persons or of things; and, in the first case, the woman became the daughter of the chief of the house; in the last case the man became his slave. The legal result was only not the same in the two cases because the shades of power had now been discriminated, and paternal authority had become different from the lordship of the master over the slave. In order, however, that acquisition by Usucapion might be consummated, the possession must be continuous; there was no Usucapion where the possession had been interrupted—where, to use the technical phrase (which has had rather a distinguished history), there had been usurpation, the breaking of usus or enjoyment. It was possible, therefore, for the wife, by absenting herself for a definite period from her husband’s domicile, to protect herself from his acquisition of paternal power over her person and property. The exact duration of the absence necessary to defeat the Usucapion—three days and three nights—is provided for in the ancient Roman Code, the Twelve Tables, and doubtless the appearance of such a rule in so early a monument of legislation is not a little remarkable. It is extremely likely, as several writers on the ancient law conjectured, that the object of the provision was to clear up a doubt, and to declare with certainty what period of absence was necessary to legalise an existing practice. But it would never do to suppose that the practice was common, or rapidly became common. In this, as in several other cases, it is probable that the want of qualification in the clause of the Twelve Tables is to be explained by the reliance of the legislator on custom, opinion, or religious feeling to prevent the abuse of his legislation. The wife who saved herself from coming under marital authority no doubt had the legal status of wife, but the Latin antiquaries evidently believed that her position was not at first held to be respectable. By the time of Gaius, however, any association of imperfect respectability with the newer form of marriage was decaying or had perished; and, in fact, we know that marriage, ‘without coming under the hand,’ became the ordinary Roman marriage, and that the relation of husband and wife became a voluntary conjugal society, terminable at the pleasure of either party by divorce. It was with the state of conjugal relations thus produced that the growing Christianity of the Roman world waged a war ever increasing in fierceness; yet it remained to the last the basis of the Roman legal conception of marriage, and to a certain extent it even colours the Canon law founded though it be, on the whole, on the sacramental view of marriage.
For our present purpose it is necessary to regard this newer marriage just when it had superseded the ancient and stricter usages of wedlock, and just before it began to be modified by the modern and much severer principles of the Christian community. For at this point in the history of marriage we come upon the beginnings of that system of settling the property of married women which has supplied the greatest part of Continental Europe with its law of marriage settlement. It appears an immediate consequence from thoroughly ascertained legal principles that, as soon as the wife ceased to pass by marriage into her husband’s family, and to become in law his daughter, her property would no longer be transferred to him. In the earlier period of Roman law, this property, present and prospective, would have remained with her own family, and, if she was no longer under direct parental authority, would have been administered by her guardians for the behoof of her male relatives. As we know, however, and as I before stated, the power of guardians was gradually reduced to a shadow. The legal result would seem to have been that the woman would be placed in the same position as a French wife at this day under what the French Code calls the régime of biens séparés, or as an English wife whose property has been secured to her separate use by an appropriate marriage settlement or by the operation of the new Married Women’s Property Act. But, though this was the legal consequence, it would be a social anachronism to assume that in practice it followed rapidly or generally. The original object of the marriage ‘without coming under the hand’ was doubtless to prevent the acquisition of excessive proprietary power by the husband, not to deprive him of all such power, and indeed the legal result of this marriage, unless practically qualified in some way, would unquestionably have been far in advance of social feeling. Here, then, we come upon an institution which, of all purely artificial institutions, has had perhaps the longest and the most important history. This is the dos, or dotal estate, something very different from our ‘dower.’ It has become the dot of French law, and is the favourite form of settling the property of married women all over the Continent of Europe. It is a contribution by the wife’s family, or by the wife herself, intended to assist the husband in bearing the expenses of the conjugal household. Only the revenue belonged to the husband, and many minute rules, which need not be specified here, prevented him from spending it on objects foreign to the purpose of the settlement. The corpus or capital of the settled property was, among the Romans (as now in France), incapable of alienation, unless with the permission of a court of justice. If any part of the wife’s property was not settled on her as dos, it became her parapherna. Parapherna means something very different from our ‘paraphernalia,’ and is the biens separés of French law. It was that portion of a wife’s property which was held by her under the strict law applicable to a woman marrying without ‘coming under the hand.’ The authority of her guardians having died out, and this part of her property not having, by the assumption, been conveyed to the husband as dos, it remained under her exclusive control, and at her exclusive disposal. It is only quite recently, under the Married Women’s Property Act, that we have arrived at a similar institution, since money settled to a wife’s separate use, though practically the same thing, required a settlement to create it.
I have now abridged a very long, and, in some portions, a very intricate history. The Roman law began by giving all the wife’s property to the husband, because she was assumed to be, in law, his daughter. It ended in having for its general rule that all the wife’s property was under her own control, save when a part of it had been converted by settlement into a fund for contributing to the expenses of the conjugal household. But, no doubt, the exception to the general rule was the ordinary practice. In all respectable households, as now on the Continent, there was a settlement by way of dos. Not that we are to suppose there was among the Romans any such form of contract as we are accustomed to under the name of Marriage Settlement. The mechanism was infinitely simpler. A few words on paper would suffice to bring any part of the wife’s property under the well-ascertained rules supplied by the written law for dotal settlements, and nothing more than these words would be needed, unless the persons marrying wished to vary the provisions of the law by express agreement. This simple, but most admirable, contrivance of having, so to speak, model settlements set forth ready made in the law, which may be adopted or not at pleasure, characterises the French Code Napoléon, and it was inherited by the French from the Romans.
Warning you that the account which I have given you of the transitions through which the Roman law of settled property passed, is, from the necessity of the case, fragmentary, I pass to the evidence of early ideas on our subject which is contained in the Hindoo law. The settled property of a married woman, incapable of alienation by her husband, is well-known to the Hindoos under the name of Stridhan. It is certainly a remarkable fact that the institution seems to have been developed among the Hindoos at a period relatively much earlier than among the Romans. But instead of being matured and improved, as it was in the Western society, there is reason to think that in the East, under various influences which may partly be traced, it has gradually been reduced to dimensions and importance far inferior to those which at one time belonged to it.
The definition of Stridhan, or ‘woman’s property,’ given in one of the oldest and most authoritative of the Hindoo juridical treatises, the Mitakshara, is as follows: ‘That which is given (to the wife) by the father, the mother, the husband, or a brother, at the time of the wedding, before the nuptial fire.’ Up to this point, the doctrine has the concurrence of all the schools of Hindoo law, but the compiler of the Mitakshara adds a proposition not found elsewhere: ‘also property which she may have acquired by inheritance, purchase, partition, seizure, or finding, is denominated by Manu and the others “woman’s property.” ’ (Mitakshara, xi. 2.) These words, attributed, you see, to the mythical legislator, Manu, have excited the most vehement controversies among later Brahminical commentators, and have caused considerable perplexity to Anglo-Indian Judges, bound as they are to elicit consistent doctrine from the Hindoo legal texts. ‘All the property which a woman may have acquired by inheritance, purchase, partition, seizure, or finding,’ is a comprehensive description of all the forms of property as defined by the modes of acquisition, and, if all this be Stridhan, it follows that the ancient Hindoo law secured to married women, in theory at all events, an even greater degree of proprietary independence than that given to them by the modern English Married Women’s Property Act. No doubt there is much difficulty in understanding this. The existing Hindoo written law, which is a mixed body of religious, moral, and legal ordinances, is pre-eminently distinguished by the strictness with which it maintains a number of obligations plainly traceable to the ancient despotism of the Family, and by its excessive harshness to the personal and proprietary liberty of women. Among the Aryan sub-races, the Hindoos may be as confidently asserted as the Romans to have had their society organised as a collection of patriarchally governed families. If, then, at any early period, the married woman had among the Hindoos her property altogether enfranchised from her husband’s control, it is not easy to give a reason why the obligations of the family despotism were relaxed in this one particular. In point of fact, there is no clue to the mystery so long as we confine our attention to the Hindoo law, and no course is open to a Judge except to take his stand on the one ancient authority I have quoted or to follow the great bulk of modern authorities who repudiate the doctrine of the Mitakshara on this point. The Anglo-Indian Courts have now substantially decided that Hindoo law (with the possible exception of that current in Western India) limits the Stridhan to property given to the woman at her marriage either by her family or by her husband (‘Madras High Court Reports,’ iii. 312). I think, however, that if we extend our examination to other bodies of Aryan custom, we may partly understand the amplitude which the Mitakshara, one of the most archaic of Hindoo compendia, assigns to the Stridhan. A full enquiry would take me much beyond the limits which I have proposed to myself in this Lecture, but its results would shortly be these. Among the Aryan communities as a whole, we find the earliest traces of the separate property of women in the widely diffused ancient institution known as the Bride-Price. Part of this price, which was paid by the bridegroom either at the wedding or the day after it, went to the bride’s father as compensation for the Patriarchal or Family authority which was transferred to the husband, but another part went to the bride herself and was very generally enjoyed by her separately and kept apart from her husband’s property. It further appears that under a certain number of Aryan customs the proprietary rights of other kinds which women slowly acquired were assimilated to their rights in their portion of the Bride-Price, probably as being the only existing type of woman’s property. The exact extent of the separate ownership which the ancient Irish law allowed to married women is still uncertain, but undoubtedly they had some power of dealing with their own property without the consent of their husbands, and this was one of the institutions expressly declared by the Judges to be illegal at the beginning of the seventeenth century.
If then the Stridhan had a pre-historic origin in the Bride-Price, its growth and decay become more intelligible. First of all it was property conferred on the wife by the husband ‘at the nuptial fire,’ as the sacerdotal Hindoo lawyers express it. Next it came to include what the Romans called the dos, property assigned to the wife at her marriage by her own family. The next stage may very well have been reached only in certain parts of India, and the rules relating to it may only have found their way into the doctrine of certain schools; but still there is nothing contrary to the analogies of legal history in the extension of the Stridhan until it included all the property of a married woman. The really interesting question is how came the law to retreat after apparently advancing farther than the Middle Roman Law in the proprietary enfranchisement of women, and what are the causes of the strong hostility of the great majority of Hindoo lawyers to the text of the Mitakshara, of which the authority could not be wholly denied? There are in fact clear indications of a sustained general effort on the part of the Brahminical writers on mixed law and religion, to limit the privileges of women which they seem to have found recognised by older authorities. The attention of English and European students of the Hindoo law books was first attracted to this subject by a natural desire to scrutinise the sacred texts upon which the Brahmin learned were in the habit of insisting in defence of the abominable practice of Suttee or widow-burning. The discovery was soon made that the oldest monuments of law and religion gave no countenance to the rite, and the conclusion was at once drawn that, even on Hindoo principles, it was an unlawful innovation. This mode of reasoning undoubtedly gave comfort to many devout Hindoos, whom no secular argument could have reconciled to the abandonment of a custom of proved antiquity; but still, in itself it was unsound. The disuse of all practices which a scholar could show to be relatively modern would dissolve the whole Hindoo system. These inquiries, pushed much farther, have shown that the Hindoo laws, religious and civil, have for centuries been undergoing transmutation, development, and, in some points, depravation at the hands of successive Brahminical expositors, and that no rules have been so uniformly changed—as we should say, for the worse—as those which affect the legal position of women.
It will probably be conceded by all who have paid any attention to our subject, that the civilised societies of the West, in steadily enlarging the personal and proprietary independence of women, and even in granting to them political privilege, are only following out still farther a law of development which they have been obeying for many centuries. The society, which once consisted of compact families, has got extremely near to the condition in which it will consist exclusively of individuals, when it has finally and completely assimilated the legal position of women to the legal position of men. In addition to many other objections which may be urged against the common allegation that the legal disabilities of women are merely part of the tyranny of sex over sex, it is historically and philosophically valueless, as indeed are most propositions concerning classes so large as sexes. What really did exist is the despotism of groups over the members composing them. What really is being relaxed is the stringency of this despotism. Whether this relaxation is destined to end in utter dissolution—whether, on the other hand, under the influence either of voluntary agreement or of imperative law, society is destined to crystallise in new forms—are questions upon which it is not now material to enter, even if there were any hope of solving them. All we need at present note is that the so-called enfranchisement of women is merely a phase of a process which has affected very many other classes, the substitution of individual human beings for compact groups of human beings as the units of society. Now, it is true that in the legal institutions of the Hindoos (political institutions, I need scarcely say, for many centuries they have had none) the despotism of the family group over the men and women composing it is maintained in greater completeness than among any society of similar civilisation and culture. Yet there is abundant evidence that the emancipation of the individual from the family had proceeded some way, even before the country had come under the Western influences through the British dominion. If I were to give you the full proof of this, I should have to take you through much of the detail of Hindoo law. I will mention one indication of it, because few are aware that the peculiarity in question serves as a sort of test by which we can distinguish very ancient or undeveloped from comparatively matured and developed law.
All beginners in law have heard of the difference between distributing an inheritance per stirpes and distributing it per capita. A man has two sons, one of whom has eight children, and the other two. The grandfather dies, his two sons having died before him, and the grandfather’s property has to be divided between the grandchildren. If the division is per stirpes the stocks of the two sons will be kept separate, and one half of the inheritance will be distributed between the eight grandchildren, and the other half between the two. If the division is per capita the property will be equally divided between the whole ten grandchildren, share and share alike. Now the tendency of matured and developed law is to give a decided preference to distribution per stirpes; it is only with remote classes of relatives that it abandons the distinctions between the stocks and distributes the property per capita. But in this, as in several other particulars, very ancient and undeveloped law reverses the ideas of the modern jurist, and uniformly prefers distribution per capita, exactly equal division between all the surviving members of the family; and this is apparently on the principle that, all having been impartially subject to a despotism which knew no degrees, all ought to share equally on the dissolution of the community by the death of its chief. A preference for division per stirpes, a minute care for the preservation of the stocks, is in fact very strong evidence of the growth of a respect for individual interests inside the family, distinct from the interests of the family group as a whole. This is why the place given to distribution per stirpes shows that a given system of law has undergone development, and it so happens that this place is very large in Hindoo law, which is extremely careful of the distinction between stocks, and maintains them through long lines of succession.
Let us now turn to the causes which in the Hindoo law, and in the great alternative Aryan system, the Roman law, have respectively led to the disengagement of the individual from the group. So far as regards the Roman institutions, we know that among the most powerful solvent influences were certain philosophical theories, of Greek origin, which had deep effect on the minds of the jurists who guided the development of the law. The law, thus transformed by a doctrine which had its most distinct expression in the famous proposition, ‘all men are equal,’ was spread over much of the world by Roman legislation. The empire of the Romans, for one reason alone, must be placed in a totally different class from the Oriental despotisms, ancient and modern, and even from the famous Athenian Empire. All these last were tax-taking empires, which exercised little or no interference in the customs of village-communities or tribes. But the Roman Empire, while it was a tax-taking, was also a legislating empire. It crushed out local customs, and substituted for them institutions of its own. Through its legislation alone it effected so great an interruption in the history of a large part of mankind, nor has it had any parallel except—and the comparison is very imperfect—the modern British Empire in India. There is no reason to suppose that philosophical theory had any serious influence on the jurisprudence of the Hindoos. I speak with reserve on the subject, but I believe that none of the remarkable philosophical theories which the genius of the race produced are founded on a conception of the individual as distinct from that of the group in which he is born. From those of them with which I happen to be acquainted, I should say that their characteristics are of exactly the reverse order, and that they have their nearest counterpart in certain philosophical systems of our own day, under which the individual seems lost in some such conception as that of Humanity. What, then, was the influence (for some influence there certainly was) which, operating on the minds of the Brahminical jurists, led them to assign to the individual rights distinct from those which would have belonged to him through mere membership in the family group? I conceive that it was the influence of Religion. Wherever among any part of Hindoo society there prevailed the conviction of responsibility after death—whether that responsibility was to be enforced by direct rewards and punishments, or through the stages of the metempsychosis—the conception of the individual, who was to suffer separately and enjoy separately, was necessarily realised with extreme distinctness.
The portions of the race strongly affected by religious belief of this kind were exactly those for which the Brahminical jurists legislated, and at first they probably legislated for these alone. But with the notion of responsibility after death the notion of expiation was always associated. Building upon this last notion, the Brahminical commentators gradually transformed the whole law until it became an exemplification of what Indian lawyers call the doctrine of Spiritual Benefit. Inasmuch as the condition of the dead could be ameliorated by proper expiatory rites, the property descending or devolving on a man came to be regarded by these writers partly as a fund for paying the expenses of the ceremonial by which the soul of the person from whom the inheritance came could be redeemed from suffering or degradation, and partly as a reward for the proper performance of the sacrifices. There ought to be nothing to surprise us in the growth of such a doctrine, since it is only distinguished, by its logical completeness, from one which had great influence on Western jurisprudence. The interest which from very early times the Church claimed in the moveable or personal property of deceased persons is best explained by its teaching that the first and best destination of a dead man’s goods was to purchase masses for his soul, and out of this view of the proper objects of wealth the whole testamentary and intestate jurisdiction of the Ecclesiastical Courts appears to have grown. But in India the law constructed on these principles became extremely unfavourable to the ownership of property by women, apparently because its priestly authors thought that women, through their physical weakness and their seclusion (which was doubtless regarded as unavoidable), would have much greater difficulty than men, amid a society always more or less disturbed, in applying a proper share of the property to the funeral ceremonies of the person who had transmitted it. The reasoning on the subject current even in comparatively ancient times is thus given in the Mitakshara: ‘The wealth of a regenerate man is designed for religious uses, and a woman’s succession to such property is unfit because she is not competent to the performance of religious rites.’ The compiler of the Mitakshara who has preserved the liberal rule as to Stridhan which I before referred to, combats this doctrine, not, however, by affirming the capacity of women for sacrifice, but by denying that all property is intended for religious uses, and by pointing out that certain acts which a female owner can do are of a quasi-religious character, e.g., she may dig tanks. (Mitakshara, ii. 1, 22, 23, 24.) And, putting him aside, the Brahminical commentators who succeed one another in the Hindoo juridical schools show a visibly increasing desire to connect all property with the discharge of sacrificial duties, and with this desire the reluctance to place property in the hands of women is somehow connected.
On the whole the successive generations of Hindoo lawyers show an increasing hostility to the institution of the Stridhan, not by abolishing it, but by limiting to the utmost of their power the circumstances under which it can arise. Minute distinctions are drawn between the various modes in which property may devolve upon a woman, and the conditions under which such property may become Stridhan made rare and exceptional. The aim of the lawyers was to add to the family stock, and to place under the control of the husband as much as they could of whatever came to the wife by inheritance or gift; but whenever the property does satisfy the multifarious conditions laid down for the creation of the Stridhan, the view of it as emphatically ‘woman’s property’ is carried out with a logical consistency very suggestive of the character of the ancient institution on which the Brahminical jurists made war. Not only has the woman singularly full power of dealing with the Stridhan—not only is the husband debarred from intermeddling with it, save in extreme distress—but, when the proprietress dies, there is a special order of succession to her property, which is manifestly intended to give a preference, wherever it is possible, to female relatives over males.
Let me add that the account which I have given you of the probable liberality of the Hindoo institutions to females at some long past period of their development, and of the dislike towards this liberality manifested by the Brahminical lawyers, is not to be regarded as fanciful or purely conjectural, although, doubtless, we can only guess at the explanation of it. It is borne out by a very considerable number of indications, one of which I mention as of great but very painful interest. The most liberal of the Hindoo schools of jurisprudence, that prevailing in Bengal Proper, gives a childless widow the enjoyment of her husband’s property, under certain restrictive conditions, for her life; and in this it agrees with many bodies of unwritten local custom. If there are male children, they succeed at once; but if there are none the widow comes in for her life before the collateral relatives. At the present moment, marriages among the upper classes of Hindoos being very commonly infertile, a considerable portion of the soil of the wealthiest Indian province is in the hands of childless widows as tenants for life. But it was exactly in Bengal Proper that the English, on entering India, found the Suttee, or widow-burning, not merely an occasional, but a constant and almost universal practice with the wealthier classes, and, as a rule, it was only the childless widow, and never the widow with minor children, who burnt herself on her husband’s funeral pyre. There is no question that there was the closest connection between the law and the religious custom, and the widow was made to sacrifice herself in order that her tenancy for life might be got out of the way. The anxiety of her family that the rite should be performed, which seemed so striking to the first English observers of the practice, was, in fact, explained by the coarsest motives; but the Brahmins who exhorted her to the sacrifice were undoubtedly influenced by a purely professional dislike to her enjoyment of property. The ancient rule of the civil law, which made her tenant for life, could not be got rid of, but it was combated by the modern institution which made it her duty to devote herself to a frightful death.
If the Stridhan of the Hindoos is a form of married women’s separate property, which has been disliked and perverted by the professional classes who had the power to modify it, the institution which was first the dos of the Romans, and is now the dot of Continental Europe, has received a singular amount of artificial encouragement. I have endeavoured to describe to you how it originated, but I have yet to state that it entered into one of the most famous social experiments of the Roman Empire. A well-known statute of the Emperor Augustus, celebrated by Horace in an official ode as the prince’s greatest legislative achievement, had for its object the encouragement and regulation of marriage and the imposition of penalties on celibacy. Among the chief provisions of this ‘Lex Julia et Papia Poppœa’—to give its full title—was a clause compelling opulent parents to create portions, or dotes, for their marriageable daughters. This provision of a statute, which very deeply affected the Roman law in many ways, must have met with general approval, for at a later date we find the same principle applied to the donatio propter nuptias, or settlement on the married couple from the husband’s side. In the matured Roman law, therefore, singular as it may seem to us, parents were under a statutory obligation to make settlements on their children.
It has been rather the fashion to speak of these experiments of the Roman Emperors on public morality as if they totally miscarried—I suppose, from some idea that the failure added to the credit of the moral regeneration effected by Christianity. But, as a matter of fact, the Christian Church conferred few civil benefits of greater moment to several generations of mankind than in keeping alive the traditions of the Roman legislation respecting settled property, and in strenuously exerting itself to extend and apply the principles of these disciplinary laws. There can be no serious question that, in its ultimate result, the disruption of the Roman Empire was very unfavourable to the personal and proprietary liberty of women. I purposely say, ‘in its ultimate result,’ in order to avoid a learned controversy as to their position under purely Teutonic customs. It is very possible that the last stages of the process, which it is difficult to call anything but feudalisation, were more unfavourable to women than the earlier changes, which were exclusively due to the infusion of Germanic usage; but, at any rate, the place of women under the new system when fully organised was worse than it was under Roman law, and would have been very greatly worse but for the efforts of the Church. One standing monument of these efforts we have constantly before us in the promise of the husband in the Marriage service, ‘With all my worldly goods, I thee endow;’ a formula which sometimes puzzles the English lawyer, from its want of correspondence with anything which he finds among the oldest rules of English law. The words have, indeed, been occasionally used in English legal treatises, as the text of a disquisition on the distinction between Roman dos, to which they are supposed to refer, and the doarium, which is the ‘dower’ of lands known to English law. The fact is, however, that the tradition which the Church was carrying on was the general tradition of the Roman dos, the practical object being to secure for the wife a provision of which the husband could not wantonly deprive her, and which would remain to her after his death. The bodies of customary law which were built up over Europe were, in all matters of first principle, under ecclesiastical influences; but the particular applications of a principle once accepted were extremely various. The dower of lands in English law, of which hardly a shadow remains, but under which a wife surviving her husband took a third of the rents and profits of his estates for life, belonged to a class of institutions widely spread over Western Europe, very similar in general character, often designated as doarium, but differing considerably in detail. They unquestionably had their origin in the endeavours of the Church to revive the Roman institution of the compulsory dos, which, in this sense, produced the doarium, even though the latter may have had a partially Germanic origin, and even though it occasionally assume (as it unquestionably does) a shape very different from the original institution. I myself believe that another effect of this persistent preaching and encouragement is to be found in the strong feeling which is diffused through much of Europe, and specially through the Latinised societies, in favour of dotation, or portioning of daughters, a feeling which seldom fails to astonish a person acquainted with such a country as France by its remarkable intensity. It is an economical power of considerable importance, for it is the principal source of those habits of saving and hoarding which characterise the French people, and I regard it as descended, by a long chain of succession, from the obligatory provisions of the marriage law of the Emperor Augustus.
The importance and interest of our subject, when treated in all its bearings and throughout its whole history, are quite enough to excuse me, I trust, for having detained you with an account of its obscure beginnings. It has been said that the degree in which the personal immunity and proprietary capacity of women are recognised in a particular state or community is a test of its degree of advance in civilisation; and, though the assertion is sometimes made without the qualifications which are necessary to give it value, it is very far indeed from being a mere gallant commonplace. For, inasmuch as no class of similar importance and extent was, in the infancy of society, placed in a position of such absolute dependence as the other sex, the degree in which this dependence has step by step been voluntarily modified and relaxed, serves undoubtedly as a rough measure of tribal, social, national capacity for self-control—of that same control which produces wealth by subduing the natural appetite of living for the present, and which fructifies in art and learning through subordinating a material and immediate to a remote, intangible, and spiritual enjoyment. The assertion, then, that there is a relation between civilisation and the proprietary capacities of women is only a form of the truth that every one of those conquests, the sum of which we call civilisation, is the result of curbing some one of the strongest, because the primary, impulses of human nature. If we were asked why the two societies with which we have been concerned—the Hindoos on the one hand, and the Romans and all the races to which they have bequeathed their institutions on the other—have had so widely different a history, no reply can be very confidently given, so difficult is it, among the vast variety of influences acting on great assemblages of men, to single out any one or any definite number of them, and to be sure that these have operated more powerfully than the rest. Yet, if it were absolutely necessary to give an answer, it would consist in pointing to the difference in their social history which has been the subject of this lecture, and in observing that one steadily carried forward, while the other recoiled from, the series of changes which put an end to the seclusion and degradation of an entire sex.
Lecture 12. – Sovereignty.
The historical theories commonly received among English lawyers have done so much harm not only to the study of law but to the study of history, that an account of the origin and growth of our legal system, founded on the examination of new materials and the re-examination of old ones, is perhaps the most urgently needed of all additions to English knowledge. But next to a new history of law, what we most require is a new philosophy of law. If our country ever gives birth to such a philosophy, we shall probably owe it to two advantages. The first of them is our possession of a legal system which for many purposes may be considered indigenous. Our national pride, which has sometimes retarded or limited our advance in juridical enquiry, has kept our law singularly pure from mixture with the stream of legal rules flowing from the great fountain of the Roman Corpus Juris, and thus, when we place it in juxtaposition with any other European legal system, the results of the comparison are far more fruitful of instruction than those obtained by contrasting the various Continental bodies of law with one another. The second advantage I believe to consist in the growing familiarity of Englishmen with the investigations of the so-called Analytical Jurists, of whom the most considerable are Jeremy Bentham and John Austin. Of this advantage we have a monopoly. Bentham seems to be exclusively known in France and Germany as the author of an unpopular system of morals. Austin is apparently not known at all. Yet to Bentham, and even in a higher degree to Austin, the world is indebted for the only existing attempt to construct a system of jurisprudence by strict scientific process and to found it, not on à priori assumption, but on the observation, comparison, and analysis of the various legal conceptions. There is not the smallest necessity for accepting all the conclusions of these great writers with implicit deference, but there is the strongest necessity for knowing what those conclusions are. They are indispensable, if for no other object, for the purpose of clearing the head.
An important distinction between Bentham and Austin is not as often recognised as it ought to be. Bentham in the main is a writer on legislation. Austin in the main is a writer on jurisprudence. Bentham is chiefly concerned with law as it might be and ought to be. Austin is chiefly concerned with law as it is. Each trespasses occasionally on the domain of the other. Unless Bentham had written the treatise called the ‘Fragment on Government,’ Austin’s ‘Province of Jurisprudence Determined,’ which sets forth the basis of his system, would never probably have been composed. On the other hand, Austin, in his singular discussion of the theory of utility as an index to the Law of God, has entered on an investigation of the class followed by Bentham. Still the description which I have given of their objects is sufficiently correct as a general description, and those objects are widely different. Bentham aims at the improvement of the law to be effected by the application of the principles now indissolubly associated with his name. Almost all of his more important suggestions have been adopted by the English Legislature, but the process of engrafting on the law what to each successive generation seem to be improvements is in itself of indefinite duration, and may go on, and possibly will go on, as long as the human race lasts. Austin’s undertaking is more modest. It would be completed, if a Code were produced perfectly logical in order of arrangement and perfectly lucid in statement of rule. Jurisprudence, the science of positive law, is sometimes spoken of nowadays as if it would bring the substance of the law into a state of indefinite perfection. It would doubtless, if it were carried far, lead indirectly to great legal reforms by dispelling obscurities and dissipating delusions, but the investigation of the principles on which the direct improvement of substantive legal rules should be conducted belongs nevertheless not to the theorist on jurisprudence but to the theorist on legislation.
The portion of Austin’s Lectures which sets forth the basis of his system, and which was published several years ago as the ‘Province of Jurisprudence Determined,’ has long been one of the higher classbooks in this University; and, taken together with the other lectures more recently given to the world (though unhappily in a fragmentary shape), it must always, or for a long time to come, be the mainstay of the studies prosecuted in this Department. Making the utmost acknowledgment of the value of the book, I find it impossible not to recognise the magnitude of the difficulties which it occasions to the beginner. Those which have their origin in peculiarities of style and which seem to be attributable to the perpetual commerce of thought in which the writer lived with his precursors, Bentham and Hobbes, I find to be practically less grave than difficulties of another sort which arise from the repulsion created in the mind by the shape in which the conceptions of law, right, and duty are presented to it by Austin’s analysis. Of course, so far as this distaste is caused by unpalatable truth, any tenderness shown to it would be wasted; but even thus it is a misfortune, and, if it be in any degree provoked by avoidable causes, such as methods of statement or arrangement, no pains bestowed on the attempt to remove it to this extent would be thrown away. A very frequent effect of forcing on students of active mind and industrious habits a system or subject which for some reason or other is repugnant to them is to make them regard it as so much dogma, as something resting on the personal authority of the writer with whose name it happens to be associated. Now nothing could be more unfortunate for the philosophy of law than that the system of the ‘Province of Jurisprudence Determined’ should come to be regarded simply as Austin’s system—as standing by the side of Blackstone’s or Hegel’s or any other system—as interchangeable with it or equivalent to it. For, when certain assumptions or postulates have been made, I am fully convinced that the great majority of Austin’s positions follow as of course and by ordinary logical process. These assumptions do not appear to me to be stated and described by Austin with sufficient fulness—possibly because, though he is a comparatively modern writer, a part of the enquiries necessary for such statement had in his day been barely commenced—but, whatever the cause, the result is that he seems to me open to the same charge as some of the greatest writers on Political Economy who have omitted to set forth at the outset with adequate distinctness the limited objects of their science, and who have thus attracted to it a mass of prejudice of which it may never possibly get rid. The present Lecture is an attempt to show what a certain number of these assumptions or postulates are; in that which follows it, I endeavour to show how these assumptions are affected by some conclusions which we have arrived at in former Lectures during our investigation of the early history of society. (Supra, Lectures I. to XI.) I think it best for my purpose to begin with calling attention to the definition of Sovereignty. Beyond all doubt this is the logical order of the discussion undertaken by Austin, and I find it difficult to understand, except on one hypothesis, why, deserting the arrangement of Hobbes, he began the discussion of this part of his subject by the analysis of Law, Right and Duty, and ended it with an account of Sovereignty which it seems to me should have come first. I imagine, however, that Blackstone influenced him, as he did Bentham, so to speak, by repulsion. Blackstone, following Roman Institutional writers, begins with a definition of law and proceeds to give a theory of the connection of the various legal conceptions. The desire to expose the fallacies of this portion of the Commentaries furnished Bentham with his principal motive for writing the Fragment on Government, and Austin with his chief inducement to determine the Province of Jurisprudence, and the latter seems to me to have thought that the propositions he disputed would be most effectually disposed of, if they were contradicted in the order given them by their author. However that may be, the branch of my subject on which I shall first have to enter may be described as an enquiry into the probable mode in which Austin’s analysis would have been affected, if he had begun in his first Lecture with the examination of the nature of Sovereignty. This examination he placed in the Sixth, which, so far as the ‘Province of Jurisprudence’ is concerned, is the last of his Lectures.
I believe I may assume that most of my hearers are familiar with the general character of the investigation prosecuted by Austin in the Treatise to which I have referred, but, as his definitions are not easily carried in the memory in their complete shape, I will give his descriptions of an Independent Political Society and of Sovereignty, the two conceptions being interdependent and inseparable from one another.
‘If (he says) a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is Sovereign in that society, and the society, including the superior, is a society political and independent.’
He then proceeds: ‘To that determinate superior the other members of the society are subject; or on that determinate superior the other members of the society are dependent. The position of its other members towards that determinate superior is a state of subjection or a state of dependence. The mutual relation which subsists between that superior and them, may be styled the relation of Sovereign and Subject, or the relation of Sovereignty and Subjection.’
I may perhaps save the necessity for part of the amplification and explanation of these definitions contained in the Chapter in which they occur, if I state Austin’s doctrine of Sovereignty in another way—more popularly, though without, I think, any substantial inaccuracy. It is as follows: There is, in every independent political community—that is, in every political community not in the habit of obedience to a superior above itself—some single person or some combination of persons which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group—this individual or this collegiate Sovereign (to employ Austin’s phrase)—may be found in every independent political community as certainly as the centre of gravity in a mass of matter. If the community be violently or voluntarily divided into a number of separate fragments, then, as soon as each fragment has settled down (perhaps after an interval of anarchy) into a state of equilibrium, the Sovereign will exist and with proper care will be discoverable in each of the now independent portions. The Sovereignty over the North American Colonies of Great Britain had its seat in one place before they became the United States, in another place afterwards; but in both cases there was a discoverable Sovereign somewhere. This Sovereign, this person or combination of persons, universally occurring in all independent political communities, has in all such communities one characteristic, common to all the shapes Sovereignty may take, the possession of irresistible force, not necessarily exerted but capable of being exerted. According to the terminology preferred by Austin, the Sovereign, if a single person, is or should be called a Monarch; if a small group, the name is an Oligarchy; if a group of considerable dimensions, an Aristocracy; if very large and numerous, a Democracy. Limited Monarchy, a phrase perhaps more fashionable in Austin’s day than it is now, is abhorred by Austin, and the Government of Great Britain he classes with Aristocracies. That which all the forms of Sovereignty have in common is the power (the power but not necessarily the will) to put compulsion without limit on subjects or fellow-subjects. It is sometimes extremely difficult to discover the Sovereign in a given State, and, when he or it is discovered, he may fall under no recognised designation, but, where there is an independent political society not in a condition of anarchy, the Sovereign is certainly there. The question of determining his character is, you will understand, always a question of fact. It is never a question of law or morals. He who, when a particular person or group is asserted to constitute the Sovereign in a given community, denies the proposition on the ground that such Sovereignty is an usurpation or a violation of constitutional principle, has completely missed Austin’s point of view.
The definitions which I read from the Sixth Lecture furnish Austin’s tests for discovering the seat of Sovereignty in independent states. I will again refer to a few of the most important of them, though very briefly.
First, the Sovereign is a determinate human superior. He is not necessarily a single person; in the modern Western world he is very rarely so; but he must have so much of the attributes of a single person as to be determinate. If he is not a single person, he must be a number of persons capable of acting in a corporate or collegiate capacity. This part of the definition is absolutely necessary, since the Sovereign must effect his exertions of power, must issue his orders, by a definite exercise of his will. The possession of physical power, which is one characteristic of Sovereignty, has as matter of historical fact repeatedly been for a time in the hands of a number of persons not determinate, not so connected together as to be capable of exercising volition, but such a state of things Austin would call anarchy, though it might not have all the usually recognised symptoms of a revolutionary interval. At the same time, the limitation of Sovereignty to determinate groups, when the Sovereign is not an individual, is extremely important, since it qualifies the notion of Sovereignty by rendering it subject to the various artifices by which an exercise of volition is elicited from a corporate body. Familiar to us as is the practice of taking the opinion of a majority as the opinion of an entire group, and natural as it seems, nothing can be more artificial.
Again, the bulk of the society must obey the superior who is to be called Sovereign. Not the whole of the society, for in that case Sovereignty would be impossible, but the bulk, the large majority, must obey. After the accession of the House of Hanover to the British throne, a certain number of Jacobites and a considerable portion of the Scottish Highlanders habitually disobeyed or disregarded the commands of the British Crown and Parliament, but the bulk of the nation, including no doubt the bulk of the Jacobites themselves, gave to these commands a practical obedience. On Austin’s principles, therefore, there is not the least ground for questioning the Sovereignty of George the First and Second and of the Parliaments elected at their summons. The Jacobite view, that the Hanoverian Kings were exclusively Sovereign in Hanover, would at once be thrown aside by Austin as not raising that question of fact which is alone disputable under his system.
Next, the Sovereign must receive an habitual obedience from the bulk of the community. In European societies professing the Roman Catholic faith, the great majority of the population receives a variety of directions on points of personal conduct, either mediately or immediately, from the See of Rome. But, compared with the number of times it submits itself to the laws of the country it inhabits, its obedience to these extrinsic commands is only occasional, and not habitual. At the same time a dim appreciation of the principles brought into light by Austin may be detected in several famous ecclesiastical controversies, which sometimes tend to become disputes whether the obedience to the See of Rome which is actually paid is or is not so frequent as to fall under the description of habitual.
A further characteristic of Sovereignty is immunity from the control of every other human superior. The limitation is obviously necessary, for otherwise the Governor-General of India in Council would be Sovereign, and indeed would exhibit a closer correspondence with the more salient features of Sovereignty than almost any other potentate on the face of the globe.
Those who have observed with what slowness definite conceptions are developed in the field of history and politics will be prepared to hear that this whole view of the nature of Sovereignty is older than Austin’s work. But, so far as my own knowledge extends, I do not think that any material portion of it is older than Hobbes. On the other hand, in the Leviathan of Hobbes and in the Chapter De Cive in his Treatise first published in Latin, called the Elementa Philosophiæ, the analysis of Government and Society and the determination of Sovereignty are so nearly completed that little could be added to them by Bentham and Austin. The originality of these later writers, and more particularly of Austin, resides in their much fuller examination of the conceptions dependent on the notion of Sovereignty—positive law, positive duty, sanction and right—in setting forth the relations of these conceptions to others superficially resembling them, in combating objections to the theory by which the entire group of notions are connected together, and in applying this theory to certain complex states of fact which had arisen since Hobbes wrote. There is, however, one great difference between Hobbes and his latest successor. The process of Hobbes was scientific, but his object was less scientific than political. When, with a keenness of intuition and lucidity of statement which have never been rivalled, he has made out a case for the universal theoretical existence of Sovereignty, it becomes clear that he has, to say the least, a strong preference for monarchies over aristocracies and democracies, or (to use the phraseology of the school which he founded) for individual over corporate Sovereignty. Those of his intellectual followers who would have repudiated his politics have often asserted that he has been misunderstood, and no doubt some superficial readers have supposed that he was pointing at despotism when he was really referring to the essentially unqualified power of the Sovereign whatever the form of the Sovereignty. But I do not think it can in candour be denied that his strong dislike of the Long Parliament and of the English Common law, as the great instrument of resistance to the Stuart Kings, has occasionally coloured the language which he uses in examining the nature of Sovereignty, Law, and Anarchy; nor is it matter for surprise that he should have been charged during his life with having devised his system with the secret intention of making his peace with the Protector, though the accusation itself is sufficiently refuted by dates. But Austin’s object is strictly scientific. If he has fallen into errors, he has been led into them by his philosophy, and his language scarcely ever betrays the colour of his political opinions.
Another considerable difference is this. Hobbes, it is well known, speculated on the origin of Government and Sovereignty. It is the one fact which some persons seem to have learned about him, and they appear to think his philosophy sufficiently condemned by it. But Austin barely enters on this enquiry; and indeed he occasionally, though perhaps inadvertently, uses language which almost seems to imply that Sovereignty and the conceptions dependent on it have an à priori existence. Now in this matter I myself hold that the method of Hobbes was correct. It is true that nothing can be more worthless in itself than Hobbes’s conjectural account of the origin of society and government. Mankind, he asserts, were originally in a state of war. They then made a compact under which every man abandoned his powers of aggression, and the result was Sovereignty, and through Sovereignty law, peace, and order. The theory is open to every sort of objection. There is no evidence of any stage of the supposed history, and the little we know of primitive man contradicts it. The universal disorder of the race in its infancy may be true of the contests of tribe with tribe and of family with family; but it is not true of the relations of individual man with individual man, whom we, on the contrary, first discern living together under a regimen which, if we are compelled to employ modern phraseology, we must call one of ultra-legality. And, in addition, the theory is open to precisely the same objection as the counter-hypothesis of Locke, that it antedates the modern juridical conception of Contract. But still I think that Hobbes did correctly in addressing himself to the problem, though he did little to solve it. The duty of enquiring, if not how Sovereignty arose, at all events through what stages it has passed, is in my judgment indispensable. It is only thus that we can assure ourselves in what degree the results of the Austinian analysis tally with facts.
There is, in truth, nothing more important to the student of jurisprudence than that he should carefully consider how far the observed facts of human nature and society bear out the assertions which are made or seem to be made about Sovereignty by the Analytical Jurists. To begin with, these assertions must be disentangled from one another. The first of them is that, in every independent community of men, there resides the power of acting with irresistible force on the several members of that community. This may be accepted as actual fact. If all the members of the community had equal physical strength and were unarmed, the power would be a mere result from the superiority of numbers; but, as a matter of fact, various causes, of which much the most important have been the superior physical strength and the superior armament of portions of the community have conferred on numerical minorities the power of applying irresistible pressure to the individuals who make up the community as a whole. The next assertion is that, in every independent political community, that is in every independent community neither in a state of nature on the one hand nor in a state of anarchy on the other, the power of using or directing the irresistible force stored-up in the society resides in some person or combination of persons who belong to the society themselves. The truth of this assertion is strongly suggested by a certain class of facts, particularly by the political facts of the Western and Modern world; but all the relevant facts, it must be recollected, have not been fully observed. The whole world, of which theorists on human nature are extremely apt to forget considerably more than half, and the entire history of the whole world, would have to be examined before we could be quite sure of the facts, and, if this were done, it may be that a great number of the facts would not so strongly suggest the conclusion, or, as I myself think, the assertion which we are considering would not so much be shown to be false as to be only verbally true, and therefore without the value which it possesses in societies of the type to which our own belongs. An assertion, however, which the great Analytical Jurists cannot be charged with making, but which some of their disciples go very near to hazarding, that the Sovereign person or group actually wields the stored-up force of society by an uncontrolled exercise of will, is certainly never in accordance with fact. A despot with a disturbed brain is the sole conceivable example of such Sovereignty. The vast mass of influences, which we may call for shortness moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its Sovereign. This is the point which, of all others, it is practically most necessary that the student should bear in mind, because it does most to show what the Austinian view of Sovereignty really is—that it is the result of Abstraction. It is arrived at by throwing aside all the characteristics and attributes of Government and Society except one, and by connecting all forms of political superiority together through their common possession of force. The elements neglected in the process are always important, sometimes of extreme importance, for they consist of all the influences controlling human action except force directly applied or directly apprehended; but the operation of throwing them aside for purposes of classification is, I need hardly say, perfectly legitimate philosophically, and is only the application of a method in ordinary scientific use.
To put the same thing in another way, that which we reject in the process of abstraction by which the conception of Sovereignty is reached is the entire history of each community. First of all, it is the history, the whole historical antecedents, of each society by which it has been determined where, in what person or group, the power of using the social force is to reside. The theory of Sovereignty neglects the mode in which the result has been arrived at, and thus is enabled to class together the coercive authority of the great King of Persia, of the Athenian Demos, of the later Roman Emperors, of the Russian Czar, and of the Crown and Parliament of Great Britain. Next, it is its history, the entire mass of its historical antecedents, which in each community determines how the Sovereign shall exercise or forbear from exercising his irresistible coercive power. All that constitutes this—the whole enormous aggregate of opinions, sentiments, beliefs, superstitions, and prejudices, of ideas of all kinds, hereditary and acquired, some produced by institutions and some by the constitution of human nature—is rejected by the Analytical Jurists. And thus it is that, so far as the restrictions contained in their definition of Sovereignty are concerned, the Queen and Parliament of our own country might direct all weakly children to be put to death or establish a system of lettres de cachet.
The procedure of the Analytical Jurists is closely analogous to that followed in mathematics and political economy. It is strictly philosophical, but the practical value of all sciences founded on abstractions depends on the relative importance of the elements rejected and the elements retained in the process of abstraction. Tried by this test, mathematical science is of greatly more value than political economy, and both of them than jurisprudence as conceived by the writers I am criticising. Similarly, the misconceptions to which the Austinian analysis gives rise are very similar to those which might be conceived as embarrassing the student of mixed mathematics, and which do actually embarrass the student of political economy. Just as it is possible to forget the existence of friction in nature and the reality of other motives in society except the desire to grow rich, so the pupil of Austin may be tempted to forget that there is more in actual Sovereignty than force, and more in laws which are the commands of sovereigns than can be got out of them by merely considering them as regulated force. I am not prepared to deny that Austin occasionally, and Hobbes frequently, express themselves as if their system were not limited throughout by the limitation which is at its base. All the great masters of Abstraction are, in fact, now and then betrayed into speaking or writing as if the materials thrown aside in the purely mental process were actually dross.
When, however, it has once been seen that in Austin’s system the determination of Sovereignty ought to precede the determination of Law, when it is once understood that the Austinian conception of Sovereignty has been reached through mentally uniting all forms of government in a group by conceiving them as stripped of every attribute except coercive force, and when it is steadily borne in mind that the deductions from an abstract principle are never from the nature of the case completely exemplified in facts, not only, as it seems to me, do the chief difficulties felt by the student of Austin disappear, but some of the assertions made by him at which the beginner is most apt to stumble have rather the air of self-evident propositions. I dare say you are sufficiently acquainted with his treatise to make it enough for me to mention some of these propositions, without the amplifications which are necessary for their perfectly accurate statement. Jurisprudence is the science of Positive Law. Positive Laws are Commands, addressed by Sovereigns to their Subjects, imposing a Duty, or condition of obligedness, or obligation, on those Subjects, and threatening a Sanction, or Penalty, in the event of disobedience to the Command. A Right is the faculty or power conferred by the Sovereign on certain members of the community to draw down the sanction on a fellow-subject violating a Duty. Now all these conceptions of Law, Right, Duty and Punishment depend upon the primary conception of Sovereignty, just as the lower links of a chain hanging down depend upon the highest link. But Sovereignty, for the purposes of Austin’s system, has no attribute but force, and consequently the view here taken of ‘law,’ ‘obligation’ and ‘right’ is a view of them regarded exclusively as products of coercive force. The ‘sanction’ thus becomes the primary and most important member of the series of notions and gives its colour to all the others. Probably nobody ever found a difficulty in allowing that laws have the character given to them by Austin, so far as such laws have proceeded from formal Legislatures. But many persons, and among them some men of powerful mind, have struggled against the position that the great mass of legal rules which have never been prescribed by the organ of State, conventionally known as the Legislature, are commands of the Sovereign. The customary law of all countries which have not included their law in Codes, and specially the English Common law, have often had an origin claimed for them independently of the Sovereign, and theories have been propounded on the subject which Austin scouts as mysterious and unintelligible. The way in which Hobbes and he bring such bodies of rules as the Common law under their system is by insisting on a maxim which is of vital importance to it—‘Whatever the Sovereign permits, he commands.’ Until customs are enforced by Courts of Justice, they are merely ‘positive morality,’ rules enforced by opinion, but, as soon as Courts of Justice enforce them, they become commands of the Sovereign, conveyed through the Judges who are his delegates or deputies. It is a better answer to this theory than Austin would perhaps have admitted that it is founded on a mere artifice of speech, and that it assumes Courts of Justice to act in a way and from motives of which they are quite unconscious. But, when it is clearly comprehended that, in this system, there are no associations with the Sovereign but force or power, the position that what Sovereigns permit they command becomes more easily intelligible. They command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment. The Common law consists of their commands because they can repeal or alter or re-state it at pleasure. The theory is perfectly defensible as a theory, but its practical value and the degree in which it approximates to truth differ greatly in different ages and countries. There have been independent political communities, and indeed there would still prove to be some of them if the world were thoroughly searched, in which the Sovereign, though possessed of irresistible power, never dreams of innovation, and believes the persons or groups, by whom laws are declared and applied, to be as much part of the necessary constitution of society as he is himself. There have again been independent political societies in which the Sovereign has enjoyed irresistible coercive power and has carried innovation to the farthest point; but in which every single association connected with law would have violence done to it if laws were regarded as his commands. The Tyrant of a Greek city often satisfied every one of Austin’s tests of Sovereignty; yet it was part of the accepted definition of a Tyrant that ‘he subverted the laws.’ Let it be understood that it is quite possible to make the theory fit in with such cases, but the process is a mere straining of language. It is carried on by taking words and propositions altogether out of the sphere of the ideas habitually associated with them.
Before proceeding to speak at some length in my next Lecture of these historical limitations on the practical value of Austin’s theories, let me repeat my opinion that if the method of discussion which seems to me correct had been followed in his treatise, and if the examination of Sovereignty had preceded the examination of the conceptions dependent on it, a considerable number of the statements which he has made respecting these latter conceptions would have appeared not merely innocent but self-evident. Law is here regarded as regulated force, simply because force is the one element which has been allowed to enter into the primary notion upon which all the others depend. The one doctrine of this school of jurists which is repugnant to lawyers would lose its air of paradox if an assumption were made which, in itself theoretically unobjectionable, manifestly approximates to practical truth as the course of history proceeds—the assumption that what the Sovereign might alter, but does not alter, he commands. The same arrangement would have a further advantage, as it seems to me, through the modifications it would necessitate in Austin’s manner of discussing Morality, though the subject is not one which can be here treated with completeness. The position at which many readers have stumbled—I do not affect to do more than state it in popular language—is that the sanction of moral rules, as such, is the disapprobation which one’s fellow-men manifest at their violation. It is sometimes construed to mean that the only motive for obeying moral rules is the fear of such disapprobation. Such a construction of Austin’s language is an entire misconception of his meaning; but, if the order of discussion which I advocate had been followed, I do not think it could ever possibly occur to any mind. Let us suppose Austin to have completed his analysis of Sovereignty and of the conceptions immediately dependent on it, law, legal right, and legal obligation. He would then have to examine that great mass of rules, which men in fact obey, which have some of the characteristics of laws, but which are not (as such) imposed by Sovereigns on subjects, and which are not (as such) enforced by the sanction supplied by Sovereign power. It would be, of course, incumbent on the philosophical jurist to examine these rules, because Sovereigns being by his hypothesis human superiors are, as human beings, subject to them. Austin has, in fact, examined them from this point of view in some of his most interesting passages. While insisting that Sovereignty is from the nature of the case incapable of legal limitation, he fully admits that Sovereigns are restrained from issuing some commands and determined to issue others by rules which, though they are not laws, are of extreme cogency. The Crown and Parliament of Great Britain are in his view Sovereign—a sovereign aristocracy, as he would call it—but, though this aristocracy could for purposes of argument do anything it pleased, it would be outraging all experience to assert that it does this. That great body of rules which is embodied in constitutional maxims keeps it from doing some things; that great body of rules which in ordinary usage are called moral keeps it from doing others. What common characteristics has this aggregate of rules which operate on men and on Sovereigns, like other men? Austin, as you know, names it ‘positive morality,’ and says that its sanction is opinion, or the disapproval of the bulk of the community following on its violation. Properly understood, this last is an obviously true proposition, for what is meant is that public disapprobation is the one sanction which all these rules have in common. The rule which keeps the Crown and Parliament from declaring murder legal, and the rule which keeps them from allowing the Queen to govern without Ministers, are connected together through the penalty attendant on a breach of them, which is the strong disapprobation of a majority of Englishmen; and it is their having a sanction of some kind which principally connects both rules with laws proper. But, though fear of opinion be a motive for obedience to both rules, it does not at all follow that the sole motive for obedience to both rules is fear of opinion. This fear would be allowed by most people to be the chief, if not the exclusive, motive for obedience to constitutional rules; but such an admission involves no necessary assertion whatever as to the complete sanction of moral rules. The truth is that Austin’s system is consistent with any ethical theory; and, if Austin seems to assert the contrary, I think the cause is to be sought in his firm conviction of the truth of his own ethical creed, which, I need not say, was Utilitarianism in its earlier shape. I do not, indeed, for a moment intend to deny that the careful study of Austin would probably modify the student’s view of morals. The discussion of ethics, like many others, is conducted amid much obscurity of thought, and there is no specific more sovereign for dispelling such obscurity than the association of the cardinal terms which enter into our enquiry with absolutely consistent meanings, and the employment of the terms with these meanings as a test for the detection of equivocal phraseology. It is the one inestimable service of the Analytical School to jurisprudence and morals that it furnishes them with a rigidly consistent terminology. But there is not the faintest reason for thinking that the intelligent and appreciative student of the system must necessarily be an utilitarian.
I shall state hereafter what I believe to be the true point of contact between Austin’s system and the utilitarian philosophy. Meantime, devotion to this philosophy, coupled with what I hold to be a faulty arrangement, has produced the most serious blemish in the ‘Province of Jurisprudence Determined.’ The 2nd, 3rd, and 4th Lectures are occupied with an attempt to identify the law of God and the law of Nature (so far as these last words can be allowed to have any meaning) with the rules required by the theory of utility. The lectures contain many just, interesting, and valuable observations; but the identification, which is their object, is quite gratuitous and valueless for any purpose. Written, I doubt not, in the honest belief that they would help to obviate or remove prejudices, they have attracted to Austin’s system a whole cloud of prejudices both from the theological and from the philosophical side. If, however, following the order I have suggested, Austin, after concluding the examination of the nature of Sovereignty and of positive law, had entered on an enquiry into the nature of the laws of God, it must have taken the form of an investigation of the question how far the characteristics of the human superiors called Sovereigns can be supposed to attach to an all-powerful and non-human ruler, and how many of the conceptions dependent on human Sovereignty must be considered as contained in his commands. I much doubt whether such an enquiry would have seemed called for in a treatise like Austin’s. Taken at its best, it is a discussion belonging not to the philosophy of law but to the philosophy of legislation. The jurist, properly so called, has nothing to do with any ideal standard of law or morals.
Lecture 13. – Sovereignty and Empire.
The word ‘law’ has come down to us in close association with two notions, the notion of order and the notion of force. The association is of considerable antiquity and is disclosed by a considerable variety of languages, and the problem has repeatedly suggested itself, which of the two notions thus linked together is entitled to precedence over the other, which of them is first in point of mental conception? The answer, before the Analytical Jurists wrote, would on the whole have been that ‘law’ before all things implied order. ‘Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations.’ With these words Blackstone begins that Chapter on ‘the Nature of Laws in General,’ which may almost be said to have made Bentham and Austin into Jurists by virtue of sheer repulsion. The Analytical Jurists, on the other hand, lay down unhesitatingly that the notion of force has priority over the notion of order. They say that a true law, the command of an irresistible Sovereign, enjoins a class of acts or a class of omissions either on a subject or on a number of subjects, placed by the command alike and indifferently under a legal obligation. The characteristic which thus as a matter of fact attaches to most true laws of binding a number of persons, taken indifferently, to a number of acts or omissions, determined generally, has caused the term ‘law’ to be extended by metaphor to all uniformities or invariable successions in the physical world, in the operations of the mind, or in the actions of mankind. Law when used in such expressions as the Law of Gravity the Law of Mental Association, or the Law of Rent is treated by the Analytical Jurists as a word wrested from its true meaning by an inaccurate figurative extension, and the sort of disrespect with which they speak of it is extremely remarkable. But I suppose that, if dignity and importance can properly be attributed to a word, there are in our day few words more dignified and more important than Law, in the sense of the invariable succession of phenomena, physical, mental, or even politico-economical. With this meaning, ‘law’ enters into a great deal of modern thought, and has almost become the condition of its being carried on. It is difficult at first to believe that such an expression as ‘the Reign of Law,’ in the sense in which the words have been popularised by the Duke of Argyll’s book, would have been strongly disliked by Austin; but his language leaves little doubt on the point, and more than once reminds us that, though his principal writings are not much more than forty years old, he wrote before men’s ideas were leavened to the present depth by the sciences of experiment and observation.
The statement that, in all languages, Law primarily means the command of a Sovereign, and has been applied derivatively to the orderly sequences of Nature is extremely difficult of verification; and it may be doubted whether its value, if it be true, would repay the labour of establishing its truth. The difficulty would be the greater because the known history of philosophical and juridical speculation shows us the two notions, which as a matter of fact are associated with Law, acting and reacting on one another. The order of Nature has unquestionably been regarded as determined by a Sovereign command. Many persons to whom the pedigree of much of modern thought is traceable, conceived the particles of matter which make up the universe as obeying the commands of a personal God just as literally as subjects obey the commands of a sovereign through fear of a penal sanction. On the other hand, the contemplation of order in the external world has strongly influenced the view taken of laws proper by much of the civilised part of mankind. The Roman theory of a Law Natural has affected the whole history of law, and this famous theory is in fact compounded of two elements, one furnished by an early perception, Greek in origin, of a certain order and regularity in physical nature, and the other attributable to an early perception, Roman in origin, of a certain order and uniformity among the observances of the human race. I need not here repeat the proof of this which I attempted to give in a volume published some years ago. Nobody is at liberty to censure men or communities of men for using words in any sense they please, or with as many meanings as they please, but the duty of the scientific enquirer is to distinguish the meanings of an important word from one another, to select the meaning appropriate to his own purposes, and consistently to employ the word during his investigations in this sense and no other. The laws with which the student of Jurisprudence is concerned in our own day are undoubtedly either the actual commands of Sovereigns, understood as the portion of the community endowed with irresistible coercive force, or else they are practices of mankind brought under the formula ‘a law is a command,’ by help of the formula, ‘whatever the Sovereign permits, is his command.’ From the point of view of the Jurist, law is only associated with order through the necessary condition of every true law that it must prescribe a class of acts or omissions, or a number of acts and omissions determined generally; the law which prescribes a single act not being a true law, but being distinguished as an ‘occasional’ or ‘particular’ command. Law, thus defined and limited, is the subject-matter of Jurisprudence as conceived by the Analytical Jurists. At present we are only concerned with the foundations of their system; and the questions which I wish to raise in the present Lecture are these: has the force which compels obedience to a law always been of such a nature that it can reasonably be identified with the coercive force of the Sovereign, and have laws always been characterised by that generality which, it is said, alone connects them with physical laws or general formulas describing the facts of nature? These enquiries may seem to you to lead us far afield, but I trust you will perceive in the end that they have interest and importance, and that they throw light on the limits which must be assigned in certain cases, not to the theoretical soundness, but to the practical value, of the speculations we have been discussing.
Let me recur to Sovereignty, as conceived by the Analytical Jurists. The readers of Austin’s treatise will remember his examination of a number of existing governments or (as he would say), forms of political superiority and inferiority, for the purpose of determining the exact seat of sovereignty in each of them. This is among the most interesting parts of his writings, and his sagacity and originality are nowhere more signally demonstrated. The problem had become much more complex than it was when Hobbes wrote, and even than it was at the date of Bentham’s earlier publications. Hobbes, a partisan in England, was a keen scientific observer of the political phenomena of the Continent, and there the political conditions open to his observation were (putting England aside) practically limited to despotism and anarchy. But, by the time Austin wrote, England, probably considered by Hobbes as the ground on which the battle of his principles was to be fought out, had long since become a ‘limited monarchy,’ an expression disliked by Hobbes’ successors almost as much as the thing was by Hobbes himself, and moreover the influences of the first French Revolution were beginning to have their play. France had lately become a limited monarchy, and almost all the other Continental States had given signs of becoming so. The complex political mechanism of the United States had arisen on the other side of the Atlantic, and the even more complicated systems of the German and Swiss Confederations in Continental Europe. The analysis of political societies, for the purpose of determining the seat of sovereignty, had obviously become much more difficult, and nothing can exceed the penetration evinced by Austin in applying this analysis to extant examples.
Nevertheless Austin fully recognises the existence of communities, or aggregates of men, in which no dissection could disclose a person or group answering to his definition of a Sovereign. In the first place, like Hobbes, he fully allows that there is a state of anarchy. Wherever such a state is found, the question of Sovereignty is being actively fought out, and the instance given by Austin is that which was never absent from Hobbes’s mind, the struggle between Charles the First and his Parliament. An acute critic of Hobbes and Austin, whom I am permitted to identify with Mr. Fitzjames Stephen, insists that there is a condition of dormant anarchy, and the reservation is doubtless made to meet such cases as that of the United States before the War of Secession. Here the seat of sovereignty was for years the subject of violent dispute in words or on paper, and many eminent Americans acquired fame by measures which compromised for a time a notorious difference of principle, and adjourned a struggle which was nevertheless inevitable. It is in fact quite possible that there may be deliberate abstinence from fighting out a question known to be undecided, and I see no objection to calling the temporary equilibrium thus produced a state of dormant anarchy. Austin further admits the theoretical possibility of a state of nature. He does not attach to it the importance which belongs to it in the speculations of Hobbes and others, but he allows its existence wherever a number of men, or of groups not numerous enough to be political, have not as yet been brought under any common or habitually acting authority. And, in speaking in this last sentence of groups not numerous enough to be political, I have introduced the most remarkable exception allowed by Austin to the rule that Sovereignty is universal among mankind. The passage occurs at p. 237 of the first volume of the third edition:—
‘Let us suppose that a single family of savages lives in absolute estrangement from every other community. And let us suppose that the father, the chief of this insulated family, receives habitual obedience from the mother and children. Now, since it is not a limb of another and larger community, the society formed by the parents and children, is clearly an independent society, and, since the rest of its members habitually obey its chief, this independent society would form a society political, in case the number of its members were not extremely minute. But, since the number of its members is extremely minute, it would, I believe, be esteemed a society in a state of nature; that is, a society consisting of persons not in a state of subjection. Without an application of the terms, which would somewhat smack of the ridiculous, we could hardly style the society a society political and independent, the imperative father and chief a monarch or sovereign, or the obedient mother and children subjects.’
And then Austin quotes from Montesquieu the doctrine that ‘Political power necessarily implies the union of several families.’
The effect of this passage then is that a society may be too small to admit of the application of the theory. The employment, Austin says, of his terminology would be ridiculous in such a case. I believe I shall be able to point out to you the significance of this appeal to our sense of absurdity, generally a a most dangerous criterion; but at present I merely ask you to note the seriousness of the admission, since the form of authority about which it is made, the authority of the Patriarch or Paterfamilias over his family, is, at least according to one modern theory, the element or germ out of which all permanent power of man over man has been gradually developed.
There are, however, another set of cases, known to us from sources of knowledge of which it is perhaps fair to say that (though Austin is in one sense a modern writer) they were hardly open when he wrote—cases in which the application of his principles is at least difficult and doubtful. It is from no special love of Indian examples that I take one from India, but because it happens to be the most modern precedent in point. My instance is the Indian Province called the Punjaub, the Country of the Five Rivers, in the state in which it was for about a quarter of a century before its annexation to the British Indian Empire. After passing through every conceivable phase of anarchy and dormant anarchy, it fell under the tolerably consolidated dominion of a half-military, half-religious oligarchy, known as the Sikhs. The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight, there could be no more perfect embodiment than Runjeet Singh of Sovereignty, as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier, he kept the most perfect order. He could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation, and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took, as his revenue, a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies; he had all material of power, and exercised it in various ways. But he never made a law. The rules which regulated the life of his subjects were derived from their immemorial usages, and these rules were administered by domestic tribunals, in families or village-communities—that is, in groups no larger or little larger than those to which the application of Austin’s principles cannot be effected, on his own admission, without absurdity.
I do not for a moment assert that the existence of such a state of political society falsifies Austin’s theory, as a theory. The great maxim by which objections to it are disposed of is, as I have so often said before, ‘What the Sovereign permits, he commands.’ The Sikh despot permitted heads of households and village-elders to prescribe rules, therefore these rules were his commands and true laws. Now we can see that an answer of this kind might have some force if it were made to an English lawyer who denied that the Sovereign in England had ever commanded the Common law. The Crown and Parliament command it, because the Crown and Parliament permit it; and the proof that they permit it is that they could change it. As a matter of fact, since the objection was first advanced, the Common law has been largely encroached upon by Act of Parliament, and, in our own day, it is possible that it may come to owe the whole of its binding force to statute. But my Oriental example shows that the difficulty felt by the old lawyers about the Common law may have once deserved more respect than it obtained from Hobbes and his successors. Runjeet Singh never did or could have dreamed of changing the civil rules under which his subjects lived. Probably he was as strong a believer in the independent obligatory force of such rules as the elders themselves who applied them. An Eastern or Indian theorist in law, to whom the assertion was made that Runjeet Singh commanded these rules, would feel it stinging him exactly in that sense of absurdity to which Austin admits the appeal to be legitimate. The theory remains true in such a case, but the truth is only verbal.
You must not suppose that I have been indulging in a merely curious speculation about a few extreme cases to which the theory of Sovereignty, and of Law founded on it, will not apply without straining of language. In the first place, the Punjaub under Runjeet Singh may be taken as a type of all Oriental communities in their native state, during their rare intervals of peace and order. They have ever been despotisms, and the commands of the despots at their head, harsh and cruel as they might be, have always been implicitly obeyed. But then these commands, save in so far as they served to organise administrative machinery for the collection of revenue, have not been true laws; they have been of the class called by Austin occasional or particular commands. The truth is that the one solvent of local and domestic usage in those parts of the world of which we have any real knowledge has been not the command of the Sovereign but the supposed command of the Deity. In India, the influence of the Brahminical treatises on mixed law and religion in sapping the old customary law of the country has always been great, and in some particulars, as I tried to explain on a former occasion, it has become greater under English rule.
It is important to observe that, for the purposes of the present enquiry, the state of political society which I have described as Indian or Oriental is a far more trustworthy clue to the former condition of the greatest part of the world than is the modern social organisation of Western Europe, as we see it before our eyes. It is a perhaps not unreasonable impression that Sovereignty was simpler and more easily discovered in the ancient than in the modern world. The critic of Hobbes and Austin, whom I before quoted, writes, ‘in every state of which we read, whether Greek, Phœnician, Italian, or Asiatic, there was a Sovereign of some sort whose authority was absolute while it lasted;’ and he adds that, ‘if Hobbes had tried to write an imaginary history of mankind he could not have constructed one better fitted for his purpose than the history of the foundation and establishment of the Roman Empire.’ I put aside for awhile the consideration of the Roman Empire, and my reasons for doing so will become apparent afterwards; but, if we give our attention to empires at all resembling that of the Romans in territorial extent, we shall find that, properly understood, they are very far from corresponding to the Great Leviathan imagined by Hobbes. We know something of the Assyrian and Babylonian Empires from Jewish records, and something of the Median and Persian Empires from Greek records. We learn from these that they were in the main tax-taking empires. We know that they raised enormous revenues from their subjects. We know that, for occasional wars of conquest, they levied vast armies from populations spread over immense areas. We know that they exacted the most implicit obedience to their occasional commands, or punished disobedience with the utmost cruelty. We know that the monarchs at their head were constantly dethroning petty kings and even transplanting whole communities. But amid all this, it is clear that in the main they interfered but little with the every day religious or civil life of the groups to which their subjects belonged. They did not legislate. The ‘royal statute’ and ‘firm decree’ which has been preserved to us as a sample of ‘law of the Medes and Persians which altereth not’ is not a law at all in the modern juridical acceptation of the term. It is what Austin would call a ‘particular command,’ a sudden, spasmodic, and temporary interference with ancient multifarious usage left in general undisturbed. What is even more instructive is that the famous Athenian Empire belonged to the same class of sovereignties as the Empire of the Great King. The Athenian Assembly made true laws for residents on Attic territory, but the dominion of Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating Empire.
The difficulty of employing Austin’s terminology of these great governments is obvious enough. How can it conduce to clear thinking to speak of the Jewish law as commanded at one period by the Great King at Susa? The cardinal rule of the Analytical Jurists, ‘what the Sovereign permits, he commands,’ remains verbally true, but against its application in such a case there lies an appeal to a higher tribunal of which Austin allows the jurisdiction, our sense of the ridiculous.
I have now reached the point at which I can conveniently state my own opinion of the practical limitations which must be given to the system of the Analytical Jurists, in order that it may possess, I will not say theoretical truth, but practical value. The Western world, to which they confined their attention, must be conceived as having undergone two sets of changes. The States of modern Europe must be conceived as having been formed in a manner different from the great empires of antiquity (save one), and from the modern empires and kingdoms of the East, and a new order of ideas on the subject of legislation must be conceived as having been introduced into the world through the empire of the Romans. Unless these changes had taken place, I do not believe that the system would ever have been engendered in the brain of its authors. Wherever these changes have not taken place, I do not believe the application of the system to be of value.
The most nearly universal fact which can be asserted respecting the origin of the political communities called States is that they were formed by the coalescence of groups, the original group having been in no case smaller than the patriarchal family. But in the communities which came into existence before the Roman Empire, and in those which have been slightly affected by it or not at all, this coalescence was soon arrested. There are some traces of the process everywhere. The hamlets of Attica coalesce to form the Athenian State; and the primitive Roman State is formed by the coalescence of the minute communities on the original hills. In very many Indian village-communities there are signs of smaller elements combining to make them up. But this earlier coalescence soon stops. In a later stage, political communities, wearing a superficial resemblance to the Roman Empire, and often of very great territorial extent, are constructed by one community conquering another or one chieftain, at the head of a single community or tribe, subjugating great masses of population. But, independently of the Roman Empire and its influence, the separate local life of the small societies included in these great States was not extinguished or even much enfeebled. They continued as the Indian village-community has continued, and indeed, even in their most glorious forms, they belonged essentially to that type of society. But the process of change by which the States of the modern world were formed has been materially different from this. The smaller groups have been much more completely broken up and absorbed in the larger, the larger have again been swallowed up in still wider, and these in yet wider areas. Local life and village custom have not, it is true, decayed everywhere in the same degree. There is much more of them in Russia than in Germany; more of them in Germany than in England; more of them in England than in France. But on the whole, whenever the modern State is formed, it is an assemblage of fragments considerably smaller than those which made up empires of the earlier type, and considerably liker to one another.
It would be rash to lay down confidently which is cause and which is consequence, but unquestionably this completer trituration in modern societies of the groups which once lived with an independent life has proceeded concurrently with much greater activity in legislation. Wherever the primitive condition of an Aryan race reveals itself either through historical records or through the survival of its ancient institutions, the organ which in the elementary group corresponds to what we call the legislature, is everywhere discernible. It is the Village Council, sometimes owning a responsibility to the entire body of villagers, sometimes disclaiming it, sometimes overshadowed by the authority of an hereditary chief, but never altogether obscured. From this embryo have sprung all the most famous legislatures of the world, the Athenian Ekklesia, the Roman Comitia, Senate and Prince, and our own Parliament, the type and parent of all the ‘collegiate sovereignties’ (as Austin would call them) of the modern world, or in other words of all governments in which sovereign power is exercised by the people or shared between the people and the King. Yet, if we examine the undeveloped form of this organ of State, its legislative faculty is its least distinct and least energetic faculty. In point of fact, as I have observed elsewhere, the various shades of the power lodged with the Village Council, under the empire of the ideas proper to it, are not distinguished from one another, nor does the mind see a clear difference between making a law, declaring a law, and punishing an offender against a law. If the powers of this body must be described by modern names, that which lies most in the background is legislative power, that which is most distinctly conceived is judicial power. The laws obeyed are regarded as having always existed, and usages really new are confounded with the really old.
The village-communities of the Aryan race do not therefore exercise true legislative power so long as they remain under primitive influences. Nor again is legislative power exercised in any intelligible sense of the words by the Sovereigns of those great States, now confined to the East, which preserve the primitive local groups most nearly intact. Legislation, as we conceive it, and the break up of local life appear to have universally gone on together. Compare the Hindoo village-community in India with the Teutonic village-community in England. The first of them, among all the institutions of the country which are not modern and of British construction, is far the most definite, far the most strongly marked, far the most highly organised. Of the latter, the ancient English community, the vestiges may certainly be tracked, but the comparative method has to be called in, and the written law and written history of many centuries searched, before their significance can be understood and the broken outline restored to completeness. It is impossible not to connect the differing vitality of the same institution with certain other phenomena of the two countries. In India, Mogul and Mahratta, following a long series of earlier conquerors, have swept over the village-communities, but after including them in a nominal empire they have imposed no permanent obligation beyond the payment of tax or tribute. If on some rare occasions they have attempted the enforced religious conversion of subjugated populations, the temples and the rites have been at most changed in the villages, while the civil institutions have been left untouched. Here in England the struggle between the central and the local power has followed a very different course. We can see plainly that the King’s law and the King’s courts have been perpetually contending against the local law and the local courts, and the victory of the King’s law has drawn after it the long series of Acts of Parliament founded on its principles. The whole process can only be called legislation ever increasing in energy, until the ancient multifarious law of the country has been all but completely abolished, and the old usages of the independent communities have degenerated into the customs of manors or into mere habits having no sanction from law.
There is much reason to believe that the Roman Empire was the source of the influences which have led, immediately or ultimately, to the formation of highly-centralised, actively-legislating, States. It was the first great dominion which did not merely tax, but legislated also. The process was spread over many centuries. If I had to fix the epochs of its commencement and completion, I should place them roughly at the issue of the first Edictum Provinciale, and at the extension of the Roman citizenship to all subjects of the empire, but no doubt the foundations of the change were laid considerably before the first period, and it was continued in some ways long after the last. But, in the result, a vast and miscellaneous mass of customary law was broken up and replaced by new institutions. Seen in this light, the Roman Empire is accurately described in the Prophecy of Daniel. It devoured, brake in pieces, and stamped the residue with its feet.
The irruption of the barbarian races into the Empire diffused through the communities included in it a multitude of the primitive tribal and village ideas which they had lost. Nevertheless no society directly or indirectly influenced by the Empire has been altogether like the societies formed on that more ancient system which the immobility of the East has continued till we can actually observe it. In all commonwealths of the first kind, Sovereignty is more or less distinctly associated with legislative power, and the direction in which this power was to be exercised was in a considerable number of countries clearly chalked out by the jurisprudence which the Empire left behind it. The Roman law, from which the most ancient legal notions had been almost wholly expelled, was palpably the great solvent of local usage everywhere. There are thus two types of organised political society. In the more ancient of these, the great bulk of men derive their rules of life from the customs of their village or city, but they occasionally, though most implicitly, obey the commands of an absolute ruler who takes taxes from them but never legislates. In the other, and the one with which we are most familiar, the Sovereign is ever more actively legislating on principles of his own, while local custom and idea are ever hastening to decay. It seems to me that in the passage from one of these political systems to another, laws have distinctly altered their character. The Force, for example, which is at the back of law, can only be called the same by a mere straining of language. Customary law—a subject on which all of Austin’s remarks seem to me comparatively unfruitful—is not obeyed, as enacted law is obeyed. When it obtains over small areas and in small natural groups, the penal sanctions on which it depends are partly opinion, partly superstition, but to a far greater extent an instinct almost as blind and unconscious as that which produces some of the movements of our bodies. The actual constraint which is required to secure conformity with usage is inconceivably small. When, however, the rules which have to be obeyed once emanate from an authority external to the small natural group and forming no part of it, they wear a character wholly unlike that of a customary rule. They lose the assistance of superstition, probably that of opinion, certainly that of spontaneous impulse. The force at the back of law comes therefore to be purely coercive force to a degree quite unknown in societies of the more primitive type. Moreover, in many communities, this force has to act at a very great distance from the bulk of the persons exposed to it, and thus the Sovereign who wields it has to deal with great classes of acts and with great classes of persons, rather than with isolated acts and with individuals. Among the consequences of this necessity are many of the characteristics sometimes supposed to be inseparable from laws, their indifferency, their inexorableness, and their generality.
And as the conception of Force associated with laws has altered, so also, I think, has the conception of Order. In the elementary social groups formed by men of the Aryan race, nothing can be more monotonous than the routine of village custom. Nevertheless, in the interior of the households which together make up the village-community, the despotism of usage is replaced by the despotism of paternal authority. Outside each threshold is immemorial custom blindly obeyed; inside is the Patria Potestas exercised by a half-civilised man over wife, child, and slave. So far then as laws are commands, they would be associated in this stage of society less with invariable order than with inscrutable caprice; and it is easier to suppose the men of those times looking to the succession of natural phenomena, day and night, summer and winter, for types of regularity, than to the words and actions of those above them who possessed coercive power over them.
The Force then which is at the back of laws was not always the same. The Order which goes with them was not always the same. They have only gradually attracted to themselves the attributes which seem essential to them not only in the popular view but to the penetrating eye of the Analytical Jurist. Their generality and their dependence on the coercive force of a Sovereign are the result of the great territorial area of modern States, of the comminution of the sub-groups which compose them, and above all of the example and influence of the Roman Commonwealth under Assembly, Senate, and Prince, which from very early times was distinguished from all other dominations and powers in that it brake up more thoroughly that which it devoured.
It has sometimes been said of great systems of thought that nothing but an accident prevented their coming into existence centuries before their actual birth. No such assertion can be made of the system of the Analytical Jurists, which could not have been conceived in the brain of its authors till the time was fully ripe for it. Hobbes’s great doctrine is plainly the result of a generalisation which he had opportunities unrivalled in that day for effecting, since during the virility of his intellect he was as much on the Continent as in England, first as a travelling tutor and afterwards as an exile flying from civil disturbances. Independently of English affairs, which he certainly viewed as a strong partisan, the phenomena which he had to observe were governments rapidly centralising themselves, local privileges and jurisdictions in extreme decay, the old historical bodies, such as the French Parliaments, tending for the time to become furnaces of anarchy, the only hope of order discoverable in kingly power. These were among the palpable fruits of the wars which ended in the Peace of Westphalia. The old multiform local activity of feudal or quasi-feudal society was everywhere enfeebled or destroyed; if it had continued, the system of this great thinker would almost certainly have never seen the light; we have heard of a village Hampden, but a village Hobbes is inconceivable. By the time Bentham wrote, and while he was writing, the conditions which suggest the Analytical System of Jurisprudence presented themselves still more distinctly. A Sovereign who was a democracy commenced, and a Sovereign who was a despot completed, the Codification of the laws of France. There had never before in the modern world been so striking an exemplification of the proposition that, what the Sovereign permits, he commands, because he could at any time substitute an express command for his tacit permission, nor so impressive a lesson in the far-reaching and on the whole most beneficial results which might be expected from the increased activity of Sovereigns in legislation proper.
No geniuses of an equally high order so completely divorced themselves from history as Hobbes and Bentham, or appear, to me at all events, so completely under the impression that the world had always been more or less as they saw it. Bentham could never get rid of the idea that imperfect or perverse applications of his principles had produced many things with which they had nothing whatever to do, and I know no more striking instance of an historical misconception (though at the time a very natural one) than Hobbes’s comparison of privileged corporations and organised local groups to the parasites which the physiology then becoming fashionable had shown to live in the internal membranes of the human body. We now know that, if we are forced to use a physiological illustration, these groups must rather be compared to the primary cells out of which the whole human body has been built up.
But, if the Analytical Jurists failed to see a great deal which can only be explained by the help of history, they saw a great deal which even in our day is imperfectly seen by those who, so to speak, let themselves drift with history. Sovereignty and Law, regarded as facts, had only gradually assumed a shape in which they answered to the conception of them formed by Hobbes, Bentham, and Austin, but the correspondence really did exist by their time, and was tending constantly to become more perfect. They were thus able to frame a juridical terminology which had for one virtue that it was rigidly consistent with itself, and for another that, if it did not completely express facts, the qualifications of its accuracy were never serious enough to deprive it of value and tended moreover to become less and less important as time went on. No conception of law and society has ever removed such a mass of undoubted delusion. The force at the disposal of Sovereigns did in fact act largely through laws as understood by these Jurists, but it acted confusedly, hesitatingly, with many mistakes and vast omissions. They for the first time saw all that it was capable of effecting, if it was applied boldly and consistently. All that has followed is a testimony to their sagacity. I do not know a single law-reform effected since Bentham’s day which cannot be traced to his influence; but a still more startling proof of the clearing of the brain produced by this system, even in an earlier stage, may be found in Hobbes. In his ‘Dialogue of the Common Laws,’ he argues for a fusion of law and equity, a registration of titles to land, and a systematic penal code—three measures which we are on the eve of seeing carried out at this very moment.
The capital fact in the mechanism of modern States is the energy of legislatures. Until the fact existed, I do not, as I have said, believe that the system of Hobbes, Bentham and Austin could have been conceived; wherever it exhibits itself imperfectly, I think that the system is never properly appreciated. The comparative neglect with which German writers have treated it seems to me to be explained by the comparative recency of legislative activity in Germany. It is however impossible to observe on the connection between legislation and the analytical theory of law without having the mind carried to the famous addition which Bentham and Austin engrafted on the speculations of Hobbes. This addition consisted in coupling them with the doctrine or theory of utility—of the greatest happiness of the greatest number considered as the basis of law and morals. What, then, is the connection, essential or historical, between the utilitarian theory and the analytical theory of law? I certainly do not affect to be able, especially at the close of a lecture, to exhaust a subject of such extent and difficulty, but I have a few words to say of it. To myself the most interesting thing about the theory of Utility is that it presupposes the theory of Equality. The greatest number is the greatest number of men taken as units; ‘one shall only count for one,’ said Bentham emphatically and over and over again. In fact, the most conclusive objection to the doctrine would consist in denying this equality; and I have myself heard an Indian Brahmin dispute it on the ground that, according to the clear teaching of his religion, a Brahmin was entitled to twenty times as much happiness as anybody else. Now how did this fundamental assumption of equality, which (I may observe) broadly distinguishes Bentham’s theories from some systems with which it is supposed to share the reproach of having pure selfishness for its base—how did it suggest itself to Bentham’s mind? He saw plainly—nobody more clearly—that men are not as a fact equal; the proposition that men are by nature equal he expressly denounced as an anarchical sophism. Whence then came the equality which is a postulate of his famous doctrine about the greatest happiness of the greatest number? I venture to think that this doctrine is nothing more than a working rule of legislation, and that in this form it was originally conceived by Bentham. Assume a numerous and tolerably homogeneous community—assume a Sovereign whose commands take a legislative shape—assume great energy, actual or potential, in this legislature—the only possible, the only conceivable, principle which can guide legislation on a great scale is the greatest happiness of the greatest number. It is in fact a condition of legislation which, like certain characteristics of laws, has grown out of the distance from which sovereign power acts upon subjects in modern political societies, and of the necessity under which it is thereby placed of neglecting differences, even real differences, between the units of which they are composed. Bentham was in truth neither a jurist nor a moralist in the proper sense of the word. He theorises not on law but on legislation; when carefully examined, he may be seen to be a legislator even in morals. No doubt his language seems sometimes to imply that he is explaining moral phenomena; in reality he wishes to alter or re-arrange them according to a working rule gathered from his reflections on legislation. This transfer of his working rule from legislation to morality seems to me the true ground of the criticisms to which Bentham is justly open as an analyst of moral facts.