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John Maclaren & Son.
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Edinburgh.
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.M232
1880
* M. Wenter, Jr.
THE
EARLY HISTORY OF INSTITUTIONS
BY THE SAME AUTHOR.
VILLAGE COMMUNITIES IN THE EAST
AND WEST. Third Edition. 8vo. 12s.
ANCIENT LAW: ITS CONNECTION WITH THE
EARLY HISTORY OF SOCIETY, AND ITS RELATION TO
MODERN IDEAS. Seventh Edition. 8vo. 12s.
LECTURES
ON THE
EARLY HISTORY OF INSTITUTIONS
BY SIR HENRY SUMNER MAINE
K.C.S.I. LL.D. F.R.S.
AUTHOR OF 'ANCIENT LAW' AND 'VILLAGE-COMMUNITIES IN THE EAST AND WEST'
THIRD EDITION
LONDON
JOHN MURRAY, ALBEMARLE STREET
1880
All right of translation is reserved
LONDON: PRINTED BY
SPOTTISWOODE AND CO., NEW-STREET SQUARE
AND PARLIAMENT STREET
ΤΟ
WHITLEY STOKES, ESQ.
SECRETARY TO THE GOVERNMENT OF INDIA IN THE LEGISLATIVE DEPARTMENT
THIS VOLUME IS DEDICATED
IN RECOLLECTION OF A LONG OFFICIAL CONNECTION
AND STILL LONGER FRIENDSHIP
¡
9-29-37
PREFACE.
In the Lectures printed in this Volume an attempt
is made to carry farther in some particulars the line of
investigation pursued by the Author in an earlier work
<
on Ancient Law.' The fortunes of the legal system
which then supplied him with the greatest number of
his illustrations have been strikingly unlike those of
another body of law from which he has now endea-
voured to obtain some new materials for legal and
social history. The Roman Law has never ceased to
be spoken of with deep respect, and it is in fact the
source of the greatest part of the rules by which
civil life is still governed in the Western World. The
Ancient Irish Law, the so-called Brehon Law, has
been for the most part bitterly condemned by the few
writers who have noticed it; and, after gradually losing
whatever influence it once possessed in the country in
a
viii
PREFACE.
which it grew up, in the end it was forcibly sup-
pressed. Yet the very causes which have denied a
modern history to the Brehon Law have given it a
special interest of its own in our day through the
arrest of its development; and this interest, the Author
hopes, is sufficient to serve as his excuse for making
the conclusions it suggests the principal subject of the
Lectures now published, except the last three.
The obligations of the Author to various Gentle-
men for instruction derived from their published
writings or private communications are acknowledged
in the body of the work, but he has to express his
especial thanks to the Bishop of Limerick, and to
Professor Thaddeus O'Mahony, for facilities of access
to the still unpublished translations of Brehon manu-
scripts, as well as for many valuable suggestions.
The Lectures (with the omission of portions) have
all been delivered at Oxford.
27 Cornwall Gardens, London, S.W.
November 1874.
CONTENTS.
LECTURE
I. NEW MATERIALS FOR THE EARLY HISTORY OF IN-
PAGE
STITUTIONS
1
II.
THE ANCIENT IRISH LAW
24
III. KINSHIP AS THE BASIS OF SOCIETY
64
IV. THE TRIBE AND THE LAND.
98_
V. THE CHIEF AND HIS ORDER
119.
VI. THE CHIEF AND THE LAND
•
VII. ANCIENT DIVISIONS OF THE FAMILY.
VIII. THE GROWTH AND DIFFUSION OF PRIMITIVE IDEAS
IX. THE PRIMITIVE FORMS OF LEGAL REMEDIES-I.
X. THE PRIMITIVE FORMS OF LEGAL REMEDIES-II.
XI. THE EARLY HISTORY OF THE SETTLED PROPERTY OF
. 147
. 185
225
250
. 279
MARRIED WOMEN
XII. SOVEREIGNTY
XIII. SOVEREIGNTY AND EMPIRE
INDEX.
306
342
371
• 401
LECTURES
ON THE
EARLY HISTORY OF INSTITUTIONS.
LECTURE I.
NEW MATERIALS FOR THE EARLY HISTORY
OF INSTITUTIONS.
THE SOURCES of information concerning the early
history of institutions which have been opened to us
during the last few years are numerous and valuable.
On one subject in particular, which may be confi-
dently said to have been almost exclusively investi-
gated till lately by writers who had followed a false
path, the additions to our knowledge are of special
interest and importance. We at length know some-
thing concerning the beginnings of the great institu-
tion of Property in Land. The collective ownership of
the soil by groups of men either in fact united by
blood-relationship, or believing or assuming that they
are so united, is now entitled to take rank as an
ascertained primitive phenomenon, once universally
characterising those communities of mankind between
whose civilisation and our own there is any distinct
B
2
LANDED PROPERTY IN RUSSIA.
LECT. I.
connection or analogy. The evidence has been found
on all sides of us, dimly seen and verifiable with diffi-
culty in countries which have undergone the enormous
pressure of the Roman Empire, or which have been
strongly affected by its indirect influence, but perfectly
plain and unmistakeable in the parts of the world,
peopled by the Aryan race, where the Empire has
made itself felt very slightly or not at all. As regards
the Sclavonic communities, the enfranchisement of the
peasantry of the Russian dominions in Europe has
given a stimulus to enquiries which formerly had at-
tractions for only a few curious observers, and the
amount of information collected has been very large.
We now know much more clearly than we did before
that the soil of the older provinces of the Russian
Empire has been, from time immemorial, almost exclu-
sively distributed among groups of self-styled kins-
men, collected in cultivating village-communities, self-
organised and self-governing; and, since the great
measure of the present reign, the collective rights of
these communities, and the rights and duties of their
members in respect of one another, are no longer en-
tangled with and limited by the manorial privileges of
an owner-in-chief. There is also fresh evidence that
the more backward of the outlying Sclavonic societies
are constituted upon essentially the same model; and it
is one of the facts with which the Western world will
some day assuredly have to reckon, that the political
LECT. I.
VESTIGES OF VILLAGE-COMMUNITY.
Co
3
ideas of so large a portion of the human race, and
its ideas of property also, are inextricably bound up
with the notions of family interdependency, of col-
lective ownership, and of natural subjection to
patriarchal power. The traces of the ancient social
order in the Germanic and Scandinavian countries
are, I need scarcely say, considerably fainter, and
tend always to become more obscured; but the re-
examination of the written evidence respecting ancient
Teutonic life and custom proceeds without intermis-
sion, and incidentally much light has been thrown on
the early history of property by the remarkable work
of Sohm ('Fränkische Reichs-und Gerichtsverfass-
ung'). The results obtained by the special method
of G. L. Von Maurer have meantime been verified by
comparison with phenomena discovered in the most
unexpected quarters. The researches of M. de
Laveleye, in particular, have been conducted over a
field of very wide extent; and, although I dissent
from some of the economic conclusions to which he
has been led, I cannot speak too highly of the value
of the materials collected by him, and described in
the recently published volume which he has entitled
La Propriété et ses Formes Primitives.' I have
not observed that the vestiges left on the soil and
law of England and of the Scottish Lowlands by the
ancient Village-Community have been made the
subject of any published work since the monograph
B 2
4
VESTIGES OF VILLAGE-COMMUNITY.
LECT. I.
of Nasse on the 'Land Community of the Middle
Ages' was given to the world, and since the lectures
delivered in this place three years since appeared in
print. Nobody, however, who knows the carefulness
with which an English Court of Justice sifts the ma-
terials brought before it will wonder at my attaching
a special importance to the judgment of Lord Chan-
cellor Hatherley, given in a difficult case which arose
through a dispute between different classes of persons
interested in a manor, Warrick against Queen's Col-
lege, Oxford (reported in 6 Law Reports, Chancery
Appeals, 716). It appears to me to recognise the traces
of a state of things older than the theoretical basis of
English Real Property Law, and, so far as it goes, to
allow that the description of it given here was correct.
Meanwhile, if I may judge from the communications
which do not cease to reach me from India, and from
various parts of this country, the constitution of the
Village-Community, as it exists, and as it existed, is
engaging the attention of a large number of indus-
trious observers, and the facts bearing upon the sub-
ject, which I hope will some day be made public,
prove to exist in extraordinary abundance.
There was no set of communities which until
recently supplied us with information less in amount
and apparent value concerning the early his-
tory of law than those of Celtic origin. This was
the more remarkable, because one particular group
LECT I.
*
CELTIC SOCIETIES.
5
of small Celtic societies, which have engrossed more
than their share of the interest of this country-the
clans of the Scottish Highlands-had admittedly
retained many of the characteristics, and in particular
the political characteristics, of a more ancient condi-
tion of the world, almost down to our own day. But
the explanation is, that all Celtic societies were until
recently seen by those competent to observe them
through a peculiarly deceptive medium. A veil
spread by the lawyers, a veil woven of Roman law
and of that comparatively modern combination of
primitive and Roman law which we call feudalism,
hung between the Highland institutions and the
shrewd investigating genius of the Scottish Low-
landers. A thick mist of feudal law hid the ancient
constitution of Irish society from English observa-
tion, and led to unfounded doubts respecting the
authenticity of the laws of Wales. The ancient or-
ganisation of the Celts of Gaul, described by Cæsar
with the greatest clearness and decisiveness, appeared
to have entirely disappeared from France, partly
because French society was exclusively examined for
many centuries by lawyers trained either in Roman
or in highly feudalised law, but partly also because
the institutions of the Gallic Celts had really passed
under the crushing machinery of Roman legislation.
I do not, indeed, mean to say that this darkness has
not recently given signs of lifting. It has been re-
6
CELTIC INSTITUTIONS.
LECT. I.
cognised that the collections of Welsh laws published
by the Record Commission, though their origin and
date are uncertain, are undoubtedly bodies of genuine
legal rules; and, independently of the publications to
which I am about to direct attention, the group of
Irish scholars, distinguished by remarkable sobriety
of thought, which has succeeded a school almost in-
famous for the unchastened license of its speculations
on history and philology, had pointed out many
things in Irish custom which connected it with the
archaic practices known to be still followed or to
have been followed by the Germanic races. As early
as 1837 Mr. W. F. Skene, in a work of much value
called 'The Highlanders of Scotland,' had corrected
many of the mistakes on the subject of Highland
usage into which writers exclusively conversant with
feudal rules had been betrayed; and the same emi-
nent antiquary, in an appendix to his edition of the
Scottish chronicler, Fordun, published in 1872, con-
firms evidence which had reached me in considerable
quantities from private sources to the effect that vil-
lage-communities with 'shifting severalties' existed
in the Highlands within living memory. Quite re-
cently, also, M. Le Play, Mr. Cliffe Leslie, and others
have come upon plain traces of such communities in
several parts of France. A close re-examination of the
Custumals or manuals of feudal rules plentiful in French
legal literature, led farther to some highly interesting
LECT. I.
ANCIENT FRENCH COMMUNITIES.
7
results. It clearly appeared from them that com-
munities of villeins were constantly found on the
estates of the French territorial nobility. The legal
writers have always represented these as voluntary
associations, which were rather favoured by the lord
on account of the greater certainty and regularity
with which their members rendered him suit and
service. As a rule, when a tenant holding by base
tenure died, the lord succeeded in the first instance
to his land, a rule of which there are plain traces in
our English law of copyhold. But it is expressly
stated that, in the case of an association of villeins,
the lord did not resume their land, being supposed to
be compensated by their better ability to furnish his
dues. Now that the explanation has once been
given, there can be no doubt that these associations
were not really voluntary partnerships, but groups of
kinsmen; not, however, so often organised on the
ordinary type of the Village-Community as on that of
the House-Community, which has recently been ex-
amined in Dalmatia and Croatia. Each of them was
what the Hindoos call a Joint Undivided Family, a
collection of assumed descendants from a common an-
cestor, preserving a common hearth and common meals
during several generations. There was no escheat of
the land to the lord on a death, because such a cor-
poration never dies, and the succession is perpetual.
But much the most instructive contribution to
ου
ANCIENT LAWS OF IRELAND.
LECT. I.
our knowledge of the ancient Celtic societies has
been furnished by the Irish Government, in the
translations of the Ancient Laws of Ireland, which
have been published at its expense. The first volume
of these translations was published in 1865; the se-
cond in 1869; the third, enriched with some valuable
prefaces, has only just appeared. No one interested
in the studies which are now occupying us could fail
to recognise the importance of the earlier volumes,
but there was much difficulty in determining their
exact bearing on the early history of Celtic institu-
tions. The bulk of the law first published consisted
in a collection of rules belonging to what in our
modern legal language we should call the Law of
Distress. Now, in very ancient bodies of rules the
Law of Distress, as I shall endeavour to explain
hereafter, is undoubtedly entitled to a very different
place from that which would be given to it in any
modern system of jurisprudence; but still it is a
highly special branch of law in any stage of develop-
ment. There is, however, another more permanent
and more serious cause of embarrassment in drawing
conclusions from these laws. Until comparatively
lately they were practically unintelligible; and they
were restored to knowledge by the original transla-
tors, Dr. O'Donovan and Dr. O'Curry, two very re-
markable men, both of whom are now dead. The
translations have been carefully revised by the
LECT. I.
ANCIENT LAWS OF IRELAND.
9
learned editor of the Irish text; but it is probable
that several generations of Celtic scholars will have
had to interchange criticisms on the language of the
laws before the reader who approaches them without
any pretension to Celtic scholarship can be quite
sure that he has the exact meaning of every passage
before him. The laws, too, I need scarcely say, are
full of technical expressions; and the greatest scholar
who has not had a legal training-and, indeed, up to
a certain point when he has had a legal training-
may fail to catch the exact excess or defect of mean-
ing which distinguishes a word in popular use from
the same word employed technically. Such consi-
derations suggest the greatest possible caution in
dealing with this body of rules. In what follows I
attempt to draw inferences only when the meaning
and drift of the text seem reasonably certain, and I
have avoided some promising lines of enquiry which
would lead us through passages of doubtful sig-
nification.
The value which the Ancient Laws of Ireland, the
so-called Brehon laws, will possess when they are
completely published and interpreted, may, I think,
be illustrated in this way. Let it be remembered
that the Roman Law, which, next to the Christian
Religion, is the most plentiful source of the rules go-
verning actual conduct throughout Western Europe,
is descended from a small body of Aryan customs re-
10
ANCIENT ROMAN AND IRISH LAW.
LECT. I,
Let
duced to writing in the fifth century before Christ,
and known as the Twelve Tables of Rome.
it farther be recollected that this law was at first,
expanded and developed, not at all, or very slightly,
by legislation, but by a process which we may
perceive still in operation in various communities—the
juridical interpretation of authoritative texts by
successive generations of learned men. Now, the
largest collection of Irish legal rules, which has
come down to us, professes to be an ancient Code,
with an appendage of later glosses and commentaries;
and, if its authenticity could be fully established, this
ancient Irish Code would correspond historically to
the Twelve Tables of Rome, and to many similar
bodies of written rules which appear in the early
history of Aryan societies. There is reason, how-
ever, to think that its claims to antiquity cannot be
sustained to their full extent, and that the Code itself
is an accretion of rules which have clustered round
an older nucleus. But that some such kernel or
perhaps several such kernels of written law existed,
is highly probable, and it is also probable that the
whole of the Brehon law consists of them and of
accumulations formed upon them. It is farther
probable that the process by which these accumula-
tions were formed was, as in the infancy of the
Roman State, juridical interpretation. According to
the opinion which I follow, the interesting fact about
LECT. I.
INFLUENCE OF THE ROMAN EMPIRE.
11
the ancient Irish law is, that this process was ex-
clusive, and that none of the later agencies by which
law is transformed came into play. The Brehon
laws are in no sense a legislative construction, and
thus they are not only an authentic monument of a
very ancient group of Aryan institutions; they are
also a collection of rules which have been gradually
developed in a way highly favourable to the preser-
vation of archaic peculiarities. Two causes have
done most to obscure the oldest institutions of the
portion of the human race to which we belong: one
has been the formation throughout the West of strong
centralised governments, concentrating in themselves
the public force of the community, and enabled to
give to that force upon occasion the special form of
legislative power; the other has been the influence,
direct and indirect, of the Roman Empire, drawing
with it an activity in legislation unknown to the
parts of the world which were never subjected to it.
Now, Ireland is allowed on all hands to have never
formed part of the Empire; it was very slightly
affected from a distance by the Imperial law; and,
even if it be admitted that, during certain intervals
of its ancient history, it had a central government,
assuredly this government was never a strong one.
Under these circumstances it is not wonderful that
the Brehon law, growing together without legislation
upon an original body of Aryan custom, and formed
12
IRISH AND HINDOO LAW.
LECT. I.
beyond the limit of that cloud of Roman juridical
ideas which for many centuries overspread the whole
Continent, and even at its extremity extended to
England, should present some very strong analogies
to another set of derivative Aryan usages, the Hindoo
law, which was similarly developed. The curious
and perplexing problems which such a mode of
growth suggests have to be grappled with by the
student of either system.
The ancient laws of Ireland have come down to
us as an assemblage of law-tracts, each treating of
some one subject or of a group of subjects. The
volumes officially translated and published contain
the two largest of these tracts, the Senchus Mor, or
Great Book of the Ancient Law, and the Book of
Aicill. While the comparison of the Senchus Mor
and of the Book of Aicill with other extant bodies of
archaic rules leaves no doubt of the great antiquity
of much of their contents, the actual period at which
they assumed their present shape is extremely
uncertain. Mr. Whitley Stokes, one of the most
eminent of living Celtic scholars, believes, upon con-
sideration of its verbal forms, that the Senchus Mor
was compiled in or perhaps slightly before the eleventh
century; and there appears to be internal evidence
which on the whole allows us to attribute the Book
of Aicill to the century preceding. The Senchus
Mor, it is true, expressly claims for itself a far earlier
LECT. I.
DATES OF IRISH LAW-TRACTS.
13
origin. In a remarkable preface, of which I shall
have much to say hereafter, it gives an account,
partly in verse, of the circumstances under which it
was drawn up, and it professes to have been compiled
during the life and under the personal influence of
St. Patrick. These pretensions have been ingeniously
supported, but there is not much temerity, I think,
in refusing to accept the fifth century as the date of
the Senchus Mor. At the same time it is far from
impossible that the writing of the ancient Irish laws
began soon after the Christianisation of Ireland. It
was Christianity, a 'religion of a book,' which for the
first time introduced many of the ruder nations out-
side the Empire to the art of writing. We cannot
safely claim for the Celts of Ireland, in the fifth
century of the Christian era, precisely the same
degree of culture which Cæsar attributes to the Celts
of the Continent in the first century before Christ
but, even if we could do so, Cæsar expressly states
of the Gauls that, though they were acquainted with
writing, they had superstitious scruples about using
written characters to preserve any part of their sacred
literature, in which their law would then be included.
Such objections would, however, necessarily disappear
with the conversion of the Irish people to Christianity.
On the whole there is no antecedent improbability
in the tradition that, soon after this conversion, the
usages of the Irish began to be stated in writing, and
14
ANCIENT LAW IN VERSE.
LECT. I.
Celtic scholars have detected not a little evidence
that parts of these more venerable writings are im-
bedded in the text of the Book of Aicill and of the
Senchus Mor.
(
6
It is extremely likely that the most ancient law
was preserved in rude verse or rhythmical prose. In
the oldest Irish traditions the lawyer is distinguished
with difficulty from the poet, poetry from literature.
Both in the Senchus Mor and in the Book of Aicill
the express statement of the law is described as
casting a thread of poetry' about it, and the
traditional authors of the Senchus Mor are said to
have exhibited all the judgment and poetry of the
men of Erin.' Modern Irish scholarship has, in fact,
discovered that portions of the Senchus Mor are
really in verse. The phenomenon is not unfamiliar.
Mr. Grote, speaking of the Elegiacs of Solon, and of
the natural priority of verse to prose, says (History
of Greece, iii. 119), the acquisitions as well as the
effusions of an intellectual man, even in the simplest
form, (then) adjusted themselves not to the limitations
of the period and semicolon, but to those of the
hexameter and pentameter.' There is no question,
I conceive, that this ancient written verse is what is
now called a survival, descending to the first ages of
written composition from the ages when measured
rhythm was absolutely essential, in order that the
memory might bear the vast burdens placed upon it
6
LECT. I.
FORM OF BREHON TRACTS.
15
It is now generally agreed that the voluminous
versified Sanscrit literature, which embraces not only
the poetry of the Hindoos, but most of their religion,
much of what stands to them in place of history, and
something even of their law, was originally preserved
by recollection and published by recitation; and even
now, in the Sanscrit schools which remain, the pupil
is trained to exercises of memory which are little
short of miraculous to an Englishman.
The tracts are of very unequal size, and the sub-
jects they embrace are of very unequal importance.
But all alike consist of an original text, divided into
paragraphs. Above or over against the principal
words of the text glosses or interpretations are written
in a smaller hand, and a paragraph is constantly
followed by an explanatory commentary, also in a
smaller hand, written in the space which separates
the paragraph from the next. The scarcity of mate-
rial for writing may perhaps sufficiently account for
the form taken by the manuscripts; but the Celts
seem to have had a special habit of glossing, and you
may have heard that the glosses written by early
Irish monks between the lines or on the margin of
manuscripts belonging to religious houses on the
Continent had much to do with the wonderful dis-
coveries of Zeuss in Celtic philology. A facsimile of
part of two Brehon manuscripts, one in the British
Museum, and the other in the Library of Trinity
16
of
FORM OF BREHON TRACTS.
LECT. I.
College, Dublin, may be seen at the beginning of the
second published volume of the translations. It seems
probable that each tract was the property, and that
it sets forth the special legal doctrines, of some body
persons who, in modern legal phrase, had perpetual
succession, a Family or Law School; there is ample
evidence of the existence of such law schools in
ancient Ireland, and they are another feature of resem-
blance to the India of the past and in some degree to
the India of the present.
The text of each of the published tracts appears to
have been put together by one effort, no doubt from
pre-existing materials, and it may have been written
continuously by some one person; but the additions
to it must be an accumulation of explanations and
expositions of various dates by subsequent possessors
of the document. I quite agree with the observation
of the Editors, that, while. the text is for the most part
comparatively consistent and clear, the commentary
is often obscure and contradictory. Precisely the
same remark is frequently made by Anglo-Indian
Judges on the Brahminical legal treatises, some of
which are similarly divided into a text and a com-
mentary. As regards the ancient Irish law, the result
of the whole process is anything but satisfactory to the
modern reader. I do not know that, in any extant
body of legal rules, the difficulty of mastering the
contents has ever been so seriously aggravated by the
LECT. I.
MANUSCRIPTS OF IRISH LAW.
17
repulsiveness of the form. One of the editors has un-
kindly, but not unjustly, compared a Brehon tract to
the worst kind of English law-book, without even the
moderate advantage of an alphabetical arrangement.
The exact date at which the existing manuscripts
were written cannot be satisfactorily settled until
they are all made accessible, which unfortunately they
are not at present. But we know one MS. of the
Senchus Mor to be at least as old as the fourteenth
century, since a touching note has been written on it
by a member of the family to which it belonged:
'One thousand three hundred two and forty years
from the birth of Christ till this night; and this is
the second year since the coming of the plague into
Ireland. I have written this in the 20th year of my
age. I am Hugh, son of Conor McEgan, and who-
ever reads it let him offer a prayer of mercy for
my soul. This is Christmas night, and on this night
I place myself under the protection of the King of
Heaven and Earth, beseeching that he will bring me
and my friends safe through the plague. Hugh
wrote this in his own father's book in the year of the
great plague.'
The system of legal rules contained in these
law-tracts is undoubtedly the same with that repeat-
edly condemned by Anglo-Irish legislation, and re-
peatedly noticed by English observers of Ireland
down to the early part of the seventeenth century
C
18
6
ENGLISH CENSURES OF BREHON LAW. LECT. I.
6
6
It is the same law which, in 1367, a statute of Kil-
kenny denounces as wicked and damnable.' It is
the same law which Edmund Spenser, in his 'View
of the State of Ireland,' describes as a rule of right
unwritten, but delivered by tradition from one to
another, in which oftentimes there appeareth a great
show of equity, in determining the right between
party and party, but in many things repugning quite
both to God's law and man's.' It is the same 'lewd'
and unreasonable' custom which Sir John Davis con-
trasts with the 'just and honourable law of England,'
and to which he attributes such desolation and bar-
barism in Ireland, 'as the like was never seen in any
country that professed the name of Christ.' It is not
our business in this department of study to enquire
how far this violent antipathy was politically justifi-
able. Even if the worst that has been said by Eng-
lishmen of the Brehon law down to our own day
were true, we might console ourselves by turning our
eyes to spheres of enquiry fuller of immediate promise
to the world than ours, and observing how much of
the wealth of modern thought has been obtained
from the dross which earlier generations had rejected.
Meanwhile, happily, it is a distinct property of the
Comparative Method of investigation to abate national
prejudices. I myself believe that the government of
India by the English has been rendered appreciably
easier by the discoveries which have brought home to
the educated of both races the common Aryan parent-
LECT. I. HISTORICAL CHARACTER OF BREHON LAW.
19
age of Englishman and Hindoo. Similarly, I am not
afraid to anticipate that there will some day be more
hesitation in repeating the invectives of Spenser and
Davis, when it is once clearly understood that the
'lewd' institutions of the Irish were virtually the
same institutions as those out of which the 'just and
honourable law' of England grew. Why these insti-
tutions followed in their development such different
paths it is the province of History to decide; but,
when it gives an impartial decision, I doubt much its
wholly attributing the difference to native faults of
Irish character. We, who are able here to examine
coolly the ancient Irish law in an authentic form, can
see that it is a very remarkable body of archaic law,
unusually pure from its origin. It has some analogies
with the Roman law of the earliest times, some with
Scandinavian law, some with the law of the Sclavonic
races, so far as it is known, some (and these particu-
larly strong) with the Hindoo law, and quite enough
with old Germanic law of all kinds, to render value-
less, for scientific purposes, the comparison which the
English observers so constantly institute with the
laws of England. It is manifestly the same system
in origin and principle with that which has descended
to us as the Laws of Wales, but these last have some-
how undergone the important modifications which
arise from the establishment of a comparatively strong
central authority. Nor does the Brehon law alto-
c 2
[
20 ADVANCED LEGAL DOCTRINES IN BREHON LAW. LECT. I.
gether disappoint the expectations of the patriotic
Irishmen who, partly trusting to the testimony of
Edmund Spenser, the least unkind of the English
critics of Ireland, though one of the most ruthless in
his practical suggestions, looked forward to its mani-
festing, when it was published, an equity and reason-
ableness which would put to shame the barbarous
jurisprudence of England. Much of it-I am afraid
I must say, most of it—is worthless save for historical
purposes, but on some points it really does come close
to the most advanced legal doctrines of our day. The
explanation which I will hereafter give at length-I
believe to lie in the method of its development, which
has not been through the decisions of courts, but by
the opinions of lawyers on hypothetical states of fact.
I think I may lay down that, wherever we
have any knowledge of a body of Aryan custom,
either anterior to or but slightly affected by the
Roman Empire, it will be found to exhibit some
strong points of resemblance to the institutions which
are the basis of the Brehon law. The depth to
which the Empire has stamped itself on the political
arrangements of the modern world has been illustrated
of late years with much learning; but I repeat my
assertion that the great difference between the Roman
Empire and all other sovereignties of the ancient
world lay in the activity of its legislation, through
the Edicts of the Prætor and the Constitutions of the
**
LECT. I.
ORIGIN OF SENCHUS MOR.
21
Emperors. For many races, it actually repealed their
customs and replaced them by new ones. For others,
the results of its legislation mixed themselves indis-
tinguishably with their law. With others, it introduced
or immensely stimulated the habit of legislation; and
this is one of the ways in which it has influenced the
stubborn body of Germanic custom prevailing in
Great Britain. But wherever the institutions of any
Aryan race have been untouched by it, or slightly
touched by it, the common basis of Aryan usage is
perfectly discernible; and thus it is that these Brehon
law-tracts enable us to connect the races at the east-
ern and western extremities of a later Aryan world,
the Hindoos and the Irish.
The Lectures which follow will help, I trust, to
show what use the student of comparative jurispru-
dence may make of this novel addition to our
knowledge of ancient law. Meantime, there is some
interest in contrasting the view of its nature, origin,
and growth, which we are obliged to take here, with
that to which the ancient Irish practitioners occa-
sionally strove hard to give currency. The Senchus
Mor, the Great Book of the Ancient Law, was doubt-
less a most precious possession of the law-school or
family to which it belonged; and its owners have
joined it to a preface in which a semi-divine author-
ship is boldly claimed for it. Odhran, the charioteer
of St. Patrick-so says this preface-had been killed,
22
PREFACE OF SENCHUS MOR.
6
LECT I.
and the question arose whether Nuada, the slayer,
should die, or whether the saint was bound by his own.
principles to unconditional forgiveness. St. Patrick
did not decide the point himself; the narrator, in true
professional spirit, tells us that he set the precedent
according to which a stranger from beyond the sea
always selects a legal adviser. He chose to go ac-
cording to the judgment of the royal poet of the men
of Erin, Dubhthach Mac ua Lugair,' and he blessed
the mouth' of Dubhthach. A poem, doubtless of
much antiquity and celebrity, is then put into the
mouth of the arbitrator, and by the judgment em-
bodied in it Nuada is to die; but he ascends straight
to heaven through the intercession of St. Patrick.
'Then King Laeghaire said, "It is
"It is necessary for you,
O men of Erin, that every other law should be settled
and arranged by us as well as this." "It is better to
do so," said Patrick. It was then that all the pro-
fessors of the sciences in Erin were assembled, and
each of them exhibited his art before Patrick, in the
presence of every chief in Erin. It was then Dubh-
thach was ordered to exhibit all the judgments and
all the poetry of Erin, and every law which prevailed
among the men of Erin. . . . This is the Cain Patraic,
and no human Brehon of the Gaedhil is able to
abrogate anything that is found in the Senchus Mor.'
The inspired award of Dubhthach that Nuada
must die suggests to the commentator the following
remark: "What is understood from the above decision
LECT. I.
COMPOSITION FOR HOMICIDE.
23
which God revealed to Dubhthach is, that it was a
middle course between forgiveness and retaliation; for
retaliation prevailed in Erin before Patrick, and
Patrick brought forgiveness with him; that is, Nuada
was put to death for his crime, and Patrick obtained
heaven for him. At this day we keep between for-
giveness and retaliation; for as at present no one
has the power of bestowing heaven, as Patrick had at
that day, so no one is put to death for his intentional
crimes, so long as 'eric' fine is obtained; and whenever
'eric' fine is not obtained, he is put to death for his
intentional crimes, and placed on the sea for his un-
intentional crimes." It is impossible, of course, to
accept the statement that this wide-spread ancient in-
stitution, the pecuniary fine levied on tribes or families
for the wrongs done by their members, had its origin
in Christian influences; but that it succeeded simple
retaliation is in the highest degree probable, and no
doubt in its day it was at least as great an advantage
to the communities among whom it prevailed as was
that stern royal administration of criminal justice to
which the Englishmen of the sixteenth century were
accustomed, and on which they so singularly prided
themselves. But by the sixteenth century it may well
have outlived its usefulness, and so may have partially
justified the invectives of its English censors, who
generally have the 'eric'-fine for homicide in view
when they denounce the Brehon law as 'contrary to
God's law and man's.'
24
SENCHUS MOR AND BOOK OF AICILL.
LECT. II.
LECTURE II.
THE ANCIENT IRISH LAW.
THE great peculiarity of the ancient laws of Ireland,
so far as they are accessible to us, is discussed, with
much instructive illustration, in the General Preface
to the Third Volume of the official translations. They
are not a legislative structure, but the creation of a
class of professional lawyers, the Brehons, whose
occupation became hereditary, and who on that ground
have been designated, though not with strict accuracy,
This view, which is consistent with all that
early English authorities on Ireland have told us of
the system they call the Brehon law, is certainly that
which would be suggested by simple inspection of
the law-tracts at present translated and published.
The Book of Aicill is probably the oldest, and its
text is avowedly composed of the dicta of two famous
lawyers, Cormac and Cennfaeladh. The Senchus
a caste.
Mor does, indeed, profess to have been produced by a
process resembling legislation, but the pretension can-
not be supported; and, even if it could, the Senchus
Mor would not less consist of the opinions of famous
Brehons. It describes the legal rules embodied in its
:
LECT. II.
INGREDIENTS OF THE SENCHUS MOR.
25
text as formed of the 'law of nature,' and of the 'law
of the letter.' The 'law of the letter' is the Scriptural
law, extended by so much of Canon law as the primitive
monastic Church of Ireland can be supposed to have
created or adopted. The reference in the misleading
phrase 'law of nature,' is not to the memorable com-
bination of words familiar to the Roman lawyers, but
to the text of St. Paul in the Epistle to the Romans:
'For when the Gentiles, which have not the law, do
by nature the things contained in the law, these,
having not the law, are a law unto themselves.'
(Rom. ii. 14.) The law of nature' is, therefore, the
ancient pre-Christian ingredient in the system, and the
'Senchus Mor' says of it: The judgments of true
nature while the Holy Ghost had spoken through the
mouths of the Brehons and just poets of the men of
Erin, from the first occupation of Ireland down to
the reception of the faith, were all exhibited by
Dubhthach to Patrick. What did not clash with the
Word of God in the written law and the New Testa-
ment and the consciences of believers, was confirmed
in the laws of the Brehons by Patrick and by the
ecclesiastics and chieftains of Ireland; for the law of
nature had been quite right except the faith, and its
obligations, and the harmony of the Church and
people. And this is the "Senchus Mor."
6
Dr. Sullivan, on the other hand, whose learned
and exhaustive Introduction to O'Curry's Lectures
26
LEGISLATION AND ANCIENT IRISH LAW. LECT. II.
6
forms the first volume of the Manners and Cus-
toms of the Ancient Irish,' affirms, on the evidence of
ancient records, that the institutions which in some
communities undoubtedly developed into true legis-
latures had their counterparts in the Ireland to which
the laws belonged, and he does not hesitate to desig-
nate certain portions of the Irish legal system' statute-
law.' In the present state of criticism on Irish docu-
ments it is not possible to hold the balance exactly
between the writers of the Introduction and of the
General Preface; but there is not the inconsistency
between their opinions which there might appear to
be at first sight. In the infancy of society many
conceptions are found blended together which are
now distinct, and many associations which are now
inseparable from particular processes or institutions
are not found coupled with them. There is abundant
proof that legislative and judicial power are not dis-
tinguished in primitive thought; nor, again, is legis-
lation associated with innovation. In our day the
legislator is always supposed to innovate; the judge
never. But of old the legislator no more necessarily
innovated than the judge; he only, for the most part,
declared pre-existing law or custom. It is impossible
to determine how much new law there was in the
Laws of Solon, or in the Twelve Tables of Rome, or
in the Laws of Alfred and Canute, or in the Salic
Law which is the oldest of the so-called Leges Bar-
LECT. II.
NATURE OF ANCIENT LEGISLATION.
27
6
barorum, but in all probability the quantity was ex-
tremely small. Thus, when a body of Brehon judg-
ments was promulgated by an Irish Chief to a tribal
assembly, it is probable that convenience was the
object sought rather than a new sanction. A re-
markable poem, appended to O'Curry's Lectures,
tells us how certain Chiefs proceeded every third year
to the Fair of Carman' and there proclaimed 'the
rights of every law and the restraints;' but it does
not at all follow that this promulgation had any affi-
nity for legislation in the modern sense. The inno-
vating legislatures of the modern world appear to
have grown up where certain conditions were present
which were virtually unknown to ancient Ireland—
where the primitive groups of which society was
formed were broken up with some completeness, and
where a central government was constituted acting
on individuals from a distance coercively and irre-
sistibly.
There are, moreover, some independent reasons for
thinking that, among the Celtic races, the half-judicial,
half-legislative, power originally possessed by the
tribal Chief, or by the tribal Assembly, or by both in
combination, passed very early to a special class of
learned persons.
The Prefaces in Irish found at
the commencement of some of the law-tracts, which
are of much interest, but of uncertain origin and date,
contain several references to the order in Celtic
28
THE DRUIDS.
LECT. II.
society which has hitherto occupied men's thoughts
more than any other, the Druids. The word occurs
in the Irish text. The writers of the prefaces seem
to have conceived the Druids as a class of heathen
priests who had once practised magical arts. The
enchanters of Pharaoh are, for instance, called the
Egyptian Druids, in the Preface to the Senchus
Mor. The point of view seems to be the one familiar
enough to us in modern literature, where an exclusive
prominence is given to the priestly character of the
Druids; nor do the Brehon lawyers appear to connect
themselves with a class of men whom they regard as
having belonged altogether to the old order of the
world. I am quite aware that, in asking whether
the historical disconnection of the Brehons and the
Druids can be accepted as a fact, I suggest an enquiry
about which there hangs a certain air of absurdity.
There has been so much wild speculation and
assertion about Druids and Druidical antiquities
that the whole subject seems to be considered as
almost beyond the pale of serious discussion. Yet
we are not at liberty to forget that the first great
observer of Celtic manners describes the Celts of the
Continent as before all things remarkable for the
literary class which their society included. Let me
add that in Cæsar's account of the Druids there is not
a word which does not appear to me perfectly credible.
The same remark may be made of Strabo. But the
LECT. II. CÆSAR'S ACCOUNT OF CONTINENTAL CELTS. 29
source of at all events a part of the absurdities which
have clustered round the subject I take to be the
Natural History of Pliny, and they seem to belong
to those stories about plants and animals to which
may be traced a great deal of the nonsense written in
the world.
You may remember the picture given by Cæsar
of the Continental Celts, as they appeared to him
when he first used his unrivalled opportunities of
examining them. He tells us that their tribal socie-
ties consisted substantially of three orders, two pri-
vileged and one unprivileged, and these orders he
calls the Equites, the Druids, and the Plebeians.
Somebody has said that this would be a not very
inaccurate description of French society just before
the first Revolution, with its three orders of Nobles,
Clergy, and unprivileged Tiers-État; but the obser-
vation is a good deal more ingenious than true. We
are now able to compare Cæsar's account of the
Gauls with the evidence concerning a Celtic commu-
nity which the Brehon tracts supply; and if we use
this evidence as a test, we shall soon make up our
minds that, though his representation is accurate as
far as it goes, it errs in omission of detail. The
Equites, or Chiefs, though to some extent they were
a class apart, did not stand in such close relation to
one another as they stood to the various septs or
groups over which they presided. Every chief,'
30
OMISSIONS IN CESAR'S ACCOUNT.
LECT. II.
says the Brehon law, 'rules over his land, whether
it be small or whether it be large.' The Plebeians,
again, so far from constituting a great miscellaneous
multitude, were distributed into every sort of natural
group, based ultimately upon the Family. The mis-
take, so far as there was error, I conceive to have
been an effect of mental distance. It had the imper-
fections of the view obtained by looking on the Gan-
getic plains from the slopes of the Himalayas. The
impression made is not incorrect, but an immensity
of detail is lost to the observer, and a surface varied.
by countless small elevations looks perfectly flat.
Cæsar's failure to note the natural divisions of the
Celtic tribesmen, the families and septs or sub-
tribes, is to me particularly instructive. The theory
of human equality is of Roman origin; the com-
minution of human society, and the unchecked com-
petition among its members, which have gone so far
in the Western Europe of our days, had their most
efficient causes in the mechanism of the Roman State.
Hence Cæsar's omissions seem to be those most
natural in a Roman general who was also a great
administrator and trained lawyer; and they are un-
doubtedly those to which an English ruler of India
is most liable at this moment. It is often said that
it takes two or three years before a Governor-
General learns that the vast Indian population is an
aggregate of natural groups, and not the mixed mul-
LECT. II.
CÆSAR'S DESCRIPTION OF THE DRUIDS.
31
titude he left at home; and some rulers of India
have been accused of never having mastered the
lesson at all.
There are a few very important points of detail
to be noticed in Cæsar's description of what may be
called the lay portion of Celtic society. I shall after-
wards call your attention to the significance of what
he states concerning the classes whom he calls the
clients and debtors of the Equites, and respecting
the increased power which they give to the Chief on
whom they are dependent. It is, however, remark-
able that, when he speaks of the Druids, his state-
ments are greatly more detailed. Here there were
no home associations to mislead him, but, beyond that,
it is plain that his interest was strongly roused by the
novel constitution of this privileged order whom he
places by the side of the Chiefs. Let me recall, then, to
you the principal points of his description, from which I
designedly omit all statements concerning the priestly
office of the class described. He tells us that the
Druids were supreme judges in all public and private
disputes; and that, for instance, all questions of
homicide, of inheritance, and of boundary were re-
ferred to them for decision. He says that the Druids
presided over schools of learning, to which the Celtic
youth flocked eagerly for instruction, remaining in
them sometimes (so he was informed) for twenty
years at a time. He states that the pupils in these
32
THE DRUIDS AND THE BREHONS.
LECT. II.
schools learned an enormous quantity of verses, which
were never committed to writing; and he gives his
opinion that the object was not merely to prevent
sacred knowledge from being popularised, but to
strengthen the memory. Besides describing to us
the religious doctrine of the Druids, he informs us
that they were extremely fond of disputing about
the nature of the material world, the movements of
the stars, and the dimensions of the earth and of
the universe. At their head there was by his ac-
count a chief Druid, whose place at his death was
filled by election, and the succession occasionally
gave rise to violent contests of arms (B. G. vi.
13, 14).
There are some strong and even startling points
of correspondence between the functions of the
Druids, as described by Cæsar, and the office of the
Brehon, as suggested by the law-tracts. The exten-
sive literature of law just disinterred testifies to the
authority of the Brehons in all legal matters, and
raises a strong presumption that they were universal
referees in disputes. Among their writings are
separate treatises on inheritance and boundary, and
almost every page of the translations contains a
reference to the 'eric '-fine for homicide. The schools
of literature and law appear to have been numerous
in ancient Ireland, and O'Curry is able to give the
course of instruction in one of them extending over
LECT. II.
IRISH PREFACES TO TRACTS.
33
twelve years.
All literature, including even law,
seems to have been identified with poetry. The
chief Druid of Cæsar meets us on the very threshold
of the Senchus Mor, in the person of Dubhthach
Mac ua Lugair, the royal poet of Erin, the Brehon
who was chosen by St. Patrick to arbitrate in a
question of homicide, and whose 'mouth' the saint
'blessed.' The mode of choosing the chief Druid,
by election, has its counterpart in the institution of
Tanistry, which within historical times determined
the succession to all high office in Ireland, and which
was hateful to the English, as affording smaller
security for order than their own less archaic form of
primogeniture. Nor is this all. The Prefaces in Irish
to the tracts contain a number of discussions on subjects.
which are in no way legal, or which are forced into
some connection with law by the most violent expe-
dients. They leave on the mind the impression of
being a patchwork of materials, probably of very
various antiquity, which happen to have been found
in the archives of particular law-schools. Now, the
Preface to the Senchus Mor actually contains dis-
quisitions on all the matters about which. Cæsar
declares the Druids to have been specially fond of
arguing. It in one place sets forth how God made
the heaven and the earth, but the account is not the
least like the Mosaic account. It goes off, as Cæsar's
Druids did, into a number of extraordinary statements,
D
34
COSMOLOGY OF SENCHUS MOR.
6
LECT. II.
'de sideribus atque eorum motu,' 'de mundi ac terrarum
magnitudine.' Among other things, it declares that
God fixed seven divisions from the firmament to the
earth, and that the distance he measured from the
moon to the sun was 244 miles. And the first form
of the firmament was ordained thus: as the shell is
about the egg, so is the firmament round the earth in
fixed suspension
. there are six windows in
each part through the firmament to shed light
through, so that there are sixty-six windows in it,
and a glass shutter for each window; so that the
whole firmament is a mighty sheet of crystal and a
protecting bulwark round the earth, with three
heavens, and three heavens about it; and the seventh
was arranged in three heavens. This last, however,
is not the habitation of the angels, but is like a wheel
revolving round, and the firmament is thus revolving,
and also the seven planets, since the time when they
were created.' Parts of the passage reflect the
astronomical notions known to have been current in
the Middle Ages, but much of it reads like a fragment
of a heathen cosmology, to which a later revision has
given a faint Christian colouring. The same Preface
contains also some curious speculations on the ety-
mology of law-terms, and the Preface to the Book of
Aicill enters, among other things, into the question
of the difference between genus and species.
I suggest, therefore, that the same tendencies
LECT. II.
DRUIDS AND BREHONS.
35
which produced among the Celts of the Continent
the class called the Druids produced among the
Celts of Ireland the class known to us
as the
Brehons; nor does it seem to me difficult to connect
the results of these tendencies with other known
phenomena of ancient society. There is much reason
to believe that the Tribe-Chief, or King, whom the
earliest Aryan records show us standing by the side
of the Popular Assembly, was priest and judge as
well as captain of the host. The later Aryan history
shows us this blended authority distributing or
'differentiating' itself, and passing either to the
Assembly or to a new class of depositaries. Among
the Achæans of Homer, the Chief has ceased to be
priest, but he is still judge; and his judicial sentences,
Péμiotes, or 'dooms,' however much they may be
drawn in reality from pre-existing usage, are believed
to be dictated to him from on high. Among the
Celts both of Gaul and of Ireland he has ceased to be
priest, and also probably to be judge, although some
measure of judicial authority may still belong to his
office as a 'survival.' The order of change thus
departs from that followed in Athenian history,
where the institution of kingship survived only in
the name of the King Archon, who was a judicial
functionary, and from that followed in Roman
history, where the Rex Sacrificulus was a hierophant
or priest. The Popular Assembly, meanwhile, which
D 2
36
THE KING AND THE BREHON.
LECT. II.
virtually attracted to itself the whole civil and
criminal jurisdiction of the Kings among the
Athenians, and which at Rome engrossed the whole
administration of criminal justice through the com-
missions it appointed, seems to lose all judicial
authority among the Celts. Perhaps I may be per-
mitted thus to describe the change I conceive to
have taken place among the Celts of Ireland.
Themis, who in Homer is the assessor of Zeus and
the source of judicial inspiration to kings, has (so
to speak) set up for herself. Kings have delegated
their authority to a merely human assessor, and we
see by the story which begins the Senchus Mor that,
even when a Saint is supposed to be present, the
inspiration of which he is the source does not find
expression through his lips, nor does it descend on
the King; it descends on the professional judge.
When we obtain our last glimpse of the class which
has received this inheritance from Chief or King—the
Brehons, Judges, or Authors of Judgments-they have
sunk to the lowest depth of misery and degradation
through the English conquest. At an earlier date
they are seen divided into families or septs, the
hereditary law-advisers of some princely or powerful
house. Hugh McEgan, who wrote the note in his
own father's book,' which I read in the last Lecture,
was one of the hereditary Brehons attached to the
McCarthys. But, in the earliest Irish traditions,
↑
LECT. II.
THE KING AND THE BREHON.
37
the functions of the Brehon and the King run very
much into one another. The most ancient Brehons
are described as of royal blood, sometimes as king's
sons.
The Tanaists of the great Irish Chiefs, the
successors elected out of the kindred of each Chief to
come after him on his death, are said to have occa-
sionally officiated as judges; and one of the law-
tracts, still unpublished, contains the express rule
that it is lawful for a king, though himself a judge,
to have a judge in his place. Cormac MacAirt, one
of the traditional authors of the Book of Aicill, was a
King in retirement. Apocryphal as his story may be,
it is one of much significance to the student of ancient
institutions. He had been accidentally blinded of
one eye, and is said to have been deposed from his
regal office or chieftaincy on account of the blemish.
Coirpri, his son and successor (says the Book of
Aicill), 'in every difficult case of judgment that came
to him used to go and ask his father about it, and his
father used to say to him, "My son, that thou mayest
know"-and then proceeded to lay down the law.
If, without committing ourselves to any specific
theory concerning the exact extent of the correspond-
ence, we can assume that there was substantial
identity between the literary class which produced
the law-tracts and the literary order attributed to the
Celtic races by Cæsar, we not only do something to
establish an historical conclusion perhaps more curious
38
SUCCESSION OF BREHON TO DRUID.
LECT. II.
than important, but we remove some serious difficul-
ties in the interpretation of the interesting and in-
structive body of archaic law now before us. The
difference between the Druids and their successors,
the Brehons, would in that case be mainly this: the
Brehons would be no longer priests. All sacerdotal
or religious authority must have passed, on the con-
version of the Irish Celts, to the tribes of the saints'
-to the missionary monastic societies founded at all
points of the island-and to that multitude of bishops
dependent on them, whom it is so difficult to recon-
cile with any of our preconceived ideas as to ancient
ecclesiastical organisation. The consequence would
be that the religious sanctions of the ancient laws,
the supernatural penalties threatened on their viola-
tion, would disappear, except so far as the legal rules
exactly coincided with the rules of the new Christian
code, the law of the letter.' Now, the want of a
sanction is occasionally one of the greatest difficulties
in understanding the Brehon law. Suppose a man
disobeyed the rule or resisted its application, what
would happen? The learned writer of one of the
modern prefaces prefixed to the Third Volume of the
Ancient Laws contends that the administration of
the Brehon system consisted in references to arbitra-
tion; and I certainly think myself that, so far as the
system is known, it points to that conclusion. The
one object of the Brehons was to force disputants to
6
LECT. II.
SANCTIONS OF BREHON LAW.
39
refer their quarrels to a Brehon, or to some person in
authority advised by a Brehon, and thus a vast deal
of the law tends to run into the Law of Distress,
which declares the various methods by which a man
can be compelled through seizure of his property to
consent to an arbitration. But then one cannot help
perpetually feeling that the compulsion is weak as
compared with the stringency of the process of
modern Courts of Justice; and besides that, why
should not the man attempted to be distrained upon
constantly resist with success? Doubtless the law
provides penalties for resistance; but where is the
ultimate sanction? Cæsar supplies an answer, which
must, I think, contain a portion of the truth. He
says that if a Celt of Gaul refused to abide by a
Druid judgment he was excommunicated which
was esteemed the heaviest of penalties. Another
example which I can give you of the want or weak-
ness of the sanction in the Brehon law is a very
remarkable one, and I shall recur to it hereafter. If
you have a legal claim against a man of a certain rank
and you are desirous of compelling him to discharge
it, the Senchus Mor tells you to 'fast upon him.'
'Notice,' it says, 'precedes distress in the case of the
inferior grades, except it be by persons of distinction
or upon persons of distinction; fasting precedes dis-
tress in their case' ('Ancient Laws of Ireland,' vol. i.
p. 113). The institution is unquestionably identical
:
:
40
FASTING AS A MODE OF COMPULSION.
LECT. II.
with one widely diffused throughout the East, which
is called by the Hindoos 'sitting dharna.' It consists
in sitting at your debtor's door and starving yourself
till he pays. From the English point of view the
practice has always been considered barbarous and im-
moral, and the Indian Penal Code expressly forbids
it. It suggests, however, the question—what would
follow if the debtor simply allowed the creditor to
starve? Undoubtedly the Hindoo supposes that some
supernatural penalty would follow; indeed, he gene-
rally gives definiteness to it by retaining a Brahmin
to starve himself vicariously, and no Hindoo doubts
what would come of causing a Brahmin's death.
We cannot but suppose that the Brehon rule of fast-
ing was once thought to have been enforced in some
similar way. Cæsar states that the Druids believed
in the immortality and transmigration of the soul,
and considered it the key of their system. A Druid
may thus very well have taught that penal conse-
quences in another world would follow the creditor's
death by starvation; and there is perhaps a pale re-
flection of this doctrine in the language of the Senchus
Mor: He who does not give a pledge to fasting is an
evader of all; he who disregards all things shall not
be paid by God or man.' But an Irish Brehon could
scarcely make any distinct assertion on the subject,
since fasting had now become a specific ordinance of
the Christian Church, and its conditions and spiritual
6
LECT. II.
IRISH AND HINDOO LAW.
41
effects were expressly defined by the Christian priest-
hood. Theoretically, I should state, a person who
refused unjustly to yield to fasting had his legal
liabilities considerably increased, at least, according
to the dicta of the Brehon commentators; but such
provisions only bring us to the difficulty of which I
first spoke, and raise anew the question of the exact
value of legal rules at a period when Courts of Jus-
tice are not as yet armed with resistless powers of
compelling attendance and submission.
If we are justified in tracing the pedigree of the
Brehon Code to a system enforced by supernatural
sanctions, we are able to contrast it in various ways
with other bodies of law in respect of its mode of
development. It closely resembles the Hindoo law,
inasmuch as it consists of what was in all probability
an original basis of Aryan usage vastly enlarged by
a superstructure of interpretation which a long suc-
cession of professional commentators have erected;
but it cannot have had any such sacredness, and con-
sequently any such authority, as the Brahminical
jurisprudence. Both the Brahmins and the Brehons
assume that Kings and Judges will enforce their law,
and emphatically enjoin on them its enforcement;
but, while the Brahmin could declare that neglect or
disobedience would be followed by endless degrada-
tion and torment, the Brehon could only assert that
the unlearned brother who pronounced a false judg-
42
IRISH AND EARLY ROMAN LAW.
LECT. 11•
ment would find blotches come on his cheeks, and
that the Chief who allowed sound usage to be de-
parted from would bring bad weather on his country.
The development of the Brehon law was again parallel
to that which there is strong reason for supposing the
Roman law to have followed in early times. The
writer of the Preface to the Third Volume, from which
I have more than once quoted, cites some observations
which I published several years ago on the subject
of the extension of the Roman jurisprudence by
the agency known as the Responsa Prudentum, the
accumulated answers (or, as the Brehon phrase is,
the judgments) of many successive generations of
famous Roman lawyers; and he adopts my account
as giving the most probable explanation of the growth
of the Brehon law. But in the Roman State a test
was always applied to the answers of the learned,'
which was not applied, or not systematically applied,
to the judgments of the Brehons. We never know
the Romans except as subject to one of the strongest
of central governments, which armed the law courts
with the force at its command. Although the Roman
system did not work exactly in the way to which our
English experience has accustomed us, there can, of
course, be no doubt that the ultimate criterion of the
validity of professional legal opinion at Rome, as else-
where, was the action of Courts of Justice enforcing
rights and duties in conformity with such opinion.
6
LECT. II.
IRISH AND ENGLISH LAW.
43
But in ancient Ireland it is at least doubtful whether
there was ever, in our sense of the words, a central
government; it is also doubtful whether the public
force at the command of any ruler or rulers was ever
systematically exerted through the mechanism of
Courts of Justice; and it is at least a tenable view
that the institutions which stood in the place of
Courts of Justice only exercised jurisdiction through
the voluntary submission of intending litigants.
Perhaps, however, from our present point of view,
the strongest contrast is between the ancient law of
Ireland and the law of England at a period which an
English lawyer would not call recent. The adminis-
tration of justice in England, from comparatively early
times, has been more strongly centralised than in any
other European country; but in Ireland there was no
central government to nerve the arm of the law. The
process of the English Courts has for centuries past
been practically irresistible; the process of the Irish
Courts, even if it was compulsory, was at the utmost
extremely weak. The Irish law was developed by
hereditary commentators; but we in England have
always attributed far less authority than does any
European Continental community to the unofficial
commentaries of the most learned writers of text-
books. We obtain our law, and adjust it to the
needs of each successive generation, either through
legislative enactment or through the decisions of our
44 LAW DECLARED THROUGH HYPOTHETICAL CASES. LECT. II.
judges on isolated groups of facts established by the
most laborious methods. But, as I have already
stated, the opinion to which I incline is, that no part
of the Brehon law had its origin in legislation. The
author of innovation and improvement was the learned
Brehon, and the Brehon appears to have invented at
pleasure the facts which he used as the framework
for his legal doctrine. His invention was necessarily
limited by his experience, and hence the cases sug-
gested in the law-tracts possess great interest, as
throwing light on the society amid which they were
composed; but these cases seem to be purely hypo-
thetical, and only intended to illustrate the rule
which happens to be under discussion.
In the volume of my own to which I referred a
few moments ago I said of the early Roman law that
'great influence must have been exercised (over it)
by the want of any distinct check on the suggestion
or invention of possible questions. When the data
can be multiplied at pleasure, the facilities for evolv-
ing a general rule are immensely increased. As the
law is administered among ourselves (in England)
the judge cannot travel out of the sets of facts ex-
hibited before him or before his predecessors. Ac-
cordingly, each group of circumstances which is
adjudicated upon receives, to employ a Gallicism,
a sort of consecration. It acquires certain qualities
which distinguish it from everv other case, genuine
LECT. II.
CHARACTERISTICS OF BREHON LAW.
45
or hypothetical.' I do not think it can be doubted
that this English practice of never declaring a legål
rule authoritatively until a state of facts arises to
which it can be fitted, is the secret of the apparent
backwardness and barrenness of English law at par-
ticular epochs, as contrasted with the richness and
reasonableness of other systems which it more than
rivals in its present condition. It is true, as I said
before, even of the Brehon law, that it does not
wholly disappoint the patriotic expectations enter-
tained of it. When they are disencumbered of
archaic phrase and form, there are some things re-
markably modern in it. I quite agree with one of
the Editors that, in the ancient Irish Law of Civil
Wrong, there is a singularly close approach to mo-
dern doctrines on the subject of Contributory Negli-
gence; and I have found it possible to extract from
the quaint texts of the Book of Aicill some extremely
sensible rulings on the difficult subject of the Mea-
sure of Damages, for which it would be vain to study
the writings of Lord Coke, though these last are
relatively of much later date. But the Brehon law
pays heavily for this apparent anticipation of the
modern legal spirit. It must be confessed that most
of it has a strong air of fancifulness and unreality.
It seems as if the Brehon lawyer, after forming (let
us say) a conception of a particular kind of injury,
set himself, as a sort of mental exercise, to devise all
46
CHARACTERISTICS OF BREHON LAW.
(
LECT. II.
the varieties of circumstance under which the wrong
could be committed, and then to determine the way
in which some traditional principle of redress could
be applied to the cases supposed. This indulgence
of his imagination drew him frequently into triviality
or silliness, and led to an extraordinary multiplica-
tion of legal detail. Four pages of the Book of Aicill
(a very large proportion of an ancient body of law)
are concerned with injuries received from dogs in
dog-fights, and they set forth in the most elaborate
way the modification of the governing rule required
in the case of the owners-in the case of the specta-
tors—in the case of the 'impartial interposer'—in the
case of the half-interposer,' i. e. the man who tries
to separate the dogs with a bias in favour of one of
them-in the case of an accidental looker-on-in the
case of a youth under age, and in the case of an idiot.
The same law-tract deals also with the curious sub-
jects of injuries from a cat stealing in a kitchen, from
women using their distaffs in a woman-battle, and
from bees, a distinction being drawn between the
case in which the sting draws blood and the case in
which it does not. Numberless other instances could
be given; but I repeat that all this is mixed up with
much that even now has juridical interest, and with
much which in that state of society had probably the
greatest practical importance.
It is not, perhaps, as often noticed as it should be
LECT. II.
ENGLISH CASE-LAW.
47
by English writers on law that the method of enuncia-
ting legal principles with which our Courts of Justice
have familiarised us is absolutely peculiar to England
and to communities under the direct influence of
English practice. In all Western societies, Legislation,
which is the direct issue of the commands of the
sovereign state, tends more and more to become the
exclusive source of law; but still in all Continental
countries other authorities of various kinds are occa-
sionally referred to, among which are the texts of the
Roman Corpus Juris, commentaries on Codes and
other bodies of written law, the unofficial writings of
famous lawyers, and other branches of the vast litera-
ture of law holding at most a secondary place in the
estimation of the English Judges and Bar. Nowhere,
however, is anything like the same dignity as with us
attributed to a decided case,' and I have found it
difficult to make foreign lawyers understand why
their English brethren should bow so implicitly to
what Frenchmen term the 'jurisprudence' of a par-
ticular tribunal. From one point of view English
law has doubtless suffered through this reluctance to
invent or imagine facts as the groundwork of rules,
and it will continue to bear the marks of the injury
until legislative re-arrangement and re-statement fully
disclose the stores of common sense which are at pre-
sent concealed by its defects of language and form,
On the other hand, these habits of the English Courts
6
48
QUESTIONS OF FACT.
LECT. II.
seem to be closely connected with one of the most
honourable characteristics of the English system, its
extreme carefulness about facts. Nowhere else in the
world is there the same respect for a fact, unless the
respect be of English origin. The feeling is not shared
by our European contemporaries, and was not shared
by our remote ancestors. It has been said—and the
remark seems to me a very just one-that in early
times questions of fact are regarded as the simplest of
all questions. Such tests of truth as Ordeal and Com-
purgation satisfy men's minds completely and easily,
and the only difficulty recognised is the discovery of
the legal tradition and its application to the results of
the test. Up to a certain point no doubt our own
mechanism for the determination of a fact is also a
mere artifice. We take as our criterion of truth the
unanimous opinion of twelve men on statements made
before them. But then the mode of convincing, or
attempting to convince, them is exactly that which
would have to be followed if it were sought to obtain
a decision upon evidence from the very highest human
intelligence. The old procedure was sometimes wholly
senseless, sometimes only distantly rational; the
modern English procedure is at most imperfect, and
some of its imperfection arises from the very consti-
tution of human nature and human society. I quite
concur, therefore, in the ordinary professional opinion
that its view of facts and its modes of ascertaining
LECT. II.
FACT AND LAW.
49
them are the great glory of English law. I am afraid,
however, that facts must always be the despair of the
law reformer. Bentham seems to me from several
expressions to have supposed that if the English Law
of Evidence were re-constructed on his principles
questions of fact would cease to present any serious
difficulty. Almost every one of his suggestions has
been adopted by the Legislature, and yet enquiries
into facts become more protracted and complex than
ever. The truth is that the facts of human nature,
with which Courts of Justice have chiefly to deal,
are far obscurer and more intricately involved than
the facts of physical nature; and the difficulty of
ascertaining them with precision constantly increases
in our age, through the progress of invention and
enterprise, through the ever-growing miscellaneous-
ness of all modern communities, and through the ever-
quickening play of modern social movements. Pos-
sibly we may see English law take the form which
Bentham hoped for and laboured for; every succes-
sive year brings us in some slight degree nearer to
this achievement; and consequently, little as we may
agree in his opinion that all questions of law are the
effect of some judicial delusion or legal abuse, we
may reasonably expect them to become less fre-
quent and easier of solution. But neither facts nor
the modes of ascertaining them tend in the least to
E
50
ANCIENT IRISH CUSTOMARY LAW.
LECT. II.
simplify themselves, and in no conceivable state of
society will Courts of Justice enjoy perpetual
vacation.
6
(
I have been at some pains to explain what sort of
authority the Irish Brehon law did not, in my opinion,
possess. The law of nature' had lost all supernatural
sanction, except so far as it coincided with the law
of the letter.' It had not yet acquired, or had very
imperfectly acquired, that binding power which law
obtains when the State exerts the public force through
Courts of Justice to compel obedience to it. Had it,
then, any authority at all; and if so, what sort of
authority? Part of the answer to this question I en-
deavoured to give three years ago ('Village Commu-
nities, in the East and West,' pp. 56, 57); and though
much more might be said on the subject, I defer it
till another opportunity. So far as the Brehon law
declared actual ancient and indigenous practices,
it shared in the obstinate vitality of all customs when
observed by a society distributed into corporate natu-
ral groups. But, besides this, it had another source
of influence over men's minds, in the bold and never-
flagging self-assertion of the class which expounded
it. A portion of the authority enjoyed by the Indian
Brahminical jurisprudence is undoubtedly to be ex-
plained in the same way. The Brehon could not,
like the Brahmin, make any such portentous assertion
as that his order sprang from the head of Brahma,
LECT. II.
SELF-ASSERTION OF BREHONS.
51
that it was an embodiment of perfect purity, and that
the first teacher of its lore was a direct emanation
from God. But the Brehon did claim that St. Pat-
rick and other great Irish saints had sanctioned the
law which he declared, and that some of them had
even revised it. Like the Brahmin, too, he never
threw away an opportunity of affirming the dignity of
his profession. In these law-tracts the heads of this
profession are uniformly placed, where Cæsar placed
the Druids, on the same level with the highest classes
of Celtic society. The fines payable for injury to
them, and their rights of feasting at the expense of
other classes (a form of right which will demand much
attention from us hereafter), are adjusted to those of
Bishops and Kings. It is more than likely that the
believing multitude ended by accepting these preten-
sions. From what we know of that stage of thought
we can hardly set limits to the amount of authority
spontaneously conceded to the utterances of a sole
literary class. It must have struck many that the
influence of the corresponding class in our own modern
society far exceeds anything which could have been
asserted of it from the mere consideration of our
social mechanism. There is, perhaps, an impression
abroad that the influence it exerts increases as history
goes on, an impression possibly produced and certainly
strengthened by the brilliant passages in which Lord
E 2
52
THE LITERARY CLASS.
LECT. II.
Macaulay contrasted the well-paid literary labour of
his own day with the miseries of the literary hack of
Grub Street a century before. I think that this
opinion, if broadly stated, is at the very least doubt-
ful. The class which, to use a modern neologism,
'formulates' the ideas dimly conceived by the multi-
tude-which saves it mental trouble by collecting
through generalisation, which is an essentially labour-
saving process, the scattered fragments of its know-
ledge and experience has not always consisted of
philosophers, historians, and novelists, but had earlier
representatives in poets, priests, and lawyers. It is
not at all a paradoxical opinion that these last were
its most powerful members. For, nowadays, it has
to cope with the critical faculty, more or less found
everywhere, and enormously strengthened by observa-
tion of the methods of physical discovery. No autho-
rity of our day is possibly comparable with that of
the men who, in an utterly uncritical age, simply said
of a legal rule, 'So it has been laid down by the
learned,' or used the still more impressive formula,
'It is thus written.'
While, however, I fully believe that the Brehon
law possessed great authority, I think also that it
was in all probability irregularly and intermittently
enforced, and that partial and local departures from
it were common all over ancient Ireland. Anybody
who interested himself in the question of its practical
LECT. II.
CASE OF THE O'NEILLS.
53
application would have to encounter the very pro-
blems which are suggested by the Brahminical Hin-
doo law. The student of this last system, especially if
he compares it with the infinity of local usage prac-
tised in India, is constantly asking himself how far
was the law of the Brahmin jurists observed before
the English undertook to enforce it through their
tribunals? The Editor of the Third Volume of the
Ancient Laws of Ireland has given a very apposite
example of a problem of the same kind (iii. 146), by
extracting from the Carew Papers the story of a
famous dispute as to the headship of the great Irish
house of O'Neill. Con O'Neill, its chief, had two sons,
Matthew and Shane. Matthew O'Neill was heir to Con
O'Neill's earldom of Tyrone, according to the limita-
tions of the patent. Shane O'Neill urged on the
English Government that these limitations were void,
because the King, in granting the earldom, could not
have been aware that Matthew O'Neill was an adul-
terine bastard, having been in truth born of the wife
of a smith in Dundalk. Shane O'Neill has been
regarded as the champion of purely Irish ideas (see
Froude, 'English in Ireland,' I. 43); but though the
rule of legitimacy upon which he insisted conforms
to our notions, it is directly contrary to the legal
doctrine of the Book of Aicill, which in one of its
most surprising passages lays down formally the pro-
cedure by which the natural father could bring into
54
THE ANGLO-NORMAN SETTLEMENT.
LECT. II.
his family a son born under the alleged circumstances
of Matthew O'Neill, on paying compensation to the
putative parent. Unless Shane O'Neill's apparent
ignorance of this method of legitimation was merely
affected for the purpose of blinding the English
Government, it would seem to follow that the Book
of Aicill, though its authorship was attributed to
King Cormac, had not an universally recognised
authority.
I do not know that the omission of the English,
when they had once thoroughly conquered the country.
to enforce the Brehon law through the Courts which
they established, has ever been reckoned among the
wrongs of Ireland. But if they had done this, they
would have effected the very change which at a
much later period they brought about in India, igno-
rantly, but with the very best intentions. They
would have given immensely greater force and a
much larger sphere to a system of rules loosely and
occasionally administered before they armed them
with a new authority. Even as it was, I cannot
doubt that the English did much to perpetuate the
Brehon law in the shape in which we find it. The
Anglo-Norman settlement on the east coast of Ireland
acted like a running sore, constantly irritating the
Celtic regions beyond the Pale, and deepening the
confusion which prevailed there. If the country had
been left to itself, one of the great Irish tribes would
LECT. II.
CHRISTIAN MORALITY AND ROMAN LAW.
55
almost certainly have conquered the rest. All the
legal ideas which, little conscious as we are of their
source, come to us from the existence of a strong
central government lending its vigour to the arm of
justice would have made their way into the Brehon
law; and the gap between the alleged civilisation of
England and the alleged barbarism of Ireland during
much of their history, which was in reality narrower
than is commonly supposed, would have almost wholly
disappeared.
Before I close this chapter it is necessary to
state that the Brehon law has not been unaffected by
the two main influences which have made the modern
law of Western Europe different from the ancient,
Christian morality and Roman jurisprudence. It has
been modified by Roman juridical ideas in some de-
gree, though it would be hazardous to lay down with
any attempt at precision in what degree. I have trust-
worthy information that, in the tracts translated but
not yet published, a certain number of Roman legal
maxims are cited, and one Roman jurisconsult is men-
tioned by name. So far as the published tracts afford
materials for an opinion, I am inclined to think that
the influence of the Roman law has been very slight,
and to attribute it not to study of the writings of the
Roman lawyers, but to contact with Churchmen im-
bued more or less with Roman legal notions. We
may be quite sure that the Brehons were indebted
56
WILLS AND CONTRACTS.
LECT. II.
to them for one conception which is present in the
tracts the conception of a Will; and we may pro-
bably credit the Church with the comparatively ad-
vanced development of another conception which we
find here—the conception of a Contract. The origin
of the rules concerning testamentary bequest which
are sometimes found in Western bodies of law other-
wise archaic has been much considered of late years;
and the weight of learned opinion inclines strongly
to the view that these rules had universally their
source in Roman law, but were diffused by the in-
fluence of the Christian clergy. This assertion
cannot be quite so confidently made of Contracts;
but the sacredness of bequests and the sacredness of
promises were of about equal importance to the
Church, as the donee of pious gifts; and, as regards
the Brehon law, it is plain upon the face of the pub-
lished sub-tract which is chiefly concerned with Con-
tract, the Corus Bescna, that the material interests of
the Church furnished one principal motive for its
compilation. The Corus Bescna, in which, I may
observe, a certain confusion (not uncommon in ancient
law) may be remarked between contracts and grants,
between the promise to give and the act or operation
of giving, contains some very remarkable propositions
on the subject of Contract. Here, and in other parts
of the Senchus Mor, the mischiefs of breach of con-
tract are set forth in the strongest language. The
•
LECT. II.
CONTRACT IN ANCIENT IRISH LAW.
57
6
world would be in a state of confusion if verbal con-
tracts were not binding.' 'There are three periods
at which the world dies: the period of a plague, of a
general war, of the dissolution of verbal contracts."
'The world is worthless at the time of the dissolution
of contracts.' At first sight this looks a good deal
liker the doctrine of the eighteenth century than of
any century between the sixth and the sixteenth.
Let us see, however, what follows when the position
thus broadly stated has to be worked out. We come,
in the Corus Bescna, upon the following attempt at
classification, which I fear would have deeply shocked
Jeremy Bentham and John Austin: How many
kinds of contracts are there?' asks the Brehon text-
writer. Two,' is the answer.
6
6 A valid contract,
and an invalid contract.' This, no doubt, is absurd,
but the explanation appears to be as follows.
principle of the absolute sacredness of contracts was
probably of foreign origin, and was insisted upon for
a particular purpose. It was therefore laid down too
broadly for the actual state of the law and the actual
condition of Irish Celtic society. Under such cir-
cumstances a treatise on Contract takes necessarily
the form in great measure of a treatise on the grounds
of invalidity in contracts, on the manifold exceptions
to an over-broad general rule. Anciently, the power
of contracting is limited on all sides. It is limited
by the rights of your family, by the rights of your
The
58
CHRISTIANITY AND THE BREHON LAW. LECT. II
distant kinsmen, by the rights of your co-villagers,
by the rights of your tribe, by the rights of your
Chief, and, if you contract adversely to the Church,
by the rights of the Church. The Corus Bescna is
in great part a treatise on these archaic limitations.
At the same time some of the modern grounds of
invalidity are very well set forth, and the merit may
possibly be due to the penetration of Roman doctrine
into the Brehon law-schools.
Something must be said on the extent to which
Christian opinion has leavened these Brehon writings.
Christianity has certainly had considerable negative
influence over them. It became no longer possible for
the Brehon to assert that the transgressor of his rules
would incur a supernatural penalty, and the conse-
quences of this were no doubt important. But still, as
you have seen, in the case of 'fasting on a man,' or 'sit-
ting dharna,' the heathen rule remained in the system,
though its significance was lost. Again, one positive
result of the reception by the Brehons of the so-called
'law of the letter' appears to have been the develop-
ment of a great mass of rules relating to the territorial
rights of the Church, and these constitute a very
interesting department of the Brehon law. But there
has certainly been nothing like an intimate inter-
penetration of ancient Irish law by Christian prin-
ciple. If this kind of influence is to be looked for
anywhere, it must be in the law of Marriage, and the
LECT. II.
RELATIONS OF THE SEXES.
59
cognate branches of Divorce, Legitimacy, and Inher-
itance. These, however, are the very portions of the
Brehon law which have been dwelt upon by writers
convinced that, as regards the relations of the sexes,
the primitive Irish were near akin to those Celts
of Britain of whose practices Cæsar had heard.
(B. G., v. 14.) The 'Book of Aicill' provides for the
legitimation not only of the bastard, but of the adul-
terine bastard, and measures the compensation to be
paid to the putative father. The tract on 'Social
Connections' appears to assume that the temporary
cohabitation of the sexes is part of the accustomed
order of society, and on this assumption it minutely
regulates the mutual rights of the parties, showing
an especial care for the interests of the woman, even
to the extent of reserving to her the value of her
domestic services during her residence in the common
dwelling. One remark ought, however, to be made
on these provisions of the Brehon law. It is not in-
conceivable that, surprising as they are, they may be
the index to a social advance. Cæsar plainly found
the Celts of the Continent polygamous, living in
families held together by stringent Paternal Power.
He, a Roman, familiar with a Patria Potestas as yet
undecayed, thinks it worthy of remark that the head
of a Gallic household had the power of life and death
over his wives as well as his children, and notices with
astonishment that, when a husband died under sus-
60
MARRIAGE IN ANCIENT IRELAND.
LECT. II.
picious circumstances, his wives were treated with the
same cruelty as a body of household slaves at Rome
whose master had been killed by an unknown hand.
(B. G., vi. 19.) Now, though very much cannot be
confidently said about the transition (which, never-
theless, is an undoubted fact) of many societies from
polygamy to monogamy under influences other than
those of religion, it may plausibly be conjectured that
here and there it had its cause in liberty of divorce.
The system which permitted a plurality of wives may
have passed into the system which forbade more than
one wife at a time, but which did not go farther. The
monogamy of the modern and Western world is, in
fact, the monogamy of the Romans, from which the
license of divorce has been expelled by Christian mo-
rality. There are hardly any materials for an opinion
upon the degree of influence exercised by the Church
over the transformation of marriage-relations in Ire-
land, but there are several indications that the ecclesi-
astical rules as to the conditions of a valid marriage
established themselves very slowly among the ruder
races on the outskirts of what had been the Roman
Empire. Mr. Burton (History of Scotland,' ii. 213), in
speaking of the number of illegitimate claimants who
brought their pretensions to the Crown of Scotland
before Edward the First, observes: That they should
have pushed their claims only shows that the Church
had not yet absolutely established the rule that from
:
LECT. II.
THE SEXES IN IRELAND.
6
61
her and her ceremony and sacrament could alone
come the union capable of transmitting a right of
succession to offspring.' The tract on Social Con-
nexions' notices a 'first' wife, and the recogni-
tion may be attributable to the Church, but on
the whole my impression certainly is that the ex-
tremely ascetic form under which Christianity was
introduced into Ireland was unfavourable to its ob-
taining a hold on popular morality. The common
view seems to have been that chastity was the profes-
sional virtue of a special class, for the Brehon tracts,
which make the assumptions I have described as to
the morals of the laity, speak of irregularity of life in
a monk or bishop with the strongest reprobation and
disgust. At the present moment Ireland is probably
the one of all Western countries in which the relations
of the sexes are most nearly on the footing required
by the Christian theory; nor is there any reasonable
doubt that this result has been brought about in the
main by the Roman Catholic clergy. But this puri-
fication of morals was effected during the period
through which monks and monasticism were either
expelled from Ireland or placed under the ban of the
law.
I will take this opportunity of saying that the
influence of Christianity on a much more famous
system than the Brehon law has always seemed to
me to be greatly overstated by M. Troplong and other
62
CHRISTIANITY AND ROMAN LAW.
LECT. II.
well-known juridical writers. There is, of course,
evidence of Christian influence on Roman law in the
disabilities imposed on various classes of heretics and
in the limitations of that liberty of divorce which
belonged to the older jurisprudence. But, even in
respect of divorce, the modifications strike me as less
than might have been expected from what we know
of the condition of opinion in the Roman world; and,
as regards certain improvements said to have been
introduced by Christianity into the Imperial law of
slavery, they were probably quickened by its influ-
ence, but they began in principles which were of
Stoical rather than of Christian origin. I do not
question the received opinion that Christianity greatly
mitigated and did much to abolish personal and pre-
dial slavery in the West, but the Continental lawyers
of whom I spoke considerably antedate its influence,
and take far too little account of the prodigious effects
subsequently produced by the practical equality of all
men within the pale of the Catholic priesthood. But
I principally deprecate these statements, which in
some countries have almost become professional com-
monplaces, for two reasons. They slur over a very
instructive fact, the great unmalleability of all bodies
of law; and they obscure an interesting and yet un-
settled problem, the origin of the Canon law. The
truth seems to be that the Imperial Roman law did
LECT. II.
CANON LAW.
63
not satisfy the morality of the Christian communities,
and this is the most probable reason why another
body of rules grew up by its side and ultimately
almost rivalled it.
64
KINSHIP AS THE BASIS OF SOCIETY.
LECT. III.
LECTURE III.
KINSHIP AS THE BASIS OF SOCIETY.
THE most recent researches into the primitive history
of society point to the conclusion that the earliest
tie which knitted men together in communities
was Consanguinity or Kinship. The subject has
been approached of late years from several different
sides, and there has been much dispute as to what
the primitive blood-relationship implied, and how it
arose; but there has been general agreement as to the
fact I have stated. The caution is perhaps needed
that we must not form too loose a conception of the
kinship which once stood in the place of the multi-
form influences which are now the cement of hu-
man societies. It was regarded as an actual bond of
union, and in no respect as a sentimental one. The
notion of what, for want of a better phrase, I must
call a moral brotherhood in the whole human race has
been steadily gaining ground during the whole course
of history, and we have now a large abstract term
LECT. III.
PRIMITIVE VIEW OF KINSHIP.
answering to this notion-Humanity. The
65
powerful of the agencies which have brought about
this broader and laxer view of kinship has un-
doubtedly been Religion, and indeed one
great
Eastern religion extended it until for some purposes
it embraced all sentient nature. All this modern
enlargement of the primitive conception of kinship
must be got rid of before we can bring it home to
ourselves. There was no brotherhood recognised by
our savage forefathers except actual consanguinity
regarded as a fact. If a man was not of kin to
another there was nothing between them. He was
an enemy to be slain, or spoiled, or hated, as much as
the wild beasts upon which the tribe made war, as
belonging indeed to the craftiest and the cruellest
order of wild animals. It would scarcely be too strong
an assertion that the dogs which followed the camp had
more in common with it than the tribesmen of an
alien and unrelated tribe.
The tribes of men with which the student of
jurisprudence is concerned are exclusively those be-
longing to the races now universally classed, on the
ground of linguistic affinities, as Aryan and Semitic.
Besides these he has at most to take into account
that portion of the outlying mass of mankind which
has lately been called Uralian, the Turks, Hungarians,
and Finns. The characteristic of all these races,
when in the tribal state, is that the tribes themselves,
F
66
ARYAN, SEMITIC, AND URALIAN TRIBES. LECT. II.
and all subdivisions of them, are conceived by the
men who compose them as descended from a single
male ancestor. Such communities see the Family
group with which they are familiar to be made up of
the descendants of a single living man, and of his
wife or wives; and perhaps they are accustomed to
that larger group, formed of the descendants of a
single recently deceased ancestor, which still survives
in India as a compact assemblage of blood-relatives,
though it is only known to us through the traces it
has left in our Tables of Inheritance. The mode of
constituting groups of kinsmen which they see pro-
ceeding before their eyes they believe to be identical
with the process by which the community itself was
formed. Thus the theoretical assumption is that all
the tribesmen are descended from some common an-
cestor, whose descendants have formed sub-groups,
which again have branched off into others, till the
smallest group of all, the existing Family, is reached.
I believe I may say that there is substantial agreement
as to the correctness of these statements so long as
they are confined to the Aryan, Semitic, and Uralian
At most it is asserted that, among the re-
corded usages of portions of these races, there are
obscure indications of another and an earlier state of
things. But then a very different set of assertions
from these are made concerning that large part of
the human race which cannot be classed as Aryan,
Semitic, or Uralian. It is, first of all, alleged that
races.
LECT. III.
ABNORMAL CONCEPTIONS OF KINSHIP.
67
there is evidence of the wide prevalence among them
of ideas on the subject of Consanguinity which are
irreconcileable with the assumption of common de-
scent from a single ancestor. Next, it is pointed out
that some small, isolated, and very barbarous com-
munities—perhaps long hidden in inaccessible Indian
valleys, or within the ring of a coral reef in the
Southern Seas--still follow practices which it would
be incorrect and unjust to call immoral, because, in
the view we are considering, they are older than
morality. The suggestion is finally made that if
these practices were, in an older stage of the world's
history, very much more widely extended than at
present, the abnormal, non-Aryan, non-Semitic, non-
Uralian notions about kinship of which I have spoken
would find their explanation. If, indeed, the con-
clusion here pointed at expresses the truth, and if
these practices were really at one time universal, it
would be an undeserved compliment to the human
race to say that it once followed the ways of the
lower animals, since, in point of fact, all the lower
animals do not follow the practices thus attributed
to them. But, whatever be the interest of such
enquiries, they do not concern us till the Kinship of
the higher races can be distinctly shown to have
grown out of the Kinship now known only to the
lower, and even then they concern us only re-
motely. No doubt several recent writers do believe
F 2
68
KINSHIP AND POWER.
LECT. IN
in the descent of one form of consanguinity from the
other. Mr. Lewis Morgan, of New York, the author
of a remarkable and very magnificent volume on
'Systems of Consanguinity and Affinity in the Hu-
man Family,' published by the Smithsonian Institute
at Washington, reckons no less than ten stages
(p. 486) through which communities founded on
kinship have passed before that form of the family
was developed out of which the Aryan tribes con-
ceive themselves to have sprurg. But Mr. Morgan
also says of the system known upon the evidence
actually to prevail among the Aryan, Semitic, and
Uralian divisions of mankind that (p. 469) it' mani-
festly proceeds upon the assumption of the existence
of marriage between single pairs, and of the certainty
of parentage through the marriage relation.' 'Hence,'
he adds, 'it must have come into existence after the
establishment of marriage between single pairs.'
A remark of considerable importance to the stu-
dent of early usage has now to be made respecting
the bond of union recognised by these greater races.
Kinship, as the tie binding communities together,
tends to be regarded as the same thing with subjec-
tion to a common authority. The notions of Power
and Consanguinity blend, but they in nowise super-
sede one another. We have a familiar example of
this mixture of ideas in the subjection of the smallest
group, the Family, to its patriarchal head. Wherever
LECT. III.
KINSHIP AND POWER.
69
we have evidence of such a group, it becomes difficult
to say whether the persons comprised in it are most
distinctly regarded as kinsmen, or as servile or semi-
servile dependants of the person who was the source
of their kinship. The confusion, however, if we may
so style it, of kinship with subjection to patriarchal
power is observable also in the larger groups into
which the Family expands. In some cases the Tribe
can hardly be otherwise described than as the group
of men subject to some one chieftain. This peculiar
blending of ideas is undoubtedly connected with the
extension (a familiar fact to most of us) of the area of
ancient groups of kindred by artifices or fictions.
Just as we find the Family recruited by strangers
brought under the paternal power of its head by
adoption, so we find the Tribe, or Clan, including a
number of persons, in theory of kin to it, yet in fact
connected with it only by common dependence on the
Chief. I do not affect to give any simple explanation
of the subjection of the various assemblages of kindred
to forms of power of which the patriarchal power of
the head of the family is the type. Doubtless it is
partly to be accounted for by deep-seated instincts.
But Mr. Morgan's researches seem to me to have sup-
plied another partial explanation. He has found that
among rude and partially nomad communities great
numbers of kindred, whom we should keep apart in
mind, and distinguish from one another in language,
L-
70
KINSHIP AND POWER.
LECT. III.
are grouped together in great classes and called by
the same general names. Every man is related to an
extraordinary number of men called his brothers, to
an extraordinary number called his sons, to an extra-
ordinary number called his uncles. Mr. Morgan
explains the fact in his own way, but he points out
the incidental convenience served by this method of
classification and nomenclature. Though the point
may not at first strike us, kinship is a clumsy basis
for communities of any size, on account of the diffi-
culty which the mind, and particularly the untutored
mind, has in embracing all the persons bound to any
one man by tie of blood, and therefore (which is the
important matter) connected with him by common
responsibilities and rights. A great extension and
considerable relaxation of the notion of kinship gets
over the difficulty among the lower races, but it may
be that, among the higher, Patriarchal Power answers
the same object. It simplifies the conceptions of
kinship and of conjoint responsibility, first in the
Patriarchal Family and ultimately in the Clan or Tribe.
We have next to consider the epoch, reached at
some time by all the portions of mankind destined to
civilisation, at which tribal communities settle down
upon a definite space of land. The liveliest account
which I have read of this process occurs in an ancient
Indian record which has every pretension to authen-
ticity. In a very interesting volume published by the
LECT. III.
INDIAN MEMORIAL VERSES.
71
Government of Madras, and called 'Papers on Mirasi
Right' (Madras, 1862), there are printed some ancient
Memorial Verses, as they are called, which describe the
manner in which the Vellalee, a possibly Aryan tribe,
followed their chief into Tondeimandalam, a region
roughly corresponding with a state once famous in
modern Indian history, Arcot. There the Vellalee con-
quered and extirpated, or enslaved, some more primi-
tive population and took permanent possession of its
territory. The poetess-for the lines are attributed
to a woman-compares the invasion to the flowing of
the juice of the sugar-cane over a flat surface. ('Mirasi
Papers,' p. 233.) The juice crystallises, and the crys-
tals are the various village-communities. In the
middle is one lump of peculiarly fine sugar, the place
where is the temple of the god. Homely as is the
image, it seems to me in one respect peculiarly felici-
tous. It represents the tribe, though moving in a
fused mass of men, as containing within itself a prin-
ciple of coalescence which began to work as soon as
the movement was over. The point is not always
recollected. Social history is frequently considered
as beginning with the tribal settlement, and as though
no principles of union had been brought by the tribe
from an older home. But we have no actual know-
ledge of any aboriginal or autochthonous tribe.
Wherever we have any approximately trustworthy
information concerning the tribes which we discern
72
SETTLEMENT OF TRIBES ON LAND.
LECT. III.
in the far distance of history, they have always come
from some more ancient seat. The Vellalee, in the
Indian example, must have been agriculturists some-
where, since they crystallised at once into village-
communities.
It has long been assumed that the tribal constitu-
tion of society belonged at first to nomad communi-
ties, and that, when associations of men first settled
down upon land, a great change came over them.
But the manner of transition from nomad to settled
life, and its effects upon custom and idea, have been
too much described, as it seems to me, from mere
conjecture of the probabilities; and the whole pro-
cess, as I have just observed, has been conceived as
more abrupt than such knowledge as we have would
lead us to believe it to have been. Attention has
thus been drawn off from one assertion on this sub-
ject which may be made, I think, upon trustworthy
evidence—that, from the moment when a tribal com-
munity settles down finally upon a definite space of
land, the Land begins to be the basis of society in
place of the Kinship. The change is extremely
gradual, and in some particulars it has not even now
been fully accomplished, but it has been going on
through the whole course of history. The constitu-
tion of the Family through actual blood-relationship
is of course an observable fact, but, for all groups of
men larger than the Family, the Land on which they
LECT. III.
KINSHIP AND THE LAND.
73
live tends to become the bond of union between them,
at the expense of Kinship, ever more and more
vaguely conceived. We can trace the development
of idea both in the large and now extremely miscel-
laneous aggregations of men combined in States or
Political Communities, and also in the smaller aggre-
gations collected in Village-Communities and Manors,
among whom landed property took its rise. The
barbarian invaders of the Western Roman Empire,
though not uninfluenced by former settlements in
older homes, brought back to Western Europe a
mass of tribal ideas which the Roman dominion had
banished from it; but, from the moment of their
final occupation of definite territories, a transforma-
tion of these ideas began. Some years ago I pointed
out ('Ancient Law,' pp. 103 et seq.) the evidence fur-
nished by the history of International Law that the
notion of territorial sovereignty, which is the basis of
the international system, and which is inseparably
connected with dominion over a definite area of land,
very slowly substituted itself for the notion of tribal
sovereignty. Clear traces of the change are to be
seen in the official style of kings. Of our own kings,
King John was the first who always called himself
King of England. (Freeman, 'Norman Conquest,' I.
82, 84.) His predecessors commonly or always called
themselves Kings of the English. The style of the
king reflected the older tribal sovereignty for a much
74
KINGS OF FRANCE AND OF THE FRENCH. LECT. III.
longer time in France. The title of King of France
may no doubt have come into use in the vernacular
soon after the accession of the dynasty of Capet, but
it is an impressive fact that, even at the time of the
Massacre of St. Bartholomew, the Kings of France
were still in Latin 'Reges Francorum;' and Henry
the Fourth only abandoned the designation because it
could not be got to fit in conveniently on his coins
with the title of King of Navarre, the purely feudal and
territorial principality of the Bourbons. (Freeman,
loc. cit.) We may bring home to ourselves the trans-
formation of idea in another way. England was once
the country which Englishmen inhabited. English-
men are now the people who inhabit England. The
descendants of our forefathers keep up the tradition
of kinship by calling themselves men of English race,
but they tend steadily to become Americans and
Australians. I do not say that the notion of con-
sanguinity is absolutely lost; but it is extremely
diluted, and quite subordinated to the newer view of
the territorial constitution of nations. The blended
ideas are reflected in such an expression as 'Father-
land,' which is itself an index to the fact that our
thoughts cannot separate national kinship from com-
mon country. No doubt it is true that in our day
the older conception of national union through con-
sanguinity has seemed to be revived by theories
which are sometimes called generally theories of
LECT. III.
THEORIES OF NATIONALITY.
75
Nationality, and of which particular forms are known
to us as Pan-Sclavism and Pan-Teutonism. Such
theories are in truth a product of modern philology,
and have grown out of the assumption that linguistic
affinities prove community of blood. But wherever
the political theory of Nationality is distinctly con-
ceived, it amounts to a claim that men of the same
race shall be included, not in the same tribal, but in
the same territorial sovereignty.
We can perceive, from the records of the Hellenic
and Latin city-communities, that there, and probably
over a great part of the world, the substitution of com-
mon territory for common race as the basis of national
union was slow, and not accomplished without very
violent struggles. The history of political ideas
begins,' I have said elsewhere, with the assumption
that kinship in blood is the sole possible ground of
community in political functions; nor is there any of
those subversions of feeling which we emphatically
term revolutions so startling and so complete as the
change which is accomplished when some other prin-
ciple-such as that, for instance, of local contiguity
-establishes itself for the first time as the basis of
common political action.' The one object of ancient
democracies was, in fact, to be counted of kin to the
aristocracies, simply on the ground that the aristocracy
of old citizens, and the democracy of new, lived within
the same territorial circumscription. The goal was
>
776
TRIBAL AND TERRITORIAL SOVEREIGNTY. LECT. III.
reached in time both by the Athenian Demos and
by the Roman Plebs; but the complete victory of
the Roman popular party was the source of influ-
ences which have not spent themselves at the present
moment, since it is one of the causes why the passage
from the Tribal to the Territorial conception of Sove-
reignty was much more easy and imperceptible in the
modern than in the older world. I have before stated
that a certain confusion, or at any rate indistinctness
of discrimination, between consanguinity and common
subjection to power is traceable among the rudiments
of Aryan thought, and no doubt the mixture of no-
tions has helped to bring about that identification
of common nationality with common allegiance to
the King, which has greatly facilitated the absorption
of new bodies of citizens by modern commonwealths.
But the majesty with which the memory of the
Roman Empire surrounded all kings has also greatly
contributed to it, and without the victory of the
Roman Plebeians there would never have been, I
need hardly say, any Roman Empire.
The new knowledge which has been rapidly
accumulating of late years enables us to track pre-
cisely the same transmutation of ideas amid the
smaller groups of kinsmen settled on land and form-
ing, not Commonwealths, but Village-Communities.
The historian of former days laboured probably under
no greater disadvantage than that caused by his
LECT. III.
STATES AND VILLAGE-COMMUNITIES.
77
unavoidable ignorance of the importance of these
communities, and by the necessity thus imposed upon
him of confining his attention to the larger assemblages
of tribesmen. It has often, indeed, been noticed that
a Feudal Monarchy was an exact counterpart of a
Feudal Manor, but the reason of the correspondence
is only now beginning to dawn upon us, which is,
that both of them were in their origin bodies of
assumed kinsmen settled on land and undergoing the
same transmutation of ideas through the fact of
settlement. The history of the larger groups ends
in the modern notions of Country and Sovereignty;
the history of the smaller in the modern notions of
Landed Property. The two courses of historical de-
velopment were for a long while strictly parallel,
though they have ceased to be so now.
The naturally organised, self-existing, Village-
Community can no longer be claimed as an institution
specially characteristic of the Aryan races. M. de
Laveleye, following Dutch authorities, has described
these communities as they are found in Java; and
M. Renan has discovered them among the obscurer
Semitic tribes in Northern Africa. But, wherever
they have been examined, the extant examples of
the group suggest the same theory of its origin which
Mr. Freeman (Comparative Politics,' p. 103) has
advanced concerning the Germanic village-community
or Mark This lowest political unit was at first,
78
STAGES OF THE COMMUNITY.
LECT. III
here (i. e. in England) as elsewhere, formed of men
bound together by a tie of kindred, in its first estate
natural, in a later stage either of kindred natural or
artificial.' The evidence, however, is now quite ample
enough to furnish us with strong indications not
only of the mode in which these communities began,
but of the mode in which they transformed them-
selves. The world, in fact, contains examples of
cultivating groups in every stage, from that in which
they are actually bodies of kinsmen, to that in which
the merest shadow of consanguinity survives and the
assemblage of cultivators is held together solely by
the land which they till in common. The great steps
in the scale of transition seem to me to be marked by
the Joint Family of the Hindoos, by the House-
Community of the Southern Sclavonians, and by the
true Village-Community, as it is found first in Russia
and next in India. The group which I have placed
at the head, the Hindoo Joint Family, is really a body
of kinsmen, the natural and adoptive descendants of
a known ancestor. Although the modern law of
India gives such facilities for its dissolution that it is
one of the most unstable of social compounds, and
rarely lasts beyond a couple of generations, still, so
long as it lasts, it has a legal corporate existence, and
exhibits, in the most perfect state, that community of
proprietary enjoyment which has been so often ob-
served, and (let me add) so often misconstrued, in
LECT. III.
THE HOUSE-COMMUNITY.
79
cultivating societies of archaic type.
6
According to
the true notion of a joint undivided Hindoo family,'
said the Privy Council, 'no member of the family,
while it remains undivided, can predicate of the joint
undivided property that he, that particular member,
has a certain definite share.
The proceeds of
undivided property must be brought, according to
the theory, into the common chest or purse, and
then dealt with according to the modes of enjoy-
ment of the members of an undivided family.' (Per
Lord Westbury, Appovier v. Rama Subba Aiyan,
11 Moore's Indian Appeals, 75.) While, however,
these Hindoo families, 'joint in food, worship, and
estate,' are constantly engaged in the cultivation of
land, and dealing with its produce according to
the modes of enjoyment of an undivided family,'
they are not village-communities. They are
only accidentally connected with the land, how-
ever extensive their landed property may be.
What holds them together is not land, but
consanguinity, and there is no reason why they
should not occupy themselves, as indeed they fre-
quently do, with trade or with the practice of a
handicraft. The House-Community, which comes
next in the order of development, has been examined
by M. de Laveleye (P. et s. F. P., p. 201), and by
Mr. Patterson ('Fortnightly Review,' No. xliv.),
in Croatia, Dalmatia, and Illyria, countries which,
80
THE HOUSE-COMMUNITY.
LECT. III.
though nearer to us than India, have still much in
common with the parts of the East not brought
completely under Mahometan influences; but there
is reason to believe that neither Roman law nor
feudalism entirely crushed it even in Western
Europe. It is a remarkable fact that assemblages of
kinsmen, almost precisely the counterpart of the
House-Communities surviving among the Sclavonians,
were observed by M. Dupin, in 1840, in the French
Department of the Nièvre, and were able to satisfy
him that even in 1500 they had been accounted
ancient. These House-Communities seem to me to
be simply the Joint Family of the Hindoos, allowed to
expand itself without hindrance and settled for ages
on the land. All the chief characteristics of the
Hindoo institution are here-the common home and
common table, which are always in theory the centre
of Hindoo family life; the collective enjoyment of
property and its administration by an elected manager.
Nevertheless, many instructive changes have begun
which show how such a group modifies itself in time.
The community is a community of kinsmen; but,
though the common ancestry is probably to a great
extent real, the tradition has become weak enough
to admit of considerable artificiality being introduced
into the association, as it is found at any given
moment, through the absorption of strangers from
outside. Meantime, the land tends to become the.
LECT. III.
THE VILLAGE-COMMUNITY.
81
true basis of the group; it is recognised as of pre-
eminent importance to its vitality, and it remains
common property, while private ownership is allowed
to show itself in moveables and cattle. In the true
Village-Community, the common dwelling and com-
mon table which belong alike to the Joint Family and
to the House-Community, are no longer to be found.
The village itself is an assemblage of houses, con-
tained indeed within narrow limits, but composed of
separate dwellings, each jealously guarded from the
intrusion of a neighbour. The village lands are no
longer the collective property of the community; the
arable lands have been divided between the various
households; the pasture lands have been partially
divided; only the waste remains in common. In com-
paring the two extant types of Village-Community
which have been longest examined by good observers,
the Russian and the Indian, we may be led to think
that the traces left on usage and idea by the ancient
collective enjoyment are faint exactly in proportion
to the decay of the theory of actual kinship among
the co-villagers. The Russian peasants of the same
village really believe, we are told, in their common
ancestry, and accordingly we find that in Russia the
arable lands of the village are periodically re-dis-
tributed, and that the village artificer, even should he
carry his tools to a distance, works for the profit of
his co-villagers. In India, though the villagers are
G
82
THE VILLAGE-COMMUNITY.
LECT. III.
still a brotherhood, and though membership in the
brotherhood separates a man from the world outside,
it is very difficult to say in what the tie is conceived
as consisting. Many palpable facts in the composition
of the community are constantly inconsistent with the
actual descent of the villagers from any one ancestor.
Accordingly, private property in land has grown
up, though its outlines are not always clear; the
periodical re-division of the domain has become a
mere tradition, or is only practised among the ruder
portions of the race; and the results of the theoretical
kinship are pretty much confined to the duty of sub-
mitting to common rules of cultivation and pasturage,
of abstaining from sale or alienation without the
consent of the co-villagers, and (according to some
opinions) of refraining from imposing a rack-rent
upon members of the same brotherhood. Thus, the
Indian Village-Community is a body of men held to-
gether by the land which they occupy: the idea of
common blood and descent has all but died out. A
few steps more in the same course of development-
and these the English law is actually hastening-will
diffuse the familiar ideas of our own country and
time throughout India; the Village-Community will
disappear, and landed property, in the full English
sense, will come into existence. Mr. Freeman tells
us that Uffington, Gillingham, and Tooting were in
all probability English village-communities originally.
LECT. II. TRANSFORMATION OF VILLAGE-COMMUNITIES.
83
settled by the Uffingas, Gillingas, and Totingas,
three Teutonic joint-families. But assuredly all men
who live in Tooting do not consider themselves
brothers; they barely acknowledge duties imposed
on them by their mutual vicinity; their only real tie
is through their common country.
6
The natural communism' of the primitive cul-
tivating groups has sometimes been described of late
years, and more particularly by Russian writers, as
an anticipation of the most advanced and trenchant
democratic theories. No account of the matter could
in my judgment be more misleading. If such terms
as 'aristocratic' and 'democratic' are to be used at
all, I think it would be a more plausible statement
that the transformation and occasional destruction of
the village-communities were caused, over much of
the world, by the successful assault of a democracy
on an aristocracy. The secret of the comparatively
slight departure of the Russian village-communities
from what may be believed to have been the primitive
type, appears to me to lie in the ancient Russian
practice of colonisation, by which swarms were con-
stantly thrown off from the older villages to settle
somewhere in the enormous wastes; but the Indian
communities, placed in a region of which the popula-
tion has from time immemorial been far denser than
in the North, bear many marks of past contests
between the ancient brotherhood of kinsmen and a
G 2
84
TRANSFORMATION OF VILLAGE-COMMUNITIES. LECT. III.
class of dependants outside it struggling for a share
in the land, or for the right to use it on easy terms.
I am aware that there is some grotesqueness at first
sight in a comparison of Indian villagers, in their
obscurity and ignorance, and often in their squalid
misery, to the citizens of Athens or Rome; yet no
tradition concerning the origin of the Latin and
Hellenic states seems more trustworthy than that
which represents them as formed by the coalescence
of two or more village-communities, and indeed, even
in their most glorious forms, they appear to me
throughout their early history to belong essentially to
that type. It has often occurred to me that Indian
functionaries, in their vehement controversies about
the respective rights of the various classes which
make up the village-community, are unconsciously
striving to adjust, by a beneficent arbitration, the
claims and counter-claims of the Eupatrids and the
Demos, of the Populus and the Plebs. There is
even reason to think that one well-known result of
long civil contention in the great states of antiquity
has shown itself every now and then in the village-
communities, and that all classes have had to submit
to that sort of authority which assumed its most in-
nocent shape in the office of the Roman Dictator, its
more odious in the usurpation of the Greek Tyrant.
The founders of a part of one modern European aris-
tocracy, the Danish, are known to have been originally
LECT. III.
FEUDALISATION OF EUROPE.
85
peasants who fortified their houses during deadly vil-
lage struggles and then used their advantage.
Such commencements of nobility as that to which
I have just referred, appear, however, to have been ex-
ceptional in the Western world, and other causes must
be assigned for that great transformation of the Village-
Community which has been carried out everywhere in
England, a little less completely in Germany, much less
in Russia and in all Eastern Europe. I have attempted
in another work ('Village-Communities in the East
and West,' pp. 131 et seq.) to give an abridged account
of all that is known or has been conjectured on the
subject of that 'Feudalisation of Europe' which has
had the effect of converting the Mark into the Manor,
the Village-Community into the Fief; and I shall pre-
sently say much on the new light which the ancient
laws of Ireland have thrown on the early stages of the
process. At present I will only observe that, when
completed, its effect was to make the Land the exclu-
sive bond of union between men. The Manor or Fief
was a social group wholly based upon the possession
of land, and the vast body of feudal rules which
clustered round this central fact are coloured by it
throughout. That the Land is the foundation of the
feudal system has, of course, been long and fully re-
cognised; but I doubt whether the place of the fact
in history has been sufficiently understood. It marks
a phase in a course of change continued through long
86
DISSOLUTION OF FEUDAL GROUPS.
LECT. II.
ages and in spheres much larger than that of landed
property. At this point the notion of common kin-
ship has been entirely lost. The link between Lord
and Vassal produced by Commendation is of quite a
different kind from that produced by Consanguinity.
When the relation which it created had lasted some
time, there would have been no deadlier insult to the
lord than to attribute to him a common origin with
the great bulk of his tenants. Language still retains
a tinge of the hatred and contempt with which the
higher members of the feudal groups regarded the
lower; and the words of abuse traceable to this aver-
sion are almost as strong as those traceable to differ-
ences of religious belief. There is, in fact, little to
choose between villain, churl, miscreant, and boor.
The break-up of the feudal group, far advanced in
most European countries, and complete in France and
England, has brought us to the state of society in
which we live. To write its course and causes would
be to re-write most of modern history, economical as
well as political. It is not, however, difficult to see
that without the ruin of the smaller social groups,
and the decay of the authority which, whether popu-
larly or autocratically governed, they possessed over
the men composing them, we should never have had
several great conceptions which lie at the base of our
stock of thought. Without this collapse, we should
never have had the conception of land as an exchange-
LECT. III.
MODERN CONCEPTIONS.
87
able commodity, differing only from others in the
limitation of the supply; and hence, without it,
some famous chapters of the science of Political
Economy would not have been written. Without it,
we should not have had the great increase in modern
times of the authority of the State-one of many
names for the more extensive community held to-
gether by common country. Consequently, we
should not have had those theories which are the
foundation of the most recent systems of jurispru-
dence the theory of Sovereignty, or (in other words)
of a portion in each community possessing unlimited
coercive force over the rest and the theory of Law
as exclusively the command of a sovereign One or
Number. We should, again, not have had the fact
which answers to these theories-the ever-increasing
activity of Legislatures; and, in all probability, that
famous test of the value of legislation, which its
author turned into a test of the soundness of morals,
would never have been devised-the greatest happi-
ness of the greatest number.
In saying that the now abundant phenomena of
primitive ownership open to our observation strongly
suggest that the earliest cultivating groups were
formed of kinsmen, that these gradually became
bodies of men held together by the land which they
cultivated, and that Property in Land (as we now
understand it) grew out of the dissolution of these
88
NO SEPARATION OF STAGES.
LECT. III.
6
latter assemblages, I would not for a moment be
understood to assert that this series of changes can be
divided into stages abruptly separated from one
another. The utmost that can be affirmed is that
certain periods in this history are distinguished by
the predominance, though not the exclusive existence,
of ideas proper to them. Here, as elsewhere, the
world is full of survivals,' and the view of society
as held together by kinship still survives when it is
beginning to be held together by land. Similarly,
the feudal conception of social relations still exercises
powerful influence when land has become a mer-
chantable commodity. There is no country in which
the theory of land as a form of property like any
other has been more unreservedly accepted than our
own. Yet English lawyers live in face feodorum.
Our law is saturated with feudal principles, and our
customs and opinions are largely shaped by them.
Indeed, within the last few years we have even dis-
covered that vestiges of the village-community have
not been wholly effaced from our law, our usages, and
our methods of tillage.
The caution that the sequence of these stages
does not imply abrupt transition from any one to the
next seems to me especially needed by the student
of the Ancient Laws of Ireland. Dr. Sullivan, of
whose Introduction to the lately published lectures of
O'Curry I have already spoken, dwells with great
LECT. III. OWNERSHIP IN ANCIENT IRELAND.
89
emphasis on the existence of private property among
the ancient Irish, and on the jealousy with which it
was guarded. But though it is very natural that a
learned Irishman, stung by the levity which has
denied to his ancestors all civilised institutions,
should attach great importance to the indications of
private ownership in the Brehon law, I must say
that they do not, in my judgment, constitute its real
interest. The instructiveness of the Brehon tracts,
at least to the student of legal history, seems to me
to arise from their showing that institutions of
modern stamp may be in existence with a number of
rules by their side which savour of another and a
greatly older order of ideas. It cannot be doubted,
I think, that the primitive notion of kinship, as the
cement binding communities together, survived
longer among the Celts of Ireland and the Scottish
Highlands than in any Western society, and that it
is stamped on the Brehon law even more clearly than
it is upon the actual land-law of India. It is
perfectly true that the form of private ownership in
land which grew out of the appropriation of portions
of the tribal domain to individual households of
tribesmen is plainly recognised by the Brehon
lawyers; yet the rights of private owners are
limited by the controlling rights of a brotherhood of
kinsmen, and the control is in some respects even
more stringent than that exercised over separate
90
THE IRISH FAMILY.
LECT. III.
property by an Indian village-community. It is also
true that another form of ownership in land, that
which had its origin in the manorial authority of the
lord over the cultivating group, has also begun to
show itself; yet, though the Chief of the Clan is
rapidly climbing to a position answering to the Lord-
ship of a Manor, he has not fully ascended to it, and
the most novel information contained in the tracts is
that which they supply concerning the process of
ascent.
The first instructive fact which strikes us on the
threshold of the Brehon law is, that the same word,
'Fine,' or Family, is applied to all the subdivisions of
Irish society. It is used for the Tribe in its largest
extension as pretending to some degree of political
independence, and for all intermediate bodies down
to the Family as we understand it, and even for
portions of the Family (Sullivan, 'Introduction,'
clxii.). It seems certain that each of the various
groups into which ancient Celtic society was divided
conceived itself as descended from some one common
ancestor, from whom the name, or one of the names,
of the entire body of kinsmen was derived. Although
this assumption was never in ancient Ireland so
palpable a fiction as the affiliation of Greek races or
communities on an heroic eponymous progenitor, it
was probably at most true of the Chief and his
house so far as regarded the Irish Tribe taken as a
GN
493
BOX
MAY 2.3 1974
маза
1880
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493
M232
1880
BOX 10-2-74
V.R.
Lettered
10-3-74
L.L
LECT. III.
FAMILIES AND PLACES.
91
political unit. But it is probable that it was occa-
sionally, and even often true of the smaller group, the
Sept, sub-Tribe, or Joint Family, which appears to
me to be the legal unit of the Brehon tracts. The
traditions regarding the eponymous ancestor of this
group were distinct and apparently trustworthy, and
its members were of kin to one another in virtue of
their common descent from the ancestor who gave
his name to all. The chief for the time being was,
as the Anglo-Irish judges called him in the famous
Case of Gavelkind,' the caput cognationis.
Not only was the Tribe or Sept named after this
eponymous ancestor, but the territory which it occu-
pied also derived from him the name which was in
commonest use. I make this remark chiefly because
a false inference has been drawn from an assertion
of learned men concerning the connection between
names of families and names of places, which properly
understood is perfectly sound. It has been laid
down that, whenever a family and place have the
same name, it is the place which almost certainly
gave its name to the family. This is no doubt true
of feudalised countries, but it is not true of countries
as yet unaffected by feudalism. It is likely that
such names as 'O'Brien's Country' and 'Macleod's
Country' are as old as any appropriation of land by
man; and this is worth remembering when we are
tempted to gauge the intelligence of an early writer
92
CONSTITUTION OF IRISH TRIBE.
LECT. III.
by the absurdity of his etymologies. 'Hibernia'
from an eponymous discoverer, 'Hyber,' sounds
ridiculous enough; but the chronicler who gives it
may have been near enough the age of tribal society
to think that the connection between the place and
the name was the most natural and probable he could
suggest. Even the most fanciful etymologies of the
Greeks, such as Hellespont, from Helle, may have
been survivals' from a primitive tribal system of
naming places. In the relation between names and
places, as in much more important matters, feudalism
has singularly added to the importance of land.
6
Let me now state the impression which, partly.
from the examination of the translated texts, legal
and non-legal, and partly by the aid of Dr. Sulli-
van's Introduction, I have formed of the agrarian
organisation of an Irish Tribe. It has been long
settled, in all probability, upon the tribal territory.
It is of sufficient size and importance to constitute a
political unit, and possibly at its apex is one of the nu-
merous chieftains whom the Irish records call Kings.
The primary assumption is that the whole of the tribal
territory belongs to the whole of the tribe, but in fact
large portions of it have been permanently appro-
priated to minor bodies of tribesmen. A part is
allotted in a special way to the Chief as appurtenant
to his office, and descends from Chief to Chief accord-
ing to a special rule of succession. Other portions are
LECT. III.
CONSTITUTION OF IRISH TRIBE.
6
03
occupied by fragments of the tribe, some of which are
under minor chiefs or flaiths,' while others, though
not strictly ruled by a chief, have somebody of a
noble class to act as their representative. All the
unappropriated tribe-lands are in a more especial way
the property of the tribe as a whole, and no portion
can theoretically be subjected to more than a tempo-
rary occupation. Such occupations are, however, fre-
quent, and among the holders of tribe-land, on
these terms, are groups of men calling themselves
tribesmen, but being in reality associations formed
by contract, chiefly for the purpose of pasturing
cattle. Much of the common tribe-land is not occu-
pied at all, but constitutes, to use the English expres-
sion, the 'waste' of the tribe. Still this waste is
constantly brought under tillage or permanent pas-
ture by settlements of tribesmen, and upon it cul-
tivators of servile status are permitted to squat, par-
ticularly towards the border. It is the part of the
territory over which the authority of the Chief tends
steadily to increase, and here it is that he settles his
fuidhir,' or stranger-tenants, a very important class
-the outlaws and broken' men from other tribes
who come to him for protection, and who are only
connected with their new tribe by their dependence
on its chief, and through the responsibility which he
incurs for them.
6
6
There is probably great uniformity in the compo-
94
UNIFORMITY OF GROUPS.
LECT. III.
sition of the various groups occupying, permanently
or temporarily, the tribal territory. Each seems to
be more or less a miniature of the large tribe which
includes them all. Each probably contains free-
men and slaves, or at all events men varying mate-
rially in personal status, yet each calls itself in some
sense a family. Each very possibly has its appro-
priated land and its waste, and conducts tillage and
grazing on the same principles. Each is either
under a Chief who really represents the common an-
cestor of all the free kinsmen, or under somebody
who has undertaken the responsibilities devolving
according to primitive social idea upon the natural
head of the kindred. In enquiries of the class upon
which we are engaged the important fact which I
stated here three years ago should always be borne
in mind. When the first English emigrants settled
in New England they distributed themselves in vil-
lage communities; so difficult is it to strike out new
paths of social life and new routes of social habit.
It is all but certain that, in such a society as that of
which we are speaking, one single model of social
organisation and social practice would prevail, and
none but slight or insensible departures from it
would be practicable or conceivable.
But still the society thus formed is not altogether
stationary. The temporary occupation of the com-
mon tribe-land tends to become permanent, either
LECT. III.
GROUPS NOT STATIONARY.
95
through the tacit sufferance or the active consent of
the tribesmen. Particular families manage to elude
the theoretically periodical re-division of the common
patrimony of the group; others obtain allotments
with its consent as the reward of service or the
appanage of office; and there is a constant transfer of
lands to the Church, and an intimate intermixture of
tribal rights with ecclesiastical rights. The establish-
ment of Property in Severalty is doubtless retarded
both by the abundance of land and by the very law
under which, to repeat the metaphor of the Indian
poetess, the tribal society has crystallised, since each
family which has appropriated a portion of tribe-land
tends always to expand into an extensive assemblage
of tribesmen having equal rights. But still there is a
co-operation of causes always tending to result in
Several Property, and the Brehon law shows that by
the time it was put into shape they had largely
taken effect. As might be expected, the severance of
land from the common territory appears to have been
most complete in the case of Chiefs, many of whom
have large private estates held under ordinary tenure
in addition to the demesne specially attached to their
signory.
Such is the picture of Irish tribal organisation in
relation to the land which I have been able to present
to my own mind. All such descriptions must be
received with reserve: among other reasons, because
96
THEORIES OF RACE.
LECT. III.
even the evidence obtainable from the law-tracts is
still incomplete. But if the account is in any degree
correct, all who have attended to this class of subjects
will observe at once that the elements of what we are
accustomed to consider the specially Germanic land-
system are present in the territorial arrangements of
the Irish tribe. Doubtless there are material dis-
tinctions. Kinship as yet, rather than landed right,
knits the members of the Irish groups together. The
Chief is as yet a very different personage from the
Lord of the Manor. And there are no signs as yet
even of the beginnings of great towns and cities.
Still the assertion, which is the text of Dr. Sullivan's
treatise, may be hazarded without rashness, that
everything in the Germanic has at least its embryo
in the Celtic land system. The study of the Brehon
law leads to the same conclusion pointed at by so
many branches of modern research. It conveys a
stronger impression than ever of a wide separation
between the Aryan race and races of other stocks,
but it suggests that many, perhaps most, of the dif
ferences in kind alleged to exist between Aryan sub-
races are really differences merely in degree of
development. It is to be hoped that contemporary
thought will before long make an effort to emancipate
itself from those habits of levity in adopting theories
of race which it seems to have contracted. Many of
LECT. III.
THEORIES OF RACE
97
these theories appear to have little merit except the
facility which they give for building on them infer-
ences tremendously out of proportion to the mental
labour which they cost the builder.
H
1
98
TRIBAL PROPERTY IN IRELAND.
LECT. IV.
LECTURE IV.
THE TRIBE AND THE LAND.
It has been very commonly believed that, before
the agrarian measures of James the First, Ireland was
one of the countries in which private property in land
was invested with least sacredness, and in which
forms of ownership generally considered as bar-
barous most extensively prevailed. Spenser and
Davis certainly suggest this opinion, and several
modern writers have adopted it. The Brehon law-
tracts prove, however, that it can only be received
with considerable qualification and modification, and
they show that private property, and especially
private property in land, had long been known in
Ireland at the epoch to which they belong, having
come into existence either through the natural dis-
integration of collective ownership or through the
severance of particular estates from the general
tribal domain. Nevertheless it cannot, I think, be
doubted that at the period to which the tracts are
an index much land was held throughout Ireland
under rules or customs savouring of the ancient
LECT. IV.
TANISTRY AND GAVELKIND.
99
collective enjoyment, and this I understand Dr.
Sullivan to allow. (Introduction, p. cxliv.)
Part of the evidence of the fact just stated is
tolerably familiar to students of Irish history. At
the beginning of the seventeenth century the Anglo-
Irish Judges declared the English Common Law to
be in force throughout Ireland, and from the date of
this decision all land in the country descended to the
eldest son of the last owner, unless its devolution was
otherwise determined by settlement or will. In Sir
John Davis's report of the case and of the arguments
before the Court, it is recited that hitherto all land
in Ireland had descended either under the rule of
Tanistry or under the rules of Gavelkind. The
system of inheritance here called Gavelkind is thus
described: When a landowning member of an Irish
Sept died, its chief made a re-distribution of all the
lands of the Sept. He did not divide the estate of
the dead man among his children, but used it to
increase the allotments of the various households of
which the Sept was made up. The Judges treated
both Tanistry and Gavelkind as systems of succession
after death, of a peculiarly barbarous and mischievous
kind; and, as systems of succession, I shall consider
them hereafter. But all systems of succession after
death bear a close relation to ancient modes of en-
joyment during life; for instance, in the Joint Undi-
H 2
Up
100
IRISH GAVELKIND.
LECT. IV.
vided Family of the Hindoos, the stirpes, or stocks,
which are only known to European law as branches
of inheritors, are actual divisions of the family, and
live together in distinct parts of the common dwelling.
('Calcutta Review,' July 1874, p. 208.) The so-
called Irish Gavelkind belongs to a class of institu
tions very common in the infancy of law; it is a
contrivance for securing comparative equality among
the joint proprietors of a common fund. The re-
distribution here takes place at the death of a head
of a household; but if equality were secured by what
is practically the same process-viz., re-division after
a fixed period of years—an institution would be pro-
duced which has not quite died out of Europe at the
present moment, and of which there are traditions in
all old countries. At the same time I have no doubt
that, when the Irish Gavelkind was declared illegal,
it was very far from being the only system of succes-
sion known to Ireland except Tanistry, and I think it
probable that many different modes of enjoyment
and inheritance were abolished by the decision giving
the land to the eldest son.
It was the actual observation of peculiar agricul-
tural usages, special methods of cultivation, and
abnormal rules of tenure, which mainly enabled G.
L. Von Maurer to restore the German Mark to know-
ledge; and it was by using Von Maurer's results as
his key that Nasse was able to decipher the scattered
LECT. IV.
RUNDALE HOLDINGS.
101
references to the 'Agricultural Community of the
Middle Ages' in a variety of English documents. I
venture to think that this class of observation has not
been carried far enough in Ireland to yield material
for a confident opinion, but there certainly seem to
be vestiges of ancient collective enjoyment in the
extensive prevalence of 'rundale' holdings in parts
of the country. Under this system a definite area of
land is occupied by a group of families. In the form
now most common, the arable lands are held in se-
veralty, while pasture and bog are in common. But
as lately as fifty years since, cases were frequent in
which the arable land was divided into farms which
shifted among the tenant-families periodically, and
sometimes annually. Even when no such division
was made, a well-known relic of the Mark-system, as
it showed itself in Germany and England, was occa-
sionally found: the arable portion of the estates was
composed of three different qualities of soil, and each
tenant had a lot or lots in the land of each quality,
without reference to position. What was virtually
the same system of tenure prevailed quite recently in
the Scottish Highlands. I have ascertained that the
families which formed the village-communities only
just extinct in the Western Highlands had the lands
of the village re-distributed among them by lot at
fixed intervals of time; and I gather from Mr. Skene's
valuable note on 'Tribe Communities in Scotland'
102
OWNERSHIP AND OCCUPATION.
LECT. IV.
(appended to the second volume of his edition of
Fordun's Chronicle), that he believes this system of
re-division to have been once universal, or at least
widely extended, among the Scottish Celts.
It is to be observed that (so far as I am able to
learn) the Irish holdings in 'rundale' are not forms of
property, but modes of occupation. There is always
some person above who is legally owner of all the
land held by the group of families, and who,
theoretically, could change the method of holding,
although, practically, popular feeling would put the
greatest difficulties in his way. We must bear in
mind, however, that archaic kinds of tenancy are con-
stantly evidence of ancient forms of proprietorship.
This is so in countries in which superior ownership
has arisen through the natural course of events-
through purchase from small allodial proprietors,
through colonisation of village waste-lands become
in time the lord's waste, or (in an earlier state of
society) through the sinking of whole communities of
peasants into villeinage, and through a consequent
transformation of the legal theory of their rights.
But all this process of change would be gravely mis-
construed if it were supposed that, because a Chief or
Lord had come to be recognised as legal owner of
the whole tribal domain, or of great portions of it, he
therefore altered the accustomed methods of occupa-
tion and cultivation, or (as some would even seem to
LECT. IV.
THE CORUS BESCNA.
103
think) he began at once to regard the occupying
peasantry as modern lessees or modern tenants at
will. No doubt the ancient type of ownership long
served as the model for tenancy; and the common
holdings, dying out as property, survived as occupa-
tion. And, if this were the case in other countries,
much more would it be so in Ireland, where property
has changed hands so often and so violently; where
during whole centuries, the owners of land neither
regarded, nor were in a position to regard, the occu-
piers save as payers of rent and dues; and where the
conception of a landlord acting on his legal ownership
with a view to improvement and increase of produc-
tion is altogether modern.
The chief Brehon law-tract, which sets forth the
mutual rights of the collective tribe and of individual
tribesmen or households of tribesmen in respect of
tribal property, is called the Corus Bescna, and is
printed in the Third Volume of the official edition.
It presents great difficulties. I quite agree with the
Editors that the commentary and glosses constantly
contradict and obscure the text, either because the
commentators did not understand it or because they
belonged to a later period and a different stage of
legal relations. But the most serious doubt which
occurs to the student of the text arises from the
strong and palpable bias of the compiler towards the
interests of the Church; indeed, part of the tract is
104
INFLUENCE OF THE CHURCH.
LECT. IV.
avowedly devoted to the law of Church property and
of the organisation of religious houses. When this
writer affirms that, under certain circumstances, a
tribesman may grant or contract away tribal land, his
ecclesiastical leaning constantly suggests a doubt as
to his legal doctrine. Does he mean to lay down that
the land may be parted with generally and in favour
of anybody, or only that it may be alienated in favour
of the Church? This difficulty of construction has
an interest of its own. I am myself persuaded that
the influence of the Christian Church on law has been
very generally sought for in a wrong quarter, and
that historians of law have too much overlooked its
share in diffusing the conceptions of free contract,
individual property, and testamentary succession,
through the regions beyond the Roman Empire
which were peopled by communities held together by
the primitive tie of consanguinity. It is generally
agreed among scholars that Churchmen introduced
these races to wills and bequests; the Brehon tracts
suggest to me at least that, along with the sacredness
of bequests, they insisted upon the sacredness of con-
tracts; and it is well known that, in the Germanic
countries, their ecclesiastical societies were among the
earliest and largest grantees of public or 'folk'
land (Stubbs, 'Constitutional History,' vol. i. p. 154).
The Will, the Contract, and the Separate Ownership
were in fact indispensable to the Church as the donee
LECT. IV.
THE
FINE' THE SEPT.
105
of pious gifts; and they were also essential and char-
acteristic elements in the civilisation amid which the
Church had been reared to maturity. It is possible
that the compiler of the Corus Bescna may have been
an ecclesiastic, as he certainly would have been in any
society except the Irish; but, if he were a lawyer, he
writes as a lawyer would state the case on behalf of a
favourite and important client. Let me add that all
the Brehon writers seem to me to have a bias towards
private or several, as distinguished from collective,
property. No doubt it was then, as always, the great
source of legal business, and it may have seemed to
them, and it possibly was, the index to such advance
in civilisation as their country was capable of
making.
My own strong opinion is that the 'Fine,' whose
rights and powers are the principal theme of the
Corus Bescna, and whose name the translators render
'Tribe,' is neither the Tribe in its largest extension,
nor, on the other hand, the modern Family or group
of descendants from a living ancestor, but the Sept.
It is a body of kinsmen whose progenitor is no longer
living, but whose descent from him is a reality, and
neither a myth nor a fiction. It is the Joint Family
of the Hindoos, but with the characteristics of that
group considerably modified through settlement on
the land. This peculiar assemblage or corporation
of blood-relatives, which has been referred to by me
106
THE JOINT UNDIVIDED FAMILY.
LECT. IV.
several times before, is formed by the continuance
of the family union through several, and it may be
through an indefinite number of generations. The
rule throughout most of the civilised world is that,
for all purposes of law, families are broken up into
up
individuals or dissolved into a number of new families
by the death of their head. But this is not necessarily
the case.
The
group made of those whom we
vaguely call our relatives-of our brothers, nephews,
great-uncles, uncles, and cousins, no less than those
related to us in the ascending and descending lines-
might very well, after any number of deaths, remain
knitted together not only by blood and affection, but
by mutual rights and duties prescribed or sanctioned
by the law. An association of this sort is well known
to the law of India as the Joint Undivided Family, or,
to give the technical description, the Family, 'joint in
food, worship, and estate.' If a Hindoo has become
the root of a family it is not necessarily separated
by his death; his children continue united for
legal purposes as a corporate brotherhood, and
some definite act of one or more of the brethren is
required to effect a dissolution of the plexus of mutual
rights and a partition of the family property. The
family thus formed by the continuance of several
generations in union is identical in outline with a
group very familiar to the students of the older
Roman law-the Agnatic Kindred. The Agnates
LECT. IV. THE TRIBE OF THE BREHON TRACTS.
107
were that assemblage of persons who would have been
under the patriarchal authority of some common an-
cestor, if he had lived long enough to exercise it. The
Joint Family of the Hindoos is that assemblage of
persons who would have joined in the sacrifices at
the funeral of some common ancestor, if he had died
in their lifetime. In the last case the sacerdotal
point of view merely takes the place of the legal or
civil.
So far as we are able, amid the disadvantages
under which we are placed by the obscurity of our
authorities, let us examine the legal qualities which
the ancient Irish law attributes to this brotherhood
of kinsmen as it was found in Ireland. First of
all, the 'Tribe' of the Brehon tracts is a corporate,
organic, self-sustaining unit. 'The Tribe sustains
itself.' ('Ancient Laws of Ireland,' ii. 283.) Its
continuity has begun to depend on the land which it
occupies—' land,' says one of the still unpublished
tracts, 'is perpetual man'—but it is not a purely
land-owning body; it has 'live chattels and dead
chattels,' distinguished from those of individual tribes-
men. ('Ancient Laws of Ireland,' ii. 289.) Nor is it
a purely cultivating body; it may follow a pro-
fessional calling. (Ibid., iii. 49-51.) A portion of
the tribal domain, probably the arable and choice
pasture lands, has been allotted to separate households
of tribesmen, but they hold their allotments subject
108
ALIENATION OF TRIBE LAND.
(
LECT. IV.
to the controlling rights of the entire brotherhood,
and the primary or fundamental rule is that they are
to keep their shares of tribe-land intact. Every
tribesman is able to keep his tribe-land; he is not to
sell it or alienate or conceal it, or give it to pay for
crimes or contracts.' ('Ancient Laws of Ireland,' ii.
283.) 'No person should leave a rent upon his land
or upon his tribe which he did not find upon it.'
(Ibid., iii. 52, 53.) Everyone is wealthy who keeps
his tribe-land perfect as he got it, who does not leave
greater debt upon it than he found on it.' (Ibid.,
iii. 55.)
Under certain circumstances the tribesman may
alienate, by grant, contract, or bequest, a certain
quantity of the tribe-land allotted to him; but what
are the circumstances, and what the quantity, are
points on which we cannot venture to make any
precise statement, so obscure and contradictory are
the rules set forth. But the grantee primarily con-
templated is certainly the Church, though it seems
clear that there is a general power of alienation, either
with the consent of the entire tribal brotherhood or
under pressure of strong necessity.
of strong necessity. It further appears
to be beyond question that the tribesman has consider-
ably greater power of disposition over property which
he has acquired than over property which has devolved
on him as a member of a tribe, and that he has more
power over acquisitions made by his own unaided
LECT. IV.
ALIENATION OF TRIBE LAND.
109
industry than over acquisitions made through profits
arising from the cultivation of tribal land. 'No per-
son should grant land except such as he has purchased
himself, unless by the common consent of the tribe.
('Ancient Laws of Ireland,' iii. 52, 53.) 'He who
has not sold or bought (i.e., he who keeps his tribe-
land as he obtained it) is allowed to make grants,
each according to his dignity (i.e., as the commentator
explains, to the extent of one-third or one-half of his
tribe-land).' 'He who neither sells nor purchases
may give as far as the third of his tribe-share in case
of little necessity and one-half in case of great neces-
sity.' (Ancient Laws of Ireland,' iii. 47.)
land that acquires it, it is one-half;
if he be a
professional man, it is two-thirds of his contracts
(iii. 49).
•
If it be
The distinction between acquired property and
property inherited or received from kinsmen, and
the enlarged power of parting with the first, are
found in many bodies of ancient law-in our own
early law among others. The rule that alienations,
otherwise unlawful, may be made under pressure of
necessity, is found in many parts of Hindoo law.
The rule requiring the consent of the collective
brotherhood to alienations, with many minor rules
of this part of Brehon law, constantly forms part of
the customs of Indian and Russian village-communi-
ties; and the duty of following common practices of
110
PROFESSIONAL TRIBES.
LECT. IV.
tillage, which is the bequest from these communities
which lasted longest in the Germanic countries, is
classed by the Corus Bescna, along with Marriage,
as one of the fundamental institutions of the Irish
people. ('Ancient Laws of Ireland,' iii. 17.) But
much the most striking and unexpected analogies in
the Brehon law on the subject of Tribesmen and the
Tribe are those which it has with the Hindoo law of
Joint Undivided Families. Under the Brahminical
Indian law, whenever a member of a joint family has
acquired property through special scientific know-
ledge or the practice of a liberal art, he does not
bring it into the common fund, unless his accomplish-
ments were obtained through a training given to him
by his family or at their expense. The whole law on
the subject was much considered in a strange case
which arose before the High Court of Madras
(Madras High Court Reports,' ii. 56), where a joint
family claimed the gains of a dancing-girl. The de-
cision of the Court is thus summarised by the Re-
porter: The ordinary gains of science are divisible
(i.e., they are brought into hotchpot upon partition of
an undivided estate), when such science has been
imparted at the family expense and acquired while
receiving a family maintenance. It is otherwise
when the science has been imparted at the expense
of persons not members of the learner's family.' The
very counterparts of the Indian rule and of the Indian
LECT. IV. THE TRIBE AND THE JOINT FAMILY.
111
exception are found in the ancient Irish law. 'If
(the tribesman) be a professional man—that is, if the
property be acquired by judicature or poetry, or any
profession whatsoever he is capable of giving two-
thirds of it to the Church . . . but, if it was the
lawful profession of his tribe, he shall not give of
the emolument of his profession but just as he could
give of the land of his tribe.' (Corus Bescna, 'Ancient
Laws of Ireland,' iii. 5.)
It will be seen from the instances which I have
given that the rules of the Irish Brehon law regulating
the power of individual tribesmen to alienate their
separate property answer to the rules of Indian
Brahminical law which regulate the power of indi-
vidual members of a joint family to enjoy separate
property. The difference is material. The Hindoo
law assumes that collective enjoyment by the whole
brotherhood is the rule, and it treats the enjoyment
of separate property by individual brethren as an
exception-an exception, I may add, round which an
enormous mass of law has now clustered. On the
other hand, the Brehon law, so far as it can be un-
derstood, seems to me reconcileable with no other
assumption than that individual proprietary rights
have grown up and attained some stability within
the circle of the tribe. The exercise of these rights
is at the same time limited by the controlling powers
of the collective brotherhood of tribesmen; and to
112
IRISH CO-TENANCY.
LECT. IV.
these last, as to the Agnatic Kindred at Rome, some
ultimate right of succession appears to be reserved.
Hence the Irish legal unit is not precisely a Joint
Family; if the Brehon law is to be trusted, it has
considerably less of the 'natural communism' which
characterises the Indian institution. The 'Fine' of
the tracts is constantly spoken of in connection with
landed property, and, whenever it is so connected, I
imagine it to have undergone some of the changes
which are constantly brought about by contact with
the land, and I figure it to myself in that case as
a Mark or Village-Community, in which the ideas
proper to the older group out of which it grew, the
Joint Family, have survived in exceptional strength.
It in this respect approaches the Russian rather than
the Indian type of village-community.
6
6
The Judgments of Co-Tenancy' is a Brehon
law-tract, still unpublished at the time at which I
write, and presenting, in its present state, consider-
able difficulties of interpretation. It puts, at the
outset, the question,- Whence does Co-Tenancy
arise?' The answer given is, 'From several heirs
and from their increasing on the land.' The tract
then goes on to explain that the land is, in the first
year,
to be tilled by the kinsmen just as each pleases;
that in the second year they are to exchange lots;
that in the third year the boundaries are to be
fixed; and that the whole process of severance is to
LECT. IV. STAGES IN HISTORY OF CULTIVATING GROUPS. 113
be consummated in the tenth year. I trust it is
not a presumptuous conjecture that the order of
change here indicated is more trustworthy than the
time fixed for each of its stages. The period of
ten years for the entire transition from collective to
separate property seems to me greatly too short, and
hard to reconcile with other Irish evidence; and I
suggest that the Brehon lawyer, attached to the
institution of separate property, like the rest of his
class, is depicting rather an ideal than an actual set
of arrangements. The process, however, which is
here described, if it be spread over a much longer
space of time, is really in harmony with all our
knowledge of the rise and progress of cultivating
communities. First a Joint Family, composed of 'se-
veral heirs increasing on the land,' is found to have
made a settlement. In the earliest stage the various
households reclaim the land without set rule. Next
comes the system of exchanging lots. Finally, the
portions of land are enjoyed in severalty.
The references to the ancient collective owner-
ship and ancient collective enjoyment in the non-
legal Irish literature appear to be very rare. But my
friend Mr. Whitley Stokes has supplied me with two
passages in point. The 'Liber Hymnorum,' attri-
buted to the eleventh century, contains (folio 5a) the
following statement: Numerous were the human
beings in Ireland at that time (i.e. the time of the
"
1
114
PERIODICAL ALLOTMENTS IN IRELAND. LECT. IV.
6
sons of Aed Slane, A.D. 658-694), and such was their
number that they used to get only thrice nine
ridges for each man in Ireland, to wit, nine of bog,
and nine of smooth (arable), and nine of wood.'
Another Irish manuscript, believed to date from the
twelfth century, the Lebor na Huidre,' says that
'there was not ditch, nor fence, nor stone-wall
round land, till came the period of the sons of Aed
Slane, but (only) smooth fields. Because of the
abundance of the households in their period, there-
fore it is that they introduced boundaries in Ireland.'
These curious statements can, of course, only be
regarded as authority for the existence, at the time
when they were penned, of a belief that a change
from a system of collective to a system of restricted
enjoyment had occurred at some period or other in
Ireland, and of a tradition respecting the date of the
change. But it is instructive to find both of them
attributing it to the growth of population, and an
especial interest attaches to the account given in the
'Liber Hymnorum' of the newer distribution of
land which was thought to have taken the place of
something older. The periodical allotment to each
household of a definite portion of bog land, wood
land, and arable land wears a strong resemblance to
the apportionment of pasture and wood and arable
land which still goes on in our day under the com-
munal rules of the Swiss Allmenden (see Laveleye,
LECT. IV. DOUBLE ORIGIN OF LANDED PROPERTY.
115
'P. et s. F. P.,' pp. 268 et seq.), and which is an un-
doubted legacy from the ancient constitution of cer-
tain Swiss Cantons as Teutonic Hundreds.
Property in Land, wherever it has grown out of
the gradual dissolution of the ancient cultivating
communities, has many characteristics which distin-
guish it from the form of landed property with which
Englishmen and men of English race are best ac-
quainted. The area within which this last form of
property is the sole or dominant kind of ownership
is now much larger than it was, through its diffusion
over all North America, except Mexico, and over all
colonies settled for the first time by Englishmen,
but our nearly exclusive familiarity with it has led, I
think, to our very commonly over-estimating the ex-
tent to which it prevails over the world, and even over
Western Europe. Its parentage may be traced, not to
the decaying authority of the Tribe over the several-
ties of the tribesmen, but to the ever-increasing
authority of the Chief, first over his own domain and
'booked' land, and secondarily over the tribe-lands.
The early growth of the power of the Chief is thus of
the utmost interest in the history of landed property,
and I propose to discuss it at some length in the suc-
ceeding Lectures. Meantime, let me say something
on the transmutations which Patriarchal Power is
observed, as a fact, to undergo in the assemblages of
I 2
116 EXPANSION OF THE PATRIARCHAL FAMILY. LECT. IV.
men held together by kinship which are still found
making a part of Aryan communities.
The Joint Undivided Family, wherever its be-
ginning is seen in such communities, springs univer-
sally out of the Patriarchal Family, a group of natural
or adoptive descendants held together by subjection
to the eldest living ascendant, father, grandfather, or
great-grandfather. Whatever be the formal prescrip-
tions of the law, the head of such a group is always
in practice despotic, and he is the object of a respect,
if not always of an affection, which is probably seated
deeper than any positive institution. But in the
more extensive assemblages of kinsmen which consti-
tute the Joint Family the eldest male of the eldest
line is never the parent of all the members, and not
necessarily the first in age among them. To many
of them he is merely a distant relative, and he may
possibly be an infant. The sense of patriarchal right
does not die out in such groups. Each father or grand-
father has more power than anybody else over his wife,
children, and descendants; and there is always what
may be called a belief that the blood of the collective
brotherhood runs more truly and purely in some one
line than in any other. Among the Hindoos, the eldest
male of this line, if of full mental capacity, is gene-
rally placed at the head of the concerns of the joint
family; but where the institution survives in any
completeness, he is not a Paterfamilias, nor is he
LECT. IV.
ELECTIVE HEADSHIP OF FAMILIES.
117
owner of the family property, but merely manager
of its affairs and administrator of its possessions. If
he is not deemed fit for his duties, a 'worthier' kins-
man is substituted for him by election, and, in fact,
the longer the joint family holds together, the more
election gains ground at the expense of birth. The
head or manager of the Sclavonic House-Communities.
which, however, are much more artificial than the
Hindoo Joint Families) is undisguisedly an elective
representative, and in some of our examples a
council of kinsmen belonging to the eldest line of
descent takes the place of an individual administrator.
The whole process I will describe as the gradual
transmutation of the Patriarch into the Chief.
The general rule is that the Chief is elected, with a
strong preference for the eldest line. Sometimes he
is assisted by a definite council of near kinsmen,
and sometimes this council takes his place. On the
whole, where the body of kinsmen formed on the type
of the Joint Family is a purely civil institution, the
tendency is towards greater disregard of the claims
of blood. But in those states of society in which the
brotherhood is not merely a civil confraternity, but a
political, militant, self-sustaining group, we can per-
ceive from actually extant examples that a separate
set of causes come into operation, and that the Chief,
as military leader, sometimes more than regains the
privileges which he lost through the decay of the
113
REVIVAL OF PATRIA POTESTAS.
LECT. IV.
tradition which connected him with the common
root of all the kindred. True patriarchal authority,
however, revives whenever the process of expansion
into a group is interrupted and whenever one of the
brotherhood plants himself at a distance from the rest.
A Hindoo who severs himself from a Joint Family,
which the law as administered by the English tribu-
nals gives him great facilities for doing, acquires
much greater power over his family, in our sense of
the word, than he had as a member of the larger
brotherhood. Similarly, in the developed Joint
Family or Village-Community, as the little society
becomes more populous, as the village spreads, as the
practice of living in separate dwellings extends, as the
land rather than the common lineage gets to be re-
garded as the cement of the brotherhood, each man
in his own house practically obtains stringent patri-
archal authority over his wife, children, and servants.
But then, on the other hand, the separated member
of the joint family, or the head of the village house-
hold, will himself become the root of a new joint
brotherhood, unless his children voluntarily dissolve
the family union after his death. Thus all the
branches of human society may or may not have
been developed from joint families which arose out of
an original patriarchal cell; but, wherever the Joint
Family is an institution of an Aryan race, we see it
springing from such a cell, and, when it dissolves, we
see it dissolving into a number of such cells.
LECT. V. DOUBLE ORIGIN OF LANDED PROPERTY.
119
LECTURE V.
THE CHIEF AND HIS ORDER.
NOTHING Seems to me to have been more clearly
shown by recent researches than the necessity of
keeping apart the Tribe and the Tribal Chief as dis-
tinct sources of positive institutions. The lines of
descent are constantly entwined, but each of them is
found to run up in the end to an independent origin.
If I were to apply this assertion to political history,
I should be only repeating much of what has been
said by Mr. Freeman in his excellent work on ‘Com-
parative Politics.' Confining myself to the history
of private institutions, let me observe that the dis-
tinction which I have drawn should be carefully
borne in mind by those who desire to penetrate to
the beginnings of Property in Land. The subject has
been greatly obscured by the practice, now brought
home to the early writers on feudal law, of syste-
matically passing over or misconstruing all forms of
proprietary enjoyment which they could not explain
on their own principles; and hitherto the truth has
only been directly seen through some of the rules of
120
DOUBLE ORIGIN OF LANDED PROPERTY. LECT. V.
tenure. It
It may now, however, be laid down without
rashness that Property in Land, as known to commu-
nities of the Aryan race, has had a twofold origin.
It has arisen partly from the disentanglement of the
individual rights of the kindred or tribesmen from the
collective rights of the Family or Tribe, and partly
from the growth and transmutation of the sovereignty
of the Tribal Chief. The phenomena attributable to
the double process seem to me easily distinguishable
from one another. Both the sovereignty of the Chief
and the ownership of land by the Family or Tribe
were in most of Western Europe passed through the
crucible of feudalism; but the first reappeared in
some well-marked characteristics of military or
knightly tenures, and the last in the principal rules
of non-noble holdings, and among them of Socage, the
distinctive tenure of the free farmer. The status of
the Chief has thus left us one bequest in the rule of
Primogeniture, which, however, has long lost its most
ancient form; another in the right to receive certain
dues and to enforce certain monopolies; and a third
in a specially absolute form of property which was
once exclusively enjoyed by the Chief, and after him
by the Lord, in the portion of the tribal territory
which formed his own domain. On the other hand,
several systems of succession after death, and among
them the equal division of the land between the chil-
dren, have sprung out of tribal ownership in various
LECT. V. TWO FORMS OF PROPERTY IN FRANCE.
121
stages of decay; and it has left another set of traces
(not quite so widely extended), in a number of minute
customary rules which govern tillage and occasionally
regulate the distribution of the produce.
The fate of this double set of institutions in Eng-
and and in France appears to me most instructive. I
have frequently dwelt in this place on the erroneousness
of the vulgar opinion which dates the extreme subdivi-
sion of the soil of France from the first French Revo-
lution, and from the sale of the Church lands and of
the estates of the emigrant nobility. A writer-I
was going to say as commonly read as Arthur Young,
but certainly as often mentioned as if he were com-
monly read-notices this morcellement, on the very
eve of the French Revolution, and immediately after
it, as the great feature which distinguished France
from England. From what we see in England,' he
says, ('Travels in 1787, '88, and '89,' p. 407)' we can-
not form an idea of the abundance in France of small
properties, that is, little farms belonging to those who
cultivate them.' He estimates that more than a third
of the kingdom was occupied by them-a very large
proportion, when the extent of Church land in France
is taken into account; but recent French investiga-
tions have shown reasons for thinking that the true
proportion was still larger, and that it was rather
growing than diminishing, through that extravagance
of the nobles which Court life fostered, and which
6
122
PRIMOGENITURE AND EQUAL DIVISION. LECT. V.
compelled them to sell their domains to peasants in
small parcels. Young clearly saw that this subdivi-
sion of the soil was the result of some legal rule; and
strongly dissenting from the Revolutionary leaders
who wished to carry it farther, he declared that
a law ought to be passed to render all division below
a certain number of arpents illegal.'
It seems to have very generally escaped notice
that the law of equal or nearly equal division.
after death was the general law of France. The
rule of primogeniture was of exceptional appli-
cation, and was for the most part confined to lands.
held by knightly tenure; indeed, in the South
of France, where the custom of equal division was
strengthened by the identical rule of the Roman juris-
prudence, the privileges of the eldest son were only
secured by calling in the exceptional rules of which
the Roman Law gives the benefit to milites (or
soldiers on service) when making their wills or regu-
lating their successions, and by laying down that
every chevalier, and every noble of higher degree,
was a miles within the meaning of the Roman juridi-
cal writers. The two systems of succession and the
two forms of property lay side by side, and there
were men alive quite recently who could remember
the bitter animosities caused by their co-existence
and antagonism. A very great part of the land held
by laymen belonged to the peasantry, and descended
LECT. V.
SIGNORIAL DUES.
123
according to the rule of equal division, but eldest son
after eldest son succeeded to the signory. Yet it
was not the rule of primogeniture followed in noble
descents which was the true grievance; at most it
became a grievance under the influence of the peculiar
vein of sentiment introduced by Rousseau. The
legacy from tribal sovereignty to signorial privilege,
which was really resented, was that which I placed
second in order. The right to receive feudal dues
and to enforce petty monopolies, now almost extin-
guished in England by the measures to which the
Copyhold Commission has given effect, had ceased long
before the end of the last century to be of any consi-
derable importance to the class which was invested
with it; but M. de Tocqueville has explained, in his
'Ancien Régime' (i. 18), that it made up almost the
entire means of living which the majority of the
French nobility possessed. A certain number of
noblemen, besides their feudal rights, had their terres,
or domain, belonging to them in absolute property, and
sometimes of enormous extent; and the wealthiest
members of this limited class, the grands, who so
frequently appear in French Court history, but who,
away from the Court, were much the most respected
and beloved of their order, formed the counterpart,
from the legal point of view, of the English landed
proprietary. The rest of the nobles lived mainly, not
on rent, but on their feudal dues, and eked out a
124
SIGNORIAL DUES.
LECT. V.
meagre subsistence by serving the King in arms.
The sense of property in the soil was thus not in the
lord but in the peasantry; and the peasantry viewed
the exercise of signorial rights with a feeling closely
akin to that which is inspired by a highly oppressive
tax. The condition of sentiment produced by it is
even now a political force of some moment in France;
and a similar, though a far weaker, repulsion is known
to have been caused in this country by the taking of
tithes in kind. It is a significant fact that, where
the ownership is acknowledged to reside in the
superior holder, the exaction of even an extreme
rent from the tenants below has very rarely been
regarded with the same bitterness of resentment.
The change, therefore, which took place in France
at the first Revolution was this: the land-law of
the people superseded the land-law of the nobles.
In England the converse process has been gone
through, and what has occurred is obviously in har-
mony with much else in English history. The system
of the nobles has become in all essential particulars
the system of the people. The rule of primogeniture,
which once applied only to knightly holdings, came
to apply to the great bulk of English tenures, except
the Gavelkind of Kent and some others of merely
local importance. This part of the change took place
at a remote epoch, and its circumstances are involved
in much obscurity; and we know little more of it
LECT. V. CONTRAST BETWEEN FRANCE AND ENGLAND. 125
with certainty than that it was rapidly proceeding
between the time at which Glanville and the time at
which Bracton wrote. Glanville, probably not earlier
than the thirty-third year of Henry the Second's reign,
expresses himself as if the general rule of law caused
lands held by free cultivators in socage to be divided
equally between all the male children at the death of
the last owner; Bracton, probably not later than the
fifty-second year of Henry the Third, writes as if the
rule of primogeniture applied universally to military
tenures and generally to socage tenures. But another
branch of the process was postponed almost to our
own day. Possibly not many Englishmen have re-
cognised with as much clearness as a recent French
writer (Doniol, 'La Révolution Française et la Féo-
dalité') that the transmutation of customary and copy-
hold into freehold property, which has been proceed-
ing for about forty years under the conduct of the
Copyhold and Enclosure Commissioners, is the peace-
ful and insensible removal of a grievance which did
more than any other to bring about the first French
Revolution and to prevent the re-establishment of
the ancient political order. But long before there
was a Copyhold Commission, the great mass of Eng-
lish landed property had assumed certain character-
istics which strongly distinguished it from the
peasant property of the Continent as it existed
before it was affected by the French Codes, and as
126
ENGLISH FORM OF OWNERSHIP.
LECT. V.
it is still found in some countries. This last form
of proprietorship was very generally fettered by the
duty of cultivation in some particular way, and, as a
rule, could not be dealt with so as to bar the rights
reserved to the children and widow of the owner by
the law of succession. The traces of a similar species
of ownership, probably once widely diffused, may
still be here and there discerned through the customs
of particular English manors. I repeat the opinion
which I expressed three years ago, that our modern
English conception of absolute property in land is
really descended from the special proprietorship en-
joyed by the Lord, and more anciently by the tribal
Chief, in his own Domain. It would be out of place
to enter here on a discussion of the changes which
seem to me desirable in order to make the soil of
England as freely exchangeable as the theory now
generally accepted demands; but to the principle of
several and absolute property in land I hold this
country to be committed. I believe I state the in-
ference suggested by all known legal history when
I say
that there can be no material advance in civili-
sation unless landed property is held by groups at
least as small as Families; and I again remind you
that we are indebted to the peculiarly absolute
English form of ownership for such an achievement
as the cultivation of the soil of North America.
Before describing to you the new light which the
LECT. V. IRISH THEORIES OF CHIEF AND TRIBE.
127
Ancient Laws of Ireland throw on the primitive con-
dition of the institutions of which I have been speak-
ing, let me give you one word of caution as to the
statements of modern Irish writers respecting the
original relations of the Irish Tribe and of the Irish
Tribal Chief. Unhappily the subject has been dis-
cussed in the spirit of the later agrarian history of
Ireland. On the one hand, some disputants have
thought to serve a patriotic purpose by contending
that the land of each Tribe belonged absolutely to it-
self and was its common property, and that the Chief
was a mere administrative officer, rewarded for his
services in making a fair distribution of the territory
among the tribesmen by a rather larger share of its
area than the rest, which was allotted to him as his
domain. Contrariwise, some writers, not perhaps
actuated by much kindliness to the Irish people, have
at least suggested that they were always cruelly op-
pressed by their superiors, and probably by their
natural chiefs more than any others. These authors
point to the strong evidence of oppression by the
Chiefs which the books of the English observers of
Ireland contain. Edmund Spenser and Sir John Davis
cannot have merely intended to calumniate the Irish
native aristocracy when they emphatically declared
that the chiefs do most shamefully rackrent their
tenants,' and spoke with vehement indignation of the
exactions from which the tribesmen suffered, the
6
128
IRISH THEORIES OF CHIEF AND TRIBE.
LECT. V
'coshering,' and the 'coin and livery,' which occur
over and over again in their pages. A third school,
of a very different order from these, has representa-
tives among the most learned Irishmen of our day.
They resent the assertion that the land belonged to
the tribe in common as practically imputing to the
ancient Irish that utter barbarism to which private
property is unknown. They say that traces of owner-
ship jealously guarded are found in all parts of
the Brehon laws, and they are on the whole apt to
speak of the vassalage to the Chief which these laws
attribute to the tribesmen as if it implied something
like modern tenancy in the latter and modern owner-
ship in the former. But they say that the relation
of landlord and tenant was regulated by careful and
kindly provisions, and they ascribe the degradation
of the system, like the other evils of Ireland, to
English cupidity and ignorance. The Norman nobles
who first settled in Ireland are well known to have
become in time Chieftains of Irish Tribes; and it is
suggested that they were the first to forget their
duties to their tenants and to think of nothing but
their privileges. Nor is there anything incredible in
this last assumption. An English settler in India
who buys land there is often reputed a harder land-
lord than the native zemindars, his neighbours, not
because he intends to be harsher (indeed in some
things he is usually far more considerate and bounti-
LECT. V. THE AGRARIAN SYSTEM NOT STATIONARY.
129
ful), but because he is accustomed to a stricter system
and cannot accommodate himself to the loose and
irregular play of relations between native landowner
and native tenant.
I cannot wholly concur in any one of these theo-
ries concerning Chief and Tribe. Each seems to me
to contain a portion of truth, but not the whole. Let
me first say that the whole land-system shadowed forth
in the Brehon laws does seem to me to have for its
basis the primary ownership of the tribe-land by the
Tribe. It is also true that the Chief appears to exer-
cise certain administrative duties in respect of this
land, and that he has a specific portion of the tribe-
land allotted to him, in the vicinity of his residence or
stronghold, for the maintenance of his household and
relatives. But this is not all. As we see the system
through the law, it is not stationary, but shifting, de-
veloping, disintegrating, re-combining. Even accord-
ing to the texts apparently oldest, much of the tribal
territory appears to have been permanently alienated
to sub-tribes, families, or dependent chiefs; and the
glosses and commentaries show that, before they
were written, this process had gone very far indeed.
Whatever, again, may have been the original dignity
and authority of the Chief, they are plainly growing,
not merely through the introduction of alien prin-
ciples and ideas, but from natural causes, more or
less operative all over Europe. The general charac-
K
130
GROWING POWER OF CHIEF.
LECT. V.
ter of these causes is very much the same as in the
Germanic countries. The power of the Chief grows
first through the process which is called elsewhere
'commendation,' the process by which the free tribes-
man becomes' his man,' and remains in a state of de-
pendence having various degrees. It farther grows
from his increasing authority over the waste-lands of
the tribal territory and from the servile or semi-ser-
vile colonies he plants there; and lastly, it augments
from the material strength which he acquires through
the numbers of his immediate retainers and asso-
ciates, most of whom stand to him in more or less.
servile relations. But the Brehon law tells us much
that is novel and surprising concerning the particular
course of these changes and their nature in detail.
It furnishes us with some wholly new ideas concern-
ing the passage of society from inchoate to complete
feudalism, and helps us to complete the account of it
derived from Germanic sources. In this, as it seems to
me, the greatest part of its interest consists.
With the Chieftaincy of the Tribe the early his-
tory of modern Aristocracy and modern Kingship
begins. These two great institutions had, in fact, at
first the same history, and the Western world long
continued to bear the marks of their original identity.
The Manor with its Tenemental lands held by the free
tenants of the Lord, and with its Domain which was
in immediate dependence on him, was the type of all
LECT. V.
ARISTOCRACY AND KINGSHIP.
131
the feudal sovereignties in their complete form, whether
the ruler acknowledged a superior above him or
whether he at most admitted one in the Pope, or the
Emperor, or God himself. In every County, or Duke-
dom, or Kingdom there were great tenants holding
directly of its head and on some sort of parity with
him; and there was a Domain under his more im-
inediate government and at his immediate disposal.
There is no obscurer and more difficult subject than
the origin of the class whose power was the keystone
of all these political and proprietary constructions,
and none on which the scantiest contributions to our
knowledge are more welcome.
There is one view of the original condition of
privileged classes which, though held by learned men,
has been a good deal weakened of late by German
research, and seems to me still farther shaken by
portions of the Brehon law. This is the impression
that they always constituted, as they practically do
now, a distinct class or section of the community, each
member of the class standing in a closer relation to
the other members than to the rest of the national
or tribal society to which all belong. It cannot be
doubted that the earliest modern aristocracies have as
a fact, when they are first discerned, this particular
aspect. Mr. Freeman ('Norman Conquest,' i. 88)
says that the 'difference between eorl and ceorl is a
primary fact from which we start.' Tacitus plainly
F2
132
ORIGIN OF NOBILITY.
LECT. V.
distinguished the noble from the non-noble freeman
in the Germanic societies which he observed; and
Cæsar, as I stated in another Lecture, divides all the
Continental Celtic tribes into the Equites and the
Plebs. We can understand that a spectator looking
at a set of tribal communities from the outside would
naturally class together all men visibly exalted above
the rest; but nevertheless this is not quite the ap-
pearance which early Germanic society wears in the
eyes of enquirers who follow the method of Von
Maurer and Landau. Each Chief or Lord appears to
them to have been noble less with reference to other
noblemen than with reference to the other free tribes-
men comprised in the same group with himself.
Nobility has many diverse origins; but its chief
source seems to have been the respect of co-villagers
or assemblages of kinsmen for the line of descent in
which the purest blood of each little society was be-
lieved to be preserved. Similarly, the Brehon law
suggests that the Irish Chiefs were not the class by
themselves which the corresponding order among the
Continental Celts appeared to Cæsar to be, but were
necessarily the heads of separate groups composed of
their kindred or of their vassals. 'Every chief,' says
the text which I quoted before, 'rules over his land,
whether it be great or whether it be small.' And
while the Irish law describes the way (as I shall
point out) in which a common freeman can become a
LECT. V.
ORIGIN OF NOBILITY.
133
chief, it also shows that the position to which he
attains is the presidency of a group of dependants.
Nevertheless the persons thus elevated undoubtedly
tend to become, from various causes, a class by them-
selves and a special section of the general community;
and it is very probable that the tendency was at work
from the earliest times. It is farther to be remarked
that some aristocracies were really a section of the
community from the very first. This structure of
society is produced where one entire tribal group
conquers or imposes its supremacy upon other tribal
groups also remaining entire, or where an original
body of tribesmen, villagers, or citizens, gradually
gathers round itself a miscellaneous assemblage of
protected dependants. There are many known in-
stances of both processes, and the particular relation
of tribal groups which the former implies was certainly
not unknown to the Celtic societies. Among the
Scottish Highlanders some entire septs or clans are
stated to have been enslaved to others; and on the very
threshold of Irish history we meet with a distinction
between free and rent-paying tribes which may possibly
imply the same kind of superiority and subordination.
The circumstance of greatest novelty in the posi-
tion of the Chief which the Brehon law appears to me
to bring out is this: Whatever else a Chief is, he is
before all things a rich man; not, however, rich, as
popular associations would lead us to anticipate, in
134
HELLENIC AND TEUTONIC CHIEFS.
LECT. V.
land, but in live stock-in flocks and herds, in sheep,
and before all things in oxen. Here let me interpose
the remark, that the opposition commonly set up be-
tween birth and wealth, and particularly wealth other
than landed property, is entirely modern. In French
literature, so far as my knowledge extends, it first
appears when the riches of the financial officers of the
French monarchy-the Superintendents and Farmers-
General-begin to attract attention. With us it seems
to be exclusively the result of the great extension
and productiveness of industrial undertakings on the
largest scale. But the heroes of the Homeric poems
are not only valiant but wealthy (Odyss. xiv. 96-106);
the warriors of the Nibelungen-Lied are not only noble
but rich. In the later Greek literature we find pride
of birth identified with pride in seven wealthy ancestors
in succession, επτα πάπποι πλούσιοι; and you are well
aware how rapidly and completely the aristocracy
of wealth assimilated itself in the Roman State to
the aristocracy of blood. Passing to the Irish Chief,
we find the tract called the 'Cain-Aigillne' laying
down (p. 279) that 'the head of every tribe should be
the man of the tribe who is the most experienced, the
most noble, the most wealthy, the most learned, the
most truly popular, the most powerful to oppose, the
most steadfast to sue for profits and to be sued for
losses.' There are many other passages to the same
effect; and on closely examining the system (as I pro-
LECT. V.
NOBILITY AND WEALTH.
135
pose to do presently) we can perceive that personal
wealth was the principal condition of the Chief's
maintaining his position and authority.
But while the Brehon laws suggest that the pos-
session of personal wealth is a condition of the main-
tenance of chieftainship, they show with much dis-
tinctness that through the acquisition of such wealth
the road was always open to chieftainship. We are
not altogether without knowledge that in some Euro-
pean societies the humble freeman might be raised by
wealth to the position which afterwards became mo-
dern nobility. One fact, among the very few which
are tolerably well ascertained respecting the specific
origin of particular modern aristocracies is, that a por-
tion of the Danish nobility were originally peasants;
and there are in the early English laws some traces
of a process by which a Ceorl might become a Thane.
These might be facts standing by themselves, and
undoubtedly there is strong reason to suspect that
the commencements of aristocracy were multifold;
but the Brehon tracts point out in several places,
with legal minuteness, the mode in which a peasant
freeman in ancient Ireland could become a chief.
There are few personages of greater interest spoken
of in these laws than the Bo-Aire, literally the 'cow-
nobleman.' He is, to begin with, simply a peasant
who has grown rich in cattle, probably through
obtaining the use of large portions of tribe-land.
136
THE BO-AIRE.
LECT. V.
The true nobles, or Aires a word striking from its
consonance with words of similar meaning in the
Teutonic languages are divided, though we can
scarcely believe the classification to correspond with
an universal fact, into seven grades. Each grade is
distinguished from the others by the amount of
wealth possessed by the Chief belonging to it, by the
weight attached to his evidence, by his power of
binding his tribe by contracts (literally of 'knotting'),
by the dues which he receives in kind from his vassals
according to a system to be presently described, and
by his Honor-Price, or special damages incurred by
injuring him. At the bottom of the scale is the
chief or noble called the Aire-desa; and the Brehon
law provides that when the Bo-Aire has acquired
twice the wealth of an Aire-desa, and has held it for
a certain number of generations, he becomes an Aire-
desa himself. The advantage secured to wealth does
not, you see, exclude respect for birth, but works
into it. 'He is an inferior chief,' says the 'Senchus
Mor,'' whose father was not a chief;' and there are
many other strong assertions of the reverence due
to inherited rank. The primary view of chieftainship
is evidently that it springs from purity or dignity of
blood, but noble birth is regarded as naturally associ-
ated with wealth, and he who becomes rich gradually
climbs to a position indistinguishable from that which
he would have occupied if he had been nobly born.
LECT. V.
POPULAR THEORY OF NOBILITY.
137
What is thus new in the system is the clear account
of nobility as a status, having its origin in the or-
ganic structure of ancient society, but nevertheless
in practice having perpetually fresh beginnings.
The enormous importance which belongs to
wealth and specially to wealth in cattle, in the early
Aryan society reflected by the Brehon tracts, helps,
I think, to clear up one great difficulty which meets
us on the threshold of an enquiry into the origin of
aristocracies. I suppose that the popular theory on
the subject of the privileged class in modern commu
nities is that it was originally indebted for its status,
if not for its power or influence, to kingly favour.
An Englishman once questioned the Emperor Paul
of Russia on the position of the Russian nobility.
'The only man who is noble in my dominions,' said
the Czar, 'is the man to whom I speak, for the time
that I am speaking to him.' I merely take these
words as the strongest possible statement of the view
to which I am referring; but they were used by a
monarch with a disturbed brain, whose authority had
contracted something of an Oriental character from
its long subordination to Tartar power, and they were
never absolutely true even of Russia. Among our-
selves, however, the favourite assumption seems
certainly to be, however slight may be the practical
consequences we draw from it, that all aristocratic
privilege had its origin in kingly grace; and this
?
138
NOBILITY AND THE KING.
LECT. V.
appears, on the whole, to be the theory of English
law. But the institutions of many parts of the Con-
tinent long retained the traces of a different set of
ideas, and these were found where kingly power was
actually much greater than in England. The French
Noblesse, before the Revolution, would as a body
have resented the assertion that they were a creation
of the King, and the Kings of France more than once
admitted that they were only the most exalted mem-
bers of a class to which their own nobility belonged.
Kings have everywhere nowadays, and in many
countries have had for centuries, a monopoly of the
power of ennobling. This road to nobility has been
so long trodden, that men in general have almost for-
gotten there ever was another route. Yet historical
scholars have long known that nobility conferred by
royal grant was, in one sense, a modern institution,
though they have not succeeded in completely ex-
plaining how it came to supplant or dwarf the insti-
tution upon which it was engrafted. There seems to
be no doubt that the first aristocracy springing from
kingly favour consisted of the Comitatus, or Com-
panions of the King. Although there is a good deal
of evidence that the class was at first considered in
some way servile, it gradually became in some coun-
tries the type of all nobility. A few tolerably familiar
facts may serve to remind us how remarkable has
been the fortune of the royal households all over
LECT. V.
THE ROYAL HOUSEHOLD.
139
Western Europe. The Mayor of the Frankish Palace
became King of the Franks. The Chamberlain of
the Romano-German Emperors is now the German
Emperor. The blood of the Steward of Scotland
runs in the veins of the Kings of England. The
Constables of France repeatedly shook or saved the
French throne. Among ourselves the great officers
of the Royal Council and Household still take prece-
dence either of all Peers or of all Peers of their own
degree. Whence, then, came this great exaltation of
the Mayor or Count of the Palace, of the great Sene-
schal or Steward, of the High Chancellor, the Great
Chamberlain, and High Constable-titles which,
when they do not mark an office originally clerical,
point to an occupation which must at first have been
menial?
It seems certain that the Household sprang from
very humble beginnings. Tacitus describes the
companions of the Germanic chief as living with
him in his house and supported by his bounty.
Mr. Stubbs when stating ('Constitutional History,'
p. 150) that the gesiths of an (English) king were
his guard and private council,' observes that the
'free household servants of a ceorl are also in a
certain sense his gesiths.' The Companions of the
King appear also in the Irish legal literature, but they
are not noble, and they are associated with the king's
body-guard, which is essentially servile. The King of
140
COMPANIONS OF THE KING OF ERIN. LECT. V.
Erin, though he never existed (strictly speaking),
save for short intervals, yet always, so to speak,
tended to exist, and the Crith Gablach, a Brehon
tract of which a translation is given at the end of
Sullivan's edition of O'Curry's Lectures, contains a
picture of his palace and state. The edifice intended
to be described is apparently very much the same as
the great Icelandic house of which Mr. Dasent, in
the 'Story of Burnt Njal,' has attempted to give a
drawing from the descriptions found in Norse litera-
ture. In it the King feasts his guests, from kings
and king's sons to a ghastly company of prisoners
in fetters, the forfeited hostages of subject-chiefs or
sub-septs who have broken their engagements. The
Companions are there also, and they are stated to
consist of his privileged tenantry and of his body-
guard, which is composed of men whom he has
delivered from death, jail, or servitude, never (a
significant exception) of men whom he has saved on
the battle-field. I am afraid that the picture of Irish
society supplied by the Crith Gablach must through-
out be regarded as to a great extent ideal or theo-
retical; at any rate, there is much testimony from
English visitors to Ireland that many considerable
Irish Chiefs were much more humbly furnished out
than the King of Erin at Tara. Yet it is very likely
that they all had Companions attending them, and
I suspect that the obligation of maintaining a little
LECT. V.
RETINUE OF HIGHLAND CHIEFS.
141
court had much to do with that strange privilege
which in later times had a deplorable history, the
right of the Chief to go with a following to the
dwellings of his tenants and there be feasted at the
tenant's expense. That even petty Chiefs of the
Scottish Highlands had a retinue of the same cha-
racter is known to all who can recall that immortal
picture of Celtic society which for the first time
brought it home to men who were nearly our con-
temporaries that ancient Celtic life and manners had
existed almost down to their days-the novel of
Waverley.'
6
It seems extremely probable that, in a particular
stage of society, this personal service to the Chief or
King was everywhere rendered in expectation of
reward in the shape of a gift of land. The Com-
panions of the Teutonic kings, in Continental Europe,
shared largely in the Benefices-grants of Roman
provincial land fully peopled and stocked. In ancient
England the same class are believed to have been
the largest grantees of public land next to the
Church; and doubtless we have here part of the
secret of the mysterious change by which a new
nobility of Thanes, deriving dignity and authority
from the King, absorbed the older nobility of Eorls.
But we are a little apt to forget the plentifulness of
land in countries lying beyond the northern and
western limits of the Roman Empire, or just within
142
CHEAPNESS OF LAND IN PRIMITIVE TIMES. LECT. v.
them. Mr. Thorold Rogers, writing of a period
relatively much later, and founding his opinion on
the extant evidence of returns from manor-lands,
speaks of land as the 'cheapest commodity of the
Middle Ages.' The practical difficulty was not to
obtain land, but the instruments for making it pro-
ductive; and hence, in a society older relatively than
any Teutonic society of which we have any distinct
knowledge, that very society which the Brehon tracts
enable us to understand, it may very well have
been that the object of suit at court was much less to
obtain land than to obtain cattle. The Chief, as I
have already said, was before all things rich in flocks
and herds. He was military leader, and a great part
of his wealth must have been spoil of war, but in his
civil capacity he multiplied his kine through his
growing power of appropriating the waste for pasture,
and through a system of dispersing his herds among
the tribesmen, which will be described in the next
Lecture. The Companion who followed him to the
foray, or was ready to do so, cannot but have been
enriched by his bounty; and thus, if already noble, he
became greater; if he was not noble, the way to
nobility lay through wealth. The passage which I
am about to read to you may serve to illustrate what
probably took place, though there is nothing except
common humanity to connect the tribes of whose
customs it speaks with the primitive Teutons and
V. LECT.
KAFIR CHIEFS.
143
Celts. The Rev. H. Dugmore, in a most interesting
C
6
volume, called a Compendium of Kafir Laws and
Customs,' and published at the Wesleyan Missionary
Press, Mount Coke, British Kaffraria, writes thus of
much the most advanced of the South African native
races, the Kafirs or Zulus (p. 27): As cattle con-
stitute the sole wealth of the people, so they are
their only medium of such transactions as involve
exchange, payment, or reward. The retainers of a
chief serve him for cattle; nor is it expected that he
could maintain his influence, or indeed secure any
number of followers, if unable to provide them with
what at once constitutes their money, food, and
clothing. He requires, then, a constant fund from
which to satisfy his dependants; and the amount of
the fund required may be judged of from the cha-
racter of the demand made upon him. His retinue,
court, or whatever it is to be called, consists of men
from all parts of the tribe, the young, the clever, and
the brave, who come to do court service for a time,
that they may obtain cattle to furnish them with the
means of procuring wives, arms, or other objects of
desire. On obtaining these they return to their
homes and give place to others. Thus the immediate
retinue of a chief is continually changing, and con-
stitutes a permanent drain on his resources.'
Dugmore goes on to state that the sources of the
chief's wealth are the inherited cattle of his father,
Mr.
144
CATTLE-STEALING.
LECT. V.
offerings made to him on the ceremony of his circum-
cision, benevolences levied from his tribe, fines and
confiscations, and the results of predatory excursions.
The remarkable part played by kine in ancient
Irish society will, I hope, be made more intelligible
in the next Lecture. Meantime, let me observe that
the two Celtic societies included in these islands
which longest retained their ancient usages were both
notoriously given to the plunder of cattle. Lord
Macaulay, in speaking of Irish cattle-stealing, some-
times, I must own, seems to me to express himself as
if he thought the practice attributable to some native
vice of Irish character; but no doubt it was what Mr.
Tylor has taught us to call a survival, an ancient
and inveterate habit, which in this case continued
through the misfortune which denied to Ireland the
great condition of modern legal ideas, a strong
central government. The very same practice, among
the Celts of the Scottish Highlands and the rude
Germanic population of the Lowland Border, has
almost been invested by one man's genius with the
dignity of a virtue. Again, turning to 'Waverley,' I
suppose there is no truer representative of the
primitive Celtic chief than Donald Bean Lean, who
drives the cattle of Tully Veolan, and employs a
soothsayer to predict the number of beeves which are
likely to come in his way. He is a far more genuine
'survival' than Fergus McIvor, who all but deserts
his cause for a disappointment about an earldom.
LECT. V.
THE STATUS OF THE COMPANIONS.
145
It has been pointed out that the status of the
King's Companions was at first in some way servile.
Whenever legal expression has to be given to the
relations of the Comitatus to the Teutonic kings, the
portions of the Roman law selected are uniformly
those which declare the semi-servile relation of the
Client or Freedman to his Patron. The Brehon law
permits us to take the same view of the corresponding
class in Celtic societies. Several texts indicate that
a Chief of high degree is always expected to surround
himself with unfree dependants; and you will re-
collect that the retinue of the King of Erin was to
consist not only of free tribesmen but of a body-
guard of men bound to him by servile obligations.
So far as it goes, I quite agree with the explanation
which Mr. Freeman has given of the original connec-
tion between servile status and that nobility with
which the primitive nobility of birth has become
mixed up and confounded. The lowly clientage,'
he says, 'of the Roman Patrician and the noble fol-
lowing of the Hellenic and Teutonic leader may
really come from the same source, and may both
alike be parts of the same primeval heritage.'
(Comparative Politics,' p. 261.) But perhaps we
may permit ourselves to go a step beyond this ac-
count. The Comitatus or Companions of the Chief,
even when they were freemen, were not necessarily
or ordinarily his near kindred. Their dependence on
L
146
SERVILE POSITION OF COMPANIONS.
LECT. V.
him, carrying with it friendship and affection, would
in modern societies place them in a position well
understood, and on something like an equality with
him; but in the beginning of things one man was
always the kinsman, the slave, or the enemy of an-
other, and mere friendship and affection would, by
themselves, create no tie between man and man. In
order that they might have any reality, they would
have to be considered as establishing one of the rela-
tions known to that stage of thought. Between
equals this would be assumed or fictitious kinship.
But between the Chief who embodied purity of tribal
descent and his associates, it would have more or less
to follow the pattern of the slave's dependence on his
master, and, where the Companion was not actually
the Chief's slave, the bond which connected them
would very probably be adapted to the more honour-
able model furnished by the relation between ex-
slave and ex-master.
LECT. VI.
OXEN IN PRIMITIVE TIMES.
147
LECTURE VI.
THE CHIEF AND THE LAND.
THE Brehon law-tracts strongly suggest that, among
the things which we in modern times have most for-
gotten, is the importance of horned cattle, not merely
in the infancy of society, but at a period when it had
made some considerable advance towards maturity.
It is scarcely possible to turn over a page without
finding some allusion to beeves, to bulls, cows, heifers,
and calves. Horses appear, sheep, swine, and dogs;
and bees, the producers of the greatest of primitive
luxuries, have a place assigned to them as an article
of property which has something corresponding to it
in old Roman law. But the animals much the most
frequently mentioned are kine. There are some few
facts both of etymology and of legal classification
which point to the former importance of oxen.
Capitale-kine reckoned by the head-cattle-has
given birth to one of the most famous terms of
law and to one of the most famous terms of poli-
tical economy, Chattels and Capital. Pecunia was
probably the word for money which was employed
L 2
148
OXEN IN PRIMITIVE TIMES.
LECT. VI
by the largest part of mankind for the longest time
together. But oxen, though they have furnished a
modern synonym for
for personal property, were not, I
need scarcely say, classed in the lower order of com-
modities in all ancient systems of law. The primi-
tive Roman law placed them in the highest class, and
joined them with land and slaves as items of the Res
Mancipi. As in several other instances, the legal
dignity of this description of property among the
Romans appears to answer to its religious dignity
among the Hindoos. Kine, which the most ancient
Sanscrit literature shows to have been eaten as food,.
became at some unknown period sacred, and their
flesh forbidden; and ultimately two of the chief
Things which required a Mancipation' at Rome,
oxen and landed property, had their counterpart in
the sacred bull of Siva and the sacred land of India.
(
The subject has possibly been obscured by an
impression that horned cattle were only of pre-
eminent importance to mankind in that pastoral
stage of society which has been the theme of so much
not altogether profitable speculation. The actual
evidence seems to show that their greatest value was
obtained when groups of men settled on spaces of
land and betook themselves to the cultivation of
food-grains. It is very possible that kine were at
first exclusively valued for their flesh and milk, but
it is clear that in very early times a distinct special
5
LECT. VI.
KINE AS A MEASURE OF VALUE.
149
importance belonged to them as the instrument or
medium of exchange. In the Homeric literature, they
are certainly a measure of value; there seems no reason
to doubt the traditional story that the earliest coined
money known at Rome was stamped with the figure
of an ox; and at all events the connection between
'pecus' and 'pecunia' is unmistakeable. Part, but
by no means all, the prominence given by the Brehon
lawyers to horned cattle arises certainly from their
usefulness in exchange. Throughout the Brehon
tracts fines, dues, rents, and returns are calculated
in live-stock, not exclusively in kine, but nearly so.
Two standards of value are constantly referred to,
'sed' and 'cumhal.' 'Cumhal' is said to have origi-
nally meant a female slave, just as ancilla' in
mediæval Latinity sometimes means the price of a
slave-girl; but 'sed' is plainly used for an amount
or quantity of live stock, probably to some small
extent variable. The next stage, however, in the
history of cattle is that at which their service to
mankind is greatest. They are now valued chiefly,
in some communities exclusively, for their use in
tillage, for their labour and their manure. Their
place has been taken very generally in Western
Europe by horses as beasts of plough, but the change
was even there both gradual and comparatively mo-
dern; and there are still large portions of the world
where the horse is exclusively employed, as it seems
"
150
CATTLE AND SLAVERY.
LECT. VI.
everywhere to have been at one time, for war, for
pleasure, or the chase. Oxen were thus almost the
sole representatives of what a Political Economist
would now call Capital applied to land. I think it
probable that the economical causes which led to
the disuse of oxen as a medium of exchange led also
to the change in their legal position which we find to
have taken place at Rome and in India. The sancti-
fication of the ox among the Hindoos, rendering his
flesh unlawful as food, must certainly have been con-
nected with the desire to preserve him for tillage,
and his elevation to a place among the Res Mancipi
may well have been supposed to have the same ten-
dency, since it made his alienation extremely difficult,
and must have greatly embarrassed his employment in
exchange. At this point the history of horned cattle
becomes unhappily mixed up with that of large por-
tions of mankind. The same causes which we per-
ceive altering the position of the ox and turning him
into an animal partially adscriptus glebæ, undoubtedly
produced also a great extension of slavery. The
plentifulness of land, even in what are considered old
countries, down to comparatively recent times, and
the scarcity of capital even in its rudest forms, seem
to me to be placed in the clearest light by Mr. Thorold
Rogers's deeply instructive volumes on Agriculture
and Prices during the Middle Ages; and much in his-
tory which has been only partially intelligible is ex-
LECT. VI. THE IRISH SYSTEM OF GIVING STOCK.
151
plained by them. The enormous importation of slaves
into the central territories of the Roman Common-
wealth, and the wholesale degradation of the free cul-
tivating communities of Western Europe into assem-
blages of villeins, seem to be expedients of the same
nature as restrictions on the alienation of the ox and on
its consumption for food, and to have been alike sug-
gested by the same imperious necessity of procuring
and preserving instruments for the cultivation of land.
(
The importance of horned cattle to men in a
particular state of society must, as it seems to me,
be carefully borne in mind if we are to understand
one of the most remarkable parts of the ancient Irish
law which relates to the practice of giving stock.'
I stated before that, though I did not draw the
same inferences from the fact, I agreed with the
writers who think that the land-system of ancient
Ireland was theoretically based on the division of the
tribe-lands among the free tribesmen. But I also
said that in my opinion the true difficulty of those
days was not to obtain land but to obtain the means
of cultivating it. The want of capital, taken in its
original sense, was the necessity which pressed on the
small holder of land and reduced him occasionally to
the sorest straits. On the other hand, the great
owners of cattle were the various Chiefs, whose pri-
mitive superiority to the other tribesmen in this
respect was probably owing to their natural functions
१
152
ORIGIN OF VASSALAGE IN IRELAND. LECT. VI.
as military leaders of the tribe. The Brehon law
suggests to me that the Chiefs too were pressed by a
difficulty of their own, that of finding sufficient pas-
turage for their herds. Doubtless their power over
the waste-lands of the particular group over which
they happened to preside was always growing, but
the most fruitful portions of the tribal territory would
probably be those which the free tribesmen occupied.
The fact that the wealth of the Chiefs in cattle was
out of proportion to their power of dealing with the
tribal lands, and the fact that the tribesmen were
every now and then severely pressed by the necessity
of procuring the means of tillage, appear to me to
supply the best explanation of the system of giving
and receiving stock, to which two sub-tracts of the
Senchus Mor are devoted, the Cain-Saerrath and the
Cain-Aigillne, the Law of Saer-stock tenure and the
Law of Daer-stock tenure.
The interest of these two compendia is very great.
In the first place, they go far to show us how it was
that the power of the tribal Chief increased, not merely
over his servile dependants, but over the free tribes-
men among whom he had been at first only primus
inter pares. In the next, they give us, from the
authentic records of the ancient usages of one par-
ticular society, a perfectly novel example of a pro-
ceeding by which feudal vassalage was created.
need scarcely dwell on the historical importance of
I
LECT. VI.
ROMAN AND FEUDAL SOCIETY.
153
the various agencies by which the relation of Lord
and Vassal was first established. It was by them
that the Western Europe of the Roman despotism
was changed into the Western Europe of the feudal
sovereignties. Nothing can be more strikingly un-
like in external aspect than the states of society which
are discerned on either side of the stormy interval
filled with the movement and subsidence of the bar-
barian invasions. Just before it is reached, we see a
large part of mankind arranged, so to speak, on one
vast level surface dominated in every part by the
overshadowing authority of the Roman Emperor. On
this they lie as so many equal units, connected to-
gether by no institutions which are not assumed to
be the creation of positive Roman law; and between
them and their sovereign there is nothing but a host
of functionaries who are his servants. When feudal
Europe has been constituted, all this is changed.
Everybody has become the subordinate of somebody
else higher than himself and yet exalted above him
by no great distance. If I may again employ an
image used by me before, society has taken the form
of a pyramid or cone. The great multitude of culti-
vators is at its base; and then it mounts up through
ever-narrowing sections till it approaches an apex,
not always visible, but always supposed to be dis-
coverable, in the Emperor, or the Pope, or God
Almighty. There is strong reason to believe that
154
BENEFICES AND COMMENDATION.
(
LECT. VI.
neither picture contains all the actual detail, and that
neither the theory of the Roman lawyers on one side
nor the theory of the feudal lawyers on the other ac-
counts for or takes notice of a number of customs and
institutions which had a practical existence in their
day. Either theory was, however, founded upon the
most striking facts of the epoch at which it was framed.
We know something, though not very much, of
the formal instrumentalities by which the later set of
facts became so extremely dissimilar to the earlier.
Mr. Stubbs ('Constitutional History,' i. 252) has
thus summarised the most modern views on the sub-
ject. Feudalism had grown up from two great
sources, the Benefice and the practice of Commen-
dation. The beneficiary system originated partly in
gifts of land made by the kings out of their own
estates to their kinsmen and servants, with a special
undertaking to be faithful, partly in the surrender by
landowners of their estates to churches or powerful
men, to be received back again and held by them as
tenants for rent or service. By the latter arrange-
ment the weaker man obtained the protection of the
stronger, and he who felt himself insecure placed his
title under the defence of the Church. By the prac-
tice of Commendation, on the other hand, the inferior
put himself under the personal care of a lord, but
without altering his title or divesting himself of his
right to his estate; he became a vassal and did
LECT. VI.
COMMENDATION.
155
homage.' Commendation, in particular, went on all
over Western Europe with singular universality of
operation and singular uniformity of result, and it
helped to transform the ancient structure of Teutonic
society no less than the institutions of the Roman
Provincials. Yet there is considerable mystery about
men's motives for resorting to so onerous a proceed-
ing, and the statements of nearly all writers on the
subject are general and chiefly conjectural. Perhaps
the most precise assertion which we have been hitherto
able to hazard as to the reasons of so large a part of
the world for voluntarily placing themselves in a
condition of personal subordination is, that they must
have been connected with the system of civil and
criminal responsibility which prevailed in those times.
Families-real or artificial-natural or formed by
agreement were responsible for the offences and even
for the civil liabilities of their members; but corporate
responsibility must have been replaced, conveniently
for all persons concerned, by the responsibility of a
single lord, who could prevent injury and pay com
pensation for it, and whose testimony, in compurga-
tion and other legal proceedings, had a weight often
assigned to it exceeding that of several inferior per-
sons combined. More generally, but with at least
equal plausibility, we can lay down that the general
disorder of the world had much to do with the
growth of the new institutions; and that a little
156
CELTIC ORIGIN OF COMMENDATION.
LECT. VI.
society compactly united under a feudal lord was
greatly stronger for defence or attack than any body
of kinsmen or co-villagers and than any assemblage
of voluntary confederates. It would be absurd,
however, to suppose that we have materials for a
confident opinion as to men's motives for submitting
themselves to a change which was probably recom-
mended to them or forced on them by very various
circumstances in different countries and in relatively
different stages of society.
I do not wish to generalise unduly from the new
information furnished by the Brehon law, but there
has long been a suspicion (I cannot call it more)
among learned men that Celtic usages would throw
some light on Commendation, and, at any rate, amid
the dearth of our materials, any addition to them
from an authentic source is of value. Let me again
state the impression I have formed of the ancient
Irish land-system, in the stage at which it is revealed
to us by the Brehon tracts. The land of the tribe,
whether cultivated or waste, belongs to the tribe, and
this is true, whether the tribe be a joint-family of
kinsmen or a larger and more artificial assemblage.
Such theoretically is the principle, if the traditional
view of the primitive state of things may be called a
theory. But much of the territory of the larger
tribes has been permanently assigned to Chiefly fami-
lies or to smaller sub-divisions of tribesmen, and the
LECT. VI.
THE CHIEFS AND STOCK.
157
land of the smaller sub-divisions tends ever to become
divided among their members, subject to certain rc-
served rights of the collective brotherhood. Every
considerable tribe, and almost every smaller body of
men contained in it, is under a Chief, whether he be
one of the many tribal rulers whom the Irish records
call Kings, or whether he be one of those heads of
joint-families whom the Anglo-Irish lawyers at a
later date called the Capita Cognationum. But he is
not owner of the tribal land. His own land he may
have, consisting of private estate or of official domain,
or of both, and over the general tribal land he has a
general administrative authority, which is ever grow-
ing greater over that portion of it which is unappro-
priated waste. He is meanwhile the military leader
of his tribesmen, and, probably in that capacity, he
has acquired great wealth in cattle. It has somehow
become of great importance to him to place out por-
tions of his herds among the tribesmen, and they on
their part occasionally find themselves through stress
of circumstance in pressing need of cattle for employ-
ment in tillage. Thus the Chiefs appear in the Brehon
law as perpetually giving stock,' and the tribesmen
as receiving it. The remarkable thing is, that out of
this practice grew, not only the familiar incidents of
ownership, such as the right to rent and the liability
to pay it, together with some other incidents less
pleasantly familiar to the student of Irish history,
158
SAER AND DAER TENANTS.
LECT. VI.
but, above and besides these, nearly all the well-
known incidents of feudal tenure. It is by taking
stock that the free Irish tribesman becomes the Ceile
or Kyle, the vassal or man of his Chief, owing him
not only rent but service and homage. The exact
effects of 'commendation' are thus produced, and the
interesting circumstance is that they are produced from
a simple and intelligible motive. The transaction be-
tween Chief and Vassal is very burdensome to the
latter, but the necessity which leads to it is pressing,
and the force of this necessity would be greater the
more primitive the society in which it arose, and the
more recent its settlement on its lands. All this is
especially instructive, because there is no reason
whatever to suppose that Beneficiary grants and
Commendation arose suddenly in the world at the
disruption of the Roman Empire. They were pro-
bably, in some form or other, deeply seated among
the rudimentary usages of all Aryan societies.
The new position which the tribesman assumed
through accepting stock from a Chief varied according
to the quantity of stock he received. If he took much
stock he sank to a much lower status than if he had
taken little. On this difference in the quantity ac-
cepted there turns the difference between the two
great classes of Irish tenantry, the Saer and Daer
tenants, between whose status and that of the
free and higher base tenants of an English manor
LECT. VI.
SAER-STOCK TENANCY.
159
there is a resemblance not to be mistaken. The
Saer-stock tenant, distinguished by the limited
amount of stock which he received from the Chief,
remained a freeman and retained his tribal rights in
their integrity. The normal period of his tenancy
was seven years, and at the end of it he became en
titled to the cattle which had been in his possession.
Meantime he had the advantage of employing them
in tillage, and the Chief on his part received the
'growth and increase and milk,' the first two words.
implying the young and the manure. So far there is
nothing very remarkable in the arrangement, but it
is expressly laid down that besides this it entitled
the Chief to receive homage and manual labour;
manual labour is explained to mean the service of the
vassal in reaping the Chief's harvest and in assisting
to build his castle or fort, and it is stated that, in lieu
of manual labour, the vassal might be required to
follow his Chief to the wars. Any large addition to
the stock deposited with the Saer-stock tenant, or an
unusual quantity accepted in the first instance by the
tribesman, created the relation between vassal and
chief called Daer-stock tenancy. The Daer-stock
tenant had unquestionably parted with some portion
of his freedom, and his duties are invariably referred
to as very onerous. The stock given to him by the
Chief consisted of two portions, of which one was pro-
portionate to the rank of the recipient, the other to the
160
DAER-STOCK TENANCY.
LECT. VI.
rent in kind to which the tenant became liable. The
technical standard of the first was the tenant's 'honor-
price,' the fine or damage which was payable for in-
juring him, and which in these ancient systems of
law varies with the dignity of the person injured.
The relation between the second portion of stock and
the rent is elaborately defined in the Brehon law:
"The proportionate stock of a calf of the value of a
sack with its accompaniments, and refections for three
persons in the summer, and work for three days, is
three "samhaisc" heifers or their value' ('Cain-
Aigillne,' p. 25); or, in other words, that the Chief
may entitle himself to the calf, the refections, and
the labour, he must deposit three heifers with the
tenant. "The proportionate stock of a "dartadh"
heifer with its accompaniment, is twelve "seds,"
explained to mean twelve samhaisc' heifers, or six
cows. And so on in many places. The rent in kind,
or food-rent, which was thus proportioned to the
stock received, unquestionably developed in time into
a rent payable in respect of the tenant's land; but it
is certainly a curious and unexpected fact that the
rent of the class which is believed to have embraced
a very large part of the ancient Irish tenantry did
not, in its earliest form, correspond in any way to the
value of the tenant's land, but solely to the value of
the Chief's property deposited with the tenant. But
the most burdensome obligation imposed on the Daer-
LECT. VI.
THE RIGHT OF REFECTION.
161
stock tenant is that which, in the quotation just made
by me, is expressed by the word 'refections.' Beside
the rent in kind and the feudal services, the Chief
who had given stock was entitled to come, with a
company of a certain number, and feast at the Dear-
stock tenant's house, at particular periods, for a
fixed number of days. This 'right of refection,'
and liability to it, are among the most distinctive
features of ancient Irish custom, and their origin is
probably to be explained by the circumstance that
the Irish Chief, though far more privileged than his
tenants, was little better housed and almost as poorly
furnished out, and could not have managed to con-
sume at home the provisions to which his gifts of
stock entitled him. But the practice had a most un-
happy history. The Brehon law defines it and limits
it narrowly on all sides; but its inconvenience and
its tendency to degenerate into an abuse are manifest,
and from it are doubtless descended those oppressions
which revolted such English observers of Ireland as
Spenser and Davis, the 'coin and livery,' and the
'cosherings' of the Irish Chiefs, which they denounce
with such indignant emphasis. Perhaps there was
no Irish usage which seemed to Englishmen so amply
to justify that which as a whole I believe to have
been a great mistake and a great wrong, the entire
judicial or legislative abolition of Irish customs. The
precautions by which the Brehon lawyers could fence
M
162
DAER-STOCK AND METAYER TENANCY.
LECT. VI.
it in were not probably at any time very effectual,
but, as I before stated, they did what they could;
and, moreover, as defined by them, the relation out
of which Daer-stock tenancy and its peculiar obliga-
tions arose was not perpetual. After food-rent and
service had been rendered for seven years, if the Chief
died, the tenant became entitled to the stock; while,
on the other hand, if the tenant died, his heirs were
partly, though not wholly, relieved from their obliga-
tion. At the same time it is very probable that
Daer-stock tenancy, which must have begun in the
necessities of the tenant, was often from the same
cause rendered practically permanent.
It has frequently been conjectured that certain
incidents of feudal tenure pointed back to some such
system as the Brehon tracts describe to us. The
Heriot of English Copyhold tenure, the 'best beast'
taken by the Lord on the death of a base tenant, has
been explained as an acknowledgment of the Lord's
ownership of the cattle with which he anciently
stocked the land of his villeins, just as the Heriot of
the military tenant is believed to have had its origin
in a deposit of arms. Adam Smith recognised the
great antiquity of the Metayer tenancy, still widely
spread over the Continent, of which one variety was
in his day found' in Scotland under the name of
'steelbow.' I am not at all surprised that, in one of
the Prefaces to the official translation of the Brehon
LECT. VI.
RULES AS TO ACCEPTANCE OF STOCK.
163
laws, a comparison should be instituted between this
tenancy and the Saer and Daer-stock tenancy of an-
cient Irish law. The outward resemblance is consi-
derable, and the history of Metayer tenancy is so
obscure that I certainly cannot undertake to say that
practices answering to those I have described had
not in some countries something to do with its primi-
tive form. But the distinctions between the ancient
and the modern tenancies are more important than the
analogies. In Metayer tenancy a landlord supplies
the land and stock, a tenant the labour only and the
skill; but in Saer and Daer-stock tenancy the land
belonged to the tenant. Again, the effect of the
ancient Irish relation was to produce, not merely a
contractual liability, but a status. The tenant had
his social and tribal position distinctly altered by
accepting stock. Further, the acceptance of stock
was not always voluntary. A tribesman, in one
stage of Irish custom at all events, was bound to
receive stock from his own King,' or, in other words,
from the Chief of his tribe in its largest extension;
and everywhere the Brehon laws seem to me to
speak of the acceptance of stock as a hard necessity.
Lastly, the Tribe to which the intending tenant
belonged had in some cases a veto on his adoption of
the new position, which was clearly regarded as a
proceeding invasive of tribal rights and calculated to
enfeeble them. In order to give the Tribe the oppor-
(
164
EFFECTS OF THE ACCEPTANCE OF STOCK. LECT. VI.
tunity of interposing whenever it had legal power to
do so, the acceptance of stock had to be open and
public, and the consequences of effecting it surrep-
titiously are elaborately set forth by the law. It
seems to me clear that it was discouraged by the
current popular morality. One of those rules,
frequent in ancient bodies of law, which are rather
moral precepts than juridical provisions, declares that
6 no man should leave a rent on his land which he
did not find there.'
The system which I have been describing must
have contributed powerfully to dissolve the more
ancient tribal and family organisation. If the Chief
who gave and the Ceile who accepted stock belonged
to the same Tribe, the effect of the transaction was to
create a relation between them, not indeed altogether
unlike that of tribal connection, but still materially
different from it in many respects and much more to
the advantage of the chieftain. But the superior
from whom a man took stock was not always the
Chief of his own Sept or Tribe. So far as the Brehon
law can be said to show any favour to the new
system of vassalage, it encourages it between natural
chief and natural tribesman; and, on the other hand,
it puts difficulties in its way when there is an attempt
to establish it between a tribesman and a strange
Chief. But there seem to be abundant admissions
that freemen did occasionally commend themselves in
LECT. VI. THE KING OF ERIN AND THE EMPEROR.
165
this way to superiors other than their Chiefs. Every
nobleman, as I said before, is assumed to be as a rule
rich in cattle, and it appears to have been an object
with everyone to disperse his herds by the practice of
giving stock. The enriched peasant who was on his
way to be ennobled, the Bo-Aire, seems to have had
Ceiles who accepted stock from him, as well as had
the nobles higher in degree. Accordingly, the new
groups formed of the Lord and his Vassals-if we may
somewhat antedate these last words-were sometimes
wholly distinct from the old groups composed of the
Chief and his Clan. Nor, again, was the new relation
confined to Aires, or noblemen, and Ceiles, or free
but non-noble tribesmen. The Bo-Aire certainly, and
apparently the higher Chiefs also, accepted stock on
occasion from chieftains more exalted than them-
selves; and in the end to give stock' came to mean
the same thing as to assert feudal superiority, and to
' accept stock' the same thing, which in the language
of other societies was called 'commendation.' It is
strong evidence of the soundness of the conclusions
reached of late years by historical scholars (and,
among others, by Mr. Bryce), as to the deep and wide
influence exercised by the Roman Empire, even in
its later form, that (of course by a fiction) the Brehon
law represents the King of Ireland as accepting
stock' from the Emperor. When the King of Erin
is without opposition'-that is, as the explanation
6
156
THE GERMS OF FEUDALISM.
LECT. VI.
runs, when he holds the ports of Dublin, Waterford,
and Limerick, which were usually in the hands of the
Danes-' he receives stock from the King of the Ro-
mans' (S. M., ii. 225). The commentary goes on to
say that sometimes it is by the successor of Patrick
that the stock is given to the King of Erin;' and this
remarkable passage seems to show that an Irish writer
spoke of the successor of St. Patrick, where a writer
of the same approximate period in England or on the
European Continent would assuredly have spoken of
the Pope.
I hope it is unnecessary for me to insist on the
interest which attaches to this part of the Brehon law.
It has been not uncommon, upon the evidence fur-
nished by the usages of the Scottish Highlanders,
sharply to contrast Celtic tribal customs with feudal
rules; and doubtless between these customs and
feudalism in its perfected state there are differences
of the greatest importance. Yet, if the testimony of
the Brehon tracts may be trusted, such differences
arose, not from essential distinctions, but, in some
measure at all events, from distinctions of degree in
comparative social development. The germs of feu-
dalism lay deep in the more ancient social forms, and
were ready to assert their vitality even in a country
like Ireland, which, after it was once Christianised,
can have borrowed next to no institutions from its
neighbours, cut off as it was from the Continent by
*
LECT. VI. INDEBTEDNESS OF ANCIENT DEMOCRACIES.
167
distance, and from England by stubborn national
repulsion. It is also worthy of observation that this
natural growth of feudalism was not, as some eminent
recent writers have supposed, entirely distinct from
the process by which the authority of the Chief or
Lord over the Tribe or Village was extended, but
rather formed part of it. While the unappropriated
waste-lands were falling into his domain, the villagers
or tribesmen were coming through natural agencies
under his personal power.
The Irish practice of 'giving stock' seems to me
also to connect itself with another set of phenomena
which have generally been thought to belong to a
very different stage of history. We obtain from the
law-tracts a picture of an aristocracy of wealth in its
most primitive form; and we see that the possession
of this wealth gave the nobles an immense power over
the non-noble freemen who had nothing but their
land. Cæsar seems to me to be clearly referring to
the same state of relations in the Celtic sister society,
when he speaks of the Gaulish chiefs, the Equites,
having one principal source of their influence in the
number of their debtors. (B. G., i. 4; B. G., vi. 13.)
Now, you will remember how uniformly, when
our knowledge of the ancient world commences, we
find plebeian classes deeply indebted to aristocratic
orders. At the beginning of Athenian history we
find the Athenian commonalty the bondslaves through
168
IMPORTANCE OF LAND AND CAPITAL.
LECT. VI.
debt of the Eupatrids; at the beginning of Roman
history we find the Roman Commons in money bond-
age to the Patricians. The fact has been accounted
for in many ways, and it has been plausibly suggested
that it was the occurrence of repeated bad seasons.
which placed the small farmers of the Attic and
Roman territory at the mercy of wealthy nobles.
But the explanation is imperfect unless we keep in
mind the chief lesson of these Brehon tracts, and recol-
lect that the relative importance of Land and Capital
has been altering throughout history. The general
proposition that Land is limited in quantity and is
distinguished by this limitation from all other com-
modities which are practically capable of indefinite
multiplication, has always of course been abstractedly
true; but, like many other principles of Political
Economy, its value depends on the circumstances to
which it is applied. In very ancient times land was
a drug, while capital was extremely perishable, added
to with the greatest difficulty, and lodged in very few
hands. The proportionate importance of the two
requisites of cultivation changed very slowly, and it
is only quite recently that in some countries it has
been well-nigh reversed. The ownership of the
instruments of tillage other than the land itself was
thus, in early agricultural communities, a power of
the first order, and, as it may be believed that a stock
of the primitive capital larger than usual was very
:
LECT. VI.
THE ERIC-FINE.
169
generally obtained by plunder, we can understand
that these stocks were mostly in the hands of noble
classes whose occupation was war, and who at all
events had a monopoly of the profits of office. The
advance of capital at usurious interest, and the helpless
degradation of the borrowers, were the natural re-
sults of such economical conditions. For the honour
of the obscure and forgotten Brehon writers of the
Cain-Saerrath and the Cain-Aigillne, let it not be
forgotten that their undertaking was essentially the
same as that which went far to immortalise one great
Athenian legislator. By their precise and detailed
statements of the proportion which is to be preserved
between the stock which the Chief supplies and the
returns which the tenant pays, they plainly intend
to introduce certainty and equity into a naturally
oppressive system. Solon, dealing with a state of
society in which coined money had probably not long
taken the place of something like the 'seds' of
the Brehon law, had no expedient open to him but
the debasement of the currency and the cancellation
of debts; but he was attacking the same evil as the
Brehon lawyers, and equally interfering with that
freedom of contract which wears a very different
aspect according to the condition of the society in
which it prevails.
The great part played in the Brehon law by Cattle
as the oldest form of Capital ought further to leave
170
THE ERIC-FINE.
LECT. VI.
no doubt of the original objects of the system of
'eric'-fines, or pecuniary composition for violent crime.
As I said before, no Irish institution was so strongly
denounced by Englishmen as this, or with so great
a show of righteous indignation. As members of a
wealthy community, long accustomed to a strong
government, they were revolted partly by its apparent
inadequacy and partly the unjust impunity which it
seemed to give to the rich man and to deny to the
poor. Although the English system of criminal
penalties which they sought to substitute for the
Irish system of compositions would nowadays be
described by an ordinary writer in pretty much as
dark colours as those used by Spenser and Davis for
the Irish institution, it is very possible that in the
sixteenth century it would have been an advantage
to Ireland to have the English procedure and the
English punishments. There is much evidence that
the usefulness of 'eric '-fines had died out, and that
they unjustly profited the rich and powerful. But
that only shows that the confusions of Ireland had
kept alive beyond its time an institution which in
the beginning had been a great step forwards from
barbarism. If the modern writers who have spoken
harshly of these pecuniary compositions had come
upon a set of usages belonging to a society in which
tribe was perpetually struggling with tribe, and in
which life was held extraordinarily cheap, and had
LECT. VI.
ETYMOLOGY OF FEUD.
171
found that, by this customary law, the sept or family
to which the perpetrator of a crime belonged forfeited
a considerable portion of its lands, I am not sure that
they would not have regarded the institution as
showing for the age an extremely strict police. But
in the infancy of society a fine on the cultivating
communities, of the kind afterwards called pecuniary,
was a much severer punishment than the forfeiture of
land. They had plenty of land within their domains,
but very slight appliances for cultivating it; and it
was out of these last that compositions were paid.
The system of course lost its meaning as the commu-
nities broke up and as property became unequally
divided. In its day, nevertheless, it had been a great
achievement, and there are traces of it everywhere,
even in Roman law, where, however, it is a mere
survival.
Before I quit the subject let me say something on
the etymology of the famous word, Feodum, Feud, or
Fief. The derivation from Emphyteusis is now alto-
gether abandoned, and there is general, though not
quite universal, agreement that Feodum is descended
from one or other of the numerous family of old
Teutonic terms which have their present representa-
tive in the modern German Vieh, cattle.' There is
supposed to have been much the same transmutation
of meaning which occurred with the analogous Latin
word. Pecunia, allied to pecus, signified first money,
6
172
SERVILE CLASSES ON TRIBAL TERRITORY. LECT. VI.
and then property generally; the Roman lawyers, in
fact, tell us that it is the most comprehensive term for
all a man's property; and in the same way 'feodum'
is supposed to have come to mean 'property,' from
having originally meant 'cattle.' The investigations
we have been pursuing may perhaps, however, suggest
that the connection of 'feodum' with cattle is closer
and more direct than this theory assumes. Dr. Sulli-
van, I ought to add, assigns a different origin to
'feodum' from any hitherto put forward (Introd.
p. ccxxvi.). He claims it as a Celtic word, and con-
nects it with fuidhir, the name of a class of denizens
on tribal territory whose status I am about to discuss.
The territory of every Irish tribe appears to have
had settled on it, besides the Saer and Daer Ceiles,
certain classes of persons whose condition was much
nearer to slavery than that of the free tribesman who,
by accepting stock from the Chief, had sunk lowest
from his original position in the tribal society. They
are called by various names, Sencleithes, Bothachs,
and Fuidhirs; and the two last classes are again sub-
divided, like the Ceiles, into Saer and Daer Bothachs,
and Saer and Daer Fuidhirs. There is evidence in
the tracts, and especially in the unpublished tract
called the 'Corus Fine,' that the servile dependants,
like the freemen of the territory, had a family or
tribal organisation; and indeed all fragments of a
society like that of ancient Ireland take more or less
LECT. VI.
THE FUIDHIR TENANTS.
173
the shape of the prevailing model. The position of
the classes, obscurely indicated in Domesday and
other ancient English records as Cotarii and Bordarii,
was probably very similar to that of the Sencleithes
and Bothachs; and in both cases it has been suspected
that these servile orders had an origin distinct from
that of the dominant race, and belonged to the older
or aboriginal inhabitants of the country. Families or
sub-tribes formed out of them were probably hewers
of wood and drawers of water to the ruling tribe or
its subdivisions. Others were certainly in a condition
of special servitude to the Chief or dependence on
him; and these last were either engaged in culti-
vating his immediate domain-land and herding his
cattle, or were planted by him in separate settle-
ments on the waste land of the tribe. The rent or
service which they paid to him for the use of this
land was apparently determinable solely by the
pleasure of the Chief.
Much the most important, and much the most in-
teresting of these classes from the historical point of
view, was that just described as settled by the Chief
on the unappropriated tribal lands. Indeed, it has
been suggested that its fortunes are identical with
those of the great bulk of the Irish people. It con-
sisted of the Fuidhirs, the strangers or fugitives from
other territories, men, in fact, who had broken the
original tribal bond which gave them a place in the
174
THE FUIDHIR TENANTS.
LECT. VI.
community, and who had to obtain another as best
they might in a new tribe and a new place. The
Brehon law shows by abundant evidence that the
class must have been a numerous one. The deser-
tion of their lands by families or portions of families
is repeatedly spoken of. Under certain circumstances,
indeed, the rupture of the tribal bond and the flight
of those who break it are eventualities distinctly con-
templated by the law. In the Brehon law, as in
other ancient juridical systems, the corporate respon-
sibility of tribes, sub-tribes, and families takes the
place of that responsibility for crime, and even to
some extent of civil obligation, which, under modern
institutions, presses upon the individual. But the
responsibility might be prevented from attaching
by compelling or inducing a member of the group,
habitually violent or vowed to revenge, to withdraw
from its circle; and the Book of Aicill gives the legal
procedure which is to be observed in the expulsion,
the tribe paying certain fines to the Chief and the
Church and proclaiming the fugitive. Such provi-
sions assume a certain order in the society to which
they apply; yet we know as a fact that for many
centuries it was violently disordered. The result was
probably to fill the country with 'broken men,' and
such men could only find a home and protection by
becoming Fuidhir tenants. Everything, in short,
which tended to disturb the Ireland of the Brehon
laws tended to multiply this particular class.
LECT. VI.
RENT PAID BY FUIDHIRS.
6
175
Now, the Fuidhir tenant was exclusively a depen-
dant of the Chief, and was through him alone con-
nected with the Tribe. The responsibility for crime,
which in the natural state of Irish society attached to
the Family or Tribe, attached, in the case of the Fuid-
hir, to the Chief, who in fact became to this class of
tenants that which their original tribesmen or kindred
had been. Moreover, the land which they cultivated
in their place of refuge was not theirs but his. They
were the first 'tenants at will' known to Ireland,
and there is no doubt that they were always theo-
retically rackrentable. The three rents,' says the
Senchus Mor, are the 'rackrent from a person of a
strange tribe, a fair rent from one of the tribe, and the
stipulated rent which is paid equally by the tribe and
the strange tribe.' The 'person from a strange tribe'
is undoubtedly the Fuidhir; and though the Irish
expression translated 'rackrent' cannot, of course,
in the ancient state of relation between population
and land, denote an extreme competition rent, it
certainly indicates an extreme rent; since in one of
the glosses it is graphically compared to the milk of
a cow which is compelled to give milk every month
to the end of the year. At the same time there is
no reason to suppose that, in the first instance, the
Fuidhir tenants were oppressively treated by the
Chiefs. The Chief had a strong interest in encouraging
them; he brings in Fuidhirs,' says one of the tracts,
176
AGRICULTURAL CLASSES IN ORISSA.
LECT. VI.
'to increase his wealth.' The interests really injured
were those of the Tribe, which may have become
stronger for defence or attack by the addition to the
population of the territory, but which certainly suf-
fered as a body of joint proprietors by the curtail-
ment of the waste land available for pasture. The
process before described by which the status of the
tribesmen declined proportionately to the growth of
the Chiefs' powers, must have been indirectly hastened
in several ways by the introduction of Fuidhirs.
Such indications of the course of change as the Bre-
hon laws furnish are curiously in harmony with a
passage from a work recently published, which, amid
much other valuable matter, gives a most vivid pic-
ture of agricultural life in the backward Indian pro-
vince of Orissa. Mr. Hunter, the writer, is speaking
of the relation of landlord and tenant; but as the
'hereditary peasantry' referred to have, as against
their landlord, rights defined by law, they are not
without analogy to the tribesmen of an ancient Irish
territory. The migratory husbandman,' the Fuid-
hir of modern India, 'not only lost his hereditary
position in his own village, but he was an object of
dislike and suspicion among the new community into
which he thrust himself. For every accession of
cultivators tended to better the position of the land-
lord, and pro tanto to injure that of the (older) culti-
So long as the land on an estate continued
vators.
6
$
LECT. VI.
IMPORTANCE OF FUIDHIR TENANCY.
177
to be twice as much as the hereditary peasantry could
till, the resident husbandmen were of too much im-
portance to be bullied or squeezed into discontent.
But once a large body of immigrant cultivators had
grown up, this primitive check on the landlords'
exactions was removed. The migratory tenants,
therefore, not only lost their position in their old vil-
lages, but they were harassed in their new settlements.
Worse than all, they were to a certain extent con-
founded with the landless low castes who, destitute
of the local connections so keenly prized in rural
society as the evidences of respectability, wandered
about as hired labourers and temporary cultivators of
surplus village lands.' (Hunter, 'Orissa,' i. 57, 58.)
You will perhaps have divined the ground of the
special attention which has been claimed for these
Fuidhir tenants, and will be prepared to hear that
their peculiar status has been supposed to have a
bearing on those agrarian difficulties which have
recurred with almost mysterious frequency in the
history of Ireland. It is certainly a striking circum-
stance that in the far distance of Irish tradition we
come upon conflicts between rent-paying and rent-
receiving tribes-that, at the first moment when our
information respecting Ireland becomes full and
trustworthy, our informants dwell with indignant
emphasis on the 'racking' of tenants by the Irish
Chiefs and that the relation of Irish landlord and
N
178
IRISH AGRARIAN HISTORY.
LECT. VI
An
Irish tenant, after being recognised ever since the
beginning of the century as a social difficulty of the
first magnitude, finally became a political difficulty,
which was settled only the other day. I do not say
that there is not a thread of connection between
these stages of Irish agrarian history, but there are
two opposite errors into which we may be betrayed
if we assume the thread to have been uniform
throughout. In the first place, we may be tempted
to antedate the influence of those economical laws
which latterly had such powerful operation in Ireland
until their energy was well-nigh spent through the
consequences of the great famine of 1845-6.
overflowing population and a limited area of culti
vable land had much to do, and probably more than
anything else to do, with the condition of Ireland
during that period; but neither the one nor the other
was a characteristic of the country at the end of the
sixteenth century. Next, we may perhaps be inclined,
as some writers of great merit seem to me to be, to
post-date the social changes which caused so large a
portion of the soil of Ireland to be placed under the
uncontrolled Law of the Market, or, to adopt the
ordinary phraseology, which multiplied tenants at
will' to an unusual extent. Doubtless, if we had to
found an opinion as to these causes exclusively on
ancient Irish law, and on modern English real
property law, we should perhaps come to the conclu-
(
LECT. VI. TESTIMONY OF SPENSER AND DAVIS.
179
sion that an archaic system, barely recognising abso-
lute ownership, had been violently and unnaturally
replaced by a system of far more modern stamp
based upon absolute property in land. But, by the
end of the sixteenth century, our evidence is that the
Chiefs had already so much power over their tenants.
that any addition to it is scarcely conceivable. The
Lords of land,' says Edmund Spenser, writing not
later than 1596, 'do not there use to set out their land
to farme, for tearme of years, to their tenants, but
only from yeare to yeare, or during pleasure, neither
indeed will the Irish tenant or husbandman otherwise
take his land than so long as he list himselfe. The
reason thereof in the tenant is, for that the landlords
there use most shamefully to racke their tenants,
laying upon them coin and livery at pleasure, and
exacting of them besides his covenants what he
pleaseth. So that the poore husbandman either dare
not binde himselfe to him for longer tearme, or
thinketh, by his continuall liberty of change, to keepe
his landlord the rather in awe from wronging of him.
And the reason why the landlord will no longer
covenant with him is, for that he dayly looketh after
change and alteration, and hovereth in expectation of
new worlds.' Sir John Davis, writing rather before
1613, used still stronger language: 'The Lord is an
absolute Tyrant and the Tennant a very slave and
villain, and in one respect more miserable than Bond
N 2
180
EXPLANATIONS OF ENGLISH TESTIMONY. LECT. VI.
Slaves. For commonly the Bond Slave is fed by his
Lord, but here the Lord is fed by his Bond Slave.'
There is very little in common between the
miserable position of the Irish tenant here described
and the footing of even the baser sort of Ceiles, or
villeins, who had taken stock from the Chief. If the
Brehon law is to be trusted, the Daer Ceile was to be
commiserated, rather because he had derogated from
his rights as a free tribesman of the same blood with
the Chief, than because he had exposed himself to un-
bridled oppression. Besides paying dues more of the
nature of modern rent, he certainly stood under that
unfortunate liability of supplying periodical refection
for his Chief and his followers. But not only was the
amount of his dues settled by the law, but the very
size of the joints and the quality of the ale with which
he regaled his Chief were minutely and expressly
regulated. And, if one provision of the law is clearer
than another, it is that the normal period of the
relation of tenancy or vassalage was not one year, but
seven years. How, then, are we to explain this dis-
crepancy? Is the explanation that the Brehon theory
never in reality quite corresponded with the facts?
It may be so to some extent, but the careful student
of the Brehon tracts will be inclined to think that
the general bias of their writers was rather towards
exaggeration of the privileges of Chiefs than towards
overstatement of the immunities of tribesmen. Is it,
LECT. VI. EXPLANATIONS OF ENGLISH TESTIMONY.
181
on the other hand, likely that, as some patriotic
Irishmen have asserted, Spenser and Davis were
under the influence of English prejudice, and grossly
misrepresented the facts of Irish life in their day?
Plenty of prejudice of a certain kind is disclosed by
their writings, and I doubt not that they were capable
of occasionally misunderstanding what they saw.
Nothing, however, which they have written suggests
that they were likely wilfully to misdescribe facts
open to their observation. I can quite conceive that
some things in the relations of the Chiefs and tenants
escaped them, possibly a good deal of freely-given
loyalty on one side, and of kindliness and good-
humoured joviality on the other. But that the Irish
Chief had in their day the power or right which they
attribute to him cannot seriously be questioned.
The power of the Irish Chiefs and their severity to
their tenants in the sixteenth century being admitted,
they have been accounted for, as I before stated, by
supposing that the Norman nobles who became grad-
ually clothed with Irish chieftainships-the Fitz-
geralds, the Burkes, and the Barrys-abused an au-
thority which in native hands would have been subject
to natural limitations, and thus set an evil example to
all the Chiefs of Ireland. The explanation has not
the antecedent improbability which it might seem
to have at first sight, but I am not aware that there
is positive evidence to sustain it. I owe a far more
182
STATUS OF THE FUIDHIR.
LECT. VI.
plausible theory of the cause of change to Dr. Sulli-
van, who, in his Introduction (p. cxxvi), has sug-
gested that it was determined by the steady multipli-
cation of Fuidhir tenants. It must be recollected that
this class of persons would not be protected by the
primitive or natural institutions springing out of
community of blood. The Fuidhir was not a tribes-
man but an alien. In all societies cemented together
by kinship the position of the person who has lost
or broken the bond of union is always extraordinarily
miserable. He has not only lost his natural place in
them, but they have no room for him anywhere
else. The wretchedness of the outcast in India,
understood as the man who has lost or been expelled
from caste, does not arise from his having been de-
graded from a higher to a lower social standing, but
from his having no standing whatever, there being no
other order of society open to receive him when he
has descended from his own. It was true that the
Fuidhir, though he had lost the manifold protection
of his family and tribe, was not actually exposed to
violent wrong. From that he was protected by the
new Chief to whom he had attached himself, but be-
tween him and this Chief there was nothing. The
principle would always be that he was at the mercy
of the Chief. At the utmost, some usages favourable
to him might establish themselves through lapse of
time, but they would have none of the obligatory
LECT. VI.
DISORDER OF ANCIENT IRELAND.
183
force belonging to the rules which defined the rights
of the Chief in respect of his Saer-stock and Daer-
stock tenants. We can see that several of the duties
corresponding to these rights were of a kind to invite
abuse; much more certainly would obligations analo-
gous to them, but wholly imposed by the pleasure of
the Chief, become cruelly oppressive. The 'refec-
tions' of the Brehon law would, by a miserable de-
gradation, become (to borrow the language of Spen-
ser and Davis) coin and livery, cuttings, cosherings,
and spendings, in the case of the Fuidhirs. Meanwhile
there were causes at work, powerfully and for long
periods of time, to increase the numbers of this class.
Even those Irishmen who believe that in the distant
past there was once a tolerably well-ordered Ireland
admit that for many centuries their country was
racked with perpetual disturbance. Danish piracies,
intestine feuds, Anglo-Norman attempts at conquest
never consistently carried out or thoroughly com-
pleted, the very existence of the Pale, and above all
the policy directed from it of playing off against one
another the Chiefs beyond its borders, are allowed by
all to have distracted the island with civil war, how-
ever the responsibility for it is to be apportioned.
But the process is one which must have broken up
tribes far and wide, and broken tribes imply a multi-
tude of broken men. Even in brief intervals of peace
the violent habits produced by constant disorder would
184
INDIAN HEREDITARY TENANTS.
LECT. VI.
bring about the frequent expulsion by families of
members for whom they refused to remain responsible,
and in the commoner eventuality of war whole frag-
ments would be from time to time torn away from
tribes and their atoms scattered in every part of Ire-
land. It is, therefore, a conjecture possessing a very
high degree of plausibility, that the tenantry of the
Irish Chiefs whose sufferings provoked the indignation
of Spenser and Davis consisted largely of Fuidhirs.
The explanation may, however, be carried beyond
this point. You will bear in mind the passage quoted
by me from Hunter's 'Orissa,' which shows how a
tenantry enjoying hereditary rights is injured, even
under a Government which sternly compels peace and
order, by a large immigration of cultivators depen-
dent on the landlord or Zemindar. They narrow the
available waste land by their appropriations; and,
though they do not compete directly for the anciently
cultivated land with the tenants enjoying hereditary
rights, they greatly raise in the long run the standard
of rent, at the same time that they arm the landlord
with those powers of exacting it which in ancient
Ireland consisted in the strong hand of the Chief him-
self, and which consist, in modern India, in the money
which puts in motion the arm of the law. I have
no doubt whatever that a great multiplication of
Fuidhir tenants would always seriously alter for the
worse the position of the tenants by Saer-stock and
Dear-stock tenure.
LECT. VII.
ABOLITION OF NATIVE IRISH TENURES.
185
LECTURE VII.
}
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 Gavel-
kind. 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 Gavel
kind.' (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 Sig-
nory and to estates which had been divided according
to the peculiar Irish custom here called Gavelkind.
The Judges thoroughly knew that they were making
186
THE IRISH GAVELKIND.
LECT. VII.
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 Primogeni-
ture 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 succes-
sion by Primogeniture.
It will be convenient that we should first consider
the so-called Gavelkind of Ireland, which is thus de-
scribed 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 par-
tition 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, com-
posed in great part of men whose relationship of
LECT. VII.
EXPLANATION OF IRISH GAVELKIND.
187
blood with the Chief and the mass of free tribes-
men, was a mere fiction. The last was a much
smaller body, whose proximity to a common ances-
tor was close enough to admit of their kinship either
being a fact or being believed to be a fact. It ap-
parently corresponded to the small Highland com-
munities observed in Scotland, by an English officer
of Engineers about 1730. 'They (the Highlanders)
are divided into tribes or clans under chiefs or chief-
tains, 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 par-
ticular 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 succes-
sive 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 kin-
dred united in the family group. And if, on a dis-
"
188 NATURAL COMMUNISM OF PRIMITIVE GROUPS. LECT. VII.
solution 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, accord-
ing to primitive notions, of making a distinction be-
tween 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 assem-
blage of blood-relations than a body of co-villagers,
LECT. VII. EXTANT EXAMPLES OF IRISH GAVELKIND.
189
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 descen-
dants of the latest holder take his property, to the ex-
clusion of everybody else, and the rights of the por-
tion 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 o
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.
190 DIFFICULTIES SUGGESTED BY IRISH GAVELKIND. LECT. VII.
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 believ-
ing 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 inconsis-
tent 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
LECT. VII. DISCREPANCIES IN IRISH EVIDENCE.
191
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, how-
ever they may affect the Family, certainly seem to ex-
clude the Sept. Dr. Sullivan, who appears to have
consulted many more original authorities than have
been translated or given to the world, expresses him-
self as if he thought that the general law of succes-
sion 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 state-
192
PROBABLE VARIETY OF IRISH TENURES. LECT. VII.
ments of English authorities on the point are ex-
tremely precise. They affirm that no civil habita-
tions 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 ex-
tremely probable that another set of facts justified the
indications given by the Brehon tracts, and that there
were other modes of succession known besides succes-
sion 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 house-
hold 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 pased on kinship, each family separated from
the rest tends itself to expand into a joint family or
6
LECT. VII.
PRIVATE ESTATES OF CHIEFS.
193
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,
194
ACTUAL DIVISIONS OF LAND BY CHIEFS. LECT. VII.
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 as-
signed 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 suffi-
ciently 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
LECT. VII. SUCCESSION OF MODES OF DIVISION.
195
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
0 2
196
DISTRIBUTION DURING LIFE.
LECT. VII.
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 repre-
LECT. VII.
THE BIRTHRIGHT.
197
sentative 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 suc-
198
PRIMOGENITURE.
LECT. VII.
cession 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 Primo-
geniture 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 pro-
perty. 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 vil-
lages-had been governed by eldest son after eldest
son.
LECT. VII. ANCIENT FORMS OF PRIMOGENITURE.
199
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 Primo-
geniture 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 des-
potically governed by its head; but if he dies and the
Family separates at his death, the property is equally
>
200
MANAGER OF JOINT FAMILY.
LECT. VII.
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 enlarge-
ment. 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 intel-
ligible. 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 systemati-
LECT. VII. ELDEST RELATIVE PREFERRED TO ELDEST SON. 201
6
cally 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 with-
stand 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
202
ORIGIN OF PRIMOGENITURE.
LECT. VII.
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 pro-
duct of tribal leadership in its decay. Some such
system as that represented by the Irish Tanistry be-
longed probably at one time to all the tribal commu-
nities 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 main-
tained during tolerably long periods of time, wherever
an approach was made to the formation of societies of
the distinctive modern type, wherever military and
LECT. VII.
TRANSFORMATION OF PRIMOGENITURE.
203
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 High-
land 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 Eng-
lish 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
Some think the younger son
has more right to the inheritance than the grandson
. . . . but others incline to think that the grandson
204
BRUCE AND BALIOL.
LECT. VII.
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 mani-
festly 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 pro-
perty descending according to the rule of primogeni-
ture. It
It may be believed that in this way a principle
of inheritance was formed which first of all extended
LECT. VII.
ABOLITION OF TANISTRY.
205
from the demesne to all the estates of the holder of
the Signory, however acquired, and ultimately deter-
mined 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 Primo-
geniture 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. ('An-
cient 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 in-
civility.' The decision against the Irish Gavelkind
was far less justifiable. Even if the institution were
exactly what Davis supposed it to be, there was in-
justice in suddenly disappointing the expectations of
206
IRELAND AND INDIA.
LECT. VII.
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 inherit-
ance 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 evi-
dence 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 Eng-
lishmen, 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 un-
divided families. I do not know that any such mis-
take 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
LECT. VII.
IRELAND, INDIA, AND RUSSIA.
207
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-commu-
nities, 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 abso-
lute 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 pro-
blem which taxes to the utmost the statesmanship of
the most advanced era, when animated by the highest
benevolence and informed with the widest knowledge.
208
DIVISIONS OF THE IRISH FAMILY.
LECT. VII.
It has been reserved for our own generation to wit-
ness 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 Bre-
hon tracts which describe an internal division of the
Irish Family, a classification of its members and a
corresponding system of succession to property, ex-
tremely unlike any arrangement which we, with our
ideas, can conceive as growing out of blood-relation-
ship. 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 Ind-
fine-of which expressions the three last are trans-
lated 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,
LECT. VII.
DIVISIONS OF THE IRISH FAMILY.
209
6
in the Third Volume, supplies us for the first time
with statements concerning it having some ap-
proach 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 Deirbh-
fine passed into the Iarfine; the eldest member of the
Iarfine moved into the Indfine; and the eldest mem-
ber 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 intro-
duction 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 bear-
ing 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
P
210
DEGREES OF CONSANGUINITY.
LECT. VII.
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, pro-
vided 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 organi-
sation to have been ever changed. He
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 classi-
fication 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 oc-
curs 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 arti-
ficial and confined to limited spheres of application.
When one of us opens his Prayer-book and glances
LECT. VII. FAMILY NOT DIVIDED ACCORDING TO DEGREES. 211
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 con-
sist 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 dis-
tribution of the family undoubtedly affected the law
of inheritance, and the Geilfine class, to our eyes so
P 2
212 DESCRIPTIVE AND CLASSIFICATORY SYSTEMS. LECT. VII.
anomalous, might succeed in certain eventualities to
the property of the other classes, of which the compo-
sition is in our eyes equally arbitrary.
This singular family organisation suggests, how-
ever, 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 'Sys-
tems 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 per-
ceived 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 Kin-
ship 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 en-
tertained by the human family as a whole were extra-
ordinarily various, but that a generalisation was pos-
sible, and that these ideas could be referred to one or
LECT. VII. DESCRIPTIVE AND CLASSIFICATORY SYSTEMS. 213
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 De-
scriptive 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 con-
fined 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
"
214
THE CLASSIFICATORY SYSTEM OF KINSHIP. LECT. VII
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 sys-
tem 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 accus-
tomed. 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 con-
joint 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
LECT. VIT.
MEANING OF IRISH DIVISION
215
once prevailed universally throughout the human
race, and known now to occur in some obscure frag-
ments of it. The fullest account of the condition of
society in which these views of relationship are be-
lieved to have grown up may be read in Mr. McLen-
nan'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 in-
teresting, 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 re-
flected 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 classi-
fication described by Mr. Morgan is only superficial
and accidental. The last explanation Mr. Morgan
would admit of the remarkable ideas concerning kin-
ship 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
216
ETYMOLOGY OF GEILFINE.
LECT. VII.
the Family. I think, however, I can assign some at
least plausible reasons for believing that this perplex-
ing 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 yeíp. In several Aryan
languages the term signifying 'hand' is an expressive
L...
LECT. VII.
IRISH AND ROMAN FAMILY.
217
equivalent for Power, and specially for Family or
Patriarchal Power. Thus, in Greek we have vπоɣeípios
and xépns, for the person under the hand. In Latin
we have herus 'master,' from an old word, cognate
to xeip; 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 phra-
seology, 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 eman-
cipation 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
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 Ro-
218
ANCIENT ROMAN AND IRISH FAMILY. LECT. VII.
man 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 in-
heritance, 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 re-
semblance between the ancient Roman and ancient
Celtic Family. We have no trace of any systematised
discharge of the sons from the Roman Patria Potes-
tas; 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
LECT. VII. INHERITANCE AND DIVISIONS OF FAMILY.
219
hand, to have been determined by a self-acting prin-
ciple. An even more remarkable distinction is sug-
gested 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 ex-
amined.
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 as-
sumed. 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
220
THE NUMBER FIVE.
LECT. VII.
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 Geil-
fine 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 consider-
ably 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 an-
other kind between the Geilfine group and the five
fingers of the hand. If you ask why in a large
LECT. VII.
BOROUGH ENGLISH.
221
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 in-
structive chapter on the infancy of the Art of
Counting, in the first volume of his 'Primitive Cul-
ture.' '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 com-
monly 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
222
EXPLANATIONS OF BOROUGH ENGLISH. LECT. VII.
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 im-
memorial 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 ille-
gitimacy. 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 Tar-
'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
tars.
LECT. VII. PRIMOGENITURE AND BOROUGH ENGLISH.
223
father, which one now became his heir.' The expla-
nation 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 Eng-
lish 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,
224
PRIMOGENITURE AND BOROUGH ENGLISH. LECT. VII.
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.
LECT. VIIL-
COMPARATIVE MYTHOLOGY.
225
LECTURE VIII.
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 cha-
racteristics 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
Q
226
IDEAS OF THE EAST.
LECT. VIII.
East. This limitation of our field of vision is per-
fectly 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 pheno-
menon 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
LECT. VIII.
SLOWNESS OF PROGRESS.
227
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 never-
ceasing 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. Never-
theless, 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 pro-
duce; yet as suddenly, after one or a few such efforts.
the productive activity of both branches of invention
Q 2
228
LIMITS TO FERTILITY OF HUMAN MIND. LECT. VIII.
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 limita-
tions 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 informa-
tion 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 harmonis-
ing with the new relation, nor was any new phrase-
ology invented to express it. The new member of
each group was spoken of as akin to it, was treated as
-2
LECT. VIII.
TRANSFORMATION OF IDEAS.
229
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 arti-
ficial 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 circum-
stances 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. Else-
230
FICTIONS OF CONSANGUINITY.
LECT. VIII.
where 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 amalga-
mated 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
LECT. VIII.
ANCIENT IRISH FICTIONS.
231
natural was nevertheless known to be in great mea-
sure 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 wor-
shipping 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 commu-
nities-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 un-
derstand 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
232
TRIBAL ORIGIN OF GUILDS.
LECT. VIII.
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 ex-
tension 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 Introduc-
tion (pp. cevi 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 institu-
tion 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
LECT. VIII.
LONDON COMPANIES.
233
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 trans-
mutation 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 privi-
leges 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
234
ORIGIN OF PARTNERSHIP.
LECT. VIII.
one or two others of the great Roman contracts
appear to me, when closely examined, to afford evi-
dence 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 part-
nership. Look, however, at the peculiar contract
called by the Romans 'societas omnium (or universo-
rum) bonorum.' It is commonly translated 'partner-
ship 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 se-
veral 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
LECT. VIII.
THE ANCIENT IRISH CHURCH.
235
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 co-
alescence 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, deve-
loped 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 instruc-
tive 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 eccle-
siastical historians. There are difficulties suggested
by it on which I do not pretend to throw any new
light, nor, indeed, could they conveniently be con-
sidered 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.
:
236
THE ANCIENT IRISH CHURCH.
LECT. VIII.
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 con-
firm the account of the matter given, from the purely
ecclesiastical literature, by Dr. Todd, in the Intro-
duction 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
6
family' or 'tribe' and 'kinship' are applied to all
the religious bodies created by this process. Each
monastic house, with its monks and bishops, consti-
tutes 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 col-
lective assemblage of religious houses formed by the
parent monastery and the various churches or mon-
astic bodies sprung from it. These make up together
the 'tribe of the saint,' but this last expression is
not exclusively employed with this particular mean-
ing. The abbot of the parent house and all the
abbots of the minor houses are the 'comharbas'
LECT. VIII.
GROUPS OF RELIGIOUS HOUSES.
237
•
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 rela-
tions 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 hond
which connected them with their original family and
chief. Nothing, let me observe, can be more curious
238
THE FAMILY OF THE SAINT.
LECT. VIII.
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 pro-
ceeds to say that, if no relative or tribesman of the
saint be qualified, the Abbacy shall go to some mem-
ber of the tribe which originally granted the land.
6
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 mission-
aries have recently tried an experiment which pro-
mises to have much success, and have planted in vil-
LECT. VIII.
SPIRITUAL RELATIONSHIP.
239
lages 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 pecu-
liarly 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 dis-
cussing, are placed in circumstances which naturally
breed affection and sympathy, or when they are placed
in a relation which they are taught to consider espe-
cially 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 ex-
ample of the process in the history of the Christian
Church. You know, I dare say, that Spiritual Rela-
tionship, 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 Chris-
240
SPIRITUAL RELATIONSHIP.
LECT. VIL
tian community is, I believe, a Constitution of Jus-
tinian in the Code (v. 4. 26), which forbids the
marriage of the sponsor with the baptized; but tne
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 kin-
ship, 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
LECT. VIII.
FOSTERAGE.
241
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 strin-
gency 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 Foster-
age, the giving and taking of children for nurture.
Of the reasons why this practice, now known to
have been widely diffused among Aryan communi-
ties, 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 attach-
ing to all parties when the children of another family
were received for nurture and education.
R
It is
242
LITERARY FOSTERAGE.
LECT. VIII.
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 mon-
strous that the same mother's milk should produce
in Ireland the same close affections as did common pa-
ternity 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 arti-
ficial in its commencements, was natural in its opera-
tions; 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 Bre-
hon 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
LECT. VIII.
LITERARY FOSTERAGE IN INDIA.
243
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 dig-
nity, 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. Accord-
ing 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 Mitak-
shara, 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;
R 2
244
ORIGIN OF CASTE.
LECT. VIII.
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 turn-
ing 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 oppor-
tunity 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 im-
proper use of the word, though it is one not uncom-
mon in India. As regards the position of the Brehons
in very early times, the evidence of the Irish re-
cords 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
LECT. VIII.
TRADES CALLED CASTES.
245
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 heredi-
tary 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 con-
sulted 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 uni-
versal rule that office is hereditary. We do not, how-
ever, 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 sus-
pected 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
246
ORIGIN OF TRUE CASTE.
LECT. VIII.
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 in-
formation respecting changes in the status of the Bre-
hon 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 in-
tellectual; 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 know-
ledge would come to be thought to run in the blood
LECT. VIII. NORMANS SETTLED IN IRELAND.
247
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 so-
cieties still under the influence of primitive thought
labour under a certain incapacity for regarding men,
grouped together by virtue of any institutions what-
soever, as connected otherwise than through blood-
relationship. We find that, through this barrenness of
conception, they are apt to extend the notion of con-
sanguinity and the language beginning in it to insti-
tutions 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 prac-
tically indistinguishable. These phenomena of early
thought and feeling appear to me amply to account
for some facts of Irish history which nearly all Eng-
lish 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 astonish-
ment and anger which the transformation excited in
Englishmen. The English Colonists did embrace
248
INVECTIVE OF DAVIS.
LECT. VIII.
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 differ-
ence 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 pater-
nity—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 deposi-
tary 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
LECT. VIII.
ANGLO-NORMANS IN IRELAND.
249
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.
250
THE MANUSCRIPT OF GAIUS.
LECT. IX.
LECTURE IX.
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 it-
self, 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
LECT. IX.
LEX AND LEGIS ACTIO,
251
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 imper-
fect 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 conjec-
tured to have been the substantive form of the verbal
expression, legem or lege agere, and to have been equi-
valent 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 con-
ducted by the Court, together, in some judicial sys-
tems, with the stage immediately preceding it. I
suppose that originally lex, used of the assumed writ-
ten basis of Roman law, and legis actio, corresponded
roughly to what many centuries afterwards were
called Substantive and Adjective Law, the law de-
(
252
THE LEGIS ACTIO SACRAMENTI.
LECT. IX.
claring rights and duties and the rules according to
which the law declaring rights and duties is adminis-
tered. On the expression just mentioned, Adjective
Law, with which Bentham and his school have fami-
liarised 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 mis-
conception. 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 conceiv-
ing 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 interest-
ing 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)
LECT. IX.
ANCIENT DRAMATISATIONS.
(
253
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 inter-
poses 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 re-
signing 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 Hephaestus 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 at-
tending 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
254
SACRAMENTAL ACTION.
LECT. IX.
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 sym-
bolise 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 civi-
lised 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
LECT. IX.
SACRAMENTAL ACTION.
255
only in the Roman but in several other Western
societies. The proceedings included a series of as-
sertions and reassertions of right by the parties, and
this formal dialogue was the parent of the Art of
Pleading. The quarrel between plaintiff and defend-
ant, 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 interposi-
tion of the Prætor and the acceptance of his media-
tion expanded into the Administration of Justice in
the Roman State, one of the most powerful of instru-
mentalities in the historical transformation of the
civilised world. The disputants staked a sum of
money-the Sacramentum, from which the proceed-
ings 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 histo-
rians 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 cha-
racteristic 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
256
THE CONDICTION.
LECT. IX.
must call them trees, because the text of the Twelve
T'ables spoke only of trees. The ancient collection
of Teutonic legal formulas, known as the Malberg
Gloss, contains provisions of precisely the same cha-
racter. 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 descrip-
tion 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
LECT. IX.
THE PIGNORIS CAPIO.
257
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 instru-
ment of the cruelties practised by the Roman aris-
tocracy on their defaulting plebeian debtors, and thus
gave the first impetus to a series of popular move-
ments which affected the whole history of the Roman
it
S
258
THE PIGNORIS CAPIO.
LECT. IX.
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 per-
son 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 default-
ing purchaser. It was thus confined to claims of
great urgency or of highly sacred obligation; but it
was afterwards extended to demands for overdue ar-
rears 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 mean-
ing 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
LECT. IX.
ANTIQUITY OF WAGERING.
259
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 interpo-
sition 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 ex-
istence, implies that the shedding of blood has some-
how 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
s 2
260
SEIZURE OF GOODS.
LECT. IK
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 Con-
dictio that the reference is to the decision of an arbi-
trator 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 ab-
sence of his adversary, or if he be the stronger, in his
presence, take forcible possession of his moveable pro-
perty 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
LECT. IX,
DISTRAINT OF GOODS.
261
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 pro-
gress of most societies towards a complete adminis-
tration 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 unmistake-
able 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 Re-
plevin. 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
262
DISTRESS FOR RENT.
LECT. IX.
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 ul-
timately put up for sale with certain prescribed
formalities, the landlord is paid out of the pro-
ceeds, 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
LECT. IX.
COURSE OF A DISTRESS.
263
preserved in the once famous law-term withernam
is attested by records considerably older than the Con-
quest. 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 per-
son 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 proceed-
ings 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
254
COURSE OF A DISTRESS.
LECT. IX.
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
LECT. IX. ANTIQUITY OF PROCEDURE IN DISTRESS.
265
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 pre-
sented 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 represen-
tation. 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
266
PRIMITIVE OBJECTS OF DISTRESS. LECT. IX.
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 dis-
trained 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 pro-
bably in date, came the direct interposition of the
State. The King steps in, first, in what we should now
LECT. IX. PECULIARITIES OF ACTION OF REPLEVIN.
267
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 ad-
versary 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 ap-
pearance 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 be-
tween 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 contri-
vances 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
*
268
(
THE ACTION OF REPLEVIN.
LECT. IX.
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 in-
jury 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 defend-
ant 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
LECT. IX.
THE LEGES BARBARORUM.
269
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 Continen-
tal Teutonic law known collectively as the Leges
Barbarorum is of a very interesting kind. Almost
all of them contain references to Pignoratio or dis-
traint of goods. The Visigothic law expressly pro-
hibits it; and, at the other end of the scale, the Lom-
bardic 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 sub-
ject, which have been for the first time fully interpre-
ted 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 com-
plainant to the person of whom he complains, and
whose property he proposes to seize. Nor can he
270
ANCIENT TEUTONIC FORMS OF DISTRAINT. LECT. IX.
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. Dis-
traint, 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
LECT. IX.
FRANKISH PROCEDURE
271
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 Eng-
lish distress is in some particulars of a more archaic
character than the corresponding compulsory process
of the Leges Barbarorum. Thus notice of the inten-
tion 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 Com-
mon-law, though distraint sometimes followed a pro-
ceeding in the lord's Court, yet it did not necessarily
presuppose or require it.
It should be understood that the Frankish pro
cedure was completely at the disposal of the com-
plainant. 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
272 ANCIENT VIEW OF PLAINTIFF AND DEFENDANT. LECT. IX.
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 dis-
charge 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 op-
pressions of powerful men have become insignificant,
when the law has been long and regularly adminis-
tered 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 com-
plainants are presumably in the right was kept long
LECT. IX.
GAIUS AND BLACKSTONE.
273
alive among us, and had much to do with the obsti-
nate dislike of lawyers to allowing prisoners to be
defended by Counsel.
6
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 com-
mitted, 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 de-
mand was, as Professor Sohm justly remarks, a sort
of two-edged sword. You might bring your adver-
sary to the ground by it, but you were extremely
likely to injure yourself. For, unless the com-
plainant who sought to distrain went through all the
acts and words required by the law with the most
T
274
REASONS FOR SURVIVAL OF DISTRESS. LECT. IX.
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.
6
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 un-
able 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 occa-
sionally took the form so curiously preserved in its
main features to our own day by the English Com-
mon law, but which at a relatively later date and
LECT. IX. JUDICIAL PROCEDURE OF SALIC LAW.
275
more generally may be believed to have shaped itself
on the model of the rules observed by the Salian
Franks.
own.
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
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 in-
fancy, and when Courts of Justice could not as yet
completely and regularly command the aid of sove-
reign 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 dis-
pense 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.
T 2
276
LATER HISTORY OF DISTRESS.
LECT. IX.
hands of private litigants
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
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 con-
stantly 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
LECT. IX.
MODERN THEORY OF DISTRESS.
277
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 extra-
judicial 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 com-
pelled 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
278
DEVELOPMENT OF REMEDIES.
LECT. IX.
systems, the following conclusions respecting the
historical development of the remedies which grew
out of the savage practice of violently seizing pro-
perty 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 com-
plainant 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 de-
fendants 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.
LECT. X.
IRISH LAW OF DISTRESS.
279
LECTURE X.
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 sepa-
rated by peculiarly sharp distinctions from all Ger-
manic bodies of usage.
I
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.
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;
280
DISTRESS ACCORDING TO SENCHUS MOR. LECT. X.
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 instructive-
ness 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 sub-
ordinate 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
LECT. X. DISTRESS ACCORDING TO SENCHUS MOR.
281
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 for-
feited. If the entire value of the distress thus for-
feited was exactly equal to the original debt and the
subsequent expenses, the debt was liquidated; if it
282
IRISH AND GERMANIC DISTRESS.
LECT. X.
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 him-
self, 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 dis-
tress 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 de-
stroy 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
LECT. X.
IRISH AND ENGLISH DISTRESS.
283
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 ine 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 Con-
tinental 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 dis-
trained which it strenuously insists upon, though not
found in the surviving English Common law, fills an
important place, as I stated, in other Teutonic collec-
tions 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
of distraint. Further, the Stay of pro-
process
ceedings, which has been compared to an Attach-
284
IRISH AND TEUTONIC DISTRESS.
LECT. X.
ment, seems to me better explained by certain
provisions of the 'Leges Barbarorum.'
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 ex-
pressive 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 Teu-
tonic 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 assist-
ance nor permission from any Court of Justice. In
LECT. X. DIFFICULTIES AS TO IRISH DISTRESS.
285
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 pecu-
liarity. 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 Eng-
lish 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, prac-
tically acquired its jurisdiction through the interposi-
tion 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
286
THE IRISH COURTS.
C
LECT. X.
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 autho-
rity 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 any-
thing 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
LECT. X. ASSUMED IRISH JUDICIAL ORGANISATION.
287
by themselves, or at most before some recognised tri-
bunal 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. Sul-
livan, 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 never-
theless believes in the historical reality of this or-
ganisation, 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 au-
thorities 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 inhe-
rently improbable, nor are Dr. Sullivan's opinions
so hard to reconcile with the views of the Editors
288
ANCIENT VOLUNTARY JURISDICTIONS.
LECT. X.
of the translations, as persons unacquainted with
legal history might suppose. There are analogies
to many of the tribunals described among the rudi-
mentary 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.
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 in-
consistency between the prevalence of disorder and
the frequency of litigation as would make them ex-
clude one another. The Norse literature, which Mr.
Dasent has popularised among us, shows that per-
Even
LECT. X.
LITIGATION IN INDIA.
289
petual fighting and perpetual litigation may go on
side by side, and that a highly technical procedure
may be scrupulously followed at a time when homi-
cide is an everyday occurrence. The fact seems to
be that contention in Court takes the place of conten-
tion in arms, but only gradually takes its place; and
it is a tenable theory that many of the strange pecu-
liarities 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 explana-
nation is that the same natural impulse is gratified in
a new way; hasty appeals to a judge succeed hur-
ried 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
U
200
PECULIARITIES OF IRISH DISTRESS.
LECT. X.
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 effective-
ness of their process, or in other words the degree in
which they command the public force of the Common-
wealth. 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 wit-
nesses who have to be present, and the skilled legal ad-
viser 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
6
LECT. X. RELATIVE ANTIQUITY OF IRISH DISTRESS.
291
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 împression
that it was brought to the shape in which we find it
amid a society in which the action of Courts of Jus-
tice 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
σ 2
292
IRISH AND ENGLISH DISTRESS.
LECT. X.
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 disturb-
ance 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 de-
clared by the earliest authorities which our Courts
recognise. Both had the same origin, but the Irish
distraint was an universal, highly developed proceed
ing 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
LECT. X. SPENSER'S CRITICISM ON LAW OF DISTRESS.
293
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 de-
mand 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.'
294
WRONGFUL DISTRESS A CAPITAL FELONY. LECT. X.
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 bur-
gesses 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 sub-
tleties of old English law which, as Blackstone says,
made the taking of distress 'a hazardous sort of pro-
ceeding' to the civil distrainor, might bring an Irish-
man 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
LECT. X.
THEORIES CONCERNING DISTRESS.
295
obey, and the English law, which it was a capital
crime to blunder in obeying, were undoubtedly de-
scended from the same body of usage once univer-
sally 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 com-
mon 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 sur-
vive 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
296
DISTRESS AN ARYAN CUSTOM
LECT. X.
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. Con-
fining 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 dis-
traint very strongly resemble the English rules, less
strongly resemble the Continental Teutonic rules,
Teutonic
but they include one rule not found in any
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 pro-
duced by what Dr. Sullivan, in his Introduction, has
happily called dynamical influences?
(
LECT. X.
INDIAN FORM OF DISTRESS.
297
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 proceed-
ing 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
298
SITTING DHARNA.
6
LECT. X
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 ex-
pression of the original text signifies dharna.' And
in the Vyavahara Mayukha, a Brahminical law-book
of much authority, Brihaspiti, a juridical writer some-
times 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 'watch-
ing constantly at the door,' but it connects it also
with the Teutonic, and among them with the Eng-
lish 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 cre-
ditor 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
LECT. X.
SHORE'S ACCOUNT OF DHARNA.
299
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 prac-
tice 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 con-
veniently 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 perse-
vere, 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
300
SANCTIONS OF DHARNA.
LECT. X.
late years, since the institution of the Court of Jus-
tice 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
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 dis-
regards 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 modifica-
tions 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
LECT. X.
MODERN FROHIBITION OF DHARNA.
301
only watches at the door,' but kills himself by
poison or dagger if the arrest is broken, or by starva-
tion if payment is too long delayed. Finally, we
have the practice described by Lord Teignmouth as
one peculiarly or exclusively resorted to by Brah-
mins. 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 follow-
ing terms (s. 508):-
"Whoever voluntarily causes. . .
any person to
do anything which that person is not legally bound
to do... by inducing.
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
302
KAFIR LEGAL PROCEDURE.
LECT. X.
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 mis-
sionaries (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 dis-
tance.' After long
After long silence a conversation ensues,
and the proceeding, which is a perfectly peaceable
one, is continued by a long series of technical for-
malities and intricate pleadings. This silent pause of
LECT. X.
FEUD LAW OF ALFRED.
303
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 satisfac-
tion, 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 home-
sitting 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
304
DHARNA IN NATIVE INDIAN STATES.
LECT. X.
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 Ealdor-
man 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 alterna-
tive 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
LECT. X.
DHARNA IN NATIVE INDIAN STATES.
305
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 pay-
master.
X
306
SETTLED PROPERTY OF MARRIED WOMEN. LECT. XI.
LECTURE XI.
THE EARLY HISTORY OF THE SETTLED PROPERTY OF
MARRIED WOMEN.
THE subject on which I am about to speak may per-
haps 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
LECT. XI.
ROMAN AND HINDO0 LAW.
307
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 hus-
band and wife is in the main Roman law, very slightly
transmuted; and through the institutions of the Ro-
mans 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 an-
tiquity, 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..
x 2
308
ROMAN LAW.
LECT. XI.
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 in-
tellect, 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, travel-
ling in Italy, had his attention attracted at Verona
to a manuscript of one of the Fathers, under the let-
ters of which ancient writing appeared. This manu-
script, when deciphered, proved to be a nearly perfect
copy of an educational work, written in the second
LECT. XI.
HINDOO LAW
309
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 re-
tained 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 Nie-
buhr'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 in-
stitutions 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
310
THE PATRIARCHAL FAMILY.
LECT. XI,
seen actually flourishing in India, under the protec-
tion 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 Pa-
triarchal 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 his-
tory of human society to which this peculiar group,
the Patriarchal Family, is entitled. Whether, how-
ever, 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 alto-
LECT. XI.
DECAY OF THE FAMILY.
311
gether. 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 enfranchise-
ment 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 anti-
quity. Confining our attention to women, we find
that they have begun to inherit a share of the pro-
perty of the family concurrently with their male
relatives; but their share appears, from several indi-
cations, 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 differ-
ent 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 mani-
festly to prevent her alienating or wasting her posses-
sions, and to secure the ultimate reversion of these
312
EARLY ROMAN MARRIAGE.
LECT. XI
possessions to the family to whose domain those pos-
sessions had belonged. But the powers of the guar-
dians 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 interest-
ing 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 jurispru-
dence, the great majority of women became by mar-
riage, 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 de-
spotic 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 em-
ployment of a peculiar term to indicate the relation
of husband to wife, as different from the relation of
LECT. XI.
CHANGE IN TECHNICAL LANGUAGE.
313
(
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 deter-
mined 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 accu-
rate 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,
314
PRIMITIVE BLENDING OF NOTIONS. LECT. XI.
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 com-
bination 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 distinc-
tion drawn in the mind between passing a law, affirm-
ing 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-com-
bination 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 be-
came 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
LECT. XI.
USURPATION AND MARRIAGE.
315
primitive customs than by conquering them-or to
the marvellously complex societies to which we be-
long, 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 collec-
tions of men, is the reconstruction in the mind of
ancient, general, and blended ideas by the re-combi-
nation 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 hus-
band's daughter. From very early times it would
appear to have been possible to contract a legal mar-
riage 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 oc-
cupation 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 wo-
man became the daughter of the chief of the house;
in the last case the man became his slave. The legal
316
METHOD OF DEFEATING USUCAPION. LECT. XI.
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 enjoy-
ment. It was possible, therefore, for the wife, by
absenting herself for a definite period from her hus-
band'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 re-
markable. 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
LECT. XI.
NEWER ROMAN MARRIAGE.
317
the reliance of the legislator on custom, opinion, or
religious feeling to prevent the abuse of his legis-
lation. 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 respec-
table. By the time of Gaius, however, any associa-
tion 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 sacra-
mental 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
318
PROPERTY OF MARRIED WOMEN.
LECT. XI.
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 admin-
istered by her guardians for the behoof of her male
relatives. As we know, however, and as I be-
fore 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 set-
tlement 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 gen-
erally. 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
LECT. XI.
THE DOTAL ESTATE.
319
indeed the legal result of this marriage, unless prac-
tically 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 her-
self, 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 pur-
pose 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 some-
thing 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 with-
out 'coming under the hand.' The authority of her
guardians having died out, and this part of her pro-
3
320
PROGRESS OF ROMAN LAW.
LECT. XI,
perty not having, by the assumption, been conveyed
to the husband as dos, it remained under her exclu-
sive 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 hus-
band, 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 con-
trol, save when a part of it had been converted by
settlement into a fund for contributing to the ex-
penses 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 accus-
tomed 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
LECT. XI.
HINDOO LAW OF WOMAN'S PROPERTY.
321
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, charac-
terises the French Code Napoléon, and it was in-
herited by the French from the Romans.
It is
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, in-
capable of alienation by her husband, is well-known
to the Hindoos under the name of Stridhan.
certainly a remarkable fact that the institution seems
to have been developed among the Hindoos at a
period relatively much earlier than among the Ro-
mans. 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
6
Y
322
THE STRIDHAN.
LECT. XI.
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 Mitak-
shara adds a proposition not found elsewhere: also
property which she may have acquired by inheritance,
purchase, partition, seizure, or finding, is denomi-
nated by Manu and the others "woman's pro-
perty." (Mitakshara, xi. 2.) These words, attri-
buted, 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 Hin-
doo written law, which is a mixed body of religious,
moral, and legal ordinances, is pre-eminently distin-
guished by the strictness with which it maintains a
LECT. XI. STRIDHAN IN THE ANGLO-INDIAN COURTS.
323
number of obligations plainly traceable to the ancient
despotism of the Family, and by its excessive harsh-
ness to the personal and proprietary liberty of wo-
men. 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
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 Mitak-
shara, one of the most archaic of Hindoo compendia,
assigns to the Stridhan. A full enquiry would take
Y 2
324
PRE-HISTORIC ORIGIN OF STRIDHAN. LECT. XI,
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 com-
pensation 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 un-
doubtedly they had some power of dealing with their
own property without the consent of their husbands,
and this was one of the institutions expressly de-
clared 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
LECT. XI.
BRAHMIN DISLIKE OF WOMAN'S PROPERTY.
325
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 ap-
parently 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 Brah-
minical 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 in-
sisting in defence of the abominable practice of Suttee
or widow-burning. The discovery was soon made
326
ENFRANCHISEMENT OF WOMEN.
LECT. XI.
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, develop-
ment, 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 so-
cieties of the West, in steadily enlarging the personal
and proprietary independence of women, and even in
granting to them political privilege, are only follow-
ing 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 ex-
tremely near to the condition in which it will consist
exclusively of individuals, when it has finally and
LECT. XI.
DEVELOPMENT OF HINDOO LAW.
327
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 his-
torically 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 dissolu-
tion—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 enfranchise-
ment 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 abun-
dant evidence that the emancipation of the individual
328
PER STIRPES AND PER CAPITA.
LECT. XI.
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 un-
developed 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 sepa-
rate, and one half of the inheritance will be distri-
buted 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
LECT. XI. HINDOO PRESERVATION OF THE STOCKS.
329
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 pre-
ference for division per stirpes, a minute care for the
preservation of the stocks, is in fact very strong evi-
dence of the growth of a respect for individual in-
terests 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 disengage-
ment 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 trans-
330
ROMAN LEGISLATION.
LECT. XI,
formed by a doctrine which had its most distinct ex-
pression 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-communi-
ties 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 charac-
teristics are of exactly the reverse order, and that
they have their nearest counterpart in certain philo-
sophical systems of our own day, under which the
LECT. XI. EFFECTS OF RELIGION ON LEGAL DOCTRINE. 331
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 con-
viction of responsibility after death-whether that
responsibility was to be enforced by direct rewards
and punishments, or through the stages of the me-
tempsychosis-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 re-
ligious 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 ex-
piation was always associated. Building upon this
last notion, the Brahminical commentators gradually
transformed the whole law until it became an exempli-
fication 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
332
RELIGIOUS OBJECTS OF PROPERTY.
LECT. XI.
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 sub-
ject current even in comparatively ancient times is
thus given in the Mitakshara: The wealth of a
ECT. XI. BRAHMIN VIEW OF WOMAN'S PROPERTY.
333
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, how-
ever, 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 Brahmi-
nical 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 Hin-
doo lawyers show an increasing hostility to the insti-
tution of the Stridhan, not by abolishing it, but by
limiting to the utmost of their power the circum-
stances under which it can arise. Minute distinc-
tions are drawn between the various modes in which
property may devolve upon a woman, and the condi-
tions under which such property may become Stridhan
made rare and exceptional. The aim of the law-
yers was to add to the family stock, and to place
£34
RIGHTS OF THE CHILDLESS WIDOW.
LECT. XI.
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 institu-
tions 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 condi-
LECT. XI.
SUTTEE IN BENGAL.
335
tions, 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 prac-
tice 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 en-
joyment 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
336
ROMAN COMPULSORY DOTATION.
LECT. XI.
which made it her duty to devote herself to a fright-
ful 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 experi-
ments 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.
LECT. XI, THE CHURCH AND THE INTERESTS OF WIDOWS. 337
It has been rather the fashion to speak of these
experiments of the Roman Emperors on public mo-
rality 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 Ger-
manic 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
2
338
DOS AND DOARIUM.
6
LECT. XI.
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 oc-
casionally 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 hus-
band 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 prin-
ciple 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
LECT. XI.
THE PRACTICE OF DOTATION.
339
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 com-
munity 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 com-
z 2
340
ENFRANCHISEMENT OF WOMEN.
LECT. XI.
monplace. For, inasmuch as no class of similar im-
portance 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 re-
laxed, 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 subordi-
nating a material and immediate to a remote, intan-
gible, 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, im-
pulses 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 in-
stitutions 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
LECT. XI.
ENFRANCHISEMENT OF WOMEN.
341
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 car-
ried forward, while the other recoiled from, the series
of changes which put an end to the seclusion and
degradation of an entire sex.
342
JURISPRUDENCE IN ENGLAND.
LECT. XII.
LECTURE XII.
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 re-
quire is a new philosophy of law. If our country
ever gives birth to such a philosophy, we shall pro-
bably 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 na-
tional 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,
LECT. XII.
THE ANALYTICAL JURISTS.
343
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 investi-
gations 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, com-
parison, 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 in-
dispensable, 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
344
"
BENTHAM AND AUSTIN.
LECT. XII.
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 im-
portant suggestions have been adopted by the Eng-
lish 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 Jurispru-
dence, 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
LECT. XII. AUSTIN'S PROVINCE OF JURISPRUDENCE.
345
doubtless, if it were carried far, lead indirectly to
great legal reforms by dispelling obscurities and dis-
sipating delusions, but the investigation of the prin-
ciples 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 class-
books 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
346
NATURE OF AUSTIN'S POSITIONS.
LECT. XII.
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 unfor-
tunate for the philosophy of law than that the sys-
tem of the 'Province of Jurisprudence Determined'
should come to be regarded simply as Austin's sys-
tem-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 com-
menced-but, whatever the cause, the result is that
he seems to me open to the same charge as some of
LECT. XII.
SOVEREIGNTY.
347
the greatest writers on Political Economy who have
omitted to set forth at the outset with adequate dis-
tinctness 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 hypo-
thesis, 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
348
AUSTIN'S DEFINITIONS.
LECT. XII.
on Government, and Austin with his chief induce-
ment 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 Lec-
ture with the examination of the nature of Sove-
reignty. 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 investi-
gation 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 So-
ciety 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.'
LECT. XII. INDEPENDENT POLITICAL COMMUNITIES.
349
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 Subjec-
tion.'
I may perhaps save the necessity for part of the
amplification and explanation of these definitions con-
tained 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 sub-
stantial inaccuracy. It is as follows: There is, in
every independent political community—that is, in
every political community not in the habit of obe-
dience 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 com-
munity be violently or voluntarily divided into a
number of separate fragments, then, as soon as
350
THE FORMS OF GOVERNMENT.
LECT. XII,
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 por-
tions. 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 dis-
coverable Sovereign somewhere. This Sovereign, this
person or combination of persons, universally oc-
curring 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 pre-
ferred 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 nu-
merous, 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 fel-
low-subjects. It is sometimes extremely difficult to
discover the Sovereign in a given State, and, when he
LECT. XII.
THE SOVEREIGN DETERMINATE.
351
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 deter-
mining 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 viola-
tion of constitutional principle, has completely missed
Austin's point of view.
The definitions which I read from the Sixth Lec-
ture 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 supe-
rior. 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 per-
son 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 pos-
session of physical power, which is one characteristic
352
THE OBEDIENCE OF SUBJECTS.
LECT. XII.
of Sovereignty, has as matter of historical fact re-
peatedly 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 limi-
tation of Sovereignty to determinate groups, when
the Sovereign is not an individual, is extremely im-
portant, 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, there-
LECT. XI.
HABITUAL OBEDIENCE.
353
fore, 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 ex-
clusively 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 inmediately, 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 eccle-
siastical controversies, which sometimes tend to be-
come 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 immu-
nity 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 corres-
A A
354
HOBBES.
LECT. XII.
pondence with the more salient features of Sove-
reignty 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 his-
tory 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 Philosophia, 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 con-
ceptions 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 suc-
cessor. The process of Hobbes was scientific, but
LECT. XII.
POLITICAL OPINIONS OF HOBBES.
355
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 Sove-
reignty, it becomes clear that he has, to say the
least, a strong preference for monarchies over aris-
tocracies 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 co-
loured 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 Pro-
tector, 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
A A 2
356
HOBBES ON THE ORIGIN OF SOCIETY.
LECT. XII.
scarcely ever betrays the colour of his political
opinions.
Another considerable difference is this.
Hobbes,
it is well known, speculated on the origin of Govern-
ment and Sovereignty. It is the one fact which
some persons seem to have learned about him, and
they appear to think his philosophy sufficiently con-
demned 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 depen-
dent 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 in-
dividual man, whom we, on the contrary, first discern
LECT. XII. ASSERTIONS OF ANALYTICAL JURISTS.
357
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 him-
self 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 Ana-
lytical 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 import-
358
THE FORCE OF SOCIETY.
LECT. XII.
ant have been the superior physical strength and
the superior armament of portions of the com-
munity have conferred on numerical minorities the
power of applying irresistible pressure to the indi-
viduals 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 for-
get 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 my-
self 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
LECT. XII.
SOVEREIGNTY AN ABSTRACTION.
359
Analytical Jurists cannot be charged with making,
but which some of their disciples go very near to
hazarding, that the Sovereign person or group actu-
ally wields the stored-up force of society by an uncon-
trolled exercise of will, is certainly never in accord-
ance 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 throw-
ing aside all the characteristics and attributes of
Government and Society except one, and by con-
necting all forms of political superiority together
through their common possession of force. The ele-
ments 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 legiti-
mate philosophically, and is only the application of a
method in ordinary scientific use.
To put the same thing in another way, that which
360
ELIMINATION OF HISTORICAL INFLUENCES. LECT. XIL
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 Athe-
nian 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 commu-
nity determines how the Sovereign shall exercise or
forbear from exercising his irresistible coercive power.
All that constitutes this-the whole enormous aggre-
gate of opinions, sentiments, beliefs, superstitions, and
prejudices, of ideas of all kinds, hereditary and ac-
quired, 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 Sove-
reignty 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
LECT. XII.
ABSTRACT SCIENCES.
361
analogous to that followed in mathematics and poli-
tical 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 misconcep-
tions 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 exist
ence 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, ex-
press 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.
362
LAW DEPENDENT ON SOVEREIGNTY. LECT. XII.
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 deduc-
tions 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, ad-
dressed 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,
LECT. XII.
6
CUSTOMARY LAW.
363
Duty and Punishment depend upon the primary con-
ception 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 pre-
scribed by the organ of State, conventionally known
as the Legislature, are commands of the Sove-
reign. 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
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.'
way
2
364
PERMISSION AND COMMAND.
LECT. XII.
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, con-
veyed 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
LECT. XII. LIMITATIONS OF AUSTINIAN THEORY.
365
part of the necessary constitution of society as he is
himself. There have again been independent po-
litical societies in which the Sovereign has enjoyed
irresistible coercive power and has carried innovation
to the farthest point; but in which every single asso-
ciation 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 Aus-
tin's tests of Sovereignty; yet it was part of the ac-
cepted 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 ex-
amination of the conceptions dependent on it, a con-
siderable 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
366
AUSTIN ON MORALITY.
LECT. XII.
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 ap-
proximates 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 lan-
guage 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 con-
ceptions 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,
LECT. XII.
THEORY OF MORALITY.
367
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 in-
teresting passages. While insisting that Sovereignty
is from the nature of the case incapable of legal
limitation, he fully admits that Sovereigns are re-
strained from issuing some commands and deter-
mined 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 Sove-
reign--a sovereign aristocracy, as he would call it—
but, though this aristocracy could for purposes of
argument do anything it pleased, it would be out
raging all experience to assert that it does this.
That great body of rules which is embodied in con-
stitutional 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 com-
mon 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 viola-
368
AUSTIN'S ETHICAL CREED.
LECT. XII.
tion. 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 obedi-
ence 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 consti-
tutional 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, in-
deed, 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
LECT. XII.
AUSTIN ON LAW OF GOD.
369
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 con-
sistent terminology. But there is not the faintest
reason for thinking that the intelligent and apprecia-
tive 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 Deter-
mined.' The 2nd, 3rd, and 4th Lectures are occu-
pied 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 re-
quired 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
B B
370
AUSTIN ON LAW OF GOD.
LECT. XII.
help to obviate or remove prejudices, they have
attracted to Austin's system a whole cloud of preju-
dices both from the theological and from the philo-
sophical side. If, however, following the order I
have suggested, Austin, after concluding the exami-
nation 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 in-
vestigation of the question how far the characteristics
of the human superiors called Sovereigns can be sup-
posed to attach to an all-powerful and non-human
ruler, and how many of the conceptions dependent
on human Sovereignty must be considered as con-
tained 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 dis-
cussion 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.
LECT XIII.
FORCE AND ORDER.
371
"
LECTURE XIII.
SOVEREIGNTY AND EMPIRE.
THE word 'law' has come down to us in close asso-
ciation 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 sug-
gested 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.
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
BB 2
Thus
372
PRIORITY OF ORDER OR FORCE.
LECT. XIII.
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 inva-
riable successions in the physical world, in the opera-
tions 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 pheno-
mena, physical, mental, or even politico-economical.
With this meaning, 'law' enters into a great deal of
modern thought, and has almost become the condi-
LECT. XIII.
ORIGINAL MEANING OF LAW.'
373
6
tion 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 pena
sanction. On the other hand, the contemplation of
374
LAW IN A JURIDICAL SENSE.
LECT. XIII.
order in the external world has strongly influenced
the view taken of laws proper by much of the civi-
lised 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 percep-
tion, Roman in origin, of a certain order and unifor-
mity among the observances of the human race. I
need not here repeat the proof of this which I at-
tempted to give in a volume published some years
ago. Nobody is at liberty to censure men or com-
munities 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 dis-
tinguish 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 Jurispru-
dence is concerned in our own day are undoubtedly
either the actual commands of Sovereigns, understood
as the portion of the community endowed with irre-
sistible coercive force, or else they are practices of
mankind brought under the formula 'a law is a com-
mand,' by help of the formula, 'whatever the Sove-
reign permits, is his command.' From the point of
LECT. XIII.
EARLY CONCEPTIONS OF LAW.
375
6
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 obedi-
ence 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 character-
ised by that generality which, it is said, alone con-
nects 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
376 GROWING COMPLEXITY OF GOVERNMENTS. LECT. XIII.
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 no-
where 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 pheno-
mena of the Continent, and there the political condi-
tions 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 in-
fluences of the first French Revolution were begin-
ning to have their play. France had lately become
a limited monarchy, and almost all the other Conti-
nental 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 deter-
mining the seat of sovereignty, had obviously become
LECT. XIII.
STATE OF ANARCHY.
377
much more difficult, and nothing can exceed the pe-
netration 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 ques-
tion 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 Seces-
sion. 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 ab-
stinence from fighting out a question known to be
undecided, and I see no objection to calling the tem-
porary equilibrium thus produced a state of dormant
378
THE STATE OF NATURE.
LECT. XIII.
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 specu-
lations of Hobbes and others, but he allows its exist-
ence 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 com-
munity. 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 commu-
nity, 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 indepen-
dent 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 per-
sons not in a state of subjection. Without an appli-
LECT. XIII. NO SOVEREIGN IN VERY SMALL GROUP.
379
cation 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 ter-
minology would be ridiculous in such a case. I be-
lieve 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 per-
haps 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,
380
THE PUNJAUB.
LECT. XIII.
but because it happens to be the most modern pre-
cedent 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 subjec-
tion by a single chieftain belonging to their order,
Runjeet Singh. At first sight, there could be no more
perfect embodiment than Runjeet Singh of Sove-
reignty, as conceived by Austin. He was absolutely
despotic. Except occasionally on his wild frontier, he
kept the most perfect order. He could have com-
manded anything; the smallest disobedience to his
commands would have been followed by death or muti-
lation, and this was perfectly well known to the enor-
mous 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 prodi-
gious 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
LECT. XIII.
RUNJEET SINGH.
381
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 appli-
cation of Austin's principles cannot be effected, on
his own admission, without absurdity.
Now
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 ob-
jections to it are disposed of is, as I have so often
said before, 'What the Sovereign permits, he com-
mands.' The Sikh despot permitted heads of house-
holds and village-elders to prescribe rules, therefore
these rules were his commands and true laws.
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 com-
manded 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
382
RUNJEET SINGH.
LECT. XIII.
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 administra-
tive machinery for the collection of revenue, have not
been true laws; they håve 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
LECT. XIII.
ANCIENT STATE OF THE WORLD.
383
knowledge has been not the command of the Sove-
reign 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 impres-
sion 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 ab-
solute 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
384
ANCIENT EMPIRES.
LECT. XIII.
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 Levia-
than 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 con-
quest, they levied vast armies from populations spread
over immense areas. We know that they exacted
the most implicit obedience to their occasional com-
mands, 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 legis-
late. 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
6
LECT. XIII.
LIMITS OF ANALYTICAL SYSTEM.
385
Athenian Empire belonged to the same class of sove-
reignties 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 jurisdic-
tion, 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 atten-
tion, 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 dif-
ferent 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
CC
386
ORIGINAL COMMUNITIES.
LECT. XIII.
legislation must be conceived as having been intro-
duced 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 commu-
nities 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, subjugat-
LECT. XIII.
FORMATION OF MODERN STATES.
387
ing 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 en-
feebled. They continued as the Indian village-com-
munity 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 as-
semblage 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 unquestion-
ably 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 con-
C C 2
388
THE VILLAGE COUNCIL.
LECT. XIII.
dition of an Aryan race reveals itself either through
historical records or through the survival of its an-
cient 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, some-
times 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 sovereign-
ties' (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 ex-
amine 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 ob-
served 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 punish-
ing 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
LECT. XIII. THE PRIMITIVE GROUPS AND LEGISLATION. 389
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 intelli-
gible sense of the words by the Sovereigns of those
great States, now confined to the East, which pre-
serve 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 to-
gether. Compare the Hindoo village-community in
India with the Teutonic village-community in Eng-
land. 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 ves-
tiges 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 in-
stitution with certain other phenomena of the two
countries. In India, Mogul and Mahratta, following
390
THE LAW OF THE KING.
LECT. XIII,
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 en-
forced 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 be-
tween 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 degene-
rated 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
LECT. XIII.
ROMAN LEGISLATION.
391
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
392
THE FORCE OF LAW.
LECT. XIII.
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 occa-
sionally, 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 dis-
tinctly altered their character. The Force, for ex-
ample, 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 opin-
ion, 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
1
LECT. XIII.
LAW AND ORDER.
393
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 per-
sons, rather than with isolated acts and with indivi-
duals. Among the consequences of this necessity are
many of the characteristics sometimes supposed to be
inseparable from laws, their indifferency, their inex-
orableness, 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 mo-
notonous than the routine of village custom. Never-
theless, in the interior of the households which
together make up the village-community, the des-
potism of usage is replaced by the despotism of
paternal authority. Outside each threshold is im-
memorial 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,
394
TRANSMUTATION OF FORCE AND ORDER. LECT. XIII.
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 com-
minution 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 de-
voured.
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
LECT. XIII.
HOBBES AND BENTHAM.
395
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 oppor-
tunities 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 disturb-
ances. 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 juris-
dictions 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 con-
tinued, 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 incon-
ceivable. By the time Bentham wrote, and while he
was writing, the conditions which suggest the Analy-
tical System of Jurisprudence presented themselves
still more distinctly. A Sovereign who was a de-
mocracy commenced, and a Sovereign who was a
despot completed, the Codification of the laws of
396
ANALYSIS AND HISTORY.
LECT. XIIT.
France. There had never before in the modern world
been so striking an exemplification of the proposition
that, what the Sovereign permits, he commands, be-
cause he could at any time substitute an express com-
mand 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 appli-
cations 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 mis-
conception (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 physiolo-
gical illustration, these groups must rather be com-
pared 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 his-
LECT. XIII. INFLUENCE OF ANALYTICAL SYSTEM.
397
tory, they saw a great deal which even in our day is
imperfectly seen by those who, so to speak, let them-
selves 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 termino-
logy which had for one virtue that it was rigidly con-
sistent with itself, and for another that, if it did not
completely express facts, the qualifications of its accu-
racy 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 mis-
takes and vast omissions. They for the first time
saw all that it was capable of effecting, if it was ap-
plied 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 o 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
398
LEGISLATION IN MODERN STATES. LECT. XIII.
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 imper-
fectly, 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 happi-
ness of the greatest number considered as the basis of
law and morals. What, then, is the connection, essen-
tial 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
LECT. XIII.
THE UTILITARIAN PHILOSOPHY.
that it presupposes the theory of Equality.
399
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 theo-
ries 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. As-
sume a numerous and tolerably homogeneous com-
munity assume a Sovereign whose commands take
a legislative shape-assume great energy, actual or
potential, in this legislature-the only possible, the
400
BENTHAM AS A MORALIST
LECT. XIII.
only conceivable, principle which can guide legisla
tion on a great scale is the greatest happiness of the
greatest number. It is in fact a condition of legis-
lation which, like certain characteristics of laws, has
grown out of the distance from which sovereign
power acts upon subjects in modern political so-
cieties, and of the necessity under which it is thereby
placed of neglecting differences, even real differences,
between the units of which they are composed. Ben-
tham 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 legis-
lation. 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.
INDEX.
ACCEPTANCE
ACCEPTANCE of stock, effect of, 163;
not always voluntary, ib.; by King
of Erin from the Emperor, 165; from
the successor of St. Patrick, 166
Agnatic kindred in Roman law, 106, 112
Aicill, Book of, 12; probably oldest of
the Irish Law Tracts, 24; relates the
story of Cormac, 37; advanced legal
views of, 45; ón dog-fights and bees,
46; on rule of legitimacy, 53, 59; on
fuidhir tenancy, 174; on distribution
of the Irish family, 208; on the
Geilfine group, 219
Aires, the nobles, 136; seven grades of,
ib.
Alfred, feud law of, 303
Alienation of tribal lands, how limited,
108; in Hindoo law, 109; in Russia,
ib.; decision of Madras High Court
on, 110
Analytical Jurists, the, 343; Bentham
on legislation, Austin on jurispru-
dence, ib.; Hobbes on government,
354; assertions of, in regard to sove-
reignty, 357; on force and order, 372;
limits of analytical system, 385; in-
fluence of the analytical system, 397
Anglo-Norman settlement in Ireland,
effects of, 54
Argyll, Duke of, on the 'Reign of Law,'
373
Aristocracy, modern, the rise of, 130;
original in some communities, 133; a
sovereign government, 350
Aryan customs, bond between East and
20. See
BENEFICES
Augustus, Marriage Law of, 336
Austin, John, unknown abroad, 343
his Province of Jurisprudence de-
termined,' 345; nature of his proposi-
tions, 346; his definition of sove-
reignty, 347, 348; the individual or
collegiate sovereign, 349; various
forms of monarchy, 350; the govern-
ment of Great Britain, an aristocracy,
ib.; the sovereign determinate, 351;
obeyed by the large majority, 352;
must receive habitual obedience, 353;
difficulty as to obedience to the See of
Rome, ib. ; uncontrolled by any human
superior, ib.; compared with Hobbes,
354, 356; force of society, 358;
sovereignty an abstraction, 359; eli-
mination of historical influences, 360;
scientific method, 361; law depend-
ent upon sovereignty, 362; right,
duty, and punishment, 363; Cus-
tomary law, ib.; sovereigns command
what they permit, 364; the Greek
tyrants, 365; theory of morality,
366, 367; his utilitarianism, 368; où
law of God, 369; the most serious
blemish in his work, ib.; his analysis
of extant governments, 376; on anar-
chy, 377; on state of nature, 378;
no sovereign in very small group,
379; quotes Montesquieu, ib.; on
particular commands, 382; on cus-
tomary law, 392
ENEFICES,
Athens, formed from tu coalescence of Bentham, Source of feudalism, 154,
a
village communities, 84; its empire
not legislative, 385
DD
Jeremy, on evidence,
49; deals with legislation rather than
jurisprudence, 343 his influence
402
INDEX.
BIRTH
on law reforms, 397; his working
rule true in
CHIEF
pule true in legislation rather than in Cin Gaul, 5, on the writing of the
morals, 400
Birth and wealth, opposition between, a
modern idea, 134
Birthright, the reward of the distributer
of an estate, 197; to be distinguished
from primogeniture, ib.; sometimes
enjoyed by the younger son, ib.;
thus connected with borough English,
ib.
Bishops, Ancient Irish, multitude and
servile position of, 235; dependent
on religious houses, 236; religious
kinship, 237
Blackstone on borough English, 222;
on hazards of taking distress, 273;
his method opposed by Bentham and
Austin, 347; his definition of law,
371
Bo-aire, or cow-nobleman, 135; an en-
riched peasant, 165
Borough English, 222; similar custom
in law of Wales, 223
Bracton on primogeniture, 125; on dis-
traint, 270, 277
Brahmins, the only true caste, 245;
their dislike of woman's property,
325; authors of Suttee,' 335
Brehon Laws. See Irish Law Tracts
Brehons, the, a class of professional law-
yers, 24; hereditary, ib.; compared
with the Druids, 28, 32; universal
referees, ib.; their schools numerous,
ib.; their cosmogony, 34; the king
and the brehon, 36; judges but not
priests, 38; acted by arbitration, ib. ;
on voluntary submission of litigants,
43; declared law through hypothetical
cases, 44; influence of their self-as-
sertion, 51; with their pupils consti-
tuted a true family, 243; incorrectly
described as a caste, 244; became
hereditary, 245; accompanied dis-
trainer in action of distress, 286;
equity and reasonableness displayed
in the law of distress, 291
Bride-price, widely diffused Aryan cus-
tom, 324
Bryce, Mr., on influence of the Roman
Empire, 165
Burton, Mr., on legitimacy in Scotland,
60; on succession, 204
ÆSAR, his description of the Celts
5; on
Gauls, 13; his account of the
Druids, 28; of the three Celtic
orders, 29; failed to observe the
divisions of septs and families, 30;
found the Celts polygamous, 59;
on noble class among Celts, 132;
on the debtors of Celtic chiefs, 167
Canon Law, origin of, 63; on consan-
guinity, 213
Capital, formerly more important than
land, 168; in the hands of the nobles,
169; source of power over the poorer
classes, ib.
'Capitis Deminutio,' of the Roman law,
218
Caste, origin of, 244; tendency of trades
to become hereditary, 245; Brahmins
the only true hereditary caste, ib.;
resemblance to literary fosterage in
the Brehon Tracts, 246
Cattle, wealth in, 137; reward of ser-
vice to the chief, 142; object of a
Kafir chief's retainers, 143; cattle
stealing, 144; in Ireland a survival,'
ib.; importance of in early ages, 147;
original capital,' ib.; origin of pe-
cunia, 148; their importance in Ro-
man law and among the Hindoos, ib. ;
most valuable when men settled to
cultivate land, ib.; measure of value,
149; in Brehon laws, ib.; value of, for
labour in tillage, ib.; cause of their
protection in Rome and India, 150;
Irish system of giving stock, 151;
source of vassalage, 152; resembling
commendation, 158; source of power
to the nobles, 168; regulated by the
Brehon laws, 169; distraint of, 262;
impounding, 263
Ceile, or Kyle, a vassal to the chief,
158
Celtic societies, 4; three orders of, 29;
polygamy among, 59; land system,
96; society described by Sir W. Scott,
141
Chief, Ancient Aryan, or King, appears
as priest, judge, and captain, 35
Chief, the elective, succeeds the patri-
archal power, 117; sometimes with
Council of Kinsmen, ib. ; his status,
119 seq.; the source of primogeni-
ture, 120; Irish tribal chief, 127;
the Norman nobles as Irish chiefs,
INDEX.
403
CHRISTIANITY
128; relations of chief and tribe,
128; growth of his power over the
land, 130; his position in the Bre-
hon laws, 132; necessarily rich,
133; not in land, but in cattle, 134;
power increased by giving stock, 157;
right of refection, 161; employed the
fuidhirs on his lands, 173; derived
great increase of power by so doing,
177; private estates of, 193; in-
stances of estates divided by, 194;
possessed power of distributing in-
heritances, 196; his family venerated
as representing the purest blood, 200;
eldest relative preferred to eldest son,
201
Christianity introduced writing to the
ruder nations, 13; affected the Bre-
hon laws, 55, 58; restrained the
liberty of divorce, 60
Church, Ancient Irish, 235
Church, the Christian, its influence on
contracts, 56; on wills and private
property, 104; in favour of women,
337; promoted dotation, 338
Clans, Scottish, 5
Code Napoléon, on personal revenge, 303
Coin and Livery, oppressive nature of
in Ireland, 128, 161
Collective ownership of the soil, primi-
tive and universal, 1
Comitatus, the companions of the King,
138; the Royal Household, 139. See
Companions
Commendation, effects of, 130, 154; ac-
counted for, 155; illustrated in Bre-
hon Tracts, 156; incurred by accept-
ing stock, 165
Companions of the King, 138; of Erin,
139; of Iceland. 140; of Highland
chiefs, 141; of Teutonic kings, ib.;
everywhere rewarded by gifts of land,
ib.; and of cattle, 142; their status
at first servile, 145; when free, not
the king's near kindred, ib.
Compurgation, an ancient test of truth,
48
Consanguinity. See Kinship
Contracts, conception of, due to the
Church, 56; influence of the Church
upon, 104
Contributory negligence, principles of, in
ancient Irish laws, 45
Coote, Mr., on origin of English insti-
tutions, 295
DUBHTHACH
Corus Bescna, one of the Irish Law
Tracts, 56; deals chiefly with con-
tracts, ib. and limitations of contract,
58; on tribal property, 103; bias
of author towards the Church, 104;
on alienation of tribal land, 111, 191
Coshering, oppressive nature of, in Ire-
land, 128, 161
Co-tenancy, Irish law of, 112
Cultivating groups, 113
Cumhal, a measure of value, 149; ori-
ginally a female slave, ib.
Custumals, French manuals of feudal
rules, 6
D
ᎠᏎ
AERSTOCK Tenure, Law of, 152,
158; reduced the vassals to servi-
tude, 159; often became permanent,
162
Dasent, Mr., his history of Burnt Njal,
140; on Norse customs, 288
Davis, Sir J., on Irish law, 18; on
on
Irish Land, 98; on Irish oppression,
127; on right of refection, 161; de-
nounces the Eric-Fine, 170;
Tanistry, 205; on Garelkind, 185,
206; on degeneracy of the Normans
settled in Ireland, 247
'Dharna,' the Hindoo custom of sitting,
40, 297, 298; Lord Teignmouth's ac-
count of, 299; sanctions of, 300;
modern prohibition of, 301; survives
in native Indian States, 304
Distress, Law of, 8; forms a large part
of Brehon law, 39. See Legal Reme-
dies
Dithim, delay in pound. 281
Ditmarsh, Aristocracies in, 230
Divorce, the liberty of, facilitated the
introduction of monogamy, 60; re-
strained by Christian morality, ib.
Doniol, on English copyholds, 125
Dotation, compulsory in Roman Law,
336; promoted by the Christian
Church, 338; its power in France,
339
Druids, mentioned in the Irish Law
Tracts, 28; described by Cæsar and
Strabo, ib.; their functions, 31; re-
sembled the Brehous, 32; believed
in the immortality of the soul, 40
Dubhthach, compiler of the Senchus
Mor, 22; blessed by St. Patrick, ib.
resembles the chief Druid of Cæsar, 33
DD 2
404
INDEX.
DUGMORE
Dugmore, Rev. H., on the retainers of
Kafir chiefs, 143; on Kafir law
suits, 302
Dupin, M., on French house-communi-
ties, 80
EDWARD
DWARD I., his decision in favour of
Baliol, 204
Elective headship, succeeds to the patri-
archal power, 117
Empires, Ancient (except the Roman)
taxlevying rather than lawmaking,
384; the Athenian Empire, 385
English courts of justice active agents
in working out changes of ideas, 229
emigrants in America adopted vil-
lage communities, 94
law, contrasted with Irish, 43; case
law, importance of, 47; careful-
ness about facts, 48
settlers in India, reputed harsh land-
lords, 128
- township, early representation of,
221
Equality of men, foundation of the
utilitarian philosophy, 398; the con-
trary opinion of a Brahmin, 399
Eric-fine, a payment substituted for
homicide, 23; its usefulness, 170
ACTS, regard to, special character-
istic of English justice, 48; of
human nature intricately involved, 49
Fair of Carman, 27
Family, the smallest group, 66; ex-
pands into the tribe, 69; recruited
by strangers, ib.; stages of transition,
78; Hindoo joint family, ib.; the
common home and the common table,
80; the 'fine' in Ireland, 90; the
legal unit of the Brehon Tracts, 91;
gave names to places, ib.; ancient
divisions of, 185; abnormal divisions
of the Irish family, 208 seq.; not
according to degrees of blood, 211;
the Roman family compared with
the Irish, 218; older members some-
times pensioners of, 219; .custom of
borough English, 224; enlargement
of, by fictitious kinship in Rome,
230; in Ireland, 231; the one con-
dition of progress to civilisation,
307; assumed as the starting-point
FREEMAN
of both Roman and Hindoo law, ib.;
the patriarchal family, 310; its
power, ib.; its decay, 311; its treat-
ment of women, ib.
Fasting, upon a debtor, 39; similar
Hindoo custom of Dharna,' 40
Father, power of the, the first and
greatest landmark in legal history,
216
Feodum, Feud or Fief, etymology of,
171; meant property or cattle, 172
Feud, Alfred's Law of, 303
Feudal dues, burden of in France, 124
- law, errors of writers on, 119; of
succession, its growth, 205
monarchy, exact counterpart of a
feudal manor, 77
system, contrasted with the Roman
Empire, 153; sources of, 154; its
germs in ancient social forms, 166
Feudalization of Europe,
of Europe, 85; has
changed the 'mark' into the manor,
ib.; makes the land the exclusive-
bond of union, ib.; effect of 'com-
mendation,' 86; dissolution of feudal
groups, ib.; growth of Feudal law of
Succession, 205
'Fine,' Irish term for family or sept,
90; in the Brehon Tracts, the sept,
105; also of all forms of the family,
231
Fine, pecuniary, a composition for
homicide, 23; supplanted retalia-
tion, ib.
Five, importance of the number, 221
Flaiths, minor Irish chiefs, 93
Fosterage, widely diffused custom in
Aryan communities, 241; specially
strong in Ireland, 242; true explana-
tion of, ib.
- literary, treated of in Brehon Tracts,
242; similar custom in India, 243;
by Hindoo law carried succession to
property, ib.
France, subdivision of land in, 121;
signorial monopolies in, 123; power
of the custom of dotation in, 339
Freeman, Mr., on territorial style of
English kings, 73; of French kings,
74; on the German village com-
munity, 77; on English village com-
munities, 82; on comparative politics,
119; on classes, 131; on servile
nobility, 145; on Mr. Coote's work
on laws, 296
INDEX.
405
FUIDHIRS
Fuidhirs, stranger tenants, 93; ancient
servile class, 172; strangers from
other tribes, 173; solely dependent
upon the chief, 175; paid rack rent,
ib.; similar classes in Orissa, 176
G
AIUS, discovery of his treatise,
250; his account of Legis Ac-
tiones,' 251; of the claimant's wand,
254; on danger of miscarriage of
law, 255; on the Pignoris capio,'
258; on excessive subtlety of lawyers,
273
Gavelkind, in Ireland. described, 99,
186; in Russia, 189; difficulties
respecting, 190; reintroduced to in-
jure the Irish, 206
Geilfine, principal division of Irish
family, 209 seq.; said to
said to mean
C
hand-family,' 216
Gillingham, origin of name, 83
Glanville, on division of land, 125; on
succession, 203
Gossipred, or spiritual relationship,
240; closely assimilated to blood
relationship, 241
Grote, Mr., on the natural priority of
verse, 14
Guilds, tribal origin of, 232; of Celtic
etymology, ib.; thought of as a
family. ib.; London companies, 233
HA
AND, signifies power, in Aryan
languages, 216; in Roman law,
217; paternal power, ib.
Hatherley, Lord Chancellor, important
judgment of, 4
Heriot of copyhold, a survival of stock-
giving, 162
Hindoo Family. See Joint Undivided
Family
Law, its prodigious antiquity, 309;
changed and depraved by the Brah-
mins, 326; development of, 327;
effects of Brahminical religion on,
331; regards property as for the
benefit of the dead, 332
Hobbes, on government, 354; his poli-
tical opinions, 355; on the origin of
society, 356; on the common law,
363; a strong partisan, 395; his
opportunities of observing foreign
States, ib.; his 'Dialogue of the
INSTITUTIONS
Common Laws,' 397; its remarkable
foresight, 398
Homer, his description of Achæan
chiefs, 35; takes cattle as a measure
of value, 149
Homicide, composition for, 23
Honour price, of chieftains, 136; of
tenants, 160
House community, in Dalmatia and
Croatia, 7; examined, 79; in Scla-
vonia and in France, 80
Humanity, or moral brotherhood, a
modern conception, 65
Hunter, Mr., on agricultural classes
in Orissa, 176
Hypothek, the law of, in Scotland, 277
IDE
DEAS, slow production of new, 225;
especially in the East, 226; suddenly
increased by a great genius, 227;
then stagnant for a century, 228; in
fashion, ib.; in kinship, ib.; by de-
grees transformed, 229
Indebtedness of ancient democracies,
167
India, litigation in, 289
Indian examples of sovereignty, 379;
the Punjaub, 380; Runjeet Singh,
381, 382
Indian memorial verses, 71
C
Indian Penal Code on Dharna,' 301
Individual, the, gradually disengaged
from the group, 329
Institutions, new materials for the early
history of, 1; property in land, ib.;
village communities, 2; joint un-
divided family in India, 7; fine sub-
stituted for
for homicide, 23; law
schools of the Brehons, 33; tanistry,
ib.; law of distress, 39; ordeal and
compurgation, 48; legitimacy, rule
of, 53; wills, 56; contracts, ib.;
marriage, 58; divorce, 59; polygamy,
ib.; monogamy, 60; slavery, 62;
kinship, or consanguinity, 64; land
basis of settled society, 72; landed
property, 77; periodical redistribu-
tion of land, 81; feudalism, 85;
property in severalty, 95; private
property in land, 98; Irish gavel-
kind, 100; rules of common tillage,
110; co-tenancy, 112; patriarchal
power, 115; passes into elective
headship, 117; the chief, 119; primo-
406
INTERNATIONAL
INDEX.
geniture, 120; aristocracy, 130;
modern kingship, ib.; wealth in
cattle, 134; commendation, 154;
'giving stock,' 157; rent in kind,
160; right of refection, 161; heriot
of copyhold, 162; metayer tenancy,
163; Eric-fines, 170: fuidhir tenants,
172; rack rent, 175; gavelkind,
186; birthright, 197; tanistry, 202;
law of succession, 204; patria
potestas, 218; law of inheritance,
219; the number five, 221; borough
English, 222; fictions of kinship,
229; adoption, 230; guilds, 232;
contract, 233; partnership. 234;
agency, ih.; ancient Irish Church,
235; religious houses, 236; spiritual
kinship, 237; spiritual relationship,
239; fosterage, 241; literary foster-
age, 242; caste, 244; legal remedies,
250; distraint, 261; replevin, 267;
increased power of tribunals, 276;
Irish law of distress, 280; voluntary
jurisdiction, 286; distress an Aryan
custom, 296; Dharna, 297; Kafir
law suit, 302; feud law of Alfred,
303; settled property of married
306; usurpation.' 316;
divorce, 317; the dotal estate, 319;
Stridhan,' 321; bride-price, 324;
suttee, 335; dotation, 336; sore-
reignty, 342 seq.; the village council,
388; custom in the eastern world,
389; legislation in the western world,
391
<
women,
International law, evidence furnished
by, 73
Irish estates, surrendered and regranted,
207
Irish Law Tracts, published by the
Irish Government, 8; important in-
formation respecting Celtic communi-
ties, ib.; known as the Brehon laws,
9; compared with Roman law, 10;
contain ancient nucleus with succes-
sive interpretations, ib.; authentic
monuments of ancient Aryan institu-
tions. 11; very slightly affected by
the Roman Empire, ib. ; resemble the
Hindoo law, 12; their probable date,
ib.; the Senchus Mor and the Book
of Aicill, ib.; partly in verse, 14;
form of, 15; each the property of a
family or school of law, 16; consist
of text and commentary, ib.; uncer-
IRISH
tain date of existing manuscripts,.
17; their system, that condemned
by Anglo-Irish legislation, ib.; by
Spenser and Sir John Davis, 18;
analogy with early Roman, Hindoo,
and Germanic law, 19; advanced legal
doctrines of, 20; origin of Senchus
Mor, ib.; legend of St. Patrick, 21;
the law of nature and the law of the
letter, 25; legislative character of,
26; treat of miscellaneous subjects,
33; importance of the law of distress,
39; their sanctions, ib.; fasting, ib. ;
contrasted with Brahmin sanctions,
41; with the responsa prudentum
of the Roman law, 42; with English
law, 43; close approach to modern
views, 45; minute on law of dog-fights,
46; and bees, ib.; authority of,
whence derived, 50; affected by
Christian morality and Roman law,
55; on wills and contracts, 56; little
affected by Christianity on marriage,
58; on divorce, 59; on chastity, 61
on private ownership of land, 89;
on the
the 'fine,' 91; suggest wide
separation of races, 96; but resem-
blances between Aryan subraces, ib. ;
on private property in land, 98; on
the tribe, 107; on co-tenancy, 112;
on tribal ownership of land, 129; on
transition to feudalism, 130;
position of chieftains, 132; on their
wealth, 134; the Bo-aire, 135; how
he becomes a nobleman, 136; account.
of the companions of the king, 140;
their condition servile, 145; import-
ance of horned cattle, 147; illustrate
'commendation,' 156; on giving and
receiving stock, 157; on right of re-
fection, 161; on oppressiveness of
'giving stock,' 164; regulated the
proportion of stock and rent, 169;
on fuidhir tenancy, 174; on descent
of lands, 190; in favour of individual
descent of property, 193; on the dis-
tribution of the Irish family, 208
seq.; on Geilfine,' 216; expansive
use of the term 'fine,' 231; on tribal
relations of ecclesiastical bodies, 236;
on fosterage, 241; on literary foster-
age, 242; law of distress, 279; re-
semblance to Teutonic and English
law, 282 seq.; modern features in, 290
Irish tribe, agrarian constitution of, 92
<
on
;
INDEX.
407
JOHN
JOHN, King, the first who called
himself King of England, 73
Joint Undivided Family of the Hindoos,
7; marked by the common hearth
and common meal, ib.; the first stage
of the community, 78; bound by a
common ancestor, 106, 116; resembles
the Irish gavelkind, 187; lands
distributed per capita, 195; manager
of the affairs of, variously appointed,
200; dissolution of, by English
courts, 206; their lands conferred on
a single family or person, 270
Jurisprudence, modern theories of, 87;
the science of positive law, 362
Justinian, Novel 118 of, on consan-
guinity, 213; constitution of, 240
KILKENNY, statute of, 18
Kingly grants or charters, the
great cause of interruption in English
history, 233
Kinship, or consanguinity, as the basis
of society, 64; an actual bond of
union, ib.; primitive view of, 65; the
only brotherhood recognised, ib.;
bond of Aryan, Semitic, and Uralian
tribes, 66; abnormal conceptions of,.
by other races. 67; tends to recogni-
tion of common authority or power,
68; artificial or adoption, 69; founda-
tion of patriarchal power, 70; in
settled communities gives place to the
bend of land, 72; common territory
substituted for common race, 75; by
slow process at Athens and Rome,
76; consequent changes from tribal
to territorial sovereignty, ib.; sur-
vival of kinship in Ireland and Scot-
land, 89; clearly stamped on the
Brehon law, ib.; which applies the
term fine, or family, to all the sub-
divisions of Irish society, 90, 105;
the chief, the common ancestor, 94;
kinship, not land, the bond of the
Irish tribes, 96; Mr. Morgan on,
212; descriptive system of, 213;
classificatory system of, 214; single
idea of relation between man and
man in early times. 228; all others
slaves or enemies. ib.; fictitious
assumptions of, 229; adoption, 230;
in Irish tribes, 231; origin of guilds,
232; of partnerships, 234; of agency,
LEGAL
ib.; spiritual kinship, 237; spiritual
relationship, 239; fosterage, 241;
literary kinship, 246; artificial kin-
ship of Anglo-Norman settlers in
Ireland, 247
AND; settlement on, a bond of union,
70; manner of, described by Indian
poetess, 71; takes the place of kin-
ship, 72; indicated by the term
fatherland, 74; slowly supplanted
the bond of kinship in Hellenic and
Latin communities, 75; foundation
of village communities, 76; periodical
redistribution of, 81; the foundation
of the feudal system, 85; liberated
by the dissolution of that system, 86;
in Ireland, private property in, 98;
cheapness of land in early ages, 142;
not so important as capital, 168; in
very ancient times a drug, ib.; de-
scent by gavelkind, 186; natural
communism in, 188; dissolved by
gavelkind, 189; lands surrendered
by Irish chiefs, and regranted on new
tenure, 207; similar practice in India,
ib.; more satisfactorily in late en-
franchisement of the Russian serfs,
208
Landau, on noble class, 132
Laveleye, on primitive forms of pro-
perty, 3; on village communities in
Java, 77; on house communities in
Dalmatia, 79; on Swiss periodic
allotments, 114
Law of the market, 178
of nature and law of the letter. 25
whether force or order, 371; figura-
tive use of the word, 372; 'the
Reign of Law,' 373; in juridical
sense, 374; early conceptions of,
375; in ancient state of the world,
383; in modern states, 391, 392;
force and order, 394
English. See English Law
Hindoo. See Hindoo Law
Irish. See Irish Law Tracts
Roman. See Roman Law
Lebor na Huidre, an Irish MS. on co-
tenancy, 114
Legal remedies. primitive forms of, 250
seq.; law of distress, ib.; legis ac-
tiones of the Roman law, 251; equi-
valent to procedure, ib.; substantive
408
LEGAL
INDEX.
ess,
and adjective law, ib.; legis actio
sacramenti, 252; ancient dramatisa-
tions, 253; the prætor as arbiter, ib. ;
demand before action, 254; the wand
an ancient spear, ib.; art of pleading,
255; administration of justice, ib.;
sacramentum or stake, ib.; origin of
court fees, ib.; dangers of miscar-
riage, ib.; origin of special pleading,
256; judicis postulatio, ib.; the
conditio, or notice, ib.; sponsio and
restipulatio, 257; manus injectio and
pignoris capio, ib.; laying wager,
259; seizure of goods, 260; distraint
in Teutonic societies, 261; distress for
rent, 262; replevin, ib.; course of a
distress, 263; the village pound, ib. ;
antiquity of procedure in distress,
265; traces of a foray, ib.; inter-
position of state authority, 266; re-
plevin, 267; weakness of ancient
courts, 268; leges barbarorum on
distress, 269; the Salic law, 270;
ancient view of plaintiff and defend-
ant, 272; excessive technicality of
ancient law, 273; reasons for sur-
vival of distress, 274; increase of
the power of courts of law, 275;
attachment, 276; modern theory of
distress, 277; development of reme-
dies, 278; similar legal remedies in
the Irish ancient law, 279; the
Senchus Mor on the law of distress,
ib.; large space accorded to it, 280;
epitome of its provisions, 280, 281;
strong resemblance to English com-
mon law, 282; to ancient Teutonic
law, 283; points of difference, 284;
questions respecting powers of Irish
courts, 286; appear to have had only
voluntary jurisdiction, ib.; assumed
elaborate organisation, 287; apparent
weakness of Irish courts, 288; similar
instance of India, 289; litigation
substituted for violence, ib.; modern
features in Irish law of distress, 290;
equity and reasonableness of, 291;
wrongful distress made felony, 294;
distress a primitive Aryan custom,
296; Indian form of distress, 297;
improvement on older custom, 301;
Kafir law suit, 302; feud law of
Alfred, 303; Dharna resorted to for
arrears of pay, 304; the same stated
of 'Pignoris capio' by Gaius, 305
MORGAN
'Leges Barbarorum,' on distress, 269
Legislation by a learned class, 27
Legislatures, origin of Aryan, in village
councils, 388
Le Play, M., on French village com-
munities, 6
'Liber Hymnorum,' on Irish co-tenancy,
113
Literary Fosterage. See Fosterage
influence anciently very great, 51
Littleton, on borough English, 222
Locke, on the origin of society, 357
London Companies, the, contain traces
of ancient brotherhood, 233
MACA
ACAULAY, Lord, on literary in-
fluence, 52
Madras High Court on alienation of
tribal lands, 110; on 'Stridhan,' 323
Malberg Gloss, the, 256
Manu, Law Tracts, attributed to, 243,
298; on 'Stridhan,' 322
Marriage, early Roman, 312; middle
Roman, 315; facility of divorce, 317;
settlement almost universal, 320;
Hindoo law of, 321 seq.; develop-
ment of law checked by Brahminical
influence, 325
Maurer, G. L. von, on Teutonic com-
munities, 3; on rules of tenure, 100;
on noble class, 132
McEgan, Hugh, his copy of the Sen-
chus Mor, 17; an hereditary Brehon,
36
McLennan, Mr., on primitive marriage,
215; on marriage ceremonies, 253
Measure of Damages, sound principles
of, in the Book of Aicill, 45
Metayer tenancy, 163
Modern States, formation of, 385;
coalescence of original groups, 386; in
Attica and Rome, ib.; the effect of
Roman legislation upon, 390; cus-
tomary law broken up, 391; legisla
tive character of, 392; force of law
in, 393; the energy of legislatures
the distinguishing characteristic of,
398
Monogamy,
supplanted
polygamy
through divorce, 60
Montesquieu, on political power, 379
Morgan, Mr. L., on consanguinity, 68,
212; on names of relationship, 70
INDEX.
409
NAM
NAMS
AMS, taking, the practice of dis-
tress, 262; origin of 'Withernam,'
263; before the Conquest, 270
Nasse, on land communities, 4; on
rules of tenure, 100
Nationality, a modern revival of kin-
ship, 75
ebuhr, on
Teutonic aristocracies,
230; his discovery of the MS. of
Gaius, 250, 308
Nobility, origin of, 132; definition of
by Paul of Russia, 137; popular
theory of, 138; by royal grant, a
modern institution, ib.
Nomad tribes, 72
O'BRIEN, Connor More, division of
an estate by, 194
O'Brien, Donogh, division of an estate
by, 194
O'Neill, case of, 53
Ordeal, an ancient test of truth, 48
Ownership and occupation, 102
PARAGE,
ARAGE, a French noble tenure,
205
Partnership, founded on brotherhoods,
234; Roman unlimited liability in,
ib.
Patriarchal power, 115; its gradual
transmutation, 116; passes into elec-
tive headship, 117; revives when
expansion of the tribe is checked,
118; in Aryan races, ib.; over ani-
mate and inanimate property, 310;
several powers blended in, 313; their
subsequent separation, 314; the
germ of all permanent power, 379
Patterson, Mr., on house communities,
79
'Per capita,' division by, 188, 195, 328
'Per stirpes,' division by, 188, 195, 328
Pignoris Capio,' 257 seq.; seizure of
goods, 260
Pliny, his Natural History a source of
errors, 29
Poste, Mr., on Plato's laws, 258
Pound, the village, antiquity of, 263
Primitive ideas, growth and diffusion
of, 225 seq.; barrenness of primitive
imagination, ib.; slowly transformed,
229; consanguinity the only bond,
230
ROMAN
Primogeniture, the result of the status
of the chief, 120; limited applica-
tion of, in ancient France, 122;
general in England, 124; different from
'the birthright,' 197; one of the most
difficult problems, 198; unknown to
antiquity, ib.; must be connected
with the irruption of the barbarians,
199; ancient forms of, ib.; a product
of decaying leadership, 202; trans-
formation of, 203; affected by deci-
sion of the controversy between
Bruce and Baliol, 204
Progress, slowness of, 227
Property in land, beginnings of, 1; in
Russia, distributed among groups of
kinsmen, 2; Sohm, on early history
of, 3; Laveleye, on primitive forms
of, ib.; affected by the dissolution of
the feudal system, 86; persistency of
feudal theories respecting, 88; private
ownership in ancient Ireland, 89;
property in severalty, 95; most com-
plete in the case of chiefs, ib. ; double
origin of, 115; affected by increasing
authority of the chiefs, ib. ; two-fold
origin of, 120; subdivision of, in
France before the Revolution, 121;
English conception of absolute pro-
perty in land, 126; rack rent in
Ireland, 127; by gavelkind, 186; pro-
bably by various tenures, 192; suc-
cessive modes of division, 195; dis-
tribution of, during owner's life, 196
Punchayet, native Indian jury, 221
ACE, theories of, 97
ᎡᎪᏟ
Races, the three, with which alone
jurisprudence deals, 65; other abnor-
mal races, 67
Rack rent, 175. See Rents
Religious houses in Ireland, groups or
families of, 237
Renan, M., on Semitic village commu-
nities in Africa, 77
Rents, the three, of the Brehon Tracts,
175; questions of, in early Irish
history, 177; commented on by
Spenser and Sir J. Davis, 179; their
testimony explained, 180; due to the
increase of fuidhir tenants, 182 seq.
Rogers, Mr., T., on cheapness of land,
142
Roman Empire, influence of the, on the
410
ROMAN
INDEX.
modetn world, 20; distinctively
legislative, 330; destructive of local
customs, ib.
Roman law, Aryan customs of the
Twelve Tables, 9; enlarged by in-
terpretations, 10; compared with
Irish law, ib.; extended by 'responsa
prudentum,' 42; enforced by strong
government, ib.; affected the Brehon
laws, 55; agnatic kindred in, 106;
importance of its history, 308; the
chief branch of Latin literature, ib. ;
Niebuhr's discovery of the work of
Gaius on, 308, 309; usucapion, or
prescription, 315; progressive steps
of, on marriage, 320; made dotation
compulsory, 336
Roman plebs, its final victory, 76; the
foundation of the Roman Empire, ib.
Rome formed by a coalescence of
village communities, 84
Rundale holdings in Ireland, 101
Runjeet Singh, a sovereign, but not a
legislator, 381, 382
Russia, village communities in, 2
Russian serfs, enfranchisement of, 208
SAC
ACRAMENTUM, money staked in
litigation, 255
Saer Stock Tenure, law of, 152, 158;
bound the receiver to pay homage,
159
Sanctions of Brehon law, 39
Scotland, peculiar tenure of land in,
101 ·
Scott, Sir Walter, his picture of Celtic
society in Waverley,' 141; of the
primitive chief, 144
Seds,' an Irish measure of value of
cattle, 149, 160
Senchus Mor, age of the, 12; origin of
the, 21; on the three rents, 175; on
fosterage, 241
Sept, the Irish, 186
Sexes, relations of the, in Brehon law,
59; greater purity of the modern
Irish, 61
Skene, Mr. W. F., on the Highlanders
of Scotland, 6, 101, 187
Slavery, effects of Christianity upon,
62;
TANAISTS
Social connexions, Irish law tract on, 61
Sohm, on early history of property, 3;
on social organisation, 202; on the
Salic law, 271; on risks of distraint,
273; on Frankish popular courts,
288
Sovereignty, tribal and territorial, 76;
doctrines of the analytical jurists on,
312 seq.
See Austin
Spenser, Edmund, on Irish law, 18; on
Irish land, 98; on Irish oppression,
127; on 'right of refection,' 161;
denounces the Eric-fines, 170; on
oppressive rents, 179; on election of
chief, 201; on law of distress, 292
Stephen, Mr. Fitzjames, on dormant
anarchy, 377; on sovereignty, 383
Stock, Irish system of giving, 151;
principal wealth of chiefs, 157;
Saer and Daer tenure by, 158;
effect of accepting, 163
Stokes, Mr. W., on the age of the
'Senchus Mor,' 12; on Irish co-
tenancy, 113; on 'Geilfine,' 216; on
'sitting Dharna,' 297
Strabo, on the Druids, 28
Stridhan, in Hindoo law, 321; signifies
'woman's property,' ib.; limited by
the Anglo-Indian courts, 323
Stubbs, Mr., on Church lands, 104; on
the companions' of English kings,
139; on feudalism, 154
Succession, law of, in feudalised Europe,
205. See Institutions
Sullivan, Dr., on Irish law, 25; on the
Irish fine,' 90, 92; on Celtic land
system, 96; on Irish land, 99; his
translation of Brehon tract, 140; on
fuidhir tenants, 182; on gavelkind,
191; on tribal origin of guilds, 232;
on Irish courts, 287; on 'dynamical
influence,' 296
Survivals, in theory of land, 88; in
names of places, 92; in cattle-steal-
ing, 144
Suttee, found to be a modern innovation,
326; due to the dislike of the Brah-
mins to the holding of property by
women, 335
o, ancient importance of, for tillage, TACITUS king's companions, 139
150
Socage, the tenure of the free farmer,
120
on German nobility, 131;
on the
Tanaists, the, acted as judges, 37; mode
of appointment of, 201
TANISTRY
INDEX.
Tanistry, 33, 99, 185, 192, 202; abo-
lition of, 205; its connection with
primogeniture, 208
Teignmouth, Lord, his description of
Dharna,' 298
Tenants at will, 178
Testamentary jurisdiction, its origin in
ecclesiastical courts, 332
Teutonic forms, ancient, of distraint,
270
Tocqueville, on signorial monopolies,
123
Todd, Dr., his life of St. Patrick, 236;
on families of religious houses,
237
Tooting, origin of the name, 83
Tribe, the, 98; connected with the land,
ib.; of the Brehon Tracts, 107;
limitation of alienation of land, 108;
expansion of the family into, 116;
transition to an elective headship,
117; a source of institutions, 119;
owners of the land, in the Brehon
Tracts, 129; importance of cattle to,
149; power to regulate stock giving,
163
Troplong, M., on Christian influence
on laws, 61
Tylor, Mr., on survivals, 144; on finger-
counting, 221; on primitive imagina-
tion, 225
UFFINGHAM, origin of the name,
83
Utilitarian philosophy, the, founded on
personal equality, 399; contrary
doctrine of the Brahmins, ib.
VE
ERSE, necessity of, before the art
of writing, 14; Indian memorial
verses, 71
Village communities, in Russia, 2; in-
creased attention given to them in
India, 4; Celtic, slight information
respecting, iò.; described by Cæsar,
5; in France, 6; in Dalmatia and
Croatia, 7; important information
furnished by the Irish Law Tracts, 8;
founded upon land settlement, 76;
the origin of landed property, 77;
not exclusively Aryan, ib.; found in
Java and northern Africa, ib.; in
Russia and India, 78; described, 81;
WOMEN
411
Indian, held together by the land,
82; rapidly disappearing, ib.; distinct
from 'natural communism,' 83;
coalescence of, the origin of Athens
and Rome, 84; course of their trans-
formation, ib.; due to feudalisation,
85; adopted by first English emi-
grants in New England, 94; distri-
buted lands per capita, 195; various
powers blended in a single idea,
314; formed the Hellenic world and
the Roman Empire, ib. ; in India and
in England compared, 389
Village council, the, the original legis-
lature of the Aryan races, 388;
source of all the most famous legisla-
tures of the world, ib.; its powers
judicial rather than legislative, 389
Village pound, the oldest institution in
the country, 263
WAGER, common way of postponing
a dispute, 259
Wales, custom in, similar to borough
English, 223
Welsh laws, published by the Record
Commission, 6
Will, conception of, in Irish Law Tracts,
due to the Church, 56
Women, married, settled property of,
306; a very old discussion, ib.; nearly
as old as the family,' 307; long
recognised by Continental States, ib.;
ideas of Roman and Hindoo societies
concerning, 310; in the patriarchal
family, 311; powers of guardians,
312; early Roman marriage, ib.; the
wife's property absolutely the hus-
band's, ib.; change made by 'usur-
pation,' 316
316; provision of the
Twelve Tables,' ih.; marriage a
voluntary society,
society, terminable at
pleasure by divorce, 317; severer
principles of Christianity, ib.; be-
ginning of settled property of married
women, 318; French régime of biens
séparés, ib.; the dotal estate, 319;
parapherna, ib.; lately arrived at in
England, 320; Roman marriage set-
tlement almost universal, ib.; simple
form of, 321; followed in the Code
Napoléon, ib.; Hindoo law of Stri-
dhan,' ib.; limited by the Anglo-
Indian courts, 323; prehistoric origin
412
INDEX.
WOMEN
of, 324; Brahmins' dislike of woman's
property, 325; gradual enfranchise-
ment of women, 326; Brahmin view
of woman's property, 333; rights of
ZEMINDAR
338; enfranchisement of woman a test
of civilisation, 339, 340
the childless widow, 334; suttee in YOUNG, Arthur, on France, 121
Bengal promoted by the Brahmins,
335; Roman compulsory dotation,
EMINDAR, or landlord, tenants de-
ZEM
336; law of Augustus, ib.; law of pendent on, 184
the Christian Church 337; doarium,
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AND
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28
LIST OF WORKS
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