Lecture One: New Materials for the Early History of Institutions
The sources of information concerning the early history of institutions which have been opened to us are numerous and valuable. On one subject in particular, which may be confidently said to have been almost exclusively investigated till lately by writers who had followed a false path, the additions to our knowledge are of special interest and importance. We at length know something concerning the beginnings of the great institution of Property in Land. The collective ownership of the soil by groups of men either in fact united by blood-relationships, or believing or assuming that they are so united, is now entitled to take rank as an ascertained primitive phenomenon, once universally characterising those communities of mankind between whose civilisation and our own there is any distinct connection or analogy. The evidence has been found on all sides of us, dimly seen and verifiable with difficulty in countries which have undergone the enormous pressure of the Roman Empire, or which have been strongly affected by its indirect influence, but perfectly plain and unmistakeable in the parts of the world, peopled by the Aryan race, where the Empire has made itself felt very slightly or not at all. As regards the Sclavonic communities, the enfranchisement of the peasantry of the Russian dominions in Europe has given a stimulus to enquiries which formerly had attractions for only a few curious observers, and the amount of information collected has been very large. We now know much more clearly than we did before that the soil of the older provinces of the Russian Empire has been, from time immemorial, almost exclusively distributed among groups of self-styled kinsmen, collected in cultivating village-communities, self-organised and self-governing; and, since the great measure of the present reign, the collective rights of these communities, and the rights and duties of their members in respect of one another, are no longer entangled with and limited by the manorial privileges of an owner-in-chief. There is also fresh evidence that the more backward of the outlying Sclavonic societies are constituted upon essentially the same model; and it is one of the facts with which the Western world will some day assuredly have to reckon, that the political ideas of so large a portion of the human race, and its ideas of property also, are inextricably bound up with the notions of family interdependency, of collective ownership, and of natural subjection to patriarchal power. The traces of the ancient social order in the Germanic and Scandinavian countries are, I need scarcely say, considerably fainter, and tend always to become more obscured; but the re-examination of the written evidence respecting ancient Teutonic life and custom proceeds without intermission, and incidentally much light has been thrown on the early history of property by the remarkable work of Sohm ('Frankische Reichs-und Gerichtsverfassung'). The results obtained by the special method of G.L. Von Maurer have meantime been verified by comparison with phenomena discovered in the most unexpected quarters. The researches of M. de Laveleye, in particular, have been conducted over a field of very wide extent; and, although I dissent from some of the economic conclusions to which he has been led, I cannot speak too highly of the value of the materials collected by him, and described in the recently published volume which he has entitled "La Propriete et ses Formes Primitives". I have not observed that the vestiges left on the soil and law of England and of the Scottish Lowlands by the ancient Village-Community have been made the subject of any published work since the monograph of Nasse on the "Land Community of the Middle Ages" was given to the world, and since the lectures delivered in this place three years since appeared in print. Nobody, however, who knows the carefulness with which an English Court of Justice sifts the materials brought before it will wonder at my attaching a special importance to the judgment of Lord Chancellor Hatherley, given in a difficult case which arose through a dispute between different classes of persons interested in a manor, Warrick against Queen's college, Oxford (reported in 6 Law Reports, Chancery Appeals, 716). It appears to me to recognise the traces of a state of things older than the theoretical basis of English Real Property Law, and, so far as it goes, to allow that the description of it given here was correct. Meanwhile, if I may judge from the communications which do not cease to reach me from India, and from various parts of this country, the constitution of the Village-Community, as it exists, and as it existed, is engaging the attention of a large number of industrious observers, and the facts bearing upon the subject, which I hope will some day be made public, prove to exist in extraordinary abundance.
There was not set of communities which until recently supplied us with information less in amount and apparent value concerning the early history of law than those of Celtic origin. This was the more remarkable, because one particular group of small Celtic societies, which have engrossed more than their share of the interest of this country -- the clans of the Scottish Highlands -- had admittedly retained many of the characteristics, and in particular the political characteristics of a more ancient condition of the world, almost down to our own day. But the explanation is, that all Celtic societies were until recently seen by those competent to observe them through a peculiarly deceptive medium. A veil spread by the lawyers, a veil woven of Roman law and of the comparatively modern combination of primitive and Roman law which we call feudalism, hung between the Highland institutions and the shrewd investigating genius of the Scottish Lowlanders. A thick mist of feudal law hid the ancient constitution of Irish society from English observation, and led to unfounded doubts respecting the authenticity of the laws of Wales. The ancient organisation of the Celts of Gaul, described by Caesar 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 recognized 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, which has succeeded a school almost infamous for the unchastened license of its speculations on history and philology, had pointed out many things in Irish custom which connected it with the archaic practices known to be still followed or to have been followed by the Germanic races. As early as 1837 Mr W.F. Skene, in a work of much value called "The Highlanders of Scotland", had corrected many of the mistakes on the subject of Highland usage into which writers exclusively conversant with feudal rules had been betrayed; and the same eminent antiquarian, in an appendix to his edition of the Scottish chronicler, Fordun, published in 1872, confirms evidence which had reached me in considerable quantities from private sources to the effect that village-communities with 'shifting severalties' existed in the Highlands within living memory. Quite recently, also, M. Le Play and others have come upon plain traces of such communities in several parts of France. A close re-examination of the Custumals or manuals of feudal rules plentiful in French legal literature, led farther to some highly interesting results. It clearly appeared from them that communities of villeins were constantly found on the estates of the French territorial nobility. The legal writers have always represented these as voluntary associations which were rather favoured by the lord on account of the greater certainty and regularity with which their members rendered him suit and service. As a rule, when a tenant holding by base tenure died, the lord succeeded in the first instance to his land, a rule of which there are plain traces in our English law of copyhold. But it is expressly stated that, in the case of an association of villeins, the lord did not resume their land, being supposed to be compensated by their better ability to furnish his dues. Now that the explanation has once been given, there can be no doubt that these associations were not really voluntary partnerships, but groups of kinsmen; not, however, so often organised on the ordinary type of the Village-Community as on that of the House-Community, which has recently been examined in Dalmatia and Croatia. Each of them was what the Hindoos call a Joint Undivided Family, a collection of assumed descendants from a common ancestor, preserving a common hearth and common meals during several generations. There was no escheat of the land to the lord on a death, because such a corporation never dies, and the succession is perpetual.
But much the most instructive contribution to our knowledge of the ancient Celtic societies has been furnished by the Irish Government, in the translations of the Ancient Laws of Ireland, which have been published at its expense. The first volume of these translations was published in 1865; the second in 1869; the third, enriched with some valuable prefaces, has only just appeared. No one interested in the studies which are now occupying us could fail to recognise the importance of the earlier volumes, but there was much difficulty in determining their exact bearing on the early history of Celtic institutions. The bulk of the law first published consisted in a collection of rules belonging to what in our modern legal language we should call the Law of Distress. Now, in very ancient bodies of rules the Law of Distress, as I shall endeavour to explain hereafter, is undoubtedly entitled to a very different place from that which would be given to it in any modern system of jurisprudence; but still it is a highly special branch of law in any stage of development. There is, however, another more permanent and more serious cause of embarrassment in drawing conclusions from these laws. Until comparatively lately they were practically unintelligible; and they were restored to knowledge by the original translators, Dr O'Donovan and Dr O'Curry, two very remarkable men, both of whom are now dead. The translations have been carefully revised by the learned editor of the Irish text; but it is probable that several generations of Celtic scholars will have had to interchange criticisms on the language of the laws before the reader who approaches them without any pretension to Celtic scholarship can be quite sure that he has the exact meaning of every passage before him. The laws, too, I need scarcely say, are full of technical expressions; and the greatest scholar who has not had a legal training -- and, indeed, up to a certain point when he has had a legal training -- may fail to catch the exact excess or defect of meaning which distinguishes a word in popular use from the same word employed technically. Such considerations suggest the greatest possible caution in dealing with this body of rules. In what follows I attempt to draw inferences only when the meaning and drift of the text seem reasonably certain, and I have avoided some promising lines of enquiry which would lead us through passages of doubtful signification.
The value which the Ancient Laws of Ireland, the so-called Brehon laws, will possess when they are completely published and interpreted, may, I think, be illustrated in this way. Let it be remembered that the Roman Law, which, next to the Christian Religion, is the most plentiful source of the rules governing actual conduct throughout Western Europe, is descended from a small body of Aryan customs reduced to writing in the fifth century before Christ, and known as the Twelve Tables of Rome. Let it farther be recollected that this law was at first expanded and enveloped, not at all, or very slightly, by legislation, but by a process which we may perceive still in operation in various communities -- the juridical interpretation of authoritative texts by successive generations of learned men. Now, the largest collection of Irish legal rules, which has come down to us, professes to be an ancient Code, with an appendage of later glosses and commentaries; and, if its authenticity could be fully established, this ancient Irish Code would correspond historically to the Twelve Tables of Rome, and to many similar bodies of written rules which appear in the early history of Aryan societies. There is reason, however, to think that its claims to antiquity cannot be sustained to their full extent, and that the Code itself is an accretion of rules which have clustered round an older nucleus. But that some such kernel or perhaps several such kernels of written law existed, is highly probable, and it is also probable that the whole of the Brehon law consists of them and of accumulations formed upon them. It is farther probable that the process by which these accumulations were formed was, as in the infancy of the Roman State, juridical interpretation. According to the opinion which I follow, the interesting fact about the ancient Irish law is, that this process was exclusive, and that none of the later agencies by which law is transformed came into play. The Brehon laws are in no sense a legislative construction, and thus they are in no sense a legislative construction, and thus they are not only an authentic monument of a very ancient group of Aryan institutions; they are also a collection of rules which have been gradually developed in a way highly favourable to the preservation of archaic peculiarities. Two causes have done most to obscure the oldest institutions of the portion of the human race to which we belong: one has been the formation throughout the West of strong centralised governments, concentrating in themselves the public force of the community, and enabled to give to that force upon occasion the special form of legislative power; the other has been the influence, direct and indirect, of the Roman Empire, drawing with it an activity in legislation unknown to the parts of the world which were never subjected to it. Now, Ireland is allowed on all hands to have never formed part of the Empire; it was very slightly affected from a distance by the Imperial law; and, even if it be admitted that, during certain intervals of its ancient history, it had a central government, assuredly this government was never a strong one. Under these circumstances it is not wonderful that the Brehon law, growing together without legislation upon an original body of Aryan custom, and formed beyond the limit of that cloud of Roman juridical ideas which for many centuries overspread the whole Continent, and even at its extremity extended to England, should present some very strong analogies to another set of derivative Aryan usages, the Hindoo law, which was similarly developed. The curious and perplexing problems which such a mode of growth suggests have to grappled with by the student of either system.
The ancient laws of Ireland have come down to us as an assemblage of law-tracts, each treating of some one subject or of a group of subjects. The volumes officially translated and published contain the two largest of these tracts, the Senchus Mor, or Great Book of the Ancient Law, and the Book of Aicill. While the comparison of the Senchus Mor and of the Book of Aicill with other extant bodies of archaic rules leaves no doubt of the great antiquity of much of their contents, the actual period at which they assumed their present shape is extremely uncertain. Mr Whitley Stokes, one of the most eminent of living Celtic scholars, believes, upon consideration of its verbal forms, that the Senchus Mor was compiled in or perhaps slightly before the eleventh century; and there appears to be internal evidence which on the whole allows us to attribute the Book of Aicill to the century preceding. The Senchus Mor, it is true, expressly claims for itself a far earlier origin. In a remarkable preface, of which I shall have much to say hereafter, it gives an account, partly in verse, of the circumstances under which it was drawn up, and it professes to have been compiled during the life and under the personal influence of St Patrick. These pretensions have been ingeniously supported, but there is not much temerity, I think, in refusing to accept the fifth century as the date of the Senchus Mor. At the same time it is far from impossible that the writing of the ancient Irish laws began soon after the Christianisation of Ireland. It was Christianity, a 'religion of a book', which for the first time introduced many of the ruder nations outside the Empire to the art of writing. We cannot safely claim for the Christian era, precisely the same degree of culture which Caesar attributes to the Celts of the Continent in the first century before Christ; but, even if we could do so, Caesar expressly states of the Gauls that, though they were acquainted with writing, they had superstitious scruples about using written characters to preserve any part of their sacred literature, in which their law would then be included. Such objections would, however, necessarily disappear with the conversion of the Irish people to Christianity. On the whole there is no antecedent improbability in the tradition that, soon after this conversion, the usages of the Irish began to be stated in writing, and Celtic scholars have detected not a little evidence that parts of these more venerable writings are imbedded in the text of the Book of Aicill and of the Senchus Mor.
It is extremely likely that the most ancient law was preserved in rude verse or rhythmical prose. In the oldest Irish traditions the lawyer is distinguished with difficulty from the poet, poetry from literature. Both in the Senchus Mor and in the Book of Aicill the express statement of the law is described as 'casting a thread of poetry' about it, and the traditional authors of the Senchus Mor are said to have exhibited 'all the judgements and poetry of the men of Erin.' Modern Irish scholarship has, in fact, discovered that portions of the Senchus Mor are really in verse. The phenomenon is not unfamiliar. Mr Grote, speaking of the Elegiacs of Solon, and of the natural priority of verse to prose, says (History of Greece, iii. 119), 'the acquisitions as well as the effusions of an intellectual man, even in the simplest form, (then) adjusted themselves not to the limitations of the period and semicolon, but to those of the hexameter and pentameter.' There is no question, I conceive, that this ancient written verse is what is now called a survival, descending to the first ages of written composition from the ages when measured rhythm was absolutely essential, in order that the memory might bear the vast burdens placed upon it. It is now generally agreed that the voluminous versified Sanscrit literature, which embraces not only the poetry of the Hindoos, but most of their religion, much of what stands to them in place of history, and something even of their law, was originally preserved by recollection and published by recitation; and even now, in the Sanscrit schools which remain, the pupil is trained to exercises of memory which are little short of the miraculous to an Englishman.
The tracts are of very unequal size, and the subjects they embrace are of very unequal importance. But all alike consist of an original text, divided into paragraphs. Above or over against the principal words of the text glosses or interpretations are written in a smaller hand, and a paragraph is constantly followed by an explanatory commentary, also in a smaller hand, written in the space which separates the paragraph from the next. The scarcity of material for writing may perhaps sufficiently account for the form taken by the manuscripts; but the Celts seem to have had a special habit of glossing, and you may have heard that the glosses written by early Irish monks between the lines or on the margin of manuscripts belonging to religious houses on the Continent had much to do with the wonderful discoveries of Zeuss in Celtic philology. A facsimile of part of two Brehon manuscripts, one in the British Museum, and the other in the Library of Trinity College, Dublin, may be seen at the beginning of the second published volume of the translations. It seems probable that each tract was the property, and that it sets forth the special legal doctrines, of some body of persons who, in modern legal phrase, had perpetual succession, a Family or Law School; there is ample evidence of the existence of such law schools in ancient Ireland, and they are another feature of resemblance to the India of the past and in some degree to the India of the present.
The text of each of the published tracts appears to have been put together by one effort, no doubt from pre-existing materials, and it may have been written continuously by some one person; but the additions to it must be an accumulation of explanations and expositions of various dates by subsequent possessors of the document. I quite agree with the observation of the Editors, that, while the text is for the most part comparatively consistent and clear, the commentary is often obscure and contradictory. Precisely the same remark is frequently made by Anglo-Indian Judges on the Brahminical legal treatises, some of which are similarly divided into at text and a commentary. As regards the ancient Irish law, the result of the whole process is anything but satisfactory to the modern reader. I do not know that, in any extant body of legal rules, the difficulty of mastering the contents has ever been so seriously aggravated by the repulsiveness of the form. One of the editors has unkindly, but not unjustly, compared a Brehon tract to the worst kind of English law-book, without even the moderate advantage of an alphabetical arrangement.
The exact date at which the existing manuscripts were written cannot be satisfactorily settled until they are all made accessible, which unfortunately they are not at present. But we know one MS. of the Senchus Mor to be at least as old as the fourteenth century, since a touching note has been written on it by a member of the family to which it belonged: "One thousand three hundred two and forty years from the birth of Christ till this night; and this is the second year since the coming of the plague into Ireland. I have written this in the 20th year of my age. I am Hugh, son of Conor McEgan, and whoever reads it let him offer a prayer of mercy for my son! 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 the great plague."
The system of legal rules contained in these law tracts is undoubtedly the same with that repeatedly condemned by Anglo-Irish legislation, and repeatedly noticed by English observers of Ireland down to the early part of the seventeenth century. It is the same law which, in 1367, a statute of Kilkenny denounces as 'wicked and damnable'. It is the same law which Edmund Spencer, in his 'View of the State of Ireland,' describes as 'a rule of right unwritten, but delivered by tradition from one to another, win which oftentimes there appeareth a great show of equity, in determining the right between party and party, but in many things repugning quite both to God's law and man's'. It is the same 'lewd' and 'unreasonable' custom which Sir John Davis contrasts with the 'just and honourable law of England,' and to which he attributes such desolation and barbarism in Ireland, 'as the like as 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 justifiable. Even if the worst that has been said by Englishmen of the Brehon law down to our own day were true, we might console ourselves by turning our eyes to spheres of enquiry fuller of immediate promise to the world than ours, and observing how much of the wealth of modern thought has been obtained from the dross which earlier generations had rejected. Meanwhile, happily, it is a distinct property of the Comparative Method of investigation to abate national prejudices. I myself believe that the government of India by the English has been rendered appreciably easier by the discoveries which have brought home to the educated of both races the common Aryan parentage of Englishman and Hindoo. Similarly, I am not afraid to anticipate that there will some day be more hesitation in repeating the invectives of Spenser and Davis, which it is once clearly understood that the 'lewd' institutions of the Irish were virtually the same institutions as those out of which the 'just and honourable law' of England grew. Why these institutions followed in their development such different paths it is the province of History to decide; but, when it gives an impartial decision, I doubt much its wholly attributing the difference to native faults of Irish character. We, who are able here to examine coolly the ancient Irish law in an authentic form, can see that it is a very remarkable body of archaic law, unusually pure from its origin. It has some analogies with the Roman law of the earliest times, some with Scandinavian law, some with the law of the Sclavonic races, so far as it is known, some (and these particularly strong) with the Hindoo law, and quite enough with old Germanic law of all kinds, to render valueless, for scientific purposes, the comparison which the English observers so constantly institute with the laws of England. It is manifestly the same system in origin and principle with that which has descended to us as the Laws of Wales, but these last have somehow undergone the important modifications which arise from the establishment of a comparatively strong central authority. Nor does the Brehon law altogether disappoint the expectations of the patriotic Irishmen who, partly trusting to the testimony of Edmund Spenser, the least unkind of the English critics of Ireland, though one of the most ruthless in his practical suggestions, looked forward to its manifesting, when it was published, an equity and reasonableness which would put to shame the barbarous jurisprudence of England. Much of it -- I am afraid I must say, most of it -- is worthless save for historical purposes, but on some points it really does come close to the most advanced legal doctrines of our day. The explanation -- which I will hereafter give at length -- I believe to lie in the method of its development, which has not been through the decision 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 Praetor and the Constitution of the Emperors. For many races, it actually repealed their customs and replaced them by new ones. For others, the results of its legislation mixed themselves indistinguishably with their law. With others, it introduced or immensely stimulated the habit of legislation; and this is one of the ways in which it has influenced the stubborn body of Germanic custom prevailing in Great Britain. But wherever the institutions of any Aryan race have been untouched by it, or slightly touched by it, the common basis of Aryan usage is perfectly discernible; and thus it is that these Brehon law-tracts enable us to connect the races at the eastern and western extremities of a later Aryan world, the Hindoos and the Irish.
The Lectures which follow will help, I trust, to show what use the student of comparative jurisprudence may make of this novel addition to our knowledge of ancient law. Meantime, there is some interest in contrasting the view of its nature, origin, and growth, which we are obliged to take here, with that to which the ancient Irish practitioners occasionally strove hard to give currency. The Senchus Mor, the Great Book of the Ancient Law, was doubtless a most precious possession of the law-school or family to which it belonged; and its owners have joined it to a preface in which a semi-divine authorship is boldly claimed for it. Odhran, the charioteer of St Patrick -- so says this preface -- had been killed, and the question arose whether Nuada, the slayer, should die, or whether the saint was bound by his own principles to unconditional forgiveness. St Patrick did not decide the point himself; the narrator, in true professional spirit, tells us that he set the precedent according to which a stranger from beyond the sea always selects a legal adviser. He chose 'to go according to the judgment of the royal poet of the men of Erin, Dubhthach Mac ua Lugair,' and he 'blessed the mouth' of Dubhthach. A poem, doubtless of much antiquity and celebrity, is then put into the mouth of the arbitrator, and by the judgment embodied in it Nuada is to die; but he ascends straight to heaven through the intercession of St Patrick. "Then King Laeghaire said, "It is necessary for you, O men of Erin, that every other law should be settled and arranged by us as well as this." "It is better to do so," said Patrick. It was then that all the professors of the sciences in Erin were assembled, and each of them exhibited his art before Patrick, in the presence of every chief in Erin. It was then Dubhthach was ordered to exhibit all the judgments and all the poetry of Erin, and every law which prevailed among the men of Erin... This is the Cain Patraic, and no human Brehon of the Gaedhil is able to abrogate anything that is found in the Senchus Mor.'
The inspired award of Dubhthach that Nuada must die suggests to the commentator the following remark: "What is understood from the above decision which God revealed to Dubhthach is, that it was a middle course between forgiveness and retaliation; for retaliation prevailed in Erin before Patrick, and Patrick brought forgiveness with him; that is, Nuada was put to death for his crime, and Patrick obtained heaven for him. At this day we keep between forgiveness and retaliation; for as at present no one has the power of bestowing heaven, as Patrick had at that day, so no one is put to death for his intentional crimes, so long as 'eric' fine is obtained; and whenever 'eric' fine is not obtained, he is put to death for his intentional crime, and placed on the sea for his unintentional crimes." It is impossible, of course, to accept the statement that this wide-spread ancient institution, the pecuniary fine levied on tribes or families for the wrongs done by their members, had its origin in Christian influences; but that it succeeded simple retaliation is in the highest degree probable, and no doubt in its day it was at least as great an advantage to the communities among whom it prevailed as was that stern 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.'
