Preface ......................................................................................................................................................1

Lecture One. New Materials for the Early History of Institutions..........................................................1

Lecture 2. The Ancient Irish Law ............................................................................................................8

Lecture III. Kinship as the Basis of Society..........................................................................................18

Lecture IV. The Tribe and the Land......................................................................................................28

Lecture V. The Chief and His Order ......................................................................................................33

Lecture V. The Chief and His Order ......................................................................................................41

Lecture VI. The Chief and the Land......................................................................................................49

Lecture VII. Ancient Divisions of the Family.......................................................................................59

Lecture VIII. The Growth and Diffusion of Primitive Ideas.................................................................70

Lecture IX. The Primitive Forms of Legal Remedies I.........................................................................77

Lecture X. The Primitive Forms of Legal Remedies II.........................................................................85

Lecture XI. The Early History of the Settled Property of Married Women..........................................92

Lecture XII. Sovereignty.....................................................................................................................102

Lecture XIII. Sovereignty and Empire .................................................................................................110

In the Lectures printed in this Volume an attempt is made to carry farther in some particulars the line of

investigation pursued by the Author in an earlier work on 'Ancient Law'. The fortunes of the legal system

which then supplied him with the greatest number of his illustrations have been strikingly unlike those of

another body of law from which he has now endeavoured to obtain some new materials for legal and social

history. The Roman Law has never ceased to be spoken of with deep respect, and it is in fact the source of the

greatest part of the rules by which civil life is still governed in the Western World. The Ancient Irish Law,

the socalled Brehon Law, has been for the most part bitterly condemned by the few writers who have

noticed it; and, after gradually losing whatever influence it once possessed in the country in which it grew up,

in the end it was forcibly suppressed. Yet the very cases which have denied a modern history to the Brehon

Law have given it a especial 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

The obligations o� the Author to various Gentlemen for instruction derived from their published writings or

private communications are acknowledged in the body of the work, but he has to express his especial thanks

to the Bishop of Limerick, and to Professor Thaddeus O'Mahony, for facilities of access to the still

unpublished translations of Brehon manuscripts, as well as for many valuable suggestions.

The 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

bloodrelationships, 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 selfstyled kinsmen,

collected in cultivating villagecommunities, selforganised and selfgoverning; 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

ownerinchief. 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 reexamination 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 Reichsund 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 VillageCommunity 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

VillageCommunity, 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

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 villagecommunities 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 reexamination 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 VillageCommunity as on that of the HouseCommunity, 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

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 socalled 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

The ancient laws of Ireland have come down to us as an assemblage of lawtracts, 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

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

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

The text of each of the published tracts appears to have been put together by one effort, no doubt from

preexisting 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 AngloIndian 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 lawbook, 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

The system of legal rules contained in these law tracts is undoubtedly the same with that repeatedly

condemned by AngloIrish 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

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 lawtracts enable us to connect the races at the eastern and

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 lawschool or family to which it belonged; and its

owners have joined it to a preface in which a semidivine 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

widespread 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

The great peculiarity of the ancient laws of Ireland, so far as they are accessible to us, is discussed, with much

instructive illustration, in the General Preface to the Third Volume of the official translations. They are not a

legislative structure, but the creation of a class of professional lawyers, the Brehons, whose occupation

became hereditary, and who on that ground have been designated, though not with strict accuracy, a caste.

This view, which is consistent with all that early English authorities on Ireland have told us of the system

they call the Brehon law, is certainly that which would be suggested by simple inspection of the law tracts at

present translated and published. The Book of Aicill is probably the oldest, and its text is avowedly

composed of the dicta of two famous lawyers, Cormac and Cennfeladh. The Senchus Mor does, indeed,

profess to have been produced by a process resembling legislation, but the pretension cannot be supported;

and, even if it could, the Senchus Mor would not less consist of the opinions of famous Brehons. It describes

the legal rules embodied in its text as formed of the 'law of nature', and of the 'law of the letter'. The 'law of

the letter' is the Scriptural law, extended by so much of Canon law as the primitive monastic Church of

Ireland can be supposed to have created or adopted. The reference in the misleading phrase 'law of nature', is

not to be the memorable combination of words familiar to the Roman lawyers, but to the text of St Paul in the

Epistle to the Romans: 'For when the Gentiles, which have not the law, do by nature the things contained in

the law, these, having not the law, are the law unto themselves.' (Rom. ii. 14) The 'law of nature' is, therefore,

the ancient preChristian ingredient in the system, and the 'Senchus Mor' says of it: 'The judgments of true

nature while the Holy Ghost had spoken through the mouths of the Brehons and just poets of the men of Erin,

from the first occupation of Ireland down to the reception of the faith, were all exhibited by Dubhthach to

Patrick. What did not clash with the Word of God in the written law and the New Testament and the

consciences of believers, was confirmed in the laws of the Brehons by Patrick and by the ecclesiastics and

chieftains of Ireland; for the law of nature had been quite right except the faith, and its obligations, and the

Dr Sullivan, on the other hand, whose learned and exhaustive Introduction to O'Curry's Lectures forms the

first volume of the 'Manners and Customs of the Ancient Irish', affirms, on the evidence of ancient records,

that the institutions which in some communities undoubtedly developed into true legislatures had their

counterparts in the Ireland to which the laws belonged, and he does not hesitate to designate certain portions

of the Irish legal system 'statutelaw'. In the present sate of criticism on Irish documents it is not possible to

hold the balance exactly between the writers of the Introduction and of the General Preface; but there is not

the inconsistency between their opinions which there might appear to be at first sight. In the infancy of

society many conceptions are found blended together which are now distinct, and many associations which

are now inseparable from particular processes or institutions are not found coupled with them. There is

abundant proof that legislative and judicial power are not distinguished in primitive thought; nor, again, is

legislation associated with innovation. In our day the legislator is always supposed to innovate; the judge

never. But of old the legislator no more necessarily innovated than the judge; he only, for the most part,

declared preexiting 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 socalled Leges Barbarorum, but in all probability the quantity was extremely small. Thus,

when a body of Brehon judgments was promulgated by an Irish Chief to a tribal assembly, it is probable than

convenience was the object sought rather than a new sanction. A remarkable poem, appended to O'Curry's

Lectures, tells us how certain Chiefs proceeded every third year to the 'Fair of Carman' and there proclaimed

'the rights of every law and the restraints'; but it does not at all follow that this promulgation had any affinity

for legislation in the modern sense. The innovating legislatures of the modern world appear to have grown up

where certain conditions were present which were viturally unknown to ancient Ireland where the

primitive groups of which society was formed were broken up with some completeness, and where a central

government was constituted acting on individuals from a distance coercively and irresistibly.

There are, moreover, some independent reasons for thinking that, among the Celtic races, the halfjudicial,

halflegislative, 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 lawtracts, which are of much interest, but of uncertain origin and date,

contain several reference to the order in Celtic society which has hitherto occupied men's thoughts more than

any other, the Druids. The word occurs in the Irish text. The writers of the prefaces seem to have conceived

the Druids as a class of heathen priests who had once practised magical arts. The enchanters of Pharaoh are,

for instance, called the Egyptian Druids, in the Preface to the Senchus Mor. The point of view seems to be the

one familiar enough to us in modern literature, where an exclusive prominence is given to the priestly

character of the Druids; nor do the Brehon lawyers appear to connect themselves with a class of men whom

they regard as having belonged altogether to the old order of the world. I am quite aware that, in asking

whether the historical disconnection of the Brehons and the Druids can be accepted as a fact, I suggest an

enquiry about which there hangs a certain air of absurdity. There has been so much wild speculation and

assertion about Druids and Druidical antiquities that the whole subject seems to be considered as almost

beyond the pale of serious discussion. Yet we are not at liberty to forget that the first great observer of Celtic

manners describes the Celts of the Continent as before all things remarkable for the literary class which their

society included. Let me add that in Caesar's account of the Druids there is not a word which does not appear

to me perfectly credible. The same remark may be made of Strabo. But the source of at all events a part of the

absurdities which have clustered round the subject I take to be the Natural History of Pliny, and they seem to

belong to those stories about plants and animals to which may be traced a great deal of the nonsense written

You may remember the picture given by Caesar of the Continental Celts, as they appear to him when he first

used his unrivalled opportunities of examining them. He tells us that their tribal societies consisted

substantially of three 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�tat; but the observation is a good deal more ingenious than

true. We are now able to compare Caesar's account of the Gauls with the evidence concerning a Celtic

community which the Brehon tracts supply; and if we use this evidence as a test, we shall soon make up our

minds that, though his representation is accurate as far as it goes, it errs in omission of detail. The Equites, or

Chiefs, though to some extent they were a class apart, did not stand in such close relation to one another as

they stood to the various septs or groups over which they presided. 'Every chief,' says the Brehon law, 'rules

over his land, whether it be small or whether it be large.' The Plebeians, again, so far from constituting a great

miscellaneous multitude, were distributed into every sort of natural group, based ultimately upon the Family.

The mistake, so far as there was error, I conceive to have been an effect of mental distance. It had the

imperfections of the view obtained by looking on the Gangetic plains from the slopes of the Himalayas. The

impression made is not incorrect, but an immensity of detail is lost to the observer, and a surface varied by

countless small elevations looks perfectly flat. Caesar's failure to note the natural divisions of the Celtic

tribesmen, the families and septs or subtribes, is to me particularly instructive. The theory of human equality

is of Roman origin; the comminution of human society, and the unchecked competition among its members,

which have gone so far in the Western Europe of our days, had the most efficient causes in the mechanism of

the Roman State. Hence Caesar's omissions seem to be those most natural in a Roman general who was also a

great administrator and trained lawyer; and they are undoubtedly those to which an English ruler of India is

most liable at this moment. It is often said that it takes two or three years before a GovernorGeneral learns

that the vast Indian population is an aggregate of natural groups, and not the mixed multitude he left at home;

and some rulers of India have been accused of never having mastered the lesson at all.

There are a few very important points of detail to be noticed in Caesar's description of what may be called the

lay portion of Celtic society. I shall afterwards call your attention to the significance of what he states

concerning the classes whom he calls the clients and debtors of the Equites, and respecting the increased

power which they give to the Chief on whom they are dependent. It is, however, remarkable that, when he

speaks of the Druids, his statements are greatly more detailed. Here there were no home associations to

mislead him, but, beyond that, it is plain that his interest was strongly roused by the novel constitution of this

privileged order whom he places by the side of the Chiefs. Let me recall, then, to you the principal points of

his description, from which I designedly omit all statements concerning the priestly office of the class

described. He tells us that the Druids were supreme judges in all public and private disputes; and that, for

instance, all questions of homicide, of inheritance, and of boundary were referred to them for decision. He

says that the Druids presided over schools of learning, to which the Celtic youth flocked eagerly for

instruction, remaining in them sometimes (so he was informed) for twenty years at a time. He states that the

pupils in these schools learned an enormous quantity of verses, which were never committed to writing; and

he gives his opinion that the object was not merely to prevent sacred knowledge from being popularised, but

to strengthen the memory. Besides describing to us the religious doctrine of the Druids, he informs us that

they were extremely fond of disputing about the nature of the material world, the movements of the stars, and

the dimensions of the earth and of the universe. At their head there was by his account a chief Druid, whose

place at his death was filled by election, and the succession occasionally gave rise to violent contests of arms

There are some strong and even startling points of correspondence between the functions of the Druids, as

described by Caesar, and the office of the Brehon, as suggested by the lawtracts. The extensive literature of

law just disinterred testifies to the authority of the Brehons in all legal matters, and raises a strong

presumption that they were universal referees in disputes. Among their writings are separate treatises on

inheritance and boundary, and almost every page of the translations contains a reference to the 'eric'fine for

homicide. The schools of literature and law appear to have been numerous in ancient Ireland, and O'Curry is

able to give the course of instruction in one of them extending over twelve years. All literature, including

even law, seems to have been identified with poetry. the chief Druid of Caesar 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 that all. The

Prefaces in Irish to the tracts contain a number of discussions on subjects which are in no way legal, or which

are forced into some connection with law by the most violent expedients. They leave on the mind the

impression of being a patchwork of materials, probably of very various antiquity, which happen to have been

fond in the archives of particular lawschools. Now, the Preface to the Senchus Mor actually contains

disquisitions on all the matters about which Caesar 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 Caesar's Druids did, into a number of extraordinary statements, 'de

sideribus atque eorum motu', 'de mundi ac terrarum magnitudine'. Among other things, it declares that God

fixed seven divisions from the firmament to the earth, and that the distance he measured from the moon to the

sun was 244 miles. 'And the first form of the firmament was ordained thus: as the shell is about the egg, so is

the firmament round the earth in fixed suspension... there are six windows in each part through the firmament

to shed light through, so that there are sixtysix windows in it, and a glass shutter for each window; so that

the whole firmament is a might sheet of crystal and a protecting bulwark round the earth, with three heavens,

and three heavens about it; and the seventh was arrange in three heavens. this last, however, is not the

habitation of angels, but is like a wheel revolving round, nd the firmament is thus revolting, and also the

seven planets, since the time when they were created'. Parts of the passage reflect the astronomical notions

known to have been current in the Middle Ages, but much of it reads like a fragment of a heathen cosmology,

to which a later revision has given a faint Christian colouring. The same Preface contains also some curious

speculations on the etymology of lawterms, and the Preface to the Book of Aicill enters, among other

I suggest, therefore, that the same tendencies which produced among the Celts of the Continent the class

called the Druids produced among the Celts of Ireland the class known to us as the Brehons; nor does it seem

to me difficult to connect the results of these tendencies with other known phenomena of ancient society.

There is much reason to believe that the TribeChief, 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 Achaeans of Homer, the Chief has ceased to be priest,

but he is still judge; and his judicial sentences, Themiotes, or 'dooms', however much they may be drawn in

reality from preexiting usage, are believed to be dictated to him from on high. Among the Celts both of

Gaul and of Ireland he has ceased to be priest, and also probably to be judge, although some measure of

judicial authority may still belong to his office as a 'survival'. The order of change thus departs from that

followed in Athenian history, where the institution of kingship survived only in the name of the King Archon,

who was a judicial functionary, and from that followed in Roman history, where the Rex Sacrificulus was a

hierophant or priest. The Popular Assembly, meanwhile, which virtually attracted to itself the whole civil and

criminal jurisdiction of the Kings among the Athenians, and which at Rome engrossed the whole

administration of criminal justice through the commissions it appointed, seems to lose all judicial authority

among the Celts. Perhaps I may be permitted thus to describe the change I conceive to have taken place

among the Celts of Ireland. Themis, who in Homer is the assessor of Zeus and the source of judicial

inspiration to kings, has (so to speak) set up for herself. Kings have delegated their authority to a merely

human assessor, and we see by the story which begins the Senchus Mor that, even when a Saint is supposed

to be present, the inspiration of which he is the source does not find expression through his lips, nor does it

descend on the King; it descends on the professional judge. When we obtain our last glimpse of the class

which has received this inheritance from Chief or King the Brehons, Judges, or Authors of Judgments

they have sunk to the lowest depth of misery and degradation through the English conquest. At an earlier date

they are seen divided into families or septs, the hereditary lawadvisers of some princely or powerful house.

Hugh McEgan, who wrote the note 'in his own father's book' which I read in the last Lecture, was one of the

hereditary Brehons attached to the McCarthys. But, in the earliest Irish traditions, the functions of the Brehon

and the King run very much into one another. The most ancient Brehons are described as of royal blood,

sometimes as king's sons. The Tanaists of the great Irish Chiefs, the successors elected out of the kindred of

each Chief to come after him on his death, are said to have occasionally officiated as judges; and one of the

lawtracts, 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 accidently blinded of one eye,and is said to have been deposed from his regal office

or chieftiancy 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

If, without committing ourselves to any specific theory concerning the exact extent of the correspondence, we

can assume that there was substantial identity between the literary class which produced the lawtracts and

the literary order attributed to the Celtic races by Caesar, we not only do something to establish an historical

conclusion perhaps more curious than important, but we remove some serious difficulties in the interpretation

of the interesting and instructive body of archaic law now before us. The difference between the Druids and

their successors, the Brehons, would in that case be mainly this: the Brehons would be no longer priests. All

sacerdotal or religious authority must have passed, on the conversion of the Irish Celts, to the 'tribes of the

saints' to the missionary monastic societies founded at all points of the island and to that multitude of

bishops dependent on them, whom it is so difficult to reconcile with any of our preconceived ideas as to

ancient ecclesiastical organisation. The consequence would be that the religious sanctions of the ancient laws,

the supernatural penalties threatened on their violation, would disappear, except so far as the legal rules

exactly coincided with the rules of the new Christian code, the 'law of the letter.' Now, the want of a sanction

is occasionally one of the great 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 contents that the administration of the Brehon system

consisted in references to arbitration; and I certainly think myself that, so far as the system is known, it points

to that conclusion. The one object of the Brehons was to force disputants to refer their quarrels to a Brehon,

or to some person in authority advised by a Brehon, and thus a vast deal of the law tends to run into the Law

of Distress, which declares the various methods by which a man can be compelled through seizure of his

property to consent to an arbitration. But then one cannot help perpetually feeling that the compulsion is

weak as compared with the stringency of the process of modern Courts of Justice; and besides that, why

should not the man attempted to be distrained upon constantly resist with success? Doubtless the law

provides penalties for resistance; but where is the ultimate sanction? Caesar supplies an answer, which must,

I think, contain a portion of the truth. He says that if a Celt of Gaul refused to abide by a Druid judgment he

was excommunicated: which was esteemed the heaviest of penalties. Another example which I can give you

of the want or weakness of the sanction in the Brehon law is a very remarkable one, and I shall recur to it

hereafter. If you have a legal claim against a man of a certain rank and you are desirous of compelling him to

discharge it, the Senchus Mor tells you to 'fast upon him.' 'Notice', it says, 'precedes distress in the case of the

inferior grades, except it be by persons of distinction or upon persons of distinction; fasting precedes distress

in their case' ('Ancient Laws of Ireland,' vol. i, p. 113). The institution is unquestionably identical with one

widely diffused throughout the East, which is called by the Hindoos 'sitting dharna'. It consists in sitting at

your debtor's door and starving yourself till he pays. From the English point of view the practice has always

been considered barbarous and immoral, and the Indian Penal Code expressly forbids it. It suggests, however,

the question what would follow if the creditor simply allowed the debtor to starve? Undoubtedly the

Hindoo supposes that some supernatural penalty would follow; indeed, he generally gives definiteness to it

by retaining a Brahmin to starve himself vicariously, and no Hindoo doubts what would come of causing a

Brahmin's death. We cannot but suppose that the Brehon rule of fasting was once thought to have been

enforced in some similar way. Caesar states that the Druids believed in the immortality and transmigration of

the soul, and considered it the key of their system. A Druid may thus very well have taught that penal

consequences in another world would follow the creditor's death by starvation; and there is perhaps a pale

reflection of this doctrine in the language of the Senchus Mor: 'He who does not give a pledge to fasting is an

evader of all; he who disregards all things shall not be paid by God or man.' But an Irish Brehon could

scarcely make any distinct assertion on the subject, since fasting had now become a specific ordinance of the

Christian Church, and its condition and spiritual effects were expressly defined by the Christian priesthood.

Theoretically, I should state, a person who refused unjustly to yield to fasting had his legal liabilities

considerably increased, at least, according to the dicta of the Brehon commentators; but such provisions only

bring us to the difficulty of which I first spoke, and raise anew the question of the exact value of legal rules at

a period when Courts of Justice are not as yet armed with resistless powers of compelling attendance and

If we are justified in tracing the pedigree of the Brehon Code to a system enforced by supernatural sanctions,

we are able to contrast it in various ways with other bodies of law in respect of its mode of development. It

closely resembles the Hindoo law, inasmuch as it consists of what was in all probability an original basis of

Aryan usage vastly enlarged by a superstructure of interpretation which a long succession of professional

commentators have elected; but it cannot have had any such sacredness, and consequently any such authority,

as the Brahminical jurisprudence. Both the Brahmins and the Brehons assume that Kings and Judges will

enforce their law, and emphatically enjoin on them its enforcement; but, while the Brahmin could declare that

neglect or disobedience would be followed by endless degradation and torment, the Brehon could only assert

that the unlearned brother who pronounced a false judgment would find blotches come on his cheeks, and

that the Chief who allowed sound usage to be departed from would bring bad weather on his country. The

development of the Brehon law was again parallel to that which there is strong reason for supposing the

Roman law to have allowed in early times. The writer of the Preface to the Third Volume, from which I have

more than once quoted, cites some observations which I published several years ago on the subject of the

extension of the Roman jurisprudence by the agency known as the Responsa Prudentum, the accumulated

answers (or, as the Brehon phrase is, the judgments) of many successive generations of famous Roman

lawyers; and he adopts my account as giving the most probable explanation of the growth of the Brehon law.

But in the Roman State a test was always applied to the 'answers of the learned,' which was not applied, or

not systematically applied, to the judgments of the Brehons. We never know the Romans except as subject to

one of the strongest of central governments, which armed the law courts with the force at its command.

Although the Roman system did not work exactly in the way to which our English experience has

accustomed us, there can, of course, be no doubt that the ultimate criterion of the validity of professional

legal opinion at Rome, as elsewhere, was the action of Courts of Justice enforcing rights and duties in

conformity with such opinion. But in ancient Ireland it is at least doubtful whether there was ever, in our

sense of the words, a central government; it is also doubtful whether the public force at the command of any

ruler or rulers was ever systematically exerted through the mechanism of Courts of Justice; and it is at least a

tenable view that the institutions which stood in the place of Courts of Justice only exercised jurisdiction

Perhaps, however, from our present point of view, the strongest contrast is between the ancient law of Ireland

and the law of England at a period which an English lawyer would not call recent. The administration of

justice in England, from comparatively early times, has been more strongly centralised than in any other

European country; but in Ireland there was no central government to nerve the arm of the law. The process of

the English Courts has for centuries past been practically irresistible; the process of the Irish Courts, even if it

was compulsory, was at the utmost extremely weak. The Irish law was developed by hereditary

commentators; but we in England have always attributed far less authority than does any European

Continental community to the unofficial commentaries of the most learned writers of textbooks. We obtain

our law, and adjust it to the needs of each successive generation, either through legislative enactment or

through the decisions of our judges on isolated groups of facts established by the most laborious methods.

But, as I have already stated, the opinion to which I incline is, that no part of the Brehon law had its origin in

legislation. The author of innovation and improvement was the learned Brehon, and the Brehon appears to

have invented at pleasure the facts which he used as the framework for his legal doctrine. His invention was

necessarily limited by his experience, and hence the cases suggested in the lawtracts possess great interest,

as throwing light on the society amid which they were composed; but these cases seem to be purely

hypothetical, and only intended to illustrate the rule which happens to be under discussion.

In the volume of my own to which I referred a few moments ago I said of the early Roman law that 'great

influence must have been exercised (over it) by the want of any distinct check on the suggestion or invention

of possible questions. When the data can be multiplied at pleasure, the facilities for evolving a general rule

are immensely increased. As the law is administered among ourselves (in England) the judge cannot travel

out of the sets of facts exhibited before him or before his predecessors. Accordingly, each group of

circumstances which is adjudicated upon receives, to employ a Gallicism, a sort of consecration. It acquires

certain qualities which distinguish it from every other case, genuine or hypothetical.' I do not think it can be

doubted that this English practice of never declaring a legal rule authoritatively until a state of facts arises to

which it can be fitted, is the secret of the apparent backwardness and barrenness of English law at particular

epochs, as contrasted with the richness and reasonableness of other systems which it more than rivals in its

present condition. It is true, as I said before, even of the Brehon law, that it does not wholly disappoint the

patriotic expectations entertained of it. When they are disencumbered of archaic phrase and form, there are

some things remarkably modern in it. I quite agree with one of the Editors that, in the ancient Irish Law of

Civil Wrong, there is a singularly close approach to modern doctrines on the subject of Contributory

Negligence; and I have found it possible to extract from the quaint texts of the Book of Aicill some extremely

sensible rulings on the difficult subject of the Measure of Damages, for which it would be vain to study the

writings of Lord Coke, though these last are relatively of much later date. But the Brehon law pays heavily

for this apparent anticipation of the modern legal spirit. It must be confessed that most of it has a strong air of

fancifulness and unreality. It seems as if the Brehon lawyer, after forming (let us say) a conception of a

particular kind of injury, set himself, as a sort of mental exercise, to devise all the varieties of circumstance

under which the wrong could be committed, and then to determine the way in which some traditional

principle of redress could be applied to the cases supposed. This indulgence of his imagination drew him

frequently into triviality or silliness, and led to an extraordinary multiplication of legal detail. Four pages of

the Book of Aicill (a very large proportion of an ancient body of law) are concerned with injuries received

from dogs in dogfights, and they set forth in the most elaborate way the modification of the governing rule

required in the case of the owners in the case of the spectators in the case of the 'impartial interposer'

in the case of the 'halfinterposer,' 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 lookeron in the case of a youth under age, and in the case of an

idiot. The same lawtract deals also with the curious subjects of injuries from a cat stealing in a kitchen, from

women using their distaffs in a womanbattle, 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

It is not, perhaps, as often noticed as it should be by English writers on law that the method of enunciating

legal principles with which our Courts of Justice have familiarised us is absolutely peculiar to England and to

communities under the direct influence of English practice. In all Western societies, Legislation, which is the

direct issue of the commands of the sovereign state, tends more and more to become the exclusive source of

law; but still in all Continental countries other authorities of various kinds are occasionally referred to, among

which are the texts of the Roman Corpus Juris, commentaries on Codes and other bodies of written law, the

unofficial writings of famous lawyers, and other branches of the vast literature of law holding at most a

secondary place in the estimation of the English Judges and Bar. Nowhere, however, is anything like the

same dignity as with us attributed to a decided 'case,' and I have found it difficult to make foreign lawyers

understand why their English brethren should bow so implicitly to what Frenchmen term the 'jurisprudence'

of a particular tribunal. From one point of view English law has doubtless suffered through this reluctance to

invent or imagine facts aS the groundwork of rules, and it will continue to bear the marks of the injury until

legislative rearrangement and restatement fully disclose the stores of common sense which are at present

concealed by its defects of language and form. On the other hand, these habits of the English Courts seem to

be closely connected with one of the most honourable characteristics of the English system, its extreme

carefulness about facts. Nowhere else in the world is there the same respect for a fact, unless the respect be of

English origin. The feeling is not shared by our European contemporaries, and was not shared by our remote

ancestors. It has been said and the remark seems to me a very just one that in early times questions of

fact are regarded as the simplest of all questions. Such tests of truth as Ordeal and Compurgation satisfy

men's minds completely and easily, and the only difficulty recognised is the discovery of the legal tradition

and its application to the results of the test. Up to a certain point no doubt our own mechanism for the

determination of a fact is also a mere artifice. We take as our criterion of truth the unanimous opinion of

twelve men on statements made before them. But then the mode of convincing, or attempting to convince,

them is exactly that which would have to be followed if it were sought to obtain a decision upon evidence

from the very highest human intelligence. The old procedure was sometimes wholly senseless, sometimes

only distantly rational; the modern English procedure is at most imperfect, and some of its imperfection

arises from the very constitution of human nature and human society. I quite concur, therefore, in the

ordinary professional opinion that its view of facts and its modes of ascertaining them are the great glory of

English law. I am afraid, however, that facts must always be the despair of the law reformer. Bentham seems

to me from several expressions to have supposed that if the English Law of Evidence were reconstructed 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 evergrowing miscellaneousness of all modern communities, and through the ever

quickening play of modern social movements. Possibly we may see English law take the form which

Bentham hoped for and laboured for; every successive year brings us in some slight degree nearer to this

achievement; and consequently, little as we may agree in his opinion that all questions of law are the effect of

some judicial delusion or legal abuse, we may reasonably expect them to become less frequent and easier of

solution. But neither facts nor the modes of ascertaining them tend in the least to simplify themselves, and in

no conceivable state of society will Courts of Justice enjoy perpetual vacation.

I have been at some pains to explain what sort of authority the Irish Brehon law did not, in my opinion,

possess. The 'law of nature' had lost all supernatural sanction, except so far as it coincided with the 'law of the

letter.' It had not yet acquired, or had very imperfectly acquired, that binding power which law obtains when

the State exerts the public force through Courts of Justice to compel obedience to it. Had it, then, any

authority at all; and if so, what sort of authority? Part of the answer to this question I endeavoured to give

three years ago ('Village Communities, in the East and West,' pp. 56, 57); and though much more might be

said on the subject, I defer it till another opportunity. So far as the Brehon law declared actual ancient and

indigenous practices, it shared in the obstinate vitality of all customs when observed by a society distributed

into corporate natural groups. But, besides this, it had another source of influence over men's minds, in the

bold and never flagging selfassertion of the class which expounded it. A portion of the authority enjoyed by

the Indian Brahminical jurisprudence is undoubtedly to be explained in the same way. The Brehon could not,

like the Brahmin, make any such portentous assertion as that his order sprang from the head of Brahma, that

it was an embodiment of perfect purity, and that the first teacher of its lore was a direct emanation from God.

But the Brehon did claim that St. Patrick and other great Irish saints had sanctioned the law which he

declared, and that some of them had even revised it. Like the Brahmin, too, he never threw away an

opportunity of affirming the dignity of his profession. In these lawtracts the heads of this profession are

uniformly placed, where Caesar 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

Sings. It is more than likely that the believing multitude ended by accepting these pretensions. From what we

know of that stage of thought we can hardly set limits to the amount of authority spontaneously conceded to

the utterances of a sole literary class. It must have struck many that the influence of the corresponding class

in our own modern society far exceeds anything which could have been asserted of it from the mere

consideration of our social mechanism. There is, perhaps, an impression abroad that the influence it exerts

increases as history goes on, an impression possibly produced and certainly strengthened by the brilliant

passages in which Lord Macaulay contrasted the wellpaid literary labour of his own day with the miseries of

the literary hack of Grub Street a century before. I think that this opinion, if broadly stated, is at the very least

doubtful. The class which, to use a modern neologism, 'formulates' the ideas dimly conceived by the

multitude which saves it mental trouble by collecting through generalisation, which is an essentially

laboursaving process, the scattered fragments of its knowledge and experience has not always consisted

of philosophers, historians, and novelists, but had earlier representatives in poets, priests, and lawyers. It is

not at all a paradoxical opinion that these last were its most powerful members. For, nowadays, it has to cope

with the critical faculty, more or less found everywhere, and enormously strengthened by observation of the

methods of physical discovery. No authority of our day is possibly comparable with that of the men who, in

an utterly uncritical age, simply said of a legal rule, 'So it has been laid down by the learned,' or used the still

While, however, I fully believe that the Brehon law possessed great authority, I think also that it was in all

probability irregularly and intermittently enforced, and that partial and local departures from it were common

all over ancient Ireland. Anybody who interested himself in the question of its practical application would

have to encounter the very problems which are suggested by the Brahminical Hindoo law. The student of this

last system, especially if he compares it with the infinity of local usage practised in India, is constantly asking

himself how far was the law of the Brahmin jurists observed before the English undertook to enforce it

through their tribunals? The Editor of the Third Volume of the Ancient Laws of Ireland has given a very

apposite example of a problem of the same kind (iii. 146), by extracting from the Carew Papers the story of a

famous dispute as to the headship of the great irish house of O'Neill. Con O'Neill, its chief, had two sons,

Matthew and Shane. Matthew O'Neill was heir to Con O'Neill's earldom of Tyrone, according to the

limitations of the patent. Shane O'Neill urged on the English Government that these limitations were void,

because the King, in granting the earldom, could not have been aware that Matthew O'Neill was an adulterine

bastard, having been in truth born of the wife of a smith in Dundalk. Shane O'Neill has been regarded as the

champion of purely Irish ideas (see Froude, 'English in Ireland,' I. 43); but though the rule of legitimacy upon

which he insisted conforms to our notions, it is directly contrary to the legal doctrine of the Book of Aicill,

which in one of its most surprising passages lays down formally the procedure by which the natural father

could bring into his family a son born under the alleged circumstances of Matthew O'Neill, on paying

compensation to the putative parent. Unless Shane O'Neill's apparent ignorance of this method of legitimation

was merely affected for the purpose of blinding the English Government, it would seem to follow that the

Book of Aicill, though its authorship was attributed to King Cormac, had not an universally recognised

I do not know that the omission of the English, when they had once thoroughly conquered the country, to

enforce the Brehon law through the Courts which they established, has ever been reckoned among the wrongs

of Ireland. But if they had done this. they would have effected the very change which at a much later period

they brought about in India, ignorantly, but with the very best intentions. They would have given immensely

greater force and a much larger sphere to a system of rules loosely and occasionally administered before they

armed them with a new authority. Even as it was, I cannot doubt that the English did much to perpetuate the

Brehon law in the shape in which we find it. The AngloNorman settlement on the east coast of Ireland acted

like a running sore, constantly Stating the Celtic regions beyond the Pale, and deepening the confusion which

prevailed there. If the country had been left to itself, one of the great Irish tribes would almost certainly have

conquered the rest. All the legal ideas which, little conscious as we are of their source, come to us from the

existence of a strong central government lending its vigour to the arm of justice would have made their way

into the Brehon law; and the gap between the alleged civilisation of England and the alleged barbarism of

Ireland during much of their history, which was in reality narrower than is commonly supposed, would have

Before I close this chapter it is necessary to state that the Brehon law has not been unaffected by the two main

influences which have made the modern law of Western Europe different from the ancient, Christian morality

and Roman jurisprudence. It has been modified by Roman juridical ideas in some degree, though it would be

hazardous to lay down with any attempt at precision in what degree. I have trustworthy information that, in

the tracts translated but not yet published, a certain number of Roman legal maxims are cited, and one Rowan

jurisconsult is mentioned by name. So far as the published tracts afford materials for an opinion, I am

inclined to think that the influence of the Roman law has been very slight, and to attribute it not to study of

the writings of the Roman lawyers, but to contact with Churchmen imbued more Or less with Roman legal

notions. We may be quite sure that the Brehons were indebted to them for one conception which is present in

the tracts the conception of a Will; and we may probably credit the Church with the comparatively

advanced development of another conception which we find here the conception of a Contract. The origin

of the rules concerning testamentary bequest which are sometimes found in Western bodies of law otherwise

archaic has been much considered of late years; and the weight of learned opinion inclines strongly to the

view that these rules had universally their source in Roman law, but were diffused by the influence of the

Christian clergy. This assertion cannot be quite so confidently made of Contracts; but the sacredness of

bequests and the sacredness of promises were of about equal importance to the Church, as the donee of pious

gifts; and, as regards the Brehon law, it is plain upon the face of the published subtract which is chiefly

concerned with Contract, the Corus Bescna, that the material interests of the Church furnished one principal

motive for its compilation. The Corus Bescna, in which, I may observe, a certain confusion (not uncommon

in ancient law) may be remarked between contracts and grants, between the promise to give and the act or

operation of giving, contains some very remarkable propositions on the subject of contract. Here, and in other

parts of the Senchus Mor, the mischiefs of breach of contract are set forth in the strongest language. 'The

world would be in a state of confusion if verbal contracts were not binding.' 'There are three periods at which

the world dies: the period of a plague, of a general war, of the dissolution of verbal contracts.' 'The world is

worthless at the time of the dissolution of contracts.' At first sight this looks a good deal liker the doctrine of

the eighteenth century than of any century between the sixth and the sixteenth. Let us see, however, what

follows when the position thus broadly stated has to be worked out. We come, in the Corus Bescna, upon the

following attempt at classification, which I fear would have deeply shocked Jeremy Bentham and John

Austin: 'How many kinds of contracts are there?' asks the Brehon textwriter. 'Two,' is the answer. 'A valid

contract, and an invalid contract.' This, no doubt, is absurd, but the explanation appears to be as follows. The

principle of the absolute sacredness of contracts was probably of foreign origin, and was insisted upon for a

particular purpose. It was therefore laid down too broadly for the actual state of the law and the actual

condition of Irish Celtic society. Under such circumstances a treatise on Contract takes necessarily the form

in great measure of a treatise on the grounds of invalidity in contracts, on the manifold exceptions to an

overbroad general rule. Anciently, the power of contracting is limited on all sides. It is limited by the rights

of your. family, by the rights of your distant kinsmen, by the rights of your covillagers, 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

Something must be said on the extent to which Christian opinion has leavened these Brehon writings.

Christianity has certainly had considerable negative influence over them. It became no longer possible for the

Brehon to assert that the transgressor of his rules would incur a supernatural penalty, and the consequences of

this were no doubt important. But still, as you have seen, in the case of 'fasting on a man,' or 'sitting dharna,'

the heathen rule remained in the system, though its significance was lost. Again, one positive result of the

reception by the Brehons of the socalled 'law of the letter' appears to have been the development of a great

mass of rules relating to the territorial rights of the Church, and these constitute a very interesting department

of the Brehon law. But there has certainty been nothing like an intimate interpenetration of ancient Irish law

by Christian principle. If this kind of influence is to be looked for anywhere, it must be in the law of

Marriage, and the cognate branches of Divorce, Legitimacy, and Inheritance. These, however, are the very

portions of the Brehon law which have been dwelt upon by writers convinced that, as regards the relations of

the sexes, the primitive Irish were near akin to those Celts of Britain of whose practices Caesar had heard. (B.

G., v. 14.) The 'Book of Aicill' provides for the legitimation not only of the bastard, but of the adulterine

bastard, and measures the compensation to be paid to the putative father. The tract on 'Social Connections '

appears to assume that the temporary cohabitation of the sexes is part of the accustomed order of society, and

on this assumption it minutely regulates the mutual rights of the parties, showing an especial care for the

interests of the woman, even to the extent of reserving to her the value of her domestic services during her

residence in the common dwelling. One remark ought, however, to be made on these provisions of the

Brehon law. It is not inconceivable that, surprising as they are, they may be the index to a social advance.

Caesar plainly found the Celts of the Continent polygamous, living in families held together by stringent

Paternal Power. He, a Roman, familiar with a Patria Potestas as yet undecayed, thinks it worthy of remark

that the head of a Gallic household had the power of life and death over his wives as well as his children, and

notices with astonishment that, when a husband died under suspicious circumstances, his wives were treated

with the same cruelty as a body of household slaves at Rome whose master had been killed by an unknown

hand. (B. G., vi. 19.) Now, though very much cannot be confidently said about the transition (which,

nevertheless, is an undoubted fact) of many societies from polygamy to monogamy under influences other

than those of religion, it may plausibly be conjectured that here and there it had its cause in liberty of divorce.

The system which permitted a plurality of wives may have passed into the system which forbade more than

one wife at a time, but which did not go farther. The monogamy of the modern and Western world is, in fact,

the monogamy of the Romans, from which the license of divorce has been expelled by Christian morality.

There are hardly any materials for an opinion upon the degree of influence exercised by the Church over the

transformation of marriagerelations in Ireland, but there are several indications that the ecclesiastical rules

as to the conditions of a valid marriage established themselves very slowly among the ruder races on the

outskirts of what had been the Roman Empire. Mr Burton ('History of Scotland,' ii. 213), in speaking of the

number of illegitimate claimants who brought their pretensions to the Crown of Scotland before Edward the

First, observes: 'That they should have pushed their claims only shows that the Church had not yet absolutely

established the rule that from her and her ceremony and sacrament could alone come the union capable of

transmitting a right of succession to offspring.' The tract on 'Social Connexions' notices a 'first' wife, and the

recognition may be attributable to the Church, but on the whole my impression certainly is that the extremely

ascetic form under which Christianity was introduced into Ireland was unfavourable to its obtaining a hold on

popular morality. The common view seems to have been that chastity was the professional virtue of a special

class, for the Brehon tracts, which make the assumptions I have described as to the morals of the laity, speak

of irregularity of life in a monk or bishop with the strongest reprobation and disgust. At the present moment

Ireland is probably the one of all Western countries in which the relations of the sexes are most nearly on the

footing required by the Christian theory; nor is there any reasonable doubt that this result has been brought

about in the main by the Roman Catholic clergy. But this purification of morals was effected during the

period through which monks and monasticism were either expelled from Ireland or placed under the ban of

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 wellknown

juridical writers. There is, of course, evidence of Christian influence on Roman law in the disabilities

imposed on various classes of heretics and in the limitations of that liberty of divorce which belonged to the

older jurisprudence. But, even in respect of divorce, the modifications strike me as less than might have been

expected from what we know of the condition of opinion in the Roman world; and, as regards certain

improvements said to have been introduced by Christianity into the Imperial law of slavery, they were

probably quickened by its influence, but they began in principles which were of Stoical rather than of

Christian origin. I do not question the received opinion that Christianity greatly mitigated and did much to

abolish personal and predial slavery in the West, but the Continental lawyers of whom I spoke considerably

antedate its influence, and take far too little account of the prodigious effects subsequently produced by the

practical equality of all men within the pale of the Catholic priesthood. But I principally deprecate these

statements, which in some countries have almost become professional commonplaces, for two reasons. They

slur over a very instructive fact, the great unmalleability of all bodies of law. and they obscure an interesting

and yet unsettled, problem, the origin of the Canon law. The truth seems to be that the Imperial Roman law

did not satisfy the morality of the Christian communities, and this is the most probable reason why another

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

bloodrelationship implied, and how it arose; but there has been general agreement as to the fact I have

stated. The caution is perhaps needed that we must not form too loose a conception of the kinship which once

stood in the place of the multiform influences which are now the cement of human societies. It was regarded

as an actual bond of union, and in no respect as a sentimental one. The notion of what, for want of a better

phrase, I must call a moral brotherhood in the whole human race has been steadily gaining ground during the

whole course of history, and we have now a large abstract term answering to this notion Humanity, he

most powerful of the agencies which have brought about this broader and laxer view of kinship has

undoubtedly been Religion, and indeed one great Eastern religion extended it until for some purposes it

embraced all sentient nature. All this modern enlargement of the primitive conception of kinship must be got

rid of before we can bring it home to ourselves. There was no brotherhood recognised by our savage

forefathers except actual consanguinity regarded as a fact. If a man was not of kin to another there was

nothing between them. He was an enemy to be slain, or spoiled, or hated, as much as the wild beasts upon

which the tribe made war, as belonging indeed to the craftiest and the cruellest order of wild animals. It

would scarcely be too strong an assertion that the dogs which followed the camp had more in common with it

The tribes of men with which the student of jurisprudence is concerned are exclusively those belonging to the

races now universally classed, on the ground of linguistic affinities, as Aryan and Semitic. Besides these he

has at most to take into account that portion of the outlying mass of mankind which has lately been called

Uralian, the Turks, Hungarians, and Finns. The characteristic of all these races, when in the tribal state, is that

the tribes themselves, and all subdivisions of them, are conceived by the men who compose them as

descended from a single male ancestor. Such communities see the Family group with which they are familiar

to be made up of the descendants of a single living man, and of his wife or wives; and perhaps they are

accustomed to that larger group, formed of the descendants of a single recently deceased ancestor, which still

survives in India as a compact assemblage of bloodrelatives, though it is only known to us through the

traces it has left in our Tables of Inheritance. The mode of constituting groups of kinsmen which they see

proceeding before their eyes they believe to be identical with the process by which the community itself was

formed. Thus the theoretical assumption is that all the tribesmen are descended from some common ancestor,

whose descendants have formed subgroups, which again have branched off into others, till the smallest

group of all, the existing Family, is reached. I believe I may say that there is substantial agreement as to the

correctness of these statements so long as they are confined to the Aryan, Semitic, and Uralian races. At most

it is asserted that, among the recorded usages of portions of these races, there are obscure indications of

another and an earlier state of things. But then a very different set of assertions from these are made

concerning that large part of the human race which cannot be classed as Aryan, Semitic, or Uralian. It is, first

of all, alleged that there is evidence of the wide prevalence among them of ideas on the subject of

Consanguinity which are irreconcileable with the assumption of common descent from a single ancestor.

Next, it is pointed out that some small, isolated, and very barbarous communities perhaps long hidden in

inaccessible Indian valleys, or within the ring of a coral reef in the Southern Seas still follow practices

which it would be incorrect and unjust to call immoral, because, in the view we are considering, they are

older than morality. The suggestion is finally made that if these practices were, in an older stage of the

world's history, very much more widely extended than at present, the abnormal, nonAryan, nonSemitic,

nonUralian notions about kinship of which I have spoken would find their explanation. If, indeed, the

conclusion here pointed at expresses the truth, and if these practices were really at one time universal, it

would be an undeserved compliment to the human race to say that it once followed the ways of the lower

animals, since, in point of fact, all the lower animals do not follow the practices thus attributed to them. But,

whatever be the interest of such enquiries, they do not concern us till the Kinship of the higher races can be

distinctly shown to have grown out of the Kinship now known only to the lower, and even then they concern

us only remotely. No doubt several recent writers do believe in the descent of one form of consanguinity from

the other. Mr Lewis Morgan, of New York, the author of a remarkable and very magnificent volume on

'Systems of Consanguinity and Affinity in the Human Family,' published by the Smithsonian Institute at

Washington, reckons no less than ten stages (p: 486) through which communities founded on kinship have

passed before that form of the family was developed out of which the Aryan tribes conceive themselves to

have sprung. But Mr Morgan also says of the system known upon the evidence actually to prevail among the

Aryan, Semitic, and Uralian divisions of mankind that (p. 469) it 'manifestly proceeds upon the assumption of

the existence of marriage between single pairs, and of the certainty of parentage through the marriage

relation.' 'Hence,' he adds, 'it must have come into existence after the establishment of marriage between

A remark of considerable importance to the student of early usage has now to be made respecting the bond of

union recognised by these greater races. Kinship, as the tie binding communities together, tends to be

regarded as the same thing with subjection to a common authority. The notions of Power and Consanguinity

blend, but they in nowise SUpersede one another. We have a familiar example of this mixture of ideas in the

subjection of the smallest group, the Family, to its patriarchal head. Wherever we have evidence of such a

group, it becomes difficult to say whether the persons compiled in it are most distinctly regarded as kinsmen,

or as servile or semiservile dependents 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 deepseated instincts. But Mr Morgan's

researches seem to me to have supplied another partial explanation. He has found that among rude and

partially nomad communities great numbers of kindred, whom we should keep apart in mind, and distinguish

from one another in language, are grouped together in great classes and called by the same general names.

Every man is related to an extraordinary number of men called his brothers, to an extraordinary number

called his sons, to an extraordinary number called his uncles. Mr Morgan explains the fact in his own way,

but he points out the incidental convenience served by this method of classification and nomenclature.

Though the point may not at first strike us, kinship is a clumsy basis for communities of any size, on account

of the difficulty which the mind, and particularly the untutored mind, has in embracing all the persons bound

to any one man by tie of blood, and therefore (which is the important matter) connected with him by common

responsibilities and rights. A great extension and considerable relaxation of the notion of kinship gets over

the difficulty among the lower races, but it may be that, among the higher, Patriarchal Power answers the

same object. It simplifies the conceptions of kinship and of conjoint responsibility, first in the Patriarchal

We have next to consider the epoch, reached at some time by all the portions of mankind destined to

civilisation, at which tribal communities settle down upon a definite space of land. The liveliest account

which I have read of this process occurs in an ancient Indian record which has every pretension to

authenticity. In a very interesting volume published by the Government of Madras, and called 'Papers on

Mirasi Right' (Madras, 1862), there are printed some ancient Memorial Verses, as they are called, which

describe the manner in which the Vellalee, a possibly Aryan tribe, followed their chief into Tondeimandalam,

a region roughly corresponding with a state once famous in modern Indian history, Arcot. There the Vellalee

conquered and extirpated, or enslaved, some more primitive population and took permanent possession of its

territory. The poetess for the lines are attributed to a woman compares the invasion to the flowing of

the juice of the sugarcane over a flat surface. ('Mirasi Papers,' p. 233.) The juice crystallises, and the crystals

are the various villagecommunities. In the middle is one lump of peculiarly fine sugar, the place where is

the temple of the god. Homely as is the image, it seems to me in one respect peculiarly felicitous. It

represents the tribe, though moving in a fused mass of men, as containing within itself a principle of

coalescence which began to work as soon as the movement was over. The point is not always recollected.

Social history is frequently considered as beginning with the tribal settlement, and as though no principles of

union had been brought by the tribe from an older home. But we have no actual knowledge of any aboriginal

or autochthonous tribe. Wherever we have any approximately trustworthy information concerning the tribes

which we discern in the far distance of history, they have always come from some more ancient seat. The

Vellalee, in the Indian example, must have been agriculturists somewhere, since they crystallised at once into

It has long been assumed that the tribal constitution of society belonged at first to nomad communities, and

that, when associations of men first settled down upon land, a great change came over them. But the manner

of transition from nomad to settled life, and its effects upon custom and idea, have been too much described,

as it seems to me, from mere conjecture of the probabilities; and the whole process, as I have just observed,

has been conceived as more abrupt than such knowledge as we have would lead us to believe it to have been.

attention has thus been drawn off from one assertion on this subject which may be made, I think, upon

trustworthy evidence that, from the moment when a tribal community settles down finally upon a definite

space of land, the Land begins to be the basis of society in place of the Kinship. The change is extremely

gradual, and in some particulars it has not even now been fully accomplished, but it has been going on

through the whole course of history. The constitution of the Family through actual bloodrelationship is of

course an observable fact, but, for all groups of men larger than the Family, the Land on which they live tends

to become the bond of union between them, at the expense of Kinship, ever more and more vaguely

conceived. We can trace the development of idea both in the large and now extremely miscellaneous

aggregation s of men combined in States or Political Communities, and also in the smaller aggregations

collected in VillageCommunities and Manors, among whom landed property took its rise. The barbarian

invaders of the Western Roman Empire, though not uninfluenced by former settlements in older homes,

brought back to Western Europe a mass of tribal ideas which the Roman dominion had banished from it; but,

from the moment of their final occupation of definite territories, a transformation of these ideas began. Some

years ago I pointed out ('Ancient Law,' pp. 103 et seq.) the evidence furnished by the history of International

Law that the notion of territorial sovereignty, which is the basis of the international system, and which is

inseparably connected with dominion over a definite area of land, very slowly substituted itself for the notion

of tribal sovereignty. Clear traces of the change are to be seen in the official style of kings. Of our own kings,

King John was the first who always called himself King of England. (Freeman, 'Norman Conquest,' I. 82, 84.)

His predecessors commonly or always called themselves Kings of the English. The style of the king reflected

the older tribal sovereignty for a much longer time in France. The title of King of France may no doubt have

come into use in the vernacular soon after the accession of the dynasty of Capet, but it is an impressive fact

that, even at the time of the Massacre of St. Bartholomew, the Kings of France were still in Latin 'Reges

Francorum;' and Henry the Fourth only abandoned the designation because it could not be got to fit in

conveniently on his coins with the title of King of Navarre, the purely feudal and territorial principality of the

Bourbons. (Freeman, loc. cit.) We may bring home to ourselves the transformation of idea in another way.

England was once the country which Englishmen inhabited. Englishmen are now the people who inhabit

England. The descendants of our forefathers keep up the tradition of kinship by calling themselves men of

English race, but they tend steadily to become Americans and Australians. I do not say that the notion of

consanguinity is absolutely lost; but it is extremely diluted, and quite subordinated to the newer view of the

territorial constitution of nations. The blended ideas are reflected in such an expression as 'Fatherland,' which

is itself an index to the fact that our thoughts cannot separate national kinship from common country. No

doubt it is true that in our day the older conception of national union through consanguinity has seemed to be

revived by theories which are sometimes called generally theories of Nationality, and of which particular

forms are known to us as PanSclavism and PanTeutonism. Such theories are in truth a product of modern

philology, and have grown out of the assumption that linguistic affinities prove community of blood. But

wherever the political theory of Nationality is distinctly conceived, it amounts to a claim that men of the

same race shall be included, not in the same tribal, but in the same territorial sovereignty.

We can perceive, from the records of the Hellenic and Latin citycommunities, that there, and probably over

a great part of the world, the substitution of common territory for common race as the basis of national union

was slow, and not accomplished without very violent struggles. 'The history of political ideas begins,' I have

said elsewhere, 'with the assumption that kinship in blood is the sole possible ground of community in

political functions; nor is there any of those subversions of feeling which we emphatically term revolutions so

startling and so complete as the change which is accomplished when some other principle such as that, for

instance, of local contiguity establishes itself for the first time as the basis of common political action.'

The one object of ancient democracies was, in fact, to be counted of kin to the aristocracies, simply on the

ground that the aristocracy of old citizens, and the democracy of new, lived within the same territorial

circumscription. The goal was reached in time both by the Athenian Demos and by the Roman Plebs; but the

complete victory of the Roman popular party was the source of influences which have not spent themselves at

the present moment, since it is one of the causes why the passage from the Tribal to the Territorial conception

of Sovereignty was much more easy and imperceptible in the modern than in the older world. I have before

stated that a certain confusion, or at any rate indistinctness of discrimination, between consanguinity and

common subjection to power is traceable among the rudiments of Aryan thought, and no doubt the mixture of

notions has helped to bring about that identification of common nationality with common allegiance to the

King, which has greatly facilitated the absorption of new bodies of citizens by modern commonwealths. But

the majesty with which the memory of the Roman Empire surrounded all kings has also greatly contributed to

it, and without the victory of the Roman Plebeians there would never have been, I need hardly say, any

The new knowledge which has been rapidly accumulating of late years enables us to track precisely the same

transmutation of ideas amid the smaller groups of kinsmen settled on land and forming, not Commonwealths,

but VillageCommunities. The historian of former days laboured probably under no greater disadvantage

than that caused by his unavoidable ignorance of the importance of these communities, and by the necessity

thus imposed upon him of confining his attention to the larger assemblages of tribesmen. It has often, indeed,

been noticed that a Feudal Monarchy was an exact counterpart of a Feudal Manor, but the reason of the

correspondence is only now beginning to dawn upon us, which is, that both of them were in their origin

bodies of assumed kinsmen settled on land and undergoing the same transmutation of ideas through the fact

of settlement. The history of the larger groups ends in the modern notions of Country and Sovereignty; the

history of the smaller in the modern notions of Landed Property. The two courses of historical development

The naturally organised, selfexisting, VillageCommunity 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 villagecommunity or Mark; 'This lowest political unit was at first, here (i. e. in England) as

elsewhere, formed of men bound together by a tie of kindred, in its first estate natural, in a later stage either

of kindred natural or artificial.' The evidence, however, is now quite ample enough to furnish us with strong

indications not only of the mode in which these communities began, but of the mode in which they

transformed themselves. The world, in fact, contains examples of cultivating groups in every stage, from that

in which they are actually bodies of kinsmen, to that in which the merest shadow of consanguinity survives

and the assemblage of cultivators is held together solely by the land which they till in common. The great

steps in the scale of transition seem to me to be marked by the Joint Family of the Hindoos, by the

HouseCommunity of the Southern Sclavonians, and by the true VillageCommunity, as it is found first in

Russia and next in India. The group which I have placed at the head, the HindooJoint Family, is really a

body of kinsmen, the natural and adoptive descendants of a known ancestor. Although the modern law of

India gives such facilities for its dissolution that it is one of the most unstable of social compounds, and rarely

lasts beyond a couple of generations, still, so long as it lasts, it has a legal corporate existence, and exhibits,

in the most perfect state, that community of proprietary enjoyment which has been so often observed, and (let

me add) so often misconstrued, in cultivating societies of archaic type. 'According to the true notion of a joint

undivided Hindoo family,' said the Privy Council, 'no member of the family, while it remains undivided, can

predicate of the joint undivided property that he, that particular member, has a certain definite share.... The

proceeds of undivided property must be brought, according to the theory, into the common chest or purse,

and then dealt with according to the modes of enjoyment of the members of an undivided family.' (Per Lord

Westbury, Appovier v. Rama Subba Aiyan, 11 Moore's Indian Appeals, 75.) While, however, these Hindoo

families, 'joint in food, worship, and estate,' are constantly engaged in the cultivation of land, and dealing

with its produce 'according to the modes of enjoyment of an undivided family,' they are not

villagecommunities. They are only accidentally connected with the land, however extensive their landed

property may be. What holds them together is not land, but consanguinity, and there is no reason why they

should not occupy themselves, as indeed they frequently do, with trade or with the practice of a handicraft.

The HouseCommunity, which comes next in the order of development, has been examined by M. de

Laveleye (P. et 8. F. P., p. 201), and by Mr. Patterson ('Fortnightly Review,' No. xliv.), in Croatia, Dalmatia,

and Illyria, countries which, though newer 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 HouseCommunities surviving among the Sclavonians, were

observed by M. Dupin, in 1840, in the French Department of the Ni�vre, and were able to satisfy him that

even in 1500 they had been accounted ancient. These HouseCommunities seem to me to be simply the

JointFamily 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

we always in theory the centre of Hindoo family life; the collective enjoyment of property and its

administration by an elected manager. Nevertheless, many instructive change s have begun which show how

such a group modifies itself in time The community is a community of kinsmen; but, though the com m on

ancestry is probably to a great extent real, the tradition has become weak enough to admit of considerable

artificiality being introduced into the association, as it is found at any given moment, through the absorption

of strangers from outside. Meantime, the land tends to become the true basis of the group; it is recognized as

of preeminent importance to its vitality, and it remains common property, while private ownership is

allowed to show itself in moveables and cattle. In the true VillageCommunity, the common dwelling and

common table which belong alike to the Joint Family and to the HouseCommunity, are no longer to be

found. The village itself is an assemblage of houses, contained indeed within narrow limits, but composed of

separate dwellings, each jealously guarded from the intrusion of a neighbour. The village lands are no longer

the collective property of the community; the arable lands have been divided between the various households;

the pasture lands have been partially divided; only the waste remains in common. In comparing the two

extant types of VillageCommunity 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 covillagers. 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 redistributed, and that the village

artificer, even should he carry his tools to a distance, works for the profit of his covillagers. In India, though

the villagers are still a brotherhood, and though membership in the brotherhood separates a man from the

world outside, it is very difficult to say in what the tie is conceived as consisting. Many palpable facts in the

composition of the community are constantly inconsistent with the actual descent of the villagers from any

one ancestor. Accordingly, private property in land has grown up, though its outlines are not always clear; the

periodical redivision of the domain has become a mere tradition, or is only practised among the ruder

portions of the race; and the results of the theoretical kinship are pretty much confined to the duty of

submitting to common rules of cultivation and pasturage, of abstaining from sale or alienation without the

consent of the covillagers, and (according to some opinions) of refraining from imposing a rackrent upon

members of the same brotherhood. Thus, the Indian VillageCommunity is a body of men held together by

the land which they occupy: the idea of common blood and descent has all but died out. A few steps more in

the same course of development and these the English law is actually hastening will diffuse the

familiar ideas of our own country and time throughout India; the VillageCommunity 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 villagecommunities originally settled by the

Uffingas, Gillingas, and Totingas, three Teutonic jointfamilies. But assuredly all men who live in Tooting

do not consider themselves brothers; they barely acknowledge duties imposed on them by their mutual

The 'natural communism' of the primitive cultivating groups has sometimes been described of late years, and

more particularly by Russian writers, as an anticipation of the most advanced and trenchant democratic

theories. No account of the matter could in my judgment be more misleading. If such terms as 'aristocratic'

and 'democratic' are to be used at all, I think it would be a more plausible statement that the transformation

and occasional destruction of the villagecommunities 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 villagecommunities from what may be believed to have been the primitive type, appears to me to

lie in the ancient Russian practice of colonisation, by which swarms were constantly thrown off from the

older villages to settle somewhere in the enormous wastes; but the Indian communities, placed in a region of

which the population has from time immemorial been far denser than in the North, bear many marks of past

contests between the ancient brotherhood of kinsmen and a class of dependants outside it struggling for a

share in the land, or for the right to use it on easy terms. I am aware that there is some grotesqueness at first

sight in a comparison of Indian villagers, in their obscurity and ignorance, and often in their squalid misery,

to the citizens of Athens or Rome; yet no tradition concerning the origin of the Latin and Hellenic states

seems more trustworthy than that which represents them as formed by the coalescence of two or more

villagecommunities, 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

villagecommunity, are unconsciously striving to adjust, by a beneficent arbitration, the claims and

counterclaims of the Eupatrids and the Demos, of the Populus and the Plebs. There is even reason to think

that one wellknown result of long civil contention in the great states of antiquity has shown itself every now

and then in the villagecommunities, and that all classes have had to submit to that sort of authority which

assumed its most innocent shape in the office of the Roman Dictator, its more odious in the usurpation of the

Greek Tyrant. The founders of a part of one modern European aristocracy, the Danish, are known to have

been originally peasants who fortified their houses during deadly village struggles and then used their

Such commencements of nobility as that to which I have just referred, appear, however, to have been

exceptional in the Western world, and other causes must be assigned for that great transformation of the

VillageCommunity 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 ('VillageCommunities 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 VillageCommunity into the Fief; and I shall presently say much on the new light which the

ancient laws of Ireland have thrown on the early stages of the process. At present I will only observe that,

when completed, its effect was to make the Land the exclusive bond of union between men. The Manor or

Fief was a social group wholly based upon the possession of land, and the vast body of feudal rules which

clustered round this central fact are coloured by it throughout. That the Land is the foundation of the feudal

system has, of course, been long and fully recognised; but I doubt whether the place of the fact in history has

been sufficiently understood. It marks a phase in a course of change continued through long ages and in

spheres much larger than that of landed property. At this point the notion of common kinship has been

entirely lost. The link between Lord and Vassal produced by Commendation is of quite a different kind from

that produced by Consanguinity. When the relation which it created had lasted some time, there would have

been no deadlier insult to the lord than to attribute to him a common origin with the great bulk of his tenants.

Language still retains a tinge of the hatred and contempt with which the higher members of the feudal groups

regarded the lower; and the words of abuse traceable to this aversion are almost as strong as those traceable to

differences of religious belief. There is, in fact, little to choose between villain, churl, miscreant, and boor.

The breakup 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

rewrite most of modern history, economical as well as political. It is not, however, difficult to see that

without the ruin of the smaller social groups, and the decay of the authority which, whether popularly or

autocratically governed, they possessed over the men composing them, we should never have had several

great conceptions which lie at the base of our stock of thought. Without this collapse, we should never have

had the conception of land as an exchangeable commodity, differing only from others in the limitation of the

supply; and hence, without it, some famous chapters of the science of Political economy would not have been

written. Without it, we should not have had the great increase in modern times of the authority of the

Stateone of many names for the more extensive community held together by common country.

Consequently, we should not have had those theories which are the foundation of the most recent systems of

jurisprudence the theory of Sovereignty, or (in other words) of a portion in each community possessing

unlimited coercive force over the rest and the theory of Law as exclusively the command of a sovereign

One or Number. We should, again, not have had the fact which answers to these theories the

everincreasing 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

In saying that the now abundant phenomena of primitive ownership open to our observation strongly suggest

that the earliest cultivating groups were formed of kinsmen, that these gradually became bodies of men held

together by the land which they cultivated, and that Property in Land (as we now understand it) grew out of

the dissolution of these latter assemblages, I would not for a moment be understood to assert that this series

of changes can be divided into stages abruptly separated from one another. The utmost that can be affirmed is

that certain periods in this history are distinguished by the predominance, though not the exclusive existence,

of ideas proper to them. Here, as elsewhere, the world is full of 'survivals,' and the view of society as held

together by kinship still survives when it is beginning to be held together by land. Similarly, the feudal

conception of social relations still exercises. powerful influence when land has become a merchantable

commodity. There is no country in which the theory of land as a form of property like any other has been

more unreservedly accepted than our own. Yet English lawyers live in faece feodorum. Our law is saturated

with feudal principles, and our customs and opinions are largely shaped by them. Indeed, within the last few

years we have even discovered that vestiges of the villagecommunity have not been wholly effaced from

The caution that the sequence of these stages does not imply abrupt transition from any one to the next seems

to me especially needed by the student of the Ancient Laws of Ireland. Dr Sullivan, of whose Introduction to

the lately published lectures of O'Curry I have already spoken, dwells with great emphasis on the existence of

private property among the ancient Irish, and on the jealousy with which it was guarded. But though it is very

natural that a learned Irishman, stung by the levity which has denied to his ancestors all civilised institutions,

should attach great importance to the indications of private ownership in the Brehon law, I must say that they

do not, in my judgment, constitute its real interest. The instructiveness of the Brehon tracts, at least to the

student of legal history, seems to me to arise from their showing that institutions of modern stamp may be in

existence with a number of rules by their side which savour of another and a greatly older order of ideas. It

cannot be doubted, I think, that the primitive notion of kinship, as the cement binding communities together,

survived longer among the Celts of Ireland and the Scottish Highlands than in any Western society, and that

it is stamped on the Brehon law even more clearly than it is upon the actual landlaw of India. It is perfectly

true that the form of private ownership in land which grew out of the appropriation of portions of the tribal

domain to individual households of tribesmen is plainly recognised by the Brehon lawyers; yet the rights of

private owners are limited by the controlling rights of a brotherhood of kinsmen, and the control is in some

respects even more stringent than that exercised over separate property by an indian villagecommunity. It is

also true that another form of ownership in land, that which had its origin in the manorial authority of the lord

over the cultivating group, has also begun to show itself; yet, though the Chief of the Clan is rapidly climbing

to a position answering to the Lordship of a Manor, he has not fully ascended to it, and the most novel

information contained in the tracts is that which they supply concerning the process of ascent.

The first instructive fact which strikes us on the threshold of the Brehon law is, that the same word, 'Fine,' or

Family, is applied to all the subdivisions of Irish society. It is used for the Tribe in its largest extension as

pretending to some degree of political independence, and for all intermediate bodies down to the Family as

we understand it, and even for portions of the Family (Sullivan, 'Introduction, clxii). It seems certain that

each of the various groups into which ancient Celtic society was divided conceived itself as descended from

some one common ancestor, from whom the name, or one of the names, of the entire body of kinsmen was

derived. Although this assumption was never in ancient Ireland so palpable a fiction as the affiliation of

Greek races or communities on an heroic eponymous progenitor, it was probably at most true of the Chief

and his house so far as regarded the Irish Tribe taken as a political unit. But it is probable that it was

occasionally, and even often true of the smaller group, the Sept, subTribe, 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

AngloIrish judges called him in the famous 'Case of Gavelkind,' the caput cognationis.

Not only was the Tribe or Sept named after this eponymous ancestor, but the territory which it occupied also

derived from him the name which was in commonest use. I make this remark chiefly because a false

inference has been drawn from an assertion of learned men concerning the connection between names of

families and names of places, which properly understood is perfectly sound. It has been laid down that,

whenever a family and place have the same name, it is the place which almost certainly gave its name to the

family. This is no doubt true of feudalised countries, but it is not true of countries as yet unaffected by

feudalism. It is likely that such names as 'O'Brien's Country' and 'Macleod's Country' are as old as any

appropriation of land by man; and this is worth remembering when we are tempted to gauge the intelligence

of an early writer by the absurdity of his etymologies. 'Hibernia' from an eponymous discoverer, 'Hyber,'

sounds ridiculous enough; but the chronicler who gives it may have been near enough the age of tribal society

to think that the connection between the place and the name was the most natural and probable he could

suggest. Even the most fanciful etymologies of the Greeks, such as Hellespont, from Helle, may have been

'survivals' from a primitive tribal system of naming places. In the relation between names and places, as in

much more important matters, feudalism has singularly added to the importance of land.

Let me now state the impression which, partly from the examination of the translated texts, legal and

nonlegal, and partly by the aid of Dr. Sullivan's Introduction, I have formed of the agrarian organisation of

an Irish Tribe. It has been long settled, in all probability, upon the tribal territory. It is of sufficient size and

importance to constitute a political unit, and possibly at its apex is one of the numerous chieftains whom the

Irish records call Kings. The primary assumption is that the whole of the tribal territory belongs to the whole

of the tribe, but in fact large portions of it have been permanently appropriated to minor bodies of tribesmen.

A part is allotted in a special way to the Chief as appurtenant to his office, and depends from Chief to Chief

according to a special rule of succession. Other portions are occupied by fragments of the tribe, some of

which are under minor chiefs or 'flaiths,' while others, though not strictly ruled by a chief, have somebody of

a noble class to act as their representative. All the unappropriated tribelands are in a more especial way the

property of the tribe as a whole, and no portion can theoretically be subjected to more than a temporary

occupation. Such occupations are, however, frequent, and among the holders of tribeland, 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 tribeland is not occupied at all, but constitutes, to

use the English expression, the 'waste' of the tribe. Still this waste is constantly brought under tillage or

permanent pasture by settlements of tribesmen, and upon it cultivators of servile status are permitted to squat,

particularly towards the border. It is the part of the territory over which the authority of the Chief tends

steadily to increase, and here it is that he settles his 'fuidhir,' or strangertenants, a very important class

the outlaws and 'broken' men from other tribes who come to him for protection, and who are only connected

with their new tribe by their dependence on its chief, and through the responsibility which he incurs for them.

There is probably great uniformity in the composition of the various groups occupying, permanently or

temporary, the tribal territory. Each seems to be more or less a miniature of the large tribe which includes

them all. Each probably contains freemen and slaves, or at all events men varying materially in personal

status, yet each calls itself in some sense a family. Each very possibly has its appropriated land and its waste,

and conducts tillage and grazing on the same principles. Each is either under a Chief who really represents

the common ancestor of all the free kinsmen, or under somebody who has undertaken the responsibilities

devolving according to primitive social idea upon the natural head of the kindred. In enquiries of the class

upon which we are engaged the important fact which I stated here three years ago should always be borne in

mind. When the first English emigrants settled in New England they distributed themselves in village

communities; so difficult is it to strike out new paths of social life and new routes of social habit. It is all but

certain that, in such a society as that of which we are speaking, one single model of social organisation and

social practice would prevail, and none but slight or insensible departures from it would be practicable or

But still the society thus formed is not altogether stationary. The temporary occupation of the common

tribeland tends to become permanent, either through the tacit sufferance or the active consent of the

tribesmen. Particular families manage to elude the theoretically periodical redivision of the common

patrimony of the group; others obtain allotments with its consent as the reward of service or the appanage of

office; and there is a constant transfer of lands to the Church, and an intimate intermixture of tribal rights

with ecclesiastical rights. The establishment of Property in Severalty is doubtless retarded both by the

abundance of land and by the very law under which, to repeat the metaphor of the Indian poetess, the tribal

society has crystallised, since each family which has appropriated a portion of tribeland tends always to

expand into an extensive assemblage of tribesmen having equal rights. But still there is a cooperation of

causes always tending to result in Several Property, and the Brehon law shows that by the time it was put into

shape they had largely taken effect. As might be expected, the severance of land from the common territory

appears to have been most complete in the case of Chiefs, many of whom have large private estates held

under ordinary tenure in addition to the demesne specially attached to their signory.

Such is the picture of Irish tribal organisation in relation to the land which I have been able to present to my

own mind. All such descriptions must be received with reserve: among other reasons, because even the

evidence obtainable from the lawtracts is still incomplete. But if the account is in any degree correct, all

who have attended to this class of subjects will observe at once that the elements of what we are accustomed

to consider the specially Germanic land system are present in the territorial arrangements of the Irish tribe.

Doubtless there are material distinctions. Kinship as yet, rather than landed right, knits the members of the

Irish groups together. The Chief is as yet a very different personage from the Lord of the Manor. And there

are no signs as yet even of the beginnings of great towns and cities. Still the assertion, which is the text of Dr

Sullivan's treatise, may be hazarded without rashness, that everything in the Germanic has at least its embryo

in the Celtic land system. The study of the Brehon law leads to the same conclusion pointed at by so many

branches of modern research. It conveys a stronger impression than ever of a wide separation between the

Aryan race and races of other stocks, but it suggests that many, perhaps most, of the differences in kind

alleged to exist between Aryan subraces are really differences merely in degree of development. It is to be

hoped that contemporary thought will before long make an effort to emancipate itself from those habits of

levity in adopting theories of race which it seems to have contracted. Many of these theories appear to have

little merit except the facility which they give for building on them inferences tremendously out of proportion

It has been very commonly believed that, before the agrarian measures of James the First, Ireland was one of

the countries in which private property in land was invested with least sacredness, and in which forms of

ownership generally considered as barbarous most extensively prevailed. Spenser and Davis certainly suggest

this opinion, and several modern writers have adopted it. The Brehon lawtracts prove, however, that it can

only be received with considerable qualification and modification, and they show that private property, and

especially private property in land, had long been known in Ireland at the epoch to which they belong, having

come into existence either through the natural disintegration of collective ownership or through the severance

of particular estates from the general tribal domain. Nevertheless it cannot, I think, be doubted that at the

period to which the tracts are an index much land was held throughout Ireland under rules or customs

savouring of the ancient collective enjoyment, and this I understand Dr Sullivan to allow. (Introduction, p.

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 AngloIrish 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 redistribution of all the

lands of the Sept. He did not divide the estate of the dead man among his children, but used it to increase the

allotments of the various households of which the Sept was made up. The Judges treated both Tanistry and

Gavelkind as systems of succession after death, of a peculiarly barbarous and mischievous kind; and, as

systems of succession, I shall consider them hereafter. But all systems of succession after death bear a close

relation to ancient modes of enjoyment during life; for instance, in the Joint Undivided Family of the

Hindoos, the stirpes, or stocks, which are only known to European law as branches of inheritors, are actual

divisions of the family, and live together in distinct parts of the common dwelling. ('Calcutta Review' July

1874, p. 208) The socalled Irish Gavelkind belongs to a class of institutions very common in the infancy of

law; it is a contrivance for securing comparative equality among the joint proprietors of a common fund. The

redistribution here takes place at the death of a head of a household; but if equality were secured by what is

practically the same process viz., redivision after a fixed period of years an institution would be

produced which has not quite died out of Europe at the present moment, and of which there are traditions in

all old countries. At the same time i have no doubt that, when the Irish Gavelkind was declared illegal, it was

very far from being the only system of succession known to Ireland except Tanistry, and i th ink it probable

that many different modes of enjoyment and inheritance were abolished by the decision giving the land to the

It was the actual observation of peculiar agricultural usages, special methods of cultivation, and abnormal

rules of tenure, which mainly enabled G. L. Von Maurer to restore the German Mark to knowledge; and it

was by using Von Maurer's results as his key that Nasse was able to decipher the scattered references to the

'Agricultural Community of the Middle Ages' in a variety of English documents. I venture to think that this

class of observation has not been carried far enough in Ireland to yield material for a confident opinion, but

there certainly seem to be vestiges of ancient collective enjoyment in the extensive prevalence of 'rundale'

holdings in parts of the country. Under this system a definite area of land is occupied by a group of families.

In the form now most common, the arable lands are held in severalty, while pasture and bog are in common.

But as lately as fifty years since, cases were frequent in which the arable land was divided into farms which

shifted among the tenantfamilies periodically, and sometimes annually. Even when no such division was

made, a wellknown relic of the Marksystem, as it showed itself in Germany and England, was occasionally

found : the arable portion of the estates was composed of three different qualities of soil, and each tenant had

a lot or lots in the land of each quality, without reference to position. What was virtually the same system of

tenure prevailed quite recently in the Scottish Highlands. I have ascertained that the families which formed

the villagecommunities only just extinct in the Western Highlands had the lands of the village redistributed

among them by lot at fixed intervals of time; and I gather from Mr Skene's valuable note on 'Tribe

Communities in Scotland' (appended to the second volume of his edition of Fordun's Chronicle), that he

believes this system of redivision to have been once universal, or at least widely extended, among the

It is to be observed that (so far as I am able to learn) the Irish holdings in 'rundale' are not forms of property,

but modes of occupation. There is always some person above who is legally owner of all the land held by the

group of families, and who, theoretically, could change the method of holding, although, practically, popular

feeling would put the greatest difficulties in his way. We must bear in mind, however, that archaic kinds of

tenancy are constantly evidence of ancient forms of proprietorship. This is so in countries in which superior

ownership has arisen through the natural course of events through purchase from small allodial proprietors,

through colonisation of village wastelands become in time the lord's waste, or (in an earlier state of society)

through the sinking of whole communities of peasants into villeinage, and through a consequent

transformation of the legal theory of their rights. But all this process of change would be gravely

misconstrued if it were supposed that, because a Chief or Lord had come to be recognised as legal owner of

the whole tribal domain, or of great portions of it, he therefore altered the accustomed methods of occupation

and cultivation, or (as some would even seem to think) he began at once to regard the occupying peasantry as

modern lessees or modern tenants at will. No doubt the ancient type of ownership long served as the model

for tenancy; and the common holdings, dying out as property, survived as occupation. And, if this were the

case in other countries, much more would it be so in Ireland, where property has changed hands so often and

so violently; where during whole centuries, the owners of land neither regarded, nor were in a position to

regard, the occupiers save as payers of rent and dues; and where the conception of a landlord acting on his

legal ownership with a view to improvement and increase of production is altogether modern.

The chief Brehon lawtract, which sets forth the mutual rights of the collective tribe and of individual

tribesmen or households of tribesmen in respect of tribal property, is called the Corus Bescna, and is printed

in the Third Volume of the official edition. It presents great difficulties. I quite agree with the Editors that the

commentary and glosses constantly contradict and obscure the text, either because the commentators did not

understand it or because they belonged to a later period and a different stage of legal relations. But the most

serious doubt which occurs to the student of the text arises from the strong and palpable bias of the compiler

towards the interests of the Church; indeed, part of the tract is avowedly devoted to the law of Church

property and of the organisation of religious houses. When this writer affirms that, under certain

circumstances, a tribesman may grant or contract away tribal land, his ecclesiastical leaning constantly

suggests a doubt as to his legal doctrine. Does he mean to lay down that the land may be parted with

generally and in favour of anybody, or only that it may be alienated in favour of the Church? This difficulty

of construction has an interest of its own. I am myself persuaded that the influence of the Christian Church on

law has been very generally sought for in a wrong quarter, and that historians of law have too much

overlooked its share in diffusing the conceptions of free contract, individual property, and testamentary

succession, through the regions beyond the Roman Empire which were peopled by communities held together

by the primitive tie of consanguinity. It is generally agreed among scholars that Churchmen introduced these

races to wills and bequests; the Brehon tracts suggest to me at least that, along with the sacredness of

bequests, they insisted upon the sacredness of contracts; and it is well known that, in the Germanic countries,

their ecclesiastical societies were among the earliest and largest grantees of public or 'folk' land (Stubbs,

'Constitutional History ', vol. i. p. 154). The Will, the Contract, and the Separate Ownership were in fact

indispensable to the Church as the donee of pious gifts; and they were also essential and characteristic

elements in the civilisation amid which the Church had been reared to maturity. It is possible that the

compiler of the Corus Bescna may have been an ecclesiastic, as he certainly would have been in any society

except the Irish; but, if he were a lawyer, he writes aS a lawyer would state the case on behalf of a favourite

and important client. Let me add that all the Brehon writers seem to me to have a bias towards private or

several, as distinguished from collective, property. No doubt it was then, as always, the great source of legal

business, and it may have seemed to them, and it possibly was, the index to such advance in civilisation as

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 bloodrelatives, which

has been referred to by me several times before, is formed by the continuance of the family union through

several, and it may be through an indefinite number of generations. The rule throughout most of the civilised

world is that, for all purposes of law, families are broken up into individuals or dissolved into a number of

new families by the death of their head. But this is not necessary the case. The group made up of those whom

we vaguely call our relatives of our brothers, nephews, greatuncles, uncles, and cousins, no less than

those related to us in the ascending and descending lines might very well, after any number of deaths,

remain knitted together not only by blood and affection, but by mutual rights and duties prescribed or

sanctioned by the law. An association of this sort is well known to the law of India as the Joint Undivided

Family, or, to give the technical description, the Family, 'joint in food, worship, and estate.' If a Hindoo has

become the root of a family it is not necessarily separated by his death; his children continue united for legal

purposes as a corporate brotherhood, and some definite act of one or more of the brethren is required to effect

a dissolution of the plexus of mutual rights and a partition of the family property. The family thus formed by

the continuance of several generations in union is identical in outline with a group very familiar to the

students of the older Roman law the Agnatic Kindred. The Agnates were that assemblage of persons who

would have been under the patriarchal authority of some common ancestor, if he had lived long enough to

exercise it. The Joint Family of the Hindoos is that assemblage of persons who would have joined in the

sacrifices at the funeral of some common ancestor, if he had died in their lifetime. In the last case the

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, selfsustaining 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

landowning body; it has 'live chattels and dead chattels,' distinguished from those of individual tribesmen.

('Ancient Laws of Ireland,' ii. 289.) Nor is it a purely cultivating body; it may follow a professional calling.

(Ibid., iii. 4951.) A portion of the tribal domain, probably the arable and choice pasture lands, has been

allotted to separate households of tribesmen, but they hold their allotments subject to the controlling rights of

the entire brotherhood, and the primary or fundamental rule is that they are to keep their shares of tribeland

intact. 'Every tribesman is able to keep his tribeland; 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

tribeland 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 tribeland allotted to him; but what are the circumstances, and what the quantity, are points on which we

cannot venture to make any precise statement, so obscure and contradictory are the rules set forth. But the

grantee primarily contemplated is certainly the Church, though it seems clear that there is a general power of

alienation, either with the consent of the entire tribal brotherhood or under pressure of strong necessity. It

further appears to be beyond question that the tribesman has considerably greater power of disposition over

property which he has acquired than over property which has devolved on him as a member of a tribe, and

that he has more power over acquisitions made by his own unaided industry than over acquisitions made

through profits arising from the cultivation of tribal land. 'No person should grant land except such as he has

purchased himself, unless by the common consent of the tribe. ('Ancient Laws of Ireland,' iii. 52, 53.) 'He

who has not sold or bought (i.e., he who keeps his tribeland as he obtained it) is allowed to make grants, each

according to his dignity (i.e., as the commentator explains, to the extent of onethird or onehalf of his

tribeland).' 'He who neither sells nor purchases may give as far as the third of his tribeshare in case of little

necessity and onehalf in case of great necessity' ('Ancient Laws of Ireland,'iii. 47.) 'If it be land that acquires

it, it is onehalf;... if he be a professional man, it is twothirds of his contracts ' (iii. 49).

The distinction between acquired property and property inherited or received from kinsmen, and the enlarged

power of parting with the first, are found in many bodies of ancient law in our own early law among

others. The rule that alienations, otherwise unlawful, may be made under pressure of necessity, is found in

many parts of Hindoo law. The rule requiring the consent of the collective brotherhood to alienations, with

many minor rules of this part of Brehon law, constantly forms part of the customs of Indian and Russian

villagecommunities; and the duty of following common practices of tillage, which is the bequest from these

communities which lasted longest in the Germanic countries, is classed by the Corus Bescna, along with

Marriage, as one of the fundamental institutions of the irish people. ('Ancient Laws of Ireland,' iii. 17.) But

much the most striking and unexpected analogies in the Brehon law on the subject of Tribesmen and the

Tribe are those which it has with the Hindoo law of Joint Undivided Families. Under the Brahminical Indian

law, whenever a member of a joint family has acquired property through special scientific knowledge or the

practice of a liberal art, he does not bring it into the common fund, unless his accomplishments were obtained

through a training given to him by his family or at their expense. The whole law on the subject was much

considered in a strange case which arose before the High Court of Madras ('Madras High Court Reports,' ii.

56), where a joint family claimed the gains of a dancinggirl. The decision of the Court is thus summarised

by the Reporter: 'The ordinary gains of science are divisible (i.e., they are brought into hotchpot upon

partition of an undivided estate), when such science has been imparted at the family expense and acquired

while receiving a family maintenance. It is otherwise when the science has been imparted at the expense of

persons not members of the learner's family.' The very counterparts of the Indian rule and of the Indian

exception are found in the ancient Irish law. 'If (the tribesman) be a professional manthat is, if the property

be acquired by judicature or poetry, or any profession whatsoever he is capable of giving twothirds of it

to the Church... but, if it was the lawful profession of his tribe, he shall not give of the emolument of his

profession but just as he could give of the land of his tribe.' (Corus Bescna, 'Ancient Laws of Ireland,' iii. 5.)

It will be seen from the instances which I have given that the rules of the Irish Brehon law regulating the

power of individual tribesmen to alienate their separate property answer to the rules of Indian Brahminical

law which regulate the power of individual members of a joint family to enjoy separate property. The

difference is material. The Hindoo law assumes that collective enjoyment by the whole brotherhood is the

rule, and it treats the enjoyment of separate property by individual brethren as an exception an exception, I

may add, round which an enormous mass of law has now clustered. On the other hand, the Brehon law, so far

as it can be understood, seems to me reconcileable with no other assumption than that individual proprietary

rights have grown up and attained some stability within the circle of the tribe. The exercise of these rights is

at the same time limited by the controlling powers of the collective brotherhood of tribesmen; and to these

last, as to the Agnatic Kindred at Rome, some ultimate right of succession appears to be reserved. Hence the

Irish legal unit is not precisely a Joint Family; if the Brehon law is to be trusted, it has considerably less of

the 'natural communism' which characterises the Indian institution. The 'Fine' of the tracts is constantly

spoken of in connection with landed property, and, whenever it is so connected, I imagine it to have

undergone some of the changes which are constantly brought about by contact with the land, and I figure it to

myself in that case as a Mark or VillageCommunity, 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

The 'Judgments of CoTenancy' is a Brehon lawtract, still unpublished at the time at which I write, and

presenting, in its present state, considerable difficulties of interpretation. It puts, at the outset, the question,

'Whence does CoTenancy arise?' The answer given is, 'From several heirs and from their increasing on

the land.' The tract then goes on to explain that the land is, in the first year, to be tilled by the kinsmen just as

each pleases; that in the second year they are to exchange lots; that in the third year the boundaries are to be

fixed; and that the whole process of severance is to be consummated in the tenth year. I trust it is not a

presumptuous conjecture that the order of change here indicated is more trustworthy than the time fixed for

each of its stages. The period of ten years for the entire transition from collective to separate property seems

to me greatly too short, and hard to reconcile with other Irish evidence; and I suggest that the Brehon lawyer,

attached to the institution of separate property, like the rest of his class, is depicting rather an ideal than an

actual set of arrangements. The process, however, which is here described, if it be spread over a much longer

space of time, is really in harmony with all our knowledge of the rise and progress of cultivating

communities. First a Joint Family, composed of 'several heirs increasing on the land,' is found to have made a

settlement. In the earliest stage the various households reclaim the land without set rule. Next comes the

system of exchanging lots. Finally, the portions of land are enjoyed in severalty.

The references to the ancient collective ownership and ancient collective enjoyment in the nonlegal Irish

literature appear to be very rare. But my friend Mr Whitley Stokes has supplied me with two passages in

point. The 'Liber Hymnorum,' attributed to the eleventh century, contains (folio 5A) the following statement:

'Numerous were the human beings in Ireland at that time (i.e. the time of the sons of Aed Slane, A.D.

658694), 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 stonewall

round land, till came the period of the sons of Aed Slane, but (only) smooth fields. Because of the abundance

of the households in their period, therefore it is that they introduced boundaries in Ireland. These curious

statements can, of course, only be regarded as authority for the existence, at the time when they were penned,

of a belief that a change from a system of collective to a system of restricted enjoyment had occurred at some

period or other in Ireland, and of a tradition respecting the date of the change. But it is instructive to find both

of them attributing it to the growth of population, and an especial interest attaches to the account given in the

'Liber Hymnorum' of the newer distribution of land which was thought to have taken the place of something

older. The periodical allotment to each household of a definite portion of bog land, wood land, and arable

land wears a strong resemblance to the apportionment of pasture and wood and arable land which still goes

on in our day under the communal rules of the Swiss Allmenden (see Laveleye, 'P. et s. F. P.,' pp. 268 et

seq.), and which is an undoubted legacy from the ancient constitution of certain Swiss Cantons as Teutonic

Property in Land, wherever it has grown out of the gradual dissolution of the ancient cultivating

communities, has many characteristics which distinguish it from the form of landed property with which

Englishmen and men of English race are best acquainted. The area within which this last form of property is

the sole or dominant kind of ownership is now much larger than it was, through its diffusion over all North

America, except Mexico, and over all colonies settled for the first time by Englishmen, but our nearly

exclusive familiarity with it has led, I think, to our very commonly overestimating the extent to which it

prevails over the world, and even over Western Europe. Its parentage may be traced, not to the decaying

authority of the Tribe over the severalties of the tribesmen, but to the everincreasing authority of the Chief,

first over his own domain and 'booked' land, and secondarily over the tribelands. The early growth of the

power of the Chief is thus of the utmost interest in the history of landed property, and I propose to discuss it

at some length in the succeeding Lectures. Meantime, let me say something on the transmutations which

Patriarchal Power is observed, as a fact, to undergo in the assemblies of men held together by kinship which

The Joint Undivided Family, wherever its beginning is seen in such communities, springs universally out of

the Patriarchal Family, a group of natural or adoptive descendants held together by subjection to the eldest

living ascendant, father, grandfather, or greatgrandfather. Whatever be the formal prescriptions of the law,

the head of such a group is always in practice despotic, and he is the object of a respect, if not always of an

affection, which is probably seated deeper than any positive institution. But in the more extensive

assemblages of kinsmen which constitute the Joint Family the eldest male of the eldest line is never the

parent of all the members, and not necessarily the first in age among them. To many of them he is merely a

distant relative, and he may possibly be an infant. The sense of patriarchal right does not die out in such

groups. Each father or grandfather has more power than anybody else over his wife, children, and

descendants; and there is always what may be called a belief that the blood of the collective brotherhood runs

more truly and purely in some one line than in any other. Among the Hindoos, the eldest male of this line, if

of full mental capacity, is 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 owner of the family property, but

merely manager of its affairs and administrator of its possessions. If he is not deemed fit for his duties, a

'worthier' kinsman is substituted for him by election, and, in fact, the longer the joint family holds together,

the more election gains ground at the expense of birth. The head or manager of the Sclavonic

HouseCommunities (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,

selfsustaining group, we can perceive from actually extant examples that a separate set of causes come into

operation, and that the Chief, as military leader, sometimes more than regains the privileges which he lost

through the decay of the tradition which connected him with the common root of all the kindred. True

patriarchal authority, however, revives whenever the process of expansion into a group is interrupted and

whenever one of the brotherhood plants himself at a distance from the rest. A Hindoo who severs himself

from a Joint Family, which the law as administered by the English tribunals gives him great facilities for

doing, acquires much greater power over his family, in our sense of the word, than he had as a member of the

larger brotherhood. Similarly, in the developed Joint Family or VillageCommunity, as the little society

becomes more populous, as the village spreads, as the practice of living in separate dwellings extends, as the

land rather than the common lineage gets to be regarded as the cement of the brotherhood, each man in his

own house practically obtains stringent patriarchal authority over his wife, children, and servants. But then,

on the other hand, the separated member of the joint family, or the head of the village household, will himself

become the root of a new joint brotherhood, unless his children voluntarily dissolve the family union after his

death. Thus all the branches of human society may or may not have been developed from joint families which

arose out of an original patriarchal cell; but, wherever the Joint Family is an institution of an Aryan race, we

see it springing from such a cell, and, when it dissolves, we see it dissolving into a number of such cells.

Nothing seems to me to have been more clearly shown by recent researches than the necessity of keeping

apart the Tribe and the Tribal Chief as distinct sources of positive institutions. The lines of descent are

constantly entwined, but each of them is found to run up in the end to an independent origin. If I were to

apply this assertion to political history, I should be only repeating much of what has been said by Mr

Freeman in his excellent work on 'Comparative Politics.' Confining myself to the history of private

institutions, let me observe that the distinction which I have drawn should be carefully borne in mind by

those who desire to penetrate to the beginnings of Property in Land. The subject has been greatly obscured by

the practice, now brought home to the early writers on feudal law, of systematically passing over or

misconstruing all forms of proprietary enjoyment which they could not explain on their own principles; and

hitherto the truth has only been directly seen through some of the rules of tenure. It may now, however, be

laid down without rashness that Property in Land, as known to communities of the Aryan race, has had a

twofold origin. It has arisen partly from the disentanglement of the individual rights of the kindred or

tribesmen from the collective rights of the Family or Tribe, and partly from the growth and transmutation of

the sovereignty of the Tribal Chief. The phenomena attributable to the double process seem to me easily

distinguishable from one another. Both the sovereignty of the Chief and the ownership of land by the Family

or Tribe were in most of Western Europe passed through the crucible of feudalism; but the first reappeared in

some wellmarked characteristics of military or knightly tenures, and the last in the principal rules of

nonnoble holdings, and among them of Socage, the distinctive tenure of the free farmer. The status of the

Chief has thus left us one bequest in the rule of Primogeniture, which, however, has long lost its most ancient

form; another in the right to receive certain dues and to enforce certain monopolies; and a third in a specially

absolute form of property which was once exclusively enjoyed by the Chief, and after him by the Lord, in the

portion of the tribal territory which formed his own domain. On the other hand, several systems of succession

after death, and among them the equal division of the land between the children, have sprung out of tribal

ownership in various stages of decay; and it has left another set of traces (not quite so widely extended), in a

number of minute customary rules which govern tillage and occasionally regulate the distribution of the

The fate of this double set of institutions in England 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 subdivision

of the soil of France from the first French Revolution, and from the sale of the Church lands and of the estates

of the emigrant nobility. A writer I was going to say as commonly read as Arthur Young, but certainly as

often mentioned as if he were commonly read notices this morcellement, on the very eve of the French

Revolution, and immediately after it, as the great feature which distinguished France from England. 'From

what we see in England,' he says, ('Travels in 1787, '88, and, '89' p. 407) ' we cannot form an idea of the

abundance in France of small properties, that is, little farms belonging to those who cultivate them.' He

estimates that more than a third of the kingdom was occupied by them a very large proportion, when the

extent of Church land in France is taken into account; but recent French investigations have shown reasons

for thinking that the true proportion was still larger, and that it was rather growing than diminishing, through

that extravagance of the nobles which Court life fostered, and which compelled them to sell their domains to

peasants in small parcels. Young clearly saw that this subdivision of the soil was the result of some legal rule;

and strongly dissenting from the Revolutionary leaders who wished to carry it farther, he declared that 'a law

ought to be passed to render all division below a certain number of arpents illegal.'

It seems to have very generally escaped notice that the law of equal or nearly equal division after death was

the general law of France. The rule of primogeniture was of exceptional application, and was for the most

part confined to lands held by knightly tenure; indeed, in the South of France, where the custom of equal

division was strengthened by the identical rule of the Roman jurisprudence, the privileges of the eldest son

were only secured by calling in the exceptional rules of which the Roman Law gives the benefit to milites (or

soldiers on service) when making their wills or regulating their successions, and by laying down that every

chevalier, and every noble of higher degree, was a miles within the meaning of the Roman juridical writers.

The two systems of succession and the two forms of property lay side by side, and there were men alive quite

recently who could remember the bitter animosities caused by their coexistence and antagonism. A very

great part of the land held by laymen belonged to the peasantry, and descended according to the rule of equal

division, but eldest son after eldest son succeeded to the signory. Yet it was not the rule of primogeniture

followed in noble descents which was the true grievance; at most it became a grievance under the influence

of the peculiar vein of sentiment introduced by Rousseau. The legacy from tribal sovereignty to signorial

privilege, which was really resented, was that which I placed second in order. The right to receive feudal dues

and to enforce petty monopolies, now almost extinguished in England by the measures to which the

Copyhold Commission has given effect, had ceased long before the end of the last century to be of any

considerable importance to the class which was invested with it; but M. de Tocqueville has explained, in his

'Ancien R�gime' (i. 18), that it made up almost the entire means of living which the majority of the French

nobility possessed. A certain number of noblemen, besides their feudal rights, had their terres, or domain,

belonging to them in absolute property, and sometimes of enormous extent; and the wealthiest members of

this limited class, the grands, who so frequently appear in French Court history, but who, away from the

Court, were much the most respected and beloved of their order, formed the counterpart, from the legal point

of view, of the English landed proprietary. The rest of the nobles lived mainly, not on rent, but on their feudal

dues, and eked out a meagre subsistence by serving the King in arms. The sense of property in the soil was

thus not in the lord but in the peasantry; and the peasantry viewed the exercise of signorial rights with a

feeling closely akin to that which is inspired by a highly oppressive tax. The condition of sentiment produced

by it is even now a political force of some moment in France; and a similar, though a far weaker, repulsion is

known to have been caused in this country by the taking of tithes in kind. It is a significant fact that, where

the ownership is acknowledged to reside in the superior holder, the exaction of even an extreme rent from the

tenants below has very rarely been regarded with the same bitterness of resentment.

The change, therefore, which took place in France at the first Revolution was this: the landlaw of the people

superseded the landlaw of the nobles, In England the converse process has been gone through, and what has

occurred is obviously in harmony with much else in English history. The system of the nobles has become in

all essential particulars the system of the people. The rule of primogeniture, which once applied only to

knightly holdings, came to apply to the great bulk of English tenures, except the Gavelkind of Kent and some

others of merely local importance. This part of the change took place at a remote epoch, and its circumstances

are involved in much obscurity; and we know little more of it with certainty than that it was rapidly

proceeding between the time at which Glanville and the time at which Bracton wrote. Glanville, probably not

earlier than the thirtythird 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 fiftysecond year of Henry the Third, writes as if

the rule of primogeniture applied universally to military tenures and generally to socage tenures. But another

branch of the process was postponed almost to our own day. Possibly not many Englishmen have recognised

with as much clearness as a recent French writer (Doniol, 'La Revolution Fran�aise et la F�odalit�') that the

transmutation of customary and copyhold into freehold property, which has been proceeding for about forty

years under the conduct of the Copyhold and Enclosure Commissioners, is the peaceful and insensible

removal of a grievance which did more than any other to bring about the first French Revolution and to

prevent the reestablishment of the ancient political order. But long before there was a Copyhold

Commission, the great mass of English landed property had assumed certain characteristics which strongly

distinguished it from the peasant property of the Continent as it existed before it was affected by the French

Codes, and as it is still found in some countries. This last form of proprietorship was very generally fettered

by the duty of cultivation in some particular way, and, as a rule, could not be dealt with so as to bar the rights

reserved to the children and widow of the owner by the law of succession. The traces of a similar species of

ownership, probably once widely diffused, may still be here and there discerned through the customs of

particular English manors. I repeat the opinion which I expressed three years ago, that our modern English

conception of absolute property in land is really descended from the special proprietorship enjoyed by the

Lord, and more anciently by the tribal Chief, in his own Domain. It would be out of place to enter here on a

discussion of the changes which seem to me desirable in order to make the soil of England as freely

exchangeable as the theory now generally accepted demands; but to the principle of several and absolute

property in land I hold this country to be committed. I believe I state the inference suggested by all known

legal history when I say that there can be no material advance in civilisation unless landed property is held by

groups at least as small as Families; and I again remind you that we are indebted to the peculiarly absolute

English form of ownership for such an achievement as the cultivation of the soil of North America.

Before describing to you the new light which the Ancient Laws of Ireland throw on the primitive condition of

the institutions of which I have been speaking, let me give you one word of caution as to the statements of

modern Irish writers respecting the original relations of the Irish Tribe and of the Irish Tribal Chief.

Unhappily the subject has been discussed in the spirit of the later agrarian history of Ireland. On the one hand,

some disputants have thought to serve a patriotic purpose by contending that the land of each Tribe belonged

absolutely to itself and was its common property, and that the Chief was a mere administrative officer,

rewarded for his services in making a fair distribution of the territory among the tribesmen by a rather larger

share of its area than the rest, which was allotted to him as his domain. Contrariwise, some writers, not

perhaps actuated by much kindliness to the Irish people, have at least suggested that they were always cruelly

oppressed by their superiors, and probably by their natural chiefs more than any others. These authors point

to the strong evidence of oppression by the Chiefs which the books of the English observers of Ireland

contain. Edmund Spenser and Sir John Davis cannot have merely intended to calumniate the Irish native

aristocracy when they emphatica1ly declared that the 'chiefs do most shamefully rackrent their tenants,' and

spoke with vehement indignation of the exactions from which the tribesmen suffered, the 'coshering,' and the

'coin and livery,' which occur over and over again in their pages. A third school, of a very different order

from these, has representatives among the most learned Irishmen of our day. They resent the assertion that the

land belonged to the tribe in common as practically imputing to the ancient Irish that utter barbarism to which

private property is unknown. They say that traces of ownership jealously guarded are found in all parts of the

Brehon laws, and they are on the whole apt to speak of the vassalage to the Chief which these laws attribute

to the tribesmen as if it implied something like modern tenancy in the latter and modern ownership in the

former. But they say that the relation of landlord and tenant was regulated by careful and kindly provisions,

and they ascribe the degradation of the system, like the other evils of Ireland, to English cupidity and

ignorance. The Norman nobles who first settled in Ireland are well known to have become in time Chieftains

of Irish Tribes; and it is suggested that they were the first to forget their duties to their tenants and to think of

nothing but their privileges. Nor is there anything incredible in this last assumption. An English settler in

India who buys land there is often reputed a harder landlord than the native zemindars, his neighbours, not

because he intends to be harsher (indeed in some things he is usually far more considerate and bountiful), but

because he is accustomed to a stricter system and cannot accommodate himself to the loose and irregular play

I cannot wholly concur in any one of these theories concerning Chief and Tribe. Each seems to me to contain

a portion of truth, but not the whole. Let me first say that the whole landsystem shadowed forth in the

Brehon laws does seem to me to have for its basis the primary ownership of the tribeland by the Tribe. It is

also true that the Chief appears to exercise certain administrative duties in respect of this land, and that he has

a specific portion of the tribeland allotted to him, in the vicinity of his residence or stronghold, for the

maintenance of his household and relatives. But this is not all. As we see the system through the law, it is not

stationary, but shifting, developing, disintegrating, recombining. Even according to the texts apparently

oldest, much of the tribal territory appears to have been permanently alienated to subtribes, families, or

dependent chiefs; and the glosses and commentaries show that, before they were written, this process had

gone very far indeed. Whatever, again, may have been the original dignity and authority of the Chief, they are

plainly growing, not merely through the introduction of alien principles and ideas, but from natural causes,

more or less operative all over Europe. The general character of these causes is very much the same as in the

Germanic countries. The power of the Chief grows first through the process which is called elsewhere

'commendation,' the process by which the free tribesman becomes 'his man,' and remains in a state of

dependence having various degrees. It farther grows from his increasing authority over the wastelands of the

tribal territory and from the servile or semiservile colonies he plants there; and lastly, it augments from the

material strength which he acquires through the numbers of his immediate retainers and associates, most of

whom stand to him in more or less servile relations. But the Brehon law tells us much that is novel and

surprising concerning the particular course of these changes and their nature in detail. It furnishes us with

some wholly new ideas concerning the pas sage 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

With the Chieftaincy of the Tribe the early history of modern Aristocracy and modern Kingship begins.

These two great institutions had, in fact, at first the same history, and the Western world long continued to

bear the marks of their original identity. The Manor with its Tenemental lands held by the free tenants of the

Lord, and with its Domain which was in immediate dependence on him, was the type of all the feudal

sovereignties in their complete form, whether the ruler acknowledged a superior above him or whether he at

most admitted one in the Pope, or the Emperor, or God himself. In every County, or Dukedom, or Kingdom

there were great tenants holding directly of its head and on some sort of parity with him; and there was a

Domain under his more immediate government and at his immediate disposal. There is no obscurer and more

difficult subject than the origin of the class whose power was the keystone of all these political and

proprietary constructions, and none on which the scantiest contributions to our knowledge are more welcome.

There is one view of the original condition of privileged classes which, though held by learned men, has been

a good deal weakened of late by German research, and seems to me still farther shaken by portions of the

Brehon law. This is the impression that they always constituted, as they practically do now, a distinct class or

section of the community, each member of the class standing in a closer relation to the other members than to

the rest of the national or tribal society to which all belong. It cannot be doubted that the earliest modern

aristocracies have as a fact, when they are first discerned, this particular aspect. Mr Freeman ('Norman

Conquest,' i. 88) says that the 'difference between eorl and ceorl is a primary fact from which we start.'

Tacitus plainly distinguished the noble from the nonnoble freeman in the Germanic societies which he

observed; and Caesar, as I stated in another Lecture, divides all the Continental Celtic tribes into the Equites

and the Plebs. We can understand that a spectator looking at a set of tribal communities from the outside

would naturally class together all men visibly exalted above the rest; but nevertheless this is not quite the

appearance which early Germanic society wears in the eyes of enquirers who follow the method of Von

Maurer and Landau. Each Chief or Lord appears to them to have been noble less with reference to other

noblemen than with reference to the other free tribesmen comprised in the same group with himself. Nobility

has many diverse origins; but its chief source seems to have been the respect of covillagers or assemblages

of kinsmen for the line of descent in which the purest blood of each little society was believed to be

preserved. Similarly, the Brehon law suggests that the Irish Chiefs were not the class by themselves which the

corresponding order among the Continental Celts appeared to Caesar to be, but were necessarily the heads of

separate groups composed of their kindred or of their vassals. 'Every chief,' says the text which I quoted

before, 'rules over his land, whether it be great or whether it be small.' And while the Irish law describes the

way (as I shall point out) in which a common freeman can become a chief, it also shows that the position to

which he attains is the presidency of a group of dependants. Nevertheless the persons thus elevated

undoubtedly tend to become, from various causes, a class by themselves and a special section of the general

community; and it is very probable that the tendency was at work from the earliest times. It is farther to be

remarked that some aristocracies were really a section of the community from the very first. This structure of

society is produced where one entire tribal group conquers or imposes its supremacy upon other tribal groups

also remaining entire, or where an original body of tribesmen, villagers, or citizens, gradually gathers round

itself a miscellaneous assemblage of protected dependants. There are many known instances of both

processes, and the particular relation of tribal groups which the former implies was certainly not unknown to

the Celtic societies. Among the Scottish Highlanders some entire septs or clans are stated to have been

enslaved to others; and on the very threshold of Irish history we meet with a distinction between free and

rentpaying tribes which may possibly imply the same kind of superiority and subordination.

The circumstance of greatest novelty in the position of the Chief which the Brehon law appears to me to bring

out is this: Whatever else a Chief is, he is before all things a rich man; not, however, rich, as popular

assoCiations would lead us to anticipate, in land, but in live stock in flocks and herds, in sheep, and before

all things in oxen. Here let me interpose the remark, that the opposition commonly set up between birth and

wealth, and particularly wealth other than landed property, is entirely modern. In French literature, so far as

my knowledge extends, it first appears when the riches of the financial officers of the French monarchy

the Superintendents and Farmers General begin to attract attention. With us it seems to be exclusively the

result of the great extension and productiveness of industrial undertakings on the largest scale. But the heroes

of the Homeric poems are not only valiant but wealthy (Odyss. xiv. 96106); the warriors of the

NibelungenLied 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, epta pappoi plonsioi; 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 'CainAigillne' laying down (p. 279) that 'the

head of every tribe should be the man of the tribe who is the most experienced, the most noble, the most

wealthy, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for

profits and to be sued for losses.' There are many other passages to the same effect; and on closely examining

the system (as I propose to do presently) we can perceive that personal wealth was the principal condition of

But while the Brehon laws suggest that the possession of personal wealth is a condition of the maintenance of

chieftainship, they show with much distinctness that through the acquisition of such wealth the road was

always open to chieftainship. We are not altogether without knowledge that in some European societies the

humble freeman might be raised by wealth to the position which afterwards became modern nobility. One

fact, among the very few which are tolerably well ascertained respecting the specific origin of particular

modern aristocracies is, that a portion of the Danish nobility were originally peasants; and there are in the

early English laws some traces of a process by which a Ceorl might become a Thane. These might be facts

standing by themselves, and undoubtedly there is strong reason to suspect that the commencements of

aristocracy were multifold: but the Brehon tracts point out in several places, with legal minuteness, the mode

in which a peasant freeman in ancient Ireland could become a chief. There are few personages of greater

interest spoken of in these laws than the BoAire, literally the 'cownobleman.' He is, to begin with, simply a

peasant who has grown rich in cattle, probably through obtaining the use of large portions of tribeland. 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 HonorPrice, or special damages incurred by injuring him. At the bottom of

the scale is the chief or noble called the Airedesa; and the Brehon law provides that when the BoAire has

acquired twice the wealth of an Airedesa, and has held it for a certain number of generations, he becomes an

Airedesa himself. The advantage secured to wealth does not, you see, exclude respect for birth, but works

into it. 'He is an inferior chief,' says the 'Senchus Mor,' 'whose father was not a chief;' and there are many

other strong assertions of the reverence due to inherited rank. The primary view of chieftainship is evidently

that it springs from purity or dignity of blood, but noble birth is regarded as naturally associated with wealth,

and he who becomes rich gradually climbs to a position indistinguishable from that which he would have

occupied if he had been nobly born. What is thus new in the system is the clear account of nobility as a status,

having its origin in the organic structure of ancient society, but nevertheless in practice having perpetually

The enormous importance which belongs to wealth and specially to wealth in cattle, in the early Aryan

society reflected by the Brehon tracts, helps, I think, to clear up one great difficulty which meets us on the

threshold of an enquiry into the origin of aristocracies. I suppose that the popular theory on the subject of the

privileged class in modern communities is that it was originally indebted for its status, if not for its power or

influence, to kingly favour. An Englishman once questioned the Emperor Paul of Russia on the position of

the Russian nobility. 'The only man who is noble in my dominions,' said the Czar, 'is the man to whom I

speak, for the time that I am speaking to him.' I merely take these words as the strongest possible statement of

the view to which I am referring; but they were used by a monarch with a disturbed brain, whose authority

had contracted something of an Oriental character from its long subordination to Tartar power, and they were

never absolutely true even of Russia. Among ourselves, however, the favourite assumption seems certainly to

be, however slight may be the practical consequences we draw from it, that all aristocratic privilege had its

origin in kingly grace; and this appears, on the whole, to be the theory of English law. But the institutions of

many parts of the Continent long retained the traces of a different set of ideas, and these were found where

kingly power was actually much greater than in England. The French Noblesse, before the Revolution, would

as a body have resented the assertion that they were a creation of the King, and the Kings of France more

than once admitted that they were only the most exalted members of a class to which their own nobility

Kings have everywhere nowadays, and in many countries have had for centuries, a monopoly of the power of

ennobling. This road to nobility has been so long trodden, that men in general have almost forgotten there

ever was another route. Yet historical scholars have long known that nobility conferred by royal grant was, in

one sense, a modern institution, though they have not succeeded in completely explaining how it came to

supplant or dwarf the institution upon which it was engrafted. There seems to be no doubt that the first

aristocracy springing from kingly favour consisted of the Comitatus, or Companions of the King. Although

there is a good deal of evidence that the class was at first considered in some way servile, it gradually became

in some countries the type of all nobility. A few tolerably familiar facts may serve to remind us how

remarkable has been the fortune of the royal households all over Western Europe. The Mayor of the Frankish

Palace became King of the Franks. The Chamberlain of the RomanoGerman Emperors is now the German

Emperor. The blood of the Steward of Scotland runs in the veins of the Kings of England. The Constables of

France repeatedly shook or saved the French throne. Among ourselves the great officers of the Royal Council

and Household still take precedence either of all Peers or of all Peers of their own degree. Whence, then,

came this great exaltation of the Mayor or Count of the Palace, of the great Seneschal or Steward, of the high

Chancellor, the Great Chamberlain, and High Constable titles which, when they do not mark an office

originally clerical, point to an occupation which must at first have been menial?

It seems certain that the household sprang from very humble beginnings. Tacitus describes the companions of

the Germanic chief as living with him in his house and supported by his bounty. Mr Stubbs when stating

('Constitutional History,' p. 150) that 'the gesiths of an (English) king were his guard and private council,'

observes that the 'free household servants of a ceorl are also in a certain sense his gesiths.' The Companions

of the King appear also in the Irish legal literature, but they are not noble, and they are associated with the

king's bodyguard, which is essentially servile. The King of Erin, though he never existed (strictly speaking),

save for short intervals, yet always, so to speak tended to exist, and the Crith Gablach, a Brehon tract of

which a translation is given at the end of Sullivan's edition of O'Curry's Lectures, contains a picture of his

palace and state. The edifice intended to be described is apparently very much the same as the great Icelandic

house of which Mr Dasent, in the 'Story of Burnt Njal,' has attempted to give a drawing from the descriptions

found in Norse literature. In it the King feasts his guests, from kings and king's sons to a ghastly company of

prisoners in fetters, the forfeited hostages of subjectchiefs or subsepts 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 battlefield. I am afraid that the picture of Irish society supplied

by the Crith Gablach must throughout be regarded as to a great extent ideal or theoretical; at any rate, there is

much testimony from English visitors to Ireland that many considerable Irish Chiefs were much more humbly

furnished out than the King of Erin at Tara. Yet it is very likely that they all had Companions attending them,

and I suspect that the obligation of. maintaining a little court had much to do with that strange privilege

which in later times had a deplorable history; the right of the Chief to go with a following to the dwellings of

his tenants and there be feasted at the tenant's expense. That even petty Chiefs of the Scottish Highlands had a

retinue of the same character is known to all who can recall that immortal picture of Celtic society which for

the first time brought it home to men who were nearly our contemporaries that ancient Celtic life and

It seems extremely probable that, in a particular stage of society, this personal service to the Chief or King

was everywhere rendered in expectation of reward in the shape of a gift of land. The Companions of the

Teutonic kings, in Continental Europe, shared largely in the Beneficesgrants of Roman provincial land fully

peopled and stocked. In ancient England the same class are believed to have been the largest grantees of

public land next to the Church; and doubtless we have here part of the secret of the mysterious change by

which a new nobility of Thanes, deriving dignity and authority from the King, absorbed the older nobility of

Eorls. But we are a little apt to forget the plentifulness of land in countries lying beyond the northern and

western limits of the Roman Empire, or just within them. Mr Thorold Rogers, writing of a period relatively

much later, and founding his opinion on the extant evidence of returns from manorlands, speaks of land as

the 'cheapest commodity of the Middle Ages.' The practical difficulty was not to obtain land, but the

instruments for making it productive; and hence, in a society older relatively than any Teutonic society of

which we have any distinct knowledge, that very society which the Brehon tracts enable us to understand, it

may very well have been that the object of suit at court was much less to obtain land than to obtain cattle. The

Chief, as I have already said, was before all things rich in flocks and herds. He was military leader, and a

great part of his wealth must have been spoil of war, but in his civil capacity he multiplied his kine through

his growing power of appropriating the waste for pasture, and through a system of dispersing his herds

among the tribesmen, which will be described in the next Lecture. The Companion who followed him to the

foray, or was ready to do so, cannot but have been enriched by his bounty; and thus, if already noble, he

became greater; if he was not noble, the way to nobility lay through wealth. The passage which I am about to

read to you may serve to illustrate what probably took place, though there is nothing except common

humanity to connect the tribes of whose customs it speaks with the primitive Teutons and Celts. The Rev H.

Dugmore, in a most interesting volume, called a 'Compendium of Kafir Laws and Customs,' and published at

the Wesleyan Missionary Press, Mount Coke, British Kaffraria, writes thus of much the most advanced of the

South African native races, the Kafirs or Zulus (p. 27): 'As cattle constitute the sole wealth of the people, so

they are their only medium of such transactions as involve exchange, payment, or reward. The retainers of a

chief serve him for cattle; nor is it expected that he could maintain his influence, or indeed secure any number

of followers, if unable to provide them with what at once constitutes their money, food, and clothing. He

requires, then, a constant fund from which to satisfy his dependants; and the amount of the fund required may

be judged of from the character of the demand made upon him. His retinue, court, or whatever it is to be

called, consists of men from all parts of the tribe, the young, the clever, and the brave, who come to do court

service for a time, that they may obtain cattle to furnish them with the means of procuring wives, arms, or

other objects of desire. On obtaining these they return to their homes and give place to others. Thus the

immediate retinue of a chief is continually changing, and constitutes a permanent drain on his resources.' Mr

Dugmore goes on to state that the sources of the chief's wealth are the inherited cattle of his father, offerings

made to him on the ceremony of his circumcision, benevolences levied from his tribe, fines and confiscations,

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 cattlestealing, sometimes, I must own, seems to me to express himself as if he thought the practice

attributable to some native vice of Irish character; but no doubt it was what Mr Tylor has taught us to call a

survival, an ancient and inveterate habit, which in this case continued through the misfortune which denied to

Ireland the great condition of modern legal ideas, a strong central government. The very same practice,

among the Celts of the Scottish Highlands and the rude Germanic population of the Lowland Border, has

almost been invested by one man's genius with the dignity of a virtue. Again, turning to 'Waverley,' I suppose

there is no truer representative of the primitive Celtic chief than Donald Bean Lean, who drives the cattle of

Tully Veolan, and employs a soothsayer to predict the number of beeves which are likely to come in his Way.

He is a far more genuine 'survival' than Fergus McIvor, who all but deserts his cause for a disappointment

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 semiservile relation of the Client or Freedman to

his Patron. The Brehon law permits us to take the same view of the corresponding class in Celtic societies.

Several texts indicate that a Chief of high degree is always expected to surround himself with unfree

dependants; and you will recollect that the retinue of the King of Erin was to consist not only of free

tribesmen but of a bodyguard of men bound to him by servile obligations. So far as it goes, I quite agree with

the explanation which Mr Freeman has given of the original connection between servile status and that

nobility with which the primitive nobility of birth has become mixed up and confounded. 'The lowly

clientage,' he says, 'of the Roman Patrician and the noble following of the Hellenic and Teutonic leader may

really come from the same source, and may both alike be parts of the same primeval heritage.' (' Comparative

Politics,' p. 261.) But perhaps we may permit ourselves to go a step beyond this account. The Comitatus or

Companions of the Chief, even when they were freemen, were not necessarily Or ordinarily his near kindred.

Their dependence on him, carrying with it friendship and affection, would in modern societies place them in a

position well understood, and on something like an equality with him; but in the beginning of things one man

was always the kinsman, the slave, or the enemy of another, and mere friendship and affection would, by

themselves, create no tie between man and man. In order that they might have any reality, they would have to

be considered as establishing one of the relations known to that stage of thought. Between equals this would

be assumed or fictitious kinship. But between the Chief who embodied purity of tribal descent and his

associates, it would have more or less to follow the pattern of the slave's dependence on his master, and,

where the Companion was not actually the Chief's slave, the bond which connected them would very

probably be adapted to the more honourable model furnished by the relation between exslave and