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LECTURE III.: KINSHIP AS THE BASIS OF SOCIETY. - Sir Henry Sumner Maine, Lectures on the Early History of Institutions 
Lectures on the Early History of Institutions, 7th edition (London: John Murray, 1914).
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KINSHIP AS THE BASIS OF SOCIETY.
The most recent researches into the primitive history of society point to the conclusion that the earliest tie which knitted men together in communities was Consanguinity or Kinship. The subject has been approached of late years from several different sides, and there has been much dispute as to what the primitive blood-relationship implied, and how it arose; but there has been general agreement as to the fact I have stated. The caution is perhaps needed that we must not form too loose a conception of the kinship which once stood in the place of the multiform influences which are now the cement of human societies. It was regarded as an actual bond of union, and in no respect as a sentimental one. The notion of what, for want of a better phrase, I must call a moral brotherhood in the whole human race has been steadily gaining ground during the whole course of history, and we have now a large abstract term answering to this notion—Humanity. The most powerful of the agencies which have brought about this broader and laxer view of kinship has undoubtedly been Religion, and indeed one great Eastern religion extended it until for some purposes it embraced all sentient nature. All this modern enlargement of the primitive conception of kinship must be got rid of before we can bring it home to ourselves. There was no brotherhood recognised by our savage forefathers except actual consanguinity regarded as a fact. If a man was not of kin to another there was nothing between them. He was an enemy to be slain, or spoiled, or hated, as much as the wild beasts upon which the tribe made war, as belonging indeed to the craftiest and the cruellest order of wild animals. It would scarcely be too strong an assertion that the dogs which followed the camp had more in common with it than the tribesmen of an alien and unrelated tribe.
The tribes of men with which the student of jurisprudence is concerned are exclusively those belonging to the races now universally classed, on the ground of linguistic affinities, as Aryan and Semitic. Besides these he has at most to take into account that portion of the outlying mass of mankind which has lately been called Uralian, the Turks, Hungarians, and Finns. The characteristic of all these races, when in the tribal state, is that the tribes themselves, and all subdivisions of them, are conceived by the men who compose them as descended from a single male ancestor. Such communities see the Family group with which they are familiar to be made up of the descendants of a single living man, and of his wife or wives; and perhaps they are accustomed to that larger group, formed of the descendants of a single recently deceased ancestor, which still survives in India as a compact assemblage of blood-relatives, though it is only known to us through the traces it has left in our Tables of Inheritance. The mode of constituting groups of kinsmen which they see proceeding before their eyes they believe to be identical with the process by which the community itself was formed. Thus the theoretical assumption is that all the tribesmen are descended from some common ancestor, whose descendants have formed sub-groups, which again have branched off into others, till the smallest group of all, the existing Family, is reached. I believe I may say that there is substantial agreement as to the correctness of these statements so long as they are confined to the Aryan, Semitic, and Uralian races. At most it is asserted that, among the recorded usages of portions of these races, there are obscure indications of another and an earlier state of things. But then a very different set of assertions from these are made concerning that large part of the human race which cannot be classed as Aryan, Semitic, or Uralian. It is, first of all, alleged that there is evidence of the wide prevalence among them of ideas on the subject of Consanguinity which are irreconcileable with the assumption of common descent from a single ancestor. Next, it is pointed out that some small, isolated, and very barbarous communities—perhaps long hidden in inaccessible Indian valleys, or within the ring of a coral reef in the Southern Seas—still follow practices which it would be incorrect and unjust to call immoral, because, in the view we are considering, they are older than morality. The suggestion is finally made that if these practices were, in an older stage of the world’s history, very much more widely extended than at present, the abnormal, non-Aryan, non-Semitic, non-Uralian notions about kinship of which I have spoken would find their explanation. If, indeed, the conclusion here pointed at expresses the truth, and if these practices were really at one time universal, it would be an undeserved compliment to the human race to say that it once followed the ways of the lower animals, since, in point of fact, all the lower animals do not follow the practices thus attributed to them. But, whatever be the interest of such enquiries, they do not concern us till the Kinship of the higher races can be distinctly shown to have grown out of the Kinship now known only to the lower, and even then they concern us only remotely. No doubt several recent writers do believe in the descent of one form of consanguinity from the other. Mr. Lewis Morgan, of New York, the author of a remarkable and very magnificent volume on ‘Systems of Consanguinity and Affinity in the Human Family,’ published by the Smithsonian Institute at Washington, reckons no less than ten stages (p. 486) through which communities founded on kinship have passed before that form of the family was developed out of which the Aryan tribes conceive themselves to have sprung. But Mr. Morgan also says of the system known upon the evidence actually to prevail among the Aryan, Semitic, and Uralian divisions of mankind that (p. 469) it ‘manifestly proceeds upon the assumption of the existence of marriage between single pairs, and of the certainty of parentage through the marriage relation.’ ‘Hence,’ he adds, ‘it must have come into existence after the establishment of marriage between single pairs.’
A remark of considerable importance to the student of early usage has now to be made respecting the bond of union recognised by these greater races. Kinship, as the tie binding communities together, tends to be regarded as the same thing with subjection to a common authority. The notions of Power and Consanguinity blend, but they in nowise supersede one another. We have a familiar example of this mixture of ideas in the subjection of the smallest group, the Family, to its patriarchal head. Wherever we have evidence of such a group, it becomes difficult to say whether the persons comprised in it are most distinctly regarded as kinsmen, or as servile or semi-servile dependants of the person who was the source of their kinship. The confusion, however, if we may so style it, of kinship with subjection to patriarchal power is observable also in the larger groups into which the Family expands. In some cases the Tribe can hardly be otherwise described than as the group of men subject to some one chieftain. This peculiar blending of ideas is undoubtedly connected with the extension (a familiar fact to most of us) of the area of ancient groups of kindred by artifices or fictions. Just as we find the Family recruited by strangers brought under the paternal power of its head by adoption, so we find the Tribe, or Clan, including a number of persons, in theory of kin to it, yet in fact connected with it only by common dependence on the Chief. I do not affect to give any simple explanation of the subjection of the various assemblages of kindred to forms of power of which the patriarchal power of the head of the family is the type. Doubtless it is partly to be accounted for by deep-seated instincts. But Mr. Morgan’s researches seem to me to have supplied another partial explanation. He has found that among rude and partially nomad communities great numbers of kindred, whom we should keep apart in mind, and distinguish from one another in language, are grouped together in great classes and called by the same general names. Every man is related to an extraordinary number of men called his brothers, to an extraordinary number called his sons, to an extraordinary number called his uncles. Mr. Morgan explains the fact in his own way, but he points out the incidental convenience served by this method of classification and nomenclature. Though the point may not at first strike us, kinship is a clumsy basis for communities of any size, on account of the difficulty which the mind, and particularly the untutored mind, has in embracing all the persons bound to any one man by tie of blood, and therefore (which is the important matter) connected with him by common responsibilities and rights. A great extension and considerable relaxation of the notion of kinship gets over the difficulty among the lower races, but it may be that, among the higher, Patriarchal Power answers the same object. It simplifies the conceptions of kinship and of conjoint responsibility, first in the Patriarchal Family and ultimately in the Clan or Tribe.
We have next to consider the epoch, reached at some time by all the portions of mankind destined to civilisation, at which tribal communities settle down upon a definite space of land. The liveliest account which I have read of this process occurs in an ancient Indian record which has every pretension to authenticity. In a very interesting volume published by the Government of Madras, and called ‘Papers on Mirasi Right’ (Madras, 1862), there are printed some ancient Memorial Verses, as they are called, which describe the manner in which the Vellalee, a possibly Aryan tribe, followed their chief into Tondeimandalam, a region roughly corresponding with a state once famous in modern Indian history, Arcot. There the Vellalee conquered and extirpated, or enslaved, some more primitive population and took permanent possession of its territory. The poetess—for the lines are attributed to a woman—compares the invasion to the flowing of the juice of the sugar-cane over a flat surface. (‘Mirasi Papers,’ p. 233.) The juice crystallises, and the crystals are the various village-communities. In the middle is one lump of peculiarly fine sugar, the place where is the temple of the god. Homely as is the image, it seems to me in one respect peculiarly felicitous. It represents the tribe, though moving in a fused mass of men, as containing within itself a principle of coalescence which began to work as soon as the movement was over. The point is not always recollected. Social history is frequently considered as beginning with the tribal settlement, and as though no principles of union had been brought by the tribe from an older home. But we have no actual knowledge of any aboriginal or autochthonous tribe. Wherever we have any approximately trustworthy information concerning the tribes which we discern in the far distance of history, they have always come from some more ancient seat. The Vellalee, in the Indian example, must have been agriculturists somewhere, since they crystallised at once into village-communities.
It has long been assumed that the tribal constitution of society belonged at first to nomad communities, and that, when associations of men first settled down upon land, a great change came over them. But the manner of transition from nomad to settled life, and its effects upon custom and idea, have been too much described, as it seems to me, from mere conjecture of the probabilities; and the whole process, as I have just observed, has been conceived as more abrupt than such knowledge as we have would lead us to believe it to have been. Attention has thus been drawn off from one assertion on this subject which may be made, I think, upon trustworthy evidence—that, from the moment when a tribal community settles down finally upon a definite space of land, the Land begins to be the basis of society in place of the Kinship. The change is extremely gradual, and in some particulars it has not even now been fully accomplished, but it has been going on through the whole course of history. The constitution of the Family through actual blood-relationship is of course an observable fact, but, for all groups of men larger than the Family, the Land on which they live tends to become the bond of union between them, at the expense of Kinship, ever more and more vaguely conceived. We can trace the development of idea both in the large and now extremely miscellaneous aggregations of men combined in States or Political Communities, and also in the smaller aggregations collected in Village-Communities and Manors, among whom landed property took its rise. The barbarian invaders of the Western Roman Empire, though not uninfluenced by former settlements in older homes, brought back to Western Europe a mass of tribal ideas which the Roman dominion had banished from it; but, from the moment of their final occupation of definite territories, a transformation of these ideas began. Some years ago I pointed out (‘Ancient Law,’ pp. 103 et seq.) the evidence furnished by the history of International Law that the notion of territorial sovereignty, which is the basis of the international system, and which is inseparably connected with dominion over a definite area of land, very slowly substituted itself for the notion of tribal sovereignty. Clear traces of the change are to be seen in the official style of kings. Of our own kings, King John was the first who always called himself King of England. (Freeman, ‘Norman Conquest,’ I. 82, 84.) His predecessors commonly or always called themselves Kings of the English. The style of the king reflected the older tribal sovereignty for a much longer time in France. The title of King of France may no doubt have come into use in the vernacular soon after the accession of the dynasty of Capet, but it is an impressive fact that, even at the time of the Massacre of St. Bartholomew, the Kings of France were still in Latin ‘Reges Francorum;’ and Henry the Fourth only abandoned the designation because it could not be got to fit in conveniently on his coins with the title of King of Navarre, the purely feudal and territorial principality of the Bourbons. (Freeman, loc. cit.) We may bring home to ourselves the transformation of idea in another way. England was once the country which Englishmen inhabited. Englishmen are now the people who inhabit England. The descendants of our forefathers keep up the tradition of kinship by calling themselves men of English race, but they tend steadily to become Americans and Australians. I do not say that the notion of consanguinity is absolutely lost; but it is extremely diluted, and quite subordinated to the newer view of the territorial constitution of nations. The blended ideas are reflected in such an expression as ‘Fatherland,’ which is itself an index to the fact that our thoughts cannot separate national kinship from common country. No doubt it is true that in our day the older conception of national union through consanguinity has seemed to be revived by theories which are sometimes called generally theories of Nationality, and of which particular forms are known to us as Pan-Sclavism and Pan-Teutonism. Such theories are in truth a product of modern philology, and have grown out of the assumption that linguistic affinities prove community of blood. But wherever the political theory of Nationality is distinctly conceived, it amounts to a claim that men of the same race shall be included, not in the same tribal, but in the same territorial sovereignty.
We can perceive, from the records of the Hellenic and Latin city-communities, that there, and probably over a great part of the world, the substitution of common territory for common race as the basis of national union was slow, and not accomplished without very violent struggles. ‘The history of political ideas begins,’ I have said elsewhere, ‘with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling which we emphatically term revolutions so startling and so complete as the change which is accomplished when some other principle—such as that, for instance, of local contiguity—establishes itself for the first time as the basis of common political action.’ The one object of ancient democracies was, in fact, to be counted of kin to the aristocracies, simply on the ground that the aristocracy of old citizens, and the democracy of new, lived within the same territorial circumscription. The goal was reached in time both by the Athenian Demos and by the Roman Plebs; but the complete victory of the Roman popular party was the source of influences which have not spent themselves at the present moment, since it is one of the causes why the passage from the Tribal to the Territorial conception of Sovereignty was much more easy and imperceptible in the modern than in the older world. I have before stated that a certain confusion, or at any rate indistinctness of discrimination, between consanguinity and common subjection to power is traceable among the rudiments of Aryan thought, and no doubt the mixture of notions has helped to bring about that identification of common nationality with common allegiance to the King, which has greatly facilitated the absorption of new bodies of citizens by modern commonwealths. But the majesty with which the memory of the Roman Empire surrounded all kings has also greatly contributed to it, and without the victory of the Roman Plebeians there would never have been, I need hardly say, any Roman Empire.
The new knowledge which has been rapidly accumulating of late years enables us to track precisely the same transmutation of ideas amid the smaller groups of kinsmen settled on land and forming, not Commonwealths, but Village-Communities. The historian of former days laboured probably under no greater disadvantage than that caused by his unavoidable ignorance of the importance of these communities, and by the necessity thus imposed upon him of confining his attention to the larger assemblages of tribesmen. It has often, indeed, been noticed that a Feudal Monarchy was an exact counterpart of a Feudal Manor, but the reason of the correspondence is only now beginning to dawn upon us, which is, that both of them were in their origin bodies of assumed kinsmen settled on land and undergoing the same transmutation of ideas through the fact of settlement. The history of the larger groups ends in the modern notions of Country and Sovereignty; the history of the smaller in the modern notions of Landed Property. The two courses of historical development were for a long while strictly parallel, though they have ceased to be so now.
The naturally organised, self-existing, Village-Community can no longer be claimed as an institution specially characteristic of the Aryan races. M. de Laveleye, following Dutch authorities, has described these communities as they are found in Java; and M. Renan has discovered them among the obscurer Semitic tribes in Northern Africa. But, wherever they have been examined, the extant examples of the group suggest the same theory of its origin which Mr. Freeman (‘Comparative Politics,’ p. 103) has advanced concerning the Germanic village-community or Mark; ‘This lowest political unit was at first, here (i. e. in England) as elsewhere, formed of men bound together by a tie of kindred, in its first estate natural, in a later stage either of kindred natural or artificial.’ The evidence, however, is now quite ample enough to furnish us with strong indications not only of the mode in which these communities began, but of the mode in which they transformed themselves. The world, in fact, contains examples of cultivating groups in every stage, from that in which they are actually bodies of kinsmen, to that in which the merest shadow of consanguinity survives and the assemblage of cultivators is held together solely by the land which they till in common. The great steps in the scale of transition seem to me to be marked by the Joint Family of the Hindoos, by the House-Community of the Southern Sclavonians, and by the true Village-Community, as it is found first in Russia and next in India. The group which I have placed at the head, the Hindoo Joint Family, is really a body of kinsmen, the natural and adoptive descendants of a known ancestor. Although the modern law of India gives such facilities for its dissolution that it is one of the most unstable of social compounds, and rarely lasts beyond a couple of generations, still, so long as it lasts, it has a legal corporate existence, and exhibits, in the most perfect state, that community of proprietary enjoyment which has been so often observed, and (let me add) so often misconstrued, in cultivating societies of archaic type. ‘According to the true notion of a joint undivided Hindoo family,’ said the Privy Council, ‘no member of the family, while it remains undivided, can predicate of the joint undivided property that he, that particular member, has a certain definite share. . . . The proceeds of undivided property must be brought, according to the theory, into the common chest or purse, and then dealt with according to the modes of enjoyment of the members of an undivided family.’ (Per Lord Westbury, Appovier v. Rama Subba Aiyan, 11 Moore’s Indian Appeals, 75.) While, however, these Hindoo families, ‘joint in food, worship, and estate,’ are constantly engaged in the cultivation of land, and dealing with its produce ‘according to the modes of enjoyment of an undivided family,’ they are not village-communities. They are only accidentally connected with the land, however extensive their landed property may be. What holds them together is not land, but consanguinity, and there is no reason why they should not occupy themselves, as indeed they frequently do, with trade or with the practice of a handicraft. The House-Community, which comes next in the order of development, has been examined by M. de Laveleye (P. et s. F. P., p. 201), and by Mr. Patterson (‘Fortnightly Review,’ No. xliv.), in Croatia, Dalmatia, and Illyria, countries which, though nearer to us than India, have still much in common with the parts of the East not brought completely under Mahometan influences; but there is reason to believe that neither Roman law nor feudalism entirely crushed it even in Western Europe. It is a remarkable fact that assemblages of kinsmen, almost precisely the counterpart of the House-Communities surviving among the Sclavonians, were observed by M. Dupin, in 1840, in the French Department of the Nièvre, and were able to satisfy him that even in 1500 they had been accounted ancient. These House-Communities seem to me to be simply the Joint Family of the Hindoos, allowed to expand itself without hindrance and settled for ages on the land. All the chief characteristics of the Hindoo institution are here—the common home and common table, which are always in theory the centre of Hindoo family life; the collective enjoyment of property and its administration by an elected manager. Nevertheless, many instructive changes have begun which show how such a group modifies itself in time. The community is a community of kinsmen; but, though the common ancestry is probably to a great extent real, the tradition has become weak enough to admit of considerable artificiality being introduced into the association, as it is found at any given moment, through the absorption of strangers from outside. Meantime, the land tends to become the true basis of the group; it is recognised as of preeminent importance to its vitality, and it remains common property, while private ownership is allowed to show itself in moveables and cattle. In the true Village-Community, the common dwelling and common table which belong alike to the Joint Family and to the House-Community, are no longer to be found. The village itself is an assemblage of houses, contained indeed within narrow limits, but composed of separate dwellings, each jealously guarded from the intrusion of a neighbour. The village lands are no longer the collective property of the community; the arable lands have been divided between the various households; the pasture lands have been partially divided; only the waste remains in common. In comparing the two extant types of Village-Community which have been longest examined by good observers, the Russian and the Indian, we may be led to think that the traces left on usage and idea by the ancient collective enjoyment are faint exactly in proportion to the decay of the theory of actual kinship among the co-villagers. The Russian peasants of the same village really believe, we are told, in their common ancestry, and accordingly we find that in Russia the arable lands of the village are periodically re-distributed, and that the village artificer, even should he carry his tools to a distance, works for the profit of his co-villagers. In India, though the villagers are still a brotherhood, and though membership in the brotherhood separates a man from the world outside, it is very difficult to say in what the tie is conceived as consisting. Many palpable facts in the composition of the community are constantly inconsistent with the actual descent of the villagers from any one ancestor. Accordingly, private property in land has grown up, though its outlines are not always clear; the periodical re-division of the domain has become a mere tradition, or is only practised among the ruder portions of the race; and the results of the theoretical kinship are pretty much confined to the duty of submitting to common rules of cultivation and pasturage, of abstaining from sale or alienation without the consent of the co-villagers, and (according to some opinions) of refraining from imposing a rack-rent upon members of the same brotherhood. Thus, the Indian Village-Community is a body of men held together by the land which they occupy: the idea of common blood and descent has all but died out. A few steps more in the same course of development—and these the English law is actually hastening—will diffuse the familiar ideas of our own country and time throughout India; the Village-Community will disappear, and landed property, in the full English sense, will come into existence. Mr. Freeman tells us that Uffington, Gillingham, and Tooting were in all probability English village-communities originally settled by the Uffingas, Gillingas, and Totingas, three Teutonic joint-families. But assuredly all men who live in Tooting do not consider themselves brothers; they barely acknowledge duties imposed on them by their mutual vicinity; their only real tie is through their common country.
The ‘natural communism’ of the primitive cultivating groups has sometimes been described of late years, and more particularly by Russian writers, as an anticipation of the most advanced and trenchant democratic theories. No account of the matter could in my judgment be more misleading. If such terms as ‘aristocratic’ and ‘democratic’ are to be used at all, I think it would be a more plausible statement that the transformation and occasional destruction of the village-communities were caused, over much of the world, by the successful assault of a democracy on an aristocracy. The secret of the comparatively slight departure of the Russian village-communities from what may be believed to have been the primitive type, appears to me to lie in the ancient Russian practice of colonisation, by which swarms were constantly thrown off from the older villages to settle somewhere in the enormous wastes; but the Indian communities, placed in a region of which the population has from time immemorial been far denser than in the North, bear many marks of past contests between the ancient brotherhood of kinsmen and a class of dependants outside it struggling for a share in the land, or for the right to use it on easy terms. I am aware that there is some grotesqueness at first sight in a comparison of Indian villagers, in their obscurity and ignorance, and often in their squalid misery, to the citizens of Athens or Rome; yet no tradition concerning the origin of the Latin and Hellenic states seems more trustworthy than that which represents them as formed by the coalescence of two or more village-communities, and indeed, even in their most glorious forms, they appear to me throughout their early history to belong essentially to that type. It has often occurred to me that Indian functionaries, in their vehement controversies about the respective rights of the various classes which make up the village-community, are unconsciously striving to adjust, by a beneficent arbitration, the claims and counter-claims of the Eupatrids and the Demos, of the Populus and the Plebs. There is even reason to think that one well-known result of long civil contention in the great states of antiquity has shown itself every now and then in the village-communities, and that all classes have had to submit to that sort of authority which assumed its most innocent shape in the office of the Roman Dictator, its more odious in the usurpation of the Greek Tyrant. The founders of a part of one modern European aristocracy, the Danish, are known to have been originally peasants who fortified their houses during deadly village struggles and then used their advantage.
Such commencements of nobility as that to which I have just referred, appear, however, to have been exceptional in the Western world, and other causes must be assigned for that great transformation of the Village-Community which has been carried out everywhere in England, a little less completely in Germany, much less in Russia and in all Eastern Europe. I have attempted in another work (‘Village-Communities in the East and West,’ pp. 131 et seq.) to give an abridged account of all that is known or has been conjectured on the subject of that ‘Feudalisation of Europe’ which has had the effect of converting the Mark into the Manor, the Village-Community into the Fief; and I shall presently say much on the new light which the ancient laws of Ireland have thrown on the early stages of the process. At present I will only observe that, when completed, its effect was to make the Land the exclusive bond of union between men. The Manor or Fief was a social group wholly based upon the possession of land, and the vast body of feudal rules which clustered round this central fact are coloured by it throughout. That the Land is the foundation of the feudal system has, of course, been long and fully recognised; but I doubt whether the place of the fact in history has been sufficiently understood. It marks a phase in a course of change continued through long ages and in spheres much larger than that of landed property. At this point the notion of common kinship has been entirely lost. The link between Lord and Vassal produced by Commendation is of quite a different kind from that produced by Consanguinity. When the relation which it created had lasted some time, there would have been no deadlier insult to the lord than to attribute to him a common origin with the great bulk of his tenants. Language still retains a tinge of the hatred and contempt with which the higher members of the feudal groups regarded the lower; and the words of abuse traceable to this aversion are almost as strong as those traceable to differences of religious belief. There is, in fact, little to choose between villain, churl, miscreant, and boor.
The break-up of the feudal group, far advanced in most European countries, and complete in France and England, has brought us to the state of society in which we live. To write its course and causes would be to re-write most of modern history, economical as well as political. It is not, however, difficult to see that without the ruin of the smaller social groups, and the decay of the authority which, whether popularly or autocratically governed, they possessed over the men composing them, we should never have had several great conceptions which lie at the base of our stock of thought. Without this collapse, we should never have had the conception of land as an exchangeable commodity, differing only from others in the limitation of the supply; and hence, without it, some famous chapters of the science of Political Economy would not have been written. Without it, we should not have had the great increase in modern times of the authority of the State—one of many names for the more extensive community held together by common country. Consequently, we should not have had those theories which are the foundation of the most recent systems of jurisprudence—the theory of Sovereignty, or (in other words) of a portion in each community possessing unlimited coercive force over the rest—and the theory of Law as exclusively the command of a sovereign One or Number. We should, again, not have had the fact which answers to these theories—the ever-increasing activity of Legislatures; and, in all probability, that famous test of the value of legislation, which its author turned into a test of the soundness of morals, would never have been devised—the greatest happiness of the greatest number.
In saying that the now abundant phenomena of primitive ownership open to our observation strongly suggest that the earliest cultivating groups were formed of kinsmen, that these gradually became bodies of men held together by the land which they cultivated, and that Property in Land (as we now understand it) grew out of the dissolution of these latter assemblages, I would not for a moment be understood to assert that this series of changes can be divided into stages abruptly separated from one another. The utmost that can be affirmed is that certain periods in this history are distinguished by the predominance, though not the exclusive existence, of ideas proper to them. Here, as elsewhere, the world is full of ‘survivals,’ and the view of society as held together by kinship still survives when it is beginning to be held together by land. Similarly, the feudal conception of social relations still exercises powerful influence when land has become a merchantable commodity. There is no country in which the theory of land as a form of property like any other has been more unreservedly accepted than our own. Yet English lawyers live in fœce feodorum. Our law is saturated with feudal principles, and our customs and opinions are largely shaped by them. Indeed, within the last few years we have even discovered that vestiges of the village-community have not been wholly effaced from our law, our usages, and our methods of tillage.
The caution that the sequence of these stages does not imply abrupt transition from any one to the next seems to me especially needed by the student of the Ancient Laws of Ireland. Dr. Sullivan, of whose Introduction to the lately published lectures of O’Curry I have already spoken, dwells with great emphasis on the existence of private property among the ancient Irish, and on the jealousy with which it was guarded. But though it is very natural that a learned Irishman, stung by the levity which has denied to his ancestors all civilised institutions, should attach great importance to the indications of private ownership in the Brehon law, I must say that they do not, in my judgment, constitute its real interest. The instructiveness of the Brehon tracts, at least to the student of legal history, seems to me to arise from their showing that institutions of modern stamp may be in existence with a number of rules by their side which savour of another and a greatly older order of ideas. It cannot be doubted, I think, that the primitive notion of kinship, as the cement binding communities together, survived longer among the Celts of Ireland and the Scottish Highlands than in any Western society, and that it is stamped on the Brehon law even more clearly than it is upon the actual land-law of India. It is perfectly true that the form of private ownership in land which grew out of the appropriation of portions of the tribal domain to individual households of tribesmen is plainly recognised by the Brehon lawyers; yet the rights of private owners are limited by the controlling rights of a brotherhood of kinsmen, and the control is in some respects even more stringent than that exercised over separate property by an Indian village-community. It is also true that another form of ownership in land, that which had its origin in the manorial authority of the lord over the cultivating group, has also begun to show itself; yet, though the Chief of the Clan is rapidly climbing to a position answering to the Lordship of a Manor, he has not fully ascended to it, and the most novel information contained in the tracts is that which they supply concerning the process of ascent.
The first instructive fact which strikes us on the threshold of the Brehon law is, that the same word, ‘Fine,’ or Family, is applied to all the subdivisions of Irish society. It is used for the Tribe in its largest extension as pretending to some degree of political independence, and for all intermediate bodies down to the Family as we understand it, and even for portions of the Family (Sullivan, ‘Introduction, clxii.). It seems certain that each of the various groups into which ancient Celtic society was divided conceived itself as descended from some one common ancestor, from whom the name, or one of the names, of the entire body of kinsmen was derived. Although this assumption was never in ancient Ireland so palpable a fiction as the affiliation of Greek races or communities on an heroic eponymous progenitor, it was probably at most true of the Chief and his house so far as regarded the Irish Tribe taken as a political unit. But it is probable that it was occasionally, and even often true of the smaller group, the Sept, sub-Tribe, or Joint Family, which appears to me to be the legal unit of the Brehon tracts. The traditions regarding the eponymous ancestor of this group were distinct and apparently trustworthy, and its members were of kin to one another in virtue of their common descent from the ancestor who gave his name to all. The chief for the time being was, as the Anglo-Irish judges called him in the famous ‘Case of Gavelkind,’ the caput cognationis.
Not only was the Tribe or Sept named after this eponymous ancestor, but the territory which it occupied also derived from him the name which was in commonest use. I make this remark chiefly because a false inference has been drawn from an assertion of learned men concerning the connection between names of families and names of places, which properly understood is perfectly sound. It has been laid down that, whenever a family and place have the same name, it is the place which almost certainly gave its name to the family. This is no doubt true of feudalised countries, but it is not true of countries as yet unaffected by feudalism. It is likely that such names as ‘O’Brien’s Country’ and ‘Macleod’s Country’ are as old as any appropriation of land by man; and this is worth remembering when we are tempted to gauge the intelligence of an early writer by the absurdity of his etymologies. ‘Hibernia’ from an eponymous discoverer, ‘Hyber,’ sounds ridiculous enough; but the chronicler who gives it may have been near enough the age of tribal society to think that the connection between the place and the name was the most natural and probable he could suggest. Even the most fanciful etymologies of the Greeks, such as Hellespont, from Helle, may have been ‘survivals’ from a primitive tribal system of naming places. In the relation between names and places, as in much more important matters, feudalism has singularly added to the importance of land.
Let me now state the impression which, partly from the examination of the translated texts, legal and non-legal, and partly by the aid of Dr. Sullivan’s Introduction, I have formed of the agrarian organisation of an Irish Tribe. It has been long settled, in all probability, upon the tribal territory. It is of sufficient size and importance to constitute a political unit, and possibly at its apex is one of the numerous chieftains whom the Irish records call Kings. The primary assumption is that the whole of the tribal territory belongs to the whole of the tribe, but in fact large portions of it have been permanently appropriated to minor bodies of tribesmen. A part is allotted in a special way to the Chief as appurtenant to his office, and descends from Chief to Chief according to a special rule of succession. Other portions are occupied by fragments of the tribe, some of which are under minor chiefs or ‘flaiths,’ while others, though not strictly ruled by a chief, have somebody of a noble class to act as their representative. All the unappropriated tribe-lands are in a more especial way the property of the tribe as a whole, and no portion can theoretically be subjected to more than a temporary occupation. Such occupations are, however, frequent, and among the holders of tribe-land, on these terms, are groups of men calling themselves tribesmen, but being in reality associations formed by contract, chiefly for the purpose of pasturing cattle. Much of the common tribe-land is not occupied at all, but constitutes, to use the English expression, the ‘waste’ of the tribe. Still this waste is constantly brought under tillage or permanent pasture by settlements of tribesmen, and upon it cultivators of servile status are permitted to squat, particularly towards the border. It is the part of the territory over which the authority of the Chief tends steadily to increase, and here it is that he settles his ‘fuidhir,’ or stranger-tenants, a very important class—the outlaws and ‘broken’ men from other tribes who come to him for protection, and who are only connected with their new tribe by their dependence on its chief, and through the responsibility which he incurs for them.
There is probably great uniformity in the composition of the various groups occupying, permanently or temporarily, the tribal territory. Each seems to be more or less a miniature of the large tribe which includes them all. Each probably contains freemen and slaves, or at all events men varying materially in personal status, yet each calls itself in some sense a family. Each very possibly has its appropriated land and its waste, and conducts tillage and grazing on the same principles. Each is either under a Chief who really represents the common ancestor of all the free kinsmen, or under somebody who has undertaken the responsibilities devolving according to primitive social idea upon the natural head of the kindred. In enquiries of the class upon which we are engaged the important fact which I stated here three years ago should always be borne in mind. When the first English emigrants settled in New England they distributed themselves in village communities; so difficult is it to strike out new paths of social life and new routes of social habit. It is all but certain that, in such a society as that of which we are speaking, one single model of social organisation and social practice would prevail, and none but slight or insensible departures from it would be practicable or conceivable.
But still the society thus formed is not altogether stationary. The temporary occupation of the common tribe-land tends to become permanent, either through the tacit sufferance or the active consent of the tribesmen. Particular families manage to elude the theoretically periodical re-division of the common patrimony of the group; others obtain allotments with its consent as the reward of service or the appanage of office; and there is a constant transfer of lands to the Church, and an intimate intermixture of tribal rights with ecclesiastical rights. The establishment of Property in Severalty is doubtless retarded both by the abundance of land and by the very law under which, to repeat the metaphor of the Indian poetess, the tribal society has crystallised, since each family which has appropriated a portion of tribe-land tends always to expand into an extensive assemblage of tribesmen having equal rights. But still there is a co-operation of causes always tending to result in Several Property, and the Brehon law shows that by the time it was put into shape they had largely taken effect. As might be expected, the severance of land from the common territory appears to have been most complete in the case of Chiefs, many of whom have large private estates held under ordinary tenure in addition to the demesne specially attached to their signory.
Such is the picture of Irish tribal organisation in relation to the land which I have been able to present to my own mind. All such descriptions must be received with reserve: among other reasons, because even the evidence obtainable from the law-tracts is still incomplete. But if the account is in any degree correct, all who have attended to this class of subjects will observe at once that the elements of what we are accustomed to consider the specially Germanic land-system are present in the territorial arrangements of the Irish tribe. Doubtless there are material distinctions. Kinship as yet, rather than landed right, knits the members of the Irish groups together. The Chief is as yet a very different personage from the Lord of the Manor. And there are no signs as yet even of the beginnings of great towns and cities. Still the assertion, which is the text of Dr. Sullivan’s treatise, may be hazarded without rashness, that everything in the Germanic has at least its embryo in the Celtic land system. The study of the Brehon law leads to the same conclusion pointed at by so many branches of modern research. It conveys a stronger impression than ever of a wide separation between the Aryan race and races of other stocks, but it suggests that many, perhaps most, of the differences in kind alleged to exist between Aryan subraces are really differences merely in degree of development. It is to be hoped that contemporary thought will before long make an effort to emancipate itself from those habits of levity in adopting theories of race which it seems to have contracted. Many of these theories appear to have little merit except the facility which they give for building on them inferences tremendously out of proportion to the mental labour which they cost the builder.