lect04
Author: Unknown
Date: 0101-01-01T00:00:00+00:00

Lecture IV

The Tribe and the Land

It has been very commonly believed that, before the agrarian measures of James the First, Ireland was one of the countries in which private property in land was invested with least sacredness, and in which forms of ownership generally considered as barbarous most extensively prevailed. Spenser and Davis certainly suggest this opinion, and several modern writers have adopted it. The Brehon law-tracts prove, however, that it can only be received with considerable qualification and
modification, and they show that private property, and especially private property in land, had long been known in Ireland at the epoch to which they belong, having come into existence either through the natural 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. cxliv)

Part of the evidence of the fact just stated is tolerably familiar to students of Irish history. At the beginning of the seventeenth century the Anglo-Irish Judges declared the English Common Law to be in force throughout Ireland, and from the date of this decision all land in the country descended to the eldest son of the last owner, unless its devolution was otherwise determined by settlement or will. In Sir John Davis’s report of the case and of the arguments before the Court, it is recited that hitherto all land in Ireland had descended either under the rule of Tanistry or under the rules of Gavelkind. The system of inheritance here called Gavelkind is thus described: When a landowning member of an Irish Sept died, its chief made a 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 so-called 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., re-division 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 eldest son.

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 tenant-families periodically, and sometimes annually. Even when no such division was made, a well-known relic of the Mark-system, as it showed itself in Germany and England, was 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 village-communities 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 re-division to have been once universal, or at least widely extended, among the Scottish Celts.

It is to be observed that (so far as I am able to learn) the Irish holdings in ‘rundale’ are not forms of property, but modes of occupation. There is always some person above who is legally owner of all the land held by the group of families, and who, theoretically, could change the method of holding, although, practically, popular feeling would put the greatest difficulties in his way. We must bear in mind, however, that archaic kinds of tenancy are 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 waste-lands become in time the lord’s waste, or (in an earlier state of society) through the sinking of whole communities of peasants into villeinage, and through a consequent transformation of the legal theory of their rights. But all this process of change would be gravely 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 law-tract, which sets forth the mutual rights of the collective tribe and of individual tribesmen or households of tribesmen in respect of tribal property, is called the Corus Bescna, and is printed in the Third Volume of the official edition. It presents great difficulties. I quite agree with the Editors that the commentary and glosses constantly contradict and obscure the text, either because the commentators did not understand it or because they belonged to a later period and a different stage of legal relations. But the most serious doubt which occurs to the student of the text arises from the strong and palpable bias of the compiler towards the interests of the Church; indeed, part of the tract is 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 their country was capable of making.

My own strong opinion is that the ‘Fine,’ whose rights and powers are the principal theme of the Corus Bescna, and whose name the translators render ‘Tribe,’ is neither the Tribe in its largest extension, nor, on the other hand, the modern Family or group of descendants from a living ancestor, but the Sept. It is a body of kinsmen whose progenitor is no longer living, but whose descent from him is a reality, and neither a myth nor a fiction.

It is the Joint Family of the Hindoos, but with the
characteristics of that group considerably modified through settlement on the land. This peculiar assemblage or corporation of blood-relatives, which has been referred to by me 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, great-uncles, uncles, and cousins, no less than those related to us in the ascending and descending lines —
might very well, after any number of deaths, remain knitted together not only by blood and affection, but by mutual rights and duties prescribed or sanctioned by the law. An association of this sort is well known to the law of India as the Joint Undivided Family, or, to give the technical description, the Family, ‘joint in food, worship, and estate.’ If a Hindoo has become the root of a family it is not necessarily separated by his death; his children continue united for legal purposes as a corporate brotherhood, and some definite act of one or more of the brethren is required to effect a dissolution of the plexus of mutual rights and a partition of the family property. The family thus formed by the continuance of several generations in union is identical in outline with a group very familiar to the students of the older Roman law — the Agnatic Kindred. The Agnates 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 sacerdotal point of view merely takes the place of the legal or civil.

So far as we are able, amid the disadvantages under which we are placed by the obscurity of our authorities, let us examine the legal qualities which the ancient Irish law attributes to this brotherhood of kinsmen as it was found in Ireland. First of all, the ‘Tribe’ of the Brehon tracts is a corporate, organic, self-sustaining unit. ‘The Tribe sustains itself.’ (‘Ancient Laws of Ireland,’ ii. 283.) Its continuity has begun to depend on the land which it occupies — ‘land,’ says one of the still unpublished tracts, ‘is perpetual man’ — but it is not a purely 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. 49-51.) A portion of the tribal domain, probably the arable and choice pasture lands, has been allotted to separate households of tribesmen, but they hold their allotments subject 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 one-third or one-half of his tribeland).’ ‘He who neither sells nor purchases may give as far as the third of his tribe-share in case of little necessity and one-half in case of great necessity’ (‘Ancient Laws of Ireland,‘iii. 47.) ‘If it be land that acquires it, it is one-half;… if he be a professional man, it is two-thirds 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 village-communities; 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 dancing-girl. 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 man-that is, if the property be acquired by judicature or poetry, or any profession whatsoever —
he is capable of giving two-thirds of it to the Church… but, if it was the lawful profession of his tribe, he shall not give of the emolument of his profession but just as he could give of the land of his tribe.’ (Corus Bescna, ‘Ancient Laws of Ireland,’

iii. 5.) It will be seen from the instances which I have given that the rules of the Irish Brehon law regulating the power of individual tribesmen to alienate their separate property answer to the rules of Indian Brahminical law which regulate the power of 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 Village-Community, in which the ideas proper to the older group out of which it grew, the Joint Family, have survived in exceptional strength It in this respect approaches the Russian rather than the Indian type of village-community.

The ‘Judgments of Co-Tenancy’ is a Brehon law-tract, still unpublished at the time at which I write, and presenting, in its present state, considerable difficulties of interpretation. It puts, at the outset, the question, — ‘Whence does Co-Tenancy arise?’ The answer given is, ‘From several heirs and from their increasing on the land.’ The tract then goes on to explain that the land is, in the first year, to be tilled by the kinsmen just as each pleases; that in the second year they are to exchange lots; that in the third year the boundaries are to be fixed; and that the whole process of severance is to 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 non-legal Irish literature appear to be very rare. But my friend Mr Whitley Stokes has supplied me with two passages in point. The ‘Liber Hymnorum,’

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.

658-694), and such was their number that they used to get only thrice nine ridges for each man in Ireland, to wit, nine of bog, and nine of smooth (arable), and nine of wood.’ Another Irish manuscript, believed to date from the twelfth century, the ‘Lebor na Huidre,’ Says that ‘there was not ditch, nor fence, nor stone-wall round land, till came the period of the sons of Aed Slane, but (only) smooth fields. Because of the abundance of the households in their period, 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 Hundreds.

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 over-estimating 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 ever-increasing 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 are still found making a part of Aryan communities.

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 great-grandfather. 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 House-Communities (which, however, are much more artificial than the Hindoo Joint Families) is undisguisedly an elective representative, and in some of our examples a council of kinsmen belonging to the eldest line of descent takes the place of an individual administrator. The whole process I will describe as the gradual transmutation of the Patriarch into the Chief. The general rule is that the Chief is elected, with a strong preference for the eldest line. Sometimes he is assisted by a definite council of near kinsmen, and sometimes this council takes his place. On the whole, where the body of kinsmen formed on the type of the Joint Family is a purely civil institution, the tendency is towards greater disregard of the claims of blood. But in those states of society in which the brotherhood is not merely a civil confraternity, but a political, militant, self-sustaining group, we can 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 Village-Community, as the little society becomes more populous, as the village spreads, as the practice of living in separate dwellings extends, as the land rather than the common lineage gets to be 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.