Lecture III

Kinship as the Basis of Society

    The most recent researches into the primitive history of
society point to the conclusion that the earliest tie which
knitted men together in communities was Consanguinity or Kinship.
The subject has been approached of late years from several
different sides, and there has been much dispute as to what the
primitive blood-relationship implied, and how it arose; but there
has been general agreement as to the fact I have stated. The
caution is perhaps needed that we must not form too loose a
conception of the kinship which once stood in the place of the
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 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 compiled in it are most distinctly regarded
as kinsmen, or as servile or semi-servile 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
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 aggregation s 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 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 House-Communities 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 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 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
pre-eminent importance to its vitality, and it remains common
property, while private ownership is allowed to show itself in
moveables and cattle. In the true Village-Community, the common
dwelling and 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 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 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
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 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 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 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 sub-races are
really differences merely in degree of development. It is to be
hoped that contemporary thought will before long make an effort
to emancipate itself from those habits of levity in adopting
theories of race which it seems to have contracted. Many of 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.