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
re-distribution 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 re-distributed
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
land-owning 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 tribe-land intact. 'Every
tribesman is able to keep his tribe-land; 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 tribe-land 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 tribe-land
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 tribe-land).' '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 tribe-lands. 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.