Henry Sumner Maine

Henry Sumner Maine

(1822-1888)

Lectures on the Early History of Institutions

Lectures on the Early History of Institutions by Henry Sumner Maine 1875 John Murray Ltd. London, 1875. Preface In the Lectures printed in this Volume an attempt is made to carry farther in some particulars the line of investigation pursued by the Author in an earlier work on 'Ancient Law'. The fortunes of the legal system which then supplied him with the greatest number of his illustrations have been strikingly unlike those of another body of law from which he has now endeavoured to obtain some new materials for legal and social history. The Roman Law has never ceased to be spoken of with deep respect, and it is in fact the source of the greatest part of the rules by which civil life is still governed in the Western World. The Ancient Irish Law, the so-called Brehon Law, has been for the most part bitterly condemned by the few writers who have noticed it; and, after gradually losing whatever influence it once possessed in the country in which it grew up, in the end it was forcibly suppressed. Yet the very cases which have denied a modern history to the Brehon Law have given it a especial interest of its own in our day through the arrest of its development; and this interest, the Author hopes, is sufficient to serve as his excuse for making the conclusions it suggests the principal subject of the Lectures now published, except the last three. The obligations oŁ the Author to various Gentlemen for instruction derived from their published writings or private communications are acknowledged in the body of the work, but he has to express his especial thanks to the Bishop of Limerick, and to Professor Thaddeus O'Mahony, for facilities of access to the still unpublished translations of Brehon manuscripts, as well as for many valuable suggestions. The Lectures (with the omission of portions) have all been delivered at Oxford. 27 Cornwall Gardens, London, S.W.; November 1874. Lecture One. New Materials for the Early History of Institutions The sources of information concerning the early history of institutions which have been opened to us are numerous and valuable. On one subject in particular, which may be confidently said to have been almost exclusively investigated till lately by writers who had followed a false path, the additions to our knowledge are of special interest and importance. We at length know something concerning the beginnings of the great institution of Property in Land. The collective ownership of the soil by groups of men either in fact united by blood-relationships, or believing or assuming that they are so united, is now entitled to take rank as an ascertained primitive phenomenon, once universally characterising those communities of mankind between whose civilisation and our own there is any distinct connection or analogy. The evidence has been found on all sides of us, dimly seen and verifiable with difficulty in countries which have undergone the enormous pressure of the Roman Empire, or which have been strongly affected by its indirect influence, but perfectly plain and unmistakeable in the parts of the world, peopled by the Aryan race, where the Empire has made itself felt very slightly or not at all. As regards the Sclavonic communities, the enfranchisement of the peasantry of the Russian dominions in Europe has given a stimulus to enquiries which formerly had attractions for only a few curious observers, and the amount of information collected has been very large. We now know much more clearly than we did before that the soil of the older provinces of the Russian Empire has been, from time immemorial, almost exclusively distributed among groups of self-styled kinsmen, collected in cultivating village-communities, self-organised and self-governing; and, since the great measure of the present reign, the collective rights of these communities, and the rights and duties of their members in respect of one another, are no longer entangled with and limited by the manorial privileges of an owner-in-chief. There is also fresh evidence that the more backward of the outlying Sclavonic societies are constituted upon essentially the same model; and it is one of the facts with which the Western world will some day assuredly have to reckon, that the political ideas of so large a portion of the human race, and its ideas of property also, are inextricably bound up with the notions of family interdependency, of collective ownership, and of natural subjection to patriarchal power. The traces of the ancient social order in the Germanic and Scandinavian countries are, I need scarcely say, considerably fainter, and tend always to become more obscured; but the re-examination of the written evidence respecting ancient Teutonic life and custom proceeds without intermission, and incidentally much light has been thrown on the early history of property by the remarkable work of Sohm ('Frankische Reichs-und Gerichtsverfassung'). The results obtained by the special method of G.L. Von Maurer have meantime been verified by comparison with phenomena discovered in the most unexpected quarters. The researches of M. de Laveleye, in particular, have been conducted over a field of very wide extent; and, although I dissent from some of the economic conclusions to which he has been led, I cannot speak too highly of the value of the materials collected by him, and described in the recently published volume which he has entitled "La Propriete et ses Formes Primitives". I have not observed that the vestiges left on the soil and law of England and of the Scottish Lowlands by the ancient Village-Community have been made the subject of any published work since the monograph of Nasse on the "Land Community of the Middle Ages" was given to the world, and since the lectures delivered in this place three years since appeared in print. Nobody, however, who knows the carefulness with which an English Court of Justice sifts the materials brought before it will wonder at my attaching a special importance to the judgment of Lord Chancellor Hatherley, given in a difficult case which arose through a dispute between different classes of persons interested in a manor, Warrick against Queen's college, Oxford (reported in 6 Law Reports, Chancery Appeals, 716). It appears to me to recognise the traces of a state of things older than the theoretical basis of English Real Property Law, and, so far as it goes, to allow that the description of it given here was correct. Meanwhile, if I may judge from the communications which do not cease to reach me from India, and from various parts of this country, the constitution of the Village-Community, as it exists, and as it existed, is engaging the attention of a large number of industrious observers, and the facts bearing upon the subject, which I hope will some day be made public, prove to exist in extraordinary abundance. There was not set of communities which until recently supplied us with information less in amount and apparent value concerning the early history of law than those of Celtic origin. This was the more remarkable, because one particular group of small Celtic societies, which have engrossed more than their share of the interest of this country -- the clans of the Scottish Highlands -- had admittedly retained many of the characteristics, and in particular the political characteristics of a more ancient condition of the world, almost down to our own day. But the explanation is, that all Celtic societies were until recently seen by those competent to observe them through a peculiarly deceptive medium. A veil spread by the lawyers, a veil woven of Roman law and of the comparatively modern combination of primitive and Roman law which we call feudalism, hung between the Highland institutions and the shrewd investigating genius of the Scottish Lowlanders. A thick mist of feudal law hid the ancient constitution of Irish society from English observation, and led to unfounded doubts respecting the authenticity of the laws of Wales. The ancient organisation of the Celts of Gaul, described by Caesar with the greatest clearness and decisiveness, appeared to have entirely disappeared from France, partly because French society was exclusively examined for many centuries by lawyers trained either in Roman or in highly feudalised law, but partly also because the institutions of the Gallic Celts had really passed under the crushing machinery of Roman legislation. I do not, indeed, mean to say that this darkness has not recently given signs of lifting. It has been recognized that the collections of Welsh laws published by the Record Commission, though their origin and date are uncertain, are undoubtedly bodies of genuine legal rules; and, independently of the publications to which I am about to direct attention, the group of Irish scholars, which has succeeded a school almost infamous for the unchastened license of its speculations on history and philology, had pointed out many things in Irish custom which connected it with the archaic practices known to be still followed or to have been followed by the Germanic races. As early as 1837 Mr W.F. Skene, in a work of much value called "The Highlanders of Scotland", had corrected many of the mistakes on the subject of Highland usage into which writers exclusively conversant with feudal rules had been betrayed; and the same eminent antiquarian, in an appendix to his edition of the Scottish chronicler, Fordun, published in 1872, confirms evidence which had reached me in considerable quantities from private sources to the effect that village-communities with 'shifting severalties' existed in the Highlands within living memory. Quite recently, also, M. Le Play and others have come upon plain traces of such communities in several parts of France. A close re-examination of the Custumals or manuals of feudal rules plentiful in French legal literature, led farther to some highly interesting results. It clearly appeared from them that communities of villeins were constantly found on the estates of the French territorial nobility. The legal writers have always represented these as voluntary associations which were rather favoured by the lord on account of the greater certainty and regularity with which their members rendered him suit and service. As a rule, when a tenant holding by base tenure died, the lord succeeded in the first instance to his land, a rule of which there are plain traces in our English law of copyhold. But it is expressly stated that, in the case of an association of villeins, the lord did not resume their land, being supposed to be compensated by their better ability to furnish his dues. Now that the explanation has once been given, there can be no doubt that these associations were not really voluntary partnerships, but groups of kinsmen; not, however, so often organised on the ordinary type of the Village-Community as on that of the House-Community, which has recently been examined in Dalmatia and Croatia. Each of them was what the Hindoos call a Joint Undivided Family, a collection of assumed descendants from a common ancestor, preserving a common hearth and common meals during several generations. There was no escheat of the land to the lord on a death, because such a corporation never dies, and the succession is perpetual. But much the most instructive contribution to our knowledge of the ancient Celtic societies has been furnished by the Irish Government, in the translations of the Ancient Laws of Ireland, which have been published at its expense. The first volume of these translations was published in 1865; the second in 1869; the third, enriched with some valuable prefaces, has only just appeared. No one interested in the studies which are now occupying us could fail to recognise the importance of the earlier volumes, but there was much difficulty in determining their exact bearing on the early history of Celtic institutions. The bulk of the law first published consisted in a collection of rules belonging to what in our modern legal language we should call the Law of Distress. Now, in very ancient bodies of rules the Law of Distress, as I shall endeavour to explain hereafter, is undoubtedly entitled to a very different place from that which would be given to it in any modern system of jurisprudence; but still it is a highly special branch of law in any stage of development. There is, however, another more permanent and more serious cause of embarrassment in drawing conclusions from these laws. Until comparatively lately they were practically unintelligible; and they were restored to knowledge by the original translators, Dr O'Donovan and Dr O'Curry, two very remarkable men, both of whom are now dead. The translations have been carefully revised by the learned editor of the Irish text; but it is probable that several generations of Celtic scholars will have had to interchange criticisms on the language of the laws before the reader who approaches them without any pretension to Celtic scholarship can be quite sure that he has the exact meaning of every passage before him. The laws, too, I need scarcely say, are full of technical expressions; and the greatest scholar who has not had a legal training -- and, indeed, up to a certain point when he has had a legal training -- may fail to catch the exact excess or defect of meaning which distinguishes a word in popular use from the same word employed technically. Such considerations suggest the greatest possible caution in dealing with this body of rules. In what follows I attempt to draw inferences only when the meaning and drift of the text seem reasonably certain, and I have avoided some promising lines of enquiry which would lead us through passages of doubtful signification. The value which the Ancient Laws of Ireland, the so-called Brehon laws, will possess when they are completely published and interpreted, may, I think, be illustrated in this way. Let it be remembered that the Roman Law, which, next to the Christian Religion, is the most plentiful source of the rules governing actual conduct throughout Western Europe, is descended from a small body of Aryan customs reduced to writing in the fifth century before Christ, and known as the Twelve Tables of Rome.