lect04-第3节
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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 i
