Lectures on the Early History of Institutions | Page 2

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