Lectures on the Early History of Institutions | Page 2

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