Lectures on the Early History of Institutions | Page 3

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. Let it farther be recollected that this law was at first
expanded and enveloped, not at all, or very slightly, by legislation, but
by a process which we may perceive still in operation in various
communities -- the juridical interpretation of authoritative texts by
successive generations of learned men. Now, the largest collection of
Irish legal rules, which has