Re: Lecture VII
Searles

Sun Sep 27 21:04:31 1998
*br*    I do not think that the disaffirmation of the legality of*br*Tanistry, and the substitution for it of the rule of*br*Primogeniture, can justly be reckoned among the mistakes or*br*crimes of the English in Ireland. The practice had been*br*perpetuated in the country by its disorders, which preserved*br*little groups of kinsmen and their petty chiefs in an unnatural*br*vitality; and probably Sir John Davis does not speak too harshly*br*of it when he charges it with 'making all possessions uncertain,*br*and bringing confusion, barbarism, and incivility.' The decision*br*against the Irish Gavelkind was far less justifiable. Even if the*br*institution were exactly what Davis supposed it to be, there was*br*in.justice in suddenly disappointing the expectations of the*br*distant kindred who formed the sept of the last holder: but it is*br*probable that several different modes of succession were*br*confounded under the name of Gavelkind, and that in many cases a*br*number of children were unjustifiably deprived of their*br*inheritance for the advantage of one. All that can be said for*br*the authors of the revolution is that they seem to have sincerely*br*believed the mischievousness of the institutions they were*br*destroying; and it is some evidence of this that, when their*br*descendants a century later really wished to inflict an injury on*br*the majority of Irishmen, they re-introduced Gavelkind, though*br*not in its most ancient shape. They 'gavelled' the lands of*br*Papists and made them descendible to all the children alike.*br*There seems to me a melancholy resemblance between some of the*br*mistakes which, at two widely distant epochs, were committed by*br*Englishmen, apparently with the very best intentions, when they*br*were brought into contact with stages in the development of*br*institutions earlier than that which their own civilisation had*br*reached. Sir John Davis's language on the subject of the Irish*br*custom of Gavelkind might be that of an Anglo-Indian lawyer who*br*should violently censure the Brahminical jurists for not*br*confounding families with joint undivided families. I do not know*br*that any such mistake has been made in India, though undoubtedly*br*the dissolution of the Joint Family was in the early days of our*br*government unduly encouraged by our Courts. But there is a closer*br*and more unfortunate similarity between some of the English*br*experiments in Ireland and those tried in India. Under an Act of*br*the twelfth year of Queen Elizabeth the Lord Deputy was empowered*br*to take surrenders and regrant estates to the Irishry. The Irish*br*lords, says Davis, 'made surrenders of entire countries, and*br*obtained grants of the whole again to themselves only, and none*br*other, and all in demesne. In passing of which grants, there was*br*no care taken of the inferior septs of people.... So that upon*br*every such surrender or grant, there was but one freeholder made*br*in a whole country, which was the lord himself; all the rest were*br*but tenants at will, or rather tenants in villenage.' There are*br*believed to be many indian joint-families or septs which, in*br*their later form of village-communities, had the whole of their*br*lands similarly conferred on a single family out of their number,*br*or on a royal tax-gatherer outside them, under the earliest*br*Indian settlements. The error was not in introducing absolute*br*ownership into Ireland or India, but in the apportionment of the*br*rights of which property is made up. How, indeed, this*br*apportionment shall be wisely and justly made, when the time has*br*fully come for putting individual property in the place of*br*collective property by a conscious act of the State, is a problem*br*which taxes to the utmost the statesmanship of the most advanced*br*era, when animated by the highest benevolence and informed with*br*the widest knowledge. It has been reserved for our own generation*br*to witness the least unsatisfactory approach which has hitherto*br*been made towards the settlement of this grave question in the*br*great measures collectively known as the enfranchisement of the*br*Russian serfs.*br*    The Irish practice of Tanistry connects itself with the rule*br*of Primogeniture, and the Irish Gavelkind with the rules of*br*succession most widely followed among both the Eastern and*br*Western branches of the Aryan race; but there are some passages*br*in the Brehon tracts which describe an internal division of the*br*Irish Family, a classification of its members and a corresponding*br*system of succession to property, extremely unlike any*br*arrangement which we, with our ideas, can conceive as growing out*br*of blood-relationship. Possibly, only a few years ago, these*br*passages would have been regarded as possessing too little*br*interest in proportion to their difficulty for it to be worth*br*anybody's while to bestow much thought upon their interpretation.*br*But some reasons may be given why we cannot wholly neglect them.*br*The distribution of the Irish Family into the Geilfine, the*br*Deirbhfine, the Iarfine, and the Indfine -- of which expressions*br*the three last are translated the True, the After, and the End*br*Families -- is obscurely pointed at in several texts of the*br*earlier volumes of the translations; but the Book of Aicill, in*br*the Third Volume, supplies us for the first time with statements*br*concerning it having some approach to precision. The learned*br*Editor of this volume, who has carefully examined them, describes*br*their effect in the following language: 'Within the Family,*br*seventeen members were organised in four divisions, of which the*br*junior class, known as the Geilfine division, consisted of five*br*persons; the Deirbhfine, the second in order; the Iarfine, the*br*third in order; and the Indfine, the senior of all, consisted*br*respectively of four persons. The whole organisation consisted,*br*and could only consist, of seventeen members. If any person was*br*born into the Geilfine division, its eldest member was promoted*br*into the Deirbhfine, the eldest member of the Deirbhfine passed*br*into the Iarfine; the eldest member of the Iarfine moved into the*br*Indfine; and the eldest member of the Indfine passed out of the*br*organisation altogether. It would appear that this transition*br*from a lower to a higher grade took place upon the introduction*br*of a new member into the Geilfine division, and therefore*br*depended upon the introduction of new members, not upon the death*br*of the seniors.' It seems an inference from all the passages*br*bearing on the subject that any member of the Joint-family or*br*Sept might be selected as the starting-point, and might become a*br*root from which sprung as many of these groups of seventeen men*br*as he had sons. As soon as any one of the sons had four children,*br*a full Geilfine sub-group of five persons was formed; but any*br*fresh birth of a male child to this son or to any of his male*br*descendants had the effect of sending up the eldest member of the*br*Geilfine sub-group, provided always he were not the person from*br*whom it had sprung, into the Deirbhfine. A succession of such*br*births completed in time the Deirbhfine division, and went on to*br*form the Iarfine and the Indfine, the After and the End Families.*br*The essential principle of the system seems to me a distribution*br*into fours. The fifth person in the Geilfine division I take to*br*be the parent from whom the sixteen descendants spring, and it*br*will be seen, from the proviso which I inserted above, that I do*br*not consider his place in the organisation to have been ever*br*changed. He appears to be referred to in the tracts as the*br*Geilfine Chief.*br*    The interest of this distribution of the kinsmen consists in*br*this: whatever else it is, it is not a classification of the*br*members of the family founded on degrees of consanguinity, as we*br*understand them. And, even if we went no farther than this, the*br*fact would suggest the general reflection which often occurs to*br*the student of the history of law, that many matters which seem*br*to us altogether simple, natural, and therefore probably*br*universal, are in reality artificial and confined to limited*br*spheres of application. When one of us opens his Prayer-book and*br*glances at the Table of Prohibited Degrees, or when the law*br*student turns to his Blackstone and examines the Table of*br*Descents, he possibly knows that disputes have arisen about the*br*rights and duties proper to be adjusted to these scales of*br*relationship, but it perhaps has never occurred to him that any*br*other view of the nature of relationship than that upon which*br*they are based could possibly be entertained. Yet here in the*br*Book of Aicill is a conception of kinship and of the rights*br*flowing from it altogether different from that which appears in*br*the Tables of Degrees and of Descents. The groups are not formed*br*upon the same principles, nor distinguished from one another on*br*the same principles. The English Tables are based upon a*br*classification by degrees, upon identity in the number of*br*descents by which a given class of persons are removed from a*br*given person. But the ancient Irish classification obviously*br*turns upon nothing of the sort. A Geilfine class may consist of a*br*father and four sons who are not in the same degree, and the*br*Brehon writers even speak of its consisting of a father, son,*br*grandson, great-grandson, and great-great-grandson, which is a*br*conceivable case of Geilfine relationship, though it can scarcely*br*have been a common one. Now, each of these relatives is in a*br*different degree from the others. Yet this distribution of the*br*family undoubtedly affected the law of inheritance, and the*br*Geilfine class, to our eyes so anomalous, might succeed in*br*certain eventualities to the property of the other classes, of*br*which the composition is in our eyes equally arbitrary.*br*    This singular family organisation suggests, however, a*br*question which, in the present state of enquiry on the subject*br*which occupies us, cannot fairly be avoided. I have spoken before*br*of a volume on 'Systems of Consanguinity and Affinity in the*br*Human Family,' published by the Smithsonian institute at*br*Washington. The author, Mr Lewis Morgan, is one of the*br*comparatively few Americans who have perceived that, if only on*br*the score of the plain extant evidences of the civilisation which*br*was once enjoyed and lost by some branches of their stock, the*br*customs and ideas of the Red Indians deserve intelligent study.*br*In prosecuting his researches Mr Morgan was struck with the fact*br*that the conception of Kinship entertained by the Indians, though*br*extremely clear and precise, and regarded by them as of much*br*importance, was extremely unlike that which prevails among the*br*now civilised races. He then commenced a laborious investigation*br*of the whole subject, chiefly through communications with*br*correspondents in all parts of the world. The result at which he*br*arrived was that the ideas on the subject of relationship*br*entertained by the human family as a whole were extraordinarily*br*various, but that a generalisation was possible, and that these*br*ideas could be referred to one or other of two distinct systems,*br*which Mr Morgan calls respectively the Descriptive and the*br*Classificatory system. The time at our command will only allow me*br*to explain his meaning very briefly. The Descriptive system is*br*that to which we are accustomed. It has come to us from the Canon*br*law, or else from the Roman law, more particularly as declared in*br*the 118th Novel of Justinian, but it is not at all confined to*br*societies deeply affected by Civil and Canon law. Its essence*br*consists in the giving of separate names to the classes of*br*relatives which are formed by the members of the family who are*br*removed by the same number of descents from yourself, the ego or*br*propositus, or from some common ancestor. Thus, your uncle stands*br*to you in the third degree, there being one degree or step from*br*yourself to your father or mother, a second from your father or*br*mother to their parents, a third from those parents to their*br*other children, among whom are your uncles. And 'uncle' is a*br*general name for all male relatives standing to you in this third*br*degree. The other names employed under the Descriptive system are*br*among the words in most common use; yet it is to be noted that*br*the system cannot in practice be carried very far. We speak of*br*uncle, aunt, nephew, niece, cousin; but then we get to*br*great-uncle, grand-nephew, and so forth, and at length lose our*br*way amid complications of 'great' and 'grand' until we cease to*br*distinguish our distant kindred by particular designations. The*br*Roman technical law went considerably farther than we do with the*br*specific nomenclature of relatives; yet there is reason to think*br*that the popular dialects of Latin were more barren, and no*br*Descriptive system can go on indefinitely with the process. On*br*the other hand, the Classificatory system groups the relatives in*br*classes, often large ones, which have no necessary connection*br*with degrees. Under it a man's father and his uncles are grouped*br*together, sometimes his uncles on his father's side, sometimes on*br*the mother's side, sometimes on both; and perhaps they are all*br*inherently called his fathers. Similarly, a man's brothers and*br*all his male cousins may be classed together and called his*br*brothers. The effect of the system is in general to bring within*br*your mental grasp a much greater number of your kindred than is*br*possible under the system to which we are accustomed. This*br*advantage is gained, it is true, at the expense of the power of*br*discriminating between the members of the several classes, but*br*still it may be very important in certain states of society,*br*since each of the classes usually stands under some sort of*br*conjoint responsibility.*br*    I am not now concerned with the explanation of the*br*Classificatory system of Kinship. Mr. Morgan and the school to*br*which he belongs find it, as I said before, in a state of sexual*br*relations, alleged to have once prevailed universally throughout*br*the human race, and known now to occur in some obscure fragments*br*of it. The fullest account of the condition of society in which*br*these views of relationship are believed to have grown up may be*br*read in Mr McLennan's most original work on Primitive Marriage.*br*The point before us, however, is whether we have a trace of the*br*Classificatory system in the Irish division of the Family into*br*four small groups, no one of which is necessarily composed of*br*relatives of the same degree, and each of which has distinct*br*rights of its own, and stands under definite responsibilities.*br*Undoubtedly, the Descriptive system was that which the ancient*br*Irish generally followed; but still it would be an interesting,*br*and, in the opinion of pre-historic writers, an important fact,*br*if a distribution of the Family only intelligible as a relic of*br*the Classificatory system remained as a 'survival' among the*br*institutions reflected by the Brehon Laws. My own opinion, which*br*I will state at once, is that the resemblance between the Irish*br*classification of kindred and the modes of classification*br*described by Mr Morgan is only superficial and accidental. The*br*last explanation Mr. Morgan would admit of the remarkable ideas*br*concerning kinship which form the subject of his book would be*br*that they are connected with the Patria Potestas, that famous*br*institution which held together what he and his school consider*br*to be a relatively modern form of the Family. I think, however, I*br*can assign some at least plausible reasons for believing that*br*this perplexing four-fold division of the Celtic Family is*br*neither a mere survival from immemorial barbarism nor, as most*br*persons who have noticed it have supposed, a purely arbitrary*br*arrangement, but a monument of that Power of the Father which is*br*the first and greatest land -mark in the course of legal history.*br*    Let me repeat that the Irish Family is assumed to consist of*br*three groups of four persons and one group of five persons. I*br*have already stated that I consider the fifth person in the group*br*of five to be the parent from whom all the other members of the*br*four divisions spring, or with whom they are connected by*br*adoptive descent. Thus, the whole of the natural or adoptive*br*descendants are distributed into four groups of four persons*br*each, their rank in the Family being in the inverse order of*br*their seniority. The Geilfine group is several times stated by*br*the Brehon lawyers to be at once the highest and the youngest.*br*    Now, Mr Whitley Stokes has conveyed to me his opinion that*br*'Geilfine, means 'hand-family.' As I have reason to believe that*br*a different version of the term has been adopted by eminent*br*authority, I will give the reasons for Mr Stokes's view. 'Gil'*br*means 'hand' -- this was also the rendering of O'Curry -- and it*br*is, in fact, the Greek word cheir. In several Aryan languages the*br*term signifying 'hand' is an expressive equivalent for Power, and*br*specially for Family or Patriarchal Power. Thus, in Greek we have*br*upocheirios and cherus, for the person under the hand. In Latin*br*we have herus 'master,' from an old word, cognate to cheir; and*br*we have also one of the cardinal terms of ancient Roman Family*br*Law, manus, or hand, in the sense of Patriarchal authority. In*br*Roman legal phraseology, the wife who haS become in law her*br*husband's daughter by marriage is in manu. The son discharged*br*from Paternal Power is emancipated. The free person who has*br*undergone mancipation is in mancipio. In the Celtic languages we*br*have, with other words, 'Gilla,' a servant, a word familiar to*br*sportsmen and travellers in the Highlands and to readers of Scott*br*in its Anglicised shape, 'Gillie.'*br*    My suggestion, then, is that the key to the Irish*br*distribution of the Family, as to so many other things in ancient*br*law, must be sought in the Patria Potestas. It seems to me to be*br*founded on the order of emancipation from Paternal authority. The*br*Geilfine, the Hand-family, consists of the parent and the four*br*natural or adoptive sons immediately under his power. The other*br*groups consist of emancipated descendants, diminishing in dignity*br*in proportion to their distance from the group which, according*br*to archaic notions, constitutes the true or representative*br*family.*br*    The remains which we possess of the oldest Roman law point to*br*a range of ideas very similar to that which appears to have*br*produced the Irish institution. The Family under Patria Potestas*br*was, with the Pater-Familias, the true Roman Family. The children*br*who were emancipated from Paternal Power may have gained a*br*practical advantage, but they undoubtedly lost in theoretical*br*dignity. They underwent that loss of status which in ancient*br*legal phraseology was called a capitis deminutio. We know too*br*that, according to primitive Roman law, they lost all rights of*br*inheritance, and these were only gradually restored to them by a*br*relatively modern institution, the Equity of the Roman Praetor.*br*Nevertheless there are hints on all sides that, as a general*br*rule, sons as they advanced in years were enfranchished from*br*Paternal Power, and no doubt this practice supplies a partial*br*explanation of the durability of the Patria Potestas as a Roman*br*institution. The statements, therefore, which we find concerning*br*the Celtic Family would not be very untrue of the Roman. The*br*youngest children were first in dignity.*br*    Of course I am not contending for an exact resemblance*br*between the ancient Roman and ancient Celtic Family. We have no*br*trace of any systematised discharge of the sons from the Roman*br*Patria Potestas; their enfranchisement seems always to have been*br*dependent on the will of the Pater-Familias. The divisions of the*br*Celtic Family seem, on the other hand, to have been determined by*br*a self-acting principle. An even more remarkable distinction is*br*suggested by passages in the Book of Aicill which seem to show*br*that the parent, who retained his place in the Geilfine group,*br*might himself have a father alive. The peculiarity, which has no*br*analogy in ancient Roman law, may possibly have its explanation*br*in usages which many allusions in the Brehon law show to have*br*been followed by the Celts, as they were by several other ancient*br*societies. The older members of the Family or Joint Family seem*br*in advanced age to have become pensioners on it, and, like*br*Laertes in the Odyssee, to have vacated their privileges of*br*ownership or of authority. On such points, however, it is safest*br*to suspend the judgment till the Brehon law has been more*br*thoroughly and critically examined.*br*    At the date at which the Book of Aicill was put together the*br*Irish division of the Family seems only to have had importance in*br*the law of succession after death. This, however, is the rule in*br*all societies. When the ancient constitution of the Family has*br*ceased to affect anything else, it affects inheritance. All laws*br*of inheritance are, in fact, made up of the débris of the various*br*forms which the Family has assumed. Our system of succession to*br*personalty, and the whole French law of inheritance, are derived*br*from Roman law, which in its latest condition is a mixture of*br*rules having their origin in successive ascertainable stages of*br*the Roman Family, and is a sort of compromise between them.*br*    The authors of the Brehon Law Tracts frequently compare the*br*Geilfine division of the Family to the human hand, but with them*br*the comparison has at first sight the air of being purely*br*fanciful. The Geilfine group has five members, and the hand has*br*five fingers. Dr Sullivan -- who, however, conceives the Geilfine*br*in a way materially different from the authorities whom I follow*br*-- tells us that 'as they represented the roots of the spreading*br*branches of the Family, they were called the cuic mera na Fine,*br*or the 'five fingers of the Fine.' If the explanation of*br*'Geilfine' which I have partly taken from Mr Whitley Stokes be*br*correct, we must suppose that, at the time at which the Brehon*br*tracts were thrown into their present form, the Patria Potestas*br*of the ancient Irish, though frequently referred to in the tracts*br*as the father's power of 'judgment, proof, and witness, over his*br*sons, had nevertheless considerably decayed, as it is apt to do*br*in all societies under unfavourable circumstances, and that with*br*this decay the association of the Geilfine group with 'hand' in*br*the sense of Paternal Power had also become faint. There is,*br*however, a real connection of another kind between the Geilfine*br*group and the five fingers of the hand. If you ask why in a large*br*number of ancient societies Five is the representative number, no*br*answer can be given except that there are five fingers on the*br*human hand. I commend to your attention on this point Mr Tylor's*br*most instructive chapter on the infancy of the Art of Counting,*br*in the first volume of his 'Primitive Culture.'*br*'Finger-counting,' he observes, 'is not only found among savages*br*and uneducated men, carrying on a part of their mental operations*br*where language is only partly able to follow it, but it also*br*retains a place and an undoubted use among the most cultured*br*nations as a preparation and means of acquiring higher*br*arithmetical methods, (I. 246.) Five is thus a primitive natural*br*maximum number. You will recollect that the early English*br*Township was represented by the Reeve and the four men. The*br*Council of an indian Village Community most commonly consists of*br*five persons, and throughout the East the normal number of a Jury*br*or Board of arbitrators is always five -- the punchayet familiar*br*to all who have the smallest knowledge of India. The Geilfine,*br*the representative group of the Irish Family, consisting of the*br*Parent and the four descendants still retained under his Patria*br*Potestas, falls in with this widely extended conception of*br*representation.*br*    The Patria Potestas seems to me the most probable source of a*br*well-known English custom which has occasioned no little surprise*br*to students of our law. 'Borough English,' under which the*br*youngest son and not the eldest succeeds to the burgage-tenements*br*of his father, has from time immemorial being recognised as a*br*widely disused usage of which it is the duty of our Courts to*br*take judicial notice, and many writers on our real property laws,*br*from Littleton downwards, have attempted to account for it.*br*Littleton thought he saw its origin in the tender age of the*br*youngest son, who was not so well able to help himself as the*br*rest of the brethren. Other authors, as Blackstone tells us,*br*explained it by a supposed right of the Seigneur or lord, now*br*very generally regarded as apocryphal, which raised a presumption*br*of the eldest son's illegitimacy. Blackstone himself goes as far*br*a-field as North-Eastern Asia for an explanation. He quotes from*br*Duhalde the statement that the custom of descent to the youngest*br*son prevails among the Tartars. 'That nation,' he says, 'is*br*composed totally of shepherds and herdsmen; and the elder sons,*br*as soon as they are capable of leading a pastoral life, migrate*br*from their father with a certain allotment of cattle, and go to*br*seek a new habitation. The youngest son, therefore, who continues*br*longest with the father, is naturally the heir of his house, the*br*rest being already provided for. And thus we find that, among*br*many other Northern nations, it was the custom for all the sons*br*but one to migrate from the father, which one now became his*br*heir.' The explanation was really the best which could be given*br*in Blackstone's day, but it was not necessary to go for it so far*br*from home. It is a remarkable circumstance that an institution*br*closely resembling Borough English is found in the Laws of Wales,*br*giving the rule of descent for all cultivating villeins. 'Cum*br*fratres inter se dividant haereditatem,' says a rule of that*br*portion of the Welsh Law which has survived in Latin; 'junior*br*debet habere tygdyn, i. e. aedificia patris sui, et octo acras de*br*terrâ, si habuerint, (L. Wall., vol. ii. p. 780). And, when the*br*youngest son has had the paternal dwelling-house, eight acres of*br*land and certain tools and utensils, the other sons are to divide*br*what remains. It appears to me that the institution is founded on*br*the same ideas as those which gave a preference to the Geilfine*br*division of the Celtic family. The home-staying, unemancipated*br*son, still retained under Patria Potestas, is preferred to the*br*others. If this be so, there is no room for the surprise which*br*the custom of Borough English has excited, and which arises from*br*contrasting it with the rule of Primogeniture. But the two*br*institutions have a different origin. Primogeniture is not a*br*natural outgrowth of the family. It is a political not a tribal*br*institution, and comes to us not from the clansmen but from the*br*Chief. But the rule of Borough English, like the privileges of*br*the Geilfine, is closely connected with the ancient conception of*br*the Family as linked together by Patria Potestas. Those who are*br*most emphatically part of the Family when it is dissolved by the*br*death of its head are preferred in the inheritance according to*br*ideas which appear to have been once common to the primitive*br*Romans, to the Irish and Welsh Celts, and to the original*br*observers, whoever they were, of the English custom.*p*
Lecture VII
Searles
130
Sun Sep 27 21:03:37 1998