LHK BT THE SAME AUTHOR. ANCIENT LAW. Its Connections with the Early History of Society, and its Relation to Modern Ideas. 8vo, $3.50. LECTURES ON THE EARLY HISTORY OF INSTITUTIONS. 8vo, $3.50. VILLAGE COMMUNITIES IN THE EAST AND WEST, to which are added other LECTURES, ADDRESSES AND ESSAYS. 8vo, $3.50. DISSERTATIONS ON EARLY LAW AND CUSTOM. Chiefly selected from Lectures delivered at Oxford. 8vo, $3.50. POPULAR GOVERNMENT: Four Essays. I. Prospects of Popular Government. II. Nature of Democracy. III. Age of Progress. IV. Con- stitution of the United States. 8vo. $2.75. BY THE LATE JOHN AUSTIN. LECTURES ON JURISPRUDENCE ; or, The Philosophy of Positive Law. By the late John Austin, of the Inner Temple, Barrister-at-Law. Abridged from the larger work for the use of students. By ROBERT CAMPBELL, of Lincoln's Inn, Barrister-at-Law. 8vo, $2.50. LECTURES ON THE EAKLY HISTORY OF INSTITUTIONS (A SEQUEL TO "ANCIENT LAW.**) BY SIR HENEY SUMNER MAINE K.C.SJ. LLJ). F.RS. 1 'AXOZR LAW' iBD ' TUtAOK-COMKTTKITnHi W TU KATI A NEW YORK HENKY HOLT AND COMPANY 1888 1MM M'1-r.Nr, io aooKKNomo coumw, NEW rORK. Stack WHITLET STOKES, ESQ. [TO THB GOVERNMENT OF INDIA IK THE LEGISLATIVE DKPAJ THIS VOLUME 18 DEDICATED Of RBOOLLBCCTON OF A LONG OFFICIAL OOMNBOTIOM AMI) BT1LL LONGBB FttlKNDHHIP CONTENTS. L NEW MATERIALS FOB THK EARLT HISTOBT OP I*- STIT0TIONS ....... 1 IL THE ANCIENT IRISH LAW . ... 24 UL KINSHIP AS THE BASIS OF SOCIITT .... 64 IV. THE THIBE AND THE LAND . v . 98 V. THE CHIEF AND HIS ORDER 119 VI. THE CHIEF AND THE LAND 147 VII. ANCIENT DIVISIONS OF THE FAMILY .... 185 VIII. THE GROWTH AND DIFFUSION OF PRIMITIVE IDEAS . 225 IX. THE PRIMITIVE FORMS OF LEGAL REMEDIES I. 250 X. THE PRIMITIVE FORMS OF LEGAL REMEDIES II. 279 XI. THE EARLT HISTORY OF THE SETTLED PROPERTY OF MARRIED WOMEN 306 XII. SOVEREIGNTY 842 XIII. SOVEREIGNTY AND EMPIRE 371 INDEX . 401 PBEFACE. IN the Lectures printed in this Volume an attempt is made to carry farther in some particulars the line of inv istigation pursued by the Author in an earlier work 4 on Ancient Law.' The fortunes of the legal system which then supplied him with the greatest number of his illustrations have been strikingly unlike those of another body of law from which he has now endea- voured to obtain some new materials for legal and social history. The Eoman Law has never ceased to be spoken of with deep respect, and it is in fact the source of the greatest part of the rules by which civil life is still governed in the Western World. The Ancient Irish Law, the so-called Brehon Law, has been for the most part bitterly condemned by the few writers noticed it after who have ; and, gradually losing whatever influence it once possessed in the country in a Vlll PREFACE. which it grew up, in the end it was forcibly sup- pressed. Yet the very causes which have denied a modern history to the Brehon Law have given it a special interest of its own in our day through the arrest of its and this the Author development ; interest, hopes, is sufficient to serve as his excuse for making the conclusions it suggests the principal subject of the Lectures now published, except the last three. The obligations of the Author to various Gentle- men for instruction derived from their published writings or private communications are acknowledged in the body of the work, but he has to express his especial thanks to the Bishop of Limerick, and to Professor Thaddeus O'Mahony, for facilities of access to the still unpublished translations of Brehon manu- scripts, as well as for many valuable suggestions. The Lectures (with the omission of portions) have all been delivered at Oxford. 27 CORNWALL GARDENS, LONDON, S.W. : November 1874. LECTURES OIT THT? EARLY HISTORY OF INSTITUTIONS. LECTURE I. NEW MATERIALS FOB THE EARLY HISTORY OF INSTITUTIONS. THE SOURCES of information concerning the early history of institutions which have been opened to us during the last few years are numerous and valuable. On one subject in particular, which may be confi- dently said to have been almost exclusively investi- gated till lately by writers who had followed a false path, the additions to our knowledge are of special interest and importance. We at length know some- thing concerning the beginnings of the great institu- tion of Property in Land. The collective ownership of the soil by groups of men either in fact united by blood-relationship, or believing or assuming that they are so united, is now entitled to take rank as an ascertained primitive phenomenon, once universally characterising those communities of mankind between vhose civilisation and our own there is any distinct B LANDED PKOPERTY IN RUSSIA. LECT. L t.'onnection or analogy. The evidence has been found on all sides of us, dimly seen and verifiable with diffi- culty in countries which have undergone the enormous pressure of the Roman Empire, or which have been strongly affected by its indirect influence, but perfectly plain and unmistakeable in the parts of the world, peopled by the Aryan race, where the Empire has made itself felt very slightly or not at all. As regards the Sclavonic communities, the enfranchisement of the peasantry of the Russian dominions in Europe has given a stimulus to enquiries which formerly had at- tractions for only a few curious observers, and the amount of information collected has been very large. We now know much more clearly than we did before that the soil of the older provinces of the Russian Empire has been, from time immemorial, almost exclu- sively distributed among groups of self-styled kins- men, collected in cultivating village-communities, self- organised and self-governing; and, since the great measure of the present reign, the collective rights of these communities, and the rights and duties of their members in respect of one another, are no longer en- tangled with and limited by the manorial privileges of an owner-in-chief. There is also fresh evidence that the more backward of the outlying Sclavonic societies constituted the same model and it are upon essentially ; is one of the facts with which the Western world will some day assuredly have to reckon, that the political LECT. i. VESTIGES OF VILLAGE-COMMUNITY. 3 ideas of so large a portion of the human race, and its ideas of property also, are inextricably bound up with the notions of family interdependency, of col- lective ownership, and of natural subjection to patriarchal power. The traces of the ancient social order in the Germanic and Scandinavian countries are, I need scarcely say, considerably fainter, and tend always to become more obscured; but the re- examination of the written evidence respecting ancient Teutonic life and custom proceeds without intermis- sion, and incidentally much light has been thrown on the early history of property by the remarkable work of Sohm (' Frankische Reichs-und Gerichtsverfass- ung'). 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 wide extent I dissent very ; and, although 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 4 La Proprie*te* 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 B 2 4 VESTIGES OF VILLAGE -COMMUNITY. LBCT. t 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 ma- terials brought before it will wonder at my attaching a special importance to the judgment of Lord Chan- cellor Hatherley, given in a difficult case which arose through a dispute between different classes of persons interested in a manor, Warrick against Queen's Col- lege, 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 indus- trious observers, and the facts bearing npon the sub- ject, which I hope will some day be made public, prove to exist in extraordinary abundance. There was no set of communities which until recently supplied us with information less in amount and apparent value concerning the early his- tory of law than those of Celtic origin. This was the more remarkable, because one particular group T. i. CELTIC SOCIETIES. 5 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 condi- tion of the world, almost down to our own day.