第 5 节
作者:
着凉 更新:2021-02-19 19:25 字数:9322
observe that; when completed; its effect was to make the Land the
exclusive bond of union between men。 The Manor or Fief was a
social group wholly based upon the possession of land; and the
vast body of feudal rules which clustered round this central fact
are coloured by it throughout。 That the Land is the foundation of
the feudal system has; of course; been long and fully recognised;
but I doubt whether the place of the fact in history has been
sufficiently understood。 It marks a phase in a course of change
continued through long ages and in spheres much larger than that
of landed property。 At this point the notion of common kinship
has been entirely lost。 The link between Lord and Vassal produced
by Commendation is of quite a different kind from that produced
by Consanguinity。 When the relation which it created had lasted
some time; there would have been no deadlier insult to the lord
than to attribute to him a common origin with the great bulk of
his tenants。 Language still retains a tinge of the hatred and
contempt with which the higher members of the feudal groups
regarded the lower; and the words of abuse traceable to this
aversion are almost as strong as those traceable to differences
of religious belief。 There is; in fact; little to choose between
villain; churl; miscreant; and boor。
The break…up of the feudal group; far advanced in most
European countries; and complete in France and England; has
brought us to the state of society in which we live。 To write its
course and causes would be to re…write most of modern history;
economical as well as political。 It is not; however; difficult to
see that without the ruin of the smaller social groups; and the
decay of the authority which; whether popularly or autocratically
governed; they possessed over the men composing them; we should
never have had several great conceptions which lie at the base of
our stock of thought。 Without this collapse; we should never have
had the conception of land as an exchangeable commodity;
differing only from others in the limitation of the supply; and
hence; without it; some famous chapters of the science of
Political economy would not have been written。 Without it; we
should not have had the great increase in modern times of the
authority of the State…one of many names for the more extensive
community held together by common country。 Consequently; we
should not have had those theories which are the foundation of
the most recent systems of jurisprudence the theory of
Sovereignty; or (in other words) of a portion in each community
possessing unlimited coercive force over the rest and the
theory of Law as exclusively the command of a sovereign One or
Number。 We should; again; not have had the fact which answers to
these theories the ever…increasing activity of Legislatures;
and; in all probability; that famous test of the value of
legislation; which its author turned into a test of the soundness
of morals; would never have been devised the greatest
happiness of the greatest number。
In saying that the now abundant phenomena of primitive
ownership open to our observation strongly suggest that the
earliest cultivating groups were formed of kinsmen; that these
gradually became bodies of men held together by the land which
they cultivated; and that Property in Land (as we now understand
it) grew out of the dissolution of these latter assemblages; I
would not for a moment be understood to assert that this series
of changes can be divided into stages abruptly separated from one
another。 The utmost that can be affirmed is that certain periods
in this history are distinguished by the predominance; though not
the exclusive existence; of ideas proper to them。 Here; as
elsewhere; the world is full of 'survivals;' and the view of
society as held together by kinship still survives when it is
beginning to be held together by land。 Similarly; the feudal
conception of social relations still exercises。 powerful
influence when land has become a merchantable commodity。 There is
no country in which the theory of land as a form of property like
any other has been more unreservedly accepted than our own。 Yet
English lawyers live in faece feodorum。 Our law is saturated with
feudal principles; and our customs and opinions are largely
shaped by them。 Indeed; within the last few years we have even
discovered that vestiges of the village…community have not been
wholly effaced from our law; our usages; and our methods of
tillage。
The caution that the sequence of these stages does not imply
abrupt transition from any one to the next seems to me especially
needed by the student of the Ancient Laws of Ireland。 Dr
Sullivan; of whose Introduction to the lately published lectures
of O'Curry I have already spoken; dwells with great emphasis on
the existence of private property among the ancient Irish; and on
the jealousy with which it was guarded。 But though it is very
natural that a learned Irishman; stung by the levity which has
denied to his ancestors all civilised institutions; should attach
great importance to the indications of private ownership in the
Brehon law; I must say that they do not; in my judgment;
constitute its real interest。 The instructiveness of the Brehon
tracts; at least to the student of legal history; seems to me to
arise from their showing that institutions of modern stamp may be
in existence with a number of rules by their side which savour of
another and a greatly older order of ideas。 It cannot be doubted;
I think; that the primitive notion of kinship; as the cement
binding communities together; survived longer among the Celts of
Ireland and the Scottish Highlands than in any Western society;
and that it is stamped on the Brehon law even more clearly than
it is upon the actual land…law of India。 It is perfectly true
that the form of private ownership in land which grew out of the
appropriation of portions of the tribal domain to individual
households of tribesmen is plainly recognised by the Brehon
lawyers; yet the rights of private owners are limited by the
controlling rights of a brotherhood of kinsmen; and the control
is in some respects even more stringent than that exercised over
separate property by an indian village…community。 It is also true
that another form of ownership in land; that which had its origin
in the manorial authority of the lord over the cultivating group;
has also begun to show itself; yet; though the Chief of the Clan
is rapidly climbing to a position answering to the Lordship of a
Manor; he has not fully ascended to it; and the most novel
information contained in the tracts is that which they supply
concerning the process of ascent。
The first instructive fact which strikes us on the threshold
of the Brehon law is; that the same word; 'Fine;' or Family; is
applied to all the subdivisions of Irish society。 It is used for
the Tribe in its largest extension as pretending to some degree
of political independence; and for all intermediate bodies down
to the Family as we understand it; and even for portions of the
Family (Sullivan; 'Introduction; clxii)。 It seems certain that
each of the various groups into which ancient Celtic society was
divided conceived itself as descended from some one common
ancestor; from whom the name; or one of the names; of the entire
body of kinsmen was derived。 Although this assumption was never
in ancient Ireland so palpable a fiction as the affiliation of
Greek races or communities on an heroic eponymous progenitor; it
was probably at most true of the Chief and his house so far as
regarded the Irish Tribe taken as a political unit。 But it is
probable that it was occasionally; and even often true of the
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