devolution and distribution of landed property will doubtless follow sooner or later a great change in the distribution of political power. The history of political ideas is the history of change; and the ideas of the dominant classes become the dominant ideas in politics. No right is now held more sacred in England than the right of unrestricted bequest; and the same sentiment supports the right of settlement and entail; both are regarded here as natural rights, although at the other side. of the English Channel the prevailing opinion is that a child has an indefeasible right to a share of the property of his parents. Both conceptions are of historical origin; the first descends from the early code of the Twelve Tables, the second has come down from the code of Justinian. In France,' says Sir Henry Maine, the change which took place at the first Revolution was this: the land law of the people superseded the land law of the nobles. In England the converse process has been gone through; the system of the nobles has become in all essential particulars the system of the people." When the people shall have the dominion in England, what shall become of the system of the nobles? The There is no path of historical research that does not lead to some practical conclusions, but some of its paths end as it were in cross roads, going different ways, between which the choice may be difficult. It is however one great advantage of the historical method that it has attractions and instruction apart from the practical inferences of particular authors. historical part of Auguste Comte's Positive Philosophy, for example, may be studied with profound admiration by readers who wholly repudiate his system of polity. In like manner M. de Laveleye's work on primitive property cannot be read without interest and benefit even by those who most firmly refuse to accept some of the doctrines that it upholds. *Early History of Institutions, 2nd Ed., p. 124. XXIX. MAINE'S EARLY HISTORY OF INSTITUTIONS.*. (Fortnightly Review, March 1, 1875.) A PHILOSOPHICAL work may be regarded from two points of view, with reference, namely, to the additions which it makes to our knowledge within its special department, and to its bearing on other subjects. The special subject of Sir H. Maine's book is archaic law, but the results of his researches derive additional value from their relation to some of the chief social and political problems of our time. The early history of law is full of interest, the curiosity it excites is ever increasing; and to Sir H. Maine belongs the whole credit of arousing attention to it in this country. But modern questions respecting the capacities of different races and sexes are among those on which his Lectures throw light; and his historical method is applicable to other than the legal phenomena of society. As to one class of early institutions, his present work may be considered as complementary to his two previous ones, Ancient Law and Village Communities, together with M. de Laveleye's De la Propriété et ses Formes Primitives. The extraordinary extent of M. de Laveleye's researches in both hemispheres made the lacuna in respect of Celtic institutions more remarkable. This could be filled only by the study of ancient Irish usages, and Sir H. Maine's present work may be said to complete the proof of the collective ownership of land in early society by groups of kinsmen. But his investigations have a much wider range, ་ The Early History of Institutions. By Sir Henry Sumner Maine. London: Murray. covering the whole field of the primitive institutions of men arrived at the social stage. Some English scholars have looked askance at the Celtic nations, and shown a manifest reluctance to admit them on equal terms within the pale of historical inquiry, as though the Greek, the Roman, and the Teuton had almost an exclusive claim to the philosophic historian's attention. The chief place in Sir H. Maine's book is assigned to the ancient Irish, the most unfortunate of the Celtic nations. The early history of Ireland-of the events of which it is made up-is buried in darkness and disaster, but something may be recovered through the study of the native institutions of the Irish people. It would, however, be a misapprehension of Sir H. Maine's chief object in investigating Irish law, and of the point of view from which he examines it, to suppose that he is concerned with the legal history of Ireland simply as such. He considers it in connexion with the general problems of historical and comparative jurisprudence. He takes Irish law as an example of an archaic legal system, and proceeds to ascertain its characteristics as such, the degree of its archaicism, if we may so speak, or the stage of early progress to which it belongs, the mode of its development, its analogies to other bodies of primitive law, its peculiar features, and the causes of those peculiarities. The inquiry is one as to which on many points only probable, on some only conjectural conclusions can be reached, and on not a few doubt and diversity of opinion may always exist. It is said in the Senchus Mor that the ancient poets of Ireland were 'deprived of the judicature' because 'obscure indeed was the language which they spoke, and it was not plain what judgments they had passed.' If the judgments of the Brehons who succeeded to the poets were no clearer than are the tracts which go by their name, they too might fairly have forfeited the judicial office. Sir H. Maine's acuteness and learning afford a clue through much which before was a pathless maze, but no genius could extract from the tracts as yet published or accessible a decisive answer to several inquiries which present themselves. One of these relates to the mode in which the ancient laws of Ireland were developed. A legal system may be developed in several ways, by the spon taneous growth of popular usage, by the interpretation of lawyers, by the judgments of regular tribunals, and by legislation. Sir H. Maine, who traces to primitive Aryan usage the original elements of Irish law, inclines to refer its subsequent development chiefly, if not exclusively, to juridical interpretation.* A class of writers, on the other hand, of whom Dr. Sullivan is at once the latest and the ablest, attribute to Ireland at a very early period a central government with a complete legislative and judicial organization for the enactment and administration of law, and to this period they refer the institutions described in the so-called Brehon law tracts. A third view which seems to the present writer most in conformity with the evidence will subsequently appear. A preliminary question is, what authority are we to ascribe to the tracts just named? Can we accept them, according to the title officially given to them and under which they are published, as the Ancient Laws and Institutes of Ireland? Ought they in strictness to be even called Brehon law tracts? O'Curry, one of the translators, when citing them, used the phrase, the law says,' and Dr. Sullivan attributes to part of them the authority of statute law. A material observation is that they ought not to be taken in the lump as entitled uniformly to the same character and authority; a consideration of the more importance, since besides those already published and hereafter to be published by the Brehon Law Commission, others, such as the Crith Gablach and the Book of Rights, are sometimes cited as authentic records of Irish law. There is for the most part no unity of authorship even in the case of each tract singly. An original text is in most cases imbedded in glosses and commentary, written by different and unknown hands at different periods. On its face, the commentary,' in the language of the learned editors, bears the appearance of a work which has grown up under the hands of successive generations of lawyers,'† with frequent variations and contradictions. Sir H. Maine traces an analogy in several respects between the writers of these Irish tracts and the authors of the * Early History of Institutions, pp. 10, 11; 42, 43; and 286-290. Brahminical jurisprudence, at the same time observing that it is often doubtful how far the latter can be accepted as truly representing the old customary law of India. But we do not even know that the writers of the so-called Brehon law tracts were all Brehons, and are not without reason for supposing that some of them were not. Sir H. Maine suggests that the compiler of the Corus Bescna may have been an ecclesiastic, or, if a lawyer, was one writing in the interest of an ecclesiastical client. He finds evidence of bias, mere speculation, triviality and silliness in the tracts; and in truth there are passages which it is impossible to regard as the utterances of expert judges, legal practitioners, or professors of law, and which must be the work of mere tiros and dabblers. The tracts moreover appear not to have been in the hands of the Irish lawyers generally; each appears, in Sir H. Maine's words, to have been the property and to have set forth the special legal doctrines of a particular family or law school.'* He remarks that Shane O'Neill's view of the Irish law of legitimacy was directly contrary to the legal doctrine of the Book of Aicill, and that it would seem to follow that this book had not an universally recognised authority. The Book of Rights, according to Dr. Sullivan, contains the law regulating the relations between the local authorities and the different kingdoms; but this book is really a book of the claims of the Munster dynasty, and its authority could hardly have been recognised by a rival dynasty. The editors of the tracts officially published, in their preface to the third volume, compare the Corus Bescna with Chitty on Contracts, as the work, not of a legislator or a judge, but of a private lawyer without official authority. But, apart from the possibility that the compiler was not even a lawyer, there is the essential difference that Mr. Chitty's treatise was written for, and has circulated as a standard work among, the whole English legal profession, whereas the Corus Bescna may have been unrecognised by, and even unknown to, the majority of the profession in Ireland. Edmund Spenser evidently had never heard of the Brehon law as being in Lecture i. p. 16. Compare pp 21, 33, 280. |