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in his way。 We must bear in mind； however； that archaic kinds of
tenancy are constantly evidence of ancient forms of
proprietorship。 This is so in countries in which superior
ownership has arisen through the natural course of events through
purchase from small allodial proprietors； through colonisation of
village waste…lands become in time the lord's waste； or （in an
earlier state of society） through the sinking of whole
communities of peasants into villeinage； and through a consequent
transformation of the legal theory of their rights。 But all this
process of change would be gravely misconstrued if it were
supposed that； because a Chief or Lord had come to be recognised
as legal owner of the whole tribal domain； or of great portions
of it； he therefore altered the accustomed methods of occupation
and cultivation； or （as some would even seem to think） he began
at once to regard the occupying peasantry as modern lessees or
modern tenants at will。 No doubt the ancient type of ownership
long served as the model for tenancy； and the common holdings；
dying out as property； survived as occupation。 And； if this were
the case in other countries； much more would it be so in Ireland；
where property has changed hands so often and so violently； where
during whole centuries； the owners of land neither regarded； nor
were in a position to regard； the occupiers save as payers of
rent and dues； and where the conception of a landlord acting on
his legal ownership with a view to improvement and increase of
production is altogether modern。
The chief Brehon law…tract； which sets forth the mutual
rights of the collective tribe and of individual tribesmen or
households of tribesmen in respect of tribal property； is called
the Corus Bescna； and is printed in the Third Volume of the
official edition。 It presents great difficulties。 I quite agree
with the Editors that the commentary and glosses constantly
contradict and obscure the text； either because the commentators
did not understand it or because they belonged to a later period
and a different stage of legal relations。 But the most serious
doubt which occurs to the student of the text arises from the
strong and palpable bias of the compiler towards the interests of
the Church； indeed； part of the tract is avowedly devoted to the
law of Church property and of the organisation of religious
houses。 When this writer affirms that； under certain
circumstances； a tribesman may grant or contract away tribal
land； his ecclesiastical leaning constantly suggests a doubt as
to his legal doctrine。 Does he mean to lay down that the land may
be parted with generally and in favour of anybody； or only that
it may be alienated in favour of the Church？ This difficulty of
construction has an interest of its own。 I am myself persuaded
that the influence of the Christian Church on law has been very
generally sought for in a wrong quarter； and that historians of
law have too much overlooked its share in diffusing the
conceptions of free contract； individual property； and
testamentary succession； through the regions beyond the Roman
Empire which were peopled by communities held together by the
primitive tie of consanguinity。 It is generally agreed among
scholars that Churchmen introduced these races to wills and
bequests； the Brehon tracts suggest to me at least that； along
with the sacredness of bequests； they insisted upon the
sacredness of contracts； and it is well known that； in the
Germanic countries； their ecclesiastical societies were among the
earliest and largest grantees of public or 'folk' land （Stubbs；
'Constitutional History '； vol。 i。 p。 154）。 The Will； the
Contract； and the Separate Ownership were in fact indispensable
to the Church as the donee of pious gifts； and they were also
essential and characteristic elements in the civilisation amid
which the Church had been reared to maturity。 It is possible that
the compiler of the Corus Bescna may have been an ecclesiastic；
as he certainly would have been in any society except the Irish；
but； if he were a lawyer； he writes aS a lawyer would state the
case on behalf of a favourite and important client。 Let me add
that all the Brehon writers seem to me to have a bias towards
private or several； as distinguished from collective； property。
No doubt it was then； as always； the great source of legal
business； and it may have seemed to them； and it possibly was；
the index to such advance in civilisation as their country was
capable of making。
My own strong opinion is that the 'Fine；' whose rights and
powers are the principal theme of the Corus Bescna； and whose
name the translators render 'Tribe；' is neither the Tribe in its
largest extension； nor； on the other hand； the modern Family or
group of descendants from a living ancestor； but the Sept。 It is
a body of kinsmen whose progenitor is no longer living； but whose
descent from him is a reality； and neither a myth nor a fiction。
It is the Joint Family of the Hindoos； but with the
characteristics of that group considerably modified through
settlement on the land。 This peculiar assemblage or corporation
of blood…relatives； which has been referred to by me several
times before； is formed by the continuance of the family union
through several； and it may be through an indefinite number of
generations。 The rule throughout most of the civilised world is
that； for all purposes of law； families are broken up into
individuals or dissolved into a number of new families by the
death of their head。 But this is not necessary the case。 The
group made up of those whom we vaguely call our relatives of
our brothers； nephews； great…uncles； uncles； and cousins； no less
than those related to us in the ascending and descending lines
might very well； after any number of deaths； remain knitted
together not only by blood and affection； but by mutual rights
and duties prescribed or sanctioned by the law。 An association of
this sort is well known to the law of India as the Joint
Undivided Famil