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this sort is well known to the law of India as the Joint
Undivided Family； or； to give the technical description； the
Family； 'joint in food； worship； and estate。' If a Hindoo has
become the root of a family it is not necessarily separated by
his death； his children continue united for legal purposes as a
corporate brotherhood； and some definite act of one or more of
the brethren is required to effect a dissolution of the plexus of
mutual rights and a partition of the family property。 The family
thus formed by the continuance of several generations in union is
identical in outline with a group very familiar to the students
of the older Roman law the Agnatic Kindred。 The Agnates were
that assemblage of persons who would have been under the
patriarchal authority of some common ancestor； if he had lived
long enough to exercise it。 The Joint Family of the Hindoos is
that assemblage of persons who would have joined in the
sacrifices at the funeral of some common ancestor； if he had died
in their lifetime。 In the last case the sacerdotal point of view
merely takes the place of the legal or civil。
So far as we are able； amid the disadvantages under which we
are placed by the obscurity of our authorities； let us examine
the legal qualities which the ancient Irish law attributes to
this brotherhood of kinsmen as it was found in Ireland。 First of
all； the 'Tribe' of the Brehon tracts is a corporate； organic；
self…sustaining unit。 'The Tribe sustains itself。' （'Ancient Laws
of Ireland；' ii。 283。） Its continuity has begun to depend on the
land which it occupies 'land；' says one of the still
unpublished tracts； 'is perpetual man' but it is not a purely
land…owning body； it has 'live chattels and dead chattels；'
distinguished from those of individual tribesmen。 （'Ancient Laws
of Ireland；' ii。 289。） Nor is it a purely cultivating body； it
may follow a professional calling。 （Ibid。； iii。 49…51。） A portion
of the tribal domain； probably the arable and choice pasture
lands； has been allotted to separate households of tribesmen； but
they hold their allotments subject to the controlling rights of
the entire brotherhood； and the primary or fundamental rule is
that they are to keep their shares of tribe…land intact。 'Every
tribesman is able to keep his tribe…land； he is not to sell it or
alienate or conceal it； or give it to pay for crimes or
contracts。' （'Ancient Laws of Ireland；' ii。 283。） 'No person
should leave a rent upon his land or upon his tribe which he did
not find upon it。' （Ibid。； iii。 52； 53。） 'Everyone is wealthy who
keeps his tribe…land perfect as he got it； who does not leave
greater debt upon it than he found on it。' （Ibid。； iii。 55。）
Under certain circumstances the tribesman may alienate； by
grant； contract； or bequest； a certain quantity of the tribe…land
allotted to him； but what are the circumstances； and what the
quantity； are points on which we cannot venture to make any
precise statement； so obscure and contradictory are the rules set
forth。 But the grantee primarily contemplated is certainly the
Church； though it seems clear that there is a general power of
alienation； either with the consent of the entire tribal
brotherhood or under pressure of strong necessity。 It further
appears to be beyond question that the tribesman has considerably
greater power of disposition over property which he has acquired
than over property which has devolved on him as a member of a
tribe； and that he has more power over acquisitions made by his
own unaided industry than over acquisitions made through profits
arising from the cultivation of tribal land。 'No person should
grant land except such as he has purchased himself； unless by the
common consent of the tribe。 （'Ancient Laws of Ireland；' iii。 52；
53。） 'He who has not sold or bought （i。e。； he who keeps his
tribeland as he obtained it） is allowed to make grants； each
according to his dignity （i。e。； as the commentator explains； to
the extent of one…third or one…half of his tribe…land）。' 'He who
neither sells nor purchases may give as far as the third of his
tribe…share in case of little necessity and one…half in case of
great necessity' （'Ancient Laws of Ireland；'iii。 47。） 'If it be
land that acquires it； it is one…half；。。。 if he be a professional
man； it is two…thirds of his contracts ' （iii。 49）。
The distinction between acquired property and property
inherited or received from kinsmen； and the enlarged power of
parting with the first； are found in many bodies of ancient law
in our own early law among others。 The rule that alienations；
otherwise unlawful； may be made under pressure of necessity； is
found in many parts of Hindoo law。 The rule requiring the consent
of the collective brotherhood to alienations； with many minor
rules of this part of Brehon law； constantly forms part of the
customs of Indian and Russian village…communities； and the duty
of following common practices of tillage； which is the bequest
from these communities which lasted longest in the Germanic
countries； is classed by the Corus Bescna； along with Marriage；
as one of the fundamental institutions of the irish people。
（'Ancient Laws of Ireland；' iii。 17。） But much the most striking
and unexpected analogies in the Brehon law on the subject of
Tribesmen and the Tribe are those which it has with the Hindoo
law of Joint Undivided Families。 Under the Brahminical Indian
law； whenever a member of a joint family has acquired property
through special scientific knowledge or the practice of a liberal
art； he does not bring it into the common fund； unless his
accomplishments were obtained through a training given to him by
his family or at their expense。 The whole law on the subject was
much considered in a strange case which arose before the High
Court of Madras （'Madras High Court Reports；' ii。 56）； where a
joint family claimed the gains of a dancing…girl。 The decision of
the Court is thus summarised by the Reporter： 'The ordinary gains
of science are divisible （i。e。； they are brought into hotc