Modern India affords us, in its joint-family, the exact image of the Celtic sept of ancient Ireland. The joint-family is a juristicperson, which holds and acquires property and has a perpetual existence, like a society in mortmain. It presents a perfecttype of the archaic mode of joint occupancy which we meet with in all primitive agricultural societies. It consists of anassociation of all the persons who would have taken part in the funeral ceremonies of the common ancestor; and is theagnatic family of the Romans, comprising all those who would have been subject to the authority of the common ancestor,were he alive to exercise it. According to the decisions of the Indian courts, no member of the family can claim a share of thecommon property. The produce has to be brought together, and then divided among all according to the rules of joint-ownership. The members of the family are united, as they say in India, "for maintenance, religion, and the soil." In Irelandthe joint responsibility of the members of the sept is complete; they are bound to pay the composition for all offencescommitted by any member. The resemblance between the Hindoo and the Irish joint-family extends even to details. By theBrahmin law, whatever a member of the community gains by any special scientific knowledge, or by the exercise of theliberal arts, belongs to him in several ownership, unless he acquired his knowledge at the cost of the family. One of the oldtreatises on the Irish laws, the Corus Bescna , establishes the same distinction. A member of the tribe may give the churchtwo-thirds of what he gains by a liberal profession, it is different, however, if the profession be that of the tribe itself. In thiscase the emolument belongs to the community.
The tribe, at the date of the Brehon Laws , is a civil person, which, as the texts say, "is self-supporting." It is perpetuated, inthe first instance, by the possession of land, "the land is a perpetual person." But it can also exist without cultivating the soil,by the exercise of some trade. A portion of the tribe's domain, probably the arable, is divided among the different families ofthe clan; but these parcels still remain subject to the control of the community. "Every one," says the law, "shall preserve hisland intact, neither selling it, burdening it with debts, nor giving it in satisfaction of crimes or contracts." As in all primitivecustoms, alienation is only allowed with the consent of the whole community: in India this is still the rule. (3) The necessity offollowing the same rotation of crops the German Flurzwang is as strict here as in the Russian mir , or the ancient Germanvillage. This, with marriage, says the Corus Bescna , is one of the fundamental institutions of the Irish nation. The statementof Tacitus with regard to the Germans, apud eos nullum testamentum , is as true of the Irish Celts as of all primitive peoples.
Gifts and legacies were borrowed from the Roman Law of the clergy, that the pious might be allowed to enrich the churchfor the salvation of their souls.
The agrarian system of Ireland, at the time of the Brehon Laws , shews us the state of transition between the primitivecollectivity and private ownership. At the period of the Brehon Laws, the whole territory of the tribe is still regarded intheory as belonging to the whole community; but, as a matter of fact, a very considerable portion of the soil has beenpermanently appropriated by certain families.
There are, however, very extensive common lands, covered with grass and heath, which serve as pasture for the cattle.
Portions of the communal domain are cultivated in turn, according to the practice still in force in many countries, andespecially in the Belgian Ardennes: the occupancy is, however, only temporary, and the ownership still remains in the tribe.
The system of periodic redistribution, with alternate occupancy, is still maintained under the form of rundale . (4) A great partof the soil was subject to methods of tenure and agrarian customs, strongly impregnated with traditions of the old jointownership. At the time of the Brehon Laws , private ownership had hardly been evolved from the primitive community of thesoil. An Irish manuscript of the twelfth century, the Lebor na Huidre , has preserved the memory of this transformation, andindicates its cause, as an economist might do. It contains this curious passage: "Round the fields there was neither ditch,hedge, nor stone wall, and the land was not divided until the time of the sons of Aed Slane. It was in consequence of thegreat number of families at this time, that divisions and boundaries of the soil were introduced in Ireland." This is, in truth,one of the chief causes which give rise to private property. When the number of co-partners becomes excessive, the lotwhich accrues to each in the common domain is too slender for the "extensive" agriculture which they practise. They have toadopt a mode of cultivation which demands permanent improvements and the sinking of capital in the soil; and this cannotbe done without the guarantee of hereditary possession, or, at any rate, of a very considerable term. Hence arises severaloccupancy, of permanent duration, and transmissible within the family. The periodic partition, every year or every threeyears, evidently allows of only a rudimentary cultivation, which consequently produces little, and 50 requires a large extentof ground.
