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
  s