Source: The Ethnographical Notebooks of Karl Marx, transcribed and edited, with an introduction by Lawrence Krader, published by Van Gorcum & Co., 1972, pp. 287-336;
Transcribed: by Andy Blunden and Chris Clayton.
For .bmp images of scan, see directory listing
[160] Sir Henry Sumner Maine: “Lectures on the Early History of Institutions. London 1875.”
In d. Uebersetzten d. Brehon Laws – an assemblage of law tracts, wichtigsten:
Senchus Mor (Great Book of the Ancient Law), and the Book of Aicill. Nach Mr. Whitley Stokes das erstere compiled in od. kurz vor 11 Jhdt; d. Buch v. Aicill ein Jhdt fruher. (12)
Edmund Spenser: “’View of the State of Ireland.”
Sir John Davies.
Laws of Wales.
Brehons a class of professional Irish Lawyers, whose occupation became hereditary.
[De] B[ello] G[allico] Caesar. VI, 13, 14:
The learned writer of one of the modern prefaces prefixed to the Third Volume of the Ancient Law contends that the administration of the Brehon system consisted in references to arbitration (p. 38) (See “Ancient Laws of Ireland”) Will ein vornehmer Mann seine Schuld (a claim upon him) nicht discharge, Senchus Mor tells you to “fast upon him” (1.c. Ancient Laws etc. vol. I, p. 113) Dies identisch mit was d. Hindu call “sitting dharna’’ (39, 40).
Alle Pfaffenautorität in Irld ging naturlich, nach d. conversion d. Irish Celts über an d. “tribes of the saints’’ (the missionary monastic societies founded on all parts of the island u. d. multitude of bishops dependent on them. D. religious Theil der old Laws daher superseded, ausser so far as the legal rules exactly coincided with the rules of the new Christian code, the “law of the letter.” (38) The one object of the Brehons was to force disputants to refer their quarrels to a Brehon, or to some person in authority advised by a Brehon, and thus a vast deal of the law tends to run into the Law of Distress, which declares the various methods by which a man can be compelled through seizure of his property to consent to an arbitration. (38, 39) The Brehon appears to have invented (dch hypothetische Conjecturen, i.e. purely hypothetical cases) the facts which he used as the framework for his legal doctrine. His invention necessarily limited by his experience, and hence the cases suggested in the law tracts ... throw light on the society amid which they were composed. (43, 44) The “law of nature” meint d. ancient law (custom) explained by the Brehons, u. dies bindend as far as it coincided with the “law of the letter” (i.e. dem Christlichen Kram). (50) The Brehon did claim that St. Patrick and the other great Irish Saints had sanctioned the law which he declared, and that some of them even revised it. (51)
Dch d. Churchmen, die mit notions of roman law [rather ditto of canonical law] more or less imbued, kam auch d. röm Einfluss (- so far as it goes -) on Brehon law. (55) Daraus im Interesse d. Kirche Testament derived (“Will”); ebenso conception of “Contract” (the “sacredness of promisesetc. sehr wichtig fur Pfaffen) Eine Unterabtheilg (published) des Senchus Mor, nämlich Corus Bescna chiefly concerned mit “Contract” u. zeigt sich darin that the material interests of the Church furnished one principal motive for (its) compilation. (56)
Nach d. Brehon law giebts 2 Sorten of “contract”: “a valid contract, and an invalid contract.”.. Anciently, the power of contract is limited on all sides ... by the rights of family, distant kinsmen, co-villagers, tribe, Chief, and, if you contract (spater mit Christenthum) adversely to the Church, by the rights of the Church. The Corus Bescna is in great part a treatise on these ancient limitations. (57, 58)
The “Book of Aicill” provides for the legitimation not only of the bastard, but of the adulterine bastard, and measures the compensation to be paid to the putative father. The tract on “Social Connections” appears to assume that the temporary cohabitation of the sexes is part of the accustomed order of society, and on this assumption it minutely regulates the mutual rights of the parties, showing an especial care for the rights of the woman, even to the extent of reserving to her the value of her domestic services during her residence in the common dwelling. (59) Dieser tract on “Social Connections” notices a “first” wife. (61) Dies halt Maine für Kitcheneinfluss, kommt aber überall in higher state of savagery vor, z.B. bei [161] Red Indians. The common view seems to have been that (d. christliche) chastity ... the professional virtue of a special class, (monk, bishop, etc) (61) (Die flgden “Extracts” zeigen, einerseits dass Herr Maine sich noch nicht aneignen konnte was Morgan noch nicht gedruckt hatte, andrerseits, dass er Sachen die sich u. a. schon bei Niebuhr finden, darzustellen sucht as “pointed out” by the identical Henry Sumner Maine! -: “From the moment when a tribal community settles down finally (dies “finally"! absurd, da der tribe, wie wir sehr oft finden, having once settled down, migrates de nouveau u. settles again, either voluntarily, or forced to do so somewhere else) upon a definite space of land, the Land begins to be the base of society in place of the kinship. The change is extremely gradual etc.—(72) [Dies zeigt nur, wie wenig er d. point of transition kennt.] Er fuhrt fort: “The constitution of the Family through actual blood-relationship is of course an observable fact, but, for all groups of men larger than the Family, the Land on which they live tends to become the bond of Union between them, at the expense of kinship, ever more and more vaguely conceived.” (72, 73) [Dies zeigt, wie wenig die Gens a fact observed by the identical Maine is!] “Some years ago I pointed out (“Ancient Law,” p. 103 sq.) the evidence furnished by the history of International Law that the notion of territorial sovereignty, which is the basis of the international system, and which is inseparably connected with dominion over a definite area of land, very slowly substituted itself for the notion of tribal sovereignty.” (73) Nach Herrn Maine, first: Hindoo joint Family, 2nd, Household Community of the Southern Slavonians, 3 d) the true Village Community as found first in Russia and next in India. [Dies “first” u. “next” bezieht sich nur auf d. relative periods worin these things dem great Maine bekannt geworden.] (78)
Ohne d. collapse der “smaller social groups” and the decay of the authority which, whether popularly or autocratically governed, they possessed over the men composing them, wie sagt d. wurdige Maine, (we) “should never have had several great Conceptions which lie at the base of our stock of thought” (86) u. zwar sind these great conception(s): “the conception of land as an exchangeable commodity, differing only from others in the limitation of the supply” (86, 87), “the theory of Sovereignty’’, or (in other words) of a portion in each community possessing unlimited coercive force over the rest,” “the theory of Law as exclusively the command of a sovereign One or Number,” “the ever increasing activity of legislation” u. – [asinus!] – der test of the value of legislation ... viz: “the greatest happiness of the greatest number.” (87)
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 recognized 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. (89, 90) Dasselbe Wort: “Fine” or Family (?) is applied to all the subdivisions of the Irish society, von d. Tribe in its largest extension u. all intermediate bodies down to the Family (in the present sense), and even for portions of the Family.” (Sullivan, Brehon Lan,. Introduction’’.) (go) Sept = sub-tribe, or joint Family in d. Brehon tracts. (91) The chief for the time being was, as the Anglo-lrish judges called him in the famous “Case of Gavelkind,” the caput cognationis. (91) Not only was the Tribe or Sept named after its eponymous ancestor, but the territory which it occupied also derived from him the name which was in commonest use – so wie “O’Brien’s Country” or “Macleod’s Country.” (l.c.) Von portions des land occupied by fragments of the tribe some are under minor chiefs or “flaiths” (93) All the unappropriated tribe-lands are in a more especial way the property of the tribe as a whole, and no portion can theoretically the subjected to more than a temporary occupation. (93) Among the holders of tribe-land are groups of men calling themselves tribesmen, bilden in reality associations formed by contract, chiefly for the | purpose of pasturing cattle. (l.c.) [162] Auf dem “waste” – common tribeland not occupied – Stucke bestandig brought under tillage or permanent pasture by settlements of tribesmen, and upon it cultivators of servile status are permitted to squat, particularly towards the border. It is the part des territory woruber d. authority des Chief tends steadily to increase, u. here he settles his “fuidhir” or stranger-tenants, a very important class – the outlaws and “broken” men from other tribes who come to him for protection ... are only connected with their new tribe by their dependence on its chief, and through the responsibility which he incurs for them. (92)
Particular families manage to elude the theoretically periodical re-division of the common patrimony of the group; others obtain allotments with its consent as the reward of service or the a<p>panage of office; and there is a constant transfer of lands to the Church, and an intimate intermixture of tribal rights with ecclesiastical rights ... Brehon law shows that by the time it was put into shape, causes etc. tending to result in Several Property ... had largely taken effect. (95) The severance of land from the common territory appears most complete in the case of Chiefs, many of whom have large private estates held under ordinary tenure in addition to the demesne specially attached to their signory. (l.c.)
Dieser asinus bildet sich ein dass “modern research ... conveys a stronger impression than ever of a wide separation between the Aryan race and races of other stocks (!) but it suggests that many, perhaps most, of the differences in kind alleged to exist between Aryan sub-races are really differences merely in degree of development. (96)
Anfang d. XVII Jhdts erklärten d. Anglo-Irish Judges the English Common Law to be in force throughout Ireland, u. so seit dem lausigen James I all land to descend to the eldest son of the last owner, unless its devolution was otherwise determined by settlement or will. Der Sir John Davis, in seinem report of the case u. d. arguments before the Court, recites that hitherto all land in Ireland had descended under the rule of Tanistry oder those of Gavelkind. Was dieser Davis2 sich einbildet as system of inheritance, called Gavelkind, he (Davis)2 describes so: “When a landowning member of an Irish Sept died, its chief made a re-distribution of all the lands of the Sept. He did not divide the estate of the dead man among his children, but used it to increase the allotments of the various households of which the Sept was made up. Aber was diesen English judges nur als “systems of succession” erscheint, war “ancient mode of enjoyment during life”. (99) So in the Hindoo Joint Undivided Family the stirpes or stocks, dem European law nur bekannt as branches of inheritors, are actual divisions of the family, and live together in distinct parts of the common dwelling. (Calcutta Review, July 1874, p. 208) (100)
Rundale holdings in part of Ireland; jetzt meist common form: “arable land held in severalty” (dies beschreffit d. Sache falsch!), while pasture u. bog are in common. Aber noch vor 50 Jahren, cases were frequent wo d. arable land divided in farms which shifted among the tenant-families periodically, and sometimes annually. (101) Nach Maine “the Irish holdings “in rundale” are not forms of property, but modes of appropriation”, aber d. Bursche selbst bemerkt: “archaic kinds of tenancy are constantly evidence of ancient forms of proprietorship.... Superior ownership arises through purchase from small allodial proprietors (?), through colonization of village waste-lands become in time the lord’s waste, or (in an earlier stage) through the sinking whole communities of peasants into villeinage, and through a consequent transformation of the legal theory of their rights. Aber selbst wenn a Chief or Lord has come to be recognized as legal owner of the whole tribal domain, or of great portions of it, the accustomed methods of occupation and cultivation” are not altered. (102)
D. chief Brehon law tract setting 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 Besena, printed in the third volume of the official edition. (103) Das was die ganze Sache verdunkelt ist the “strong and palpable bias of the compiler towards the interest 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. (104)
In the Germanic countries, their (d. christl. Pfaffen) ecclesiastical societies were among the earliest and largest grantees of public or “folk” land. (Stubbs: “Constitutional History”, v. I, p. 104). The Will, the Contract, and the Separate Ownership, were in fact indispensible to the Church as the donee of pious gifts. (1.c.) All the Brehon writers have a bias towards private or several, as distinguished from collective, property. (105)
Weiter über the “Tribe” or “Sept” see “Ancient Laws of Ireland”, II, 283, 289; III, 49-51; II, 283; III, 52, 53, 55. III, 47, 49. III, 17; III, 5. Der collective brotherhood of tribesmen, wie der Agnatic Kindred in Rom, some ultimate right of succession appears to be reserved. (111, 112)
The “Judgments of Co-Tenancy” is a Brehon law tract, noch unpublished (1875), wovon sich aber Herr Maine, der nur d. Uebersetzg kennt, nicht d. Text, so pfiffig war sich vor d. Publication figdes mittheilen zu lassen: D. tract fragt: “Whence does Co-Tenancy arise”? Answers: “From several heirs and from their increasing on the land”; dann bemerkt der tract: the land is, in the first year, to be tilled by kinsmen just as each pleases; in the second year they are to exchange lots; in the 3d year the boundaries are to be fixed u. the whole process of severance is to be consummated in the 10th year.” (112) Maine bemerkt richtig, dass d. Zeitbestinimgen ideales arrangement des Brehon lawgiver, aber d. Inhalt: “First a Joint Family (dies statt gens, weil d. Herr Maine d. Joint Family wie sie in Indien existirt fälschlich als ursprüngliche Form betrachtet), composed of “several heirs increasing on the land”, is found to have made a settlement. In the earliest stage the various households reclaim the land without set rule. (!) Next comes the system of exchanging lots. Finally, the portions of land are enjoyed in severalty.” (113)
Herr Whitley Stokes hat dem Maine 2 passages occurring in non-legal Irish literature mitgetheilt. The “liber Hymnorum” (soll v. 11t Jhdt sein) contains folio 5 A: “Numerous were the human beings in Ireland at that time (i.e. the time of the sons of Aed Slane A. D. 658-694) and such was their number that they used not to get but thrice 9 ridges for each man in Ireland to wit, 9 of bog, and 9 of smooth (arable), and 9 of wood.” (114) Another Irish Msept, believed of the 12. century, the “Lebor na Huidre” says that “there was not ditch, nor fence, nor stonewall round land, till came the period of the sons of Aed Slane, but (only) smooth fields. Because of the abundance of the households in their period, therefore it is that they introduced boundaries in Ireland”. (114) Beide schreiben a change from a system of collective to a system of restricted enjoyment zu dem “growth of population ”. The periodical allotment to each household of a definite portion of bogland, wood land, u. arable land gleicht sehr dem apportionment of pasture and wood and arable land still going on under the communal rules of the Swiss Allmenden (l.c.)
Herr Maine als blockheaded Englishman geht nicht von gens aus, sondern von Patriarch, der später Chief wird etc. Albernheiten. (116-18). Dies passt namtlich für d. älteste Form der gens! – Dieser Patriarch – z.B. bei d. Morganschen Iroquois (wo d. gens in female descent!) | Der Blödsinn Maine ’s gipfelt in d. Satz: “Thus all the branches of human society may or may not have been developed from joint families [wo er grade die jetzige Hindooform der letzteren im Aug hat, dies sehr sekundären Character hat, u. deshalb auch – ausserhalb d. village communities thront, namentlich in d. Städten!] which arose out of an original patriarchal cell; but, wherever the joint Family is an Institution of the Aryan race (!), we (who?) see it springing from such a cell, and when it dissolves, we see it dissolving into a number of such cells.” (118)
Property of land has had a twofold (?) origin ... partly from the disentanglement of the individual rights of the kindred or tribesmen from the collective rights of the Family or Tribe ... partly from the growth and transmutation of the Sovereignty of the Tribal Chief. [Also nicht 2 fold origin; sondern nur 2 ramifications of the same source; the tribal property u. tribal collective body, which includes the tribal chief.] .... Beide in most of Western Europe passed through the crucible of feudalism.... The first (the sovereignty of the Chief) re-appeared in some wellmarked characteristics of military or knightly tenures ... the other in the principal rules of non-noble holdings, and amongst them of Socage, the distinctive tenure of the free farmer. (120) In sehr oberflächlicher Weise: “The Status of the Chief ... left one bequest in the rule of Primogeniture, which, however, has long lost its most ancient form; ... in the right to receive certain dues and to enforce certain monopolies; and drittens in a specially absolute form of property ... once exclusively enjoyed by the chief (?), and after him by the Lord, in a portion of the tribal territory which formed his own dominion. Andrerseits: Out of tribal ownership in various forms of decay have sprung several systems of succession after death, among them the equal division of the land between the children u. has left another set of traces ... in a number of minute customary rules which govern tillage and occasionally regulate the distribution of the produce. (120, 121) Nach Arthur Young (Travels: 1787, 88, 89, p. 407) more than ⅓ of France small properties, that is, little farms belonging to those who cultivate them” (says A. Young.) Nach To
In Folge d. französischen Revolution: the landlaw of the people superseded the land law of the nobles; in Engld der | umgekehrte Process: primogeniture, once applying only to knightly holdings, came to apply to the great bulk of English tenures, ausser d. Gavelkind of Kent u. einige andre Lokale. (123, 124) Dieser Change was rapidly proceeding zwischen Zeit of Glanville [whscheinlich 33d year of Henry’s reign, hence 1186; Henry II (1154-1189)] u. Bracton [wahrsclich nicht later als 52nd year of Henry III, i.e. 1270; Henry III (1216-1272)]. Glanville schreibt as if the general rule of law caused lands held by free cultivators in socage19 to be divided equally between all the male children at the death of the last owner; Bracton, as if the rule of primogeniture applied universally to military tenures and generally to socage tenures. (125) Optimist Maine findet dass andrerseits “the transmutation of customary and copyhold into freehold property ... proceeding for about 40 years under the Conduct of the Copyhold and Enclosure Commissioners” u. dies betrachtet dieser comfortable Bursch as the English equivalent of the French Revolution. Risum teneatis! (see d. fellow p. 125) Dieser lächerliche Bursche macht d. röm. Form d. absolute landed property zur “English.form of ownership”, u. fährt dann fort:
“... to the principle of several and absolute property in land [das überall in occidental Europe mehr existirt als in Engd] I hold this country to be committed ... there can be no material advance in civilisation unless landed property is held by groups at least as small as Families; ... we are indebted to the “peculiarly” absolute English form of ownership for such an achievement as the cultivation of the soil of North America (126, wo grade alles specifisch English in landed Property vernichtet! O Du Philister)
The Norman nobles who first settled in Ireland are well known to have become in time Chieftains of Irish tribes ... it is suggested that they were the first to forget their duties to their tenants and to think of nothing but their privileges. (128)
Even according to the (Irish) texts apparently oldest, much of the tribal territory appears to have been permanently alienated to sub-tribes, families, or dependent chiefs ... d. glosses u. commentaries show that, before they were written, this process had gone very far indeed. (129) The power of the Chief grows first through the process anderswo called “Commendation,” wdch the free tribesman becomes “his man”, and remains in a state of dependence having various degrees ... ferner dch his increasing authority over the waste lands of the tribal territory u. from the servile or semi-servile colonies he plants there; endlich from the material strength he acquires through the numbers of his immediate retainers u. associates, most of whom stand to him in more or less servile relations. (130)
The Manor with its Tenemental lands held by the free tenants of the Lord and with its Domain which was in immediate dependence on him, was the “type of all feudal sovereignties in their complete form”, whether the ruler acknowledged a superior above him or at most admitted one in the Pope, Emperor, or God himself. (130-31)
D. abominable Freeman (“Norman Conquest” I, 88) erklärt sich d. Verwdlg d. tribe chiefs in feudal lords etc leicht, indem er voraussetzt was er entwickeln soll, nämlich dass d. privlged class always formed a distinct class or section of the community, sagt, l.c. “the difference between eorl u. ceorl is a primary fact from which we start.” (131)
D. chief source of nobility seems to have been the respect of the co-villagers or assemblages of kinsmen for the line of descent in which the purest blood of each little society was believed to be preserved. (132) “Every chief”, says the text, “rules over his land, whether it be great or whether it be small.” (132) | Aber the Brehon law shows the way in which a common freeman may become a chief u. zugleich ist diese position to which he attains “the presidency of a group of dependents” – (später wden diese Burschen erst Glieder einer besondern Klasse). (133) Wo aristocracy a section of the community from the first besondre Umstände, die notabene selbst schon derivative sind, nämlich, wo an entire tribal group conquers or imposes its supremacy upon other tribal groups also remaining entire, oder wo an original body of tribesmen, villagers, or citizens, gradually gathers round itself a miscellaneous assemblage of protected dependents. In Scottish Highlands some entire septs or clans stated to have been enslaved to others; u. ebenso frühest in Ireland met a distinction between free u. rent paying tribes. (133)
Im Brehon law a Chief vor allem a rich man (133), nämlich reich – nicht in Land, sondern in flocks u. herds, sheep, vor allem Ochsen. D. Opposition zwischen birth u. wealth, bes
Im tract (Brehon Laws): “Cain-Aigillne” (p. 279) heissts that “the head of every tribe should be the man of the tribe who is the most experienced, the most noble, the most wealthy, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and to be sued for losses.” Also personal wealth. [Aber Herr Maine, dies only in Status of Upper Barbarism, far from being archaic] the principal condition of the Chief’s maintaining his position and authority. (134, 135)
Brehon law zeigt dass dch d. acquisition of such wealth the road was always open to chieftainship. Portion of the Danish nobility originally peasants u. in early English laws some traces of a process wdch a Ceorl might become a Thane. (135)
Brehon law speaks of the Bo-Aire (the cow-nobleman). Ist simply a peasant, grown rich in cattle, probably through obtaining the use of large portions of tribe-land. (135) D. true nobles – the Aires getheilt [von d. Pfaffenjuristen, d. Brehons notabene; dies wie alle alten Pfaffenbücher (Menu f.i.) voller fictions in Interesse d. Chiefs, höheren Stände etc, schliesslich all das wieder in Interesse der Kirche. Ausserdem sind sie wie Juristen aller Sorten bei d. Hand mit fictive classifications.)] Jeder Grad unterschieden von dem anderen dch the amount of wealth possessed by the Chief belonging to it, by the weight attached to his evidence, by the power of binding his tribe by contracts (literally of “knotting”), by the dues he receives in kind from his vassals, by his Honor-Price, or special damages incurred by injuring him. At the bottom of the scale is the Aire-desa; u. d. Brehon Law provides dass wenn der Bo-Aire has acquired 2× the wealth of an Aire-desa, and has held it for a certain number of generations, he becomes an Aire-Desa himself. “He is an inferior chief – says the Senchus Mor – whose father was not a chief”. (136) Enormous importance of wealth u. specially wealth in cattle reflected in the Brehon tracts. (137) Wahrscheinlich the first aristocracy springing from kingly favour consisted of the Comitatus, or Companions of the King (138) Major Domus bei d. Franken ward König; das blood | des Steward (and Great Seneschal) of Scotland runs in the veins of the Kings of England. Noch in England the great officers of the Royal Council u. Household haben Vorrang vor allen Pairs, od. mindest of all Peers of their own degree. Alle diese hohen Würden [dies hat Maurer u. z. Th. schon Hüllmann lang gewusst vor Maine], wenn nicht marking an office originally clerical, point to an occupation ... at first ... menial.” (139) D. Household sprang von very humble beginnings. (139) D. stubbige Stubbs (“Constitutional History”) states that “the gesiths of an (English) king were his guard and private council)”, wobei er bemerkt, dass “the free household servants of a ceorl are also in a certain sense his gesiths”. D. Companions des king in the Irish legal literature nicht noble, u. associated mit d. king’s body-guard which is essentially servile
Wsclich dass in a particular stage of society, der personal service to the Chief or King was überall rendered in expectation of a reward in the shape of a gift of land. D. Companions d. Teutonic Kings shared largely in the Benefices, grants of Roman provincial land fully peopled u. stocked; in ancient Engld selbe class largest grantees (nach Pfaffen s’il vous plait) of public land; u. dies part of the secret of the mysterious change wdch a new nobility of Thanes, deriving dignity u. authority from the King, absorbed the older nobility of the Eorls. (141) Aber in countries lying beyond the northern u. western limits of the Roman Empire, or just within them
Whenever legal expression has to be given to the relations of the Comitatus to the Teutonic kings, the portions of the Roman law selected are uniformly those which declare the semi-servile relation of the Client or Freedman to his Patron. Nach d. texts d. Brehon Law a Chief of high degree is always expected to surround himself with unfree dependents u. d. retinue eines King of Erin was to consist not only of free tribesmen but of a bodyguard of men bound to him by servile obligations ... Auch ... wenn d. Comitatus or Companions of the Chief
In d. Brehon Laws spielen grosse Rolle horned cattle, i. e. bulls, cows, heifers, and calves; auch horses, sheep, swine, dogs, bees (the latter = the producers of the greatest of primitive luxuries). Vor allem aber kine (cows). Capitale – kine reckoned by the head, cattle has given birth to one of the most famous terms of law and one of the most famous terms of political economy, Chattels and Capital. Pecunia. (147) The Primitive Roman law places oxen in highest class of property, mit land u. slaves as items of the Res mancipi. Kine, which the most ancient Sanscrit literature shows to | have been eaten as food, became at some unknown period sacred and their flesh forbidden; two of the chief “Things which required a Mancipation at Rome”, oxen and landed property, had their counterpart in the sacred bull of Siwa and the sacred land of India. (148) Horned cattle showed their greatest value when groups of men settled on spaces of land and betook themselves to the cultivation of food-grain. (1.c.) Erst für ihr flesh u. milk valued, schon in very early times a distinct special importance belonged to them as instrument or medium of exchange; bei Homer sind sie a measure of value; traditional story dass d. earliest coined money known at Rome stamped with the figure of an ox; “pecus” u. “pecunia”. (149) In Brehon laws figuriren horned cattle als means of exchange; fines, dues, rents u. returns are calculated in live-stock, not exclusively in kine, but nearly so. Beständig referred to two standards of value, “sed”, u. “cumhal”; cumhal soll originaliter have meant a female slave, aber “sed” plainly used for an amount or quantity of live stock. Aber, später, cattle hauptsächlich valued for their use in tillage, their labour and their manure. Erst nach u. nach as beasts of plough ersetzt dch Pferde in Western Europe (auch hier nicht überall); in still large portions of the world horse noch ausschliesslich employed, wie wohl ursprünglich überall, for war, pleasure, or the chase. (150) Oxen waren so fst einziger Representative of what now called Capital. (1.c.) The same causes which altered the position of the ox and turned him into an animal partially adscriptus glebae, undoubtedly produced also a great extension of slavery ... Enormous importation of slaves into the central territories of the Roman Commonwealth, and the wholesale degradation of the free cultivating communities of Western Europe into assemblages of villeins. (150, 151)
D. Schwierigkeit – in ancient Ireland – not to obtain land, but the means of cultivating it. D. great owners of cattle were the various Chiefs, whose primitive superiority to the other tribesmen in this respect was probably owing to their natural functions as military leaders of the tribe. Andrerseits scheint aus d. Brehon laws zu folgen that the Chiefs pressed by the difficulty of finding sufficient pasture for their herds. Hatten ihrer growing power over the waste land dr particular group worüber sie präsidirten, aber die most fruitful portions of the tribal territory whsclich those which the free tribesmen occupied. Hence d. system of giving and receiving stock, to which 2 sub-tracts des Senchus Mor are devoted, the Cain-Saerrath u. d. Cain-Aigillne, the Law of Saer-Slock tenure u. the Law of Daer-Stock Tenure. (152)
In Feudalgesellscft everybody has become the subordinate of somebody else higher than himself and yet exalted above him by no great distance. (153) Nach Stubbs (Conslit. History. I, 252) Feudalism has “grown up from 2 great sources, the Benefice and the practice of Commendation”. (154) Commendation, in particular, went on all over Western Europe. (155) D. Chief (Irish) – sei er einer d. many tribal rulers whom the Irish records call kings, or one of those heads of joint families whom the Anglo-Irish lawyers at a later period called the Capita Cognationum, – is not owner of the tribal lands. His own land he may have, consisting of private estate or of official domain, or of both, and over the general tribal land he has a general administrative authority, ever growing greater over that portion of it which is unappropriated waste. He is meanwhile the military
By taking stock the free Irish tribesman becomes the Ceile or Kyle, the vassal or man of his Chief, owing him not only rent but service and homage. The exact effects of “commendation” are thus produced. (158) Je mehr stock der tribesman accepts from his Chief, desto tiefer der status zu dem er herabsinkt. Hence die 2 classes of Saer und Daer tenants (entspreche
Daer-stock tenancy gebildet, wenn entweder any large addition to the stock deposited with the Saer-Stock tenant, od. an unusual quantity accepted in the first instance by the tribesman. D. Daer Stock tenant had parted with some portion of his freedom u. his duties invariably referred to as very onerous. D. Stock, den er vom Chief erhielt, bestand aus 2 portions, wovon die eine entsprechend dem Rang des Empfängers, d. andre der rent in kind to which t
The Heriot of English Copyhold tenure, the “best beast” taken by the Lord on the death of a base tenant, has been explained as an acknowledgment of the Lord’s ownership of the cattle with which he anciently stocked the lands of his villeins, just as the Heriot of the military tenant is believed to have had its origin in a deposit of arms. Adam Smith recognized the great antiquity of the Metayer tenancy, wovon er noch in seiner Zeit found in Scotland one variety, the “steelbone”. (162) In einer der prefaces der official translation der Brehon laws Vergleichg gemacht zwischen Metayer tenancy u. the Saer u. Daer-stock tenancy of ancient Irish law. Die differences aber: In Metayage giebt landlord land u. stock, der tenant nur Arbeit u. skill; in Saer u. Daer stock tenancy the land belonged to the tenant. Ferner: d. ancient Irish relation produced nicht allein a contractual liability, sondern a status; the tenant had his social u. tribal position distinctly altered by accepting stock. [Wie leicht in ancient times mere contractual liability umschlägt, oder kaum zu ändern ist von status, Beweis z.B. Russld wo persönlicher Dienst direct in Sklaverei umschlägt u. selbst freiwillige Feldarbeit etc nur mit Mühe von selbem Umschlag zu schützen. Sieh darüber d. Weitere in d. russ. Ouellen.] [163] In Ireland the acceptance of stock not always voluntary; a tribesman in one stage of Irish custom at all events was bound to receive stock from his own “King” ... Dies the Chief of his tribe in its largest extension. In eingen cases the Tribe wzu der intending tenant gehörte had in some cases a veto on his adoption of the new position. Um d. Tribe opportunity to geben to interpose whenever it had legal power to do so, the acceptance of stock had to be open and public, and the consequences of effecting it surreptitiously are elaborately set forth by the law. Hence one of the rules: “no man should leave a rent on his land which he did not find there.” (163, 164)
Gehörten der Chief der den stock gab u. der Ceile der ihn accepted zum selben Tribe, so relation geschaffen verschieden von d. tribal connection u. much more to the advantage of the chief. Aber dieser Chief war nicht immer der Chief of the tribe<s>man’s own Sept or Tribe. Brehon law sucht Schwierigkeiten in d. Weg zu legen wo attempt dies vassalage Verhältniss zu etabliren zwischen a tribesman and a strange Chief. Aber abundant admission that dies vorkam. jeder nobleman assumed to be as a rule rich in stock, u. having the Zweck to disperse his herds by the practice of giving stock. Der enriched peasant, der Bo-aire, had Ceiles who accepted stock from him. Hence the new groups formed in this way were manchmal ganz distinct von den old groups composed of the Chief and his Clan. Auch die new relation nicht confined auf Aires, or noblemen, u. Ceiles (i.e. free but non noble tribesmen). The Bo-aire certainly and apparently the higher Chiefs also, accepted stock on occasion from chieftains more exalted than themselves, and in the end to “give stock” came to mean the same thing wie anderswo “Commendation”.... By fiction the Brehon Law represents the King of Ireland as “accepting stock” from the Emperor. Es sagt: “When the King of Erin is without opposition (wovon the explanation runs: when he holds the ports of Dublin, | Waterford and Limerick, which were usually in the hands of the Danes – “he receives stock from the King of the Romans”. (Senchus Mor.33 II, 225). The commentary goes on to say, that sometimes “it is by the successor of Patrick [dies statt “Pope”] that the stock is given to the King of Erin”. [164-166]
This natural growth of feudalism was not, as some eminent recent writers have supposed, entirely distinct from the process by which the authority of the Chief or Lord over the Tribe or Village was extended, but rather formed part of it. While the unappropriated waste lands were falling into his domain, the villagers or tribesmen were coming through natural (?) agencies under his personal power. [167]
The law-tracts (Brehon) give a picture of an aristocracy of wealth in its most primitive form; cf. über d. Gallic Celts Caesar B. G.3 I. 4, u. VI. 13. In ancient world finden wir sehr early plebejan classes deeply indebted to aristocratic orders. (167) Athenian commonalty the bondslaves through debts of the Eupatrids; so the Roman Commons in money bondage to the Patricians. (167, 168) In very ancient times land was a drug, while capital was extremely perishable, added to with the greatest difficulty, and lodged in very few hands ... The ownership of the instruments of tillage other than the land itself was thus, in early agricultural communities, a power of the first order ... it may be believed (!) that a stock of the primitive capital larger than usual was very generally obtained by plunder ... mostly daher in the hands of noble classes whose occupation was war and who at all events had a monopoly of the profits of office. The advance of capital at usurious interest, and the helpless degradation of the borrowers, natural results of such economical conditions. [168, 169] D. Brehon writers der Cain-Saerrath u. Cain-Aigillne, dch their precise u. detailed statements, plainly intend to introduce certainty and equity into a naturally oppressive system. [169]
“Eric-fines”, or pecuniary composition for violent crime. [170] By this customary law, the sept or family to which the perpetrator of a crime belonged etc had to pay in cattle (später Geld) dies fine. [171]
Feodum, Feud, Fief, von Vieh, cattle. Ebenso Pecunia u. Pecus. Wie d. Roman lawyers tell that pecunia became the most comprehensive term for all a man’s property, so “feodum” – originally meaning “cattle”. [171, 172]
Nach Dr. Sullivan feodum Celtic Sprachursprung; he connects it with fuidhir. Nämlich d. territory jedes Irish tribe seems to have had settled on it, neben den Saer und Daer Ceiles, certain classes of persons deren status nearer to slavery than to that of the Saer u. Daer tribesmen. Diese classes genannt Sencleithes, Botbachs und Fuidhirs; diese 2 letzten classes wieder subdivided in Saer u. Daer Bothachs und Saer u. Daer Fuidhirs. Ersichtlich aus d. tracts u. namentlich dem noch unpublicirten “Corus Fine”, dass d. servile dependents, gleich den freemen des territory, had a family or Tribal organisation; and indeed all fragments of a society like that of ancient Ireland take more or less the shape of the prevailing model. D. position d. classes, obscurely indicated in Domesday u. other English records as Cotarii und Bordarii whclich sehr ähnlich denen der Sencleithes u. Bothachs; in beiden Fällen had these servile orders whhsclich an origin distinct from that of the dominant race, and belonged to the older or aboriginal inhabitants of the country. Ein Theil der families or subtribes formed out of them were certainly in a condition of special servitude to the Chief or dependence on him; these either engaged in cultivating his immediate domain-land and herding his cattle, or were planted by him in separate settlements on the waste land of the tribe; rente or service which they paid scheint von Willkühr des Chief abhängig gewesen zu sein. [172, 173] | D. wichtigste Theil dieser Klassen der settled by the Chief on the unappropriated tribal lands. Diese Fuidhirs u. ausserdem strangers or fugitives from other territories, in fact men who had broken the original tribal bond which gave them a place in the community. Aus Brehon law sichtbar, dass these Klasse zahlreich; spricht à diverses reprises von the desertion of their lands by families or portions of families. Unter gewissen Umständen wden the rupture of the tribal bond u. d. Flucht deren who break it als “eventualities” von d. Gesetz behandelt. D. Verantwortlichkeit von tribes, subtribes, u. families for crimes ihrer Glieder u. even to some extent of civil obligation derselben – might be prevented by compelling or inducing d member of the group to withdraw from its circle; and the Book of Aicill gives the legal procedure which is to be observed in the expulsion, the tribe paying certain fines to the Chief and the Church and proclaiming the fugitive ... Result probably to fill the country with “broken men” u. diese could find a home and protection by becoming Fuidhir tenants; alles tending to disturb the Ireland der Brehon Laws tended to multiply this particular class. [173, 174]
D. Fuidhir tenant exclusive
—**Sir John Davis2, writing before 1613.
—The general bias der writers der Brehon Tracts rather towards the exaggeration of the privileges of the Chiefs than towards overstatement of the immunities of tribesmen. [180]
The power of the Irish Chiefs u. their severity to their tenants in the 16th century being admitted, have been accounted for by the Norman nobles – the Fitzgeralds, Burkes, Barrys – becoming gradually clothed with Irish chieftainship had first abused it u. thus set an evil example to all the Chiefs in Ireland. [181] Better Theory of Dr. Sullivan (in his Introduction, p. cxxvi) wonach dies régime determined “by the steady multiplication of Fuidhir tenants”. (182) Und causes at work, powerfully u. for long periods of time, to increase the numbers of this class: Danish piracies, intestine feuds, Anglo-Norman attempts at conquest, the existence of the Pale, u. the policy directed from the Pale of playing off against one another the Cliefs beyond its borders. Dch dies civil war etc tribes far u. wide broken up, dies implies a multitude of broken men. (18 3) Dann wie in Orissa die immigrated cultivators at the disposal of the Zeminders make greatly rise for d. ancient tenantry the standard of rent u. d. exactions d. landlords – selber Einfluss d. Fuidhir tenants in Ireland; altered seriously for the worse the | portion of the tenants by Saer Stock u. by Daer Stock Tenure. [183, 184] Spenser: “View of the State of Ireland”.
In d. übrigens sonst kritisch nicht erwähnenswerthen: “History of Ireland, Ancient and Modern” (Dublin 1867) von Martin Haverty, wd bemerkt: “tanaisteacht (or tanistry), a law of succession, bezog sich auf “transmission of titles, offices, and authority.” Says Professor Curry: “There was no invariable rule of succession ... but according to the general tenor of our ancient accounts the eldest son succeeded the father to the exclusion of all collateral claimants, unless it happened that he was disqualified etc. The eldest son, being thus recognised and the presumptive heir and successor to the dignity, was denominated tanaiste, that is, minor or second, while all the other sons or persons that were eligible in case of his failure, were simply called righdhambna, i.e. king-material, or king-makings. This was the origin of tanaiste, a successor, and Holnais Flacht, successorship. The tanaiste had a separate establishment, as well as distinct privileges and liabilities. He was inferior to the king or chief, but above all the other dignitaries of the State.... Tanistry, in the Anglo-Norman sense, was not an original, essential element of the law of succession, but a condition that might be adopted or abandoned at any time by the parties concerned; and it does not appear that it was at any time universal in Erin, although it prevailed in many parts of it.... Alternate tanaisteacht did not involve any disturbance of property, or of the people, but only affected the position of the person himself, whether king, chief, or professor of any of the liberal arts, as the case might be; ... it was often set aside by force.” [Prof. Curry in: “Introduction, etc to the battle of Magh Leana”, printed for the Celtic Society, Dublin, 1855; quoted in Haverty, Hist. of Irld, p. 49, wo es weiter heisst: “The primitive intention was that the inheritance should descend to the oldest and most worthy man of the same name and blood, but practically this was giving it to the strongest, and family feuds and intestine wars were the inevitable consequence.” (Haverty, p. 49)]
By gavelkind (or, gavail-kinne) [common also to the Britons, Anglo-Saxons, Francs, etc] the property was divided equally between all the sons, whether legitimate or otherwise ... ; but in addition to his own equal share, which the eldest son obtained in common with his brothers, he received the dwelling house and other buildings, which would been received by the father or kenfinè – [Dies Wort “keitfinè” oder “Caen-fine” was (nach Prof. Curry) only applied to the heads of minor families, and never to any kind of chieftains], if the division was made, as it frequently was, in his own life-time. This extra share was given to the eldest brother as head of the family, and in consideration of certain liabilities which he incurred for the security of the family in general. If there were no sons, the property was divided equally among the next male heirs of the deceased, [Nach Curry: in default of any male issue daughters were allowed a life interest in property.] whether uncles, brothers, nephews, or cousins; but the female line was excluded from the inheritance. Sometimes a repartition of the lands of a whole tribe, or family of several branches, became necessary, owing to the extinction of some of the branches; but it does not appear that any such confusion or injustice resulted from the law, as is represented by Sir John Davis and by other English lawyers who have adopted his account of it. (p. 50. He quotes: “Dissertation upon the Laws of the Ancient Irish, written by Dr. O’Brien, author of the Dictionary, but published anonymously by Vallencey in the 3d number of the “Collectanea de Reb. Hib.”)
The Tenure of land in Ireland was essentially a tribe or family right … all the members of a tribe or family in Ireland had an equal right to their proportionate share of the land occupied by the whole. The equality of title and blood thus enjoyed by all must have created a sense of individual self-respect and mutual dependence, that could not have existed under the Germanic and Anglo-Norman system of vassalage. | The tenures of whole tribes were of course frequently disturbed by war; and whenever a tribe was driven or emigrated into a district where it had no hereditary claim, if it obtained land it was on the payment of a relit to the king of the district; these rents being in some instances so heavy as to compel the strangers to seek for a home elsewhere. (l.c. p. 50) (cf. ib. p. 2 8 Nte, ein (angeblich) Beispiel aus d. Zeit der Queen Mab!)
D. Hünde v. Engländern – man kennt d. Humanität dieser Bestien aus d. Zeiten Henry’s VIII, Elizabeth’s u. James I! – machten gross Geschrei über Irish compositio od. “eric”; vergessend dass sich selbiges findet in Laws of Athlestan, Leges Wallicae (Howell Ddla’s) etc. see l.c. p. 51, u. daselbst Nte✝.)
Fosterage prevailed, up to a comparatively recent period; Egl. gvt. machte oft stringent laws daggen, to prevent the intimate friendships which sprung up between the Anglo-Irish families and their “mere” Irish fosterers. By the statute of Kilkenny, 40 Ed. III (a. d. 1367) wden Fosterage and gossipred [gossipred or compaternity, by the canon law, is a spiritual affinity, and the juror that was gossip to either of the parties, might, in former times, have been challenged as not indifferent.” [Davies on Ireland, bei Dr. Johnson Diet. sub voce: gossipred.)] as well as intermarriages, with the native Irish, declared to be treason. Says Giraldus Cainbrensis (Top. Hib. Dist. 3, Ch. 23) “if any love or faith is to be found among them (the Irish), you must look for it among the fosterers and their foster-children”. Staniburst, De reb. bib. p. 49, says, the Irish loved and confided in their foster-brothers more than their brothers by blood: “Singula illis credunt; in eorum spe requiescunt; omnium conciliorum sunt maxime consoci. Collactanei etiam eos fidelissime et amantissime observant”. See also Harris’s Ware v. II, p. 72 (p. 51, 52 l. c.)
Eh wir ftfahren mit dem Maine, zunächst zu bemerken class 4 Juli 1605 der elende Jacob I [der zur Zeit der Elizabeth, before his accession den Katholikenfteund gespielt u., wie Dr. Anderson: “Royal Genealogies, p. 786” sagt, “assisted the Irish privately more than Spain did publicly”] issued a proclamation, formally promulgating für Irland the Act of Uniformity (2 Eliz.) and commanding the “Papist clergy” to depart from the realm. Im selben Jahr the ancient Irish customs of tanistry u. gavelkind were abolished by a judgment of the Court of King’s Bench, and the inheritance of property was subjected to the rules of English law. (D. lumpacii affirmed the illegality of the native Irish tenures of land; declared the English common law to be in force in Ireland, u. von da the eldest son succeeded, as heir-at-law, both to lands which were attached to a Signory and to estates which had been divided according to the peculiar Irish custom of gavelkind. Maine. [185] D. lausige Sir John Davis was King James Attorney-General for Ireland u. für diesen Posten war natürlich entsprechender Lump gewählt -ein ebenso “vorurtheilsfreier” u. uninteressirter Patron wie der Elizabeths Arschkissende Poet Spencer (“State of Ireland”). His remedy for the ills of Ireland, the employment of large masses of troops “to tread down all that standeth before them in foot, and lay on the ground all the stiffnecked people of that land,” u. zwar sollte that war nicht nur im Sommer, sondern auch im Winter gefführt werden, u. fährt dann fort: “the end will be very short” u. describes in proof what he himself had witnessed in the late wars of Munster” etc. See d. weiteren Cannibalismus dieses Poeten bei Haverty, l.c. p. 428 Nte.)
D. beswusste Zweck d. James was “looting”, was d. Bursche Colonisation nannte. Vertrebg u. Unterjochung d. Irish, u. confiscation ihres Lands u. Habe, alles das unter d. Prätext von Anti-Popery. 1607 O’Neill u. O’Donnell, noch in possession of vast tracts of country, the last great Irish chieftains, crushed. 1608 d. Chiefs im Norden, Sir Cahir O’Doherty etc crushed (ihr Revolt). Nun 6 counties of Ulster – Trone, Derry, Donegal, Fermahagh, Armagh u. Cavan – confiscated to the Crown u. parcelled out among adventurers from England and Scotland. Dazu benutzt Sir Arthur Chichester (Bacon’s plan gefiel nicht dem beastly fool James II), the lord deputy, der zum Dank erhielt the wide lands of Sir Cahir O’Doherty for his share in the wholesale spoliation. (see O’Donovan, “Four Masters”. Die reichen Spiessbürger der London City were the largest participators in the plunder. They obtained 209,800 acres and rebuilt the city (i.e. Derry) since then called Londonderry. Nach d. plan finally | adopted for the “plantation of Ulster” the lots into which the lands were divided were classified into those containing 2000 acres, which were reserved for rich undertakers and the great servitors of the crown; those containing 1500 acres, which were allotted to servitors of the crown in Ireland, with permission to take either English or Irish tenants; and, thirdly, those containing 1000 acres, to be distributed with still less restriction. The exclusion of the ancient inhabitants, and the proscription of the Catholic religion, were the fundamental principles to be acted on as far as possible in this settlement. Cox says that in the instructions, printed for the direction of the settlers, it was especially mentioned “that they should not suffer any laborer, that would not take the oath of supremacy, to dwell upon their land”. (p. 497-500 l. c.)
Irish Parlement berufen angeblich für “Protestant Ascendancy”, aber namentlich auch um Geld für James I zu pressen (whose insatiable rapacity u. stete Geldnoth notorious. (p. 501-503 l.c.)
Da der Raub vermittelst der “plantation” so gut gelungen, suchte James I Sache jetzt auf andre Theile Irlands auszudehnen; appointed commission of inquiry to scrutinize the titles and determine the rights of all the lands in Leinster; commissioners worked so rapidly, that in a little time land to the extent of 385,000 acres placed at James’s disposal [dieser “silly, pedantic fool”, der “British Solomon” lauded by Hume] for distribution. (Weiteres darüber p. 501-505 l.c.) See Leland. Der puritanisch thuende ruffian Arthur Chichester [der für jede neue infamy additional grant of Irish lands erhielt u. d. Title: Baron of Belfast, hatte 1616 sein Werk gethan u. withdrew from the Irish gvnment] laid down as the punishment of jurors who would not find for the king on “sufficient evidence” the Star Chamber; sometimes they were “pillor<i>ed with loss of ears, and bored through the tongue, and sometimes marked on the forehead with a hot iron etc.” (Commons’ Journal. v. I, p. 307.) (l.c. p. 5 0 5. nte✝)
D. flgde Passus in einem d. “famous” (why not “infamous”?) cases in which the Anglo-Irish judges affirmed the illegality of the native Irish tenures of land: “Before the establishment of the (English) common law, all the possessions within the Irish territories ran either in course of Tanistry or in course of Gavelkind. Every Signory or Chiefry with the portion of land which passed
[Dass Tanistry (see d. vorigen Ausz. aus Haverty) eine ältere Form (archaische) der Primogenitur, ist keine Entdeckg d. Herrn Maine, sondern wie d. Auszüge aus Haverty zeigen war von Dr. O’Brien, Prof. Curry etc lang vorher als fact angenommen. Es beruht einfach d
Von Gavelkind sagt Sir John Davis: “By the Irish custom of Gavelkind, the inferior tenanties were partible among all the males of the Sept, both Bastards and Legitimate; and, after partition made, if any one of the Sept had died, his portion was not divided among his sonnes, but the Chief of the Sept made a new partition of all the lands belonging to that Sept, and gave everyone his part according to his antiquity.” [186] [D. Irish Sept = Gens.] Skene citirt observation eines engl. Engineer officer in d. Highlands abt 1730: “They (the Highlanders) are divided into tribes or clans under chiefs or chieftains, and each clan is again divided into branches from the stock, who have chieftains over them. They are subdivided into smaller branches of 50 or 60 men, who deduce their original from their | particular chieftain.” (Skene: “Highlanders” I, p. 156) Was Davis describes passirt which in a Hindoo Joint Family in case of death of one of its members. [187] Dort nämlich, all the property being brought into the “common chest or purse”, the lapse of any one life would have the effect, potentially if not actually, of distributing the dead man’s share among all the kindred united in the family group. And if, on a dissolution of the Joint family, the distribution of its effects were not per capita but per stirpes, this would correspond to Davis’s Chief giving to each man ‘according to his antiquity.’ [p. 187, 188] Gavelkind entspringt aus d. gleichen od. period. Theilung d. Lands in rural commune; zuletzt “the descendants (aber vorher dies auch schon bei Lebzeit) of the latest holder take his property, to the exclusion of everybody else u. d. rights of the portion of the community outside the family dwindle to a veto on sales, or to a right of controlling the modes of civilation. ” [189]
Das was in Davis’s Report (sich oben) in Widerspruch scheint mit d. Brehon Laws, u. a. mit Corus Bescna (which deals with rights over tribal lands) ist dass er ausser rule of Tanistry nur die of “Gavelkind” kennt, whd in Brehon Laws andre (nicht tribal oder gentilician) “property” excluding the “Sept. ” Dr. Sullivan in Introduc. (Breh. Laws p. CLXX) says: “According to the Irish custom, property descended at first only to the male heirs of the body, each son receiving an equal share.... Ultimately, however, daughters appear to have become entitled to inherit all, if there were no sons.” (Dies analog dem Gavelkind of Kent.) Corus Bescna implies that under certain circumstances land might be permanently alienated, at all events to the Church. [191] Ist möglich, dass in certain time the Irish Gavelkind (in distinct sense d. Vertheilung unter Sept d. Landes d. defunct), the modern Gavelkind known to Kent, and many forms of succession intermediate between the two, co-existed in Ireland. The Brehon writers als lawyers u. friends of the Church [“Comfortable” Maine adds in his usual Pecksniff unctuosity: “and (it may be) as well wishers to their country”!] sehr biassed für descent of property in individual families. [193] Beständig kam vor in Irland u. schott. Highlands dass a Chief, ausser domain appertaining to his office, had a great estate held under what the English lawyers deemed the inferior tenure. D. Beispiele on record wo 2 grosse Irish chiefs distributed such estates among their kindred. Im 14 Jhdt Connor More O’Brien assigned the bulk of the estate to the various families of the Sept formed by his own relatives (also Gens), behielt sich nur ½ of a 3d = 1/6 vor, u. dies 1/6 divided er unter his 3 sons, reserving only a rent to himself. Am Ende d. 15 Jhdts Donogh O’Brien, son of Brien Duff, son of Connor, King of Thomond, divided all his land unter seine 11 sons, reservirte für sich nur mansion u. the demesne in his vicinity. Diese 2 cases getrennt dch a century. Im ersten Fall d. land had remained in a state of indivision whd several generations; in 2ten had been periodically divided. Der Connor More O’Brien distributed the inheritance of a Sept; Donogh O’Brien that of a family. (Vallancey: “Collectanea de Rebus Hibernicis,” I, 264, 265. Cf. Haverty. Maine exploits former Irish writers without naming them.) Connor More O’Brien scheint (!) to have paid regard to the various stirpes or stocks, worm d. gens sich branched out; entsprechend was Davis sagt dass d. Chief divided a lapsed share between the members of a sept “according to their antiquity”. In d. most archaic form der Joint Family (soll heissen Gens) u. d. institution which grew out of it, the Village Community, these distributions per capita, später distribution per stirpes, wo careful attention is paid to the lines into which the descendants of the ancestor of the joint-family (read: gens) have separated, and separate rights are reserved to them. Finally, the stocks themselves escape from the sort of shell constituted by the Joint Family (gens); each man’s share of the property, now periodically divided, (diesen Uebergang d. period. gleichen Theilung erklärt Maine nicht) is distributed among his direct descendants at his death. At this point, property in its modern form has been established; but the Joint Family has not wholly ceased to influence successions. [Keineswegs ist ddch “property in its modern form” established; see Russian communes f. i.] Fehlen direct descendants, it is even now the rules of the Joint Family which determine the taking of its inheritance. Collateral successions, when distant, follow the more primitive form – per capita; when they are those of the nearer kindred ... per stirpes. [194-96] | D. Theilung bei Lebzeiten, das sich bei beiden Chiefs findet, auch in Hindoo Joint-Family; auch Laertes in Odyssee, the Old Chief, wenn krackschelig, parts with his power u. retains but part of the property he has administered; daggen d. “poorer freeman” wd einer der “senior” pensioners des tribe so often referred to in the tracts (Brehon). [196]
[Es ist modernes Vorurtheil, d. Theilung post mortem, hervorgegangen aus d. testamentarischen Erbseft, als etwas Specifisches zu betrachten. D. Eigenthum an Land z.B., common selbst nach Verwandlg in privates Familieneigthm, nämlich common property d. family, worin jeder seinen ideellen Antheil hat, bleibt so nach Tod, sei es dass d. Familie zusammenbleibt, sei es dass sie faktisch theilt; folgt daher dass d. Theilung, wenn der Chief d. family (od. wie bei Hindoo joint-family der gewählte od. erbliche Repräsentant der family dazu gezwungen wd dch d. co-parceners) will, bei seinen Lebzeiten stattfindet. D. ganz falsche Vorstellung des Maine, der d. Privatfamilie, wenn in Indien auch in d. Form, worin sie dort existirt, – u. zwar in d. Städten mehr als auf d. Land, u. bei d. Grundrentbesitzern mehr als bei d. wirklichen arbeitenden Gliedern einer village community – als d. Basis betrachtet, woraus sich Sept u. Clan entwickeln etc, zeigt sich auch in flgder Phrase: Nachdem er gesagt, dass d. “power of distributing inheritances vested in the Celtic Chiefs” essentially dieselbe Institution sei, die dem “Hindoo father” reserved ist dch die “Mitakshara”, fährt er fort: “It is part of the prerogative (eselhafter Ausdruck für die gens u. Tribe verhältnisse) belonging to the representative of the purest blood in the joint family; but in proportion as the Joint Family, Sept, or Clan becomes more artificial, the power of distribution tends more and more to look like mere administrative authority”. [196, 197] D. Sache ist grad umgekehrt. Für Maine, der sich d. English Private family after all nicht aus d. Kopf schlagen kann, erscheint diese ganz natürliche function des Chief of gens, weiter of Tribe, natürlich grade weil er ihr Chief ist (u. theoretisch immer “gewählter”) als “artificial” u. “mere administrative authority”, whd d. Willkühr d. modernen pater familias grade “artificial” ist, wie d. Privatfamily selbst, vom archaischen Standpunkt.]
In einigen systems of Hindoo law, hat der Vater, der bei Lebzeiten d. Eigenthum vertheilt, d. Recht to retain a double share u. nach einigen Hindoo customs, nimmt der älteste Sohn, wenn d. patrimony theil end mit seinen Brüdern, 2 × grösseren Antheil als d. anderen. Aehnlich “the birthright” of the Hebrew patriarchal history. Dies nicht zu verwechseln mit Recht of the rule of Primogeniture. [Sieh oben Haverty, zum Beweis, dass d. irischen Vorgänger des Herrn Maine dies lange vor iihm constatirt hatten, wo sie diese Ungleichheit bei Gavelkind sehr genau scheiden von Tanistry u. auf Pflichlen d. ätesten Sohns etc reduciren.] Er sucht sich dann the double share plausible zu machen [sic sei “reward or security for impartial distribution” (!)] u. bemerkt das sei oft coupled with the right to take exclusively such things deemed incapable of division, the family house, f.i., and certain utensils. Statt d. ältesten Sohns dies Privileg manchmal dem jüngsten Sohn zufallend. (197) Primogenitur unbekarint Griechen n. Römern u. Semiten (Juden u. a. auch). Aber wir finden als familiar fact dass d. letzten Königs ätester Sohn ihm folgt; d. griech. Philosophen speculiren auch dass in älteren states of society, smaller groups of men, families u. villages, governed by eldest son after eldest son. (198)
Auch beim Einfall d. Teutonic Barbars in West Europa Primogenitur nicht d. gewöhnliche Regel der Nachfolge. D. Allodial Property d. Teutonic freemen – theoretisch d. share he had got bei original Erobrungssettlement d. tribe etc. wenn getheilt, gleichgetheilt zwischen Söhnen od. auch zwischen Söhnen u. Töchtern. Doch erscheint erst mit diesen Barbaren Primogenitur rasch ausgebreitet über Westeuropa. Und nun findet Maine neue Schwierigkeit, die jedoch nur aus seiner Unbekanntsc
Unter act of the 12th year of Elizabeth (1570) the Lord Deputy was empowered to take surrenders and regrant estates to the Irishry. “The Irish Lords”, says Davis, “made surrenders of entire counties and obtained grants of the whole again to themselves only, and none other, and all in demesne. In passing of which grants, there was no care taken o the inferior septs of people .... So that upon every such surrender or grant, there was but one freeholder made in a whole country, which was the lord himself; all the rest were [made dch Elizabeth’s Act] but tenants at will, or rather tenants in villeinage.” (bei Maine [p. 207])
In Brehon Laws (Book of Aicill, namentlich Third Vol.) Irish family getheilt in Ceilfine, Deirbhfine, Iarfine u. Indfine (wovon d. 3 letzten ijbersetzt: the True, the After u. d. End Families). D. Editor d. Third Volume (Brehon Laws, wovon d. Book of Aicill) sagt: “Within the Family, 17 members were organised in 4 divisions, of which the junior class, known as the Geilfine division, consisted of 5 persons; d. Deirbhfine – 2nd in order, Iarfine – 3d in order, and the Indfine – the senior of all – consisted respectively of 4 persons. The whole organisation consisted, and could only consist, of 17 members. [(3 × 4 + 5.)] If any person was born into the Geilfine division, its eldest member was promoted into the Deirbhfine, the eldest member of the Deirbhfine passed into the Iarfine, the eldest member of the Iarfine – moved into the Indfine, and the eldest member of the Indfine passed out of the organisation altogether. It would appear that this transition from a lower to a higher grade took place upon the introduction of new members, not upon the death of the seniors.” (citirt bei Maine, [209])
Nach Maine (Bei diesem Bursch nöthig d. Irländer zu vergleichen): any member of the Joint family, or Sept might be selected as the starting
The Geilfine group is several times stated by the Brehon lawyers to be at once the highest and the youngest. Whitley Stokes told dem Maine, dass Geilfine = hand-family; nämlich “Gil” sei = hand (also the rendering of O’Curry) and sei in fact = γειρ; u. hand in several Aryan languages = power, namtlich für family or patriarchal power; so, in Greek, υποχειρις u. χερης, for the person under the hand; latin. “herus” (master) von an old word, cognate to χερης; ebenso lat. manus, in manu etc, in Celtic “Gilla” (a servant, bei Walter Scott “Gillie”) [216, 217] Hence der gewaltige Gedanke des Maine, dass hinter dieser Irish distribution der Family d. Patria Potestas u. founded (d. Eintheilung) on the order of emancipation von Paternal authority. The Geilfine, Hand family, consists of father u. 4 natural or adoptive sons immediately under his power; d. other groups of emancipated descendants diminishing in dignity in propertion to their distance from the group which ... constitutes the true or representative | family. [217] Aehnlich in Roman family, wo die enumerated members der family underwent a capitis deminutio. [218]
The Irish division of the Family seems only to have been wichtig mit Bezug auf law of succession after death. Aber dies rule in all societies. When the ancient constitution of the Family has ceased to affect anything else, it affects inheritance. [219] D. authors der Brehon law tracts oft compare the Geilfine Division der family
“Borough English”, unter which law the youngest son and not the eldest succeeds to the burgage-tenements of his father. [222] Blackstone, um dies zu erklären, citirt von Duhalde that the custom of descent to the yougest son prevails among the Tartars; sobld d. älteren sons fähig to lead a pastoral life, verliessen sie den father to migrate “with a certain allotment of cattle”, and go to seek a new habitation. D. younges
D. Irish word Fine – in the Brehon Laws – used for d. family in present sense, for d. Sept, for Tribe etc. [231]
Irish family liess Adoption zu; the Sept admitted strangers on stated conditions, the Fine Taccair; d. Tribe included refugees from other tribes, die nur im Zusarnmenhang mit ihm dch Chief. (231, 232)
In Dr. Sullivan’s introduction he traces the origin of Guilds to the
“Tribe of Saints” or Verwandtscftsideen applied to monastic houses with its monks and bishops, ebenso to the collective assemblage of religious houses etc. [p. 236, sq.] The abbot of the parent house and all the abbots of the minor houses are the “combarbas” od. co-heirs of the saint. (1.c.) An entire sub-tract in the Senchus Mor devoted to the Law of Fosterage, setting out with the greatest minuteness the rights and duties attaching to all parties when the children of another family were received for nurture and education. [241 sq]. This classed with “Gossipred”, religious Verwcltscft. [p. 242] [The same mother’s milk given to children of different origin.
Dies reminds one d. Mutterrecht und the rules flowing from it; but Maine noch unbekannt hiermit, it seems.] “Literary Fosterage. [p. 242 sq.] D. Brehon lawyers selbst sind betrachtet by the English writers who have noticed them as a caste. Nach evidence d. Irish records jedoch anyone who went through a particular training might become a Brehon. Zur Zeit wo Ireland began to be examined by English observers, the art and knowledge der Brehon had become hereditary in certain families attached to or dependent on the Chiefs of particular tribes. Dieser selbe change has obviously occurred with a vast number of trades and professions in India, jetzt popularly called castes. Mit a native Indian schwer zu verstehen why z.B. a son should not succeed to the learning of a father, and consequently his office and duties. In d. States von Engl. Indien governed by native princes, it is still praktisch allgemeine rule that office is hereditary. Aber dies erklärt nicht the growth of those castes which are definite sections of great populations. Nur eine einzige dieser castes really survives in India, that of the Brahmins u. it is strongly suspected that the whole literary theory of Caste, which is of Brahmin origin, is based on the existence of the Brahmin caste alone. [245] Bei d. Irish gesehn wie all sorts of groups of men considered as connected through blood relationship [247]; so “associations of kinsmen shading off into assemblages of partners and guild-brothers-; foster parentage, spiritual parentage, and preceptorship | (Teacher and pupil) taking their hue from natural paternity – ecclesiastical organisation blending with tribal organisation. [248]
Gröster Theil des Senchus Mor – the largest Brehon law-tract – handelt v. Distress. Es handelt sich hier um Procedur, die bei d. Rechtsanfängen d. wichtigste.
In Anfang d. Book IV des 1816 von Niebuhr disinterred manuscript of Gajus fragmentary u. imperfect account of the old Legis actions.
Actio generally = Handlung, Vollbringung, That. (Cic. N. D. Deos spoliat motu et actione divina. actio vitae, id. Off. I, 5 (= vital action; ferner actiones = public functions or duties, wie actio consularis; dann: negotiation, deliberation wie: “discessu consulum actio de pace sublata est etc; political measures or proceedings, addresses of the magistrates to the People. Nun kommen wir aber zum sense worin legis action: an action, suit, process with a defining genitive: action furti action for theft; auch mit de: “actio de repetundis” action (prosecution for refunding money extorted by magistrates). actionem alicui intendere, actionem instituere (bring an action agst somebody). “Multis actiones (processes, suits) et res (the property in suit) peribant. Liv.)
Daher allgemein: a legal formula or form of process (procedure) “inde illa action: ope consilioque tuo, furturn aio factum esse.” actiones Manilianae, forms relative to purchase and sale.) “Dare alicui actionem”, Permission to bring an action which was the office of the Prätor. “Rem agere ex jure, lege, causa etc “to bring an action, to manage a cause or suit.
Lege, respective legem – agere, to proceed according to law, mode of executing law, to execute a sentence. “Lege egit in hereditatem paternam ex heres filius.” Cic. de Orat. I, 38)
Bentham unterscheidet zwischen Substantive Law, the law declaring rights and duties, and Adjective Law, the rules wonach that law is administered. In älteren Zeiten rights and duties
D. first dieser alten (Roman) actiones ist die: Legis Actio Sacramenti, the undoubted parent of all the Roman actions u. daher of most of the civil remedies now in use in the world. [sacra mentum in law: the sum which the parties to a suit at first deposited with the tresviri capitals, but for which they subsequently gave security to the praetor, so called because the sum deposited by the losing party was used for religious purposes, esp. for the sacra publica; or rather, perhaps, because the money was deposited in a sacred place. Festus. “ea pecunia, quae in judicium venit in litibus, sacramentum a sacro. Qui petebat et qui infitiabatur, de aliis rebus item utrique quingenos aeris ad pontem deponebant, de aliis rebus item certo alio ligitimo numero assum; qui judicio vicerat, suum sacramentum c sacro auferebat, victi ad aerarium redibat.” Varro.]
Diese Actio sacramenti is a dramatisation of the Origin of Justice; 2 Bewaffnete Männer ringen mit einander, Prätor geht vorbei, interposes to stop the contest; d. disputants state him their case, agree that he shall arbitrate; arrangirt dass der loser, ausser resigning the subject of the quarrel shall pay a sum of money to the umpire (the Prätor )[p. 253] (Dies scheint rather Dramatisation of how law disputes were becoming a source of fees profit to lawyers! u. dies nennt Herr Maine, als a lawyer, “the Origin Justice”!)
In dieser dramatisation the claimant holds a wand in his hand, der nach Gajus a spear repräsentirt, the emblem of the strong man armed, served as the symbol of property held absolutely and agst the world (rather the symbol of Gewalt als origin of Roman u. other property!) in Roman u. several Western societies. Quarrel between plaintiff u. defendant [assertions u. reassertions – formal dialogue dabei] was a mere pretence among the Romans, long remained a reality in other societies u. survived in the Wager of Battle, der als English Institution erst “finally abolished in our father’s day”. [255]
The disputants staked a sum of money – the Sacramentum – on the merits of their quarrel, and the stake went into the public exchequer. The money thus wagered, das erscheint in a large number of archaic legal systems, is the earliest representative of Court Fees.... [D. Legis Actio Sacramenti so conducted, u. dies wieder showing the intimate nature of the Lawyer – dass d. Lex, d. geschriebne Recht, aber auch literally – nicht d. Geist, sondern | der Buchstabe d. Gesetzes, d. Formel d. Wichtigste] So sagt Gajus: if you sued by Legis Actio for injury to your vines, and called them vines, you would fail; you must call them trees, because the Text of the 12 Tables speaks only of Trees. Ebenso enthält d. alte collection of Teutonic legal formulas – the Malberg Gloss – provisions von genau derselben Natur. If you sue for a bull, you will miscarry if you describe him as a bull; you must give him his ancient juridical designation of “leader of the herd”. You must call the fore-finger the “arrow” finger, the goat the “browser upon leeks”. [255, 256]
Flgt bei Gajus the Condictio [in Digests: demand for restitution]; er sagt sie sei gegründet, soll aber nur regulated wden sein dch 2 Roman Statutes of the 6th Century B.C., the Lex Silia u. the Lex Calpurnia; becam Namen von a notice die der Kläger dem Beklagten gab in 30 Tagen vor Prätor zu erscheinen, damit ein judex oder referee might be nominated. [condicere, to speak with, agree upon, decide, appoint, ansagen. “condicere tempus et locum coëundi”. “condicere rem”, demand restitution, “pecuniam alicui” Ulp. I. Nach d. condictio the parties entered into “sponsio” u. restipulatio”. Sponsio, a solemn promise or engagement, guarantee, security. “sponsio appellatur omnis stipulatio promissioque.” Dig. 50, 16, 7 .61 “non foedere pax Caudina sed per sponsionem (by giving surety) facta est.” (Liv.) Speciell in civil Suits, ein Agreement between 2 parties in a suit, dass der der den Process verliert should pay a certain sum to him who gains it. “Sponsionem facere”. (Cic.) Endlich: a sum of money deposited according to agreement, a stake (Einsatz beim Spiel, bei Wette, that which is laid down, as the amount of a wager etc.)
Restipulatio. A counter-engagement or
Nachdem diese condictio gegeben, the parties entered into a “sponsio” and “restipulatio”, i.e. laid a formal wager (distinct from the so called Sacramentum) on the justice of their respective contentions. D. sum so staked always = ⅓ of the amount in dispute, went in the end to the successful litigant, and not, like Sacramentum, to the State. [Hat ausserdem d. innern ironischen Sinne, dass die Parteien d. Processes dasselbe unsichre Hazardspiel treiben wie beim Wetten, ddch dies ein d. röm. jurisprudenz unbewusster Witz!]
Gajus proceeds von der Condictio zur Manus Injectio u. Pignoris Capio, actiones legis die nichts mit modernem Begriff von actio gemein haben. Manus injectio ausdrücklich stated to have been originally the Roman mode of execution against the person of a judgment debtor; war the instrument der Cruelties prakticirt dch röm. Aristokratie on their defaulting plebejan debtors, gab so impetus to series of popular movements affecting the whole history of Roman commonwealth. D. Pignoris Capio war zuerst ein völlig extrajudicial proceeding. D. Person die es anwandte seized (beschlagnamte) in certain cases the goods of a fellow citizen, agst whom he had a claim, but against whom he had not instituted a suit. Dies zuerst beschränkt – these power of seizure – auf soldiers against public officers bound to supply them with pay, horse, or forage; ditto auf seller of a beast for sacrifice against a defaulting purchaser; später extended to demands for overdue arrears of public revenue. Etwas Achnliches in Plato’s Legees, auch als remedy for breach of public duties connected with military service or religious observance. (Dies dem Maine verrathen von Post.). Gajus sagt dass d. Pignoris Capio could be resorted to in the absence of the Prätor and generally of the person under liability, and also that it might be carried out even when the Courts were not sitting. [256-59]
The Legis actio sacramenti assumes that the quarrel is at once referred to a present arbitrator; the Condictio, dass d. Referenz to the decision of an arbitrator nach 30 days; aber meantime the parties have entered into a separate wager on the merits of their dispute. Noch zu Cicero’s Zeit, als condictio eine der most important Roman actions geworden, an independent penalty attached to the suitor in dieser Klage. [260]
Glaubt dass die Pignoris Capio, obgleich dies schon veraltet zur Zeit d. 12 Tables, taking forcible possession der moveable property des adversary And detain it till he submits. [260]
So in English Law Power of Distraint or Distress – (womit connected als Remedy d. socalled Replevint) – z.B. heut zu Tag landlord’s right to seize the goods of his tenants for unpaid rent, and the right of the lawful possessor of land to take and impound stray beasts which are damaging his crops or soil. [261, 262] Im letztren Fall cattle kept bis satisfaction made for the injury. (l.c.)
Aelter als Roman Conquest in Engnd the practice of Distress, – of taking names, word erhalten im law-term withernam. [262, 63] Zur Zeit v. Henry III confined to certain specific claims u. wrongs. Damals: Person seizes the goods (almost always cattle) | der Person von der er sich benachtheiligt glaubt; treibt d. beasts to a pound (von angels<ächsisch> pyndan), an enclosed piece of land reserved for the purpose, and generally open to the sky ... eine d. ältesten Institutionen Englands; the Village-Pound far older than the King’s Bench, and probably than the Kingdom. While the cattle were on their way to the pound the owner had a limited right of rescue which the law recognised, but which he ran great risk in exercising. Once lodged within the enclosure, the impounded beasts, when the pound was uncovered, had to be fed by the owner and not by the distrainor; this rule only altered in the present reign. [263] Wenn d. Eigner d. cattle altogether denied the distrainor’s right to distrain, or refuse to release the cattle, on security being tendered to him, dann d. cattle owner might apply to the King’s Chancery for a writ commanding the Sheriff to “make replevin”, or he might verbally complain himself to the Sheriff, who would then proceed at once to “replevy”. [264]
Replévin (to), Spenser, to “replévy”, replegio Law Latin, of re u. plevir or plegir, fr. to give a pledge; bdtet nach Johnson: to take back or set at liberty, upon security, anything seized; er citirt aus Hudibras:
“That you’re a beast and turrn’d to grass,
Is no strange news, nor ever was;
At least to me, who once, you know,
Did from the pound replevin you.”
In d. action of Replevin, wenn d. Sache vor Gerichtshof kam, der owner des distrained cattle war der Kläger u. der Distrainor was the defendant. [265] “Taking in withernam” of Old English Law means, wenn d. distrainor dem Sheriff d. distrained cattle nicht seizen wollte od. es in distance out of his jurisdiction removed, so erhob dieser wegen Brechen of King’s Peace, “hue u. cry” wider ihn u. seized von des distrainor’s cattle double the value of the beasts which were not forthcoming; letztres “taking in withernam”. (l.c.) Dies seizure, rescue u. counterseizure ursprünglich disorderly proceeding which the law steps in to regulate. (l.c.) In d. Form of impounding, wo d. person distrained must feed the cattle (als Zeichen of deren continued ownership), Verbot für distrainor to work them. – Distress becomes a semi-orderly contrivance for extorting satisfaction. [266] Blackstone hat bemerkt, that the modified exemption of certain classes of goods from distraint – z.B. plough-oxen u. instruments of trade, ursprünglich nicht intended als kindness to owner, sondern weil ohne d. instruments of tillage or handicraft, the debtor could never pay his debt. (l.c ) D letzte – u. auch historisch letzt entwickelte incident des proceeding ist: the King steps in, dch his deputy, den Sheriff; selbst wenn dieser obtains his view, he can do nothing unless the cattle owner is prepared with security that he will try the question between himself u. den distrainor in a Court of Justice; dann erst steps in the judicial Power of the Commonwealth; its jurisdiction acquired through the act of the Sheriff in restoring the cattle upon pledge given. D. distrainor has lost his material security, the cattle; the owner of the cattle has become personally bound; so both placed under a compulsion which drives them in the end to a judicial arbitration. [267] [D. ganze Proceeding implies dass d. Power of State – i.e. Court of Justice – noch nicht so firmly settled, class people de prime abord submit to its judicial authority.]
Fast alle Leges Barbarorum refer to Pignoratio od. distraint of goods. D. Lex Visigothorum verbietet es ausdrücklich; d. Lex Lombardorum, permits it after simple demand of payment. D. Salic Law – nach d. neusten deutschen Autoritäten – redigirt zwischen Tacitus Zeit u. d. Zeit d, Invasion des Roman Empire dch d. Franken, enthält sehr genaue Bestimmungen die zuerst fully interpreted by Sohm. In diesem System Distress not yet a judicial remedy; ist noch an extrajudicial mode of redress, but it has been incorporated with a regular and highly complex procedure. Eine succession of notices to be given in solemn form dch d. complainant der Person über die sich der would be dist
D. fragment of the system which has survived in the English Common Law (and it is to this that it probably owes its survival) was from the first pre-eminently a remedy by which the lord compelled his tenants to render him their services. Was archaischer im engl. Gesetz als in den leges barbarorum: notice of the intention to distrain was never in England essential to the legality of distress, obgleich d. Statute-law renders it it necessary to make a sale of the distrained property legal; ebenso im ältesten state d. Common Law, obgleich distraint sometimes followed a proceeding in the lord’s Court, yet it did not necessarily presuppose or require it. [270-71] D. Frankish procedure was completely at the disposal of the complainant. | it is a procedure regulating extrajudicial redress. Beobachtet der complainant the proper forms, so ist the part of the Court in licensing seizure purely passive .... When the defendant submitted or was unsuccessful in attacking the proceedings of the other side, he paid not only the original debt but various additional penalties entailed by neglect to comply with previous notices to discharge it. Dies founded on the assumption that plaintiffs are always in the right u. defendants always in the wrong, whd the modern principle compels the complainant to establish at all events a prima facie case. Früher the man most likely to be in the right the man who faced the manifold risks attending the effort to obtain redress, to complain to the Popular Assembly, to cry for justice to the king sitting in the gate.... In einem Fall, wo King Kläger, d. Presumption dass Kläger in the right lang aufrecht erhalten in engl. Recht u. hence the obstinate dislike of (Engl.) lawyers to allowing prisoners to be defended by Counsel. [271-73]
Galus sagt v. d. Legis Actiones im allgemeinen dass “sie in discredit fielen, weil wegen der excessive subtlety der ancient lawyers things came to such a pass that he who committed the smallest error failed altogether.”
Ebenso Blackstone remarks on English Law of Distress: “The many particulars which attend the taking of a distress used formerly to make it a hazardous kind of proceeding; for, if any one irregularity was committed, it vitiated the whole. ” [273]
[Diese excessive technicality of ancient law zeigt Jurisprudenz as feather of the same bird, als d. religiösen Formalitäten z.B. bei Augur’s etc, od. d. Hokus Pokus des medicine man der savages!]
Nach Sohm the power of seizing a man’s property extrajudicially in satisfaction of your demand mit grossen risks verbunden; ging der complainant who sought to distress nicht dch alle acts u. words required by the law with the most rigorous accuracy so, besides failing in his object, incurred a variety of penalties, which could be just as harshly exacted as his own original demand. [273, 74] Ha<u>ptsache bei d. Barbaren to compel the appearance of the defendant and his submission to jurisdiction, was damals noch keineswegs selbstverständlich. [275] In d. Fränkischen Gesetz, wenn in gewissen cases auch selbe von Anfang an bis judgment judicially tried, so noch nicht the judgment by its own force operative. Hat der defendant ausdrücklick erklärt to obey it, the Court or royal deputy, on being properly summoned, will execute it; but if no such promise has been made, the plaintiff has no remedy except an application to the King in person. [275]
Später sobald d. Franks settled in Roman Empire, the royal deputy will execute the judgment ohne promise des defendant to submit. In England dieser change u. d. Macht der Courts greatly due to the development of royal justice at the expense of popular justice. Doch savoured Engl. judicial proceedings noch long of the old practices. Hence on the smallest provocation the King constantly took the lands of the defendant into his hands or seized his goods, simply to compel or perfect his submission to the royal jurisdiction. [See bei Walter Scott, dass ein Mann wegen Schulden eingesperrt wird wegen d. Fiction seiner contempt of the King.]
D. survival of distress in Engld den Herrn landlords zu lieb. The modern – dem Ursprünglichen ganz wiedersprechde – theory of distress: ist that a landlord is allowed to distrain because x by the nature of the case he is always compelled to give his tenant credit, and that he can distrain without notice because every man is supposed to know when his rent is due. [277] Ursprünglich distress treated as willful breach of the peace; ausser wo it was connived at so far as it served to compel the submission of defendants to the jurisdiction of courts. [278]
Ueber Hälfte d. Senchus Mor taken up with Lair of Distress. Senchus Mor pretends to be the Code of Irish Law prepared unter the influence of
St. Patrick upon the introduction of Christianity in Ireland. [279] Er gleicht sehr d. Teutonic Laws u. English Common Law. Putting in a pound kommt noch darin von d. Speciality drin: “If the defendant or debtor were a person of chieftain grade, it was necessary not only to give notice, but also to fast upon him. The fasting upon him consisted in going to his residence and waiting there a certain time without | food. If the plaintiff did not within a certain time receive satisfaction for his claim, or a pledge therefore, he forthwith, accompanied by a law-agent, witnesses, and others, seized his distress” etc. [p. 280-81]. Cf. Senchus Mor. 1st vol. remarks of the Editor.) Erlaubte d. Schuldner nicht his cattle to go to pound u. gab er sufficient pledge (e.g. his son, or some article of value, to the creditor, that he would within a certain time try the right to the distress by law, the creditor was bound to receive such pledge. If he did not go to law, as he so undertook, the pledge became forfeited for the original debt.” [p. 282]. [Noch heut zu Tag bei distress in Oudh d. creditor landlord takes ausser cattle (dies vor allem etc) auc
Sohm sucht zu beweisen dass d. Fräkischen Volksgerichte nicht ihre eignen Dekrete exequirten; versprach der defendant to submit to an award, the local deputy of the King might be required to enforce it, aber, when no such promise, the plaintiff was forced to petition the King in person u. in d. älteren Zeiten, vor full development der kgl. Gewalt, Courts of justice existed less for the purpose of doing right generally than for the purpose of supplying an alternative to the violent redress of wrong.... The Norse literature (see Mr. Dasent) shows that perpetual fighting and perpetual litigation may go on side by side, and that a highly technical procedure may be scrupulously followed at a time when homicide is an everyday occurrence.... Contention in Court takes the place of contention in arms, but only gradually takes its place.... In our day, when a wild province is annexed to the British Indian Empire, there is ... a rush of suitors to the Courts which are immediately established.... The men who can no longer fight go to law instead ... Hasty appeals to a judge succeed hurried quarrels, and hereditary law-suits take the place of ancestral blood-feuds. [288, 289]
Im Allgem. probable that, in proportion as Courts grow stronger, they first take under their control the barbarous (aber d. Sache bleibt ja, auf das legale übersetzt) practice of making reprisals on a wrongdoer by seizing his property, and ultimately they absorb it into their own procedure. [290] D. Irish Law of Distress o