nothing less than an investigation into the origin of private property
in land. The question has been put in various forms: did it commence
with joint (or, as some would put it, less justifiably, communal or
corporate) ownership or with individual ownership, and again was the
village community free or servile? It is now pretty generally
recognised that there was more than one type, though common
cultivation was doubtless a feature of them all, and even in India
there were at least two types, of which the one presenting several, as
opposed to communal, ownership is not the less ancient. But it may
well be that, as Maitland so often pointed out, much of the
controversy has been literally an anachronism; that is to say, that
nineteenth-century men have been asking the Early Ages questions which
they could not answer and reading back into early history distinctions
which are themselves historical products. Ownership is itself a late
abstraction developed out of use. We may say with some certainty that
family "ownership" preceded individual ownership, but in what sense
there was communal ownership by a whole village it is not so easy to
say.
Maine was on surer ground when, as in his studies of Irish and Hindu
law, he confined himself to the more immediate circle of the family
group. In his _Early Institutions_ he subjects the Brehon Laws of
early Ireland to a suggestive examination as presenting an example of
Celtic law largely unaffected by Roman influences. He there shows, as
he has shown in _Ancient Law_, that in early times the only social
brotherhood recognised was that of kinship, and that almost every form
of social organisation, tribe, guild, and religious fraternity, was
conceived of under a similitude of it. Feudalism converted the village
community, based on a real or assumed consanguinity of its members,
into the fief in which the relations of tenant and lord were those of
contract, while those of the unfree tenant rested on status. In his
_Early Law and Custom_ he pursues much the same theme by an
examination of Hindu Law as presenting a peculiarly close implication
of early law with religion. Here he devotes his attention chiefly to
Ancestor-worship, a subject which about this time had engaged the
attention, as regards its Greek and Roman forms, of that brilliant
Frenchman, Fustel de Coulanges, whose monograph _La Cite Antique_ is
now a classic. As is well known, the right of inheriting a dead man's
property and the duty of performing his obsequies are co-relative to
this day in Hindu law, and his investigation of this subject brings
Maine back to the subject of the Patriarchal Power. He points out that
both worshipper and the object of worship were exclusively males, and
concludes that it was the power of the father which generated the
practice of worshipping him, while this practice in turn, by the
gradual admission of women to participate in the ceremonies, gradually
acted as a solvent upon the power itself. The necessity of finding
Public-domain text, read in full here on John Shaqi.
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