Front Page Titles (by Subject) LECTURE II.: THE ANCIENT IRISH LAW. - Lectures on the Early History of Institutions
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LECTURE II.: THE ANCIENT IRISH LAW. - Sir Henry Sumner Maine, Lectures on the Early History of Institutions 
Lectures on the Early History of Institutions, 7th edition (London: John Murray, 1914).
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THE ANCIENT IRISH LAW.
The great peculiarity of the ancient laws of Ireland, so far as they are accessible to us, is discussed, with much instructive illustration, in the General Preface to the Third Volume of the official translations. They are not a legislative structure, but the creation of a class of professional lawyers, the Brehons, whose occupation became hereditary, and who on that ground have been designated, though not with strict accuracy, a caste. This view, which is consistent with all that early English authorities on Ireland have told us of the system they call the Brehon law, is certainly that which would be suggested by simple inspection of the law-tracts at present translated and published. The Book of Aicill is probably the oldest, and its text is avowedly composed of the dicta of two famous lawyers, Cormac and Cennfaeladh. The Senchus Mor does, indeed, profess to have been produced by a process resembling legislation, but the pretension cannot be supported; and, even if it could, the Senchus Mor would not less consist of the opinions of famous Brehons. It describes the legal rules embodied in its text as formed of the ‘law of nature,’ and of the ‘law of the letter.’ The ‘law of the letter’ is the Scriptural law, extended by so much of Canon law as the primitive monastic Church of Ireland can be supposed to have created or adopted. The reference in the misleading phrase ‘law of nature,’ is not to the memorable combination of words familiar to the Roman lawyers, but to the text of St. Paul in the Epistle to the Romans: ‘For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves.’ (Rom. ii. 14.) The ‘law of nature’ is, therefore, the ancient pre-Christian ingredient in the system, and the ‘Senchus Mor’ says of it: ‘The judgments of true nature while the Holy Ghost had spoken through the mouths of the Brehons and just poets of the men of Erin, from the first occupation of Ireland down to the reception of the faith, were all exhibited by Dubhthach to Patrick. What did not clash with the Word of God in the written law and the New Testament and the consciences of believers, was confirmed in the laws of the Brehons by Patrick and by the ecclesiastics and chieftains of Ireland; for the law of nature had been quite right except the faith, and its obligations, and the harmony of the Church and people. And this is the “Senchus Mor.” ’
Dr. Sullivan, on the other hand, whose learned and exhaustive Introduction to O’Curry’s Lectures forms the first volume of the ‘Manners and Customs of the Ancient Irish,’ affirms, on the evidence of ancient records, that the institutions which in some communities undoubtedly developed into true legislatures had their counterparts in the Ireland to which the laws belonged, and he does not hesitate to designate certain portions of the Irish legal system ‘statute-law.’ In the present state of criticism on Irish documents it is not possible to hold the balance exactly between the writers of the Introduction and of the General Preface; but there is not the inconsistency between their opinions which there might appear to be at first sight. In the infancy of society many conceptions are found blended together which are now distinct, and many associations which are now inseparable from particular processes or institutions are not found coupled with them. There is abundant proof that legislative and judicial power are not distinguished in primitive thought; nor, again, is legislation associated with innovation. In our day the legislator is always supposed to innovate; the judge never. But of old the legislator no more necessarily innovated than the judge; he only, for the most part, declared pre-existing law or custom. It is impossible to determine how much new law there was in the Laws of Solon, or in the Twelve Tables of Rome, or in the Laws of Alfred and Canute, or in the Salic Law which is the oldest of the so-called Leges Barbarorum, but in all probability the quantity was extremely small. Thus, when a body of Brehon judgments was promulgated by an Irish Chief to a tribal assembly, it is probable that convenience was the object sought rather than a new sanction. A remarkable poem, appended to O’Curry’s Lectures, tells us how certain Chiefs proceeded every third year to the ‘Fair of Carman’ and there proclaimed ‘the rights of every law and the restraints;’ but it does not at all follow that this promulgation had any affinity for legislation in the modern sense. The innovating legislatures of the modern world appear to have grown up where certain conditions were present which were virtually unknown to ancient Ireland—where the primitive groups of which society was formed were broken up with some completeness, and where a central government was constituted acting on individuals from a distance coercively and irresistibly.
There are, moreover, some independent reasons for thinking that, among the Celtic races, the half-judicial, half-legislative, power originally possessed by the tribal Chief, or by the tribal Assembly, or by both in combination, passed very early to a special class of learned persons. The Prefaces in Irish found at the commencement of some of the law-tracts, which are of much interest, but of uncertain origin and date, contain several references to the order in Celtic society which has hitherto occupied men’s thoughts more than any other, the Druids. The word occurs in the Irish text. The writers of the prefaces seem to have conceived the Druids as a class of heathen priests who had once practised magical arts. The enchanters of Pharaoh are, for instance, called the Egyptian Druids, in the Preface to the Senchus Mor. The point of view seems to be the one familiar enough to us in modern literature, where an exclusive prominence is given to the priestly character of the Druids; nor do the Brehon lawyers appear to connect themselves with a class of men whom they regard as having belonged altogether to the old order of the world. I am quite aware that, in asking whether the historical disconnection of the Brehons and the Druids can be accepted as a fact, I suggest an enquiry about which there hangs a certain air of absurdity. There has been so much wild speculation and assertion about Druids and Druidical antiquities that the whole subject seems to be considered as almost beyond the pale of serious discussion. Yet we are not at liberty to forget that the first great observer of Celtic manners describes the Celts of the Continent as before all things remarkable for the literary class which their society included. Let me add that in Cæsar’s account of the Druids there is not a word which does not appear to me perfectly credible. The same remark may be made of Strabo. But the source of at all events a part of the absurdities which have clustered round the subject I take to be the Natural History of Pliny, and they seem to belong to those stories about plants and animals to which may be traced a great deal of the nonsense written in the world.
You may remember the picture given by Cæsar of the Continental Celts, as they appeared to him when he first used his unrivalled opportunities of examining them. He tells us that their tribal societies consisted substantially of three orders, two privileged and one unprivileged, and these orders he calls the Equites, the Druids, and the Plebeians. Somebody has said that this would be a not very inaccurate description of French society just before the first Revolution, with its three orders of Nobles, Clergy, and unprivileged Tiers-État; but the observation is a good deal more ingenious than true. We are now able to compare Cæsar’s account of the Gauls with the evidence concerning a Celtic community which the Brehon tracts supply; and if we use this evidence as a test, we shall soon make up our minds that, though his representation is accurate as far as it goes, it errs in omission of detail. The Equites, or Chiefs, though to some extent they were a class apart, did not stand in such close relation to one another as they stood to the various septs or groups over which they presided. ‘Every chief,’ says the Brehon law, ‘rules over his land, whether it be small or whether it be large.’ The Plebeians, again, so far from constituting a great miscellaneous multitude, were distributed into every sort of natural group, based ultimately upon the Family. The mistake, so far as there was error, I conceive to have been an effect of mental distance. It had the imperfections of the view obtained by looking on the Gangetic plains from the slopes of the Himalayas. The impression made is not incorrect, but an immensity of detail is lost to the observer, and a surface varied by countless small elevations looks perfectly flat. Cæsar’s failure to note the natural divisions of the Celtic tribesmen, the families and septs or subtribes, is to me particularly instructive. The theory of human equality is of Roman origin; the comminution of human society, and the unchecked competition among its members, which have gone so far in the Western Europe of our days, had their most efficient causes in the mechanism of the Roman State. Hence Cæsar’s omissions seem to be those most natural in a Roman general who was also a great administrator and trained lawyer; and they are undoubtedly those to which an English ruler of India is most liable at this moment. It is often said that it takes two or three years before a Governor-General learns that the vast Indian population is an aggregate of natural groups and not the mixed multitude he left at home; and some rulers of India have been accused of never having mastered the lesson at all.
There are a few very important points of detail to be noticed in Cæsar’s description of what may be called the lay portion of Celtic society. I shall afterwards call your attention to the significance of what he states concerning the classes whom he calls the clients and debtors of the Equites, and respecting the increased power which they give to the Chief on whom they are dependent. It is, however, remarkable that, when he speaks of the Druids, his statements are greatly more detailed. Here there were no home associations to mislead him, but, beyond that, it is plain that his interest was strongly roused by the novel constitution of this privileged order whom he places by the side of the Chiefs. Let me recall, then, to you the principal points of his description, from which I designedly omit all statements concerning the priestly office of the class described. He tells us that the Druids were supreme judges in all public and private disputes; and that, for instance, all questions of homicide, of inheritance, and of boundary were referred to them for decision. He says that the Druids presided over schools of learning, to which the Celtic youth flocked eagerly for instruction, remaining in them sometimes (so he was informed) for twenty years at a time. He states that the pupils in these schools learned an enormous quantity of verses, which were never committed to writing; and he gives his opinion that the object was not merely to prevent sacred knowledge from being popularised, but to strengthen the memory. Besides describing to us the religious doctrine of the Druids, he informs us that they were extremely fond of disputing about the nature of the material world, the movements of the stars, and the dimensions of the earth and of the universe. At their head there was by his account a chief Druid, whose place at his death was filled by election, and the succession occasionally gave rise to violent contests of arms (B. G. vi. 13, 14).
There are some strong and even startling points of correspondence between the functions of the Druids, as described by Cæsar, and the office of the Brehon, as suggested by the law-tracts. The extensive literature of law just disinterred testifies to the authority of the Brehons in all legal matters, and raises a strong presumption that they were universal referees in disputes. Among their writings are separate treatises on inheritance and boundary, and almost every page of the translations contains a reference to the ‘eric’-fine for homicide. The schools of literature and law appear to have been numerous in ancient Ireland, and O’Curry is able to give the course of instruction in one of them extending over twelve years. All literature, including even law, seems to have been identified with poetry. The chief Druid of Cæsar meets us on the very threshold of the Senchus Mor, in the person of Dubhthach Mac ua Lugair, the royal poet of Erin, the Brehon who was chosen by St. Patrick to arbitrate in a question of homicide, and whose ‘mouth’ the saint ‘blessed.’ The mode of choosing the chief Druid, by election, has its counterpart in the institution of Tanistry, which within historical times determined the succession to all high office in Ireland, and which was hateful to the English, as affording smaller security for order than their own less archaic form of primogeniture. Nor is this all. The Prefaces in Irish to the tracts contain a number of discussions on subjects which are in no way legal, or which are forced into some connection with law by the most violent expedients. They leave on the mind the impression of being a patchwork of materials, probably of very various antiquity, which happen to have been found in the archives of particular law-schools. Now, the Preface to the Senchus Mor actually contains disquisitions on all the matters about which Cæsar declares the Druids to have been specially fond of arguing. It in one place sets forth how God made the heaven and the earth, but the account is not the least like the Mosaic account. It goes off, as Cæsar’s Druids did, into a number of extraordinary statements. ‘de sideribus atque eorum motu,’ ‘de mundi ac terrarum magnitudine.’ Among other things, it declares that God fixed seven divisions from the firmament to the earth, and that the distance he measured from the moon to the sun was 244 miles. ‘And the first form of the firmament was ordained thus: as the shell is about the egg, so is the firmament round the earth in fixed suspension . . . . there are six windows in each part through the firmament to shed light through, so that there are sixty-six windows in it, and a glass shutter for each window; so that the whole firmament is a mighty sheet of crystal and a protecting bulwark round the earth, with three heavens, and three heavens about it; and the seventh was arranged in three heavens. This last, however, is not the habitation of the angels, but is like a wheel revolving round, and the firmament is thus revolving, and also the seven planets, since the time when they were created.’ Parts of the passage reflect the astronomical notions known to have been current in the Middle Ages, but much of it reads like a fragment of a heathen cosmology, to which a later revision has given a faint Christian colouring. The same Preface contains also some curious speculations on the etymology of law-terms, and the Preface to the Book of Aicill enters, among other things, into the question of the difference between genus and species.
I suggest, therefore, that the same tendencies which produced among the Celts of the Continent the class called the Druids produced among the Celts of Ireland the class known to us as the Brehons; nor does it seem to me difficult to connect the results of these tendencies with other known phenomena of ancient society. There is much reason to believe that the Tribe-Chief, or King, whom the earliest Aryan records show us standing by the side of the Popular Assembly, was priest and judge as well as captain of the host. The later Aryan history shows us this blended authority distributing or ‘differentiating’ itself, and passing either to the Assembly or to a new class of depositaries. Among the Achæans of Homer, the Chief has ceased to be priest, but he is still judge; and his judicial sentences, θέμιστες, or ‘dooms,’ however much they may be drawn in reality from pre-existing usage, are believed to be dictated to him from on high. Among the Celts both of Gaul and of Ireland he has ceased to be priest, and also probably to be judge, although some measure of judicial authority may still belong to his office as a ‘survival.’ The order of change thus departs from that followed in Athenian history, where the institution of kingship survived only in the name of the King Archon, who was a judicial functionary, and from that followed in Roman history, where the Rex Sacrificulus was a hierophant or priest. The Popular Assembly, meanwhile, which virtually attracted to itself the whole civil and criminal jurisdiction of the Kings among the Athenians, and which at Rome engrossed the whole administration of criminal justice through the commissions it appointed, seems to lose all judicial authority among the Celts. Perhaps I may be permitted thus to describe the change I conceive to have taken place among the Celts of Ireland. Themis, who in Homer is the assessor of Zeus and the source of judicial inspiration to kings, has (so to speak) set up for herself. Kings have delegated their authority to a merely human assessor, and we see by the story which begins the Senchus Mor that, even when a Saint is supposed to be present, the inspiration of which he is the source does not find expression through his lips, nor does it descend on the King; it descends on the professional judge. When we obtain our last glimpse of the class which has received this inheritance from Chief or King—the Brehons, Judges, or Authors of Judgments—they have sunk to the lowest depth of misery and degradation through the English conquest. At an earlier date they are seen divided into families or septs, the hereditary law-advisers of some princely or powerful house. Hugh McEgan, who wrote the note ‘in his own father’s book,’ which I read in the last Lecture, was one of the hereditary Brehons attached to the McCarthys. But, in the earliest Irish traditions, the functions of the Brehon and the King run very much into one another. The most ancient Brehons are described as of royal blood, sometimes as king’s sons. The Tanaists of the great Irish Chiefs, the successors elected out of the kindred of each Chief to come after him on his death, are said to have occasionally officiated as judges; and one of the law-tracts, still unpublished, contains the express rule that it is lawful for a king, though himself a judge, to have a judge in his place. Cormac MacAirt, one of the traditional authors of the Book of Aicill, was a King in retirement. Apocryphal as his story may be, it is one of much significance to the student of ancient institutions. He had been accidentally blinded of one eye, and is said to have been deposed from his regal office or chieftaincy on account of the blemish. Coirpri, his son and successor (says the Book of Aicill), ‘in every difficult case of judgment that came to him used to go and ask his father about it, and his father used to say to him, “My son, that thou mayest know” ’—and then proceeded to lay down the law.
If, without committing ourselves to any specific theory concerning the exact extent of the correspondence, we can assume that there was substantial identity between the literary class which produced the law-tracts and the literary order attributed to the Celtic races by Cæsar, we not only do something to establish an historical conclusion perhaps more curious than important, but we remove some serious difficulties in the interpretation of the interesting and instructive body of archaic law now before us. The difference between the Druids and their successors, the Brehons, would in that case be mainly this: the Brehons would be no longer priests. All sacerdotal or religious authority must have passed, on the conversion of the Irish Celts, to the ‘tribes of the saints’—to the missionary monastic societies founded at all points of the island—and to that multitude of bishops dependent on them, whom it is so difficult to reconcile with any of our preconceived ideas as to ancient ecclesiastical organisation. The consequence would be that the religious sanctions of the ancient laws, the supernatural penalties threatened on their violation, would disappear, except so far as the legal rules exactly coincided with the rules of the new Christian code, the ‘law of the letter.’ Now, the want of a sanction is occasionally one of the greatest difficulties in understanding the Brehon law. Suppose a man disobeyed the rule or resisted its application, what would happen? The learned writer of one of the modern prefaces prefixed to the Third Volume of the Ancient Laws contends that the administration of the Brehon system consisted in references to arbitration; and I certainly think myself that, so far as the system is known, it points to that conclusion. 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. But then one cannot help perpetually feeling that the compulsion is weak as compared with the stringency of the process of modern Courts of Justice; and besides that, why should not the man attempted to be distrained upon constantly resist with success? Doubtless the law provides penalties for resistance; but where is the ultimate sanction? Cæsar supplies an answer, which must, I think, contain a portion of the truth. He says that if a Celt of Gaul refused to abide by a Druid judgment he was excommunicated: which was esteemed the heaviest of penalties. Another example which I can give you of the want or weakness of the sanction in the Brehon law is a very remarkable one, and I shall recur to it hereafter. If you have a legal claim against a man of a certain rank and you are desirous of compelling him to discharge it, the Senchus Mor tells you to ‘fast upon him.’ ‘Notice,’ it says, ‘precedes distress in the case of the inferior grades, except it be by persons of distinction or upon persons of distinction; fasting precedes distress in their case’ (‘Ancient Laws of Ireland,’ vol. i. p. 113). The institution is unquestionably identical with one widely diffused throughout the East, which is called by the Hindoos ‘sitting dharna.’ It consists in sitting at your debtor’s door and starving yourself till he pays. From the English point of view the practice has always been considered barbarous and immoral, and the Indian Penal Code expressly forbids it. It suggests, however, the question—what would follow if the debtor simply allowed the creditor to starve? Undoubtedly the Hindoo supposes that some supernatural penalty would follow; indeed, he generally gives definiteness to it by retaining a Brahmin to starve himself vicariously, and no Hindoo doubts what would come of causing a Brahmin’s death. We cannot but suppose that the Brehon rule of fasting was once thought to have been enforced in some similar way. Cæsar states that the Druids believed in the immortality and transmigration of the soul, and considered it the key of their system. A Druid may thus very well have taught that penal consequences in another world would follow the creditor’s death by starvation; and there is perhaps a pale reflection of this doctrine in the language of the Senchus Mor: ‘He who does not give a pledge to fasting is an evader of all; he who disregards all things shall not be paid by God or man.’ But an Irish Brehon could scarcely make any distinct assertion on the subject, since fasting had now become a specific ordinance of the Christian Church, and its conditions and spiritual effects were expressly defined by the Christian priesthood. Theoretically, I should state, a person who refused unjustly to yield to fasting had his legal liabilities considerably increased, at least, according to the dicta of the Brehon commentators; but such provisions only bring us to the difficulty of which I first spoke, and raise anew the question of the exact value of legal rules at a period when Courts of Justice are not as yet armed with resistless powers of compelling attendance and submission.
If we are justified in tracing the pedigree of the Brehon Code to a system enforced by supernatural sanctions, we are able to contrast it in various ways with other bodies of law in respect of its mode of development. It closely resembles the Hindoo law, inasmuch as it consists of what was in all probability an original basis of Aryan usage vastly enlarged by a superstructure of interpretation which a long succession of professional commentators have erected; but it cannot have had any such sacredness, and consequently any such authority, as the Brahminical jurisprudence. Both the Brahmins and the Brehons assume that Kings and Judges will enforce their law, and emphatically enjoin on them its enforcement; but, while the Brahmin could declare that neglect or disobedience would be followed by endless degradation and torment, the Brehon could only assert that the unlearned brother who pronounced a false judgment would find blotches come on his cheeks, and that the Chief who allowed sound usage to be departed from would bring bad weather on his country. The development of the Brehon law was again parallel to that which there is strong reason for supposing the Roman law to have followed in early times. The writer of the Preface to the Third Volume, from which I have more than once quoted, cites some observations which I published several years ago on the subject of the extension of the Roman jurisprudence by the agency known as the Responsa Prudentum, the accumulated answers (or, as the Brehon phrase is, the judgments) of many successive generations of famous Roman lawyers; and he adopts my account as giving the most probable explanation of the growth of the Brehon law. But in the Roman State a test was always applied to the ‘answers of the learned,’ which was not applied, or not systematically applied, to the judgments of the Brehons. We never know the Romans except as subject to one of the strongest of central governments, which armed the law courts with the force at its command. Although the Roman system did not work exactly in the way to which our English experience has accustomed us, there can, of course, be no doubt that the ultimate criterion of the validity of professional legal opinion at Rome, as elsewhere, was the action of Courts of Justice enforcing rights and duties in conformity with such opinion. But in ancient Ireland it is at least doubtful whether there was ever, in our sense of the words, a central government; it is also doubtful whether the public force at the command of any ruler or rulers was ever systematically exerted through the mechanism of Courts of Justice; and it is at least a tenable view that the institutions which stood in the place of Courts of Justice only exercised jurisdiction through the voluntary submission of intending litigants.
Perhaps, however, from our present point of view, the strongest contrast is between the ancient law of Ireland and the law of England at a period which an English lawyer would not call recent. The administration of justice in England, from comparatively early times, has been more strongly centralised than in any other European country; but in Ireland there was no central government to nerve the arm of the law. The process of the English Courts has for centuries past been practically irresistible; the process of the Irish Courts, even if it was compulsory, was at the utmost extremely weak. The Irish law was developed by hereditary commentators; but we in England have always attributed far less authority than does any European Continental community to the unofficial commentaries of the most learned writers of textbooks. We obtain our law, and adjust it to the needs of each successive generation, either through legislative enactment or through the decisions of our judges on isolated groups of facts established by the most laborious methods. But, as I have already stated, the opinion to which I incline is, that no part of the Brehon law had its origin in legislation. The author of innovation and improvement was the learned Brehon, and the Brehon appears to have invented at pleasure the facts which he used as the framework for his legal doctrine. His invention was necessarily limited by his experience, and hence the cases suggested in the law-tracts possess great interest, as throwing light on the society amid which they were composed; but these cases seem to be purely hypothetical, and only intended to illustrate the rule which happens to be under discussion.
In the volume of my own to which I referred a few moments ago I said of the early Roman law that ‘great influence must have been exercised (over it) by the want of any distinct check on the suggestion or invention of possible questions. When the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. As the law is administered among ourselves (in England) the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly, each group of circumstances which is adjudicated upon receives, to employ a Gallicism, a sort of consecration. It acquires certain qualities which distinguish it from every other case, genuine or hypothetical.’ I do not think it can be doubted that this English practice of never declaring a legal rule authoritatively until a state of facts arises to which it can be fitted, is the secret of the apparent backwardness and barrenness of English law at particular epochs, as contrasted with the richness and reasonableness of other systems which it more than rivals in its present condition. It is true, as I said before, even of the Brehon law, that it does not wholly disappoint the patriotic expectations entertained of it. When they are disencumbered of archaic phrase and form, there are some things remarkably modern in it. I quite agree with one of the Editors that, in the ancient Irish Law of Civil Wrong, there is a singularly close approach to modern doctrines on the subject of Contributory Negligence; and I have found it possible to extract from the quaint texts of the Book of Aicill some extremely sensible rulings on the difficult subject of the Measure of Damages, for which it would be vain to study the writings of Lord Coke, though these last are relatively of much later date. But the Brehon law pays heavily for this apparent anticipation of the modern legal spirit. It must be confessed that most of it has a strong air of fancifulness and unreality. It seems as if the Brehon lawyer, after forming (let us say) a conception of a particular kind of injury, set himself, as a sort of mental exercise, to devise all the varieties of circumstance under which the wrong could be committed, and then to determine the way in which some traditional principle of redress could be applied to the cases supposed. This indulgence of his imagination drew him frequently into triviality or silliness, and led to an extraordinary multiplication of legal detail. Four pages of the Book of Aicill (a very large proportion of an ancient body of law) are concerned with injuries received from dogs in dog-fights, and they set forth in the most elaborate way the modification of the governing rule required in the case of the owners—in the case of the spectators—in the case of the ‘impartial interposer’—in the case of the ‘half-interposer,’ i.e. the man who tries to separate the dogs with a bias in favour of one of them—in the case of an accidental looker-on—in the case of a youth under age, and in the case of an idiot. The same law-tract deals also with the curious subjects of injuries from a cat stealing in a kitchen, from women using their distaffs in a woman-battle, and from bees, a distinction being drawn between the case in which the sting draws blood and the case in which it does not. Numberless other instances could be given; but I repeat that all this is mixed up with much that even now has juridical interest, and with much which in that state of society had probably the greatest practical importance.
It is not, perhaps, as often noticed as it should be by English writers on law that the method of enunciating legal principles with which our Courts of Justice have familiarised us is absolutely peculiar to England and to communities under the direct influence of English practice. In all Western societies, Legislation, which is the direct issue of the commands of the sovereign state, tends more and more to become the exclusive source of law; but still in all Continental countries other authorities of various kinds are occasionally referred to, among which are the texts of the Roman Corpus Juris, commentaries on Codes and other bodies of written law, the unofficial writings of famous lawyers, and other branches of the vast literature of law holding at most a secondary place in the estimation of the English Judges and Bar. Nowhere, however, is anything like the same dignity as with us attributed to a decided ‘case,’ and I have found it difficult to make foreign lawyers understand why their English brethren should bow so implicitly to what Frenchmen term the ‘jurisprudence’ of a particular tribunal. From one point of view English law has doubtless suffered through this reluctance to invent or imagine facts as the groundwork of rules, and it will continue to bear the marks of the injury until legislative re-arrangement and re-statement fully disclose the stores of common sense which are at present concealed by its defects of language and form. On the other hand, these habits of the English Courts seem to be closely connected with one of the most honourable characteristics of the English system, its extreme carefulness about facts. Nowhere else in the world is there the same respect for a fact, unless the respect be of English origin. The feeling is not shared by our European contemporaries, and was not shared by our remote ancestors. It has been said—and the remark seems to me a very just one—that in early times questions of fact are regarded as the simplest of all questions. Such tests of truth as Ordeal and Compurgation satisfy men’s minds completely and easily, and the only difficulty recognised is the discovery of the legal tradition and its application to the results of the test. Up to a certain point no doubt our own mechanism for the determination of a fact is also a mere artifice. We take as our criterion of truth the unanimous opinion of twelve men on statements made before them. But then the mode of convincing, or attempting to convince, them is exactly that which would have to be followed if it were sought to obtain a decision upon evidence from the very highest human intelligence. The old procedure was sometimes wholly senseless, sometimes only distantly rational; the modern English procedure is at most imperfect, and some of its imperfection arises from the very constitution of human nature and human society. I quite concur, therefore, in the ordinary professional opinion that its view of facts and its modes of ascertaining them are the great glory of English law. I am afraid, however, that facts must always be the despair of the law reformer. Bentham seems to me from several expressions to have supposed that if the English Law of Evidence were re-constructed on his principles questions of fact would cease to present any serious difficulty. Almost every one of his suggestions has been adopted by the Legislature, and yet enquiries into facts become more protracted and complex than ever. The truth is that the facts of human nature, with which Courts of Justice have chiefly to deal, are far obscurer and more intricately involved than the facts of physical nature; and the difficulty of ascertaining them with precision constantly increases in our age, through the progress of invention and enterprise, through the ever-growing miscellaneousness of all modern communities, and through the ever-quickening play of modern social movements. Possibly we may see English law take the form which Bentham hoped for and laboured for; every successive year brings us in some slight degree nearer to this achievement; and consequently, little as we may agree in his opinion that all questions of law are the effect of some judicial delusion or legal abuse, we may reasonably expect them to become less frequent and easier of solution. But neither facts nor the modes of ascertaining them tend in the least to simplify themselves, and in no conceivable state of society will Courts of Justice enjoy perpetual vacation.
I have been at some pains to explain what sort of authority the Irish Brehon law did not, in my opinion, possess. The ‘law of nature’ had lost all supernatural sanction, except so far as it coincided with the ‘law of the letter.’ It had not yet acquired, or had very imperfectly acquired, that binding power which law obtains when the State exerts the public force through Courts of Justice to compel obedience to it. Had it, then, any authority at all; and if so, what sort of authority? Part of the answer to this question I endeavoured to give three years ago (‘Village Communities, in the East and West,’ pp. 56, 57); and though much more might be said on the subject, I defer it till another opportunity. So far as the Brehon law declared actual ancient and indigenous practices, it shared in the obstinate vitality of all customs when observed by a society distributed into corporate natural groups. But, besides this, it had another source of influence over men’s minds, in the bold and never-flagging self-assertion of the class which expounded it. A portion of the authority enjoyed by the Indian Brahminical jurisprudence is undoubtedly to be explained in the same way. The Brehon could not, like the Brahmin, make any such portentous assertion as that his order sprang from the head of Brahma, that it was an embodiment of perfect purity, and that the first teacher of its lore was a direct emanation from God. But the Brehon did claim that St. Patrick and other great Irish saints had sanctioned the law which he declared, and that some of them had even revised it. Like the Brahmin, too, he never threw away an opportunity of affirming the dignity of his profession. In these law-tracts the heads of this profession are uniformly placed, where Cæsar placed the Druids, on the same level with the highest classes of Celtic society. The fines payable for injury to them, and their rights of feasting at the expense of other classes (a form of right which will demand much attention from us hereafter), are adjusted to those of Bishops and Kings. It is more than likely that the believing multitude ended by accepting these pretensions. From what we know of that stage of thought we can hardly set limits to the amount of authority spontaneously conceded to the utterances of a sole literary class. It must have struck many that the influence of the corresponding class in our own modern society far exceeds anything which could have been asserted of it from the mere consideration of our social mechanism. There is, perhaps, an impression abroad that the influence it exerts increases as history goes on, an impression possibly produced and certainly strengthened by the brilliant passages in which Lord Macaulay contrasted the well-paid literary labour of his own day with the miseries of the literary hack of Grub Street a century before. I think that this opinion, if broadly stated, is at the very least doubtful. The class which, to use a modern neologism, ‘formulates’ the ideas dimly conceived by the multitude—which saves it mental trouble by collecting through generalisation, which is an essentially labour-saving process, the scattered fragments of its knowledge and experience—has not always consisted of philosophers, historians, and novelists, but had earlier representatives in poets, priests, and lawyers. It is not at all a paradoxical opinion that these last were its most powerful members. For, nowadays, it has to cope with the critical faculty, more or less found everywhere, and enormously strengthened by observation of the methods of physical discovery. No authority of our day is possibly comparable with that of the men who, in an utterly uncritical age, simply said of a legal rule, ‘So it has been laid down by the learned,’ or used the still more impressive formula, ‘It is thus written.’
While, however, I fully believe that the Brehon law possessed great authority, I think also that it was in all probability irregularly and intermittently enforced, and that partial and local departures from it were common all over ancient Ireland. Anybody who interested himself in the question of its practical application would have to encounter the very problems which are suggested by the Brahminical Hindoo law. The student of this last system, especially if he compares it with the infinity of local usage practised in India, is constantly asking himself how far was the law of the Brahmin jurists observed before the English undertook to enforce it through their tribunals? The Editor of the Third Volume of the Ancient Laws of Ireland has given a very apposite example of a problem of the same kind (iii. 146), by extracting from the Carew Papers the story of a famous dispute as to the headship of the great Irish house of O’Neill. Con O’Neill, its chief, had two sons, Matthew and Shane. Matthew O’Neill was heir to Con O’Neill’s earldom of Tyrone, according to the limitations of the patent. Shane O’Neill urged on the English Government that these limitations were void, because the King, in granting the earldom, could not have been aware that Matthew O’Neill was an adulterine bastard, having been in truth born of the wife of a smith in Dundalk. Shane O’Neill has been regarded as the champion of purely Irish ideas (see Froude, ‘English in Ireland,’ I. 43); but though the rule of legitimacy upon which he insisted conforms to our notions, it is directly contrary to the legal doctrine of the Book of Aicill, which in one of its most surprising passages lays down formally the procedure by which the natural father could bring into his family a son born under the alleged circumstances of Matthew O’Neill, on paying compensation to the putative parent. Unless Shane O’Neill’s apparent ignorance of this method of legitimation was merely affected for the purpose of blinding the English Government, it would seem to follow that the Book of Aicill, though its authorship was attributed to King Cormac, had not an universally recognised authority.
I do not know that the omission of the English, when they had once thoroughly conquered the country, to enforce the Brehon law through the Courts which they established, has ever been reckoned among the wrongs of Ireland. But if they had done this, they would have effected the very change which at a much later period they brought about in India, ignorantly, but with the very best intentions. They would have given immensely greater force and a much larger sphere to a system of rules loosely and occasionally administered before they armed them with a new authority. Even as it was, I cannot doubt that the English did much to perpetuate the Brehon law in the shape in which we find it. The Anglo-Norman settlement on the east coast of Ireland acted like a running sore, constantly irritating the Celtic regions beyond the Pale, and deepening the confusion which prevailed there. If the country had been left to itself, one of the great Irish tribes would almost certainly have conquered the rest. All the legal ideas which, little conscious as we are of their source, come to us from the existence of a strong central government lending its vigour to the arm of justice would have made their way into the Brehon law; and the gap between the alleged civilisation of England and the alleged barbarism of Ireland during much of their history, which was in reality narrower than is commonly supposed, would have almost wholly disappeared.
Before I close this chapter it is necessary to state that the Brehon law has not been unaffected by the two main influences which have made the modern law of Western Europe different from the ancient, Christian morality and Roman jurisprudence. It has been modified by Roman juridical ideas in some degree, though it would be hazardous to lay down with any attempt at precision in what degree. I have trustworthy information that, in the tracts translated but not yet published, a certain number of Roman legal maxims are cited, and one Roman jurisconsult is mentioned by name. So far as the published tracts afford materials for an opinion, I am inclined to think that the influence of the Roman law has been very slight, and to attribute it not to study of the writings of the Roman lawyers, but to contact with Churchmen imbued more or less with Roman legal notions. We may be quite sure that the Brehons were indebted to them for one conception which is present in the tracts—the conception of a Will; and we may probably credit the Church with the comparatively advanced development of another conception which we find here—the conception of a Contract. The origin of the rules concerning testamentary bequest which are sometimes found in Western bodies of law otherwise archaic has been much considered of late years; and the weight of learned opinion inclines strongly to the view that these rules had universally their source in Roman law, but were diffused by the influence of the Christian clergy. This assertion cannot be quite so confidently made of Contracts; but the sacredness of bequests and the sacredness of promises were of about equal importance to the Church, as the donee of pious gifts; and, as regards the Brehon law, it is plain upon the face of the published sub-tract which is chiefly concerned with Contract, the Corus Bescna, that the material interests of the Church furnished one principal motive for its compilation. The Corus Bescna, in which, I may observe, a certain confusion (not uncommon in ancient law) may be remarked between contracts and grants, between the promise to give and the act or operation of giving, contains some very remarkable propositions on the subject of Contract. Here, and in other parts of the Senchus Mor, the mischiefs of breach of contract are set forth in the strongest language. ‘The world would be in a state of confusion if verbal contracts were not binding.’ ‘There are three periods at which the world dies: the period of a plague, of a general war, of the dissolution of verbal contracts.’ ‘The world is worthless at the time of the dissolution of contracts.’ At first sight this looks a good deal liker the doctrine of the eighteenth century than of any century between the sixth and the sixteenth. Let us see, however, what follows when the position thus broadly stated has to be worked out. We come, in the Corus Bescna, upon the following attempt at classification, which I fear would have deeply shocked Jeremy Bentham and John Austin: ‘How many kinds of contracts are there?’ asks the Brehon textwriter. ‘Two,’ is the answer. ‘A valid contract, and an invalid contract.’ This, no doubt, is absurd, but the explanation appears to be as follows. The principle of the absolute sacredness of contracts was probably of foreign origin, and was insisted upon for a particular purpose. It was therefore laid down too broadly for the actual state of the law and the actual condition of Irish Celtic society. Under such circumstances a treatise on Contract takes necessarily the form in great measure of a treatise on the grounds of invalidity in contracts, on the manifold exceptions to an over-broad general rule. Anciently, the power of contracting is limited on all sides. It is limited by the rights of your family, by the rights of your distant kinsmen, by the rights of your co-villagers, by the rights of your tribe, by the rights of your Chief, and, if you contract adversely to the Church, by the rights of the Church. The Corus Bescna is in great part a treatise on these archaic limitations. At the same time some of the modern grounds of invalidity are very well set forth, and the merit may possibly be due to the penetration of Roman doctrine into the Brehon law-schools.
Something must be said on the extent to which Christian opinion has leavened these Brehon writings. Christianity has certainly had considerable negative influence over them. It became no longer possible for the Brehon to assert that the transgressor of his rules would incur a supernatural penalty, and the consequences of this were no doubt important. But still, as you have seen, in the case of ‘fasting on a man,’ or ‘sitting dharna,’ the heathen rule remained in the system, though its significance was lost. Again, one positive result of the reception by the Brehons of the so-called ‘law of the letter’ appears to have been the development of a great mass of rules relating to the territorial rights of the Church, and these constitute a very interesting department of the Brehon law. But there has certainly been nothing like an intimate inter-penetration of ancient Irish law by Christian principle. If this kind of influence is to be looked for anywhere, it must be in the law of Marriage, and the cognate branches of Divorce, Legitimacy, and Inheritance. These, however, are the very portions of the Brehon law which have been dwelt upon by writers convinced that, as regards the relations of the sexes, the primitive Irish were near akin to those Celts of Britain of whose practices Cæsar had heard. (B. G., v. 14.) 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 interests of the woman, even to the extent of reserving to her the value of her domestic services during her residence in the common dwelling. One remark ought, however, to be made on these provisions of the Brehon law. It is not inconceivable that, surprising as they are, they may be the index to a social advance. Cæsar plainly found the Celts of the Continent polygamous, living in families held together by stringent Paternal Power. He, a Roman, familiar with a Patria Potestas as yet undecayed, thinks it worthy of remark that the head of a Gallic household had the power of life and death over his wives as well as his children, and notices with astonishment that, when a husband died under suspicious circumstances, his wives were treated with the same cruelty as a body of household slaves at Rome whose master had been killed by an unknown hand. (B. G., vi. 19.) Now, though very much cannot be confidently said about the transition (which, nevertheless, is an undoubted fact) of many societies from polygamy to monogamy under influences other than those of religion, it may plausibly be conjectured that here and there it had its cause in liberty of divorce. The system which permitted a plurality of wives may have passed into the system which forbade more than one wife at a time, but which did not go farther. The monogamy of the modern and Western world is, in fact, the monogamy of the Romans, from which the license of divorce has been expelled by Christian morality. There are hardly any materials for an opinion upon the degree of influence exercised by the Church over the transformation of marriage-relations in Ireland, but there are several indications that the ecclesiastical rules as to the conditions of a valid marriage established themselves very slowly among the ruder races on the outskirts of what had been the Roman Empire. Mr. Burton (‘History of Scotland,’ ii. 213), in speaking of the number of illegitimate claimants who brought their pretensions to the Crown of Scotland before Edward the First, observes: ‘That they should have pushed their claims only shows that the Church had not yet absolutely established the rule that from her and her ceremony and sacrament could alone come the union capable of transmitting a right of succession to offspring.’ The tract on ‘Social Connexions’ notices a ‘first’ wife, and the recognition may be attributable to the Church, but on the whole my impression certainly is that the extremely ascetic form under which Christianity was introduced into Ireland was unfavourable to its obtaining a hold on popular morality. The common view seems to have been that chastity was the professional virtue of a special class, for the Brehon tracts, which make the assumptions I have described as to the morals of the laity, speak of irregularity of life in a monk or bishop with the strongest reprobation and disgust. At the present moment Ireland is probably the one of all Western countries in which the relations of the sexes are most nearly on the footing required by the Christian theory; nor is there any reasonable doubt that this result has been brought about in the main by the Roman Catholic clergy. But this purification of morals was effected during the period through which monks and monasticism were either expelled from Ireland or placed under the ban of the law.
I will take this opportunity of saying that the influence of Christianity on a much more famous system than the Brehon law has always seemed to me to be greatly overstated by M. Troplong and other well-known juridical writers. There is, of course, evidence of Christian influence on Roman law in the disabilities imposed on various classes of heretics and in the limitations of that liberty of divorce which belonged to the older jurisprudence. But, even in respect of divorce, the modifications strike me as less than might have been expected from what we know of the condition of opinion in the Roman world; and, as regards certain improvements said to have been introduced by Christianity into the Imperial law of slavery, they were probably quickened by its influence, but they began in principles which were of Stoical rather than of Christian origin. I do not question the received opinion that Christianity greatly mitigated and did much to abolish personal and predial slavery in the West, but the Continental lawyers of whom I spoke considerably antedate its influence, and take far too little account of the prodigious effects subsequently produced by the practical equality of all men within the pale of the Catholic priesthood. But I principally deprecate these statements, which in some countries have almost become professional commonplaces, for two reasons. They slur over a very instructive fact, the great unmalleability of all bodies of law; and they obscure an interesting and yet unsettled problem, the origin of the Canon law. The truth seems to be that the Imperial Roman law did not satisfy the morality of the Christian communities, and this is the most probable reason why another body of rules grew up by its side and ultimately almost rivalled it.