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!!!!隆堋響頼��紗秘慕禰厮宴和肝写偬堋響��
retirement。 Apocryphal as his story may be�察�it is one of much
significance to the student of ancient institutions。 He had been
accidently blinded of one eye��and is said to have been deposed
from his regal office or chieftiancy on account of the blemish。
Coirpri�察�his son and successor ��says the Book of Aicill���察�'in
every difficult case of judgment that came to him used to go and
ask his father about it�察�and his father used to say to him�察 �My
son�察�that thou mayest know;' and then proceeded to lay down
the law。
If�察�without committing ourselves to any specific theory
concerning the exact extent of the correspondence�察�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 Caesar�察�we not only do something to
establish an historical conclusion perhaps more curious than
important�察�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�察�the Brehons�察�would in that case be mainly this�此�the
Brehons would be no longer priests。 All sacerdotal or religious
authority must have passed�察�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�察�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�察�the supernatural
penalties threatened on their violation�察�would disappear�察�except
so far as the legal rules exactly coincided with the rules of the
new Christian code�察�the 'law of the letter。' Now�察�the want of a
sanction is occasionally one of the great difficulties in
understanding the Brehon law。 Suppose a man disobeyed the rule or
resisted its application�察�what would happen�拭�The learned writer
of one of the modern prefaces prefixed to the Third Volume of the
Ancient Laws contents that the administration of the Brehon
system consisted in references to arbitration�察�and I certainly
think myself that�察�so far as the system is known�察�it points to
that conclusion。 The one object of the Brehons was to force
disputants to refer their quarrels to a Brehon�察�or to some person
in authority advised by a Brehon�察�and thus a vast deal of the law
tends to run into the Law of Distress�察�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�察�and
besides that�察�why should not the man attempted to be distrained
upon constantly resist with success�拭�Doubtless the law provides
penalties for resistance�察�but where is the ultimate sanction��
Caesar supplies an answer�察�which must�察�I think�察�contain a portion
of the truth。 He says that if a Celt of Gaul refused to abide by
a Druid judgment he was excommunicated�此�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�察�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�察�the Senchus Mor tells you to
'fast upon him。' 'Notice'�察�it says�察�'precedes distress in the
case of the inferior grades�察�except it be by persons of
distinction or upon persons of distinction�察�fasting precedes
distress in their case' ��'Ancient Laws of Ireland��' vol。 i�察�p。
113��。 The institution is unquestionably identical with one widely
diffused throughout the East�察�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�察�and the Indian Penal Code expressly forbids it。 It
suggests�察�however�察�the question what would follow if the
creditor simply allowed the debtor to starve�拭�Undoubtedly the
Hindoo supposes that some supernatural penalty would follow��
indeed�察�he generally gives definiteness to it by retaining a
Brahmin to starve himself vicariously�察�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。 Caesar states that the Druids
believed in the immortality and transmigration of the soul�察�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�察�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�察�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�察�since fasting had now become a specific ordinance of the
Christian Church�察�and its condition and spiritual effects were
expressly defined by the Christian priesthood。 Theoretically�察�I
should state�察�a person who refused unjustly to yield to fasting
had his legal liabilities considerably increased�察�at least��
according to the dicta of the Brehon commentators�察�but such
provisions only bring us to the difficulty of which I first
spoke�察�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�察�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�察�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 elected�察�but it cannot have had
any such sacredness�察�and consequently any such authority�察�as the
Brahminical jurisprudence。 Both the Brahmins and the Brehons
assume that Kings and Judges will enforce their law�察�and
emphatically enjoin on them its enforcement�察�but�察�while the
Brahmin could declare that neglect or disobedience would be
followed by endless degradation and torment�察�the Brehon could
only assert that the unlearned brother who pronounced a false
judgment would find blotches come on his cheeks�察�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 allowed in early times。 The writer of the
Preface to the Third Volume�察�from which I have more than once
quoted�察�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�察�the accumulated
answers ��or�察�as the Brehon phrase is�察�the judgments�� of many
successive generations of famous Roman lawyers�察�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�察�or not
systematically applied�察�to the judgments of the Brehons。 We never
know the Romans except as subject to one of the strongest of
central governments�察�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�察�there
can�察�of course�察�be no doubt that the ultimate criterion of the
validity of professional legal opinion at Rome�察�as elsewhere�察�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�察�in our sense of the words��
a central government�察�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�察�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�察�however�察�from our present point of view�察�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�察�from
comparatively early times�察�has been more strongly centralised
than in any other European country�察�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�察�the process of the Irish Courts�察�even if it was
compulsory�察�was at the utmost extremely weak。 The Irish law was
developed by hereditary commentators�察�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。