w '" ^MSOU THE EAELY HISTORY OF CvSTITOTIONS SIR HENRY MAINE: A UIUKF MEMOIR OF HIS LIFE. By tiik Hi.iin Hon. Sin M. E. GRANT DUFF, G.C.S.1. WITH 8 LWDKI) PROPFJITV IX RUSSIA. lect. r. (.•oniHM-rKiii or imalogy. The evidence has been found oil all sides of us, dimly seen and veriHable with diffi- culty in countries which have undergone the enormous pressure of the Roman Empire, or wliich have been strniiirly atiected by its indirect influence, but perfectly plain and unmistakeable in the parts of the world, jicopk'd by the Aryan race, where the Empire has made itself felt very slightly or not at all. As regards the Sclavonic communities, the enfranchisement of the peasantry of the Russian dominions in Europe has given a stimulus to enquiries which formerly had at- tractions for only a few curious observers, and the amount of information collected has been very large. We now know much more clearly than we did before that the soil of the older provinces of the Russian J'^mpire has been, from time immemorial, almost exclu- sively distributed among groups of self-styled kins- men, collected in cultivatins: villao-e -communities, self- organised and self-governing ; and, since the great measure of the present reign, the collective rights of these conmiunities, and the rights and duties of their members in respect of one another, are no longer en- tangled wirh and limited by the manorial privileges of an owner-in-chief There is also fresh evidence that the more backward of the outlying Sclavonic societies are constituted upon essentially the same model ; and it is one of the facts with which the ^Yestern world will some day assuredly have to reckon, that the political fj'.OT. I. VESTIGES OF VILLAGE-COMMUNITY. 3 ideas of so large a portion of the human race, and its ideas of property also, are inextricably bound up with the notions of family interdependency, of col- lective ownership, and of natural subjection to patriarchal power. The traces of the ancient social order in the Germanic and Scandinavian countries are, I need scarcely say, considerably fainter, and tend always to become more obscured; but the re- examination of the written evidence respecting ancient Teutonic life and custom proceeds without intermis- sion, and incidentally much light has been thrown on the early history of property by the remarkable work of Sohm (' Friinkische Reichs-und Gerichtsverfass- ung'). The results obtained by the special method of G. L. Von Maurer have meantime been verified by comparison with phenomena discovered in the most unexpected quarters. The researches of M. de Laveleye, in particular, have been conducted over a field of very wide extent ; and, although I dissent from some of the economic conclusions to which he has been led, I cannot speak too highly of the value of the materials collected by him, and described in the recently published volume which he has entitled ' La Propriete et ses Formes Primitives.' I have not observed that the vestiges left on the soil and law of England and of the Scottish Lowlands by the ancient Village-Community have been made the subject of any published work since the monograph « 2 4 VKSTIGKS OK VILLAGE-COMMUNITY. leot. r. of Nasse on the ' Lund Community of the Middle Ajrt'8 ' was jriven to the world, and since the lectures delivered in this place three years since appeared in print. Nol)ody, however, who knows ihe carefulness with which an English Court of Justice sifts the ma- terials brought before it will wonder at my attaching a special importance to the judgment of Lord Chan- cellor llatherley, given in a difficult case which arose through a dispute between different classes of persons interested in a manor, Warrick against Queen's Col- lege, Oxford (reported in 6 Law Reports, Chancery Appeals, 716). It appears to me to recognise the traces of a state of things older than the theoretical basis of I'.nglish Real Property Law, and, so far as it goes, to allow that the description of it given here was correct. Meanwhile, if I may judge from the communications which do not cease to reach me from Lidia, and from various parts of this country, the constitution of the Village- Community, as it exists, and as it existed, is engaging the attention of a large number of indus- trious observers, and the facts bearing upon the sub- ject, which I hope will some day be made public, prove to exist in extraordinary abundance. There was no set of communities which until recently supplied us with information less in amount and apparent value concerning the early his- tory of law than those of Celtic origin. This Avas the more remarkable, because one particular group ?,ECT 1. CELTIC SOCIETIES. 5 of small Celtic societies, which have engro&sed more than their share of the interest of this country — the clans of the Scottish Highlands — had admittedly retained many of the characteristics, and in particular the political characteristics, of a more ancient condi- tion of the world, almost down to our own day. But the explanation is, that all Celtic societies were until recently seen by those competent to observe them through a peculiarly deceptive medium. A veil spread by the lawyers, a veil woven cf Roman law and of that comparatively modern combination of primitive and Roman law which we call feudalism, hung between the Highland institutions and the shrewd investigating genius of the Scottish Low- landers. A thick mist of feudal law hid the ancient constitution of Irish society from English observa- tion, and led to unfounded doubts respecting the authenticity of the laws of Wales. The ancient or- ganisation of the Celts of Gaul, described by Caesar with the greatest clearness and decisiveness, appeared to have entirely disappeared from France, partly because French society was exclusively examined for many centuries by lawyers trained either in Roman or in highly feudalised law, but partly also because the institutions of the Gallic Celts had really passed under the crushing machinery of Roman legislation. I do not, indeed, mean to say that this darkness has not recently given signs of lifting. It has been re- 6 r'i;i/nc ixhtitutions. t.kct. i. cotrniscd that the collections of Welsh laws j)ublished by the Record Commission, though their origin and date are uncertain, are undoubtedly bodies of genuine legal rules ; and, independently of the publications to which I am about to direct attention, the group of Irish scholars, distinguished by remarkable sobriety of thoujrht, which has succeeded a school almost in- famous for the unchastened license of its speculations on history and philology, had pointed out many thing's in Irish custom which connected it with the archaic practices known to be still followed or to have been followed by the Germanic races. As early as 1837 Mr. W. F. Skene, in a work of much value called ' The Highlanders of Scotland,' had corrected many of the mistakes on tlie subject of Highland usage into which writers exclusively conversant with feudal rules had been betrayed ; and the same emi- nent antiquary, in an appendix to his edition of the Scottish chronicler, Fordun, published in 1872, con- firms evidence which had reached me in considerable quantities from private sources to the effect that vil- lage-communities with ' shifting severalties ' existed in the Highlands witliin living memory. Quite re- cently, also, M. Le Play, Mr. Cliffe Leslie, and others have come upon plain traces of such communities in several parts of France. A close re-examination of the (^ustumals or manuals of feudal rules plentiful in French legal literature, led farther to some highly interesting taCT. T. A^•CIEXT FRENCH COMMUNITIES. 7 results. It clearly appeared from tliem that com- munities of villeins were constantly found on the estates of the French territorial nobility. The legal writers have always represented these as voluntary associations, which were rather fav^oured by the lord on account of the greater certainty and regularity with which their members rendered him suit and service. As a rule, when a tenant holding by base tenure died, the lord succeeded in the first instance to his land, a rule of which thei-e are plain traces in our English law of copyhold. But it is expressly stated that, in the case of an association of villeins, the lord did not resume their land, being supposed to be compensated by their better ability to furnish his dues. Now that the explanation has once been given, there can be no doubt that these associations were not really voluntary partnerships, but groups of kinsmen ; not, however, so often organised on the ordinary type of the Village-Community as on that of the House-Community, which has recently been ex- amined in Dalmatia and Croatia. Each of them was what the Hindoos call a Joint Undivided Family, a collection of assumed descendants from a common an- cestor, preserving a common hearth and common meals during several generations. There was no escheat of the land to the lord on a death, because such a cor- poration never dies, and the succession is perpetual. But much the most instructive -contribution to 8 AMin.NT LAWS OF IKICLANIt. lixi, I. our knowledge of tlie ancient Celtic societies has been furnished by tlic Irish Government, in tlie translations of the Ancient Laws of Ireland, which have been published at its expense. The first volume of these translations was published in 1865 ; the se- cond in 1869; the third, enriched with some valuable prefaces, has only just appeared. No one interested in the studies wliieli are now occupying us could fail to recognise the importance of the earlier volumes, but there was much difficulty in determining their exact bearing on the early history of Celtic institu- tions. The bulk of the law first [)ublished consisted in a collection cf rules belonging to M'hat in our modern legal language we should call the Law of 1 distress. Now, in very ancient bodies of rules the Law of Distress, as I shall endeavour to explain hereafter, is undoubtedly entitled to a very different place from that which Avould be given to it in any modern system of jurisprudence ; but still it is a highl}' special branch of law in any stage of develop- ment. There is, however, another more permanent and mure serious cause of embarrassment in drawino- conclusions from these laws. Until comparatively lately they were practically unintelligible ; and they were restored to knowledge by the original transla- tors, Dr. 0' Donovan and Dr. O'Curry, two very re- markable me!i, both of whom are now dead. The translations have been carefully revised by the LECT. I. AXCIEXT LAWS OF IRELAND. learned editor of the Irish text; but it is probable that several generations of Celtic scholars will have had to interchange criticisms on the language of the laws before the reader who approaches them without any pretension to Celtic scholarship can be quite sure that he has the exact meaning of every passage before him. The laws, too, I need scarcely say, are full of technical expressions; and the greatest scholar who has not had a legal training — and, indeed, up to a certain point when he has had a legal training — may fail to catch the exact excess or defect of mean- ing which distinguishes a word in popular use from the same word employed technically. Such consi- derations suggest the greatest possible caution in dealing with tliis bod}' of rules. In what follows I attempt to draw inferences only when the meaning and drift of the text seem reasonably certain, and I have avoided some promising lines of enquiry which would lead us through passages of doubtful sig- nification. The value which the Ancient Laws of Ireland, the so-called Brehon laws, will possess when they are completely published and interpreted, may, I think, be illustrated in this way. Let it be remembered that the Roman Law, which, next to the Christian Religion, is the most plentiful source of the rules go- verning actual conduct throughout Western Europe, is descended from a small body of Aryan customs re- 10 ANLIKM KOMA.V AM) IRISH LAW. T.rcT, I, duced to writing in the fifth century before Christ, and known as the Twelve Tables of Rome. Let it farther be recollected that this law was at first, expanded and developed, not at all, or very slightly, by legislation, but by a process which we may perceive still in operation in various communities — the juridical interpretation of authoritative texts by successive generations of learned men. Xow, the largest collection of Irish legal rules, which has come down to us, professes to be an ancient Code, with an appendage of later glosses and commentaries ; and, if its authenticity could be fully established, this ancient Irish Code would correspond historically to the Twelve Tables of Rome, and to many similar bodies of written rules which appear in the early history of Aryan societies. There is reason, how- ever, to think that its claims to antiquity cannot be sustained to their full extent, and that the Code itself is an accretion of rules which have clustered round an older nucleus. But that some such kernel or perhaps several such kernels of written law existed, is highly probable, and it is also probable that the whole of the Brehon law consists of them and of accumulations formed upon them. It is farther probable that the process b\' which these accumula- tions were formed was, as in the infancy of the Roman State, juridical interpretation. According to the opinion which I follow, the interesting fact about LEOT. I. INFLUENCE OF THE ROMAN EMPIRE. 11 the ancient Irish law is, that this process was ex- clusive, and that none of the later agencies by which law is transformed came into play. The Brehon laws are in no sense a legislative construction, and thus they are not only an authentic monument of a very ancient group of Aryan institutions ; they are also a collection of rules which have been gradually developed in a way highly favourable to the preser- vation of archaic peculiarities. Two causes have done most to obscure the oldest institutions of the portion of the human race to which we belong : one has been the formation throughout the West of strong centralised governments, concentrating in themselves the public force of the community, and enabled to give to that force upon occasion the special form of legislative power ; the other has been the influence, direct and indirect, of the Roman Empire, drawing with it an activity in legislation unknown to the parts of the world which were never subjected to it. Now, Ireland is allowed on all hands to have never formed part of the Empire; it was very slightly affected from a distance by the Imperial law; and, even if it be admitted that, during certain intervals of its ancient history, it had a central government, assuredly this government was never a strong one. Under these circumstances it is not wonderful that the Brehon law, growing together without legislation upon an original body of Aryan custom, and formed Vj IIMSII AM) HINDOO LAW. LFrr, l. beyond the limit of tliat cloud of Roman juridical ideas wliicli for many centuries overspread the whole Continent, nnd even at its extremity extended to England, should present some very strong analogies to another set of derivative Aryan usages, the Hindoo la^v, which was similarly developed. The curious and perplexing problems which such a mode of growth suggests have to be grappled with by the student of either system. The ancient laws of Ireland have come down to us as an assemblage of law-tracts, each treating of some one subject or of a group of subjects. The volumes officially translated and pubhshed contain. the two largest of these tracts, the Senchus Mor, or Great Book of the Ancient Law, and the Book of Aicill. AVhile the comparison of the Senchus Mor and of the Book of Aicill with other extant bodies of archaic rules leaves no doubt of the great antiquity of much of their contents, the actual period at which they assumed their present shape is extremely uncertiiin. Mr. "Whitley Stokes, one of tlie most ennnent of living Celtic scholars, believes, upon con- sideration of its verbal forms, that the Senchus Mor was compiled in or perhaps slightly before the eleventh century ; and there appears to be internal evidence which on the whole allows us to attribute the Book of Aioill to the century preceding. The Senchus Mor, it i'^ true, expressly cliiims for itself a far earlier t,p,CT. I. DATES OF m[SII LAW-TRACTS. 13 origin. In a remarkable preface, of which I shall have much to say hereafter, it gives an account, partly in verse, of the circumstances under which it w^as drawn up, and it professes to have been compiled during the hfe and under the personal influence of St. Patrick. These pretensions have been ingeniously supported, but there is not much temerity, I think, in refusing to accept the fifth century as the date of the Senchus Mor. At the same time it is far from impossible that the writing of the ancient Irish laws began soon after the Chris tianisation of Ireland. It was Christianity, a ' religion of a book,' which for the first time introduced many of the ruder nations out- side the Empire to the art of writing. We cannot safely claim for the Celts of Ireland, in the fifth century of the Christian era, precisely the same degree of culture which Caesar attributes to the Celts of the Continent in the first century before Christ ; but, even if we could do so, Caesar expressly states of the Gauls that, though they were acquainted with writing, they had superstitious scruples about using written characters to preserve any part of their sacred literature, in which their law would then be included. Such objections would, however, necessarily disappear with the conversion of the Irish people to Christianity. On the whole there is no antecedent improbability in the tradition that, soon after this conversion, the usages of the Irish began to be stated in writing, and 14 ANX'IEXT LAW IN VERSE. lect. l Celtic scholars have detected not a little evidence chat parts of these more venerable writings are im- bedded in the text of the Book of Aicill and of the Senchus Mor. It is extremely likely that the most ancient law was preserved in rude verse or rhythmical prose. In the oldest Irish traditions the lawyer is distinguished with difficulty from the poet, poetry from literature. Both in the Senchus Mor and in the Book of Aicill the express statement of the law is described as ' casting a thread of poetry ' about it, and the traditional authors of the Senchus Mor are said to have exhibited ' all the judgment and poetry of the men of Erin.' Modern Irish scholarship has, in fact, discovered that portions of the Senchus ^lor are really in verse. The phenomenon is not unfamiliar. Mr. Grote, speaking of the Elegiacs of Solon, and of the natural priority of verse to prose, says (History of Greece, iii, 119), ' the acquisitions as well as the effusions of an intellectual man, even in the simplest form, (then) adjusted themselves not to the limitations of the period and semicolon, but to those of the hexameter and pentameter.' There is no question, I conceive, that this ancient written verse is what is now called a survival, descending to the first ages of written composition from the ages when measured rhythm was absolutely essential, in order that the memory might bear the vast burdens placed upon it L£er. I. FORM OF BREIIOX TRACTS, 15 It is now generally agreed that the voluminous versified Sanscrit literature, which embraces not only the poetry of the Hindoos, but most of their religion, much of what stands to them in place of history, and something even of their law, was originally preserved by recollection and published by recitation ; and even now, in the Sanscrit schools which remain, tlie pupil is trained to exercises of memory which are little short of miraculous to an Eng;lishman. The tracts are of very unequal size, and the sub- jects they embrace are of very unequal importance. But all alike consist of an original text, divided into paragraphs. Above or over against the principal words of the text glosses or interpretations are written in a smaller hand, and a paragraph is constantly followed by an explanatory commentary, also in a smaller hand, written in the space which separates the paragraph from the next. The scarcity of mate- rial for writing may perhaps sufficiently account for the form taken by the manuscripts; but the Celts seem to have had a special habit of glossing, and you may have heard that the glosses written by early Irish monks between the lines or on the margin of manuscripts belonging to religious houses on the Continent had much to do with the wonderful dis- coveries of Zeuss in Celtic philology. A facsimile of part of two Brehon manuscripts, one in the British Museum, and the other in the Library of Trinity K; form of HRFllOX TRACTS. LKCT, 1. ( ollege, Dublin, may be seen at the beginning of the Kccond pubhshed volume of the translations. It seems probable that each tract was the property, and that it sets forth the special legal doctrines, of some body of persons who, hi modern legal phrase, had perpetual succession, a Family or Law School ; there is ample evidence of the existence of such law schools in ancient Ireland, and they are another feature of resem- blance to the India of the past and in some degree to the India of the present. The text of each of the published tracts appears to have been put together by one effort, no doubt from pre-existing materials, and it may have been written continuously by some one person ; but the additions to it must be an accunmlation of explanations and expositions of various dates by subsequent possessors of the document. I quite agree with the observation of the Editors, that, while the text is for the most part comparatively consistent and clear, the commentary is often obscure and contradictory. Precisely the same remark is frequently made by Anglo-Indian Judges on the Brahminical legal treatises, some of which are similarly divided into a text and a com- mentary. As regards the ancient Irish law, the result of the whole process is anything but satisfactory to the modern reader. I do not know that, in any extant body of legal rules, the difficulty of mastering the contents has ever been so serioush' aggravated by the. LECT. T. MANUSCEIPTS OF IRISH LAW. VT repulsiveness of the form. One of the editors has un- kindly, but not unjustly, compared a Brehon tract to the worst kind of English law-book, without even the moderate advantage of an alphabetical arrangement. The exact date at which the existing manuscripts were written cannot be satisfactorily settled until they are all made accessible, which unfortunately they are not at present. But we know one MS. of the Senchus Mor to be at least as old as the fourteenth century, since a touching note has been written on it by a member of the family to which it belonged : ' One thousand three hundred two and forty years from the birth of Christ till this night ; and this is the second year since the coming of the plague into Ireland. I have written this in the 20th year of my age. I am Hugh, son of Conor McEgan, and who- ever reads it let him offer a prayer of mercy for my soul. This is Christmas night, and on this night I place myself under the protection of the King of Heaven and Earth, beseeching that he will bring me and my friends safe through the plague. Hugh wrote this in his own father's book in the year of the great plague.' The system of legal rules contained in these law-tracts is undoubtedly the same with that repeat- edly condemned by Anglo-Irish legislation, and re- peatedly noticed by English observers of Ireland down to the early part of the seventeenth century c j^ 18 ENGLISH CENSURES OF BREIION LAW. lpx'T. i. It is the same law which, in 1367, a statute of Kil- kenny denounces as ' wicked and damnable.' It is the same law which Edmund Spenser, in his ' View of the State of Ireland,' describes as ' a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeareth a great show of equity, in determining the right between party and party, but in many things repugning quite both to God's law and man's.' It is the same ' lewd ' and ' unreasonable ' custom which Sir John Davis con- trasts with the 'just and honourable law of England,' and to which he attributes such desolation and bar- barism in Ireland, 'as the like was never seen in any country that professed the name of Christ.' It is not our business in this department of study to enqub-e how far this ^dolent antipathy was politically justifi- able. Even if the worst that has been said by Eng- lishmen of the Brehon law down to our own day were true, we might console ourselves by turning our eyes to spheres of enquiry fuller of immediate promise to the world than ours, and observing how much of the wealth of modern thouo;ht has been obtained from the dross which earlier generations had rejected. Meanwhile, happily, it is a distinct property of the Comparative Method of investigation to abate national prejudices. I myself believe that the government of India by the English has been rendered appreciably sasier by the discoveries which have brought home to the educated of both races the common Aryan parent- LECT. I. HISTORICAL CHARACTER OF BREIION LAW. 19 age of Englishman and Hindoo. Similarly, 1 am not afraid to anticipate that there will some day be more hesitation in repeating the invectives of Spenser and Davis, when it is once clearly understood that the ' lewd ' institutions of the Irish were virtually the same institutions as those out of which the 'just and honourable law ' of England grew. Why these insti- tutions followed in their development such different paths it is the province of History to decide ; but, when it gives an impartial decision, I doubt much its wholly attributing the difference to native faults of Irish character. We, who are able here to examine coolly the ancient Irish law in an authentic form, can see that it is a very remarkable body of archaic law, unusually pure from its origin. It has some analogies with the Roman law of the earliest times, some with Scandinavian law, some with the law of the Sclavonic races, so far as it is known, some (and these particu- larly strong) with the Hindoo law, and quite enough with old Germanic law of all kinds, to render value- less, for scientific purposes, the comparison which the English observers so constantly institute with the laws of England. It is manifestly the same sj^stem in origin and principle with that which has descended to us as the Laws of Wales, but these last have some- how undergone the important modifications which arise from the establishment of a comparatively strong central authority. Nor does the Brehon law alto- c 2 ?0 ADVANCED LEGAL DOCTRINES IN BREIION LAW. lect. I. f!;ollicr disappoint tlie expectations of the patriotic IriHlimoii >v}io, partly trusting to the testimony of Kdniund Spenser, the least unkind of the English critics of Ireland, though one of the most ruthless in his practical suggestions, looked forward to its mani- fcstinfT, when it was published, an equity and reason- ableness which would put to shame the barbarous jurisprudence of England. Much of it — I am afraid I nuist say, most of it — is worthless save for historical purposes, but on some points it really does come close to the most advanced legal doctrines of our day. The explanation — which I will hereafter give at length — I believe to lie in the method of its development, which has not been through the decisions of courts, but by the opinions of lawyers on hypothetical states of fact. I tliink I may lay down that, wherever we have any knowledge of a body of Aryan custom, either anterior to or but slightly affected by the Roman Empire, it will be found to exhibit some strong points of resemblance to the institutions which are the basis of the Brehon law. The depth to which the Empire has stamped itself on the political arrangements of the modern world has been illustrated of late years with much learning ; but I repeat my assertion that the great difference between the Roman Empire and all other sovereignties of the ancient world Liy in tlic activity of its legislation, through tlie Edicts of the Prajtor and the Constitutions of the LECT. I. ORIGIN OF SEXCHUS MOR. 21 Emperors. For many races, it actually repealed their customs and replaced tliem by new ones. For others, the results of its legislation mixed themselves indis- tinguishably with their law. With others, it introduced or immensely stimulated the habit of legislation; and this is one of the ways in which it has influenced the stubborn body of Germanic custom prevailing in Great Britain. But wherever the institutions of any Aryan race have been untouched by it, or slightly touched by it, the common basis of Aryan usage is perfectly discernible ; and thus it is that these Brehon law-tracts enable us to connect the races at the east- ern and western extremities of a later Aryan world, the Hindoos and the Irish. The Lectures which follow will help, I trust, to show what use the student of comparative jurispru- dence may make of this novel addition to our knowledge of ancient law. Meantime, there is some interest in contrastino- the view of its nature, oriodn, and growth, which we are obliged to take here, with that to which the ancient Irish practitioners occa- sionally strove hard to give currency. The Senchus Mor, the Great Book of the Ancient Law, was doubt- less a most precious possession of the law-school or family to which it belonged ; and its owners have joined it to a preface in which a semi-divine author- ship is boldly claimed for it. Odhran, the charioteer of St. Patrick — so says this preface — had been killed, 22 I'UliFACE OF SENCUUS MOR. lixjt I. and the question arose whether Nuada, the slayer, should die, or whether the saint was bound by his own principles to unconditional forgiveness. St. Patrick did not decide the point himself; the narrator, in true professional spirit, tells us that he set the precedent according to which a stranger from beyond the sea always selects a legal adviser. He chose ' to go ac- cording to the judgment of the royal poet of the men of Erin, Dubhthach Mac ua Lugair,' and he ' blessed the mouth ' of Dubhthach. A poem, doubtless of much antiquity and celebrity, is then put into the mouth of the arbitrator, and by the judgment em- bodied in it Nuada is to die ; but he ascends straight to heaven through the intercession of St. Patrick. ' Then King Laeghaire said, " It is necessary for you, men of Erin, that every other law should be settled and arranged by us as well as this." " It is better to do so," said Patrick. It was then that all the pro- fessors of the sciences in Erin were assembled, and each of them exhibited his art before Patrick, in the presence of every chief in Erin. It was then Dubh- thach was ordered to exhibit all the judgments and all the poetry of Erin, and every law which prevailed among the men of Erin. . . . This is the Cain Patraic, and no human Brehon of the Gaedhil is able to abrogate anything that is found in the Senchus Mor.' The inspired award of Dubhthach that Xuada must die suggests to the commentator the following remark: '' What ic understood from the above decision LECi. I. COMPOSITION FOE HOMICIDE. 23 which God revealed to Dubhthach is, that it was a middle course between forgiveness and retaliation; for retaliation prevailed in Erin before Patrick, and Patrick brought forgiveness with him ; that is, Nuada was put to death for his crime, and Patrick obtained heaven for him. At this day we keep between for- giveness and retaliation; for as at present no one has the power of bestowing heaven, as Patrick had at that day, so no one is put to death for his intentional crimes, so long as ' eric ' fine is obtained ; and whenever * eric ' fine is not obtained, he is put to death for his intentional crimes, and placed on the sea for his un- intentional crimes." It is impossible, of course, to accept the statement that this wide-spread ancient in- stitution, the pecuniary fine levied on tribes or families for the wrongs done by their members, had its origin in Christian influences; but that it succeeded simple retaliation is in the highest degree probable, and no doubt in its day it was at least as great an advantage to the communities among whom it prevailed as was that stern royal administration of criminal justice to which the Englishmen of the sixteenth century were accustomed, and on which they so singularly prided themselves. But by the sixteenth century it may well have outlived its usefulness, and so may have partially justified the invectives of its English censors, who generally have the ' eric '-fine for homicide in view when they denounce the Brehon law as ' contrary to God's law and man's.' 21 SENCIIUS MOK A.\D BOOK OF AlCILL. lecx. n. LECTURE 11. 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 tlie law-tracts at present translated and pubhshed. The Book of Aicill is probably the oldest, and its text is avowedly composed of the dicta of two famous lawyers, Cormac and Cennfiieladh. The Senchus Mor does, indeed, profess to have been produced by a process resembling legislation, but the pretension can- not be supported ; and, even if it could, the Senchus Mor W(Hild not less consist of the opinions of famous Invhons. It describes the legal rules embodied in its LECT. ir. INGREDIENTS OF THE SENCHUS MOR. 25 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 hare created or adopted. The reference in the misleading phrase ' law of nature,' is not to the memorable com- bination 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, tliese," 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 Testa- ment 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'Currv's Lectures 2d LEGISLATION AND ANCIENT IIIISU LAW. lect. u. forms the fir8t volume of the ' Manners and Cus- toms of the Ancient Irish/ affinns, on the evidence of ancient records, that the institutions which in some communities undoubtedly developed into true legis- latures had their counterparts in the Ireland to which the laws belonged, and he does not hesitate to desig- nate certain portions of the Irish legal system ' statute- law.' In the present state of criticism on Irish docu- ments 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 dis- tinguished in primitive thought ; nor, again, is legis- lation 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 Lejres Bar- LECT. II. NATUEE OP ANCIENT LEGISLATION. 27 barorum, but in all probability the quantity was ex- tremely small. Thus, when a body of Brehon judg- ments 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 re- markable 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 affi- nity for legislation in the modern sense. The inno- vating 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 irre- sistibly. 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 28 THE DRUIDS, lect. n. Bociety which has hitherto occupied men's tiioughts more tlian 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 belong-ed altoo-ether to the old order of the M'orld. 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 Ave 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 Cresar'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 LECT. II. C^SAR S ACCOUNT OF CONTLVENTAL CELTS. 29 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 Ca3sar 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 socie- ties consisted substantially of three orders, two pri- vileged 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-Etat ; but the obser- vation is a good deal more ingenious than true. Wo are now able to compare Caesar's account of the Gauls with the evidence concerning a Celtic commu- nity 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,' aO OMISSIONS l.N ( .ESAR'S ACCOUNT. lkct. it. 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 mis- take, so far as there was error, I conceive to have been an effect of mental distance. It had the imper- fections of the view obtained by looking on the Gan- getic 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. Caesar's failure to note the natural divisions of the Celtic tribesmen, the families and septs or sub- Iribes, is to me particularly instructive. The theory of human equality is of Roman origin ; the com- minution of human society, and the unchecked com- petition 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 Ciesar's omissions seem to be those most natural in a Roman general who was also a great administrator and trained lawyer ; and they are un- doubtedlv those to which an EnHish 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 nnd not the mixed mul- LECT. n. Cesar's descriptiox of the druids. .si titude 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 Caesar's description of what may be called the lay portion of Celtic society. I shall after- wards 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, remark- able that, when he speaks of the Druids, his state- ments 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 re- ferred 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 82 Tllli DRUIDS AXD THE BREFIOXS. lect. n. 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 ac- count 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, U). There are some strong and even startling points of correspondence between the fimctions of the Druids, as described by Caesar, and the office of the Brehon, as suggested by the law-tracts. The exten- sive 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 extendinjr over LECT. II. IRISH PREFACES TO TRACTS. 33 twelve years. All literature, inclndiiig even law, seems to have been identified with poetry. The chief Druid of Cassar 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 Eno-lish, as affordino; 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 expe- dients. 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 dis- quisitions on all the matters about which Ctesar declares the Druids to have been specially fond of arguing. It in one place sets forth how God made tlie heaven and the earth, but the account is not the least like the Mosaic account. It goes off, as Cafisar's Druids did, into a number of extraordinary statements, D •M COSMOI.onY OF SK.N'CFIUS .AfOR. htXT. TI. ^de sideribus atque eorum motu,' ' de mundiac terrarum inngnitudine.'' 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 class 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 iii the Middle Ages, but much of it reads like a fragment of a heathen cosmology, to which a later revision has given a fiiint Christian colouring. The same Preface contains also some curious speculations on the ety- mology 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 LECT. u. DRUIDS AXD BREHOXS. 86 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 beheve 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 Achseans of Homer, the Chief has ceased to be priest, but he is still judge; and his judicial sentences, 6€ixL