按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
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。 Caesar 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 condition 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 elected； 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 allowed 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