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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