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lect02-第7章

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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 certainty been nothing like an intimate






interpenetration 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 Caesar 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。 Caesar 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 req
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