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the debt has been satisfied。 On the other hand; several features


of the Irish system; which are wholly absent from the Continental


Teutonic procedure; or very faintly marked in it; belong


conspicuously to the English law。 Among these may be placed the


impounding; and the 'taking in withernam;' but the great。


Resemblance of all; and the common point of dissimilarity from


the most ancient of the Leges Barbarorum; lies in the fact that


the Irish procedure; like the English; requires neither


assistance nor permission from any Court of Justice。 In all the


Teutonic bodies of custom except the English and the Lombardic;


even when the greatest latitude of seizure is allowed to


litigants out of Court; some。 judicial person or body must be


applied to before they proceed to extremities。 With us; however;


the entire seizure is completed before authority is called in;


and the Irish law has exactly the same peculiarity。 Not only so;


but the Irish law corresponds to the English law of Distress in a


very advanced stage of development。 It does not employ the


seizure of cattle merely as a method of extorting satisfaction。


It provides; as you have seen; for their forfeiture in discharge


of the Demand for which they were taken; and thus is


distinguished by an improvement which was only added to the


English law by statute after the lapse of several centuries。


    The true difficulty in estimating the place of this Irish


procedure in the historical development of law arises from doubts


as to the part really played by the legal proceeding in which it


terminated。 The English process of distress; wherever it was felt


to be unjust; led up to; and ended in; the action of replevin;


and the court; which ultimately tried the action; practically


acquired its jurisdiction through the interposition of the


Sheriff in restoring the cattle upon security given。 No such


interference with a high hand as that of the Sheriff appears to


be contemplated by the Irish law。 but the Brehon lawyer who ought


properly to accompany the distrainor is expressly stated by the


Senchus Mor to aid him 'until the decision of a Court。' ('Ancient


Laws of Ireland;' i。 85。) What was the proceeding thus referred


to? What authority had the Irish Courts at any time at which the


Brehon law was held in respect? What were these Courts? To what


extent did they command the public force of the sovereign State?


was there any sovereign power at any time established in any part


of Ireland which could give operative jurisdiction to Courts of


Justice and operative force to the law? All these questions  of


which the last are in truth the great problems of ancient Irish


history  must in some degree be answered before we can have


anything; like a confident opinion on the actual working of the


Law of Distress set forth at such length in the Senchus Mor。


    The learned Editors of the various Introductions prefixed to


the official publications of Ancient Irish Law are plainly of


opinion that such jurisdiction as any Irish Courts possessed was;


to use the technical phrase; voluntary。 The Law of Distress; in


this view; was clearly enough conceived by the Brehon lawyer; but


it depended for the practical obedience which it obtained on the


aid of public opinion and of popular respect for a professional


Caste。 Its object was to force disputants to submit to what was


rather an arbitration than an action; before a Brehon selected by


themselves; or at most before some recognised tribunal advised by


a Brehon。 At the same time; it would seem that there are ancient


Irish tracts or fragments of tracts in existence which describe


the ancient Irish as having had a most elaborate public


organisation; judicial as well as legislative。 Dr Sullivan; in


his Introduction; admits that the information which has come down


to us on these subjects is very fragmentary; and so obscure that


it will be impossible to give a satisfactory account of them


until the whole of the law…fragments in Irish MSS。 are published


or at least made accessible to scholars; but he nevertheless


believes in the historical reality of this organisation; and he


speaks (Introduction; pp。 cclii。 cclxii。) of the Irish Courts in


language of extremely modern tinge。 Enough is known of Irish


history to make it very difficult to understand when this


elaborate judicial system can have existed; but a place is found


for it by attributing it to a period not only before the


Anglo…Norman invasions of Ireland; but before the Viking descents


on the Irish coasts。 The safest course is certainly to reserve


one's opinion on the subject until the authorities for Dr


Sullivan's statements have been much more critically examined


than they have been; but I am bound to say that they are not so


inherently improbable; nor are Dr Sullivan's opinions so hard to


reconcile with the views of the Editors of the translations; as


persons unacquainted with legal history might suppose。 There are


analogies to many of the tribunals described among the


rudimentary institutions of several communities。 Such tribunals


might further be highly developed and yet their jurisdiction


might be only voluntary。 Sohm appears to me to have proved that


the Frankish Popular Courts did not execute their own decrees; if


the defendant had promised to submit to an award; the local


deputy of the King might be required to enforce it; but; if there


had been no such promise; the plaintiff was forced to petition


the King in person。 There is much reason in fact for thinking


that; in the earliest times and before the full development of


that kingly authority which has lent so much vigour to the arm of


the law in most Aryan communities; but which was virtually denied


to the Irish; Courts of Justice existed less for the purpose of


doing right universally than for the purpose of supplying an


alternative to the violent redress of wrong。 Even then if we


suppose that the Ireland which is said to have enjoyed an


elaborate judicial organization was greatly ruder and wilder than


Irish patriots would probably allow it to have been; there is no


such inconsistency between the prevalence of disorder and the


frequency of litigation as would make them exclude one another。


The Norse literature; which Mr Dasent has popularised among us;


shows that perpetual fighting and perpetual litigation may go on


side by side; and that a highly technical procedure may be


scrupulously followed at a time when homicide is an everyday


occurrence。 The fact seems to be that contention in Court takes


the place of contention in arms; but only gradually takes its


place; and it is a tenable theory that many of the strange


peculiarities of ancient law; the technical snares; traps; and


pitfalls with which it abounds; really represent and carry on the


feints; stratagems; and ambuscades of actual armed strife between


man and man; between tribe and tribe。 Even in our own day; when a


wild province is annexed to the British Indian Empire; there is a


most curious and instructive rush of suitors to the Courts which


are immediately established。 The arm of the law summarily


suppresses violence; and the men who can no longer fight go to


law instead; in numbers which sometimes make Indian officials


believe that there must be something maleficent in the law and


procedure which tempt men into Court who never saw a Court


before。 The simple explanation is that the same natural impulse


is gratified in a new way; hasty appeals to a judge succeed


hurried quarrels; and hereditary law…suits take the place of


ancestral blood…feuds。 If the transition from one state of


society to another in modern India were not sudden but gradual


and slow; as it universally was in the old Aryan world; we should



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