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so far as the legal rules exactly coincided with the rules of the






new Christian code; the 'law of the letter。' Now; the want of a






sanction is occasionally one of the great difficulties in






understanding the Brehon law。 Suppose a man disobeyed the rule or






resisted its application; what would happen? The learned writer






of one of the modern prefaces prefixed to the Third Volume of the






Ancient Laws contents that the administration of the Brehon






system consisted in references to arbitration; and I certainly






think myself that; so far as the system is known; it points to






that conclusion。 The one object of the Brehons was to force






disputants to refer their quarrels to a Brehon; or to some person






in authority advised by a Brehon; and thus a vast deal of the law






tends to run into the Law of Distress; which declares the various






methods by which a man can be compelled through seizure of his






property to consent to an arbitration。 But then one cannot help






perpetually feeling that the compulsion is weak as compared with






the stringency of the process of modern Courts of Justice; and






besides that; why should not the man attempted to be distrained






upon constantly resist with success? Doubtless the law provides






penalties for resistance; but where is the ultimate sanction?






Caesar supplies an answer; which must; I think; contain a portion






of the truth。 He says that if a Celt of Gaul refused to abide by






a Druid judgment he was excommunicated: which was esteemed the






heaviest of penalties。 Another example which I can give you of






the want or weakness of the sanction in the Brehon law is a very






remarkable one; and I shall recur to it hereafter。 If you have a






legal claim against a man of a certain rank and you are desirous






of compelling him to discharge it; the Senchus Mor tells you to






'fast upon him。' 'Notice'; it says; 'precedes distress in the






case of the inferior grades; except it be by persons of






distinction or upon persons of distinction; fasting precedes






distress in their case' ('Ancient Laws of Ireland;' vol。 i; p。






113)。 The institution is unquestionably identical with one widely






diffused throughout the East; which is called by the Hindoos






'sitting dharna'。 It consists in sitting at your debtor's door






and starving yourself till he pays。 From the English point of






view the practice has always been considered barbarous and






immoral; and the Indian Penal Code expressly forbids it。 It






suggests; however; the question  what would follow if the






creditor simply allowed the debtor to starve? Undoubtedly the






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。



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