lect02-第7章
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a legal rule; 'So it has been laid down by the learned;' or used
the still more impressive formula; 'It is thus written。'
While; however; I fully believe that the Brehon law possessed
great authority; I think also that it was in all probability
irregularly and intermittently enforced; and that partial and
local departures from it were common all over ancient Ireland。
Anybody who interested himself in the question of its practical
application would have to encounter the very problems which are
suggested by the Brahminical Hindoo law。 The student of this last
system; especially if he compares it with the infinity of local
usage practised in India; is constantly asking himself how far
was the law of the Brahmin jurists observed before the English
undertook to enforce it through their tribunals? The Editor of
the Third Volume of the Ancient Laws of Ireland has given a very
apposite example of a problem of the same kind (iii。 146); by
extracting from the Carew Papers the story of a famous dispute as
to the headship of the great irish house of O'Neill。 Con O'Neill;
its chief; had two sons; Matthew and Shane。 Matthew O'Neill was
heir to Con O'Neill's earldom of Tyrone; according to the
limitations of the patent。 Shane O'Neill urged on the English
Government that these limitations were void; because the King; in
granting the earldom; could not have been aware that Matthew
O'Neill was an adulterine bastard; having been in truth born of
the wife of a smith in Dundalk。 Shane O'Neill has been regarded
as the champion of purely Irish ideas (see Froude; 'English in
Ireland;' I。 43); but though the rule of legitimacy upon which he
insisted conforms to our notions; it is directly contrary to the
legal doctrine of the Book of Aicill; which in one of its most
surprising passages lays down formally the procedure by which the
natural father could bring into his family a son born under the
alleged circumstances of Matthew O'Neill; on paying compensation
to the putative parent。 Unless Shane O'Neill's apparent ignorance
of this method of legitimation was merely affected for the
purpose of blinding the English Government; it would seem to
follow that the Book of Aicill; though its authorship was
attributed to King Cormac; had not an universally recognised
authority。
I do not know that the omission of the English; when they had
once thoroughly conquered the country; to enforce the Brehon law
through the Courts which they established; has ever been reckoned
among the wrongs of Ireland。 But if they had done this。 they
would have effected the very change which at a much later period
they brought about in India; ignorantly; but with the very best
intentions。 They would have given immensely greater force and a
much larger sphere to a system of rules loosely and occasionally
administered before they armed them with a new authority。 Even as
it was; I cannot doubt that the English did much to perpetuate
the Brehon law in the shape in which we find it。 The Anglo…Norman
settlement on the east coast of Ireland acted like a running
sore; constantly Stating the Celtic regions beyond the Pale; and
deepening the confusion which prevailed there。 If the country had
been left to itself; one of the great Irish tribes would almost
certainly have conquered the rest。 All the legal ideas which;
little conscious as we are of their source; come to us from the
existence of a strong central government lending its vigour to
the arm of justice would have made their way into the Brehon law;
and the gap between the alleged civilisation of England and the
alleged barbarism of Ireland during much of their history; which
was in reality narrower than is commonly supposed; would have
almost wholly disappeared。
Before I close this chapter it is necessary to state that the
Brehon law has not been unaffected by the two main influences
which have made the modern law of Western Europe different from
the ancient; Christian morality and Roman jurisprudence。 It has
been modified by Roman juridical ideas in some degree; though it
would be hazardous to lay down with any attempt at precision in
what degree。 I have trustworthy information that; in the tracts
translated but not yet published; a certain number of Roman legal
maxims are cited; and one Rowan jurisconsult is mentioned by
name。 So far as the published tracts afford materials for an
opinion; I am inclined to think that the influence of the Roman
law has been very slight; and to attribute it not to study of the
writings of the Roman lawyers; but to contact with Churchmen
imbued more Or less with Roman legal notions。 We may be quite
sure that the Brehons were indebted to them for one conception
which is present in the tracts the conception of a Will; and
we may probably credit the Church with the comparatively advanced
development of another conception which we find here the
conception of a Contract。 The origin of the rules concerning
testamentary bequest which are sometimes found in Western bodies
of law otherwise archaic has been much considered of late years;
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 i