Early History Institutions

The word 'law' has come down to us in close association with two notions, the notion of order and the notion of force. The association is of considerable antiquity and is disclosed by a considerable variety of languages, and the problem has repeatedly suggested itself, which of the two notions thus linked together is entitled to precedence over the other, which of them is first in point of mental conception? The answer, before the Analytical Jurists wrote, would on the whole have been that 'law' before all things implied order. 'Law, in its most general and comprehensive sense, signifies a rule of action, and is applie...

The historical theories commonly received among English lawyers have done so much harm not only to the study of law but to the study of history, that an account of the origin and growth of our legal system, founded on the examination of new materials and the re-examination of old ones, is perhaps the most urgently needed of all additions to English knowledge. But next to a new history of law, what we most require is a new philosophy of law. If our country ever gives birth to such a philosophy, we shall probably owe it to two advantages. The first of them is our possession of a legal system which for many purposes may be considered indigen...

The subject on which I am about to speak may perhaps convey one lesson. It may serve as a caution against the lax employment of the words 'ancient' and 'modern,' There are few persons, I suppose, who, approaching the Settled Property of Married Women without previous knowledge of its history, would not pronounce it one of the most modern of subjects. It has given rise to vehement controversy in our own day; some of the questions which it suggests are not yet solved; and there are many here, I dare say, who believe that they remember the first dawn of sound ideas on these questions. Yet, as a matter of fact, the discussion ...

I pass from the early law of procedure in the roman and Teutonic societies to the corresponding branch of another. ancient legal system which has been only just revealed to us, and which, so far as its existence was suspected, was supposed until lately to be separated by peculiarly sharp distinctions from all Germanic bodies of usage. Rather more than half of the Senchus Mor is taken up with the Law of Distress. The Senchus Mor, as I told you, pretends to be a Code of Irish law, and indeed to be that very Code which was prepared under the influence of St. Patrick upon the introduction of Christianity into Ireland. I added that in the pres...

I stated on a former occasion (Lecture 1. p. 8) that the branch of law which we now call the Law of Distress occupies the greatest part of the largest Brehon law-tract, the Senchus Mor. The importance thus given to Distress is a fact of much significance, and in this and the following Lecture I propose to discuss the questions it raises and the conclusions it suggests. The value of the precious discovery made by Niebuhr, when he disinterred in 1816 the manuscript of Gaius, does not solely arise from the new light which was at once thrown on the beginnings of the legal system which is the mountain of the greatest part of civilised jurispru...

Mr Tylor has justly observed that the true lesson of the new science of Comparative Mythology is the barrenness in primitive times of the faculty which we most associate with mental fertility, the Imagination. Comparative Jurisprudence, as might be expected from the natural stability of law and custom, yet more strongly suggests the same inference, and points to the fewness of ideas and the slowness of additions to the mental stock as among the most general characteristics of mankind in its infancy. The fact that the generation of new ideas does not proceed in all states of society as rapidly as in that to which we belong, is only not fam...

'Before the establishment of the (English) common law, all the possessions within the Irish territories ran either in course of Tanistry or in course of Gavelkind. Every Signory or Chiefry with the portion of land which passed with it went without partition to the Tanist, who always came in by election or with the strong hand, and not by descent; but all inferior tenanties were partible between males in Gavelkind.' (Sir J. Davis' Reports, 'Le Cas de Gavelkind,' Hil. 3, Jac. 1, before all the Judges.) This passage occurs in one of the famous cases in which the Anglo-Irish Judges affirmed the illegality of the native Iri...

The Brehon law-tracts strongly suggest that, among the things which we in modern times have most forgotten, is the importance of horned cattle, not merely in the infancy of society, but at a period when it had made some considerable advance towards maturity It is scarcely possible to turn over a page without finding some allusion to beeves, to bulls, cows, heifers, and calves. Horses appear, sheep, swine, and dogs; and bees, the producers of the greatest of primitive luxuries, have a place assigned to them as an article of property which has something corresponding to it in old Roman law. But the animals much the most frequently mentioned...

Nothing seems to me to have been more clearly shown by recent researches than the necessity of keeping apart the Tribe and the Tribal Chief as distinct sources of positive institutions. The lines of descent are constantly entwined, but each of them is found to run up in the end to an independent origin. If I were to apply this assertion to political history, I should be only repeating much of what has been said by Mr Freeman in his excellent work on 'Comparative Politics.' Confining myself to the history of private institutions, let me observe that the distinction which I have drawn should be carefully borne in mind by those who d...

It has been very commonly believed that, before the agrarian measures of James the First, Ireland was one of the countries in which private property in land was invested with least sacredness, and in which forms of ownership generally considered as barbarous most extensively prevailed. Spenser and Davis certainly suggest this opinion, and several modern writers have adopted it. The Brehon law-tracts prove, however, that it can only be received with considerable qualification and modification, and they show that private property, and especially private property in land, had long been known in Ireland at the epoch to which they belong, havi...