第 3 节
作者:无组织      更新:2021-02-17 22:57      字数:9321
  among the Celts of the Continent the class called the Druids
  produced among the Celts of Ireland the class known to us as the
  Brehons; nor does it seem to me difficult to connect the results
  of these tendencies with other known phenomena of ancient
  society。 There is much reason to believe that the Tribe…Chief; or
  King; whom the earliest Aryan records show us standing by the
  side of the Popular Assembly; was priest and judge as well as
  captain of the host。 The later Aryan history shows us this
  blended authority distributing or 'differentiating' itself; and
  passing either to the Assembly or to a new class of depositaries。
  Among the Achaeans of Homer; the Chief has ceased to be priest;
  but he is still judge; and his judicial sentences; Themiotes; or
  'dooms'; however much they may be drawn in reality from
  pre…exiting usage; are believed to be dictated to him from on
  high。 Among the Celts both of Gaul and of Ireland he has ceased
  to be priest; and also probably to be judge; although some
  measure of judicial authority may still belong to his office as a
  'survival'。 The order of change thus departs from that followed
  in Athenian history; where the institution of kingship survived
  only in the name of the King Archon; who was a judicial
  functionary; and from that followed in Roman history; where the
  Rex Sacrificulus was a hierophant or priest。 The Popular
  Assembly; meanwhile; which virtually attracted to itself the
  whole civil and criminal jurisdiction of the Kings among the
  Athenians; and which at Rome engrossed the whole administration
  of criminal justice through the commissions it appointed; seems
  to lose all judicial authority among the Celts。 Perhaps I may be
  permitted thus to describe the change I conceive to have taken
  place among the Celts of Ireland。 Themis; who in Homer is the
  assessor of Zeus and the source of judicial inspiration to kings;
  has (so to speak) set up for herself。 Kings have delegated their
  authority to a merely human assessor; and we see by the story
  which begins the Senchus Mor that; even when a Saint is supposed
  to be present; the inspiration of which he is the source does not
  find expression through his lips; nor does it descend on the
  King; it descends on the professional judge。 When we obtain our
  last glimpse of the class which has received this inheritance
  from Chief or King  the Brehons; Judges; or Authors of
  Judgments  they have sunk to the lowest depth of misery and
  degradation through the English conquest。 At an earlier date they
  are seen divided into families or septs; the hereditary
  law…advisers of some princely or powerful house。 Hugh McEgan; who
  wrote the note 'in his own father's book' which I read in the
  last Lecture; was one of the hereditary Brehons attached to the
  McCarthys。 But; in the earliest Irish traditions; the functions
  of the Brehon and the King run very much into one another。 The
  most ancient Brehons are described as of royal blood; sometimes
  as king's sons。 The Tanaists of the great Irish Chiefs; the
  successors elected out of the kindred of each Chief to come after
  him on his death; are said to have occasionally officiated as
  judges; and one of the law…tracts; still unpublished; contains
  the express rule that it is lawful for a king; though himself a
  judge; to have a judge in his place。 Cormac MacAirt; one of the
  traditional authors of the Book of Aicill; was a King in
  retirement。 Apocryphal as his story may be; it is one of much
  significance to the student of ancient institutions。 He had been
  accidently blinded of one eye;and is said to have been deposed
  from his regal office or chieftiancy on account of the blemish。
  Coirpri; his son and successor (says the Book of Aicill); 'in
  every difficult case of judgment that came to him used to go and
  ask his father about it; and his father used to say to him; 〃My
  son; that thou mayest know〃'  and then proceeded to lay down
  the law。
  If; without committing ourselves to any specific theory
  concerning the exact extent of the correspondence; we can assume
  that there was substantial identity between the literary class
  which produced the law…tracts and the literary order attributed
  to the Celtic races by Caesar; we not only do something to
  establish an historical conclusion perhaps more curious than
  important; but we remove some serious difficulties in the
  interpretation of the interesting and instructive body of archaic
  law now before us。 The difference between the Druids and their
  successors; the Brehons; would in that case be mainly this: the
  Brehons would be no longer priests。 All sacerdotal or religious
  authority must have passed; on the conversion of the Irish Celts;
  to the 'tribes of the saints'  to the missionary monastic
  societies founded at all points of the island  and to that
  multitude of bishops dependent on them; whom it is so difficult
  to reconcile with any of our preconceived ideas as to ancient
  ecclesiastical organisation。 The consequence would be that the
  religious sanctions of the ancient laws; the supernatural
  penalties threatened on their violation; would disappear; except
  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