The manufacture of historical material; an elementary study in the sources of story

LIBRARY

UNIVERSITY OF CALIFORNIA
RIV£RSH)£

THE MANUFACTURE OF
HISTORICAL MATERIAL

THE MANUFACTURE

OF HISTORICAL

MATERIAL

Jin Elementary Study in the Sources of Story

BY

J. W. JEUDWINE, LLB. CAMB.

5 Inn, Barrister-at-Law. Author of '" The Ft
Centuries of British Story " and other works.

Of Lincoln's Inn, Barrister-at-Law. Author of '" The First Twelve

Two ideals float before the minds ot men in our own day.
The first ideal is the future of the human race in this
world ; the second the future ol the individual in another.
The first is the more perfect realisation of our own present
life; the second the abnegation of it. Both of them have
been and are powerful motives of action ; there are a few
in whom they have taken the place of all earthly interest.

LONDON
WILLIAMS AND NORGATE

14 HENRIETTA STREET, CO VENT GARDEN, W.C.
1916

•DAl

PREFACE

IN a former work, The First Twelve Centuries
of British Story, published in 1912, a narrative
sketch was attempted of the early history of
the British Islands as a whole, carrying the
story down to the date of the accession of
Henry II. in 1154. An introductory chapter
dealt with the records of the times for all
parts.

In that volume, a review of the social side
of history, the laws and customs and land
usages of the societies, was as far as possible
avoided, for many reasons, of which the most
urgent was that such a subject called for a
scrutiny of a different set of authorities from
those in use for narrative history, records
dealing with ancient custom and social life,
of which the part treating of the tribal and
pastoral societies of the West had been but
little touched, apart from antiquarian inquiry.

A great part of the subject-matter of this
book was originally intended, like the pre-
liminary chapter of the former book, to be
an introduction to a work in progress dealing
with feudal and communal societies.

But as the chapter grew under the hand,

vi HISTORICAL MATERIAL

the consideration of the successive phases of
historical research possessed so much interest
as a special subject in itself, and applied so
equally to all authorities for history, that it
seemed to be worth something better than
to be treated as a mere bibliography, and to
be fit for publication as a separate work.

This preliminary matter is touched upon
that it may be understood that, although I
have from time to time expressed strong
personal opinions in this book, no part of it
was written in view of any such opinions, or
with any other purpose than to put forward
the necessary processes through which all the
material has to pass before it is placed before
us as a history, and to impress the dangers
which meet us in handling it, and the care
which must be exercised in accepting con-
clusions. One cannot read through a great
mass of mediaeval literature without forming
some strong views. Where it has been
thought necessary to criticise others, I have
tried to pick out someone worth criticism,
and I hope that it has been done in a
reverent manner.

I have taken great pains in reading and re-
reading the authorities quoted, but the want
of knowledge of the ancient languages in
which they are embedded, is a serious draw-
back, and there is always great uncertainty
how far the translation, where there is one,
represents either the spirit or the letter of
the original.

PREFACE vii

In deference to the opinion of a very
learned friend who adjudged that my First
Twelve Centuries would have had greater
value if more frequent references had been
given to the authorities on which I relied,
many such references are given here. It is
doubtful whether this mass of reference is
of much value for the general reader. It is
never safe to use one without verifying it.
A reference may sometimes be only a parti-
cular instance in support of conclusions
reached by diffuse reading which cannot be
more effectually put before the reader ; some-
times it may be misleading as giving authority
to a single instance not supported by others ;
sometimes it may not bear out the text ; it
is not infrequent not to find it at all. But
it saves a reader the trouble of inquiring
or thinking for himself, or of exercising any
mental responsibility, and it may have this
further advantage, that in looking up the
reference the reader may be led further afield
and may find something of value.

I have a sincere hope that this book may
be of interest to persons engaged, whether as
teachers or pupils, in historical studies. But
the audience to whom it is especially addressed
is that large class of professional and business
men who seldom have any opportunity of
reviewing or correcting their early impressions
of historical facts, though they may be helping
to make history themselves on the strength
of what they have been taught at school.

viii HISTORICAL MATERIAL

Brought up on seventeenth-century interpola-
tions of fiction, such as Alfred and the cakes,
and rarely getting further in English history
than Henry's six wives and Charles's head,
it must come as somewhat of a shock to find
the men of Connaught and Moray and Brecon
fighting side by side with the " Anglo-Saxon "
in defence of a common country.

It is impossible to believe that, for an
Imperial people possessing territory all over
the world, lands which have been colonised
and occupied and have to be defended by
settlers from every part of these islands, any
history of the past can be satisfying which
treats only of one part, and that often in the
spirit of aggressive bitterness towards the
people of another. I would urge as of the
utmost importance that, whether we affect a
true judgment in past events or view their
bearing on our own conditions, we should
regard them from the standpoint of habitants
or translated saints of the whole islands, and
not as jealous advocates of any one locality.

I gratefully acknowledge help from several
kind friends.

J. W. JEUDWINE

July 28, 1916.

CONTENTS

PAGE

PREFACE • * v

LIST OF BOOKS AND DOCUMENTS QUOTED

OR MENTIONED . xiii

PART I

CHAPTER I. INTRODUCTORY. THE FIRST

WRITTEN RECORD . . ... 1

The Value of Language, 3.

CHAPTER II. ORAL TRADITION .... 7

The Sources of Story, 7 ; News Ancient and
Modern, 8 ; Society based on Kinship, 10 ; The
Records of Custom and the Records of Events, 12.

CHAPTER III. THE POET-LAWYER HISTORIAN 13

The Poet Historian, 13 ; In Scandinavia, 15 ; In
England and Wales, 16 ; In France, 17 ; In Ire-
land, 19.

CHAPTER IV. THE POET-LAWYER HISTORIAN 23

The Poet Lawyer, 23 ; The Use of Technical Lan-
guage, 25 ; Changes of Language, 28 ; The Use of
Catchwords, 30 ; Verse in the Records of Law, 31 ;
Saxon and other Tribal Law contrasted, 33.

x HISTORICAL MATERIAL

PAGE

CHAPTER V. THE BREHON LAW OF IRELAND 38

The Traditional Origin of the Writing of Irish
Customary Law, 41 ; A Theory of the Origin of
the Unwritten Law, 44.

CHAPTER VI. IRELAND AND IRISH LAW FROM

THE ANGEVINS TO THE STUARTS . 51

The Conflict between English and Irish Law, 55.

CHAPTER VII. THE POET - LAWYER HIS-
TORIAN IN PROSPERITY AND IN DECAY 60

In Ireland, 60 ; An Aristocratic Profession, 64 ;
The Divisions of the Law, 65 ; The Intellectual
Development of Law, 67.

CHAPTER VIII. THE POET - LAWYER HIS-
TORIAN IN PROSPERITY AND IN DECAY 68

In Wales, 68 ; In the Isle of Man, 71 ; Unwritten
Law in the Orkneys and Shetlands, 73 ; Procedure
in Communal Cases, 77.

CHAPTER IX. FOREIGN AND NATIVE NOTICES

OF THE BREHON . . . . . .79

The Reasons for dwelling on Oral Tradition, 87.

PART II

CHAPTER X. THE YEAR BOOKS .... 95
Litigation over Technical Forms, 99.

CHAPTER XI. THE YEAR BOOKS . . . 105

The Contrast of Speed, 105 ; The Clergy as Liti-
gants, 108.

CONTENTS xi

PAGB

CHAPTER XII. THE YEAR BOOKS . . .114

Women as Litigants, 114 ; The Variety of Matters
illustrated, 116.

CHAPTER XIII. THE YEAR BOOKS . . .121

The Editors' Prefaces, 121 ; The Actors in the
Year Books Real Characters, 122 ; Ley est Resoun,
125 ; The Reporter, 127 ; Law and Violence, 130.

PART III

CHAPTER XIV. REDUCTION INTO WRITING . 133

What it means, 134; The Original MS., 136;
Copying and Editing MSS., 140 ; The Writing of
Charters, 140 ; The Writing of Chronicles, 143.

CHAPTER XV. THE LITERARY OUTBURST OF

THE TWELFTH CENTURY . . .145

The Archdeacon, 148.

CHAPTER XVI. THE INFLUENCE OF THE

MONASTIC HISTORIANS . . . .152

Their Influence on their own Age, 152 ; Their
Influence on our Age, 153 ; Walter of Coventry
and Bishop Stubbs, 154.

CHAPTER XVII. THE INFLUENCE OF THE

MONASTIC HISTORIANS . . . . 160

Matthew Paris and Mr J. R. Green, 160 ; School
Histories, 162 ; Mr M'Kechnie's Magna Charta,
163 ; The 111 Effects of these Methods, 164.

CHAPTER XVIII. OTHER REDUCTION INTO

WRITING .... . . .167

The Welsh Records, 167 ; The Absence of 111
Words, 169; The Difference of Language, 172;
The Irish Annals, 173 ; The Four Masters, 177.

xii HISTORICAL MATERIAL

PAOK

CHAPTER XIX. THE SCANDINAVIAN SAGAS . 182

The Anglo-Saxon, 182 ; The Extent of the Scandi-
navian Settlement, 187 ; The Conflict with Feudal-
ism, 189 ; The Icelandic Sagas, 191 ; The Position
of Women, 194 ; The Re-editing of the Sagas, 196.

CHAPTER XX. MANUSCRIPTS OF LAWS . .198

The Writing down of Custom, 199 ; Illustrations
of the Blood Feud, 202 ; The Regiam Majestatem
and Glanville, 204 ; The Scandinavian and Norman
Laws, 206.

CHAPTER XXI. THE DATE OF THE ANCIENT

LAWS OF IRELAND 209

Some Points which bear on the Question of Age,
214 ; The Influence of the Mosaic Laws, 218 ; The
Crithgabhlach and the Word Saxon, 218.

PART IV

CHAPTER XXII. THE USE OF THE MATERIAL 225

The Archivist, 225 ; Abbreviations, 229 ; Transla-
tion, 233 ; Minor Difficulties, 238.

CHAPTER XXIII. MODERN USE . . . . 240

The Seventeenth-Century Antiquarians, 240 ; The
Modern Historian, 242.

CHAPTER XXIV. CONCLUSION. A FEW OBSER-
VATIONS AND SUGGESTIONS . . .249

INDEX 261

LIST OF DOCUMENTS xiii

LIST OF DOCUMENTS QUOTED OR
MENTIONED IN THIS VOLUME

( The italics represent a title shortened in citation. The numbers
are the pages of reference.}

ACTS PAUL. SC. Vol. I. of THE ACTS OF PARLIA-
MENT OF SCOTLAND, containing the laws of the
Brets and Scots, the Regiam Majestatem, the laws of
David I., William the Lion, Alexander II. 202, 203.

ADAM SMITH'S Wealth of Nations, 87.

THORPE. THE ANCIENT LAWS AND INSTITUTES
OF ENGLAND, edited by Benjamin Thorpe. A
collection of Saxon and Norman laws, for the most
part tariffs of compensation for injury. They include
many ecclesiastical regulations. Those quoted are the
laws of Ethelbert, Alfred, Edward the Confessor, the
Leges Henrici Primi, and the forms of oaths used.
32-35, 201, 204.

A.L. IREL. ANCIENT LAWS OF IRELAND, or
Brehon Laws, published by Commissioners. 6 vols.
Vol. I. deals with the law relating to distress. Vol. II.,
with the same and with the law of fosterage and the
social relationship which governed contracts, the
law attending mortgages of cattle by the chief to
the men of the community, etc., and the law of
husband and wife. Vol. III., the law of compensa-
tion for injury, a mass of law relating to contract,
alienation of property, and freedom to contract. The
two first volumes and part of the third form the
Senchus Mor. Part of the third is the Book of
Aicill. Vol. IV. contains a variety of matter relating
to bees, to common cultivation of land, boundaries,
valuing land, etc., and a tract, the Crithgabhlach,
which describes the different grades of society and
their rights. Vol. V. contains several tracts on
miscellaneous matters. Vol. VI. is a glossary.

Vol. I., 22, 35, 43, 78, 185-6, 209, 214, 215, 216;

xiv HISTORICAL MATERIAL

Vol. II., 31, 32, 46, 47, 48, 64, 65, 66, 70, 78,
182, 195, 209, 215, 235 ; Vol. III., 22, 26, 31, 32,
46, 65, 66, 67, 78, 80, 185-6, 200, 209, 213, 214,
215, 216; Vol. IV., 19, 32, 63, 66, 67, 185, 186,
211, 212, 213, 215, 217, 218-19; Vol. V., 22, 62,
65, 182, 202; Vol. VI., 236.

A.L.W. ANCIENT LAWS OF WALES, edited by
Aneurin Owen, which contain three similar collections
for Venedotia or Gwynned (N. Wales) and Dimetia or
Dyved, and Gwent (kingdoms of S. Wales) ; also a
collection of various laws called by the editor Anoma-
lous or Welsh Laws. They include much law relating
to the use of land, marriage, and inheritance.

Ven., 69, 70, 71, 181, 186; Dim., 17, 69, 70, 202;
Gwent, 17, 77 ; Anom., 17, 32, 69, 70.

Annals of BERMONDSEY (R.S. No. 36, vol. iii.), 162.

Annals of CLONMACNOIS, only extant in a seventeenth-
century translation by Mageoghagan. Clonmacnois
was a famous monastery on the Shannon, in King's
County. (As Clonmacnois is of no value for English
constitutional history, it will not be found in the
larger English Atlases such as the Royal Atlas. But
it is in the German Hand Atlases of Stieler and
Spruner.) 80, 136, 162, 178, 222.

Annals of KILRONAN, used by the Four Masters. By
some supposed to be the equivalent of the Annals of
Loch Ce. 175, 178.

Annals of LOCH CE (R.S. No. 54), translated by W. M.
Hennessy. Loch C6 is situated between Boyle
and Carrick on Shannon, in the extreme north of
Co. Roscommon, in Connaught. 162, 170, 175, 176,
178, 179, 180, 222.

Annals of ULSTER, 431-1540, 4 vols., translated by W. M.
Hennessy and B. McCarthy, 81, 170, 178, 222.

LIST OF DOCUMENTS xv

ASSER. A life of Alfred in Latin, taken to some extent
from the Saxon Chronicle, written by Asser, a Welsh-
man, bishop of Exeter. It was used as a stock
authority by later writers. It has been much inter-
polated. 147.

The ATHEN^UM for Jan. and Feb. 1914, 223.

The BAMFF CHARTERS of early date, edited by Sir
J. H. Ramsay, 188, 238.

The BATTLE PSALTER or Cathach, 137.

BEDE. The Historia Ecclesiastica of the Venerable
Bede, written at Jarrow on the Tyne, in Durham, at
the close of the seventh century, our earliest
authority for England after Caesar. The first edition
in England was issued by Abraham Whelock at
Cambridge in 1643. 147, 170, 183.

M. BEDIER. Les Legendes epiques : Recherches de for-
mation de Chansons de geste, 197.

ST BERNARD. De Consideratione. Works by Mabillon,
37.

The Book of AICILL. A very ancient tract contained in
vol. iii. of A.L. Irel., 62, 209, 213.

The Book of CONQUESTS, 179.
The Book of DURROW, 136.
The Book of KELLS, 137, 170.
The Book of LEINSTER, 19.

The Book of RIGHTS, Leabhar na-G-Ceart, translated
and edited by Dr O'Donovan, 52, 219.

BOROUGH CUSTOMALS, 2 vols., edited by Mary
Bateson (Selden Soc.), 248.

BRUT Y TWYSOGION (R.S. No. 17). A Chronicle of
the Princes of Wales, compiled by a twelfth-century
chronicler, Caradoc of Llancarvan (d. 1 147). It is
founded on the Annales Cambriae, the stock authority
which corresponds for Wales to the Saxon Chronicle
for England. 167,

xvi HISTORICAL MATERIAL

Edmund BURKE. Letter to General Vallancey, 1783, 19.

BURTON'S History of Scotland, 203.

CAMDEN'S Britannia, 81.

The Chronicle of BARN WELL, 157.

The Chronicle of BENEDICT OF PETERBORO (R.S.
No. 49), 151, 154, 156.

The Chronicle of JOHN BROMPTON (fl. 1436), abbot of
Jervaux. It is not known who wrote the Chronicle
which goes by his name. Printed by Twysden in his
Scriptores Decem in 1652. 252.

The Chronicle of HENRY OF HUNTINGDON, 148,
156.

The Chronicle of MATTHEW OF WESTMINSTER (R.S.
No. 95). Fl. 14th century. 158-60.

The Chronicle of RALPH NIGER (Mon. Germ. Hist.
Ser., No. 27), 164.

The Rhyming Chronicle of ROBERT OF GLOUCESTER
(R.S. No. 86), 19.

CHRONICON SCOTORUM. One of the Irish Annals
(R.S. No. 46), translated by W. M. Hennessy, 1 78.

CLOUSTON. The Records of the Earldom of Orkney,
edited by J. Storer Clouston, 74. 76, 77, 247.

The INSTITUTES of Sir Edward COKE, 85.

CORMAC'S GLOSSARY. A work supposed to have been
written by Cormac McCullenan, who died in 907,
translated, etc., by Dr O' Donovan, edited by Whitley
Stokes, 211.

The CRITHGABHLACH. A treatise in A.L. Ircl.,
vol. iv. 218 el seq.

CUR DEUS HOMO, by St Anselm (Williams & Norgate,
1863). A discussion of the question "qua scilicet
ratione vel necessitate Deus homo factus sit, et
morte sua . . . mundo vitam reddiderat: cum hoc
aut per aliam personam sive angelicam sive humanam

LIST OF DOCUMENTS xvii

aut sola voluntate facere potuerit. De qua qua'stione,"
continues Anselm, " non solum literati, sed etiam il-
literati multi quaerunt et rationem ejus desiderant.''
He explains in his preface that he has been obliged
unduly to hurry the work, because before he had
finished it the irresponsible copyists "me nesciente
sibi transcribebant/' 253.

DANTE'S Inferno, 18, 194.

M. D'ARBOIS DE JUBAINVILLE. Resume" d'un cours
de droit irlandais, par, 209-10.

DAVIS1 DISCOVERY. A discovery of the true cause
why Ireland was never brought under obedience of
the Crown of England, by Sir John Davis, Attorney
General and Speaker of the House of Commons in
Ireland, published in 1612, 85 et seq.

DAVIS' LETTERS to the Earl of Salisbury, 1605, 86.
DAVIS' REPORTS in Ireland, 90-92, 96, 196.

DIALOGUS. The Dialogus de Scaccario, an account of
the English Exchequer in the reign of Henry II.,
supposed to have been written by Richard FitzNigel,
afterwards bishop of London (transl. 1758 by a
gentleman of the Inner Temple), 119-

DOCUMENTS ILLUSTRATIVE OF ENGLISH
HISTORY in the thirteenth and fourteenth centuries
from the Records of the Dept. of the Queen's Re-
membrancer of the Exchequer, edited by Sir Henry
Cole (Record Comm.), 231-2.

DOMESDA Y. The Domesday Survey of 1085-6, 1 19.

ENGLAND UNDER THE ANGEVIN KINGS, by
K. Norgate, 248.

FEARNE on Contingent Remainders, 212.
FITZHERBERT'S Abridgement, 212.

FLORENCE. The Chronicles of Florence of Worcester.
According to a continuator he died in 1118. Nothing
else is known of him. His Chronicle is said to a

b

xviii HISTORICAL MATERIAL

great extent to be based on the Chronicle of Marianus
Scotus (9.0.), who died some thirty years before him,
and he takes material from Bede and Asser and the
Saxon Chronicle. His work became itself a stock
authority on which the later historians enlarged. 156.

FORDUN. Fordun, who is supposed to have been a
chantry priest in the cathedral of Aberdeen, began
the Scotichronicon, continued by Bower, edited by
W. F. Skene. Nothing more is known of him. 166.

THE FOREST OF DEAN in its Relations with the
Crown in the Twelfth and Thirteenth Centuries, by
Margaret Lee Bazeley. Trans, of the Gloucester and
Bristol Archaeol. Soc., 1910, vol. xxxiii. 248.

THE FOUR MASTERS. The Annals of Ireland by the
Four Masters to l6l6, edited by J. O'Donovan, 80,
175, 177, 178, 179,222,233.

Dr FRANCK BRIGHT'S History of England, 244.

GEOFFREY OF MONMOUTH. The author of Historia
Regum Britanniae. An account of Arthur and the
Welsh kings descended from Brutus, the descendant
of Venus and ^Eneas. It was the model for other
works of the same kind, and one of the stock authori-
ties for monastic history. He was archdeacon of
Llandaff. 148, 156, 167.

GIR ALDUS. Gerald Fitzgerald, called Cambrensis, the
Welshman. The historian of the first expedition to
Ireland, and of Archbishop Baldwin's Tour in Wales
for the Crusade. He was archdeacon of Brecknock
(Works in R.S. No. 21). 8, 37, 68, 148, 149, 150, 151,
152, 153, 158, 170, 221.

GLANVILLE, Ranulf, Henry II.'s Chief Justice. Treatise
on the Laws and Customs of England by, the first
English treatise on Law, 96, 204-5.

GOUDIE. G. Goudie's Antiquities of Shetland, 247.

LE GRAND COUTUMIER de Normandie, edited by
M. Tardif, 97.

LIST OF DOCUMENTS xix

J. R. GREEN'S HISTORY of the English People, 160-2.

THE HANSA TOWNS (Story of the Nations Series), by
Helen Zimmern, 248.

HECTOR BOECE. The Buik of the Chronicles of
Scotland, by Hector Boethius, 1465-1536. He was
connected with Dundee. 166.

HOVEDEN. The Annals of Roger of Hoveden (R.S.
No. 51). Nothing is certainly known of the author.
He was probably a Yorkshireman and one of the
clerks of Henry II. 9, 154, 156, 175, 181.

HUNGRY AC A, a Saga in Orig. hi., 193.

IRELAND (Story of the Nations Series), by Emily
Lawless, 248.

A BRIEFE DESCRIPTION of, by Robert Payne,

1589, 81-2.

CALENDAR OF DOCUMENTS relating to,
quoted as C.D.I., 53, 6l, 180, 221-2.

CALENDAR OF PATENT AND CLOSE ROLLS
relating to, 236-7.

DAVIS' DISCOVERY, 85 et seq.
DAVIS' LETTER to the Earl of Salisbury, 86.
DAVIS' REPORTS in Ireland, 90-2, 96, 196.
History of, by John O'DRISCOLL, 243.

KEATING'S History of (Irish Text Society), 4
vols., 19.

O'FLAHERTY'S Ogygia, quoted as O'Flaherty's
History in Burke's Letter to General Vallancey,
19-

PHYSICAL GEOLOGY AND GEOGRAPHY of,
by Edward Hull, 252.

SHORT HISTORY of, to 1608, by P. W. Joyce, 246.

SPENSER'S VIEW of the State of, in 1597, 20,

21, 57, 58, 84, 241.
TOUR IN, in 1644, by M. La Boullaye le Gouz, 222.

xx HISTORICAL MATERIAL

IRELAND (continued)—

TRACTS RELATING TO (Irish Arehseol. Soc.,
vol. ii.), 84, 235.

UNDER THE NORMANS, by G. H. Orpen, 246.

ISLE OF MAN, BLUNDELL'S Account of (Manx Soc.
Publ.), 71.

CHALMERS' Account of, in 1646 (Manx Soc.
Publ.), 72.

HAINING'S Guide to, quoted in Train's History,

72.

PARR'S Abstract of the Laws of (Manx Soc.
Publ.), 72.

TRAIN'S History of, 72.

WALD RON'S Account of (Manx Soc. Publ.), 72.

JOCELYN. The Chronicle of Jocelin of Brakelonde (The
King's Classics, edited by Prof. Gollancz), 143, 195-6.

JOHNSTON. Orkney and Shetland Records (Viking
Soc., vol. i. p. xxii), edited by A. W. Johnston, 74,
76, 247.

JONES ON BAILMENTS, 212.

JUSSERAND. English Wayfaring Life in the Middle
Ages, 140.

KEBLE'S Reports, 212.

KEMBLE. Codex Diplomatics JEvi Saxonici, by J. M.
Kemble, 29, 30, 238.

KING JAMES I. and VI., Works of, 59-60.

LANDNAMABOC in Orig. Isl. The Land Register of

the First Settlers in Iceland, 195.
Laws of ALEXANDER II. Acts Parl Sc., 204.
ALFRED. Thorpe, 32, 33.

THE BRETS AND SCOTS. Acts Parl. Sc.,
202-3.

DAVID I. Acts Parl. Sc.} 203.

LIST OF DOCUMENTS xxi

Laws of EDWARD THE CONFESSOR. Thorpe, 201.
ETHELBERT. Thorpe, 34, 35, 201.
WILLIAM THE CONQUEROR. Thorpe, 201.

WILLIAM THE LION. Acts Parl Sc., 203,
204.

LEGES HENRICI PRIMI. Thorpe, 34, 204.

LE ROMAN DE ROU. A History of the Dukes of
Normandy and Account of the Norman Conquest by
Master Wace, Canon of Bayeux, 24.

LI ROMANS DE BRUT. A Norman French version of
the same story used by Geoffrey of Monmouth (which
very probably came from the trouveres normands), by
Master Wace, who probably composed it at the orders
of Henry II., 167.

LITTLETON'S Tenures, 211.

THE MABINOGION. Mediaeval Welsh Romances, trans-
lated by Lady Charlotte Guest, edited by Alfred
Nutt, 1910. There are a great many Irish romances
of similar character edited by different writers. 168,
172, 186.

MAGNA CHARTA, 88, 89, 119, 191, 241.

Mr M'KECHNIE on MAGNA CHARTA, 163-4.

SIR HENRY MAINE. Early Law and Custom, 11, 32,
66.

F. W. MAITLAND. Gloucester Pleas in 1221, 200.

Domesday and Beyond, 166, 201.

Introduction to the Mirror of Justice, 244.
SIR JOHN MANDEVILLE'S Travels, 151.

MANX SOC. PUBL. The Publications of the Manx
Society.

MARIANUS SCOTUS. Marianus Moelbrigte Scotus, or
the Irishman, born in the first third of the eleventh
century, was a pupil of Tighernach. He went as a

xxii HISTORICAL MATERIAL

young man to an Irish monastery at Cologne, and
lived for the rest of his life in towns on the Rhine.
He wrote a Chronicle from the Incarnation to his
own time, which was one of the sources from which
Florence and other chroniclers of England drew
material. It is not published in England, but may be
found in the German Monumenta of Pertz and the
French of Bouquet. 147, 156,

MATTHEW PARIS. Chronica Majora (R.S. No. 57), an
enlarged edition by Matthew Paris of Roger of Wend-
over's Flores Historiarum. Wendover was historio-
grapher of St Albans up to 1236, and Matthew Paris
from 1236 to 1259. 139, 152, 154, 159, 160-162, 164,
170.

The MIRROR OF JUSTICE. Introduction by F. W.
Maitland (Selden Soc.), 244, 253.

MONASTIC ANNALS OF TEVIOTDALE, edited by
Rev. James Morton, 132.

MOORE'S Irish Melodies, 223.

The NORTHMEN IN BRITAIN, by Eleanor Hull, 248.

NORTHUMBERLAND ASSIZE ROLLS (Surtees Soc.),

47.

ORIG. ISL. Origines Islandicae, a Collection of Records
relating to Iceland, including the remains of the
compilations of Are Frode (the descendant of Aude
" the deeply wealthy " from Ireland), such as Land-
namaboc, Libellus Islandorum, etc., and various sagas
quoted, Hungrvaca, Erbyggia Saga, etc.

O.S. The Orkneyinga Saga, including the Hakonar and
Magnus Sagas (R.S. No. 88), 74, 189.

G. H. ORPEN. Ireland under the Normans, 2 vols., 246.

The Song of Dermot and the Earl, edited by, 221,
246.

PALGRAVE'S ANCIENT CALENDARS. Ancient
Calendars and Inventories of the Treasury, by Sir F.
Palgrave, 234.

LIST OF DOCUMENTS xxiii

The PETITION OF RIGHT, 94-5.

PIPE ROLL of 9 John, 22.

PLATO'S Republic. Jowett's translation, 49, 50, 54.

A. F. POLLARD. The Reign of Henry VII., 246.

John POLLOCK. The Popish Plot, 246.

Sir Frederick POLLOCK and F. W. MAITLAND'S
History of English Law before the time of Edward
the First, 165, 184-6.

The PSALTER OF CASHEL. A Miscellany attributed
to Cormac McCullenan, king-bishop of Leinster, who
died in 907, 19.

Imagines Historiarum of RALPH DE DICETO, arch-
deacon, afterwards dean of St Paul's (R.S. No. 68),
148, 154.

The RECORDS OF SOMERSET QUARTER SES-
SIONS for 1907, 1908, 1912, edited by Rev. E. H.
Bates Harbin, 247.

RECORD REVELATIONS, by Sir J. T. Gilbert, 236,
237.

The REGIAM MAJESTATEM, a supposed ancient Code
of Scottish Law adapted from Glanville's Treatise. It
was edited by Sir John Skene. Acts Parl. Sc. 204-5.

R.S. The Chronicles and Memorials of Great Britain and
Ireland during the Middle Ages, published under the
direction of the Master of the Rolls, known as the
ROLLS SERIES.

ROLLS of Parl. of 15 Edw. III., 120.
ROLLS of Parl. of 11 Rich. II., 92.

EGIL SAGA. The Saga of Egil Skallagrimson, edited by
Rev. W. C. Green, 16.

ERBYGGI A SAGA in Orig. hi., 195.

xxiv HISTORICAL MATERIAL

HEIMSKRINGLA, the Sagas of the Norse kings, edited
by Samuel Laing, 4 vols., 16, 189.

MAGNUS SAGA in O.S., 198.

NIAL'S SAGA. The Saga of Burnt Nial, 26-27, 190,
191, 192, 194, 197.

SALIC LAWS, 42.

SANDARS ON WARRANTY, 212.

SAXON CHRON. The Saxon or Anglo-Saxon Chronicle.
The stock authority for England after Bede, first
edited by Whelock in the 17th century. 3, 9, 15, 16,
147, 169, 174, 183, 188, 241.

Early SCOTTISH CHARTERS to 1153, by Sir A. C.
Lawrie, 142.

SELD. SOC. The publications of the Selden Society.

The SENCHUS MOR. The very ancient law tracts in
vols. i., ii., and iii. of A.L. Irel., 31, 32, 50, 51, 209,
210, 211, 213, 215, 216.

SIMEON OF DURHAM'S History of the Kings. There
is nothing certainly known of him except that he was
connected with the cathedral at Durham, 9-

W. F. SKENE'S CELTIC SCOTLAND, 3 vols., 166.
SPENSER'S SONNETS, 21, 57, 58.

STATUTES OF KILKENNY, 1367. Statutes passed
under Lionel, Duke of Clarence, to " make a perpetual
separation and enmity between the English and Irish."
They were directed against all Irish customs, dress,
language, and laws, forbidding intermarriage, foster-
age, etc. 20, 90.

STATUTES. 36 Edw. III., c. 1 5, 98 ; 1 Hen. V., c. 7, 1 1 3 ;
5 Geo. IV., c. 83, 41 ; 34-35 Viet., c. 75, 41 ; 48-49
Viet., c. 75, 41.

STATUTE OF LABOURERS, 1 19.
STATUTE OF MERTON, 119.

LIST OF DOCUMENTS ixv

STATUTE OF WESTMINSTER THE SECOND, 119-
STEPHEN'S Blackstone, 212.
TACITUS, Germania, 237.

TIGHERNACH. The Annals of Tighernach O'Brien,
abbot of Clonmacnois, who died 1088, the stock
authority for Ireland and Western Scotland, edited
by Whitley Stokes. Revue Celtique, vols. xvi., xvii.,
xviii. 147, 170, 175, 177.

T.A.C.N. Le Tres Ancien Coutumier de Normandie, a
collection of very ancient Norman law, edited by
M. Tardif, 97, 118, 1 91, 200, 204, 206-8.

Prof. VINOGRADOFF. On the Growth of the Manor,
116.

Villeinage in England, 1 1 6.

English Society in the Eleventh Century, 248.

Roman Law in Mediaeval Times, 43.

The Memorials of WALTER OF COVENTRY, with the
Prefaces by the Rt. Rev. Bishop Stubbs (R.S. No. 58),
63, 154-60, 175, 241, 245.

WALTER MAPES. De Nugis Curialium. An account
of Court life under Henry II., enlivened with much
legend. Mapes or Map was a half- Welsh archdeacon
of Oxford, one of the clerks and business men of
Henry II., occasionally a justice in eyre. 148.

WENDOVER. The Flores Historiarum of Roger of
Wendover, historiographer of St Albans up to 1236
(R.S. No. 95), 139, 154, 160.

The History of WILLIAM OF MALMESBURY (R.S.
No. 90), 9, 63, 144, 149, 150, 170.

The History of WILLIAM OF NEWBURGH (R.S.,
No. 82), 154, 175.

WYCLIFFE. Gospel of St Matthew, 125-6.

xxvi HISTORICAL MATERIAL

THOMAS WYKES, 1258-93. Annales Monastici (R.S.
No. 36, vol. iv.), 158, 159.

THE YEAR BOOKS. Selected cases in the King's
Courts in England, reported by unknown members of
the legal profession. The series extends into the
sixteenth century. They are with few exceptions,
where printed, in law French, which, up to 1364, was
the real spoken language, and in black letter. Those
used in this volume have been recently edited and
translated, and the MSS. compared by the editors
with the Latin Rolls of Court. 47, 63, 64, 95-7, 98,
99, 122, 217, 227.

Y.B. 20-35 Edrv. I. The Year Books of Edward the
First (R.S. No. 31), edited by A. J. Horwood and
L. O. Pike.

20-21 Edw. I., 100, 101, 102, 106, 107, 110, 113,
116, 117, 119, 120, 121, 124, 125, 128, 129.

21-22 Edw. L, 106, 116, 117, 121.

30-31 Edw. I., 116, 120, 121, 129.

32 Edw. I., Ill, 112, 117.

33-35 Edw. I., 103, 104, 111, 113, 114, 117, 119,
123.

Y.B. 1-7 Edtv. II. The Year Books of Edward the Second
(Seld. Soc.), edited by F. W. Maitland and others, 27.

1-2 Edw. II., 96, 103, 104, 106, 113, 114, 115, 117,

119, 121.
Vol. ii. Edw. II., 101, 104, 111, 113, 114, 115, 116,

119, 121, 123, 124, 135.

Vol. iii. Edw. II., 100, 101, 106, 107, 116, 121.
Vol. iv. Edw. II., 27, 121, 124, 143.
Vol. v. Edw. II., 112, 113, 115, 118, 119, 120, 121,

122, 123.
6-7 Edw. II., 103, 110.

Y.B. 11-20 Edrv. III. The Year Books of Edward the
Third (R.S. No. 31), edited by L. O. Pike.
11 Edw. III., 112, 117, 122, 125, 128.
12-13 Edw. III., 101, 116, 117, 122, 125, 129, 227.

LIST OF DOCUMENTS xivii

13-14 Edw. III., 107, 116, 122, 125, 128, 228.

14 Edw. III., 110, 112, 117, 119, 120, 121, 164.
14-15 Edw. III., 108, 116, 117, 119, 120, 121, 122,

124, 126-7.

15 Edw. III., 93, 94, 108, 112, 113, 114, 115, 116,

117, 118, 120, 121, 122, 126, 129.

16, Vol. i., Edw. III., 99, 113, 116, 117, 119, 120,

122, 128.
16, Vol. ii., Edw. III., 100, 101, 112, 115, 116, 117,

118, 120, 122, 123, 135, 239.

17 Edw. III., 103, 111, 112, 113, 118, 129, 228.
17-18 Edw. III., 101, 117, 122.

18 Edw. III., 115, 118, 123, 129, 130, 228, 239.
18-19 Edw. III., 116, 118, 121, 122, 124, 125-6.

19 Edw. III., 107, 111, 112, 116, 117, 120, 122,
123.

20, Vol. i., Edw. III., 108-10, 112, 11 6, 117.
20, Vol. ii., Edw. III., 85, 110, 112, 11 6, 130, 131,
207.

Y.B. 12 Richard II. The Year Books of the 12th Year of
Richard the Second, edited by G. F. Deiser (Camb.
Mass., 1914), 117, 119, 120, 122.

Y.B. 35 Henry VI., quoted in 20-21 Edw. I., p. 12, 107.

THE MANUFACTURE OF
HISTORICAL MATERIAL

PART I
CHAPTER I

INTRODUCTORY. THE FIRST WRITTEN RECORD

THERE is danger, which every compiler of
historical material must recognise, that in re-
cording events which have taken place in
remote periods, the ideas and ideals of his own
time may be imported into his account of the
past ; the condition of a stationary society
may be judged by the ideas of one which
considers restless motion as progress : the
morality of actions for which no motive is
apparent on the surface may be condemned or
approved according to a standard of moral
sense which did not exist when the acts were
committed : the society may even be falsely
judged as backward for its neglect of precau-
tions against physical disease which appeal to
the compiler's age as a test of human advance-
ment ; or its leaders may be condemned for

i 1

2 HISTORICAL MATERIAL

leisurely movement and consequent failure to
meet unforeseen contingencies if the compiler
neglects to make sufficient allowances for the
difference of mechanical appliances in the two
periods.

These dangers are intensified when the
compiler, as so often happens, relies for his
facts, or even worse for the motives of action
of the men of past ages, on writers not con-
temporary, living between his times and the
times of which he treats. Here he is liable to a
double danger ; he may not only misconceive
the times of which he writes through judging
them by the conditions of his own time, but
he may gauge both facts and motives in a
remote past by the habits of thought and
possibly the differences of language of an inter-
mediate age with which neither he nor the
people of whom he writes may have any sym-
pathy of historical view.

There is only one way in which this difficulty
can be met and checked. The compiler will
seek for original contemporary written records,
and if they can be found he will try to put
himself as far as possible, in respect of political,
theological, social, and commercial conditions,
and in respect of the moral and social ideals of
the age, in the position of the men who related
the events which occurred in their time.

It is very questionable if any such original
contemporary written record exists. We have
no originals of any of the great creative works
of ancient times, of Homer or of Aristotle or

THE FIRST WRITTEN RECORD 3

of the book of Genesis, nor have we, with the
rarest exceptions, original MSS. of the first-
hand authorities for compiling historical facts.
For instance, it is generally admitted that the
MSS. which we possess of the Saxon Chronicle
are copies, either wholly or in some instances
not contemporary, of an original which has
perished. Nevertheless, wherever it is possible
the compiler should go back to the contem-
porary record. If he cannot find that, he
should trace up the stream to the sometimes
unsafe bog which may mark the source.

When this has been achieved he will inquire
under what conditions the record was written ;
what opportunities of first-hand knowledge of
the events related or the characters painted
were open to the early historian ; how far he
was, like all of us, liable to be carried away by
violent prejudice or class animosity to distort,
perhaps not intentionally, the facts of the
story.

History, which is not partial, is impossible ;
nay more, it is very dangerous. If a historian,
ancient or modern, makes protest of impar-
tiality, you will be wise to distrust his con-
clusions and statements of facts ; but where
two accounts of the same matters are written
by two men who do not disguise their opinions,
such as Froude and Freeman, you may regard
both as able advocates stating their case, and
may pass judgment upon them without the bias
of either.

The Value of Language. — Then the compiler

4 HISTORICAL MATERIAL

will have to balance in his mind the language
used by the writer, how far it expresses actual
fact or genuine emotion and how far mere
essence of exaggeration, waste of extravagant
verbiage, just as now we look for some stronger
and more meaningless phrase than awful,
frightful, amazing, ghastly, astounding, im-
possible, sickening, or rotten, to express some
very ordinary event, or epoch-making of some
very dull and dubious speech. Even now
probably a reporter might use the word ex-
torsit if the Chancellor of the Exchequer re-
quired him to pay a heavy income tax.

Then the compiler will remember that the
monk who wrote down the records (for they
were all or nearly all written in the safety and
retirement of the monastery) was writing,
apart from those things which concerned his
order, which were the most part of his history,
of matters which were exceptional and out of
the general order of things, that he was always
on the look-out for such exceptional things,
scenes of violence, acts of kings and rulers
which were contrary to the Church's canon
of morality or conflicted with her interests,
miracles and any unusual occurrences which
could give the interest of liveliness and reality
to a dull and secluded world. And he was
not above making them up if he did not find
them.

Besides all this, the monk lived in a world
of unreality, in which the first explanation of
an unusual occurrence was that it was pro-

THE FIRST WRITTEN RECORD 5

duced by the abnormal activities of an unseen
world.

Unless the compiler takes count of all
these matters to be weighed and considered
before he accepts the statement of the mona-
stery, he may describe for us a stationary
society as being in a state almost of dissolution
by not allowing for the licence of language or
the prejudice of position of the early writer.

But when he has considered all these
matters, if he should decide, as in almost all
cases he will, that the man who wrote the
matter down did not witness the acts he
recorded, or wrote from an imperfect acquaint-
ance with the characters he described, he will
then ask himself, Where and from whom did
the writer first hear the story ? and he will
ask with increased anxiety, if he can find out
the verbal source, all the same questions as
to prejudice and exaggeration and first-hand
knowledge as have been indicated above as
necessary to be asked of the MS. which
appears to be the original source ; and that
brings me to the beginning of my book.

It is proposed here to trace, for a short
period of British story only, some phases of
the manufacture of the history both of law
and politics and social life from our earliest
means of knowledge to the finished work,
through all the processes of the reduction
of the first tale to writing, its editing and
re-editing at various hands, its enlargement,
translation, correction, critical commentary

6 HISTORICAL MATERIAL

and revision, and its final appearance as the
history.

We live in a critical age when such a
subject may not appeal to the learned pro-
fessors of history. But if only the general
casual reader of law and history could be
roused to a sense of critical examination of
the so-called authorities for history which are
put before him, and could learn to use his
common sense and powers of mental obser-
vation, it would be something gained. At
present he is only too often like Charles
Lamb's True Caledonian, "the twilight of
dubiety never falls on him." Any absurd
and apocryphal and improbable story told by
an anonymous monk is sufficient to rouse him
to a sense of most righteous historical indig-
nation, if it has only been copied for a sufficient
number of times from book to book, without
any examination into the circumstances under
which and the person by whom the story was
first told.

If the student could only put before himself
the many processes through which historical
facts have to pass before they can be presented
in the complete form of the history of Peter
Parley or Edward Gibbon, he would surely
take more pains to use his common sense for
the examination of sources. At present the
condition of historical science is a hindrance
to educational methods and a danger to politi-
cal life.

ORAL TRADITION 7

CHAPTER II

ORAL TRADITION

IT is extremely unlikely that the earliest MS.
to be found would be anything but a late
copy. There is hardly a single monastic
record of which we can say that the existing
MS. is an original, and in many cases it is
separated by centuries from the date of the
supposed writer. But original or copy, when
we have found the earliest written record, it
behoves us to ask the further question, Where
did the scribe hear the rumour which he put
in writing ? Who first told the story ?

The Sources of Story. — All story, ancient,
mediaeval, or modern, rests in the first instance
on oral tradition. In dealing with early
monastic records, written in many cases a
long time after, by men sedentary and aloof
from the action recorded, we are inclined to
forget this undoubted fact, and in consequence
to attribute far too great an authority to the
writing.

We are in this respect at the present in a
position very little removed from that of the
recorders of events in times past. Every
story, whether it is an account of rumours
current of action on a long battle-line, col-
lected by Eyewitness or other special corre-
spondent at the Front from the men who saw
and took part in the struggle, or from other

8 HISTORICAL MATERIAL

men who saw other men who saw it, or the
provisions of a treaty the final result of many
verbal conferences liable to be upset by secret
unwritten agreements, or the suggestion
passed into law after long debate in Parlia-
ment, has in almost every instance a verbal
origin.

Sometimes it is very difficult to trace it.
The rumour, like the entries which the bishop
of St Asaph wished Giraldus to accept as
final authority because he, the bishop, had
written them down in his own book, acquires
a certain sanctity as undoubted fact from the
reduction into writing, owing to our depend-
ence on writing rather than on memory, and
this though the written language may give
no clue to the conditions attending the con-
flict, the minute causes which resulted in the
written treaty, or the compromise which
modified the law.

News Ancient and Modern. — The sources of
story were the same then as now. Just as
at the present day, the monk dealt with the
actual undoubted fact, brought to him by a
reliable informant and witness, or recorded
in parchment by some former writer who had
heard the story from the lips of some traveller
— fact which eventually, so far as it is allowed
to be told, will become history ; he had
secondly what is called news, the current
rumour which is circulated from hour to hour
only to be immediately contradicted.

But there are two points of difference.

ORAL TRADITION 9

The first is a small one, the very limited area
affected, and the very deliberate circulation of
news in early days.

Owing to the mechanical appliances which
have bound the world together, the slight
rumours circulating many thousands of miles
away may be repeated in these islands within
a few hours of their first circulation, and may
be re-repeated every few hours with some
petty difference of words. We have a 2.30
and a 5.30 edition of the same facts.

The people of past times were not so idle-
minded. \rery few people indeed, and those
for the most part hidden away in monasteries,
were concerned to hear or read the monks'
editions of things long past which happened
in a confined, near-by district, the re-editing
by Hoveden of Simeon of Durham, or by
William of Malmesbury of the Saxon
Chronicle — a fact which it is well to keep in
mind when any of these secluded and partial
chroniclers are spoken of as representing the
" public opinion " of the age.

The second was a very large and most
important difference affecting very essentially
all historical proportion, that the interval of
time between the circulation of the report
and its reduction into writing might be of
enormous length. This was due to a truth
which it is hard for us, who have come to rely
so entirely on the note-book, to realise, namely,
the extraordinary powers of the trained
memory to hand down through many genera-

10 HISTORICAL MATERIAL

«

tions with very great accuracy accounts of
events long past or pedigrees showing the
descent of eminent persons or declarations of
customs made long ago.

Where a society was stationary, as all early
European society continued to be until touched
by Rome (it is one version of the story of the
Sleeping Beauty), written records were un-
necessary unless to record the exceptions to the
general customs of society which were known
to all and held in memory by all. As constitu-
tional history had not been invented, there was
no necessity for putting political glosses on past
events ; the pedigree which decided a man's
place in society could be as well held in the
memory as reduced to writing.

Society based on Kinship. — All ancient
society was based on kinship ; a man's title
to the privileges common to the community,
the use of the common land, and the protec-
tion against violence afforded by the money
compensation to be paid by the group family,
depended upon his being able to give proof
by pedigree of his place as a member of the
community.

These pedigrees were handed down from one
generation to another, committed to memory
by a privileged caste, who were poets, lawyers,
and historians, and in the first instance priests.
Holding in their memories the pedigrees
tracing back through long ages the rights of
the most prominent men to a place in the
community, they early acquire an immense

ORAL TRADITION 11

mysterious authority drawn from the use of
technical and often unintelligible language.

In Rajputana, Sir Henry Maine tells us,
" literature still retains that which we may
believe to have been its most ancient form-
in the songs of the hereditary bard celebrating
the exploits and above all the antiquity of the
family of which he is the honoured retainer."
I can claim to be excused any unintentional
irreverence for the Old Testament if I suggest
that the first nine chapters of the first book of
Chronicles were most certainly a reduction
into writing of pedigrees handed down through
long ages by oral tradition in this fashion.

As a single example of the history contained
in oral pedigree in these islands : at the corona-
tion of the child Alexander III., as he sat on
the stone of Scone brought from Egypt by
Scota, the daughter of Pharaoh, a Scoto-Irish
skald from the West came forward and falling
on his knees before the boy recited, no doubt
in rhythmic verse, the pedigree of the young
king from his remotest ancestors, possibly to
Scota herself.

It was a small matter that, as the king's
pedigree peered back into antiquity, gods
and heroes and ordinary men show beside each
other ; its very portentous length gave it the
greater power, and it was, in spite of the
monastic advances in south-eastern Scotland,
the king's title to his throne in the greater part
of his dominions.

His title to be king and chief rested on

12 HISTORICAL MATERIAL

his supposed kinship to the people he ruled,
and not on any territorial requirements ; teste
Bailie M'Wheeble, that " from the maist
ancient times of record, the lawless thieves,
limmers and broken men of the Highlands
[including no doubt many of Alexander's
ancestors] had been in fellowship together by
reason of their surnames, for the committing
of divers thefts, reifs and herships upon the
honest men of the low country — all which was
directly prohibited in divers parts of the
Statute Book."

All ancient society rested on such kinship ;
the Roman missionary, a stranger, coming
from a far country, and bringing with him
a new religion founded on a written record,
breaks through the foundations of kinsmanship;
at first the break is small, the little rift within
the lute ; the written record, in the first in-
stance a record only of matters of exception
affecting the monk-missionary and his church,
runs on for centuries side by side with the oral
tradition which records the original customs.
But they are written and told by different
men, and are concerned with different aspects
of society.

In treating both of oral tradition and of
written record we shall have to keep two
things separate, the records of the common
customs which afterwards harden into law,
and the records of events which become the
tribal or national history. The monk who
preached to the Saxons or the Irish or the

ORAL TRADITION 13

Franks could not be expected to hold in mind
their barbarous customs ; they are by mutual
consent modified and reduced into writing.
But the record of events, the subject not of law
but of story, often the attractive story of
adventure, the Iliad or the Odyssey of tribal
history, follows no such rule of reduction ; it is
written by the monk (very very occasionally
by the layman) so far as it concerns the affairs
of the church and, by implication, of those who
may hurt or benefit the church, and at the
same time it is told as a spoken tale generally
in verse or rhythm by the man whose business
it is to tell stories.

CHAPTER III

THE POET-LAWYER HISTORIAN

The Poet Historian. — The member of the
caste, for it must very soon have become an
hereditary caste, who carried down the oral
tradition, who counted in his memory the
successive steps of the pedigree from the god-
like hero, mending as he went up the broken
rungs of the ladder, who stamped by his
authority of recollection the character of sacred
inspiration on the customs whose origin was
lost in antiquity, who dwelt with the fire of
poetic imagination, his eye with the fine frenzy

14 HISTORICAL MATERIAL

rolling, on the great deeds of his patron's
kinsmen in the past, was in the first place a
poet.

Long study no doubt, and the influence of
hereditary taste and training, would strengthen
the memory of the Brehon. But beyond this
the help of rhythm, of musical sound, of polished
verse, was called in, in all the literatures of all
the nations of which we have knowledge, to
make endure in the mind of the bard the
doubtful wanderings of the law, the uncertain
event of the battle, the remote birth and origin
of the race.

For the British islands our chief source of
this exemplar of history and law is to be found
in the poetry of the Celtic or Scandinavian
bard. It had nothing whatever in common
with the doggerel, whose hall-mark is false
quantity, which comes from the Roman mona-
stery. The skald spoke in a poetic form which
has been practically lost to us by non-user,
poetry full of metaphor, of recondite fancies,
fancies which might break through language
and escape, metaphors of men who lived among
the elements and likened hand-made things to
the created things of the air and sea, a poetry
which called for close collaboration of mind
and ear.

The monastic verse was satisfied if the two
lines ended with a similar sound to the ear
though foreign to the eye ; the skald's rhythms
were governed by the most complicated abstruse
rules of alliteration, of accent, of syllabic length,

THE POET-LAWYER HISTORIAN 15

of repetition of letters, besides the endless
figurative metaphor of not calling a spade a
spade, tedious no doubt to us lazy moderns,
but highly strengthening both to the mind and
memory and ear of men of past times. We
have so attuned our ears to the safe splicing
of similar sounds that all power of making
poetry by a conjunction of ear and brain has
nearly passed from us. Rhyme has destroyed
rhythm.

Wherever we find, and we find in all ancient
records, verse embodied in the monastic prose,
we may be quite sure that for a very long time
before the monastic record was reduced to
writing, the event or the custom had been
recorded and handed down in the rhythmic
verse of the bard. It is a sign of age or of
editing by one acquainted with the old oral
records to find such poetry. For example, ask
yourselves by whom and when the battle of
Brunanburg (Saxon Chron. 937) was sung, and
how long it would be before the account
revised and re-edited was incorporated in the
form in which it now comes down to us in the
annals of several monasteries under the same
date in the same words.

In Scandinavia. — The Scandinavian Sagas
give us a succession of stories of adventure
and social life, framed admittedly on the
songs of skalds who lived and took part in
the events recorded, skalds, generally very
prominent fighters, whose names are given
by the men who wrote down the compilations.

16 HISTORICAL MATERIAL

Throughout the Heimskringla the skald sings
and records the events of the battle as he
draws his bowstring; in the Icelandic Sagas
the heroes declare the events in verse ; the
bard sang of what he saw. The bards and
skalds neither considered nor treated of moral
issues ; the monk wrote from the moral stand-
point.

A good example of such a fighting skald
is Egil Skallagrimmson,1 a reckless, unprin-
cipled, unattached fighter, ready to shed any-
one's blood for an employer who would pay,
but a man who praised in verse the prowess
of his enemy while he split his skull. From
him can be learnt, amid his diffuse praise of
the men who hit hard and often, some very
interesting particulars of the British history
of his time.

In England and Wales. — It is not Scandi-
navia alone by any means which gives us
these examples of the poet. The events of
the Saxon Chronicle under the years 937 (just
before which it appears to have fallen under
Scandinavian influence), 941, 958, 973-5, 979,
1011, 1036, 1057, 1065, and probably in
passages in 1067 and 1087, are expressed in
this skaldic verse. How long was it before
the oral tradition found its way into the im-
perfect MSS. from which our history is con-
structed ? Take any one of these poetical
rhapsodies and ask yourselves how long a

1 Saga translated by Rev. W. C. Green. Elliot Stock,
1893.

THE POET-LAWYER HISTORIAN 17

time must be allowed before the skald's song
in the heat of battle has travelled so far from
the spot and has been so reduced by editing
and re-editing that it can be deposited as part
of an identical MS. in different monasteries in
which we find it as copies of a lost original.
We find such a skald, one Gunlaug Orm-
stunge, staying with Ethelred and singing
his praises after the so-called massacre of
St Brice.

The Welsh Laws (A.L.W., Anom. xm.
ii. 60, 61) relating the three privileged sessions
according to the privilege of the country and
kindred of the Cymry say that the session of
the bards is the most ancient in its origin
from which all sciences emanate. It claims
that the session of the bards of the Isle of
Britain rests upon reason, nature and cogency,
or circumstance. After enumerating at some
length the various offices of the bards as
poets, as lawyers, and as historians, "to pre-
serve memorial and record of everything com-
mendable respecting individuals and kindred,"
etc., the law concludes: "therefore the bards
are authorised teachers of the country and
kindred of the Cymry." (Also A.L. W., Dim.
i. xxvi. 24, and Gwent i. xix. 1-2.)

Nor is it in the islands only that we find
the poet-lawyer historian. The British Islands
were so overwhelmed at the end of the tenth
century by the Scandinavian that it would
not be fair to take British examples only
as examples of the skaldic poetry. France

2

18 HISTORICAL MATERIAL

and Aquitaine were equally the homes of
the bard. Taillefer rides in the van at
Hastings, juggling with his sword and sing-
ing the song of Roland, one of the great
epics of the Charlemagne cycle of Northern
France.

Southern France, where the transition litera-
ture from the decay of Latin was earliest
and most splendid, was the especial home
of the poet historian. Eleanor, the great
queen, the wife first of Louis of France
and then of Henry of England, coming
from a race of poetic rulers, presided in
her youth over the courts in which the
Trouveres or Troubadours of the South com-
peted in song.

Here every great noble excelled in verse
as much as in arms. To be a poet, to sing
of love or war, was simply the attribute of
a gentleman. Richard, Eleanor's son, was a
noted troubadour, as her grandfather William
had been. The nobles of Aquitaine carried
their poems and their sarcasms into politics ;
Bertrand de Born, a powerful noble and noted
poet, lord of a castle and district in Perigord,
plays a most conspicuous part in the quarrels
between Henry II. and his sons, fomenting
by his satire the disputes between them.
Dante puts him in Hell (canto 28) and makes
him compare his political infamy to that of
Ahithophel making mischief between David
and Absalom.

When the infamy of the Albigensian perse-

THE POET-LAWYER HISTORIAN 19

cution destroyed the nobles, the great litera-
ture died.

If there were really any hope of the British
Government encouraging the study of history,
a grant in aid of the study of the literature
of Southern France in the twelfth century
might reveal many valuable passages of
English history.

In Ireland. — The verses of the skald very
soon disappear in England under Roman
monastic influence, and poetry, with the ex-
ception of Chaucer, is absent until the great
outburst of Elizabeth's time. But the poet-
lawyer historian has a long and most eventful
history in Ireland from the earliest times.
The Crithgabhlach (A.L. IrcL, iv. 357) enu-
merates seven degrees of poets.

The amount of Irish literary matter in
antique poetical form available in MS. untrans-
lated and unedited in the libraries of Dublin
and elsewhere for political and legal history
is, I understand, very great. Burke long
ago saw the necessity of making use of this
material, and in a letter in 1783 to General
Vallancey, quoted in the Preface to the Book
of Leinster, urges the translation of the
ancient Chronicles in verse and prose upon
which the Irish histories which precede official
records are founded. " I do not see," he says,
"why the Psalter of Cashel should not be
printed as well as Robert of Gloster"
(R.S. No. 86).

In the early times the caste are said to

20 HISTORICAL MATERIAL

have claimed so much free billeting in return
for their poetry and their assertion of suprem-
acy in law and history that it was proposed
to abolish them. But St Columba, who was
more or less of a bard himself, and a good
fighting man, arranged a compromise of rights
between the poets and the Feini.

But it is not as literary creator or as fight-
ing man that we see the bard or skald in
Ireland. He becomes, perhaps unfortunately
for Ireland, merged in the lawyer, the Brehon,
and the Brehon law became opposed to and
irreconcilable with the English feudal law,
so that instead of dying out as in Scandinavia,
or becoming that ridiculous survival the Poet
Laureate as in England, he remained a
prominent political figure, carrying down
archaic and adverse customs into an un-
sympathetic age, banned by the Anglo- Scottish
Government.

The Statutes of Kilkenny tried ineffectually
to sweep him away, declaring penalties by
chapter 15 against pipers, story-tellers,
babblers, rimers, mowers, or any other Irish
agent. But he still remained.

Spenser, who sees in them a great power of
offence against the feudal innovations, speaks
of them as "a certain kind of people called
bards, which are to them instead of poets,
whose profession is to set forth the praises or
dispraises of men in their poems or rhymes."
(Not knowing the Irish language, he assumed
that they depended on rhymes.) " The which

THE POET-LAWYER HISTORIAN 21

are had in so high regard and estimation
amongst them that none dare displease them
for fear to run into reproach through their
offence, and to be made infamous in the
mouths of all men." He has caused some of
these poems to be translated for him : " and
surely they savoured of sweet wit and good
invention, but skilled not of the goodly
ornaments of poetry ; yet were they sprinkled
with some pretty flowers of their natural
device which gave good grace and comeliness
unto them," for which in those days of artificial
verse we ought to be truly thankful.1

The criticism of the bards as makers of
satire is fully borne out by the MSS. of the
Irish Laws. It is much more likely that their
powers of satire led to the revolt against their
predominance in Columba's time than any
excess of billeting. Ancient society did not
mind providing the poet with beer or onions,
but it was remarkably thin-skinned about
slander, as personal defects were a most serious
danger in the social life, and an unhappy nick-

1 " Who ever gave more honourable prize

To the sweet Muse than did the martiall crew,
That their brave deeds she might immortalize
In her shrill tromp and sound their praises dew ?

Sith then each where thou hast dispredd thy fame
Love him that hath eternized your name."

A hasty critic might assume that this was an effusion by
one of the "certain kind of people called bards." But
it is a sonnet by Spenser to Sir John Norris, Lord
President of Munster.

22 HISTORICAL MATERIAL

name might lead to a chief having to go to a
monastery.1

The poet-lawyer historian as historian has
an equally long descent in all parts not domi-
nated by the Roman monastery. Though by
the end of the twelfth century the subjects of
song, both historical and social, on which the
bard had exercised his memory and genius,
were being written down in the form of Sagas
and Annals, such writings and their readers
were almost entirely confined to the monastery,
and the poet-lawyer historian still continued to
be the recorder of events for the very large
majority who did not read, carrying down his
history in song from generation to generation,
until it is merged in the slightness of our
ballad literature. For the men who made the
Sagas and Annals, the men who sang, con-
tinued to provide the oral material, until the
mass of written matter enabled the writer to
copy from a former written record. Even
then in places more remote poetry played a
considerable part.

1 Among the stays on proceedings in distress the law
(A.L. Irel., i. 157) enumerates distress "for the crime of
thy tongue," glossed as satire, slander or betrayal or false
evidence or false witness; 175, 185, for satirising after
death ; 187, for satire unascertained as to kind, for a nick-
name ; iii. 93 classifies the forms of satire as " speckled
eitged " ; v. 229 (The Heptads) enumerates seven degrees
of satire, beginning with "a nickname which clings," and
ending with "a satire which is written by a bard who is
far away and which is recited."

William de Braose in 9 John paid 300 cows, 30 bulls
and 10 mares pro kabenda loquela.

THE POET-LAWYER HISTORIAN 23

The ballad literature containing much history
which we owe to the northern skalds, in itself
no mean thing, is small by the side of the great
epics from which it is descended ; like every
form of literary work in turn "on meurt
epicier"; but in it is contained the origins
not only of our literary and historical records,
but of our laws.

There is much truth in the famous saying
of Fletcher of Saltoun that he " knew a very
wise man who believed that if a man were per-
mitted to make all the ballads, he need not care
who should make the laws of a nation."

The ballads, though the age of Fletcher had
completely lost sight of it, were the origin and
epitome not only of history but of the laws
themselves.

CHAPTER IV

THE POET-LAWYER HISTORIAN

The Poet Lawyer. — At the present day, in
spite of the continued outpouring of acts,
by-laws, regulations, and rules by all sorts
of authorities set over the people, the law
thus made being sometimes only for tempo-
rary use, sometimes inoperative, and not
infrequently foolish, sometimes only opera-
tive by reference to legislation of times long

24 HISTORICAL MATERIAL

gone by and conditions which no longer
exist (as when a London magistrate felt
himself lately compelled to fine a man at the
instance of a policeman for crying muffins
in the street on Sunday) — in spite of all this
we are all supposed to know our liabilities
under the law, even under police regulations
which for the most part are unwritten law.
Much more was this the case when there were
few laws, and those unwritten, and made not
by a variety of officials or official bodies, but
publicly declared by the general consent of the
people who were to be bound by them.

But it could not be supposed that the
interpretation of the laws would be left in
early times to the people concerned, as our
laws, especially police regulations, are left to
be construed by the police at the present day.
From the earliest times of historical knowledge
there is a caste of men whose business it is
to store up the laws in their memory, and to
interpret them, and to apply them to the
given case.

As I have pointed out, the poet-lawyer
historian is the creator and preserver of a vast
mass of poetical literature, whether in the
Orkneys, in Ireland, in England, or in Aqui-
taine ; he is the original authority for the
Chronicles and the Annals, and the Sagas and
Master Wace's Roman de Rou ; but beyond
this and above all he is especially the lawyer
who declares the customs under which the
people live, develops them in his memory and

THE POET-LAWYER HISTORIAN 25

interprets them. The caste meets us every-
where and at every time in story, from the men
who declared the customs in India hundreds
or possibly thousands of years before the laws
of Maim were compiled, to the days when
Deborah sat under a palm tree in Mount
Ephraim, or when the deemster declared the
laws of Man in the assembly of the Tynwald.

The Use of Technical Language. — All men
in those days had long memories. The Brehon,
as the poet-lawyer historian was called in
Ireland, did not trust to memory alone, but
strengthened it, and with it his influence
with the unlearned, by the use of obscure
technical terms not generally intelligible to
the common man.

Just as the physician of to-day, not being
paid by the length, writes his prescription
shortly in a dead language and puts, or did
put until recently, the sign of the planet Jupiter
at the head of it in order that you may not
know how much aqua dixtillata he is giving
you, so the Brehon of times past, who might
also be the physician as well as the parson
and lawyer, not only declared the law as its
authorised exponent, but declared it in
technical expressions of which he only fully
understood the meaning. As the years passed
on, as the customs became archaic, their use
and origin forgotten, the terms which had
been used to describe them a strained philo-
logical hand-clasp across the centuries, the
Brehon "put a fine thread of poetry about

26 HISTORICAL MATERIAL

them " (A. Li. IreL, iii. 89), enhancing their
professional secrecy, and often ending, if we
may judge by the commentary in the Brehon
laws, by himself forgetting the meaning of the
expressions in which they were wrapped.

A fine example of the refinements to which
the early unwritten law had attained in the
hands of the Brehon in the communal society,
and of the jealousy with which the lawyer
regarded his official secrets, an example also
of the change coming over a community when
land as the basis of society took the place of
cattle, occurs in the famous account of the
great lawsuit at the Thing in the Nial's Saga
(p. 280, edition 1900).

The defendant takes exception to the men
of the inquest that they were not house-
holders. The answer is given that they have
dairy stock to the value of the qualification
in land, which is the same thing. The de-
fendants appeal to Skapti, the speaker of the
law, and he sends back word that it was
surely good law though few knew it. The
defendants then take another objection that
four of the inquest were wrongly summoned ;
" for those sit now at home who were nearer
neighbours to the spot." To this the plaintiffs
reply that the greater part of the inquest was
rightly summoned, which was sufficient.
Appeal is again made to the lawman Skapti,
who evidently does not at all like this growing
knowledge of the secrets of the law. " More
men are great lawyers now," he said, " than I

THE POET-LAWYER HISTORIAN 27

thought. I must tell thee then that this is
such good law in all points that there is not
a word to be said against it ; but still I
thought that I alone would know this now
that Nial was dead, for he was the only man
I ever knew who knew it."

Bereford, when a somewhat similar objec-
tion as to a majority of jurors being insufficient
is urged before him in a case in Y.B. Edw. //.,
remarks sarcastically, " Much good would it
do you if they were all here." Trial by jury
had not then hardened into its present form
of absolute unity.

A further technical defence, which was
more effective, is met with a charge by the
plaintiffs that the defendants were guilty of
contempt of the Thing by feeing a neighbour
for his legal assistance. The other side had
apparently done the same thing, but had not
brought their legal adviser into court, carrying
news of the objections to him and acting on
his advice on their return.

It would appear that only the lawman
could take a fee for his advice on points of
law and practice, all other advice given to
litigants being summed up in the old proverb
that a man who is his own lawyer has a fool
for his client. The crowd at the Law Hill
give their advice and applaud each technical
point raised and parried, as they would ap-
plaud a happy blow which cut off a man's
leg in the fight which was often the end of
the law proceedings.

28 HISTORICAL MATERIAL

Skapti's dislike of the amicus curice is only
part of the great dispute which always goes on
between the expert lawyer, whose power rests
on his knowledge of the effect which a rash
decision on rules of procedure will have on the
general principles which he has carefully con-
sidered, and the general assembly of laymen
who like to make their law as they go, not by
laying down technical rules, which will govern
a class of cases, but by judging each case on
its apparent and generally deceptive merits,
with the aid of a little knowledge, which is
such a dangerous thing in law.

The same conflict goes on at the present
day, to our sorrow, in Parliament between the
Parliamentary draughtsman who considers a
proposed measure in all its relations not only
to possible future use but to the provisions
which have been incorporated in it from past
legislation or may be affected by it, and the
energetic politician who makes nonsense of the
Act by amendments, not considering either
past or future, on the assumption that he is
benefiting the people. In his ignorance he
increases greatly the power of the lawyer
caste.

Changes of Language. — Another cause acted
to increase the power of the poet lawyer —
the more rapid changes which took place in
language before written documents had set up
a standard of values. As a result, aphorisms
or poetic metaphor in which the law is em-
bedded, either acquire a private meaning only

THE POET-LAWYER HISTORIAN 29

known to the lawyer, or become to him unin-
telligible words only, which he can juggle with,
engrafting on them his private interpretation.

Many instances of this occur in the Irish
laws, where the commentator either admits
that he does not know the meaning of the
ancient text, or gives several alternative render-
ings of an obscure passage, showing either that
it had not been acted on for a long time or
that poets of a former generation had used the
words with different meanings.

The same difficulty of language meets one
in all collections of laws. There are scarcely
any charters in Northumbria in very early
times, probably because the oral traditions
away from Rome lasted longer than in the
Saxon south. But in the south and west of
England the early Norman charters used
words of which, says Kemble (Codex Diplom.,
Introd., p. xliii), while they confirm the privi-
leges, the transcribing monks admit that they do
not know the meaning.1 Some of these, such
as " toll and team " and " sac and soc," which,
though generally found in the charters of the
first Norman kings, do not appear at all in the
charters immediately preceding the introduc-
tion of feudal Norman law by the half-Norman
Edward, were words belonging to the Saxon

1 1 once got a scolding in chambers for leaving out the
words et cetera after " and your Petitioners will ever pray."
But when I asked what et cetera in that connection meant,
I was told, " I don't know, but you must put it in." I
wonder if anyone does know.

30 HISTORICAL MATERIAL

customs and unknown to the Norman law, the
Norman copyists probably writing from oral
dictation privileges and immunities which had
formerly passed by word of mouth only. All
early charters were very short, the communal
rights which accompanied the gift of a certain
piece of land passing without any pertinents.

Very likely the Norman grantee was not
particularly anxious to know the meaning of
the words which gave him vague and unlimited
powers, so long as, like the cabalistic pertinents
of the Baron of Bradwardine's charter, they
might be used to imply " upon the whole that
the Baron of Bradwardine might, in case of
delinquency, imprison, try, and execute his
vassals at his pleasure." The meaning of
many legal words in common use in early
Norman times seems to have been so uncertain
to the writers of a later generation as never
to have been fully recovered. There are, says
Kemble, many small glossaries of obsolete
words in various MSS. of the twelfth century.
The variations of phonetic spelling in those
times were so many and so grotesque that a
word could soon be spelt out of all recognition
of its original technical meaning.

The Normans could not even spell the
Saxon words which they included in their
charters. Kemble gives instances.

The Use of Catchwords. — One great aid to
memory, which meets us in all times and in
all bodies of law, is the use of a short and
concise cue of a few words or a sentence which

THE POET-LAWYER HISTORIAN 31

serves to bring to the memory a mass of
arranged matter. According to Max M uller,
books of aphorism are older than books of
verse. " The great body of Hindu philosophy
is based upon six sets of very concise aphorisms.
Without a commentary the aphorisms are
scarcely intelligible" (A. R. Ballantyne, Pre-
face to Sankhya Aphorisms of Kapila, 1885).

All through the Senchus Mor occur short
enigmatical phrases, a few words, not even a
complete sentence, the first words of a tradi-
tional rule, cues which had often become
meaningless to the commentator of a later
age. Sometimes they are evidently proverbial,
e.g. " Fools make illegitimate impoundings "
(A.L. Irel, ii. 97) ; sometimes only a reference
to some former commentator, " Another ver-
sion " (ibid., 209) ; sometimes evidently to the
aphorism which had been declared by a former
Brehon, '* The right of each is according to his
strength" (iii. 87), "The five crimes of man
no cause of happiness " (ibid., 95).

The practice is universal. The terms of the
writs, " Utrum, quare impedit," etc., etc., are
instances of a usage to which every system of
law could contribute a quota.

Verse in the Records of Law. — There is no
doubt whatever that in the early history of
all customary laws there is a time when they
are committed to the memory in skaldic verse.
The inquiries made by Sir William Jones in
the eighteenth century into the Hindu law
had taught him, says Sir Henry Maine, that

32 HISTORICAL MATERIAL

in their ancient languages there existed " a
series of poems which might not unjustly be
compared to the Homeric epics and the Attic
drama, and laws twice as old as the legislation
of Solon and the XII. Tables of Rome." The
chief of these for him was the Law Book of
Manu, which was in verse.

By the assistance of these and other like aids
to memory the poet-lawyer historian was en-
abled to hand down to succeeding generations
an immense and varied mass of law and history
and general literature, a literature which only
decays when it is confined to writing.

To come back to our islands, each of the
collections of law preserved to us shows us
either actual poems or indications of verse
embedded in the prose of the laws. In the
Senchus Mor various bits of verse from older
books or sayings can from time to time be
found embodying legal maxims, e.g. A.L.
IreL, ii. 314, iii. 534-7, iv. 341 ; and in the
collection of Welsh laws, the fifteenth book of
the Anomalous or Welsh laws, containing the
privileges of the men of Powys, is in verse.

We need not expect to find much verse
embedded in the collections of Saxon laws
written down under the Roman monastic
influence, but even here we find traces of an
ancient poetical rendering. Speaking of the
forms of oaths which follow the laws of Alfred
in Thorpe, the editor says (p. 76) : " It is im-
possible to read the oaths without perceiving
at every turn their rhythmical quantity and

THE POET-LAWYER HISTORIAN 33

alliteration. An ear any way accustomed to
Anglo-Saxon poetry will easily detect the
disjointed members of their poetic formulae,
. . . The use of this kind of alliteration in
early laws and judicial documents, as well as
of final rime, was common to all the Germanic
and Scandinavian nations." Apart from these
forms, though we hear of Csedmon and of
Aldhelm and Alfred singing as skalds, we find
no trace of poetry in the Saxon laws. They
were then what they remained in the twelfth
century, a bare tariff for torts, such as was in
use by all the communal societies, written
down in the first instance under the influence
of Augustine and his successors.

Saxon and other Tribal Law contrasted. —
The laws collected in Thorpe show no sense
of any attempt to think out a legal system
either in principle or in mode of procedure.
They are almost entirely bald lists of money
payments for injury, e.g. a front tooth eight
shillings, a canine tooth four shillings, a grinder
fifteen shillings, and so on. The fines for rape
and the many provisions for criminal assault on
women do not give one any high idea of Saxon
morality. If a man draw his weapon before
an archbishop, he pays twenty shillings ; if he
rape a ceorl's female slave, five shillings.
What are not money payments are Church
regulations, which indeed govern the whole.
They are the elementary provisions for regulat-
ing the disorder of a savage people too much
under the overpowering influence of Rome

3

34 HISTORICAL MATERIAL

to do any original thinking for themselves.
There is not the slightest trace in any even
the latest of them of the exercise of the mind
in problems of constructive law, or any
glimmerings of the equitable doctrines, both
civil and criminal, which we find in the work
of the undoubtedly at that time more civilised
Irishman.

Here the English records of customary law,
and the Irish and other tribal records, and
with them to a great extent the records of
history, part company.

The English collections from Ethelbert to
Henry I., as we have received them in MS.,
assume that the tariffs for tort have their
origin in the commands of the lord the king,
the anointed of the Church, whose commands
were the law of the society — a wholly Roman
conception.

The laws of Ethelbert, Augustine's convert,
as we have them from the Textus Roffensis,
a late twelfth -century MS., in which only they
are found, are headed : " These are the dooms
which King JEthelbirht established in the
days of Augustine " ; and the first paragraph
runs : " The property of God and of the
Church twelvefold ; a bishop's property eleven-
fold ; a priest's property ninefold ; a deacon's
property sixfold ; a clerk's property threefold ;
Church frith twofold ; m . . . frith [uncertain
apparently] twofold." It is as we have it a
series of dooms made by the king with the
help of the Roman monk. It is more than

THE POET-LAWYER HISTORIAN 35

likely that these tariffs of tort, written down
in the twelfth century, were written not as
they existed in Ethelbert's time but as the
monk of the twelfth century thought that
they ought to have existed. We have no
evidence of any description of their forms,
when and if they were declared.

The tribal collections presume, though we
may be quite content to believe that the
practice did not always keep pace with the
theory, that all the orders of society, the tribal
Church, the freeman, the poet-lawyer historian,
the king, the judges or professors of law, had
a hand in altering or amplifying the unwritten
custom declared and administered by the
lawyer caste of each separate district. The
law which is to be obeyed is made (as the
regulations of the birleymen of Sutherland
were made before the eighteenth century
devastations) by the society as a whole through
its accredited agents, and they were willingly
obeyed because they were so made.

The laws of distress of the Feini, the Irish
freemen, were, the Irish laws tell us, declared,
" by the advice of the Church, from the
customs of the laity, from the true laws of
the poets (the Brehon or poet-lawyer caste),
from the current opinions of the kings, from
the advice of the judges, except what con-
science and nature adds from true judgments
according to analogy" (A.L. Irel., i. 209).
All this is referred by the commentator back
to the time of Patrick.

36 HISTORICAL MATERIAL

How far the Roman law of the time of
Patrick or of Henry II. affected the written
tribal codes, as we have them in the Brehon
laws and elsewhere, is a very large question
for which there is very little assistance. But
whether we regard the Irish laws as reduced
to writing by Patrick or some later missionary
or in Henry's time, there is no trace in them
or in any of the tribal codes of the imperial
and ecclesiastical view of law which rested on
the Roman dominium, a view which coloured
all English ideas of law from the twelfth
century onwards.

The history of the two parts of the islands
henceforward took a separate course, the laws
civil and criminal, the tenure of land, all the
political features which depended on either
were influenced in England by the Roman
doctrine ; the two opposed systems of life,
the communal and feudal societies, "dwell
apart like two particular stars " until Henry's
expeditions into Ireland and Wales, and the
relations of Edward I. with Wales and Scot-
land, bring them into conflict — a conflict which
goes on through the ages, a conflict which can
only be understood by the Englishman and
Lowland Scot if he will take the pains to search
for and examine the roots, deep in the past, on
which the ruins of the one system stand.

The change in the society in England,
which only came to full fruition in the time
of Henry II. and John, was the result of the
rediscovery of the Roman law, and its study

THE POET-LAWYER HISTORIAN 37

at Bologna and elsewhere in the twelfth
century.

The change was not at first at all appreciated
by the ecclesiastics, who feared not only the
use of the science for political purposes, but its
effect on the study of the Fathers and other
paths of literature, if it was too much en-
couraged by those in authority. Giraldus
(Gemm. Eccles., R.S. No. 21, vol. ii., Dist. ii.,
c. 37), discoursing on the increasing ignorance
of the clergy, the " superficiales . . . cujusmodi
hodie multos novimus propter leges Justini-
anas," quotes Mainier, under whom he had
studied at the University of Paris, as prophesy-
ing, " Venient dies et vae illis quibus leges
obliterabunt scientiam litterarum " ; and St
Bernard a little earlier complained, " Quando
meditamur in lege? Et quidem quotidie
perstrepunt in palatio leges, sed Justiniani,
non domini. . . . Hac autem non tarn leges
quam lites sunt et cavillationes, subvertentes
judicium " (de Consider atione, lib. i. c. 4).
But in spite of their opposition the Roman
law spread over Europe, to the detriment of
other literary pursuits, carrying with it the
Roman ideas which had been already adopted
in the military feudal custom. Very gradually
these conceptions were extended to all those
matters of landholding, treatment of law cases,
and satisfaction of offences which in the earlier
communal society had rested on kinship.

38 HISTORICAL MATERIAL

CHAPTER V

THE BREHON LAW OF IRELAND

OUR chief knowledge of this great source of
common law, the customary law approved by
the community for its own use in early times,
comes from Ireland.

Here oral tradition lasted long. It may
not have survived so long as in the Western
Highlands, but the records which we possess
of the customary law of the Highlands are for
the most part Irish.

In these Irish records the position and duties
of the poet-lawyer historian are the frequent
subject of commentaries of various kinds, at
epochs ranging from prehistoric times to the
seventeenth century, and we read of him in
the accounts of foreign critics and enemies as
well as from the records of the Irish them-
selves. We shall not be far wrong if we take
the description of the Irish Brehon as roughly
typical of the caste in other times and in other
countries.

At whatever remote period the Brehons or
poet-lawyer historian caste of Ireland first
began to commit to memory their rules of
customary law, their entry into history begins
only with the mission of Patrick to Ireland,
when we see them as pagan druids either
capping miracles with the saint or falling under
his influence as Christian converts. They are

THE BREHON LAW OF IRELAND 39

related to have discussed with him morals
and customary law, and to have recited for
his benefit the verses in which both were
enshrined.

So long as custom remains the rule of action,
which it does so long as society is stationary,
as it is in the East at this day, the custom
is venerated because of its antiquity, its
unchangeableness, the law which altereth not.
Novelty in custom is resented. New custom
may from time to time be declared by the
people in a body, but it is not so, as a rule,
that the great body of early law has been
developed.

When a new set of facts arises to which
the existing custom will not apply, the ingenu-
ity of the poet-lawyer historian is exercised
to declare a fresh usage (in the first instance
an inspired declaration) which will conform
to the new set of facts. He will declare
the enigmatical alteration in proverbial and
probably poetic language, making his meaning
as safely obscure as possible. But he does
not attempt to declare the new usage by the
assertion that he is making new law. That
can only be made by the community itself.

If the old custom cannot be conformed by
ingenious enlargement to the new facts, the
Brehon must make it so conform by a barefaced
fiction that it does so, a fiction wrapped up in
much technical language and much poetical
and cloudy verbiage. In this way the custom-
ary law is always being enlarged and applied

40 HISTORICAL MATERIAL

to a greater volume of the incidents of life,
and the powers of the Brehon grow with his
success in the process. Of the enlargement of
the law by fiction all legal systems give us
illustrations.

To take two illustrations of the process, one
mediaeval and one of our own day, both away
from Ireland.

In Henry II. 's day in England, when a man
was accused of a crime, he had no means of
raising any issue except by a bare denial, to be
followed by battle or ordeal. He had no
means of introducing facts which would put
an advantageous colour by way of exception
on matter which he might find himself com-
pelled to admit. The ordeal had fallen into
disrepute and battle into disuse, and the judges
of Henry and John, in common with all
Western Europe, were feeling their way to
a new procedure. They used local reputation,
the verdict of the jury of the locality, to decide
the issue, and they sold to the accused a writ
permitting him to raise before the local jury
a fresh issue of facts of which they would be
pretty certain to have knowledge, by way of
exception to the plea, the exception stating that
the accusation was made de otio et atia, out
of spite and hatred. If the exception was
proved, it answered the original charge.

Then by a further development the words
of exception were inserted in the writ when
there was no ground for such a plea and no
use for it, and by means of the insertion of

THE BREHON LAW OF IRELAND 41

fictitious words, the original issue was brought
before the jury with any exceptions which
might be of use, and was tried by their local
knowledge of the facts. It is an example of
the beneficial effects of a legal fiction to loosen
stubbornly technical law. By means of such
fiction all early custom in its harshness, in days
when society was stationary, was modified by
the poet-lawyer historian.

In giving a modern example I must guard
myself against any suggestion that I quote it
with any desire to introduce or comment on
controversial matter. It is used as being an
excellent example of the use of legal fiction
to enlarge administrative law, as barefaced a
fiction as anything imagined by any mediaeval
lawyer, Irish, Indian, or English — the use as
against persons disobeying any order of the
policeman of the fiction that they had assaulted
or obstructed the police in the execution of
their duty, or that they were loitering with
intent to commit a felony, a fictitious interpre-
tation of certain Acts passed long ago for the
prevention of crime (5 George IV., c. 83, and
34-35 Viet., c. 112, amended by 48-49 Viet.,
c. 75, §2), which the police had found it con-
venient to use in later times for the purpose
of preserving order in the streets. That it is
a pure fiction is not understood by a great
majority of people.

The Traditional Origin of the Writing of
Irish Customary Law. — Except for Rome and
for those parts of Western Europe in touch

42 HISTORICAL MATERIAL

with Rome, society throughout the early and
middle ages remained stationary. When Rome
fell, when the savages from the north and east
swept down from the German forests on all
that stood for humanity and civilised society
and wiped it out, Ireland to her ultimate
sorrow was exempt from the pangs of the new
birth. She stood then outside the catastrophe.

Rome fell in 410. The Salic laws are said
to have been drawn up before 421 by four
eminent lawmen of the Franks and modified
some sixty or seventy years later by the legal
advisers of Clovis, just as between the days of
Constantine and Theodosius the pagan law
of Rome was modified so as to conform with
the principles if not with the practice of
Christianity. In 438 the Theodosian code
was received in both empires ; about the same
date is claimed for the reduction to writing
of the most ancient of the Irish bodies of
law, the Senchus Mor.

The traditions of its written origin are very
probable. The Christian missionaries would
see to it that the principles of the Theodosian
code recognising Christianity as an official
religion should be the rule of practice among
the peoples to whom they ministered. Patrick
is said to have arrived in Ireland as a missionary
in 432. It is most probable, most natural, and
apart from controverted evidence a matter of
history, that as soon as his influence enabled
him to make any modification of custom, he
should, after the Theodosian code had been

THE BREHON LAW OF IRELAND 43

accepted in the empire, have followed the
regular practice of all early missionaries and
called on his converts to put into writing
their existing customary law, and to modify it
so far as its elements were not in accord with
the Christian principles of the Theodosian
code.

The traditional account, and a very likely
one, is (A.L. IreL, i. p. 15) that Patrick held
a conference with the king and his great men
at Tara, after his ministrations had been ac-
cepted, and that a committee of nine were
appointed, three bishops, three kings, and three
Brehons, doctors and poets, to revise the laws,
and " what did not clash with the Word of
God in the written law and in the New
Testament, and with the consciences of the
believers, was confirmed in the laws of the
Brehons by Patrick and by the ecclesiastics
and the chieftains of Erin " ; and that for the
poets " it was only necessary for them to
exhibit from memory what their predecessors
had sung, and it was corrected in the presence
of Patrick, etc."

As Rome decayed and the barbarisation
of the Roman world proceeded,1 local collec-
tions of laws were written down among the
barbarian races, combining the hitherto un-
written tribal custom with a basis of Roman
law, making use of the Roman procedure

1 Most valuable information and suggestion will be
found in Prof. VinogradofTs little book, Roman Law in
Mediceval Times.

4-4 HISTORICAL MATERIAL

and Roman principles where the customary
law made no provision.

Such would appear to have been the origin
of the writing of the Irish Brehon law, the
written collection correcting, so far as they
were inconsistent with Christian doctrines,
the oral local traditions declared as unchange-
able law through long ages by the poet lawyer
of Ireland. How long before such reduction
to writing took place the law had been carried
down by oral tradition, we have little know-
ledge. But the antiquity of the Irish law is
only doubted because the student of history
is encouraged to believe that no nations have
any ancient history or ancient records apart
from the Jews and the Romans.

A Theory of the Origin of the Unwritten
Law. — The unwritten law remained, without
doubt, in the breasts of the Brehons for
centuries before, as for many centuries after,
its reduction to writing. What was the origin
of this law ? I cannot help stopping for one
moment to vent a personal theory of the origin
of unwritten Irish law which may very likely
have been suggested a hundred times before
to-day, and will probably be laughed at.

Two literatures of civilised life have per-
meated the whole European world — the Greek
and the Roman — with the exception only of
the savages of North Germany with whom
Europe is now in conflict, who never submitted
to any system of civilised life. All the other
peoples have been under the domination of

THE BREHON LAW OF IRELAND 45

the thought of one or the other, and have
adopted their alphabets, unless we are to
except the Irish.

Roman and Greek thought, whether the
Rome of the Twelve Tables or of Gaius or
Ulpian or Justinian, whether the Greece of
Plato or Hippocrates or Athanasius, educated
the Roman and Greek peoples in law and
science and theology. In consequence, the
West adopted from Rome its system of land-
holding and cultivation, and, through the
Roman papacy, the conceptions of injury as
sin, injury to be punished as an offence
against the sovereign State, instead of as tort
against a private person to be compensated
by money payments. To the barbarian
nations of the West the Roman ideas, whether
of landholding or of crime, came from the
earliest times through the Roman missionary.
But the gifts of the Greek, all the sciences,
whether of war or physic or theology or
chemistry, were stingily bestowed, because
the Roman monk had little knowledge of
them, and because he feared them as coming
from a race which disputed with Rome the
dominance of the ecclesiastical world.

One of the peculiarities of the ancient Irish
law is its apparent independence of ecclesiastical
influence ; apparent only perhaps because in a
system of oral common law, which developed
from many centuries away from writing, the
position of the druid or of the ecclesiastic
would be as clearly defined in the memory of

46 HISTORICAL MATERIAL

the Brehon as the position of the lay freeman,
and as little necessary to be formulated in
writing. When and as the customs or their
exceptions came to be written or noted down
by the Brehons in Ireland, the communal
society under which the group family held
lands in common was still the basis of life,
the ecclesiastic was not a caste apart, as he
was under the Roman obedience, so that there
would be no difficulty in the hands of wise
innovators in making the alterations in custom,
necessary to meet the necessities of the tribe
of the saint, conform to the communal customs.

In this respect there is no sign of Roman
origin. There is (e.g. A.L. Irel., ii. 345 et seq.,
iii. 29 et seq., etc.) none of that claim for
predominance of the Church, of the clergy as
a caste apart, which we find ever increasing
in the barbarous laws of Saxon Wessex.

Setting aside the customs common to the
instincts of European life, which might in the
seventeenth century have been ascribed, for
want of more accurate classification, to the
Roman civil law (customs which when they
are noticed by English historians are called
Teutonic), there appears to me to be very
little evidence of Roman law in the Irish MSS.
There is no trace of the patria potestas, or of
any other of the distinguishing features of
Roman social institutions, while there is much,
especially in the position of the wife, which
points directly away from it.

To give a single instance which would

THE BREHON LAW OF IRELAND 47

appear to me to stamp the volume in which
it appears as containing custom of a pre-
Roman and pre-Christian date, I would cite
a passage in A.L. IreL, vol. ii. p. 351, as to
the position of the woman in marriage. Lay-
ing down that both husband and wife could
give legal evidence, a doctrine of itself show-
ing a remarkable advance on early ideas of
the woman's position in society, the Brehon
goes on to give this as a reason : " Though
the law cedes headship to the man for his
manhood and nobility, he has not the greater
power of proof upon the woman on that
account, for it is only a contract that is between
them" It is hard to believe that that last
sentence was the declaration of any Roman
missionary or even of any Brehon of the
Christian era.

Contrast with this the following preamble
to a judgment in the Northumberland Assize
Rolls (Surtees Soc.), p. 275 in 1279. "The
plaintiff, who claims a man as his villein, has
produced as suit but one male and two women,
and for that the said women are not to be
admitted to proof because of their frailty and
also because a male, who is a worthier person
than females, is being claimed, etc." The
English law was dominated by the Eastern
ideas of women's position, the Roman monastic
idea, which had been strengthened by the
Crusades. (But see Bereford in the Year
Books, quoted p. 115 infra.}

What was the origin of this unwritten law ?

48 HISTORICAL MATERIAL

Clearly not Mosaic. The provisions in A.L.
Ire., ii. pp. 359-91, as to contracts made by
husband and wife (" where the wife has the
property the husband stands in the place of
the wife") have no ring of Eastern custom.
I submit that this Irish customary law was
largely of pagan origin, and of a paganism
before the Christian era. The mixture of
barbaric custom resting on primeval socialism
and of equitable doctrines resting on a founda-
tion of philosophic thought forbids us to believe
that the Brehon law of Ireland was only one
of many collections of tribal custom with a
Roman veneer. May it have been indebted
to the Greek?

Original ideas are so scarce that we cannot
afford to bestow any on the small nations of
literature ; the great empires, especially in
their decadence, are generally credited with
the forms of thought which are strange to us
and therefore supposed to be abnormal.

The towering predominance of Rome in
the law and politics of mediaeval Europe,
its escape from the destruction which over-
whelmed the East, and its long imperial papal
history, the ignorance of the Latin monk of
Greek literature and history and his jealousy
of Greek theology induced neglect of the
pagan Greek thought, the thought which
when Rome was in its infancy impressed the
mind of the Western world.

We look to Rome for all political and
military organisation, for roads and aqueducts

THE BREHON LAW OF IRELAND 49

and agriculture, for a great system of law and
for ideals of colonisation. But she offers us
no philosophy of life, no guide in morals, no
theology except obedience to her military
will, no theory of life apart from hard facts,
any more than her imitators who rely for the
propagation of their ideas solely upon brute
force. For philosophical thought, for ideas,
we must look to Greece and to the East.

Csesar, speaking of the Druids of the west
of Anglesey and Man, tells us that they com-
mitted their teaching to memory, but that
they knew and used Greek characters.
Whether or not he was correct in his facts,
it is highly probable that some knowledge of
Greek philosophy, some of the speculative
spirit of the ancient pagan world, might come
to the West with the Greek traders, the
bold seamen who dared the Atlantic from
Cadiz and Marseilles. The ships that went
from Cadiz across to Cornwall for tin might
very likely continue their voyage to the south
of Ireland, and carry with them a knowledge
and a spirit of thought which was foreign
to Rome. When Columbanus proposes to
return to Ireland from Gaul he goes down
the Loire to take an Irish ship from Nantes,
the trade route by which the Greek merchants
of Marseilles shipped their Cornish tin.

I should like to link up the ancient liability
of the Irish women to serve in battle with the
conception of the militant Greek women in the
Republic (v. 457) : " Then let the wives of

4

50 HISTORICAL MATERIAL

our guardians strip . . . and let them share in
the toils of war and in the defence of their
country." The comradeship in war which was
the lot of the Irish women up to 676, with the
equality which such a condition must always
presume, was very exceptional and inconsistent
with the early status of women. But as law
of land holding it could hardly be traced to
Athens, or even to Sparta.

I will be content with asserting the belief
that the ancient Irish customary law was most
probably for centuries before Christ greatly
influenced by Greek thought, and that a great
deal of Plato's imaginary Republic might be
read to advantage by the side of a study of
Irish institutions. There is, I believe, a per-
sistent tradition of Mediterranean origin, that
certain tribes crossed Europe to Ireland from
Mycenae, a tradition which it is not safe
wholly to ignore. And there are a good
many points of likeness between the Greek
and the Irish.

Though there is every reason to believe that
the origin of the writing of Irish customary
law as it is finally found in the Senchus Mor
is correct, and that Patrick did correct the
local customs by his Theodosian law, and that
his scribes did make an abstract of some of
the customs, there is no reason whatever to
suppose that the whole was at once written
down, or that the now existing MSS. represent
the state of the law in Patrick's day. There
are frequent references in the oldest text of

THE BREHON LAW OF IRELAND 51

the Senchus Mor to previous declarations of
the law. All such writing down of early laws
deals only either with procedure, the means of
execution of the law and the remedies, the
proceedings in distress, or with status, with the
question of the capacity to sue.

The Irish law continued to expand with the
needs of a changing society, the commentaries
on the text showing its direction, and it con-
tinued to do so with an equitable practice far
in advance of the English common law, until,
being incompatible with the advantages to
the Crown to be gained by the enforcement
of the feudal doctrines, it was crushed out
and abolished by the Jacobean lawyers, who
imagined, as so many English and Scots then
and since have imagined, that ideas of law
and morals must be evil and unsocial which
would not square with the decayed feudalism
which culminated in the doctrine of the divine
right of kings.

CHAPTER VI

IRELAND AND IRISH LAW FROM THE
ANGEVINS TO THE STUARTS

WHEN Henry II. invaded Ireland, the con-
ception of the king as the owner of the soil
and as the maker and fountain of laws, a con-

52 HISTORICAL MATERIAL

ception incompatible with the Brehon habit of
declaration of law, had not yet become pro-
minent. Henry and his sons took only the
position of lords of Ireland, as of Aquitaine,
taking as Ardri the dues assured to them by
custom, the contributions in kind from the
sub-kings and chiefs,1 varying and increasing
them so far as their power and opportunity
extended, and providing for the needs of their
feudal followers in the same way in the terri-
tories already occupied by the invaders. This
was a practice which did not at all end with
the invasion, but continued for centuries as a
curse upon Ireland, since the restrictions which
regulated the use of the custom as an archaic
means of supporting the rulers of a tribal com-
munity were wrested by the invaders and by
the Irish chiefs who imitated them to justify
perpetual raids and plundering expeditions on
their neighbours' territory to gain a " great
spoil of cows."

Neither Henry nor his sons made claim to
ownership of the whole land of Ireland, nor did
they interfere with its laws as administered by
the Irish. But they introduced the feudal

1 The rights and gifts as between the different rulers
for their several communities are set out with much
elaboration in the ancient Leabhar na-G-Ceart or Book of
Rights, of which two MS. copies are said to be in existence
of the date of the end of the fourteenth century, matter
asserted to have been collected and written down by
St Benignus, the disciple of Patrick, but as a whole from
its contents clearly of later date. St Benignus may have
begun it.

IRELAND AND IRISH LAW 53

customs into the territory which the invaders
controlled, and they made such terms as they
could with the rulers of the tribes beyond their
reach, trying of course always to impose on
these latter with the help of the Church feudal
aids and imposts ; as when in 1205 John
writes to Meyler Fitz Henry to try to get
better terms from the king of Connaught for
a grant to him of Connaught at a yearly rent,
and to procure yearly gifts of cows and other
contributions for the king's castles (C.JD.I.,
vol. i., No. 279).

Where the Irish wished to make use of the
feudal law, which might be to the advantage
of the chief, it was only granted in exceptional
cases as a bought favour; as when in 1215
John grants to Donell Conell the enjoyment
of English law and liberty (C.D.I., vol. i.,
No. 659).

After John's time the feudalising process
strengthens ; the efforts to enforce feudal dues
become more frequent ; e.g. in 1217 the king
commands the justiciary and archbishop of
Dublin to impose an aid on the cities and on
the kings of Connaught and Thomond (C.D.I.,
vol. i., No. 812). The tendency of feudal
doctrines and the unifying influence of the
papacy operated to turn the Ardri, an overlord
taking dues and maintenance, but not concern-
ing himself with land or local government, into
a king who claimed to be owner and donor of
the whole soil, whether he had conquered it or
not, whose laws were the only laws to be

54 HISTORICAL MATERIAL

obeyed, whether or not his writ ran in any
part of it.

It became no doubt increasingly a matter of
difficulty to arrange a mode of living between
two opposed systems of law, one expressing
common ownership of the soil among kinsmen
and a ruler who, like the guardians of Plato's
ideal Republic, was supported by contributions
from the people, the other tenancy of the land
by an individual holder who accepted the
grant from a lord not akin, and generally
absent beyond seas, who claimed in himself
the ownership of the whole soil.

The Roman law had afforded on the Conti-
nent a foundation on which the customary
codes of the barbarians could be supported and
varied. But in Ireland there was no such
basis of law common to both systems. In the
continental development the Romans, though
in the position of a conquered people, held all
the prestige of men who had been the acknow-
ledged masters of the world ; the barbarians
revered their laws and copied them. The laws
of Ireland held no such predominance in
men's minds over the feudal customs of their
invaders, nor had their religious or social
customs such superiority over the refinements
of the English court as to entitle them to an
equal use.

Apart from the Roman law there was no
common ground on which the two systems
could be combined, and after the break be-
tween Henry and John with the papacy the

IRELAND AND IRISH LAW 55

English lawyers were not willing to look upon
the civil law in any other light than as the
intrusive system of an alien enemy. Hence-
forward jealousy of the civil law hastens the
imposition of the feudal customs on Ireland.

The Conflict between English and Irish
Law. — After the English had lost their conti-
nental possessions and had failed to retain their
hold on Scotland, the existence of the two
systems side by side became impossible.
When the settlers in the English pale gave
way before the counter-attack of the native
Irish in conjunction with the old Anglo-Irish
feudal lords acting as Irish chiefs under the
Brehon law, the English kings, unable to en-
force feudal custom upon the Irish whether in
or beyond the pale, took the course of treating
the Brehon law as "wicked and damnable,"
" hateful to God and repugnant to all justice,"
" which reasonably ought not to be called law,
being a bad custom." They refused to ac-
knowledge it in any form and punished where
they were able both those who obeyed its
provisions and those who administered them,
while refusing to the Irish except in the most
especial cases the use or benefit of their own
Anglo-Norman customs. They do not appear
ever to have attempted to understand either
the principles or the practice of the Irish law.

How far the Anglo-Norman law could be
enforced depended from henceforth on physical
strength, which becomes the sole test of
obedience. The English king from being an

56 HISTORICAL MATERIAL

acknowledged Ardri, acknowledged apparently
quite as much as any of his predecessors of
Irish origin, becomes a foreigner imposing a
foreign yoke on a reluctant people. The two
systems of unwritten law, English and Irish,
each beautifully unconscious of the ideals which
lay at the heart of the other, struggle on side
by side through the centuries, the one sup-
ported by the papal power resting on the
king's dominium, on the theory of the grant
of all land to individuals or communities, the
other, outlaw and prohibited, on a concep-
tion of social life in which all had the use of
the land. The longer the conflict went on, the
more bitter it grew, the weaker politically and
the stronger nationally grew the social ideals
before the physical force, first of England and
later of England and Scotland combined, be-
fore the federal power of the king as owner of
the whole soil.

The English officials wished to vest large
districts in the grantors of the Crown, whose
estates, held upon feudal tenure, would be
subject to forfeiture for treason. But the
Irish, who all had some interest in the common
soil, fought against feudal tenure and primo-
geniture, and the Anglo-Irish relapsed into the
position of the tribal chief who shared the
lands with the sept. This deprived the Crown
of its powers of forfeiture and made it difficult
to enforce feudal rights.

The barbarous law of treason, developed in
the time of Edward III., gave him the right to

IRELAND AND IRISH LAW 57

treat as dishonourable traitors men who had
met him as honourable foes in the fair field, on
the ground that they owed him fealty. As
the feudal law recognised no rights of the
society apart from the king's grant, the law
enabled the English king to seize to his own
use the lands of the community in which the
chiefs, whom he had goaded into rebellion, had
the greater share.

It also enabled him to include under the
definition of treason any social custom, such
as fosterage, which conflicted with feudal
authority or with the dues which formed part
of the profits of the Crown.

To what this led may be seen in the urgent
suggestions of Spenser and others for the use
of the most barbarous methods. " In the last
general war over there," says Spenser, " I
knew many good freeholders executed by
martial law whose lands were thereby saved
to their heirs which should otherwise have
escheated to her Majesty."

As the struggle went on the oral decisions
of the lawyer caste of the tribe might yet
command wide acceptance so far as his
personal following went, as arbitration en-
forced by the boycott of the community, but
they lost all the prestige of law governed by
an imperial sanction. To the English the
Brehon law became only the " bad custom "
of a banned and outlawed alien enemy, regu-
lating the life of an outlawed race with whom
the State was waging a bitter and relentless

58 HISTORICAL MATERIAL

war, and as custom which was a fundamental
cause of their want of success.

Meanwhile the oral decisions of the same
lawyer caste in England were building up
the English common law which was to be
forced on Ireland.

As a result, by the time when a genuine
effort was made to deal with the conditions,
when James I. and VI. thought fit to receive
all the Irish into his protection, and model
their holding of land under the decayed
feudalism of his day, the evil had sunk too
deep into the heart of Irish society to be
remedied by any such measures. "Even
where the Irish profess subjection," says
Spenser, " they practise the Brehon laws
among themselves." But such Brehon law
had by this time sunk to the condition of
being a collection of local customs, and the
Brehon had become only a private, literary,
local counsel and legal adviser of the tribe or
family, an arbitrator in disputes among friends.

We have incidental notices from time to
time after the English invasion of the Irish
Brehon ; but it is under the shadow of this
idea of the divine right of the king as fountain
and only source of law that for the most part
we get our notices of the poet-lawyer historian
of Ireland. It is a study of conditions at once
appalling and puerile. A people living them-
selves in the midst of a revolution in every
phase of thought, just beginning to apprehend
a great literature, recasting ideas of religion

IRELAND AND IRISH LAW 59

as in a hot furnace, were incapable, wrapped
up as they were in a truly German belief in
their own mental and moral superiority over
other peoples, from pure self-conceit and racial
self-interest, of appreciating the value of legal
ideas which conflicted with their own common
law, or of seeing in them anything but what
was evil.

They had lost sight of the conception of law
as the declaration of custom agreed to by the
whole people, and as binding on them because
made by themselves, and thought only of it
in the Roman sense as the act of authority of
the anointed king in some sense inspired.

" This I must say for Scotland," says James
in a speech to the English Parliament in 1607,
" and I may truly vaunt it ; here I sit and
govern it with my pen, I write and it is done,
and by a clerk of the council I govern Scot-
land now which others could not do by the
sword." In 1609 he goes further to a position
incompatible with social organisation in which
the people were to have any share in the mak-
ing of the law : " The state of monarchy is
the supremest thing upon earth ; for kings are
not only God's lieutenants upon earth and sit
upon God's throne, but even by God Himself
they are called gods." When kingdoms, he
said, began to be settled in equity and polity,
" then did kings set down their minds by laws
which are properly made by the king only
... it is presumption and high contempt
in a subject to dispute what a king can do

60 HISTORICAL MATERIAL

or say that a king cannot do this or that, but
rest in that which is the king's revealed will
in his law." It is from a society imbued with
such theories that we have many notices of
the Brehon and of Irish history.

CHAPTER VII

THE POET-LAWYER HISTORIAN IN
PROSPERITY AND IN DECAY

In Ireland. — As each part of the islands in
which the customary law was that of the
communal society came into conflict with
the feudal law of England and of south-eastern
Scotland her imitator, the invader set his face
against the poet-lawyer historian caste, and
legislated not only to destroy the law but to
abolish the Brehon who administered it. He
was banned by statute, he was steadily written
down by monks and travellers and authors
and Anglo-French lawyers, and he was pre-
vented as far as possible from exercising any
branch of his profession.

The prominence which Ireland obtains
throughout her history in this respect has
been owing to the fact that with her the
conflict of legal system began and long con-
tinued when her communal form of society
was in full operation, while in other parts of

THE POET-LAWYER HISTORIAN 61

the islands the battle was only fought when it
was in a state of decomposition or decadence,
or when other causes, such as the nearness to
England or the expansion of trade, which,
owing to the English control of the seaports,
has always been denied to any part of Ireland
except to Ulster,1 had reconciled men to the
feudal society. If there had been no strip of
sea dividing Ireland from the larger island, or
if Ireland had been too barren or like Man too
insignificant to invite aggression, there would
have been no Ireland — in politics.

In their period of prosperity the Brehon
lawyers would seem to have been a well-
organised, highly educated class of men of
business, very expert in their profession,
covering with efficiency all the branches and
alley- ways of legal procedure, ready as lawyers
to prepare and argue statements of facts, or
as arbitrators to decide questions of law, or as
bailiffs to watch or take part in the distress or
other actual proceeding involved in the case,
so as to ensure the correct carrying out of
the technical forms. They are mentioned as
doctors (ollams) of the law, called in to decide
doubtful points, and as poets or advocates to
argue them. The Ollam of Brehons was one
of the highest class, the lawyer employed to

1 Henry II., when he released to Strongbow his rights
over the territory conquered, kept in his hands the sea-
ports of Dublin, Waterford, and Limerick, to secure his
entrance into the country and to enable him to control
the sub-kings. See C.D.I., vol. i,, No. 235.

62 HISTORICAL MATERIAL

pronounce judgment in a case ; "a head in
mire," it is said, " is the direction of a pleading
unless it is under the direction of an ollam "
(A.L. IreL, v. p. 101).

They had, as lawyers always have had and
ought to have, pupils trained in the practice
of the law, entrusted to them in literary
fosterage, the pupil being in the place of a
son to the teacher who trained and chastised
him, the pupil committing to memory the
poems and aphorisms or condensed rules
which contained the law as to status, and
social relationship, and procedure and damage
or compensation for injury. The pupil shared
his first fees with his teacher, and either took
a place in the rules of succession of property
to the other.

The caste had also schools for legal educa-
tion, in which well-known doctors lectured
and propounded problems of law for discussion
and resolution in archaic verse.

Describing how the Book of Aicill ( Aicill is
the name for the hill of Skreen near Tara, in
Meath), a compendium professedly of the
opinions of two lawyers, Cormac (A.D.
227-266) and Caenfaeladh, came to be written,
the compiler tells how Caenfaeladh, who had
been wounded in a famous battle at Magh
Rath in 642, came to Toomregan in Co.
Cavan to live. Toomregan was the residence
of teachers of literature, law, and poetry, and
"whatsoever he used to hear rehearsed in
the schools every day, he had by heart every

THE POET-LAWYER HISTORIAN 63

night, and he put a fine thread of poetry about
them and wrote them on slates and tablets
and transcribed them into a chalk book"
(cailclibair}.

Here we come to the first connection of
the oral tradition with the written manuscript.
The historical student or the lawyer carries in
his remembrance the unwritten text as it is
declaimed by the lecturer, or as he hears it in
the pleadings before the official arbitrator, or
as he picks up the rumours which are handed
about the monastery or the court ; also the
unwritten commentary which has been handed
down by memory for centuries with the
interpretations and additions of many genera-
tions of poet-lawyer historians which is taught
in the schools, and he puts a fine thread of
poetry about it and writes it down. Many
students are at work on the same facts or the
same legal problems in the same way at the
same time ; many bits of history or law are
so digested and written down from memory
and pass from mind to mind ; and if the little
bit of parchment escapes the perils of water
and fire and mould, and the needs of the shoe-
maker, or the desire of some later student to
preserve something more interesting to him-
self on a palimpsest, the slight notes develop
in time into the original history of William
of Malmesbury or Walter of Coventry, or into
the Treatise on Social Connections or the
Year Books.

We may with very little hesitation ascribe

64. HISTORICAL MATERIAL

a like origin to the Year Books. The young
barrister hears the arguments of cases in court
or the talk among the advocates and clerks
outside the court. He makes notes of what
he hears at the time, possibly on parchment,
but as a much more likely habit notes in his
memory, as making rough notes on parchment
would be both expensive and inconvenient and
less likely to be accurate.

Then at his leisure, after comparing his
memories with those of others, they are
corrected and amplified with the jokes of
Bereford or the disputes of Sharshulle and
Stonore, and are written down in the common-
place book with all sorts of other things in the
form in which they have come down to us.
They are occasionally not contemporary.

An Aristocratic Profession. — As was the
case in all tribal communities, societies which
realised that equality was incompatible with
the liberty which they enjoyed, the poet-lawyer
historian class was aristocratic, there being a
strict gradation of rank, each branch of the
profession conducting the business of its own
class. An advocate of the upper class could
not plead against one of a lower ; if a plaintiff
of a lower class was proceeding against one of
a higher, he must employ an advocate of the
higher class, and vice versa (A.L. Irel., ii.
pp. 85-87).

The profession was also most scrupulous
that no unfit person should be a member. A
stranger (that is, one not akin to the sept), a

THE POET-LAWYER HISTORIAN 65

bondman, or a landless man could not act as
a law agent or advocate, as he could not enter
into any agreement for his clients which the
community could not set aside (ibid., p. 87).

The Divisions oftJie Law. — The Irish MSS.
contemplate three sources of this common law
in which the Brehon must be learned. He
must be learned in " Feinechus," the un-
written common law of the freemen, the law
of nature, as it is called, in contrast with the
written law of Patrick ; he must be learned in
poetry so far as the Feinechus is concerned
therewith, that is to say, he must be acquainted
with the traditionary unwritten commentary ;
and he must be learned in " the white
language," glossed as one who is learned in
" reading so far as the Feinechus is concerned
therewith." To the Feinechus all is referred,
and it would seem that it is the Feinechus
law reduced in later days to writing and not
the " white language " itself which has come
down to us in the MSS. of the Brehon laws
(A.L. Irel., v. p. 93).

These sources of law are in turn sub-
divided into the Cain or Canon, the customs
applying to all the country, the general ground-
work of social law ; the Urradhus,1 the local
modifications ; and the Cairde, the interterri-
torial customs or intertribal agreements relat-
ing to unwritten treaties between the tribal
communities for whose performance the king

1 Cain and Urradhus are contrasted in A.L. Irel., iii.
p. 237.

5

66 HISTORICAL MATERIAL

and the people give hostage pledges (A.L. IreL,
iii. p. 135).

Like our English common law, all these
common laws had remained unwritten, handed
down by tradition only and by daily use, and
only altered by the community. The people,
it is said, proclaim Feinechus law (A.L. IreL,
iv. pp. 56, 97, 169, 241, 335, etc.). There
is no trace anywhere in these laws of new
legislation. The law when written down was
the stationary custom of a stationary society.

Like the Indian laws of which Sir Henry
Maine speaks (Early Law and Custom., p. 9),
and other bodies of law of which we have
knowledge away from the influence of Roman
law, they may be affirmed to consist of " a
very great number of local bodies of usage
and of one set of custom reduced to writing
pretending to a diviner authority than the
rest, exercising consequently a great influence
over them and tending if not checked to
absorb them."

Even where there is a strong federal autho-
rity, backed by limitless force, freemen prefer
as far as possible to settle their affairs locally
between themselves without applying to what
may be only too often a tyranny of fools.
Much more when the federal authority was
weak or non-existent, the greater part of the
body of social transactions was disposed of
by the chief of the local community assisted
by his Brehon adviser, or under feudal law
by the corresponding lord of the manor and

THE POET-LAWYER HISTORIAN 67

his bailiff, a vague and very wide jurisdiction
not only unwritten but unrecorded. The
heroes and heroines (i.e. people of the chieftain
class) and the tuaitha (translated country people)
were ruled by their own chief (A.L. IreL, iii.
p. 15), much as the greater part of offences
and disputed questions are disposed of to-day
by magistrates paid and unpaid, and not by
the High Court. The system is going on
now in the same way.

The Intellectual Development of Law. — The
commentary could not fail to be eminently
scholastic. In such a stationary archaic society,
when men began to argue points of develop-
ment of law, they could be guided only by
an abstract sense of fairness and convenience,
as an evil declaration of custom would per-
manently react upon themselves, or by the
pleasure, like the schoolmen, of intellectual
disputation, to which both English and Irish
law owe much of their development.

This gives the commentary, to the layman,
the appearance of over-refinement, of unreality,
of being a mere exercise of the imagination,
a dissertation for pupils. The lawyer would
know that it was not so.

The tribal lawyer caste of Ireland at least
professed and tried for a high ideal. " Three
falsehoods which God most avenges in a
territory," says the Brehon (A.L. Irel., iv.
p. 53), " are additional gain by false contract ;
decision by false witness ; false judgment for
hire." As far as we can judge from the

68 HISTORICAL MATERIAL

Brehon laws and the Annals, the lawyers at
least acted up to their principles.

If we follow the poet-lawyer historian into
the other parts of the islands, we shall find
the same characteristics of oral tradition, the
Brehon as judge, as advocate, and as executant
of the law, and the chief, the country gentle-
man wealthy in cows, acting as justice and
holding his local court, informed by his Brehon
for local matters, as was Mr Justice Shallow
of the rotulorum, and Mr Justice Western,
who proposed to commit his sister's maid to
gaol for ill manners.

CHAPTER VIII

THE POET-LAWYER HISTORIAN IN HIS
PROSPERITY AND HIS DECAY

In Wales. — The tribal system in Wales would
appear to have been modified from the first by
the early connection with Rome and England.
The ecclesiastic with his exceptional status is
more prominent in the laws, though, judging
by the accounts given of his difficulties as
archdeacon by Giraldus, there had been much
backsliding by his time. Yet the ecclesiastic,
though he might have the necessary qualifica-
tion to sit in judgment as a member of the
sept by privilege of his land, could not pass

THE POET-LAWYER HISTORIAN 69

sentence, as he could not be punished for
wrong judgment (A.L. JFi, Dim. i. xxxi. 2),
which means that the church community
could not be mulcted for his fines.

Another difference is that, unlike the Irish,
the Welsh laws, though the passages may
refer to a late date, show some connection
with writing. For instance, the Anomalous
Laws, xiv. xlv., treating of appeal from
judgment, refer to a "decision in written
authority through the arguments of the learned,
for law books are of public unquestioned
authority, and it pertains to credit the best
book and the book of the best judge." In the
preface to A.L. W., Ven. in., it is stated that
Jorwerth the son of Madog, who is credited
with compiling the Venedotian code, collected
his laws from divers books there mentioned.
A.L.W., Dim. i. xiv. 24, also refers to written
laws as used to decide a question of disputed
judgment (and A.L. W., Anom. xui. ii. 195).
The books are generally spoken of as the work
of the judges.

Apart from such exceptional matters, which
are not numerous, the glimpses we get in the
Welsh laws of the profession show character-
istics very similar to those of Ireland, and the
account of the origin of Howel's laws tallies
with that of the Senchus Mor and of the
Salic laws.

The account (in the Preface to A.L. W., Ven.
in.) says that Howel Da summoned to him six
men from every cantrev, four laics and two

70 HISTORICAL MATERIAL

clerks, and that the cause for bringing the
clerks was lest the laics should introduce what
might be contrary to the Holy Scripture.
This is followed by confirmation at Rome.

In the Welsh laws the chiefs or manorial
court is very prominent. They contemplate
the hearing of cases relating to land before the
lord, assisted by judges and priests (A.L.W.,
Ven. n. xi. 10-30). When there is a case in
the lord's court there is with him as assessor
not only a judge of the superior court who
had jurisdiction over the whole kingdom, but
a judge of the district, the cymwd, a division
consisting of fifty townships, being a half of
the great legal and administrative unit of the
hundred or cantrev (A.L.W., Dim. n. viii. 11 ;
Anom. xin. 213). The Brehon who acts as
judge is appointed by the chief of the cymwd.

But it is not the lawyer or judge who makes
the court or the laws. In all early society the
king, the chief, the lord, the country gentleman
dispenses justice ; the common lord is an
essential for the administration of the law as
for the making of it ; no land must be without
a king who has a court and criminal jurisdic-
tion (A.L.W., Ven. n. xii. 8 ; Anom. vm. xi.,
13 ; A.L. IreL, ii. 281), for to no one does the
privilege pertain but to the lord of enacting a
law, and neither is that privilege invested in
him but with the consent of his country and
kindred in convention (A.L.W., xin. ii. 62).

In the Welsh laws we find the equivalent
of the Irish geilfine chief, the head of the

THE POET-LAWYER HISTORIAN 71

group family, a judge who has jurisdiction by
privilege of land as a freeman, the chief over
the community occupying the common land.
The lord of the manor in England has similar
jurisdiction over the people in his territorial
unit, but the kinship is absent.

There is a curious description in the Preface
to A.L. W.9 Ven. in., of the making of a judge.
One wishing to be a judge learns (equivalent
to reading in chambers ?), and his teacher com-
mends him to the judge of the court, who
proves him and recommends him to the lord,
who invests him with judicial functions. As
the judge was liable to pay for a bad judgment,
the mode of election was probably better than
it seems.

In the Isle of Man. — Up to 1270, when
John Comyn and Alexander Stewart landed
an expedition in Man to enforce the cession
of the island made by Magnus of Norway in
1266 and totally defeated the Manx, who lost
the flower of their people in battle, the Isle
of Man rested under its long line of Scandi-
navian kings. Then and afterwards, under
the guarantee of both Scottish and English
kings, it preserved its communal laws until
a late time.

All writers who mention the Manx laws
speak of them as unwritten up to the middle
of the seventeenth century and testify to
their beneficial character. Blundell, writing
in 1648-56 (History of Man, Manx Society),
says of them : " There never was nor at this

72 HISTORICAL MATERIAL

day is any one treatise extant written, printed
or in any way published — which conteyneth
any entire catalogue of their laws and cus-
tomes or jurisdictions. After the jus innatum
(that is the common law of all the world)
they had a jus non scriptum as a thing holy
and sacred and by them delivered to posterity
by oral tradition only. From all antiquity
and even down to this day the Manxmen
doe call these lawes breast lawes, as being
deposited and locked up in the breasts of
their deemsters only." He also asserts that
their laws and customs had never changed.

Deemster Parr, who about 1693 made an
abstract of the laws then in use (never
printed), says in his dedication to the Earl
of Derby : " Many of these lawes have hereto-
fore (and partly yet) been held, retained and
exercised only traditionally and no entrance
made of them upon record but such as did
fall out upon the transaction of certain cases."

The making and the declaration of the
laws, which agrees fully with all we know
of the declaration of customary law in Ice-
land, the Orkneys, Ireland, and elsewhere, is
described in Chalmers' Treatise (vol. x.,
Manx Society), as follows: "The Governor and
Officers do usually call the 24 Keyes of the
Island especially once every year, viz.: upon
Midsummer day at St John Baptist's Chappell
to the Tinwald Court, where upon a Hill
near unto the said Chappell all the inhabitants
of the island standing round about a fair

THE POET-LAWYER HISTORIAN 73

plain they hear the Laws and Ordinances
agreed upon before in the Chappell and
published and declared unto them." Waldron,
writing in 1726, says : " The law suits are
neither expensive nor tedious, every man
pleading his own case, and bringing the
matter into Court by purchasing for twopence
a token (a piece of slate marked with the
name of the Governor) from the Governor
or Deemster." When the deemster required
information as to articles stolen, the whole
neighbourhood was summoned before him, and
every individual must either acquit himself
by oath or on refusal be considered guilty.

It was not likely that the Anglo-Norman
lawyers would approve such simplicity of
legal procedure. The Brehons who practised
as advocates when required were described as
" a kind of lawyers who take fees," 1 and in
a statute in 1763 as "ignorant and evil-
minded persons who provoked law suits and
pretend to practise as attorneys therein."

In 1429 Sir John Stanley commanded the
" breast lawes " to be written down ; but in
spite of this the Brehons continued until the
middle of the seventeenth century to ad-
minister their unwrit opinions.

Unwritten Law in the Orkneys and Shet-
lands. — We have to go to the Icelandic and

1 The deemsters as late as the seventeenth century
were paid by a voluntary contribution of custom (Ham-
ing's Guide, p. 105, quoted by Train, History of Man,
vol. ii. p. 207).

74 HISTORICAL MATERIAL

Norwegian Sagas to find for the Orkneys
and Shetlands and the countries north of
the Shin and Oikel accounts of the unwritten
law or of the Brehon as he appears in very
early times in Ireland and Man. The docu-
ments relating to legal proceedings in these
islands contained in Johnston and Clouston,
which follow the usage of the Norwegian
courts to which the islands belonged, do not
date back much before the fourteenth century.

In early days the earl acted so entirely as
impromptu arbitrator in this confined district
that there can have been little room for the
refinements of law. There is no recognisable
allusion to any kind of Law Thing in the
O.S. The procedure would seem to have
been on the lines of an incident depicted in
the O.S., chap. 90 (1150-51).

Sweyn, a noted viking, who had killed a
man, sent word to Earl Rognwald, asking
him to take "an atonement for the slaying
of Arni Spindleshanks. And as soon as these
words came to him (the earl) summoned to
him all those who had the blood feud for the
slaying of Arni, and made matters up with
them so that they were well pleased, and he
paid up the price himself. Much other mis-
chief the earl made good with his own money
that was wrought that winter both by the
Easterlings (the Germans) and the Orkney-
ingers, for they pulled very ill together." We
find these payments by the king or chief on
account of one of the community in all parts

THE POET-LAWYER HISTORIAN 75

of the islands, in England developing into the
jurisdiction of the lord of the manor as the
man responsible for the community. The
chief who paid had a hold over the man for
whom he had paid.

The Pagan Thing, which plays such a great
part in the Icelandic Sagas, the general
Assembly to which the contending parties
came set up their booths and tied their horses,
prepared to traffic or argue subtle law points
or fight, a great legal fair which like the Court
at Tynwald in Man assembled at certain
specified times "to establish and make laws,
to reform abuses and to treat of anything
which conduced to the public good of the
island," faded eventually into the Law Thing,
governed until 1670 by Norwegian law, the
Law Courts both head and local having a
foud or president, a lawman the judge or
assessor who took evidence and made decrees,
and roithmen the assize of neighbours drawn
from the most prominent hereditary udallers
of the district. In Shetland, which fell
earlier under the federal rule of Norway, the
local men were replaced by a well-defined
official class.

But the written records, as they have come
to us, are few and late and show strong indica-
tions that the proceedings in court, even when
"the suits wrere called, the court lawfully
fenced, the assize chosen and admitted," were
wholly or almost wholly verbal. There were
no deeds at all except those between the most

76 HISTORICAL MATERIAL

powerful people until the Stuarts used them
to deprive the udallers of the lands held by
unwritten title. The first deeds between
parties early in the fourteenth century in the
collections both of Clouston and Johnston are
simply memoranda of conveyance by verbal
agreement confirmed by handshake.

In a conveyance of lands in Shetland in
1355 (Clouston, No. vi.) the parties recite,
" We were present and saw the handshake " ;
(No. vii., 1360), " We have made an agreement
with handshake, it was settled under this our
handshake," the parties to the deed of con-
firmation not being able often to write their
own names.

In a decree of court held by the sheriff-
substitute of Orkney (Clouston, No. Ixv.) in
1578, the assize of twelve named men headed
by David Scollou scriba curios pro tempore
signed the decree " wyth owir handis led at
the pen of David Scollow." The transaction
to which the decree referred had been a verbal
agreement made forty years before between
brothers and sisters for the purchase of the
sister's lands to prevent the alienation of
the family property. The heirs of the sisters
disputing the matter, witnesses testified to a
release by conversation between the original
parties " sittand at their supper."

The written documents were generally
directed to all who "see or hear read this
letter." Even where, in 1538, after verbal
evidence the " tenor of letters " was offered

THE POET-LAWYER HISTORIAN 77

(Clouston, No. xliii.), they were letters from
" honest reputable men who then came before
us in the court with living voice and full
sworn evidence." The verbal evidence was
heard by many in public court ; it was accept-
able as being the best evidence, far more
reliable than the written documents which
could be very easily forged, a forgery difficult
to detect after a few years by men the busi-
ness of whose lives lay in action.

So long as the right of alienation of land
was limited in the communal system by the
reversionary rights of the heirs, the conveyance
of land by deed must have been, except for
church purposes, a very exceptional matter.

Procedure in Communal Cases. — Neither in
the Irish, Manx, nor Orkney records is there
any suggestion of written pleadings. In Wales
hearsay evidence was allowed in land cases
(A.L.W., Gwent n. xxxvi.), care being taken
that the necessary technical words and actions
were performed and spoken. The pleadings
must have been brief, as both parties knew
not only the facts but the general principles of
the customs. The advocates or parties argued
only on the application of the custom and the
measure of damages.

The fee payable in Ireland to the Brehon
in the carrying out of this cheap and ex-
peditious justice was, for the conduct of the
whole case, one-twelfth of the thing in
demand. This was not merely an advocate's
fee ; it was evidently an inclusive fee for

78 HISTORICAL MATERIAL

carrying out all the proceedings taken by the
advice of the advocate, including the duties of
writ-server and bound bailiff — in fact, all the
proceedings in a distress from start to finish.

For example (A.L. Irel., in. 317-19, of
every levy its third), the Irish law, speaking of
levying to enforce payment, contemplates a levy
beyond the boundaries of the community, and
the case where the man cannot be approached
without swimming, or without a boat, or
without a long round by land. In these cases
the Brehon, besides his fee of one-twelfth,
received a mileage of one-fourth to one-half
according to distance. As the legal profession
performed these actions in person, we must
picture the Brehon swimming to serve notice,
and possibly fighting on landing.

Swimming was not the only physical
exercise in which the conduct of a case might
involve the learned advocate. " Three," say
the Irish laws (A.L. IreL, i. 1289, ii. 125), " are
at the carrying off of a distress, i.e. a plaintiff,
a distraining advocate (a pledge man, ii. 125),
and a witness who has honour price " (i.e.
a responsible freeman) ; " and four awaiting
it at the pound of the plaintiff, a pleading
advocate, a witness who has honour price, a
contract binder (i.e. a guarantee or surety), and
a hostage."1 It is possible that for his twelfth
the Brehon might be constrained to head off
across unenclosed and possibly wooded country

1 The ancient text of ii. 123 expresses it aphoristically,
" three carry off to four " ; also i. 227.

THE POET-LAWYER HISTORIAN 79

a heifer making for home, or to defend him-
self with his fists against a defendant who
objected to the seizure of his cow. The
lawyer of the richer country naturally despised
such men.

CHAPTER IX

FOREIGN AND NATIVE NOTICES OF
THE BREHON

BY the opening of the seventeenth century the
violence through which Ireland had passed,
her geographical position off the commercial
routes of the world, the exclusion of the native
Irish from the seaports, the general use of
writing, and the persistent depression and per-
secution of the Brehon law by the English
Government as creating serious political diffi-
culties had so diminished the prestige of the
poet -lawyer historian as a class as to leave
him as little else than a mere registrar of the
customs and arbitrator in the local quarrels of
the tribe or sept of which he was the Brehon.
It is at this period of their decay and of their
humiliation that we have several most in-
structive notices of these men and of the law
they taught, for the most part from their
enemies the English — notices which are of
interest as showing the different views taken,

80 HISTORICAL MATERIAL

apart from the official animus against the
caste and its law, by onlookers of the oral
tradition which had so entirely passed out of
use for the classes who could read.

The Four Masters, quoting an entry in the
Annals of Clonmacnois of the death of a very
learned Brehon there described as "the best
learned in Ireland in the Brehon lawe in Irish
called Fenechus," add the following note by
the seventeenth - century editor : " This
Fenechus or Brehon lawe is none other but
the civill lawe which the Brehons had in an
obscure and unknown language, which none
could understand except those who studied
in the open schools they had. Some were
judges and others were admitted to plead in
the open air as barristers, and for their fees,
costs, and all received the eleventh part [the
twelfth, A.L. IreL, iii. p. 305] of the thing in
demand of the party for whom it was ordered.
The loser paid no costs. The Brehons of
Ireland were divided into several tribes and
families, as the MacKeigans, O'Deorans,
O'Breasleans, and MacThollies. Every con-
trey had its peculiar Brehaire dwelling within
itself, that had power to decide the causes of
that contrey and to maintain their contro-
versies against their neighbour contreys, by
which they held their lands of the lord of the
contrey where they dwelt. This was before
the lawes of England were in full force in this
land and before the kingdom was divided into
shy res."

NOTICES OF THE BREHON 81

Camden in his Britannia says : " The
nobles and potentates aforesaid have their
lawyers belonging unto them whom they
term Brehons . . . who being a sort of most
unlearned men, upon certain set days, upon the
top of some excessive high hill, sit to minister
justice unto the neighbour inhabitants between
such as are at variance and go to law. ... If
any be convict evidently of theft they give sen-
tence either to make retribution of the same
or recompense by a fine imposed upon them."

We can take choice of the two seventeenth-
century theories that they administered the
civil law or were a set of most unlearned
men — or is it just possible that the uncritical
English critics were most unlearned men ?

The Irish Annalists at least knew the differ-
ence between the Irish law in the " obscure
and unknown language" which required an
education in the schools, and the civil law of
Rome. The Annals of Ulster, ii. 61, record
the death of Domnall Na Enna, " eminent
Bishop of the West of Europe and Font of
generosity of the world, Doctor of either Law,
namely of the Romans and of the Gaidil."

The comments were not all of this ignorant
nature. There is an interesting reference to
the Brehon law in a Briefe Description of
Ireland, published in 1589 by one Payne, an
Englishman who had been in the country.

In 1586 Gerald Fitzgerald, the sixteenth
Earl of Desmond, had been attainted, and the
lands of which he was chief, amounting to

6

82 HISTORICAL MATERIAL

574,628 acres, were forfeited to the Crown, the
feudal lord ignoring any rights in the land of
the society of which he was chief. Elizabeth
encouraged settlers in Munster to take up the
forfeited land. Payne was an undertaker
(that is, he had agreed to settle a large tract
of land), with twenty-five other men, each of
them receiving 400 acres in Co. Cork.

There is no evidence of partiality in Payne's
account, but he could hardly have wished to
descant on anything which might discourage
his partners in their venture. He speaks very
highly of the Irish, and amongst other words
of praise he says : " They keep their promises
faithfully and are more desirous of peace than
our Englishmen, for in times of warres they
are more charged. They are obedient to the
laws, so that you may travel through all the
land without any danger or injurie offered of
the very worst Irish and be greatly releeved
of the best.

" As touching their government in their cor-
porations where they bear rule, is done with
such wisdom, equity and justice as demands
worthy commendations. For I myself divers
times have seen in several places within their
jurisdictions well near twenty cases decided
at one sitting with such indifferencie that for
the most part both plaintiff and defendant
hath departed contented. Yet many that
make shew of peace and desireth to live by
blood do utterly dislike this, or any good
thing that the poor Irishman doth."

NOTICES OF THE BREHON 83

The literary and legal writers of the seven-
teenth century and even of the centuries before
seem to have been well aware in their minds
of the healthy character of the unwritten law
which they set about to destroy, and of the
good character of the men who administered
it. But they were deterred by some hidden
cause from applying their knowledge.

I should suggest literary conceit, the vanity
which rests upon a consciousness of supposed
mental superiority, such as has overtaken the
German people at the present day, as one
cause ; the great Elizabethan and Jacobean
world of poetry and prose in its prime could
not fail to despise the undeveloped imaginative
literature of the politically weaker nations, ex-
pressed in "an obscure and unknown language,"
of which they were wholly ignorant.

Another cause affecting the legal profession
was the jealousy of any system of law which
might compete in ever so small a degree with
the English common law which had stood by
itself as a bulwark against the pretensions of
Rome. The belief that the unknown law in
the unknown tongue might prove to be the
civil law in disguise must, I think, have helped
to bring about that extraordinary habit of
trying to govern and to absorb Ireland, in
unbounded ignorance of her history, literature,
and laws, which, coming to full fruition in the
seventeenth century, has enured to our sorrow
to the present day.

They all apparently appreciated the prin-

84 HISTORICAL MATERIAL

ciples on which laws should be imposed on
the people, and to some extent recognised the
value to the Irish of the institutions which
they set about to destroy.

Spenser speaks of the Brehon law as " a
rule of right unwritten but delivered from one
to another, in which oftentimes there appeareth
great shew of equity," though he at once pro-
ceeds to point out its evils. But he realises
the folly of forcing the English law relentlessly
on Ireland. Laws, he says, ought to be
fashioned unto the manners and conditions of
the people to whom they are meant, and not
be imposed upon them according to the simple
rule of right. He impresses that the excellence
of the English laws had come through civil
commotion and the continual presence of their
king, that is the power to enforce them. " No
laws of man," he very truly says, " according
to the straight rule of right are just but as in
regard to the evils they prevent and the safety
of the commonweal they provide for." But
carrying his views into practice he urges and
defends measures of cruelty and repression
which made a desert of the beautiful land and
left centuries of civil war behind them.

The lawyers write with full appreciation of
the effect of the unwritten law on the society.
Chief Baron Finglass, in the reign of Henry
VIII. (quoted in vol. ii. of Tracts relating to
Ireland, Irish Archasol. Soc., 1843), contrast-
ing the good observance of the Brehon laws
with the ill keeping of the laws made in Eng-

NOTICES OF THE BREHON 85

land, says of them : " Divers Irishmen dothe
observe and kepe souche laws and statutes
which they make upon hills in their country
firm and stable without breaking them for any
favour or reward," a judgment which would
come home to anyone who has read Mr Pike's
account (Preface to Y.B. 20 Edw. III., vol.
ii. p. 50) of the conditions in England in the
year 1438, not long before the enactment of
the Statute of Kilkenny to destroy the " bad
custom " of the unwritten law of Ireland.

Coke, praising the laws of the Isle of Man,
" the like whereof are not to be found in any
other place," says of the Irish : " There is no
nation of the Christian world that are greater
lovers of justice than they are, which virtue
must of necessity be accompanied by many
others " (4 Inst., 349) ; and Sir John Davies,
James I.'s Attorney-General, pays the same
tribute to the speedy and satisfactory admini-
stration of the unwritten law and to the law-
abiding character of the Irish people.

In his Discovery he uses almost the words of
Coke : " There is no nation of people under
the sun that doth love equal and indifferent
justice better than the Irish, or will not rest
better satisfied with the execution thereof,
though it be against themselves, so as they
may have the protection and benefit of the law
when upon just cause they do desire it. ... I
dare affirm that for the space of five years last
past there have not been found so many male-
factors worthy of death in all the six circuits of

86 HISTORICAL MATERIAL

this realm as in " the one western circuit in
England. " For the truth is that in time of
peace the Irish are more fearful to offend the
law than the English or any other nation
whatsoever." The law being so beneficial, he
did what he could to destroy it.

The same author gives us an account
(Letter to Robert, Earl of Salisbury, 1605)
of one of the Irish lawyers of his time, a chroni-
cler and principal Brehon of the county of
Fermanagh, who was called upon to produce
an old parchment roll which contained the
particulars of the mensal lands and rents of
M'Guyre, the chief of the country.

The old man, " so aged and decrepid as he
was scarce able to repair to us," at first denied
that he had the roll. It had been burnt, he
said, by the soldiers in the late rebellion.
Being put on his oath by the Lord Chancellor,
who was with Davies, " he confessed that he
knew where the roll was but that it was
dearer to him than his life, and therefore he
would never deliver it out of his hands unless
the Lord Chancellor would take the like oath
that the roll should be restored unto him
again. This being done the old man drew
the roll out of his bosom where he did con-
tinually bear it about him ; it was not very
large but it was written on both sides in a fair
Irish character, howbeit some part of the
writing was worn and defaced by time and ill
keeping." This is one of the last notices of
the poet-lawyer historian of Ireland.

NOTICES OF THE BREHON 87

But the unwritten common law continued
to be administered in many ways by the local
men of various parts of the islands. We have
a very curious testimony from a most un-
expected quarter in the eighteenth century to
the continued administration by the chief of
the unwritten law.

In Adam Smith's Wealth of Nations (bk.
iii. chap. 4) is the following passage : — " It is
not thirty years ago since Mr Lochiel, a
gentleman of Lochaber in Scotland, without
any legal warrant whatever, not being what
was called a lord of regality, nor even a tenant
in chief, but a vassal of the duke of Argyll's,
and without being so much as a justice of the
peace, used notwithstanding to exercise the
highest criminal jurisdiction over his own
people (i.e. his own sept, the social community
not having yet entirely disappeared in the
Highlands). He is said to have done so with
great equity, though without any of the for-
malities of justice."

The Reasons for dwelling on Oral Tradi-
tion.— I make no apology for the inordinate
length at which this matter of oral tradition,
of the unwritten sources of law and history,
of the poet-lawyer historian class of the com-
munal society, has been treated, as I desire to
impress on readers how great a part this plays
in the formation of the records of history.

The written monastic records of England,
on which historians so much rely for their
facts, give us an absolutely false perspective

88 HISTORICAL MATERIAL

of history, leading to unsound conclusions and
to neglect of contemporary economic causes,
written as they are from gossip unsupported
by evidence even of facts and far less of
motives or intentions, and written from the
sole point of view of a body of men living
outside the social system which they helped
to destroy, unless we can correct them by
means of what we can learn of that system
from other sources.

To take a prominent example, one of the
worst results of the decision of the modern
historian to represent Magna Charta as an act
of legislation by the feudal and ecclesiastical
barons, directed against the supposed wicked-
ness of King John, is that the assumption
puts out of sight its real character as a public
declaration of ancient unwritten custom,
custom which had been abused by all parties,
of which the king as sole administrator of
the nation had had the greater opportunity
for abuse. It must therefore not only be
restated as it had frequently been in the past,
but it must, in accordance with the spirit of
the time, which was hastening to reduce to
writing all old customary law, all past legends
and political history, be written down and
put in safe custody for better keeping.

The very vagueness of its phrases (e.g.
chapter 16, that no one should do greater
service than that due) rests on the customary
nature of the duties and rights declared and
publicly known, and not on the evil disposi-

NOTICES OF THE BREHON 89

tion of a king. Customs, good, bad, and
indifferent, they had hitherto been handed
down, and as a matter of fact continued for
a long time to be handed down, by oral tradi-
tion only. The very few copies made of the
charter were locked away in the safety of
church muniment chests, as had been the
charter of Henry I. produced by Langton,
and its origin as the declaration of custom
was forgotten as the social system decayed.

But apart from such incidental illustrations
of the relation of oral tradition to historical
facts, we cannot pretend to understand the
nature of the difficulties which have arisen
and yet continue to arise in the dealings be-
tween England and the rest of the islands,
or between one class or men and another,
unless we first make an effort to obtain know-
ledge of the unwritten laws founded on human
instincts, governing social institutions which
have been superseded by our artificial modern
society.

At the risk of introducing controversial and
extraneous matter I would point out that the
troubles of that unhappy country Ireland
have not been in the past religious but eco-
nomic, the result of the relations of the
country with an absentee government before
the events of the sixteenth century super-
added the feud of religion. The foundations
were laid of the opposition ever since existing
between Ireland and the rest of Britain when
the great opportunity for healing the sores

90 HISTORICAL MATERIAL

of the people on the marriage of the son of
Edward III., resident in Ireland, to the heiress
of the vast properties and influence of the
Burkes was lost, and the evils of civil hatred
at the same time strengthened by the virulent
provisions of the Statutes of Kilkenny. The
rulers then as later failed to comprehend the
meaning of the social institutions which they
set about to destroy, and the Roman priest
and the alien pope took due advantage.

A striking example of the view induced by
this want of appreciation of former social
institutions is to be seen in the Dedicatory
Preface to the volume of Reports in Ireland
published by Sir John Davies, the Attorney-
General for Ireland of James I. (whose opinion
of the Irish regard for law has been quoted
above), the first Report published of the Anglo-
Irish courts. At the time at which he wrote,
in spite of the Saxon conquest, the Brehon law,
the common law of Ireland, was obeyed in all
parts, except in those districts near the eastern
sea-coast where the English common law
could be enforced. This English common law
and the Irish common law had sprung from
the same common origin by declaration of
custom by the people. But, in common with
most of the English thinkers of his time, Sir
John Davies was in that condition of mind,
not uncommon when a lawyer contemplates his
own legal system, of being unable to conceive
of any earthly institutions either in the past
or present which were worthy of even casual

NOTICES OF THE BREHON 91

consideration beside the height of moral supre-
macy represented by the common law of
England. The idea that English law might
be a salutary economic development does not
seem to have occurred to him.

His point of view (especially in its omissions)
is so illuminating as bearing on historical
authority, and on the relations between
Ireland and the greater island, that it is worth
quoting at some length. It shows that he
regarded the Irish common law as a thing
detestable and to be abolished by any means
at hand, though his knowledge of the society
which it serves would appear to have been
very scanty.

" There were no records of Henry II. 's time
remaining whereby it may appear that he
established any form of civile government in
this land. King John made the first division
of counties in Ireland, published the lawes of
England and commanded the due execution
thereof in all those counties which he had
made." Then he goes on : " For the common
lawe of England is nothing else but the common
custome of the Realme ; and a custome which
hath obtained the force of a lawe is always
said to be Jus non scriptum, for it cannot
be made or created either by charter or by
Parliament, which are Acts reduced to writing,
and are always matters of record, but being
only matter of fact and consisting in use and
practice it can be recorded and registered no-
where but in the memory of the people. . . .

92 HISTORICAL MATERIAL

" And this customary lawe [he is speaking
of the English common law, not the Irish] is
the most perfect and most excellent and
without comparison the best to make and pre-
serve a commonwealth, for the written lawes
which are made either by the edicts of princes
or by counsells of State are imposed upon the
subject before any triall and probation made.
. . . But a custome doth never become a law to
bind the people untill it hath been tried and
approved time out of mind."

With this burst of admiration for the
customary unwritten law he laments that in
the former reign of Elizabeth the law (i.e. the
English common law) was never executed in
certain new counties by any sheriffs or justices
of assize, " but the people were left to be
ruled still by their own barbarous lords and
laws."

He proceeds to contrast the English
customary common law not with the Irish
customary common law, which it was to super-
sede, but in his panic fear of popery with the
Canon law, quoting John's answer to Innocent,
the answer of the barons at Merton, " Nolumus
leges Anglise mutari," and the rolls of Parlia-
ment of 11 Richard II. In the perfect faith of
his intellectual superiority and his ignorance
of the Irish laws and language, he worked hard
to destroy the customary law which he praised
and to impose upon the Irish subject the
feudal practices made and enforced by the
" edicts of Princes or by counsells of State."

NOTICES OF THE BREHON 93

As for the law, so for political history, behind
all the real facts transmitted to us, behind all
the false assumptions and wrong conclusions,
lie the oral authorities. The same class of
men was responsible for both. The family
bard or Brehon was the authority equally for
the reduction into writing of the traditional
customary law and for the family annals which
had been handed down to him by generations
of bards ; the archdeacon or clerk or monk or
court chaplain drew up the written laws, acted
as judge, and collected the floating "news"
from which he wrote the chronicles. Both
rest wholly on oral tradition.

The oral tradition may be harder to demon-
strate for political than for social history, and
we must expect in the historical chronicle
theological and political bias which we shall
not find in the records of law. But in each
instance it is necessary to ask, if we wish to
avoid a very partial and one-sided view even
of political history, where and how and from
whom the often stationary and secluded first
authority, if we can find him, heard the tale or
collected the conflicting rumours, and how far
he was open to prejudice and self-interest.
Check and counter-check is the only safe
method.

Mr Pike, in the Preface to Y.B. 15 Edward
III., p. xliv, gives us an example of such notes
from memory or gossip which have become
by constant iteration an integral part of consti-
tutional history. He is speaking of the

94 HISTORICAL MATERIAL

" obscure story " of the monk of Birchington
relating to the dispute in 1341 between
Edward III. and Archbishop Stratford. "It
could be shown in what manner the monk
who had heard some gossip about the Ex-
chequer more than forty years after the event
converted into an indignity put upon the
archbishop," i.e. that he was arrested and
carried to the bar of the Exchequer, " an ap-
pearance by attorney to which neither the
archbishop nor his attorney had the slightest
objection and which was not in any way con-
nected either with treason or felony." Speak-
ing of the use of this fiction by one author, he
says : " No authority is cited except the State
trials in which occurs at second or third hand
the story told by Birchington and repeated
usque ad nauseam"

Besides, we cannot separate the oral tradition
of the laws from the oral tradition of political
history, which is the story of the making and
alteration of laws and customs, of the com-
petency of the ruler to make, alter, and enforce
them, their effect on personal freedom, on
taxation, on commerce, on public morals, the
refusal of freemen in the face of them to give
personal service or money on the grounds of
conscience for defence of a common country.

The men of the generation which followed
Sir John Davies were quite aware of this con-
nection in their struggle with Charles, and
Charles was aware of it himself. A proviso
offered to the Petition of Right, reserving the

NOTICES OF THE BREHON 95

king's sovereign power, was refused by the
Commons, Pym remarking on it : " All our
petition is for the laws of England, and this
power seems to be another distinct power from
the power of the law." Charles in his declara-
tion against it refers to the judges as " the
persons to whom solely under me belong the
interpretation of the law."

To this day our political constitution is un-
written, resting on tradition and capable of
very sudden and violent development, and our
laws in great part are also unwritten.

PART II
CHAPTER X

THE YEAR BOOKS

WHAT was this English common law for
which Sir John Davies would destroy all other
systems of law ? We can answer that question,
so far as it is necessary to answer it here, by
the records of the Year Books and of the
Eyres.

Just as the common law of Ireland grew out
of the accretions to unwritten custom pre-
served in the memories of generations of poet-
lawyer historians until for more convenience

96 HISTORICAL MATERIAL

and certainty the rule (or more probably the
exception to the rule) was reduced into writing,
so the common law of England continued to
develop in the memory of the Anglo-French
lawyer until it also partly, but only in very
small part, came to be written.

It was written partly (and here is the only
difference between the two systems) as statute
law, "the edicts of princes or counsells of
State," as Sir John Davies calls it, " imposed
upon the subject before triall and probation
made," but written also like the Brehon law
from the declarations of existing custom made
by prominent jurists such as Glanville and
Bracton, who correspond in that sense to
Cormac and Csenfseladh, and in the last in-
stance, like so much of the Brehon law, from the
decisions of judges and opinions of advocates
in court. It is with this last source of the
common law that we deal in the Year
Books.

They are not likely to be popular reading,
but they are a most fascinating subject of
study. In them, as Mr Maitland says (Introd.
Y.B. 1-2 Edw. II., Selden Society), "we can
bring the tissue of ancient law under the
microscope. Often have we been told to
seek in Roman law the clues that will guide
us through the English maze. It is high
time the converse and complementary doctrine
were preached." One may add that another
guide to the English maze would be a com-
parative study of English and Irish common

THE YEAR BOOKS 97

law, both based on custom, both based on verbal
opinion and decision, both based on social life.

The Year Books are the latest of the con-
temporary mediaeval records with which this
book deals. But they are absolutely unique
in forming a well-defined link between oral
tradition and writing, between the voice of
the judge or counsel, whose actual words we
may believe we hear and of whose personality
we feel a certainty, and the written manuscript,
in some cases not contemporary, in which the
actual spoken words are embedded.

They come in this respect very much nearer
to us than the dicta of the Irish Brehon or of
the author of the T.A.C.N. or even of the
Grand Coutumier. They are, as Mr Maitland
points out, the vernacular report of an oral
debate recorded for the first time in history.

They are unique. There is, so far as I
know, no other record in the world, unless it
is the Bible, in which we have recorded the
actual words of real men living many centuries
ago, their intimate thoughts almost laid bare
to us, as when Stonore C. J. and Shareshulle J.
discuss, what is law ?

The earlier language of the Year Books,
says Mr Pike, " is indeed of unique philological
value, for it is a representation or an attempted
representation of the language of everyday
life as actually spoken, to which the nearest
approach in most of the dead languages is
that of the drama." So long as French was
the official language of legal proceedings in

7

98 HISTORICAL MATERIAL

England, that is to say up to the year 1364
(36 Edw. III., c. 15), the Year Book reports
preserve for us the living tongue, the French
of English society as it was in daily use in the
law courts and in ordinary life.

But for language, possibly the Brehon
lawyers might be as real people for us as
Lowther and Bereford. But the Irish them-
selves are ignorant of the Irish of the past and
utterly forgetful of their great history, while
our soldiers in the trenches in Flanders are
talking something that will sound like law
French. The Year Books, even when un-
translated, in the old law French and in black
letter, are more of a reality to us than the
Irish law tracts.

Of course the main line of cleavage between
the Irish and the English common law was
that the one stood for the communal society,
and the other for the feudal society based on
individual land ownership.

The Irish lawyers spent a large part of their
energy on contract, on the capacity to contract,
on the guarantees for the safe keeping of con-
tract, on the penalties for its breach, a system
encouraging the performance of all equitable
obligations ; the English lawyers, five centuries
behind the Irish, concerned themselves with
the strict formalities of an antique system
of land transfer, and enveloped the whole
language and forms of pleading with an ocean
of technicalities.

With them the pleading under the writs

THE YEAR BOOKS 99

was a clever game of chess, a fencing with
words, as a Cabinet minister answers questions,
using all words in their most technical sense
and concealing anything which might tell
against the pleader. Jn common with all
early systems of law, the Year Book procedure
addresses itself far more to the form of the
remedy than to the question of the right.

Litigation over Technical Forms. — It is a
rare thing in these Year Books to find any
principle of law laid down, or any attempt at
equitable arbitration between the parties. All
the fighting between counsel and all the sug-
gestions and decisions of judges are upon
questions arising out of the form of the writ,
the order of procedure, the time and place for
the admission of evidence, and the correct form
of pleading.

Where the words were so placed that they
might appear or be made to appear to belong
to the wrong person, the demandant was in
misericordia pro falso clameo, though there is
no suggestion that anyone was deceived (16
Edw. III., vol. i. p. 196). The complaint of
the Chancery as to the form of the writ is a
good example of law French (ibid., p. 197 and
note 14) : " Les clerkes de la Chauncellerie
dient qe ceo bref nest pas de fourme : qar en
bref conceu en le post, le qui ipsa serra en
mylieu la clause et en le per a la fine ; et si
avant covynt mayntener fourme du bref come
matere."

Evidence, if we may judge by a case

100 HISTORICAL MATERIAL

reported in 16 Edw. III., vol. ii. pp. 86-90,
was merely the best evidence which could be
got, without regard to whether it was evidence
according to our views. A question arose as
to the death of a woman's husband. She
first says that he died at Antwerp in the king's
army ; later she produces a certificate of his
death at Bristol from the mayor and aldermen ;
finally she produces two witnesses who swear
that they saw him buried at Ipswich. The
court accepts this last as final, though there
is nothing to show that the witnesses knew
him, and one of them was under age, and one
came from Chester.

The counsel, like the parties in the House
of Commons of our day, which derives its
procedure from much the same source, de-
cided beforehand the points upon which they
would fight, ignoring all the realities of the
case. Says Lowther (20-21 Edw. I., p. 420) :
" I will aver the seisin of King Henry as of
fee — will you aver the reverse, namely that
he was not seised of fee or of right? You
must say that as we must necessarily be in
opposition." The opposing counsel objects to
such a straightforward issue; he would like
something more roundabout.

In another case (Edw. II., vol. iii. p. 115)
the one counsel says to the other : " If we are
to abide judgment, we must abide it upon some
certain point " (the case is about an advowson),
" so let us agree that he presented as to a
gross and then let us demur."

THE YEAR BOOKS 101

When the facts upon which these fine-spun
webs are woven break down, counsel are not
in the least abashed. Says Lowther when
the facts which he had alleged were shown to
be false : " Every word spoken in court is not
to be taken literally; they are only curial
words" (20-21 Edw. I., p. 280).

The slightest slip in pleading was fatal.
The Archbishop of Dublin brings a writ for
land which he claims to be " the right of his
church in Dublin." But in his count he
counted that it was " his right and the right
of his church of St Patrick in Dublin." The
writ was quashed (20-21 Edw. I., p. 378).
In a case in Y.B. Edw. II., vol. iii. p. 99, a
writ abated because instead of saying "two
messuages and a moiety of one messuage " the
pleader said " two messuages and a half." Bad
grammar or the wrong writing of a word was
sufficient to abate the writ.1

As an example, once for all, of the fencing
over technicalities by counsel (20-21 Edw. I.,
p. 14), A brings a writ of cosinage against B,
saying that, his cousin C dying seised without
issue, the property descended to D as brother
and to him A as grandson of D. The de-
fendant's counsel denies that C died without

1 E.g. 12-13 Edw. III., p. Ill : " Nota qun bref apres
le vewe fust abatu pur faux Latin pur ceo qil avoit avia
ou il duist aver este avion en un bref dentre la disseisine."
And 16 Edw. III. (2nd vol.), p. 64. And ibid., pp. 499-507,
quce instead of quas. 17-18 Edw. III., p. 538, Haselshatve
and Heselsharve ; p. 548, Trussel and Trusselle.

102 HISTORICAL MATERIAL

issue, but claims that he B is in possession as
C's son. A's counsel objects to this form of
defence, and says if B wishes to abate the writ
he must say that he claimed by the same
descent. He must, he says, make B privy
in blood and show how he is privy, etc.

The judge supports this. B being made to
claim by the same descent points out that as
son he is nearer in blood than the grandson of
a cousin's brother. Then plaintiff's counsel
takes another line. You cannot claim ; you
are a total stranger ; for the reason that C
was a man in religion, and never married a
wife and begot you in fornication, and so on.
To which defendant's counsel answered, " This
exception is in the Right, (that is, could only
be pleaded in a Writ of Right), therefore you
shall not be received thereto." Apparently
this contention was successful.

Or again, in a claim about the presentation
to a living, the prior pleads that the church is
filled by one, and that he is patron. " What
have you to show that you are patrons ? If
you have anything, put it forward." "There
is no need to plead so high up in the Right.
This is a possessory writ. . . . For that would
be to plead in this court touching the plenarty
(i.e. the living being full) which ought to be
pleaded in Court Christian " (20-21 Edw. I.,
p. 282).

Sometimes in this confusion of mechanical
objections the judges themselves are uncertain
as to the remedy. Counsel saying, in an

THE YEAR BOOKS 103

action for partition against a tenant by the
curtesy, " This is a writ of Right," Hengham
C. J. answers, " This is not a writ of Right,
nor a writ of Wrong, for in truth we do not
know what writ it is or on what law founded "
(33-35 Edw. I., p. 65).

The refinements of the schoolmen find
their echo in the reasonings of the Anglo-
French lawyers ; e.g. the doctrine of warranty
for land brings up a discussion as to vouching
to warranty an infant en venire sa mere (6-7
Edw. II., p. 108).

The judges joined in the game and gave
counsel every opportunity and assistance in
raising futile objections. The plaintiff's
counsel claiming, " We do not understand
that he (the defendant) shall be admitted to
another exception," Hillary J. says, " He shall
be, because he shall falsify your plaint by as
many causes as he can, and you can maintain
it by as many matters as you know ; therefore
answer" (17 Edw. III., p. 360). To a counsel
who anticipated an objection : " You fish
before the net ; the time for disclaiming has
not arrived " (33-35 Edw. I., p. 74). " He
has no need to make this disclosure to you
but when the court asks for it or drives him
to it " (1-2 Edw. II., p. 179) ; and, rather sadly
as it seems to me, " In this case there is no
way of pleading except to disclose the truth "
(1-2 Edw. II., p. 119). When further dis-
closure is hopeless the court says, " You are
at issue, and what you will not reveal in plead-

104 HISTORICAL MATERIAL

ing, a good jury will reveal and will tell the
truth " (ibid., p. 450).

In a case Merton v. Merton (Edw. II., vol.
ii. p. 50) the reductio ad absurdum is reached,
but not, to our minds, in the way Bereford
C.J. intended. The demandant was insisting
on knowing what interest a doweress claimed
in the property. Bereford says, " We do not
think that A has any need to discover what
right she claims." He gives as his reason,
"for if in this judicial writ (of Scire Facias)
you could try A's estate, you would be plead-
ing in this writ as if it were a writ of right,
and in that way you would abolish the writs of
mort d'ancestor, ael, and cosinage, and the writ
of right, and all other writs, which is absurd."

As an example of the procedure in the
English courts the following case (reported in
33-35 Edw. I., p. 96) may be of interest,
especially as it gave rise to an effort at verse
by one of the barristers. One R, the son of
Nicholas, sued out an Appeal of Robbery
against the parson of the church of Cudworth
and others, saying that they had feloniously
robbed them of an ox, etc ; the parson pleads
that he is a clerk and could not answer with-
out his ordinary ; and the others put them-
selves upon the country. Bereford acts as
counsel for the defendants and quashes the
appeal ; " because we see well that he who
sues the appeal is of so tender age that he
knows not to distinguish good from ill, and
against whom this judgment cannot be

THE YEAR BOOKS 105

carried out, and who when he comes to full
age may reverse the thing, therefore the court
adjudges that they shall be quit of this appeal.
And because you, Nicholas, who are the
infant's father, have acknowledged that you
have procured and maintained this appeal,
and what you have acknowledged it is not
necessary should be inquired of by the
country, the court adjudges that you go to
prison." Counsel asks for damages and is
told he must sue for them. " And so whereas
they put themselves on an inquest they passed
quit at the suit of the king and of the party,
and they had their damages without taking
an inquest."

The report continues : " Upon this Simon de
Hibernia made these verses " ; and seventeen
lines of very bad hexameters follow in the
MS. (Addit. MSS. 5925), but they do not
carry the case any further, and it is not
necessary to reproduce them.

CHAPTER XI

THE YEAR BOOKS (continued)

The Contrast of Speed. — A more striking
distinction between the two systems was the
promptness of the tribal procedure, and the
endless delay of the Anglo-French pleadings.

106 HISTORICAL MATERIAL

There is not, I believe, one word in any of the
volumes of the Brehon laws which suggests
any delay in procedure, nor with a civilised
system of law would there seem to be any
need for delay.

Delay, non-finality, was the watchword
of the Anglo-French law of the Year Books.
I cannot help a suspicion, though 1 admit it
is only theory, that it can be traced to the
example of delay caused by perpetual appeals
to distant Rome. Anyway, no volume of the
Year Books is free from flagrant examples.

Where the claim is for a horse which is
stated to be still in pound, the answer is that
it has been delivered six and a half years
before the writ was purchased (21-22 Edw. I.,
p. 54). A poor plaintiff (20-21 Edw. I.,
p. 78), arguing in support of his right to im-
pound beasts found in his corn, says, " May I
not impound them before the termination of
the plea of the taking, which may last per-
chance two or three years ? " A freeman of
London, visiting his birthplace, who is seized
as a villein, only gets judgment four years
afterwards (1-2 Edw. II., p. 308). Bereford
C.J., who was fond of telling stories, tells
one (Edw. II., vol. iii. p. 74) of a refractory
tenant distrained on, who brought replevin
against the possessor of a manor, "and they
pleaded for thirty years," the tenant winning.
Then, "a long while after," the heir of the
grantor to the possessor brought a writ of
customs and services against the tenant and

THE YEAR BOOKS 107

recovered. A suit begun in 33 Edw. I. and
stopped owing to the king's death was re-
newed in 3 Edw. II. (Edw. II., vol. iii.
p. 163).

Not unnaturally, where it suited the parties
to a case to prolong it with a view to put off
the evil day for ever, they took advantage of
the technical nature of the law to obtain end-
less delays. First one of several defendants
fails to appear, and another day has to be
appointed for him. Then when he appears
another is absent. In a case where this had
been going on for seven years, the judge
admitted that there was no remedy (19
Edw. III., p. 12). The editor of the Year
Books of Edw. I. (20-21 Edw. L, p. 12) quotes
a pathetic protest of Mr Justice Prisott when
Littleton (Mich. 35 Hen. VI.) prayed judg-
ment in a Quare Impedit. It sounds as if it
might have come now from the Speaker of the
House of Commons about some question of
procedure on Woman Suffrage or Home
Rule. " I marvel mightily that you are so
hasty in the matter : and I have seen similar
matters pending for twelve years ; and this
matter has been pending only three-quarters
of a year."

Mr Pike, in the Preface to Y.B. 13-14
Edw. III., p. xxxvi, speaking of a case there
reported (13-14 Edw. III., p. 16), gives a
summary of his experience as editor of some of
the forms of delay. " The case," he says, " I
have succeeded in following through every one

108 HISTORICAL MATERIAL

of its stages from Common Pleas to Parlia-
ment, from Parliament back to the Common
Pleas, from the Common Pleas to the King's
Bench upon writ of error, from the King's
Bench again to Parliament, from Parliament
back to the King's Bench, and so on to judg-
ment in error there." Only rich people made
suit in the king's courts.

Yet the matters over which they disputed
were often of extremely small value; e.g.
trespass is brought against two persons in
1340 for three pots, one pan, and two tables
carried away in 3 Edw. III. (1330 ?). Gayne-
ford, for one of the defendants, said : " As to the
pots and tables you heretofore brought a writ
of trespass against us for one pot and one
small cup which are the same goods . . . and
for one table on a taking made in the seventh
year of the king (1334 ?), whereas it was found
we did not carry them away (14-15 Edw. III.,
p. 212). The taking here was apparently for
rent in arrear. There is a similar case in 15
Edw. III., p. 306.

Especially noticeable were the delays and
proceedings in ecclesiastical cases where the
king was concerned.

The Clergy as Litigants. — The clergy and the
monasteries play a great part in the litigation
of the Year Books, and use excommunication
freely as a means of winning their cases. A
case reported in Y.B. 20 Edw. III., vol. i.
pp. 214-232, is typical of the relations be-
tween Church and State, the conflicts between

THE YEAR BOOKS 109

spiritual and lay courts in those days, and of
the long delays by which, with a weaker op-
ponent than the king, the Church's adversary
would likely be worn out.

There was always the difficulty in view that
when a settlement had been arrived at between
the lay and spiritual courts the pope might
interfere.

A writ of prohibition had been issued to the
bishop of Norwich to prevent his interference
with the Abbey of Bury. The bearer of the
writ was excommunicated by the bishop. A
writ of contempt was issued against the bishop's
commissaries. They answered that the bearer
Freiselle was excommunicated, and that being
so they were not bound to answer him. It
was held that they must answer him, unless it
was shown that the excommunication referred
to something else.

When the case was called on again the
commissaries produced letters patent of the
Archbishop of Canterbury purporting to show
that he had found among the acts of the Court
of Arches that Freiselle was under greater
excommunication for manifest contumacies.
The judges stood out, holding that such ex-
communication must be referred to the service
of this writ against the bishop, as there was no
other cause stated, which was apparently the
fact.

Then the bishop raised the plea that the
validity of the excommunication could not be
tried in the Common Pleas, but only in the

110 HISTORICAL MATERIAL

spiritual court. The judges gave judgment
against the bishop's commissaries, with damages
£1000. (See note, p. 226 of Y.B.)

Then the bishop obtained stay of execution.
This was followed by a further writ to proceed.

Then the bishop sued out a writ of error
into the King's Bench, whereupon the king
interferes peremptorily and sends letters under
the privy seal to the justices ordering them to
proceed (continued in 20 Edw. 111., vol. ii.
p. 322).

But the matter did not always end in this
way. In a case (20 Edw. III., vol. i. p. 307,
note) where a weaker adversary, a layman,
brings suit against a parson and chaplain for
taking into Court Christian a matter relating
to cutting timber, they answer with success
that he is excommunicate. And see 6-7
Edw. II., p. 18 (vol. xxvii. of Selden Soc.)
as to personal nature of excommunication.

How well the system could be made to work
to the advantage of the ecclesiastic is shown
in a case in 14 Edw. III., p. 156, where an
excommunicated man, who has been absolved,
complains that he cannot get his letters of
absolution. The defence is that he was under
excommunication for various matters, and that
he has only been absolved in respect of one.
So he cannot go on with the matters in respect
of which he sues in the court until he has got
up the money to pay for the other sentences.

In another case (20-21 Edw. I., p. 204) the
prior of Dudley sues the bishop of Worcester

THE YEAR BOOKS 111

for deforcing him of a presentation to a living.
The bishop replies that the prior was excom-
municated by him, and produces the letter of
the bishop's officer to that effect. To which
the prior answers truly that by such means the
bishop, who is a party to the plea, could seize
a hundred advowsons.

The litigation over advowsons is perpetual.
It shows us claims for presentation to half a
church (32 Edw. I., p. 34), for advowson or
tithes of two parts of a chapel (33-35 Edw. I.,
p. 4), and for the rent of a church let to hire.
"We tell you," says Grene (19 Edw. III.,
p. 402), "that J. H., against whom the writ
is brought, was parson of the church at
Ashwell, and that he let his church to the
plaintiff and another to farm at a certain rent
to be paid to him yearly." The advowson is
sometimes attached to a special plot of land,
e.g. 17 Edw. III., pp. 42, 236.

Considering that every educated man, apart
from the great barons and their soldiers, pro-
fessed some form of clerkship, and that the
caste included the dependents on the churches
and monasteries who assisted in any form of
worship, — acolytes, carriers of holy water,1 door-
keepers, exorcists, readers, subdeacons, and so
forth, — it is not surprising that the Year Books
shows the clerk in litigation in every degree
from the archbishop downwards, and his social
relations in varied aspects, from the archbishop

1 See, as to the office of carrier of holy water being a
benefice, Y.B. Edw. II., vol. ii. p. 1 25.

112 HISTORICAL MATERIAL

of York making foreign investments of spare
cash by the medium of Italian usurers (20
Edw. III., vol. ii. p. xxx), or an abbot holding
lands by service of feeding poor persons (15
Edw. III., p. 449, note), to the seizure of the
cattle of an abbot for refusal to pay taxes
(11 Edw. III., p. 637), or the taking of altar
oblations by the prior of Coventry from the
poor parson as rent (20 Edw. III., vol. i. p. 66).

Whatever may have been their condition at
the time of the dissolution, the monasteries
are shown by the Year Books to have been
very wealthy in the thirteenth and fourteenth
centuries. The litigation is not by the poor
parson or the poor monk as a rule, but by the
great Church barons, the abbots and priors and
the bishops.

We see the bishop of London with an abbot,
prior, and prioress diverting the course of the
river Lea (19 Edw. III.,pp. 178-184 and App.),
and the abbot or the prior disputing over the
repair of bridges (14 Edw. III., p. 293), raising
the level of a dam and so flooding another
man's meadow (20 Edw. III., vol. i. p. 94),
pulling down another man's dam which flooded
his meadow (17 Edw. III., p. 596), surcharging
(32 Edw. I., p. 42), and enclosing (Edw. II.,
vol. v. p. 59) the common pasture, and litigating
in a very great variety of ways over communal
rights and intercommoning vills and the waste
as sole owner, or as joint lord with another
(16 Edw. III., vol. ii. p. 163), or as donee of
three sisters, co-parceners, of common pasture

THE YEAR BOOKS 113

(16 Edw. III., vol. i. p. 34). He is concerned
as claiming rights of market (Edw. II., vol. ii.
p. 71), he sues the parson for breaking fences
and carrying off corn (1-2 Edw. II., p. 36).

The ordinary clerk comes before the court
as a husband for whom, when charged with
procuring murder, his wife sues out a writ
(33 Edw. I., p. 54), as a father of children (20-
21 Edw. I., p. 16), as a student at Cambridge
(20 Edw. I., p. 296), as friar minor at Oxford
(Edw. II., vol. ii. p. 75), as the criminous clerk
whose chattels were forfeited (20 Edw. I.,
p. 319), as a defendant for murder (Edw. II.,
vol. v. p. 100), as the excommunicated parson
who had tithed his corn the wrong way (33
Edw. I., p. 408). The traffic in the bones of
saints appears in a case brought over two
crystal phials full of precious relics (15 Edw.
III., p. 261).

We see the alien priories, cells of foreign
abbeys, seized into the king's lands and let
out to others (17 Edw. III., pp. 14-18). They
were always unpopular. They were finally
seized by 1 Hen. V., c. 7, which Mr Pike
thinks suggested to Henry VIII. the dis-
solution of the monasteries.

The abbot is seen excusing himself for non-
attendance on the ground that he had been
seized by robbers on the way and bound. He
raised the hue and cry to the coroner and to
the four adjacent vills (20-21 Edw. I., p. 116).
Evidently excuses of this kind were not un-
common. When a suitor excuses himself as

8

114 HISTORICAL MATERIAL

having been stopped by floods, Mallore J.
asks him, " What did you do when you came
to the water and could not pass ? Did you
raise the hue and cry and the menee? For
otherwise the country would have no know-
ledge of your hindrance" (33 Edw. I., p. 122).
It is one of those human touches which one
meets nowhere but in the Year Books — the
tired litigant, howling by the stream which
he cannot cross, conscious that there is no
one within five miles who can hear him.

CHAPTER XII

THE YEAR BOOKS (continued)

Women as Litigants. — Another great class
of persons who are very prominent in civil
cases concerning land are women. Writs of
dower form about the largest proportion of
the cases reported. The woman appears as
holding land by knight service (1-2 Edw. II.,
p. 137), as claiming the wardship of one
holding tenements of her by knight service
(1-2 Edw. II., p. 18), as claiming her right
of common (ibid., p. 128), as complaining in
respect of her beasts tortiously taken (15
Edw. III., p. 376).

She appears as defending as reversioner
where tenant for life makes default (1-2

THE YEAR BOOKS 115

Edw. II., p. 164), defending lands of her
inheritance in husband's default (ibid., p. 150),
as warrantor in a suit (15 Edw. III., p. 178),
claiming dower confirmed in the presence of
witnesses at the church door (1-2 Edw. II.,
p. 145), and being sued by a debtor for lands
seized by her on an execution (15 Edw.
III., p. 52).

A woman brings an appeal of robbery
(Edw. II., vol. v. p. 116). The defending
counsel pleads that a woman cannot bring
such an appeal, on the ground that "ye femmes
sont chanchables de charge " (inconstant, coy,
and hard to please), on which Hereford C.J.
remarks, " I should advise you to find some
better argument " (" dites autre jeo lou ").1
In another such appeal the defence is that
she is the neif or serf of the defendant, as her
father had been found by verdict to be a
villein (IS Edw. III., p. 8).

She appeals a clerk for murder (Edw. II.,
vol. v. p. 100). But though she says that
her husband was killed ten feet from the steps,
she omits to say whether east or west of
them, whether the sword was of iron or steel,
and so forth, and in consequence is sent to
prison.

We learn that Queen Matilda sat for
Henry I. in person (Pref to 16 Edw. III.,
vol. ii.), that it was necessary for a woman
endowed of great inheritance, holder of the
king, to come in person into court and give

1 See p. 47 supra.

116 HISTORICAL MATERIAL

security for her marriage (14-15 Edw. III., p.
272), and that Mr Justice Stonore boarded his
sisters and daughter in the nunnery at Marlow
(12-13 Edw. III., pp. cxiii-cxvii and 260).

The Variety of Matters illustrated. — The
Year Books throw light for us on a variety
of social conditions and on many questions
which have given difficulty to historians.
Apart from foreign wars, it would be far
easier to write from them the history of the
times than from any monastic annals, though
we might have to turn to these to acquaint
ourselves with the daily happenings of kings
and popes, with which the law does not deal.

The form in which husband and wife did
homage (15 Edw. III., p. 446), the relation
of the villein to the land,1 of the manor to
the vill (20-21 Edw. I., p. 24 ; Edw. II., vol.
iii. p. 26; 14-15 Edw. III., pp. 320-22), of
the lord to the waste (16 Edw. III., vol. i.
pp. 24, 186, etc., and vol. ii. p. 568), the risks
attending the grant of a charter to a town
in opposition to the lord (16 Edw. III.,
vol. i. p. 108 and preface ; 20 Edw. III., vol. i.
p. 156, vol. ii. pp. 98-1 12), the difficulties attend-
ing conflicting jurisdictions (20 Edw. III., vol.
i. pp. 236-56 ; and see preface to 14-15 Edw.

1 E.g. Y.B. 21-22 Edw. I., p. 106; 30-31 Edw. I.,
p. 168 ; Edw. II., vol. ii. p. 120; 12-13 Edw. III., p. 238 ;
13-14 Edw. III., p. 102, and the valuable prefaces to
13-14 Edw. III. and 18-19 Edw. III. (referring to Vino-
gradoff, Growth of the Manor, pp. 344-46 ; Villeinage in
England, pp. 68-76), 18-19 Edw. III., pp. 500-9, and
19 Edw. III., p. 110.

THE YEAR BOOKS 117

III., p. xxxi et seq.), franchises (15 Edw. III.,
pp. 104-16), the leet and smaller courts (20-21
Edw. I., pp. 158, 296), appeals from lower
courts (15 Edw. III., p. 58), fairs and markets
(21-22 Edw. I., p. 482; 12-13 Edw. III.,
p. 208), proceedings in the hustings of London
(17-18 Edw. III., pp. 420-30), the formalities
of taking seisin of land (20-21 Edw. I., pp.
82, 256), the property in the soil (16 Edw.
III., vol. ii. p. 568), tenure by service of keep-
ing a sea-wall in repair (15 Edw. III., p. 88),
the tenure of ancient demesne (33-35 Edw. I.,
p. 310; 1-2 Edw. II., p. 81), corrody and
putura (1-2 Edw. II., p. 4 ; 14 Edw. III.,
p. 308; 17-18 Edw. III., p. 436; 11 Edw. III.,
p. 269; 16 Edw. III., p. 34; 15 Edw. III.,
pp. 346, 302), the voidance of usury (Edw. II.,
vol. ii. p. 67 ; 15 Edw. III., p. 84, note ; 20
Edw. III., vol. i. p. 320), waste (of men, 32
Edw. I., p. 112; by digging, 14 Edw. III.,
p. 76; 20 Edw. III., vol. i. p. 402; by burn-
ing, 19 Edw. III., pp. 194-6), the value of
marriage (1-2 Edw. II., p. 188), and ward-
ship (ibid., p. 107), the relations of husband
and wife (20-21 Edw. I., p. 232), divorce and
bastardy (11 Edw. III., p. 481), nuisance (20-
21 Edw. I., p. 224), town customs (20-21
Edw. 1., p. 306), compromise of suits by fines
and recoveries (12-13 Edw. III., preface, and
16 Edw. III., vol. ii., preface), a daily matter
where delays were so long and dangerous,
deodands (12 Rich II., p. 19), the intricacies
of computation (20 Edw. I., p. 306; 16

118 HISTORICAL MATERIAL

Edw. III., vol. ii. pp. 24, 29), the effect of
outlawry on the purchase of lands (15 Edw.
III., p. 228), and all those dealings with the
social fabric which are the subjects of social
history, such as the right of the widow to
her share in the husband's goods (17 Edw.
III., p. 144), are fully illustrated in the Year
Books.

They also treat of criminal matters, such
as murder, robbery, and mayhem (Edw. II.,
vol. v. pp. 100, 116 ; 18-19 Edw. 111., p. 8 ; 18
Edw. III., p. 30). In this last case, " the point
was touched that in former times, and still
according to the rigour of the law, though it
is not now the custom, one will in this suit
lose member for member," an explanation of
the provision in T.A.C.N. xxxix,2 de mehaing,
no man or woman can make any appeal of
mayhem except for their own personal maim,
of which the offenders will purge themselves
by ordeal of iron.

Especially noticeable are the cases dealing
with the common lands, with the waste, with
enclosure and improvement, with replevin and
distress, and the frequent intercommoning
of vills, showing the ease with which the
lord of the manor, especially the monastic
lord, turned to his own use the land of the
community.

For instance, as showing how steadily the
enclosure and approvement of waste land goes
on, the prior of Wartre, in an action against
the abbot of Fountains for the eighth part of

THE YEAR BOOKS 119

waste approved, counts that divers abbots in
the times of divers kings and priors had
approved to themselves divers parcels of wood
and had made thereof arable land, and of moor
and had made thereof meadow, and stated the
number of acres with certainty (16 Edw. III.,
vol. i. p. 186). It is easier to understand
by the Year Books how the chief merged into
the lord of the manor, and why the monastic
records did not notice the change.

Then, Domesday,1 the Dialogus de Scac-
cario,2 Magna Charta,3 the Statute of Merton
and Statute of Westminster 2nd, which are
very fully discussed by the judges in Edw. II.,
vol. ii. p. 37, and the Statute of Labourers,
which was evidently not a dead letter by any
means (see cases in 12 Rich. II.), are subjects
of discussion.

The whole administration of the law, the cor-
ruption of judges (20-21 Edw. I., p. 1; Edw. II.

1 33-35 Edw. I., p. 310, and preface, p. xvii. "Hunt.
Are we of the ancient demesne or not ? Kingesham. We
will send to the Exchequer to find out in Domesday.
And when this was done it was found by the Domesday
that they were not of the ancient demesne." And 1-2
Edw. II., p. 81.

2 See 14 Edw. III., preface, and Pike's Hitt. of Crime,
vol. i. pp. 453-55*.

3 14-15 Edw. III., p. 144. Counsel argues, a plea of
land shall not be pleaded in the King's Bench, for that
would be against Magna Charta, which says that Common
Pleas shall not follow the Court. But the Court of Common
Pleas was moved about; it was at York 12 Edw. III., and
was then moved to Westminster, the Mandate expressing
" et ibidem teneatur quamdiu nostrae placuerit voluntate."

120 HISTORICAL MATERIAL

vol. v. p. 175 ; 14-15 Edw. III., p. 258 and
preface), the abuses of officials (Edw. II., vol. v.
p. 63; 14-15 Edw. III., p. 319 ; preface to

14 Edw. III.), the jury in every aspect — the
choosing (30-31 Edw. I., p. 74), challenging,1
and penalty for threatening them (19 Edw. III.,
p. 452); forcing an unwilling defendant to a
jury (16 Edw. III., vol. ii. pp. 24, 29, and
preface) ; the judge's powers over them

!19 Edw. III., p. 184) ; a jury disagreeing
19 Edw. III., pp. 488-92), making a false
record (16 Edw. III., p. 62), and part bring-
ing in a record (12 Rich. II., p. 26) — the
liabilities of the sheriff, and coroners, evidence,
and imprisonment, receive full notice.

It is not by any means unusual to find
parties pleading as an answer to some matter of
title or possession or of default that the person
through whom they claim had been hanged
or was in prison: e.g. "You by your falsity
caused one who never existed in rerum natura
to sue against us, so that we were taken, at
which time while we were in prison we were
non-suited" (15 Edw. III., p. 54; also ibid.,
pp. 330, 253); or again, " The charter ought not
to bar us ; for at the time of its execution our
ancestor was imprisoned in Newgate" (20-21

1 14-15 Edw. III., pp. Ixiii-iv, quoting Rolls of Parl. of

15 Edw. III., p. 67, whereas persons indicted could not
obtain an acquittal except by a jury composed in part of
those who had indicted them, it would be well if anyone
so indicted could challenge any of the indictors upon the
taking of the jury for his deliverance.

THE YEAR BOOKS 121

Edw. I., pp. 432, 458, etc. ; 21-22 Edw. L,
p. 406 ; 30-31 Edw. I., p. 543 ; 18-19 Edw.
III., p. 566).

When anyone once got into prison, even if
there was no cause for his staying there, the
technical difficulties were so many and so
great that it was very unlikely that he would
get out again (15 Edw. III., p. 46, especially
the last words of p. 50 and pp. 54, 74).

CHAPTER XIII

THE YEAR BOOKS (continued)

The Editors' Prefaces.— The Year Books,
both those in the Roll Series and those of the
Selden Society, are so admirably edited that
an immense amount of most valuable informa-
tion is to be gained from the prefaces and
notes to the different volumes.

The preface to 20-21 Edw. I. contains notes
as to complaint against and dismissal of
justices for extortion and injustice ; 14 Edw.
III., as to corruption by officials, and 14-15
Edw. III., the trial of Willoughby C.J. for
malversation ; 30-31 Edw. L, as to commence-
ment of suit by writ ; vol. i. Edw. II., as to
value of Year Books ; vol. ii., as to great
increase of business ; vol. iii., on theories of
reporting ; vol. iv., on narratores, counters,

122 HISTORICAL MATERIAL

sergeants-at-law, and the relations of ecclesias-
tics to common law courts ; vol. v., a very
full account of the Eyre and the proceedings
at the Eyre; 11 Edw. III., on divorce and
bastardy ; 12-13, fines and recoveries and trial
by jury ; 13-14, on villeinage, and on the
practice in compurgation ; 14-15, on the
abolition of Englishry, and an account of the
confused and disputed jurisdictions, and the
small authority of the king ; 16, vol. i., on
qualifications of jurors, charters to boroughs,
guild merchants, tolls in boroughs, and use of
violence in litigation ; 15, a very valuable dis-
sertation on merchet, pp. xv-xli ; 16, vol. ii., on
compurgation, evidence, and fines to com-
promise ; 17-18, warranty by lord ; 18-19,
effect of a gift in tail male ; and 19, on villein-
age and on the means of delaying causes.

The Actors in the Year Books Real
Characters. — But all this would be only the
material afforded by an especially reliable
chronicle of the daily life of the country.
Beyond this, the fascination of the Year Books
is that the people who are actors in the events
portrayed are real people who appear before
us neither as very good nor very evil, neither
the saint nor the king, but just the ordinary
folk who really existed.

And they speak to us in words as neither
the saint nor the king ever, with the rarest
exceptions, are made to speak by the monastic
historians who wrote at a distant place and
time. The judge scolds or chaffs the counsel

THE YEAR BOOKS 123

in lay language : " Leave off your noise (lessez
votre noyse — did he mean music ?) and deliver
yourself from this account," per Hengham J.
(33-35 Edw. I., p. 6) ; " That is your own
foolishness," per Bereford J. (33-35 Edw. I.,
p. 174) ; " Be that as it may, you are pleading
very covertly (moult covertment] ; tell us
what the real facts are," per Bereford J.
(Edw. II., vol. ii. p. 169) ; and the same judge
(ibid., p. 174), " The two parties are pleading
about different matters." " You are talking
at random" (Edw. II., vol. v. p. 119); "Now
you have made a nice jangle (vient jangle)
about nothing," per Stonore J. (16 Edw. III.,
vol. ii. p. 482). To a young counsel who has
been rude to Willoughby, " You are as hot as
if there was reason in all that you say. You
must be wiser than God before you prove it "
(18 Edw. III., p. 436).

Pole, counsel, arguing that the verdict had
been taken out of court and not at a proper
time, Scot C.J. says, " We can take a verdict
by candlelight if the jury will not agree ; and
if the court were to move we could take the
jurors about in carts with us, and so justices
of assize have to do" (19 Edw. III., p. 184)—
a touch which brings before us, as the counter-
part to the Brehon swimming or cattle-driving
or disposing equitably and speedily of many
cases on the top of a high hill, the hard-riding
justice on his entire horse with his greyhound
at his heels, followed by a jury meek but not
yet unanimous, churning through the mud

124 HISTORICAL MATERIAL

to the next assize town in a two-wheel dung-
cart drawn by eight long-horned oxen.

But the judges rely a good deal on the local
knowledge of the jury. More than once the
judge sends for the assize, saying, " The assize
will tell us all about it. Therefore to the
assize" (e.g. 20-21 Edw. I., p. 36).

Sometimes the judges fall out with one
another : when Willoughby cited a case and
Scharshulle J. said, "That is not law now,"
Willoughby retorts, " One more wise than you
adjudged it" (14-15 Edw. III., p. 114).1
Sometimes they deal severely with counsel, as
when Willoughby wishes to follow a precedent,
saying, " This suit is not new in the case,"
Grene, a pert young counsel, apparently a
rising man, as in a short time he becomes
a judge, says, " Certainly it is new, for this
has never been seen but in Camoys' case."
Willoughby, " Camoys' case was such a case
as this." Stonore J., "I am amazed that
Grene makes himself out to know everything
in the world, and he is only a young man"
(18-19 Edw. III., p. 446), which shows that
he had never heard the saying that we were
not infallible, not even the youngest of us.
" At what moment of time," says Bereford in a
rage to Laufer (4 Edw. II., p. 134), " does your
count begin, you wicked caitiff? " Laufer said
no word. " I take it that you ought first to
skin your writ and then to count your count."

1 "Ces nest pas ley a ore. . . . Plus-sage que vous
nest la jugea."

THE YEAR BOOKS 125

About this time apparently the judges were
beginning to be called on to follow precedent.
Grene disputing a point with him, Willoughby
says, " Certainly I tell you that this is law,
and always was and will be ... whatever
you may say about precedents " (ibid., p. 490).

Precedent was occasionally followed, but it
would not appear that any judge felt himself
bound by it (see 20-21 Edw. I., p. 24 ; 11-12
Edw. III., p. 613 ; 12-13 Edw. III., p. 360 ;
13 Edw. III., p. 52).

Ley est resoun. — The most interesting case
bearing on precedent occurs in 18-19
Edw. III., pp. 376-8. Shareshulle J. had
quoted as precedent a judgment of Bereford
and Herle, but had demurred to adopting it,
saying, "No precedent (ensample) is of such
force come resoun." Thorpe says to the court,
" I think you will do as other judges have
done in the same case, for otherwise we do not
know what the law is." Hillary J., " Volonte
des Justices." " Nanyl," says Stonore J.,
"ley est resoun."

" Resoun " is translated by Mr Pike as that
which is right, following the analogy of " vous
avez raison." I dare not differ from such a
great authority, but I would point out that
the word was used in the English writers of
the time as reckoning, taking account, to
which law, the art of thinking out matters,
corresponds : e.g. Wycliffe, St Matthew xviii.
23, "Therefore the kingdom of heuenes is
lickened to a man kyng that would putte

126 HISTORICAL MATERIAL

resoun with his seruantis " ; xii. 36, " For whi
of every ydel word that men speken, they shul
yelde resoun therof in the day of dome." In
15 Edw. III., p. 126, Mowbray, one of the
counsel, says, " Lei deit acorder a resoun et
oster meschief si le reverse neit este use per
lei."

The interest of the passage, however, lies
in this, that although Hillary lays down that
Volonte des Justices is law, neither of the
judges suggests, as they would surely have
done two centuries later, that the law was the
will of the king, or two centuries earlier, that
it was the will of the people. Both Hillary
and Stonore are right in their definitions.
The law was being made by the judges as
oral declaration.

They seem to have been able men, much
interested in the law game, and indifferent
honest as times went. They were so paid by
their employer as to encourage malversation,
so we need not be surprised to hear of the
king being forced to dismiss and to prosecute
his judges for dishonest practices in office,
especially as he himself sometimes interfered
to wrest the law to his authority.

The trial of Willoughby C.J., reported in
Y.B. 14-15 Edw. III., p. 258, is remarkable
in more than one way. He is charged that,
being left as the king's lieutenant when the
king went over the sea, " he had then perverted
and sold the laws as if they had been oxen or
cows, whereof by clamour of the people about

THE YEAR BOOKS 127

the same matter was shown to the king."1
Willoughby objecting that, before cognisance
can be taken of the matter, the king must be
informed by indictment or by suit of party
with pledges to prosecute, Parving J. replies,
" He is informed by clamour of the people."

Among the charges were that he had taken
bribes to lessen fines imposed upon people
indicted for breaches of forest law, to which
he replies that the people had remained a long
time in custody and had purchased their
deliverance ; that he had procured people to
be indicted, and had then taken beasts and
other gifts for their deliverance ; and that he
had taken ten marks from a man to reverse
a judgment, and then twenty marks from
another to affirm it, and did affirm it (p. 260).

In all times when justice is sold, denied, and
delayed, whether for ready cash or by means
of excessive fees or fines, the only means of
ensuring the honesty of the judge is to make
it worth his while to be honest, and to exclude
from office anyone whose former reputation
in affairs of money was not absolutely correct.

The Reporter. — It is the still small voice of
the reporter which connects for us the oral
tradition of the Year Books with the written
manuscript. Lord Coke took into his head
the idea that the reporter was an appointed
official, quod mirum est, as the reporter would
have said. He has all the freedom of an

1 Mr Pike's translation ; " par clamour de poeple
pardecea et de la chose est monstre a Roi."

128 HISTORICAL MATERIAL

independent commentator, criticising alike the
judge and the counsel, as the Brehon of the
Irish laws does those of his time.
. Where the judge allows a demand partly on
a written obligation and partly on a verbal
claim for debt, the reporter unburdens himself :
" But the decision seems bad. It would seem
that in this case the writ ought to have been
quashed ; and this is the truth " (20-21 Edw.
1., p. 66). " It was wrongly adjudged ... he
was wrong in answering by award of the
justice . . . therefore the justice's award was
apparently erroneous " (ibid., p. 78). " Tamen
query unde legem (12 Rich. II., p. 40), quod
mirum est (13-14 Edw. III., p. 6), quod mirum
est car ceo nest pas plee" (16 Edw. III., vol. i.
p. 243), have no sound of the official reporter,
nor have his references to counsel

He quotes an opinion of Lowther, one of
the counsel, beginning, "It was said by
Lowther . . . ," and ending, " which is false "
(20-21 Edw. I., p. 158). But apparently
counsel's word as to facts appears to have been
taken even in those days (1292), as if evidence
on oath (ibid., p. 64). The reporter comments
on the wisdom of the pleas set up by counsel.
In a case where putura was claimed for fodder
for a horse : " Qusere, etc., I think the plaint
would have been better for a profit, a prendre,
or a corrody" (11 Edw. III., p. 271).

Occasionally he notes conclusions arising
from the case (generally not reported) such
as appear to establish any principle of law,

THE YEAR BOOKS 129

frequently on the authority not of the judge
but of counsel (15 Edw. III., p. 180 : " Note
that according to some of the clerks "), some-
times apparently on his own authority. Where
John is excused from attending a leet court on
the ground that he was a clerk studying at the
schools at Cambridge, the reporter adds that
it would have been so if John had not been a
student but only a clerk with benefit of clergy
(20-21 Edw. I., p. 296).

The mistakes which the reporter occasionally
makes, such as naming the abbot (labbe) of
Conesby for prior of Conishead (12-13 Edw.
III., p. 74), militate against his official character;
nor would any official reporter have been so
foolhardy as to make the following notes : —
" Robert, pay your fine to the king. Note.
The justices did this rather for the king's
profit than in accordance with law ; for they
gave this decision in terror em " (30-31 Edw. I.,
p. 506), which shows how unfair it was of
Edward III. to prosecute his Chief Justice by
clamour of the people ; or where Mr Justice
Stonore asks, "Where is the jury?" the reporter
adding, " and he said that because he wished
that the damages for the rescue and those for
the battery should be severed" (18 Edw. III.,
p. 394). Another report of this case in the
Harleian MS. does not give this remark.

Only very occasionally does he quote a
precedent, as where he quotes, in 17 Edw. III.,
p. 38, a case in Y.B. 6 Edw. III. on process
in Statute merchant.

9

130 HISTORICAL MATERIAL

As there was no law that a judge should
follow precedents, and no public for whom they
would be of interest, there was no reason why
the reporter should notice any cases except
those which were out of the common.

Speaking of the discrepancies between the
Year Books and the Records, Mr Pike says
(20 Edw. III., vol. ii. p. xlvi), " The reporter
had an eye not to the everyday and the
obvious, but to the unusual and the difficult."
When he reported a case he did so for his own
interest and advantage, most probably from
memory after discussion with friends. His
reports were not cited as precedents ; when
precedents were brought up in court, the
judges did not necessarily follow them ; it is
unlikely that in any case we have any original
manuscript of a report taken in court, or in
fact any original manuscript at all. The Year
Books are notes of oral proceedings taken down
from memory.

We may here take leave of the characters
in the Year Books as of witnesses no longer
required, in the words of the learned Mr
Justice Shareshulle (Y.B. 18 Edw. III., p. 13) :
" Alez a Dieu vous vileyn."

If reading this account of the manifold
activities of the king's courts whether at
Westminster or in the wanderings of the
eyres, of which I have touched only slightly
on one side, should give the impression of a
kingdom at peace and under full control of
the law, a reader would do well to refer to Mr

THE YEAR BOOKS 131

Pike's account of the conditions of the country
in 1348. " Scenes of violence were common
throughout the country, and the forgery of
documents and seals quite an ordinary event.
Lawlessness was prevalent to a degree which
would be incredible if it were not established
beyond all doubt by the contemporary records.
In the year 1348, only two years after the last
of the Year Books published in the present
volume (20 Edw. III., vol. ii.), there was not
that security for life and property which the
elaborate structure of the courts of justice
might seem to suggest. Murder was rife in
all parts of the land, and robbery on the high-
ways was an everyday occurrence. In many
places there was organised brigandage. A
town might be invaded and plundered in the
midst of a fair. In the country, a park or
chace might be overrun by a band who would
kill the cattle and the game, cut down the
timber, and carry off the spoil. False coin was
imported and still more was manufactured.
Prosecutors, suitors, and jurors were intimi-
dated, and the collection of taxes not infre-
quently met with armed resistance. There
was much dishonesty among traders of all
kinds, and they did not even scruple to assist
the king's enemies with arms and provisions."
A perusal of the Paston letters will show a
very similar condition of affairs a hundred
years later.

If this was so in England, where the courts
of law had much power and were well organised,

132 HISTORICAL MATERIAL

much more was it the case in the remoter parts
in the marches on the borders of Wales and
Scotland, where the law was weak and dis-
order always prevalent.

To carry it down 240 years from the time
of Mr Pike's account, a very amusing account
of a border affray is given in the Annals of
Teviotdale (edited by the Rev. James Morton,
1832, p. 44), which took place at Jedburgh in
1575, on the occasion of a meeting held for
redress of grievances.

The proceedings of the Border parliament,
the judicial assembly, upon some sharp words
of dispute between the wardens developed
into a pitched battle between the English and
Scots, as if it had been a suit at the Law Hill
of an Icelandic Thing. Each side seized the
other's horses ; the Liddesdale men took the
opportunity to plunder the booths of the mer-
chants who had come to chaffer ; and finally,
when the Scots were getting the worst of the
battle, the burgesses of Jedburgh, raising the
cry, "A Jed worth ! A Jed worth!" marched out
of the town with drums beating and colours fly-
ing, and drove the English officers of the
over the border.

These aspects of history, as well as the
proceedings in parliaments and law courts,
assist us to form an appreciation of the responsi-
bilities which rested on the mediaeval ruler.

REDUCTION INTO WRITING 133

PART III
CHAPTER XIV

REDUCTION INTO WRITING

IT is not necessary to suppose that when men
first put down written matter on sheepskin
they did so from any belief in the superior-
ity of writing over the spoken word. The
superiority, so long as society rested wholly
on force, was with the oral tradition. The
memory, in an age when violence was a daily
experience, was a far safer storehouse for the
things to be remembered than the wooden
chests or any other unsafe receptacle in which
the parchments could be kept. Fire, when
the smoke went out through the middle of the
thatched roof of a wooden building, — when,
there being no matches, fire was carried in
the hand or on a wooden shovel, was a daily
occurrence, an hourly danger. To the risks
of fire and water was added the fading of the
letters on the skin. The MSS. of the Sagas
have been for the most part lost by their use
as leather for shoe-making in Iceland. The
memory was in every respect a safer place.

Besides, as long as society was stationary
and the means of production shared by the
community, there was nothing to be gained
by reducing customs to writing, for everyone
knew them ; a general declaration to the people

134 HISTORICAL MATERIAL

was in every way better. The only history to
be told or to be cared for was the story of the
great deeds of the past ; and men's memories
were so long that, if a man took it into his
head to write down the events of past years,
he was only writing of what was common
knowledge to all.

What it means. — Writing begins with the
coming of the missionaries of the Church
of Rome. When we first begin to hear of
written documents side by side with oral
tradition it tells us two things — that the reign
of perpetual violence was passing away, and
that Christianity was superseding paganism.
Oral tradition did not cease ; it went on in the
centuries side by side with the parchment
record, the memory being still the safest place
in which to store facts, except where the belief
in the powers of the Roman missionary
checked the savagery of the fighting man.

For a very long while the use of writing
confined itself to two things, the multiplica-
tion of MSS. of the "religion of a book"
which replaced paganism, and the recording
of matters of exception to the general rules of
the social state which affected the body of
men who had broken in upon the society
of kinsmen, claiming no kinship, not seek-
ing to be members of the community, but
being a separate community in themselves.
Augustine, Paulinus, Mungo, Aidan, Patrick,
all the missionary bodies, had no rights in
the community, unless in those parts where

REDUCTION INTO WRITING 135

the tribal system was so little superseded that
they formed a tribe of the saint within the
tribe. In all parts they had only such rights
as were granted to them by the community,
rights which, as exceptions to the general un-
written rule, it was very natural that they
should at once reduce to the writing at which
they were expert. The franchises of the
Church come from the king's grant. Men
of religion, says Scrope J. (Y.B. Edw. II.,
vol. ii. p. 73), take nothing by conquest ; and
Derworthy J. points out that for churchmen
the grant must be always from the king, so
prescription will not run against them (Y.B.
16 Edw. III., vol. ii. p. 214).

Violence was ceasing, but it had not ceased.
For long centuries the only place in which
men could study and carry on the arts of life
was the monastery; the only place where it
was safe to store facts not contained in the
memory was where the belief in unseen powers
checked violence and plunder.

It is easy to laugh at the childish supersti-
tion of those early days which surrounded the
monasteries with local saints extending their
protection, and working miracles on opportune
occasions on very commonplace things. The
unarmed man in the monastery would very
soon have been swept out of existence by the
brute force around him, if he had not been
able to create a belief in the sanctity of every-
thing with which he was concerned.

Especially the mysterious parchment on

136 HISTORICAL MATERIAL

which was written the divine word was under
the ghostly protection, it attained miraculous
powers which impressed the man who could
not read. In the Annals of Clonmacnois Mac-
Geoghagan tells that the Book of Durrow,
one of the very exquisite ancient Irish MSS.
of Columba, was, like others written by that
saint, believed to be impervious to water, and
that he had seen " the ignorant man that had
the same in his custody, when sickness came
on cattle, for their remedies put water on the
book and suffer it to remain thereon," a kind
of baptism of the cattle in the Holy Book.

The safety of the monastery, the sanctity of
its surroundings, threw into the hands of the
monks the whole business of the production of
MS. Except for any writing bearing on their
position in the community, of which we have
no very early remains in evidence, all early
MSS. were portions of Scripture or stories of
saintly lives or discourses on religious subjects.
The monk was the guardian of the written
word. In those days, at least in Ireland, the
production of MSS. does not seem to have
been a commercial business, but a labour of
love by the men whose profession was to teach
and preach the Gospel, and to exercise them-
selves in devotion.

The Original MS. — If a man in those early
days wrote and illustrated a MS., unless he
was of a generous turn of mind, or had a spare
piece of parchment, or succumbed to an appeal
to his vanity and made a copy for a friend, the

REDUCTION INTO WRITING 137

MS. remained the only MS., his property.
When Columba borrowed a MS. from another
saint and slyly made a copy of it, the owner
cited him before the king of Ireland at law,
who gave judgment against Columba in the
sententious epigram, " La gach boin a boinin
acus le gach leabhar a leabhran " (" To every
cow belongs her calf, to every book its copy ").
Columba went north to his kinsmen in Tir-
connell, and led the men of Ulster against the
judgment-giving king, utterly routing his army.
The disputed MS., which was afterwards re-
tained by Columba, was called the Cathach or
Battle Psalter, and was carried in battle by the
clan of the O'Donnells, as an assistance to vic-
tory, down to the end of the fifteenth century.
Such MSS. as these, of which the original
owners were so jealous, were not numerous.
They were most beautiful works of art, illumin-
ated with the most wonderful taste and delicacy
of handiwork. Ireland has pre-eminence in
this class of work, the extraordinary beauty
and the luxuriant illumination of the MSS. of
past times, from the fifth century downwards,
deposited in the libraries in Dublin, far excel-
ling any other specimens. One in particular,
the Book of Kells, a MS. of the Gospels in
Latin, is well known for the extraordinarily
elaborate ornamentation. Either the men of
those days had stronger eyes than ours, or far
greater patience, to work out the minute hair-
lines of colour which form the intricate patterns
of these illustrated books.

138 HISTORICAL MATERIAL

Copying and Editing MSS. - - But there
would be few MSS. of such value as to be
worth the jealousy which denied the right of
reproduction. Except for these creations of
beauty, the MSS. were copied and produced
in every monastery. It soon became, at least
in England, a commercial business. Every
monastery had its scriptorium, in which MSS.
were written and illuminated, where pupils
were trained in the art. The monks in time
took into their hands all trades, all arts, all
professions. But, until printing put an end to
MSS. on parchment except for legal documents,
the one leading business of the monastery was
making and copying MSS.

The writing, as I have pointed out, in the
earlier times was either of religious matter
or of grants which formed exceptions to the
customary law. The writing of Annals and
Chronicles does not begin until the Roman
influence has consolidated the tribes into some
sort of a nation. Even then the entries are
very sparse indeed, and concern almost entirely
the monastery or the matters of religion in
which they were concerned.

We come here to one of the greatest diffi-
culties connected with the authoritative value
of mediaeval MSS. Many copies of any work
of interest were made in different monasteries ;
there was jealousy between the monasteries as
to the possession and authorship of such works.
But there was nothing in the dense originality
of those days to prevent each copyist from

REDUCTION INTO WRITING 139

making, as he went, any alterations or additions
to the MS. which pleased him or seemed to be
likely to be of interest to the people of his
district. He could modify or strengthen the
violence of the expressions.1

Or the copyist could introduce new facts or
omit facts. He could alter legal customs, if
they happened to differ in his neighbourhood
from those recorded ; the events which ap-
peared perilous at St Albans would be of
little moment at Worcester or Durham ; the
character of the king or other man would vary
as he had been niggardly or generous of other
people's goods to the editor. He made what
was very often practically a new work. But
the new work still went under the name of the
man to whom it was convenient to attribute
the work. The supposed author might very
well be a copyist, or the abbot of the monastery
which possessed it, or any other fictitious person.
Such a habit had the further great disadvan-
tage that it led easily to forgery. We not
only never can be sure that we have the
original MS., but we can never be sure that the
MS. is an exact copy of any original. As we

1 As, e.g., Matthew Paris, re-editing Roger of Wendover's
Chronicle as his history (R.S., No. 57, vol. ii. p. 635), adds
abusive epithets to the names of the leaders of the royal
forces. He adds to the name of Faukes de Breaute, " sine
visceribus misericordiae," and to the name of Walter Bunc,
leader of the mercenaries, " sicarius et vir sanguinum cum
Flandrensibus suis spurcissimis et ignobilibus omni genere
facinorum commaculatis." Roger of Wendover did not
say this.

140 HISTORICAL MATERIAL

seldom know any particulars about the sup-
posed first author, or anything at all of the
copyist, we have only in almost every MS. a
compilation of flying rumours or customs
carried down in the memory made by a person
unknown, and altered according to circum-
stances. This applies to all the mediaeval
chronicles of any part of the islands.

The writing of legal customs begins appar-
ently early, and it is in England at least the
monk who has the writing and editing of these,
judging by the large space in the early laws
devoted to Church matters.

The Writing of Charters. — The writing of
legal documents must also have begun very
early. Men were grateful to the Church for
the benefits, moral and material, which the
man of peace had conferred on society, the
crops of corn which lessened the dread of
famine, the assistance which their care of roads
and bridges gave to those responsible for their
upkeep (see Jusserand's English Wayfaring
Life in the Middle Ages, p. 38 et seq.), their
industry in teaching the arts which in the
times of war other men could not practise.
They showed their gratitude by giving to the
Church, which stood outside the community,
gifts of slices both of the common lands and
of land belonging to individuals, and they in-
vested them with a number of miscellaneous
privileges which attached to the lands, or
which were of value in themselves.

In the early days the monasteries were poor.

REDUCTION INTO WRITING 141

It was not until the twelfth century that they
began to become really wealthy and powerful
corporations. Where the grant did not ex-
press the communal rights involved (and early
charters were very short), it was natural that
the hungry grantee should try to include in
the grant all the pertinents, the matters which
under customary law might pass without any
need of written expression.

To the grant of a few acres, maybe of
waste land, the writer added all the remote
possibilities which could result from the grant,
rights of hunting, of fishing, of milling, the
ferries, the salt works, the smithy, the brew-
house, the tolls and customs, the taking of
peats and broom, the right to hang and drown,
and so forth. The parchment conveyances and
legal documents of later times derive their ex-
treme length and their unnecessary repetitions
from the desire of the monks of ages long past
to include in the gift all profitable accessories.

Frequently, however, especially in later days,
as they became longer and more diffuse,
the charters expressly included a number of
miscellaneous gifts. It is not surprising that
the possessions of the Church grew with
enormous rapidity from the acquisition of
many small bits of things, each carrying with
it some further right attached to the col-
lection or some opening for future enlarge-
ment which the king and, in imitation of the
king, all the lesser chiefs threw to the men of
the Church.

HISTORICAL MATERIAL

How miscellaneous such gifts were may
be seen from any charter in any part of the
islands in those days. For instance, in 1150
David I. of Scotland grants to the monks of
Dunfermline a confirmation of the grants
formerly made to them (Lawrie's Scottish
Charters, No. ccix. ), including mansuras (houses
in burghs), two churches, a ploughgate (about
104 acres) of land ; tithe of various legal dues ;
fishing ; tithe of pleas ; tithe of the produce of
all game taken between Lammermoor and
the Tay ; half of the hides and fat and lard
of all beasts killed for feasts in Stirling and
between Forth and Tay; timber from the
king's wood for firing and building ; all offer-
ings at the great altar ; every seventh seal
taken at Kinghorn ; tithes of salt and iron
brought to Dunfermline for the king's use ;
a tithe of his unbroken mares in Fife and
Fotherif; exemption from toll on all occa-
sions ; five marks of silver from the first ships
which come to Stirling or to Perth ; the
passage and boat of Inverkeithing, excepting
free passage for persons on court business ;
freedom from authority, lay and ecclesiastical,
and from court dues.

It would most likely fall on the monastery
to see that the roads and bridges and ferries
were kept in repair, so that they might enjoy
their gifts, and that the course of the river
was clear, to prevent the boats sticking in the
mud on their way to Perth or Stirling.

The men of the monastery in the first

REDUCTION INTO WRITING 143

instance lived on this miscellany of odd things
pared from the wealth of the community, and
they repaid it fully by prayer and by advan-
cing the science of living. But such a system
undoubtedly led to a great deal of forgery of
charters, which, in view of the great success
of the forged Decretals, is hardly surprising,
forgery which led to doubt of the genuineness
of the earlier MSS. This partly accounts for
the spite of the common lawyers against the
Church, to which Hereford gives vent in 4
Edw. II., p. 69 : " The men of Holy Church
have a wonderful way. If they can get a foot
on to a man's land they will have their whole
body there." And he adds, referring to the
case before him, possibly not without some
note of admiration: "pur 1'amour de Dieu
1'evesqe est un prudhomme."

The Writing of Chronicles. — One cannot
be surprised that the monks spoke ill of the
men who found other uses for their money.
When after his coronation John came to
the monastery of St Edmund's at Bury,
" we indeed," says Jocelyn, " believed that
he was come to make some offering of some
great matter; but all he offered was one
silken cloth, which his servants had borrowed
from our sacrist, and to this day have not
paid for."

As the copying of MSS. grew to be a great
commercial business, each monastery set up
its historian, who kept a record for the events
which concerned the monastery, and such

144- HISTORICAL MATERIAL

outside events as rumour carried to them.
As all ships were laid up in the winter months,
and communication with the east or north
suspended, the particulars which came through
to the monastery must have come from
pilgrims who had heard rumours on their
way home.

While the copying and editing of MSS.
thus became a great commercial industry in
the English and East Scottish monasteries, in
the rest of the islands the oral tradition, the
story-teller, lasted for many generations. The
Chronicles and Annals of all parts continue
to enlarge in view, but still everything centres
round the affairs of the monastery and the
Church. Rome plays a larger part, com-
munication becomes easier, the outlook of
affairs widens. But still until the twelfth
century no one wrote history in our sense of
the word, though William of Malmesbury and
others might call their books history in imita-
tion of the Roman model.

They wrote of the affairs of the Church,
whether in the East or in Rome or at home,
and of their own affairs in the monastery, and
of famines and storms and miraculous portents,
and in the times of the Scandinavian invasions
of the crimes of the Northmen, and they wrote
as the times went on more and more as a
commercial business, for money, not with any
view of informing the world. Why else should
they write ?

In days when stultiloquium was an offence

REDUCTION INTO WRITING 145

liable to heavy punishment, if the rumour fled
round their world and came to the ears of the
person affected, it was better in every way for
men whose business was writing to put down
on parchment their estimates of character and
the rumours which came to them to be dis-
cussed in the monastery or to be circulated
among the fraternity at large. It is in the
twelfth century that the change from these
conditions comes.

CHAPTER XV

THE LITERARY OUTBURST OF THE
TWELFTH CENTURY

THE twelfth century saw a most extraordinary
activity in all forms of thought and expression.
So far from being an age of faith, it was a
revolutionary time, when men turned over all
their previous convictions and revised them.
Every theory, every belief, on which society
in any of its aspects rested, was questioned
and closely examined.

The really great minds of the Church, men
whose study and whose use of writing had
led them to think over the faiths of Christianity
as well as accepting them, had tried in former
generations to reconcile the doctrines of the
Church with the objections to them of human

10

146 HISTORICAL MATERIAL

reason. John Scotus Erigena in the ninth
and Anselm at the end of the eleventh century
had exercised eminently subtle minds on pro-
blems of philosophy and religion. But the
problems discussed by a few of the greatest
men came only into prominence as subjects of
investigation by the many when the Crusades,
showing the West European world the gorgeous
East at a closer view, and a great Eastern
civilisation beyond, which hitherto they had
been taught to despise, called on men to
examine into their own faith and all the
human society which depended on their faith.
The Crusades brought for a moment a great
unity of Christendom, elevating the papacy,
the centre round which the Crusades moved,
to a giddy height as the Eastern patriarchates
decayed, and they opened up a great litera-
ture of the thoughts of the past enshrined
in written MSS. They not only taught
men to think, but they encouraged the use
of writing.

So far as the subject of history was con-
cerned, the result was the reduction into
writing of all sorts of matter which bore on
the past, not merely theological disputations,
but accounts of events, bodies of custom,
legends of all descriptions. In fact, what we
may call "history" in the modern sense of
criticism and abuse of rulers was for the first
time since Caesar's invasion being written in
the islands.

All or almost all this historical matter, how-

TWELFTH-CENTURY LITERATURE 147

ever, was not in any sense original as regards
the past, but was enlargement and embroidery
on a stock authority, the sparse chronicle of
former ages, which gave facts on which the
historian could exercise his literary imagination.

Bede, Tighernach, Marianus Scotus, Asser,
the Saxon Chronicle, probably Are and
Soemund Frode, were the skeletons on which
the twelfth- and thirteenth-century historians
put flesh, in the style of Rubens. Sometimes
the Chronicle was merely a brilliant embroidery
on the bare bones, sometimes it professed to
be the work of a man of former times, some-
times it is expressed to be the writer's own
compilation from a number of previous
writers. In every case the only facts before
the date when the writer begins his MS.,
which can be in any way relied on, are those
related in the stock authority, as any former
writers from whom the twelfth-century historian
took facts embroidered on the same stock
authority. I have called attention to one
instance of such use in my First Twelve
Centuries (p. xli), in the accounts of the
massacre of St Brice.

Most of these so-called historians are intoler-
ably dull compilations, simply wrapping up
the minute fact in very grandiloquent language,
and bringing forward those features which
affected the position of the Church. But there
were other writers who were more independent,
who even dared to write away from the stock
authority and indulged in original fiction.

148 HISTORICAL MATERIAL

The Archdeacon. — These men were fre-
quently archdeacons, who, being the men of
business of the monastery, travelled much,
were brought in contact with laymen in all
sorts of business relations, and were in a
position to hear news which was denied to
the sedentary occupant of the monastery.
They were often sons or nephews of the
bishops. Henry of Huntingdon in the
eleventh and Ralph de Diceto, afterwards
dean of St Paul's, in the twelfth century are
examples of the class.

Prominent among the more original writers
of this age are three half- Welsh archdeacons,
Walter Mapes archdeacon of Oxford, Geoffrey
archdeacon of Monmouth, and Giraldus the
Welshman (Cambrensis) archdeacon of Breck-
nock. Each of them contributes racy and
original matter to our stock of knowledge of
their times. Walter Mapes gives sarcastic
comments on the court life of the times of
Henry II., Geoffrey creates for us the ideal
Arthur and builds up an imaginary British
empire of the Welsh which seems to have
borne fruit in John's time,1 and Giraldus, an
able diplomatist of no mean order, trusted by
Henry and his sons with various important
missions, wrote on the events of his own life
and on various other most interesting subjects
both in Ireland and Wales with all the freedom

1 When Arthur "subito evanuit, Britones Arthurum
antiquum in isti resuscitatum impudenter et imprudenter
jactitabant."

TWELFTH-CENTURY LITERATURE 149

and vanity and prejudice of the monastic man
of business of his time.

There is some similarity between these men
and the special correspondents, the men who
write special articles for newspapers in our
time. Giraldus in particular has been alter-
nately abused as a liar and as credulous because
he picked up any good story which he found
going about and told it in a racy manner,
regardless of truth, so long as it would amuse ;
William of Malmesbury, a very much duller
writer, a Puritan, who is always protesting
that he cannot tell a lie, is believed and con-
sidered an authority because of his protests.

These critics of history never can understand
that a man may be absolutely regardless of
truth in matters which belong to the realm
of fancy, while, like a special correspondent of
to-day, he may be most accurate in stating
facts of importance which bear on matters in
which accuracy is of value. If it were not for
our intolerable conceit we should see this.

For instance, Giraldus, in an account of an
itinerary through Wales of Archbishop Baldwin
in 1 188, preaching the Crusade, a book dedicated
to Stephen Langton, the famous Archbishop
of Canterbury, tells of a saintly staff of St
Cyric, a saint of the seventh century in Wales,
a staff covered on all sides with gold and silver,
and having the miraculous power of curing
glandular swellings on payment of a penny.
He says that a patient paying only a halfpenny,
the swelling subsided on one side only ; another

150 HISTORICAL MATERIAL

promising a penny, the swelling subsided but
came back on non-payment, and the man had
to pay threepence to get rid of it. Neither
Giraldus nor Stephen Langton, men with
most acute minds, is likely to have believed
such fables. It is hardly sensible to call him
credulous because he amused the men of his
age with what was to them a good story.

I am reminded of a paragraph in a London
daily paper in the dull month of August 1910.
The correspondent related as fact a story of
an election in a town in Iceland to decide
whether the town should be lit by electricity
or gas. All the men, said the correspondent,
voted for electricity, all the women for gas
that they might cook with it ; the women and
the men were equal in number, and the mayor
decided the question by voting with the
women. I do not know whether there are
any towns in Iceland, or how far this story
may have foundation in fact. But in any
event we need not call this correspondent a
liar or credulous. He provided " good copy "
in a dull season. The season of Giraldus
and William of Malmesbury was always
August.

The authors who permit themselves the
danger of originality weave endless legends
from the wonders of natural history, the
misconceptions of the habits of creatures and
human races with which the Crusades had
newly acquainted them, and the results of the
stories brought home from the East by men

TWELFTH-CENTURY LITERATURE 151

who had not entirely lost a sense of humour
or the habit of imaginative enlargement.

They tell of the disdainful and discontented
camel, the rhinoceros allured by love of virgins,
the badger which had the legs longer on one
side that he might walk in the ruts of the
road, the beaver's tail of which Giraldus
sarcastically remarks, " Great and religious
persons in times of fasting eat the tails of this
fish-like animal."

If anyone objected to any of these efforts
of the imagination of the mediaeval historian,
he would be likely to be met with the reputed
answer of Augustine to one who asked him,
What was God doing before He created the
world ? He made hell for those who ask
foolish questions. Hell was a frequent subject
of amusement for the monastic historian.

But they were not all legends that the
historians told. Sir John Maundeville (they
say that he never existed, but that does not
matter any more than with Benedict of Peter-
borough, one of our most reliable historians) tells
us of Cairo : " There is a Common House in
that City that is all full of small Furnaces, and
thither bring Women of the Town their Eggs
of Hens, of Geese and of Ducks to be put
into those Furnaces." And they cover them
with Heat of Horse Dung, etc. " And at the
end of three Weeks or of a Month, they come
again and take their Chickens." A public
incubator in Cairo in the fourteenth century !

The summary of all this is that we have to

152 HISTORICAL MATERIAL

take the monastic chronicler of the twelfth
and succeeding centuries as we take the cor-
respondent of the present day. He gives a
great mass of information, and he leaves it to
our common sense as chiffonniers to sift it. If
we have not got any common sense, we make
a false use of it, or no use at all.

At the present day, if we find a statement
in some daily paper which we distrust, we
correct it from another paper or from some
other source or from good personal common
sense. If we wish to make any sensible use
of the monastic chronicle, we must use the
same check from common sense and other
sources. It does not matter whether we are
considering the value of Matthew Paris in his
heyday of reputation as a serious chronicler,
or Giraldus in his most irresponsible moments
of gratuitous fiction ; we cannot accept their
conclusions without considering them.

CHAPTER XVI

THE INFLUENCE OF THE MONASTIC
HISTORIANS

Their Influence on their own Age. — What
effect had these historians on their own age
as authorities for the history of their times ?
I should not ask so foolish a question if they
had not been so accepted in times later.

THE MONASTIC HISTORIANS 153

Giraldus might go and read his books to the
young men at Oxford, or amuse Henry with
his account of the encounter with the bishop
of St Asaph. But apart from any authority
of personal experience which he might have
as a member of the expedition to Ireland, or
as the guide of Archbishop Baldwin in Wales,
no man who was likely to hear his MS. read
would be ignorant of his kinship with the
Fitzgeralds or his ambition that Wales should
be independent of Canterbury. History which
takes note of theories of government was not
born. Men who read De Instructione Princi-
pum would recognise in it the spiteful reply of
the old savant to the neglect of his claims by
Henry and his sons. No man in those days
was so foolish as to make the whole world
revolve round one human character.

The monastic historians of the twelth and
thirteenth centuries wrote for bread, and in
the hope of patronage. When they had no
response and saw no reward in sight from the
king whose promises they had sung, they
turned and tore him.

If we wish to judge of the influence which
they had on their times, we must mark what
influence the most brilliant correspondent now,
in an age when men spend a great part of their
time in idle reading, has on our times. The
few who read their works or heard of them
would judge their value by the existing con-
ditions which they knew from oral sources.

Their Influence on our Age. — Unfortun-

154 HISTORICAL MATERIAL

ately, though there is no reason to believe that
any of the chroniclers ever influenced the
events or the characters of their own time,
they have had a great and for the most part a
very evil influence on ours. The exaggerated
language of evil speaking which they were in
the habit of using of all persons in authority
has been accepted by English historians from
the seventeenth century onwards as tending
to support certain theories of what is called
constitutional history, the study as to when
and how far, under a government which rests
as it does in no other country on unwritten
foundations constantly modified, it is to the
advantage of society for the individual to
refuse obedience to the State.

I will take some illustrations of this use
from the most learned and most considered
writers of our time.

Walter of Coventry and Bishop Stubbs.—
For the last few years of John's reign the
chain of responsible chroniclers, who had
carried on from one to another an account of
events previously, and who continued the
accounts subsequently, is broken. Hoveden,
Ralph de Diceto, Gervase of Canterbury, Bene-
dict of Peterborough, William of Newbury, and
others had ceased, and Roger of Wendover and
Matthew Paris were not contemporary. We
have no contemporary writer of any note for
these very interesting years, unless it be a MS.
called the Memorials of Walter of Coventry.
The MS. has a very instructive history.

THE MONASTIC HISTORIANS 155

Someone, possibly a copyist, got hold of
or compiled a MS. and called it the Memorials
of Walter of Coventry. There is no evidence
that anything was known of it in John's
reign or for a long time afterwards. But in
the sixteenth century Leland, a most learned
antiquary, picked it up somewhere, and after
the manner of the men of his day wrote an
account of the author. The stories told by
him and his successors are worth quoting
as typical of the way in which history has
been written. " Walter Coventuensis," he
says,1 " a man now dignified by age and
much experience of affairs, wishing to make
the fame of his name by some significant
memorial not only illustrious but also most
extensive or perpetual, applied his mind to
writing. . . . Accordingly with a high courage
he attempted a history. . . . Illustrious how-
ever as the man was, he wanted one thing,
... in eloquence he was not unfrequently
in default, etc., etc.," of which Bishop Stubbs
quietly remarks that this was Leland's way of
stating that he knew nothing at all of Walter
of Coventry.

Bishop Bale, another antiquary, follows
Leland, and knowing less gives closer
particulars. Walter, he says, born and
educated in Coventry in the county of
Warwick, spent on literature very sedulous
labour at Oxford. Pits follows Bale and,

1 I quote from Bishop Stubbs' Introduction to the first
volume of Walter of Coventry in the Rolls Series.

156 HISTORICAL MATERIAL

misunderstanding him, makes Walter born
" of honest parents " in Warwick instead
of Coventry, and passes him through the
course of studies at Oxford with satisfac-
tion. A long list of distinguished critics
and antiquarians, each adding some touch
of solemn fancy, carry the story down.
Then in the eighteenth century comes a
learned German, in days when Germans
were learned, one Caspar Oudinus, and sweeps
the whole edifice away, leaving not a wrack
behind.

Then in the latter half of the nineteenth
century comes Bishop Stubbs with his ab-
solutely destructive criticism. He shows that
Walter of Coventry was not contemporary,
but "flourished" up to 1293, seventy-eight
years after John's death ; that nothing what-
ever is known of him, unless, from local indica-
tions in the book, he was connected with the
diocese of York.

Of the Memorials he says : " The book itself
is one on which its creator has bestowed very,
very little more than manual labour " ; it is a
compilation from Geoffrey of Monmouth's
British History, beginning with Brutus, the
son of ^Eneas, and other works, followed by
condensations and extracts from Marianus
Scotus, Florence, Henry of Huntingdon,
Benedict of Peterborough, Roger of Hoveden,
and an anonymous continuator, but it was not
drawn immediately from them. " It is an
abridgement of an abridgement, a compilation

THE MONASTIC HISTORIANS 157

from a compilation, which last is drawn from
the originals."

The anonymous contributor he identifies
with a chronicle of the monastery of Barnwell,
near Cambridge, which contained a series of
Annals from the Incarnation to 1225, with
some scanty and valueless notes of continua-
tion down to 1309.

" Whether this Barnwell Chronicle is an
original or only a local version of a book of
annals widely diffused in the fen counties, I
cannot say." Walter did not use either of
the known MSS. of this Barnwell Chronicle.

" There are not, I think I may safely say, a
hundred words in the book of which Walter
can claim to be the original composer."

He traces the five steps which lead to the
formation of the MSS., and he decides that
this compilation from a compilation is valu-
able, and that the writer was " very patriotic."

Such a laying bare of the grievous faults
of other critics would, one would have sup-
posed, have given this great historian pause
in passing equally reckless commentary on
the characters dealt with by the records which
he dissects, but this is not the case.

In the preface to the first volume he utterly
smashes the edifice built by the critics of
the sixteenth and seventeenth centuries over
Walter of Coventry ; it is a masterpiece of
critical examination. The preface to the
second volume is a faithful following of the
style of the twelfth-century chronicler, an

158 HISTORICAL MATERIAL

attempt by Bishop Stubbs to build up what
is called a character of both Henry and John
out of the odd bits. Out of these he draws
what he calls " a more probable theory of the
man and of his work on the age and nation."

According to this theory of Henry, "his
moral character, his self-will and self-indul-
gence, his licentious habits, his paroxysms
of rage, his covetousness, faithlessness and
cruelty, did not come into any violent col-
lision with his political schemes."

He descends to personal particulars which
could have no influence in Henry's age and
nation ; " he transacted all business standing,
greatly to the detriment of his legs."

His character of John is as spiteful and as
absolutely unsupported by evidence as any-
thing which has been written since Giraldus
in his old age and days of disillusion, having
bid too low at the auction, calls Henry
"justitiae venditor et dilator," and the bank-
rupt John "longe atrocius casteris tyrannis."

The epithets used by Bishop Stubbs in
drawing these characters are accompanied
for the most part not by any facts but by a few
words drawn, with the exception of Giraldus,
from Matthew Paris or from writers of the
fourteenth century, like Wykes and Matthew
of Westminster.

The writers of John's own time do not
use such abusive language; the great critic
suggests that in his lifetime they were afraid.
Those who wrote soon after his death are

THE MONASTIC HISTORIANS 159

equally moderate ; he suggests that the truth
would have touched the honour of noble
families.

The care is extraordinary with which
Bishop Stubbs collects here a word and there
a word from these non-contemporary annalists
in support of the characters which he has
made up — here an evil epithet, there savage
vituperation, " insatiabilis avaritia " (Matthew
of Westminster), " proterva obstinacia "
(Wykes), etc., etc — each passage torn from its
context where, beyond the virulence of dis-
appointment or the desire of enforcing the
moral lesson, there is any context.

Where the annalist does not bend to the
desired abuse, the Bishop says, "only an
occasional adverb, dolose, crudeliter, or igna-
viter, shows what he thought."

He points out that the circumstantial
charges are made by Matthew Paris, the
politician of fifty years later, a writer who,
he admits, was intensely prejudiced against
both king and pope. Of him he says that
he was much less scrupulous in interpret-
ing the course of events by his own impres-
sions than any English historian who had
preceded him.

When Bishop Stubbs' most valuable in-
troductions to the Rolls Series were col-
lected in a volume and published (edited by
Arthur Hassall, 1902), the preface to the first
volume of Walter of Coventry, containing
the valuable accounts of the MSS. and their

160 HISTORICAL MATERIAL

handling, was altogether omitted ; but the
monastic abuse of John, the collection of all
the ill words of Matthew of Westminster and
the others, was printed at length. It is
characteristic of our modern teaching of
history.

CHAPTER XVII

THE INFLUENCE OF THE MONASTIC

HISTORIANS (continued]

Matthew Paris and Mr J. R. Green. —
Comparatively few people read Bishop Stubbs'
masterly prefaces in the Rolls Series. I take
a further illustration from a very popular book,
Mr J. R. Green's History of the English People.
In the Chronica Majora, the enlarged
edition of Roger of Wendover by Matthew
Paris, you will find this passage (R.S., No. 57,
vol. ii. p. 669) :

Quidam autem versificator, sed reprobus l de eodem ait ;
Anglia sicut adhuc sordet fcetore Johannis,
Sordida foedatur fcedante Johanne gehanna :

which may be Englished :

As hitherto England is befouled with the stinking John,
Foul hell is stinking with the stinking John.

1 I have taken reprobus as referring to personal
character, as the versification seems quite up to the
monastic mark. Reprobus would be equivalent to lost
or damned.

THE MONASTIC HISTORIANS 161

I would point out that we come here again to
the connection of oral tradition with the MS.
of history. Some travelling rhymer probably,
sed reprobus, comes to the monastery, and,
knowing that the monks of St Albans had no
love for the king, whose mercenaries had plun-
dered their cellar and kitchen, quotes them
this couplet. The historian writes it down
some day as a good joke to be passed round
the table of the monastery.

Almost any stone will do to throw at John.
This is how Mr Green in his History uses this
very filthy couplet. " Foul as it is," he says
(History of the English People, vol. i. p. 229),
" hell itself is defiled by the fouler presence
of John " ; and the historian gravely and
seriously goes on to say of this anonymous
jest reduced to writing many years after
John's death : " The terrible verdict of his
contemporaries has passed into the sober
judgment of history."

The sentence is used in Mr Green's History
before he passes to the consideration of the
most important events of John's reign, blind-
ing the eyes of any reader to the causes which
were working in a transition time, the most
important transitional time of our early history,
to modify and change institutions and ideas.
The grander the conceptions of the historian,
the more seductive his style, the more hope-
less it is that the reader of history should ever
see the causes underlying historical events,
which are the only matters worth treating in

11

162 HISTORICAL MATERIAL

history, in view of the perpetual abuse of the
men in authority.

School Histories. — The school histories follow
the larger ones in this respect. An excellent
school history of England has a chapter on
John's reign in which occur the following
passages : p. 129, " John lay in sensual enjoy-
ment at Rouen " ; p. 131, " though acting thus
violently, John showed the weakness of his
character " ; p. 132, " in a state of nervous ex-
citement, ... a policy which in any other king
would have accepted as national and good " ! ;
p. 133, " the king's rapacity, his tyrannical con-
duct"; p. 134, "the weakness which was hidden
under the violent and ostentatious passion of
John, ... his boastful obstinacy"; p. 136,
"with his usual folly" ; p. 140, "he died perhaps
a victim to his own greediness." This last
piece of spiteful slander (according to Matthew
Paris and Mr Green his sickness was inflamed
by a gluttonous debauch) is a very good
instance of the desire of these historians to
put John in the worst possible light. He
died, as most mediaeval kings died, either of
indigestion or poison. The Annals of Loch
Ce record his death : " John, king of the
Saxons, was deposed by the Saxons in this
year, and he died of a fit." The editor quotes
the Annals of Clonmacnois, where he is said
to have died from " drinking of a cup of ale
wherein there was a toad pricked with a
broach," and the Annals of Bermondsey, " ut
quidam ferunt, venenatus cum cerusis per

THE MONASTIC HISTORIANS 163

quendam monachum nigrum Wigornias."
The suggestion of greediness or debauch is
only an example of the intense animus which
actuates the modern historian when he touches
on this subject.

Mr M'Kechnie s "Magna C/tarta" -The
habit continues now. Mr M'Kechnie's most
valuable book on Magna Charta is deprived of
a great part of its value for historical purposes
by his assumption that in every case the charter
was designed to curb some innate iniquity in
John. This is not the place in which to review
the charter, but 1 would point out that hardly
a chapter in this book is treated by Mr
M'Kechnie without abusive language, and
without attributing evil acts and bad motives
to the king, of which he produces no proofs.

For instance, in chapter xxiii., dealing with
the repair of bridges, he assumes that the provi-
sions restricting their repair were made because
John ordered them that he might " go afowl-
ing with his hawk upon his wrist," an explana-
tion quite out of the question for a king whose
time was taken up flying through his dominions
from Ireland to Aquitaine. No evidence what-
ever is offered in support except some expres-
sions in an order of Henry III. in later years.
John "issued letters compelling the whole
countryside to bestir themselves in the repair
of bridges. Several such writs of Henry III.
are extant." Mr M'Kechnie goes on to declare
that John did this "with the object not so
much of indulging a genuine love of sport as

164 HISTORICAL MATERIAL

of inflicting heavy amercements on those who
neglected prompt obedience to his commands,"
an unsupported slander, quite in the style of
Matthew Paris or Ralph Niger.

The dispute about the repair of roads and
bridges between different authorities goes on
always. As commerce increased, as there was
more movement, as new bridges were built
over rivers, the question as to who was to be
responsible for them arose. The barons and
persons with private franchises wished to put
the responsibility on the king, and he on them.
For instance, in Y.B. 14 Edw. III., p. 293,
there is a case where the sheriff distrained the
bishop of Coventry on the ground that as lord
of Hanworth he had not repaired the bridge
of Hanworth. The bishop claims that the
bridge was in a liberty outside the sheriff's
jurisdiction, and that there was no highway or
common passage. The inquest find the facts
for the bishop, and the sheriff* is in mercy.
The reporter adds, " and note that the bishoj
did not recover damages. Quasre." No one
ever does recover anything in a dispute witl
the king, apart from force.

The III Effects of these Methods.— The dis-
pute between John and his barons was n<
question of right or wrong, of evil or good.
A new condition of things had arisen whicl
either had to be settled by agreement am
compromise, or, if neither party would give
way, by force. The causes which led to the
change, the economical agencies which were

THE MONASTIC HISTORIANS 165

at work, the new ideas which had permeated
thought, the responsibility of the society itself
for the results of its actions, are hidden from
the student of history by the incessant abuse
of the man in power. He is not led to inquire
why John lost Normandy, why like his great
antagonist Philip Augustus he had in the end
to bow to the authority of the pope, or why
he was unsuccessful in stemming the reaction-
ary wave of baronial authority which had been
checked by his father.

I am not proposing to make the slightest
effort to defend or reinstate his character.
The centuries of monastic slander, almost
entirely unsupported by any concrete fact or
evidence, have left on him, as Fuller says, dirt
which cannot hereafter be washed off. John,
whether he were an uncanonised saint or an
impossible blackguard, is dead and recks
nothing of what is said of him.

My protest is on behalf of the historical
student against the avoidance of economic
cause which is the result of this blind
acceptance without any inquiry of any silly
story l with which the thirteenth- or fourteenth-
century monk chose to entertain his readers.
The age was, as Pollock and Maitland say,
" the moment when old custom was brought in
contact with new science," " it was a perilous
moment." John fell under it.

Some great historians see the extreme

1 Such as that John, at Bristol in 1 209, ordered that no
bii-ds should be taken throughout England.

166 HISTORICAL MATERIAL

danger to a sense of historical proportion
which follows from a neglect to watch and
weigh carefully every statement of these
monastic chroniclers.

Skene (Celtic Scotland, i. 119) rebukes the
" carefully manipulated fictions of Fordun and
the still more fabulous narrative of Hector
Boece and his followers, and speaks (vol. iii.
p. 336) of the period from the succession of
David I. to the death of Alexander III. as
" the period of the manipulation of the chroni-
cles and the gradual formation of that spurious
system of national history which, originating
in the ecclesiastical pretensions of St Andrews,
was developed during the great controversy
regarding the independence of Scotland."

Mr Maitland (Domesday Book and Beyond,
p. 277), discussing the authorities for the
manorial court, warns us in the same direction.
" So careful must we be in drawing inferences
from singular instances, so wary of forgeries,
that in the end we cannot dispense with
arguments which rest rather upon probabilities
than upon recorded facts."

Why bring up young people on a gospel of
hate ? The abuse of the king or the church,
the two great agencies for human advance in
the Middle Ages, on the authority of unknown
men making or repeating statements without
proof and without first-hand knowledge, draws
away the mind from the study of the causes
underlying historical events and deadens in
the student any good instincts or high ideals.

OTHER REDUCTION INTO WRITING 167

•

CHAPTER XVIII

OTHER REDUCTION INTO WRITING

THE writing and manipulation of the Chronicles
were going on in the twelfth century in other
parts of the islands as well as in England and
south-eastern Scotland.

The French epics of Charlemagne and his
heroic warriors were taking shape ; Geoffrey
of Monmouth was writing his Historia
Britonum ; Caradoc of Llancarvan was editing
in the Brut y Twysogion a historical continua-
tion of the romances of Arthur and his knights
by Geoffrey of Monmouth ; Master Wace, of
Jersey, canon of Bayeux, was re-editing at
Caen for Henry II. an enlarged edition in
Norman French of Geoffrey of Monmouth
under the title of Le Romans de Brut ; the
series of Irish Annals were being continued or
reduced to writing in various parts of Ireland ;
and the Scandinavian Sagas, the creation of
lay men of action, the only mediaeval records
in which there is a love element — records from
which we may learn much of the social and
political history of the Orkneys, Shetlands, and
western Scotland and many particulars of the
other parts of the islands, — were being reduced
into writing.

The Welsh Records.— Of the Welsh Annals
there is little to be said. They were written
in the monastic Latin ; they treat of the rela-

168 HISTORICAL MATERIAL

tions between England and Wales, and are
useful to us as a check upon the accuracy or
the animus of the English Chronicles, as they
are frequently neither in agreement with the
English accounts of the political relations be-
tween the countries nor with the accounts of
English victories. But, apart from such use,
they touch very little on matters of general
interest and give us few touches of social life.
They stand midway between the English
Chronicles and the records of the other parts,
and they are sufficiently under Roman in-
fluence to partake of the English outlook on
affairs. They are valuable only in linking up
England with the rest of the islands.

But scanty as her monastic records are,
Wales has this much in common with the
western parts of the islands, that she was
sufficiently free from the deadening influence
of the Roman monastery to produce an imagi-
native literature from which we catch many
glimpses of social conditions. There are a
succession of Welsh bards who, up to the
close of the thirteenth century, sing in their
native tongue of war ( " c'est le cri de guerre
des Bretons contre les Saxons envahisseurs "),
and, after the Edwardian occupation, of love
and religion; and there are for social history
documents, though they can hardly be called
historical authorities, the romances of the
Welsh heroes, the Mabinogion, and the stories
of Arthur, which give us much information
on tribal life and habits. For instance, the

OTHER REDUCTION INTO WRITING 169

advantages of fosterage are commented on in
the story of Pwyll, prince of Dyved.

When, however, we leave England for
Ireland and north-west Scotland, we come
into an entirely fresh atmosphere. There is
nothing in common between the two sets of
records. They are utterly opposed in more
than one respect.

The Absence of III Words. — There is be-
tween the Roman and English writers and
their Scottish imitators, and the chronicles of
the rest of the islands, this most striking
difference. As soon as one leaves the English
monastery, the vituperation of the king and of
his men in authority, the drawing and pointing
to evil qualities and evil actions, the assump-
tion that all good and all sanctity are confined
within the walls of the monastery entirely
disappears ; 1 it is wholly absent from the Irish
Annals as from the Sagas of the Orkneys or
of Iceland ; they have, where the matter has
any human interest, which is occasionally the
case in all chronicles, all the natural ease of a
child's story in the place of the self-conscious
imitation of the Roman classic.

One wonders why it is that, so soon as one

leaves the records of the Roman monastery,

,this great change comes about. It is certainly

not from any want of civilised ideals. At the

1 E.g. Saxon Chron., anno 1087. "The king and chief
men loved much (and too much) covetousness of gold and
silver, etc., etc. . . . little right dealing was in this land
among any people except among the monks alone."

170 HISTORICAL MATERIAL

time of the writing down of the Sagas the
Scandinavian powers were in the front rank of
commercial nations ; the men who wrote the
Irish Annals, the men who illustrated the Book
of Kells, who at a time when romance was
absent from England were possessed of a great
imaginative literature, who were eminent in
art and science, whose proficiency in music
the jealous Giraldus is compelled to acknow-
ledge, were not likely to have neglected this
form of literary composition if it had appealed
to them.

Their care for scientific accuracy could be
shown from many instances. As an example,
the items for 1199 in the Annals of Loch Ce
begin as follows : " 1199. The Kalends of
January on the 6th feria, the 1st of the
moon. Ab Incarnatione secundum Dionysium
mcxcix. ; ab Incarnatione secundum Bedam
mcxcii. ; ab Incarnatione secundum Ebraos
ucccclii. ; ab initio secundum Ixx. Interpretes
uidcli. ; cycli Solaris xxiiii. annus ; cycli Indic-
tionis ii. annus ; cycli lunaris xix. annus ; tertius
annus prseparationis bissexti ; cxxxiii. annus
undecimi cycli magni paschalis ab initio mundi."

These calculations were not mere copyists'
work or from astronomical calculations, but
from actual observation. There is an account
of an eclipse of the sun in the year 664 in the
Annals of Ulster and in Tighernach in which
the correct day and time are given, while Bede,
calculating from the mistaken Dionysian in-
diction, gives the wrong date. Does this fond-

OTHER REDUCTION INTO WRITING 171

ness for scientific accuracy come from the
East ? It is very seldom that you will find
any astronomical calculations in the English
contemporary records under Roman influence.
Clearly the men who wrote these bare Annals
and omitted to abuse the king did not do so
from want of literary or scientific ability.

But there it is ; as soon as one leaves Eng-
land, one leaves behind all the senseless vitu-
peration, all the conceit of superior morals of
William of Malmesbury and Matthew Paris.
It cannot be wholly the influence of the
Crusades, for Norway and the Orkneys and
Wales contributed to them.

That no doubt was a factor. The break in
the great Irish civilisation comes, as it would
seem, when Ireland stood aloof when the
rest of Western Europe learnt the lesson of
humility from contact with the civilised Moslem
and of unity under the papacy, and connected
themselves once more with the learning and
science of the Roman Empire of the past.
Ireland stood still ; she ceased to develop both
ideas and ideals.

But the Crusades were not the only factor
even here to create this distinction of manners.

It is not accounted for by the attachment
of the bards or skalds to the courts of kings,
for the Irish and Scandinavian bards wrote as
mercenaries for pay, like the English monks,
who were often attached to the king's court ;
it cannot be wholly attributed to their social
position in the tribe, for they are quite as self-

172 HISTORICAL MATERIAL

restrained when dealing with the Saxon king
and his barons as with their own people.
Imitation of classic and post-classic Latin
writers, the models for the monastic Latin
writers, brought about by the closer connection
with Rome following the Crusades, would
appear to be the ultimate cause.

The difference is very striking to anyone
who will take the trouble to read the Irish
and Scandinavian by the side of the English
records.

The Difference of Language. — Another dis-
tinction between those parts of the islands unin-
fluenced by Rome and the English Chronicles
is the difference of language.

In those parts where there was no native
literature, as in England, where the dialect
common to both Angles and Saxons had
ceased, except as the speech of the common
people, to be a living language, the monastic
Latin dominated all literary and historical
writing. But in those parts of the islands which
were not under the direct influence of Rome the
native tongues — Irish, Welsh, Scandinavian —
were putting forth a literature which blossomed
until they too fell under the frost of the
monastic Latin, which lasted as the only
proper vehicle for serious literature in England
well into the nineteenth century.

Mr Alfred Nutt (Notes to the Mabinogion,
1910, p. 359) puts the position more boldly
from the literary-artistic point of view. Point-
ing out that the vernacular prose, original in

OTHER REDUCTION INTO WRITING 173

its character and possessing within the limits
of its range the highest excellences of form,
is found only in Ireland, Wales, and Scandi-
navia, he says : "It is the surprising merit of
these small outlying peoples — Irish, Welsh,
Icelandic Norsemen — their essential service
to humanity to have preserved the barbaric
element comparatively free from the contami-
nation of Christian classic culture. Had Rome
crushed out that element in the west and
north as she crushed it out in the south and
centre of Europe, modern imagination, modern
artistry would have been inconceivably the
poorer." Unfortunately, English people,
brought up in monastic schools on classic
Latin, are wholly ignorant of such vernacular
literature.

Even in Normandy we meet very early not
only with Annals and Romances in Norman
French, but with whole volumes of customary
law in that language side by side with
monastic Latin. Only in England is a ver-
nacular literature non-existent in the twelfth
and thirteenth centuries.

It would not seem that any difference of
language ought to have made any difference
in the handling of facts or drawing of char-
acter. But it remains the remarkable fact
that the steady stream of evil speaking, which
forms the foundation of our modern history,
is found only in the Latin Chronicles which
the Benedictine monk controls.

The Irish Annals. — The Irish Annals, which

174 HISTORICAL MATERIAL

are the Chronicles also of Western and
Northern Scotland, fully bear out this state-
ment. There is in them no imitation what-
ever of the Roman model. They are almost
entirely registers of events or facts, including
scientific, astronomical observations.

They are without any attempt at exotic
eloquence, but their very simplicity gives an
appearance of reality, often of lively realism,
to what they relate, a natural style offset by
the, to us, repulsive forms of the names both
of men and places. These records ignore
for the most part all that was of interest to
the Roman monk of England ; no letters of
popes or of emperors adorn their pages ; there
are few notices of events ecclesiastical. We
seem to have come back to the bald simplicity
of the Saxon Chronicle.

There is not only an entire absence of
character drawing, but when these Annals
comment on current events it is only in the
very rarest instance that they make any
mention of vengeance for evil or use any
abusive epithet of the men who brought
misery upon their country. The place of
abusive epithets is taken by expressions of
admiration for courage and prompt action.

Another difference is that for the most
part they are transcripts, made often in the
sixteenth and seventeenth centuries, from
earlier compilations which have disappeared.
This re-writing or re-editing is no new thing.
The English Chronicles were always tran-

OTHER REDUCTION INTO WRITING 175

scripts of earlier MSS. But with them there
was a regular succession of writers continu-
ously preceding who could be traced and
copied, including well-known public men such
as William of Newburgh or Roger of Hove-
den. There is no such succession in the Irish
Annals, no such knowledge of an earlier
authority, and hence no such chance to check
or verify the facts.

The history of the Annals of Loch Ce, for
instance, which I have used for choice in
preference to other Annals, can be little
traced (like Walter of Coventry) further back
than its ownership by Brian MacDermot of
Carrick MacDermot, in Co. Roscommon, who
died in 1592. It appears to have been tran-
scribed in the last quarter of that century
from more ancient documents. Very little
is known about the MS. It used to be called
the Continuation of Tighernach. But the
Annals of Loch Ce begin with Clontarf in
1014, while Tighernach died in 1088.

Dr O' Donovan, a great Irish authority,
decides that this is an ancient copy of
the book of the O'Duigenans of Kilronan,
called the Annals of Kilronan, of which
the Four Masters made use in 1632-6. But
this was not their copy, as it begins and
ends at a later date. In their preface they
tell us what documents they used — docu-
ments extant in their day, many of which
are now lost.

It is for this reason, I suppose, that the

176 HISTORICAL MATERIAL

Irish Annals are frequently late transcripts
(or is it because of the wide hereditary con-
tempt in which the " Anglo-Saxon " holds
the Irishman ?), that they have not been con-
sidered, as historical authorities, as of so great
value as the Benedictine Chronicles of Eng-
land. Each Annal treats, like all mediaeval
records, of the events and persons of its own
locality, and of its own local interests. The
Annals of Loch Ce are the family records
of the MacDermots. It has to be supple-
mented by others. Yet they appear to me
to be of as great if not of greater value than
the English records, as in them there is no
appearance of the commentator serving a
political party or a political purpose in his
statements. It is because they are so useless,
by their un-Roman detachment, for consti-
tutional history that they are so valuable for
real history.

The impersonal character of the narrative is
accounted for partly by the unity of king,
church, and people through ties of kinship, in
the communal society. But this is not all.
The " Saxon " king and the " foreigners,"
who had settled in the country, are spoken of
from the same cold remoteness.

The process by which the Irish Annals were
formed is suggested by Mr Hennessey in his
preface to the Annals of Loch Ce, an account
of origin which may well be transferred almost
word for word to the English Chronicles.
Speaking of the general correspondence in the

OTHER REDUCTION INTO WRITING 177

arrangement and contents of the more ancient
chronicles, he says : " The Irish Annalists who
succeeded Tighernach down to the time of the
Four Masters with few exceptions seem to
have borrowed their materials principally from
his chronicle as far as it went. This formed
the skeleton of each body of annals, to which
was subsequently added such information as
could be gleaned from the registers of local
monasteries, from tradition, and sometimes
from those historical poems which formed the
substitute for annals among the Irish in
ancient times."

These substitutes, drawn from the records
of the memory, form the foundation for all
annals, English as well as Irish. There is an
immense amount of material both for law and
history in poetic form waiting, in MS. in the
library of Trinity College, Dublin, and else-
where, to be deciphered and translated by an
imperial government.

The Four Masters. — The Collection of the
Four Masters, which, owing to its earlier
translation and publication, has become the
most prominent authority for Irish history of
all the Annals, was a digest of them all. It
was written in the convent of Donegal in the
years 1632-6 by Michael O'Clery and three
others. He describes himself as a Franciscan,
" for ten years employed under obedience to
my several provincials in collecting materials
for an Irish hagiology." Lamenting the
general ignorance, he explains that he has

12

178 HISTORICAL MATERIAL

" collected the most authentic annals I could
find in my travels through the kingdom."

The books which he said he had collected
and compared were the Annals of Clonmacnois,
now known only through the seventeenth-
century translation, the Annals of the Island
of Saints on the banks of the Rive (not now
known), the Annals of St Magnus on the lake
of Erne, now called the Annals of Ulster, the
Annals of the Maolconarys (not now known),
the Annals of Kilroiian compiled by the
O'Duigenans, which is now known by the
name of the Annals of Loch Ce, and the
Annals of Lecan compiled by the MacFirbis,
from which the Chronicon Scotorum may have
been abstracted. This collection was made
just on the eve of the civil war, in which it is
supposed that nearly all the original materials
perished, the original MS. of the compilation
by the Four Masters being lost for a long
time.

In connection with this compilation there is
one more notice of the Brehon to which I will
refer. The preface to the Four Masters tells
us that Cucogny O'Clery, one of them, held a
certain half-quarter of land in Donegal until
May 1632 on a payment to the assignee of the
Earl of Annandale. But then, " being a meere
Irishman and not of English or British descent
or surname," he was dispossessed and the land
became forfeited to the king.

When in 1664 he died, he made a will
written in Irish in which he bequeathed " the

OTHER REDUCTION INTO WRITING 179

property most dear to me that ever I possessed
in the world, namely my books, to my dear
sons Dermot and John. Let them copy from
them without injuring them whatever may be
necessary for their purpose, and let them be
equally seen and used by the children of my
brother Carboy as by themselves."

Among the MSS. in the library of the
Royal Irish Academy in Dublin is the
Leabhar Cabhala, or Book of Conquests, com-
piled by Michael O'Clery. It consists of a
series of authentic poems and other original
documents from the earliest times to the
period of the English invasion, and is in fact
a collection of the authorities and sources of
the early history of Ireland (preface to the
Four Masters).

The value and authority of the Four
Masters, says Mr Hennessey, " has been
seriously diminished by the disingenuous
practice frequently followed by the compilers
of omitting or suppressing entries which may
have seemed to them to exhibit the character
of ecclesiastics in a questionable light or to
cast discredit on the church of which they were
zealous members," a very unfair accusation,
considering the disabilities under which the
Roman Catholics in those days laboured. The
compilers of the Annals of Loch Ce, he says,
seem to have made their entries irrespective
of such considerations.

Reading them by the side of the English
Chronicles, they are not only more human,

180 HISTORICAL MATERIAL

more racy, less absurdly sententious, less
concerned to depress the monarchy and lay
authority, but they are apparently less in-
fluenced to exalt the ecclesiastic at the expense
of other men.

As the Columban monasteries only gave
way to the Benedictines at the English inva-
sion, any ecclesiastical writing was probably
done by the Franciscans who overran Ireland
at that time — so far as any editing was done
by any other than the family Brehon.

That the editor was not always the con-
ventional occupant of the monastery may be
seen in many examples. For instance, under
1233 the Annals of Loch Ce record : " This
was the termination of the sovereignty of
Roderick O'Conor, king of Erinn ; for the pope
had offered right over Erinn to himself and to
his seed after him for ever and six married
wives, provided that he desisted from the sin
of the women from thenceforth ; but Roderick
did not accept this."

It is a very curious entry for several reasons.
The Irish Brehon might well represent the
pope as conferring Ireland for ever on the
Irishman, both from the desire for it to happen,
and for the effect which prophecy may always
have on actual facts. The entry might really
remotely refer to some project in the past
during the interdict to absolve the Irish from
any allegiance to John (see C.D.I., No. 448,
the declaration of Pembroke and others in
1212, and Nos. 435, 444), though if it had any

OTHER REDUCTION INTO WRITING 181

foundation in reality there ought to have been
long letters in Latin between the pope and
Roderick quoting bits of Ovid and Moses and
Isaiah.

But no monk under the Roman obedience
would dare to suggest in an Annal that the
pope should allow even an Irish king six wives
as part of a bargain. The entry is interesting
for this reason, that one of the great advances
in morals, which we owe to the Church, is due
to her stand against the polygamy which was
the ruin alike of the Scandinavian and Irish
kings. Even Wales was so far under Roman
influence that, although divorce was very easy,
" no man is to have two wives " (A.L. W., Ven.
n. i. 54).

The Irish and Scandinavian kingdoms stood
outside the Roman sphere of morals. Hoveden
(1194) notes that it is the custom that
everyone who is known to be the son of
any king of Norway, although illegitimate and
the issue of a bondwoman, has equal right to
lay claim to the kingdom of Norway with the
son of a king legally married and being the
son of a free woman ; and he points to the
lamentable results in perpetual wars of extinc-
tion. The writer of the passage in the Irish
Annals must have been a Connaught Brehon,
who, being unmindful or regardless of the
salutary if very imperfect regulation of the
sexes by the Roman system on payment,
puts into the mouth of the pope the practice
or custom of the Irish king. The adaltrach

182 HISTORICAL MATERIAL

woman of contract figures throughout the
Brehon laws, which contemplate more than one
wife and allow a chief to take four secondary
wives with the consent of his chief wife and
his sept (A.L. Irel., ii. pp. 23, 397, etc., and
v. 73).

CHAPTER XIX

THE SCANDINAVIAN SAGAS

THERE is neither space nor time here in
which to treat adequately of the value and
interest of the Norwegian and Icelandic Sagas
as an important source of matter for social
history of all parts of these islands.

Whether they are viewed as bearing on
racial theories, as providing historical facts, as
evidence of political and social conditions, as
indicating the course of the origins of our law
and legal procedure, or as literary works, they
are worth far more close and sympathetic
study than they receive.

The Anglo-Saxon. — The reason for this
neglect is, I believe, to be traced to the theory
generally held that the inhabitants of England,
the only part of the islands of which the
history is considered to be worth recording,
are descended from a mythical race called the
Anglo-Saxons.

There may have been such a race, as there

THE SCANDINAVIAN SAGAS 183

may have been peoples in times past called
Sanscrits or Vedas. The sexual intercourse
which resulted from the perpetual wars between
the Britons, Picts, Scots, Jutes, Angles, and
Saxons, and the further dilution of blood with
three or four Scandinavian peoples, with the
Frisians and Germans, with the Gauls of
Brittany, with the French, the peoples of
Poitou, of Aquitaine, Spain, and Ireland, may
very well have resulted in a mixture of races
to which such a convenient name might be
given. But apart from the use of a common
dialect among many of these people, to which
we owe the Saxon Chronicle and to some
extent our glorious translations of the Bible,
there is nothing to show that the nation of
the Angles of the north-east, who gave their
names to England, whose ecclesiastical history
was written by Bede, and the Saxons of the
south-west, had any racial affinity whatever,
or that they were ever a race in any sense of
the word.

The use of the phrase has resulted, under
a line of Hanoverian kings of England and
Scotland, in a fiction which imagines the West
European world for the purposes of English
history to be divided into two opposed distinct
races, the Teutonic and the Celtic, the
Teutonic providing all the substantial and
useful things of this world, and the Celtic the
evil and imaginative influences. The two
races are supposed to be a part of the great
Aryan race, whatever that may mean ; but

184 HISTORICAL MATERIAL

none of the distinguished authors who use the
phrases ever explain what is meant by them,
except to attribute to one or the other the
good or evil instincts of mankind, such as
trial by jury or fosterage ; they leave in doubt
which race includes the Norsemen or the
Normans or the men of Flanders or Aquitaine ;
the words are simply used as a peg on which
to hang a theory of the innate superiority of
the German.

Such a fictitious division of peoples would
not matter if it were merely a dead antiquarian
classification used to save trouble ; so far as
they tell for peace and unity all such fictions
are beneficial. But it is a living obstacle to
historical investigation.

Leaving to one side Sir Henry Maine's
works, which were written just as the publi-
cation of the Brehon laws was first calling
attention to the usages of the Irish people, I
take illustrations from authors of the very
highest reputation, from that most valuable
book, Messrs Pollock and Maitland's History
of English Law. The authors were most
noted writers both on law and history ; Mr
F. W. Maitland was one of our greatest
builders of history, a writer of such supreme
insight and accuracy and clearness of thought
and perception as to discourage anyone from
challenging his smallest statement or opinion.
Where such men adopt what I urge is a false
and mischievous view of a word, the lesser
men follow them like fence-breaking sheep.

THE SCANDINAVIAN SAGAS 185

In vol. ii. p. 84, speaking of the conveyance
of land in ancient times, the taking of seisin
not by writing but by an emblematic act
of possession (as when the Irishman in dis-
tress proceedings enters on the land with a
specified number of men and horses and
remains a specified time, A.L. Irel., iv. 3, 19),
they say, " It seems probable that in this
respect our law represents or reproduces very
ancient German law," " of the ancient German
conveyance we may draw some such picture
as this."

On p. 219 they point out that the king's
courts had refused to attribute any legal
efficiency to " what we may call the old
Germanic forms, the symbolic wed and the
grasp of hands," the handshake which, as I
have pointed out above (p. 76), was until a
very late date the usual form of closing a
contract in the Norwegian Orkneys.

On p. 213 : " We may take it as a general
principle of ancient German law that the
courts will not undertake to uphold gratuitous
gifts or to enforce gratuitous promises," like the
exceptio non numerates pecunice of the Roman
law. As a man may promise anything and
change his mind before he has handed over
the thing, this would seem a commonsense
rule of mankind. But as the Irish Brehons
are so insistent on the extreme sanctity of
verbal contracts, it may be that in this instance,
as in so many others, they were far in advance
of the German in early times (see A.L.

186 HISTORICAL MATERIAL

IreL, i. 41, 51; iii. 3; A.L.W., Ven. n.
viii. 10, 11).

On p. 425 the authors attribute to the
German "that ancient morning gift which
appears in every country in which the German
sets foot." Unless the German set foot early
in Ireland and Wales, this is going a little
too far. It is a custom common to all ancient
society, the Welsh " cowyll " and probably the
Irish "coibche." To quote only from those
imaginative romances which have no sugges-
tion of German manufacture about them, in
the Mabinogion (The Dream of Maxen
Wledig, p. 89, edit. 1910) the damsel "the
next day in the morning asked her maiden
portion" and received the island of Britain.

On p. 592 : " We see much that is very old
and has been common to the whole Germanic
race, as for example the principle that a man
is entitled to three successive summonses," a
procedure which you will find in the ancient
Irish law of distress (A.L. Irel., iv. p. 3
et seq.), with many other examples of the
same kind.1

This peculiar theory has a twofold effect,
general and special. Those who are under
its influence are in the position of Sir John
Davies as he viewed the Irish law Away
from Rome and Roman law, all that is worth

1 Mr Nutt, in his notes on the Mabinogion, divides this
extraordinary race (p. 358) into the Irish and the northern
Germans, the English Germans, and the continental
Germans.

THE SCANDINAVIAN SAGAS 187

considering in history, all the social usages of
life or political or legal institutions are attri-
buted by them to England from a German
origin. Possessed by this idea, our minds are
turned away from considering the develop-
ment of the European peoples as a whole, or
of any other nations in comparison with our
own, condemned to walk in a narrow rut both
legal and historical, dependent on German
writers, often very second-rate ones, for what
we think.

But it is not this general effect on study
which has led to this emphatic protest here.
It is rather the special effect that the theory
has expelled almost entirely the great Scandi-
navian element from English and therefore
from British history, and has replaced it by
an imaginary German.

The Extent of the Scandinavian Settlement.—
From the time of Ethelbald in the ninth
century the Scandinavians remained in posses-
sion of all England north of the Watling Street
line from Chester through Bedford to the Lea.
In Alfred's day they permanently colonised
and cultivated it, accepting the overlordship
of the Saxon king as a controller of their
quarrelsome tribal units ; there has since been
no immigration to modify it, except from time
to time the industrial immigration from
Belgium into East Anglia; the district
between the H umber and the Ribble was
for many centuries a beaten highway for the
Scandinavians from their bases of invasion in

188 HISTORICAL MATERIAL

the east and their settlements in north-east
England to Man and Ireland.

The Norwegians held or controlled all
Scotland north and west of the Grampians,
with the Isle of Man, up to the first third of
the thirteenth century. The Orkneys and
Shetlands remained in their hands until 1470.
Even in central Scotland Norse names show
the permanence of Scandinavian settlement.
Sir J. H. Ramsay, in the Bam ff' Charters, points
out the number of Scandinavian names in
Perth and Forfar, where they might be least
expected.

Even in England south of the Thames and
Severn, the only part of the islands except
south-eastern Scotland which could be called
Saxon or Teutonic, the proportion of Scandi-
navian blood must have been very considerable,
from what we read of Alfred's Frisians and
Edgar's bishops ("he outlandish men hither
enticed and harmful people allured to this
land," Saxon Chron.) and Ethelred and Edward
the Confessor's thanes.

There is no more reason to suppose that the
Norse blood disappeared from the isles when
the power of the Norse kings relaxed its hold
than to suppose that the mass of American
colonists ceased to be of British blood after
the American revolution. There is probably
to-day more blood of Scandinavian origin in
this country than of any other of the mixed
races of the islands, unless it is French.

These facts would not affect the subject

THE SCANDINAVIAN SAGAS 189

except that we owe to the Scandinavian
element in our history, to the explorers of the
early ages, the men who discovered Iceland
and Greenland and Wineland, and who fought
and conquered all over the islands, our free
institutions, the groundwork of law and free
government, the impatience of tyranny, the
hardness, the fearless spirit of the sea — those
things which our constitutional historians put
down to the Germans, whose "pot-bellied
equanimity " requires the same drilling to-day
that it got in the eleventh century. Nelson
was no Anglo-Saxon.

If our students of history were allowed to
take a little more interest in the Norse Sagas,
much light could be thrown on political, legal,
and social questions which are often confused.

When in 1412 Norway fell under the
dominion of Denmark, her great literature
ceased to expand ; the Norse Sagas of the
kings, which had been of great value for
British history, no longer assist us. But the
Icelandic Sagas of social life, told by the
descendants of men who had gone to Iceland
from the British Isles, the Hakon and Magnus
Sagas of the Orkneys, the accounts given by
Are and Soemund Frode and their successors
of the political and social institutions of Ice-
land applicable to and necessary for British
history, we can get nowhere else.

The Conflict with Feudalism. — When feudal-
ism came to southern England in the tenth and
succeeding centuries, it took root easily through

190 HISTORICAL MATERIAL

its close connection with the Church and with
Rome. It interwove itself with and super-
seded the Germanic customs of the Saxon.
But north of Watling Street it was an alien
system, forced through the ages on adverse
forms of living which offer successful resistance
in proportion to the likeness of their military
or commercial surroundings, or the physical
or climatic features of the country.

When James I. and VI. sets out to destroy
the northern statesmen of the dales, they
successfully oppose him, but he succeeds
greatly before the men of the Western Isles.
The bastard son of James V. for the time ruins
the Orkneys, while Ireland still carries on
through the centuries the struggle with her
feudal masters.

We can only understand the history of any
one ot these parts of the islands by entering
with our souls into the inner spirit of the social
system which we find in opposition to feudal-
ism, whether in its beauty or in its decay, and
we can only do this by making use of the
material open to us in the ancient Laws of
Ireland and Wales, the Irish and Welsh
Annals, and the Norse Sagas and Laws.

To these Norse ancestors we owe whatever
is best in our ideals of freedom. Whenever
real resistance to oppression or reform of
political government in England was effective,
it generally came from the north.

Students would learn more about free
institutions by reading the Nial's Saga than

THE SCANDINAVIAN SAGAS 191

by grinding through all the abusive attacks on
John which are meant to illustrate Magna
Charta.

The Icelandic Sagas. — Iceland may seem
far off now and negligible, but in those days
it represented a society of men of means and
learning who had fled from the feudal innova-
tions of the king of Norway to found a state
of free landowners. The account of the
Icelandic society given in these Sagas is
applicable in some degree to every part of the
British Isles except the southern part of
England and the part of Wales which the
Normans controlled.

There one may read of the frequent Things,
not parliaments of dilatory talkers but meet-
ings of alert administrators, at which customs
were declared and suits followed, of the
elaborate and very technical procedure of the
Hill of Law, told in the different Sagas, of
which the Manx Tinwald was a survival, of
the extreme care with which the forms were
observed (see Nial's Saga, pp. 101-3, 129-31),
and of the frequent efforts at arbitration by
which, in days of general violence, men of
good judgment and calm temper settled
dangerous disputes. Their customs should
be compared with the laws set out in the
T.A.C.N. to which our early English law is
indebted.

But apart from the sources of political life,
apart from the origins of law, one gets in the
Sagas, what no other record of early times

192 HISTORICAL MATERIAL

gives one, an account of the conditions of
social life among the men who labour, not
necessarily ignorant or unthinking men, men
greedy of news of the world, interested in
all the refinements of litigiousness (even the
boys play at law, Nial's Saga, p. 17), and
eager to put on record local and family affairs ;
men living hard, frugal lives little removed
from want, with few luxuries and few pleasures,
in a little world all their own, a type of the
men of all parts of these islands from which
some of the Icelanders came, except where in
the monasteries or the courts and halls of
kings and nobles men lived as they are
described in the monastic chronicle.

This is the kind of man these Sagas love to
tell of: " He was a tall man in growth and
strong withal ; a good swordsman ; he could
swim like a seal ; the swiftest-footed of men,
and bold and dauntless ; he had a great flow
of words and quick utterance ; a good skald
too ; but still for the most part he kept him-
self well in hand " (Nial's Saga, p. 44).

It is perhaps because they remained pagan
to a much later date, frankly pagan, as much
moved by the elemental passions as the
Greeks of Homer's time, that they give us
such a natural, unaffected picture of everyday
humanity.

Even when they became Christian in theory,
their Christianity was of an unconventional
character. Although it was made law that
they should be Christians, it was allowed for

THE SCANDINAVIAN SAGAS 193

a time at least to the conscientious objector
that "as to the exposure of children the old
law should hold, and also as to the eating of
horse flesh. Also men might sacrifice secretly
if they wished."

Courage, and courage alone, was their first
Christian virtue. When an Icelandic bishop
lay dying, and "there was great pain from
his disease," " and men thought they could
hear his bones rattle when he was moved,"
a sympathetic woman asked him, " How low
should a man's strength become when there
should be vows made for him?" But the
bishop answered, " For this only should ye
make vows to God, that my pain should go
on ever increasing, if a vow be made at all,
as long as I am able to bear it ; for it is not
permitted that a man should have himself
prayed out of God's battle" (Hungrvaca,
iii. 3, 12, in Orig. Isl., vol. i.).

Battle and homicide, the undying feud of
revenge, runs through every page as in
Homer, taking no doubt, as such deeds do
in all records, a much larger place than it held
in reality ; the true story-teller sings with
greater spirit of the exciting forms of the
physical conflict than of the dull forms of
legal pleadings. Like the legal quarrels of
Homer's heroes, the suits at the Thing may at
any moment change into the reality of battle.

It is not by any means the least of the
merits of the Sagas that, apart from the
perpetual splitting of skulls, they are clean

13

194 HISTORICAL MATERIAL

reading. There is no suggestion of immoral
leaning in them, no dwelling on or gloating
over evil, no tales of horror or of inhuman
torment, such as you may read in Dante or in
the monastic records. They are good stories
introducing often historical people, well and
briefly told, set in artistic form, without any
moral or hind thought, in many respects
like the Greek epics, except that the women
are in a different position, resembling Clytem-
nestra far more often than Briseis. They are
not only valuable as history but suggestive
of thought.

The Position of Women. — It is a contrast
well worth noting, since it is a test of social
conditions, though I do not propose to touch
it in any detail, the position of women in the
Scandinavian world compared to that which
they occupied under monastic influence and
ideals borrowed from the East in countries
governed by feudalism.

The Norse women and the Irish women held
a place of very near equality with the men.
The Sagas show us women making their own
bargains on betrothal (Nial's Saga, chap, xiii.),
and disposing of their own goods and money
(ibid., chap, xviii.). A strange man asks
Bergthora, " Hast thou any voice in things
here?" "I am Nial's wife," she says, "and I
have as much to say to our housefolk as he."
When Nial is burnt in his house and the
murderers offer to let Bergthora escape, she
elects to die with her husband.

THE SCANDINAVIAN SAGAS 195

They could claim divorce for small causes.
" Thordis stepped forth and named witnesses
to herself and proclaimed a divorce with her
husband Bore, and laid this as the cause that
he had struck her" (Erbyggia Saga, iv. 2, 14).

The Icelandic women held land and brought
land with them as a marriage portion, and
managed it themselves (Landnamaboc, n. iii.
5, 6). But it was decided in a case where
there were only women heirs that they should
not be avengers in law in future in a suit for
manslaughter, as they did not sufficiently
follow it up (Erbyggia Saga, iv. 2, 38). In
the Orkneys the daughters took half a son's
share in the land.

The Irish law contemplates three cases : (1)
where the property on both sides is equal ; (2)
where the wife is supported on the man's ; and
(3) the man on the wife's property. With
exceptions of benefit to both, neither could in
the first case make a contract without the
consent of the other ; where the man had the
property, he could contract without the wife,
excepting the sale of clothes and food, cows
and sheep. Where the woman had the
property, " the man goes in the place of the
woman" (A.L. Irel, ii. 359, 363).

With these contrast the following under
feudal law from Jocelyn's Life of Abbot
Samson. The abbot has the wardship of the
three months old daughter of one of his feudal
tenants annexed to three manors. " He could
have sold her," says Jocelyn, for 300 marks ;

196 HISTORICAL MATERIAL

but as her grandfather had carried her off, he
could not " obtain seisin of the damsel " except
by the assistance of the Archbishop of Canter-
bury. So he sells her to the Archbishop for
£100, and the Archbishop resells her with her
three manors for 500 marks (about £333).
King Richard had applied for her for one of
his followers, but, as she had already been sold,
he has to be appeased by a present of hunting
dogs (Jocelyn, 147, 187).

When, in the seventeenth century, the
Jacobean lawyers set out to make a final end
of the Brehon Law of Ireland, " Le Resolution
des Justices touchant le Irish Custome de
Gavelkind" (Davis' Reports, p. 49 et seq.) deals
with the right of women to hold property
under the Brehon law. Complaining, as a
defect in the Irish law, of the absence of the
feudal law of dower, the justices go on to say :
" And where the wives of Irish lords or chief-
tains claim to have sole property in a certain
portion of goods during the coverture, with
power to dispose of such goods without the
assent of their husbands ; it was resolved and
declared by all the judges that the property
of such goods should be adjudged to be in the
husbands and not in the wives as the common
law is in such case."

The Re-editing of the Sagas. — The Scandi-
navian records of the first order are all reduced
to writing on the margin between pagan and
Christian times. As Christianity impresses
itself and writing becomes frequent, they are

THE SCANDINAVIAN SAGAS 197

edited and enlarged on the stock authority
in the same manner as the corresponding
English records. I do not think that any
interested student of Scandinavian literature,
who reads the Nial's Saga, can help seeing
that it has been frequently enlarged upon,
and probably contains more than one story-
several good stories handed down by oral
tradition and rolled into one.

M. Bedier, in Les legendes epiques : Re-
cherches de formation des chansons de geste,
describes the origin of the great French
epics of Charlemagne and Roland, William
of Orange, etc., as the result of a collaboration
by the monasteries of the Via Tolosana with
the jongleurs, the monastery supplying the
bare Latin annals of the ninth century, and
the jongleur the traditional romances which
had grown, unreduced to writing, recited
from memory for centuries before they were
written down. M. Bedier proposes that the
epics which treated only of the places on
the pilgrim route were advertisements of the
monastery, just as some learned Frenchman
suggested a few years ago that the Odyssey
was a sailors' guide to the Mediterranean.

It seems to me hardly necessary to go so
far. It would be equally likely that the
jongleurs, who were well acquainted with
the bare historical facts, which, though they
were written down in the monastic annals,
passed as well in every generation through
the minds of those who never bothered

198 HISTORICAL MATERIAL

themselves with records of the monasteries,
produced the epics for the monasteries on
payment as matter of business without any
assistance from the monks themselves, who
could only have spoilt the epic by editing it.
But if we accept M. Bedier's theory in its
entirety, I do not see why it should not be
applied to the forms (for instance) of the
Magnus Saga of the Orkneys.

First we have an early form, simple, slight,
and straightforward, the work of a good skald
on a well-known legend. The two later
versions show manifest signs of the clerkly
editor, who always spoilt the story in his
re-editing ; and it might well be that these
greater exaltations of the saint were composed
to work up interest in the saint's vogue of
pilgrimage at Kirkwall. It may account for
the simplicity and the absence of ecclesiastical
matters in the Icelandic Sagas that they had
no saints and no place of pilgrimage.

CHAPTER XX

MANUSCRIPTS OF LAWS

DEALING with MSS. of customary laws, we
leave behind us once for all in all parts of the
islands the language of personal abuse.

But we are met by the same difficulty as

MANUSCRIPTS OF LAWS 199

to date, the same accumulation of verbal
reports handed down for centuries, the same
knowledge that our MS. is a copy and very
likely a late copy, and the same certainty
that we are dealing with the imperfect and
often careless work of anonymous copyists.

The Writing down of Custom. — Custom
has no date of origin. In many matters it
is instinctive, common to all the human race,
as in many customs attending the institution
of marriage or the use of land. In other
cases it is shaped by local needs, arising from
a variety of geographical and other causes.
Sometimes it merely points to some historical
development of the past, of which it remains
as a picturesque survival.

It takes root in religious beliefs, and it
grows with social necessities, untouched by
false ideas of legislation from without by paid
cranks. It grows as it is required to grow.

In all cases it is written only when it is
convenient that it should be written, as it
may be necessary or desirable for the society
to engraft pagan or local or technical custom
on the written commands of the Old or New
Testament, or to put on record some matter
of political or military importance which was
the subject of dispute.

At what date any such MS. was first made
is a matter for antiquarian research only. It
is a matter of indifference to the historical
inquirer, except where a written record of
some custom may guide us to any inference

200 HISTORICAL MATERIAL

for matter of history, as, for example, the
bearing of the frequent use of the jury in the
T.A.C.N. or of the inquest in Scandinavian
law proceedings, or the procedure of cetharaird
and culaird, the nearest town lands as the
nearest neighbours, in Irish law (A.L. IreL,
iii. 119-127),1 in case of suspected killing; as
bearing on the antiquity of the jury in England
or elsewhere.

We may take it, I believe, as without ex-
ception true that in no case have we any
original MS. of ancient law. The only
question which affects us in any case is how
far the MSS. which we possess represent
accurately or at all the laws or customs of
society at the time of their asserted date, and
in some cases with what objects the law was
declared.

Here again we are in danger that wrong
impressions of the conditions of society may
be given to us through the monastic editing.
I am not suggesting blame to the writers or
copyists of the early laws. But their very
natural desire to raise the tone of the customary
law to correspond with the moral sense of the
Church inclined them to exalt the authority
not only of the Church but of the king, and
to attribute to both in past times customary
provisions which were inconsistent with what
we know of early society. Without discount-
ing this leaning, it is not safe to found his-

1 Cf. F. W. Maitland, Pleas of the Crotvn for Gloucester-
shire, 3 Hen. III., 1221, pp. xliii-iv.

MANUSCRIPTS OF LAWS 201

torical theories of social conditions on these
early laws.

Most of the extant MSS. of the early Saxon
laws, in the opinion of scholars who judge by
the forms and language, date from the middle
of the eleventh or from the twelfth century ;
the so-called laws of Edward the Confessor
are edited from a MS. of the fourteenth cen-
tury, those of William the Conqueror from
one of the thirteenth. The laws of Ethelbert,
the earliest of the collections in Thorpe, are
found only in a M S. of the twelfth century ;
but the editor notes that the language is more
archaic than the Saxon of that date, when it
was just becoming a dead language. Only
the ecclesiastics concerned themselves with
writing, either of laws, charters, or history.
Maitland, speaking of the land books or char-
ters, which he says are almost our only evidence
for the times before the Conquest, points out
that they are almost entirely ecclesiastical.
The models for these charters were imported
from abroad. They were imitation Roman.

The earliest MSS. of the Welsh laws date
from the twelfth century, and most of them
are of a very much later date ; it is next to
impossible for experts to guess how much has
been altered or added to the copies, or how
far they represent any earlier MS. We come
down to the twelfth century, the century
which saw general reduction into writing,
before we see any general writing of MSS. of
customary law.

202 HISTORICAL MATERIAL

Occasionally some bit of internal evidence
may help us to a guess at the age, as, for
instance, where in A.L.W., Dim. n. viii. 27,
the law, speaking of sharing of lands by
brothers, lays down that where a clerk takes
a wife by gift of kindred and has a son by
her, and subsequently when a priest has a son
by the same woman, they are not to share
together, pointing to an earlier date ; or where
a reference to the kingship may suggest a
date, as where A.L. IreL, v. Ill, speaking of
the king of Ireland, says, " an ollam over kings
is the king of Munster," suggesting the time
of Brian Boru.

We have no knowledge of any laws of the
Scottish kings prior to those attributed to
David I., unless we except some archaic frag-
ments called " The Laws of the Brets and
Scots," which treat entirely of payments for tort,
like all early laws. Laws of the time of David
and his successors we know existed, but "of
these records," says the preface to Acts Parl.
Sc., vol. i., "there is not known to exist prior
to the period of the disputed succession and
the short reign of John Balliol a single frag-
ment ; but of their former existence we have
the most undoubted evidence."

The Blood Feud. — All these ancient col-
lections of laws, where they have not been too
frequently edited, whether English, Welsh,
Scottish, Irish, Norman, or Scandinavian, show
us the blood feud in full operation, and the
composition in cattle or goods for slaying,

MANUSCRIPTS OF LAWS 203

which the indignant English and Scots of the
seventeenth century imagined to be an evil
habit peculiar to the Irish. It was the normal,
unquestioned procedure to which the king or
chief assented and in which he took his part.
It is interesting to trace its continuance in
any of these parts of the islands.

" All laws," say the Fragmenta Veterum
Legum,1 " outhir ar mannis law or goddis law.
Be the lawe of Gode a heid for a heid, a hand
for a hand, an e for an e, a fut for a fut " — the
Mosaic law. " Be the law of man for the lyf
of a man ix" (180) ky, for a foot a merk, for
a hand as mekill, for a e half a merk, for ane
ere as mekill, for a tuth xii pennis etc., etc."

The laws of the Brets and Scots (Acts
Parl. Sc., p. 663) adjudge as blood compensa-
tion, " Item the cro of a carl is xvi ky."

In order to prevent extortion, when a man
had unfortunately killed another, the Assize of
David I., c. 7, says that a man appealing
another that he has burnt his house or slain
any of his kin, and claiming an unreasonable
sum, " that is to say for a karl c marks," the
defender need only answer for the " resonabil
scath " through " the ded of his frend."

The king was a consenting party to these
arrangements, taking his fee for a settlement on
reasonable terms. By the Assize of William
the Lion, chap. 15, where the kin of a man
who had suffered under the ordeal of water or

1 Burton's History of Scotland, 2nd edition, p. 64. He
refers to Acts, i. 375, but I cannot find his reference.

204 HISTORICAL MATERIAL

iron take vengeance on the man who caused
him to be charged, they are treated as having
done it in the king's peace. But if it happen
that the king had given his peace "nocht
wittand " (ejus ignorante prosapia) the kin of
him that was slain, " the kyn of him shall take
vengeance of him that slew their kyn." They
continued to satisfy the blood feud by com-
pensation in the Western Highlands until
1503.

Like provisions will be found in the Leges
Henrici Primi, e.g. chaps. 69-71, etc., and in
chap. 36 of the T.A.C.N.

The laws of William the Lion, contemporary
with Henry II., reflect in many respects the
conditions of his tiny kingdom, comprising an
overlordship difficult to enforce on distant
subjects rather than actual control of the
territory to the west and south of Alban
proper. They contain provisions intended to
check cattle-driving by the men of the north-
west. By the laws of Alexander II., chap. 2,
provision is made for an inquisition by the
justiciar of Lothian about the malefactors in
the country, except in Galloway, " quha hes
their own speciall and proper lawes."

Tfie " Regiam Mqjestatem " and Glanville. —
The Scots traced back their laws to a code in the
Roman style called the " Regiam Majestatem,"
supposed to have been compiled in the time
of David I. But it is practically certain that
it is a copy or an imitation made after the
Edwardian wars of Glanville's treatise on the

MANUSCRIPTS OF LAWS 205

Laws and Customs of England, which was
written in the reign of Henry II.

Glanville was one of those extraordinary
men who were produced by this age of general
awakening. As sheriff of Yorkshire he cap-
tured William the Lion in 1174 ; when
Eleanor, Henry's wife, was put under restraint,
Glanville was her guardian ; he was sent to
defeat the Welsh in 1181, and made terms
with them in 1185-6, forming a body of light-
armed Welshmen to support Henry in his
wars in France ; he was employed to make a
compromise with the monks of Canterbury
when they were disputing with Henry over
his proposed erection of a near-by monastery
to compete with them. When Urban III.
sent orders to Henry to stop the work, and
the monks began proceedings in the ecclesi-
astical court, Glanville issued a writ of pro-
hibition in his own court forbidding their
proceedings. In his old age he went on the
Crusade, and was killed at the siege of Acre.

The two collections differ in that the " Regiam
Majestatem " follows the Roman division into
four books, while Glanville sets the example
to our later writers of separation from the
Roman law, treating only of the law as it
illustrates the proceedings of the courts. His
book gave precedents of the writs issued,
ascertaining the procedure and separating
England from the Roman law, which was too
closely connected with the papal supremacy to
suit the English lawyer.

206 HISTORICAL MATERIAL

The Scandinavian and Norman Laws. — Un-
fortunately, almost our only knowledge of Scan-
dinavian customs, whether Norse or Danish,
has to be taken from the Sagas and from
casual references in books dealing with Norway,
Iceland, and the Orkneys. These great bodies
of law, both those relating to Iceland and
to Norway, remain in the original archaic
language, only to be deciphered by experts,
awaiting an editor. Considering the great
part taken by these northern nations in our
history, it is very much to be regretted that so
important an aid to history should have been
so little explored by English writers. As the
laws which governed a great commercial and
naval people, with a brilliant literature and a
very highly developed system of law, they are
infinitely more valuable than the primitive
Saxon customs of Wessex, on which so many
great English scholars have exercised their
minds. We generally leave all research work
of this kind to the Germans.

A most interesting collection of ancient
custom bearing directly upon and illustrating
English law and history is Le Tres Ancien
Coutumier de Normandie (cited in this book
as T.A.C.N.), edited by E. J. Tardif, 1881.
This collection is composed of two distinct
bodies of custom at two different dates, having
in many instances duplicate chapters treating
of the same thing but in different language
and in different forms, showing occasionally
a variation of the law by time.

MANUSCRIPTS OF LAWS 207

For instance, in one of the many notices
of the jury in these collections, it is laid
down in the first part, chapter xxii., section 1,
that if a jury disagree, the agreement of ten
or nine would be sufficient. In the second
part, chapter Ixxvi., a majority of seven out
of twelve will be sufficient. In Y.B. 20 Edw.
III., vol. ii. p. 554, an assize was brought at
Northampton in which eleven recognitors
agreed and the twelfth said that he did not
and never would agree. And the verdict of
the eleven was accepted, and it was awarded
that the twelfth should go to prison.

In the MS. of this collection we meet with
the same characteristics as in other ancient
collections. The text, M. Tardif says, "est
conserve dans les copies de beaucoup poste'-
rieures de 1'epoque de son redaction." There
are two texts, one Latin and one French.
He dwells on the painful methods by which
the editors restored the Latin text, a text,
he says, " compose dans les manuscrits d'un
certain nombre de fragments de longueur
inegale. Les rubriques mises en tete de
chacun d'eux sont souvent inexactes." Of
the French text he points to "le caractere
archa'ique de 1'ecriture, les formes de langage
et la persistence de la declinaison."

The first part of the Latin text he thinks
is older than the French text, and he adjudges
that it was originally reduced to writing
somewhere between 1194 and 1204, probably
about 1199-1200, certainly before the seizure of

208 HISTORICAL MATERIAL

Normandy by Philip Augustus. The second
part of this text he puts towards 1220. The
French version he puts between 1248 and
1270. The T.A.C.N. undoubtedly embodies
very ancient custom, feudal usages being
recorded side by side with communal custom-
ary law.

As an example of the many interesting
passages which bear on the future history of
the British Islands, chapter xi. deals with
the guardianship of the orphans. Who is
to have their care ? " Le garderont si cosin ?
Nanil. Por qoi ?" The kinsman might covet
the inheritance and kill the minor. They
are to be in the guardianship of the person
to whom their parent has done homage.
They are to be brought up by the lord. " E
quant il sont norri es mesons lor segneurs, il
sont tenu a servir les plus lealment e a amer
les plus en verite. E comment pucent li
seigneur hair ecus que il ont norriz? 1 les
ameront par noreture de pure amor " — a reason
which led the English and Scots to destroy
by every possible means the fosterage of the
Anglo- Irish, which they imagined to be an
evil custom belonging exclusively to Erin.

ANCIENT LAWS OF IRELAND 209

CHAPTER XXI

THE DATE OF THE ANCIENT LAWS OF
IRELAND

A GREAT amount of ink has been spilt by
loyal men in attack and in defence of different
theories about the age of the pamphlets in
which are contained the ancient laws of
Ireland. Some would put them back to the
coming of Patrick, and others forward to the
fourteenth century or later. The question
is well worth a little consideration, not only
on account of the great value of the material
itself, but because the controversy is very
typical of the handling of such questions.

Sir Henry Maine takes the tenth century
as the date of the Book of Aicill (A.L. Irel.,
vol. iii.), and quotes Mr Whitley Stokes, one
of the most eminent and soundest of Celtic
scholars, as assigning the Senchus Mor (A.L.
Irel., vols. i., ii., and iii.), that is to say, the
extant MSS. of it, " upon consideration of its
verbal forms," to a date perhaps slightly
before the eleventh century.

M. D'Arbois de Jubainville, representing
the best French criticism of Irish literature,
in his Resume tfun cours de droit irlandais,
points out : " Le Senchus Mor est cite dans
le Livre des hymnes du college de la Trinite
de Dublin, qui a ete ecrit vers 1'annee 1100,
et dans le Lebor na-h-Uidre, manuscrit de

14

210 HISTORICAL MATERIAL

la meme date qui appartient a 1' Academic
royale d'Irlande ; il est cite dans le glossaire
irlandais redige par 1'eVeque Cormac qui
mourut en 906. Ses doctrines juridiques se
retrouvent dans la collection canonique irlan-
dais qui a e'te' compile'e vers 1'annee 700."
He refers still further back to the Confession
of St Patrick. With one exception, all the
books referred to in the glossary above
mentioned are law books.

As to the actual date of the MS., he says :
"La redaction du Senchus Mor, le plus vrai
semblable a mon avis est qu'il a ete compose
vers le huitieme siecle." And he points out
that the language of the Senchus Mor is quite
as archaic as that of the oldest Irish MSS. in
existence of the eighth or ninth century.

I would do no more than to put forward
various considerations which appear to bear on
one side or the other on any question of date,
and the conclusions which may be drawn from
them.

To repeat what has been said before, we
may be sure that the customs recorded existed
in all cases as custom for a very long time,
probably for many centuries, before they were
reduced into writing as law ; that, when so
written, any stated rule was subject to much
modification for local requirements ; that the
intricacies of the written or unwritten custom
were known only to a few experts as an as-
sistance to memory in forming judgments on
disputed points, and finally, that it is very

ANCIENT LAWS OF IRELAND 211

unlikely that any MS. which has come down
to us is the original MS., and that there is no
evidence that any one, unless it is the Senchus
Mor, was of general acceptation in Ireland.

All these guesses as to date of great authori-
ties, based upon language or consideration of
verbal forms, apply only to the time when the
text of these collections of customary law,
which had passed from the memory of one
chief or of one Brehon to another, were reduced
into writing or were copied from the original
MS. to that which has come down to us. We
have no data from which to decide how far
the various influences which continued to
modify the tribal community acted at any
given date on the conditions which are de-
clared in any of the customary laws which have
come down to us, or in what locality they
were received.

It is quite clear, I think, that the collections
of the Irish laws, as we have them, were
composed of MSS. of widely different dates.
For instance, the law of inviolable precincts
(A.L. IreL, iv. 227), in which the precinct is
measured by spear-casts varying according to
rank, the spear to be four feet (twelve fists)
between the iron head and the horn on the
handle, which does not look very modern,
quotes the Senchus Mor as "the great cas
of the ancients." To be asked to put a date
to such a collection as a whole is as if we were
asked to put a date to a collection of English
law books comprising Littletons Tenures,

212 HISTORICAL MATERIAL

Kebles Reports, Jones on Bailments., Sanders
on Warranty, Fearne on Contingent Re-
mainders, and fragments of Fitzherberfs
Abridgement, if all these had existed in un-
dated MS. only, which had been copied from
time to time.

We should have no knowledge as to which
edition it was which had survived, or how far
the marginal notes of successive commentators
or owners of the MSS. had been incorporated
in the text in the course of reproduction.1

Some of the Irish Tracts would appear to
be clearly late from the nature of their contents,
as the Tract " Of the Judgment of every
Crime" (A.L. Irel, iv. 240), and "The Land
is forfeited for Crimes" (ibid., 264), as it appears
to regard the compensation in cattle for tort
as in the nature of a compromise to avoid
punishment by servitude or imprisonment.
However, it is quite possible to make too
much of this, as, although the editor has trans-
lated don crime, the word would seem equally
to mean sin or fault, and servitude in the
earliest times would follow refusal or inability
to pay up for the Brehon's award for a killing.

On the other hand, it would be a great help
if we were able to date the Tracts on " Judg-
ments of Co-tenancy " (ibid., 68 ; comaithcesa
does riot seem to have anything to do with
tenancy), as in this treatise, which deals with
the very ancient mode of cultivating land by
the group family, holding it in common for

1 As in Stephen's Blackstone.

ANCIENT LAWS OF IRELAND 213

three or four generations, there appear state-
ments of legal doctrines of a most startlingly
modern character, such as money penalty for
damage by pet animals (p. 115 et seq.),
references to the property in buildings on
hired land (p. 135 et seq.}, the measurement of
the headlands of fields (p. 139), the elaborate
definition of boundaries (p. 143 et seq.}.

In the Book of Aicill (Aicill was the name
for the hill of Skreen near Tara, in Meath)
the law of hiring chattels, of agency, of con-
tributory negligence, and of partnership is
sketched, and the Brehon lays down that the
relation of chief and free tribesman is one
of contract to be implied in the absence of
express words. It is laid down (A.L. Irel.,
iii. p. 139) that a fine is due for an intention
to commit injury which failed.

These equities would be as much or more
out of place in the English law of the four-
teenth or even of the seventeenth century as
in the twelfth. The appearance of such highly
developed ideas in works dealing with archaic
society and containing the provisions of bar-
barous custom suggests that the high intel-
lectual development of the Irish lawyer stopped
when feudalism, confined within the narrow
and repulsive limits of the Mosaic code, laid
its heavy hand on the communal society.

The Senchus Mor would appear to be by
far the oldest of all the Tracts. With one
exception, they consist of a text, generally in
very short paragraphs, written in large char-

214 HISTORICAL MATERIAL

acters, with wide spaces accompanied by glosses
in smaller text in various hands. These glosses
are frequently contradictory, and comment on
one another, showing sometimes that the
glossator could barely make sense of the
ancient text. He often gives alternative
renderings.

Some Points which bear on the Question of
Age. — The archaisms of language or the want
of them in the text are not necessarily a test
of age, as the verbal forms of the sentence
would often be revised by the copyist, who
altered them to suit the taste of his own time.
In the MS. H. 3-17, p. 157, the statement is
made that it was changed from hard original
Gaelic and put into fair Gaelic before 1309 by
an editor (A.L. IreL, i. p. xxxvi; iii. p. clix,
note). In one case the editor points out that
the language of the commentary is older than
that of the ancient rule.

The commentary was evidently the work of
different Brehons at different times and places,
each working on a different copy ; the text
had become very difficult to interpret ; handed
down to each generation with the glosses of
successive Brehons, there were, as it was
written, alternative readings and interpola-
tions which might be adopted by later com-
mentators as text.

For instance, in the law of fosterage the
commentator sets out the different qualities
of clothes for the children of different ranks.
Then he goes on : " Another version. No

ANCIENT LAWS OF IRELAND 215

book mentions a difference of raiment, or that
there should be any difference in their clothes
at all" (A.L. IreL, ii. p. 147).

I would suggest that no date of the first
reduction to writing is possible, because the
text and the commentary as we have them
may have been committed to writing a hundred
times before the particular copy, much altered
and added to, has come down to us. Possibly
the original text was coeval with the intro-
duction of writing by Roman missionaries.

As we have them, the MSS. are part of those
collected from all parts of Ireland in the six-
teenth century (A.L. Irel., i. p. xxxiv). The
documents which could have disproved any
mythical origin were then for the most part
in existence to check theories of authorship
which were false or exaggerated. We occa-
sionally have a reference to the possession of
one of the Tracts with a date. The fragment
of the Senchus Mor in Dublin has a memo,
written in 1350, " in the writer's own father's
book, in the year of the great plague" — a
miscellany composed of various fragments,
written at different times by different hands.
In A.L. Irel., iv., following the commentary
on p. 290, there is in the margin of the MS.
a note (Dr O'Donovan) by Egan McEgan in
1575, in the Mill of Duniry in County Galway,
which says that he wrote the MS. as an
improvement on his decayed old book.

There is something intensely pathetic in the
despised Irish Brehon, to whom the conqueror

216 HISTORICAL MATERIAL

would neither give the benefit of English law
nor allow to be ruled by his own customs, but
goaded into the life of an outlaw, attempting
in the desolation made by the English soldiers
to keep alive the light of a legal system full
of an unpolished equity which was only con-
demned because it would not square with the
profits of the kingship in the feudal doctrines
of the day.

Whatever their date or their origin, the
books all speak of other and older law. Re-
ferring to a point about injury to roads, the
Brehon says (A.L. IreL, iii. p. 307), " Nothing
of this is found in any book except the one
and twentieth part " ; but they are inferred
from the law of waifs, and the one and twentieth
part is inferred from "the demand of a king
for the cutting of his roads." Again, the text
quotes (p. 151) the Senchus Mor, the Cain
Fuithrime, a law promulgated before 694 ;
(p. 153) " as it is said in Urrhadus law," " the
agreement the law speaks of is" (p. 155) when
it is said " every debtor his choice."

There are many references to decided cases :
e.g. vol. i. p. 219, where the first five lines
show that the text was referring to a decided
case as to false witness; vol. iii. p. 161, "out-
side" (i.e. in another territory) "the assault
was committed in this case " ; p. 243, what is
the difference between this case and that
wherein it is said, "Every animal for an
offence etc., etc."?

The very short paragraphs and the general

ANCIENT LAWS OF IRELAND 217

absence of any signs of Roman influence are
much in favour of great age. Other argu-
ments bearing on the antiquity of the laws
are that in them there is no mention of written
contracts, that the meaning of the technical
terms had been lost to the commentators, which,
with the prodigious memories of those days,
meant a vast lapse of time, and possibly the
prominence given to bees, though this may
easily be exaggerated, as the general use of
sugar is as late as the seventeenth century.

When the local custom was reduced into
writing, it would be natural for the Brehon
to note in the margin any deviations from the
general rule, any new points which might
arise in practice, or any modification of
principle which might suggest itself. But we
need not expect to find any Brehon, or his
brother of the English Year Books, who
might be called upon to deliver a judgment
or to argue a case, laying down without the
most urgent necessity any principle which
might stare him in the face when called upon
to give a fresh decision or argument on a
seemingly similar set of facts to which the
stiff mediaeval harshness of the law would not
permit it to apply.

In consequence, the lawyers of both countries
make use of imaginary cases, such as the
damage done by the trespasses of hens or
the ordure of hounds (A.L. Irel., iv. pp. 117-
123), to be applied afterwards to the cases
before them.

218 HISTORICAL MATERIAL

The Influence of the Mosaic Laws. — Before
leaving this subject of the source of mediaeval
law, may I be permitted very humbly to
suggest that the belief in the absolute verbal
inspiration of the Levitical books as dictated
by God, the giver of the written law to Moses,
the inspiration consisting largely in the writ-
ing, was an influence greatly retarding the
advance of civilised ideas or scientific thought
in law-making, especially in criminal law ?
The effect was to gauge every detail of social
custom as good or bad by the measure of its
accord with the primitive customary law of
the Israelites, and to put to one side any
custom, however equitable, which would not
square with such law.

For this reason alone I should be inclined
to put the Irish customary law back to a
period anterior to the coming of the Roman
missionary, and to believe that Patrick or
some other missionary, coming in contact with
a very highly developed system of ancient law,
barbarous to us because it rests on the
communal society, had the good sense or was
constrained by circumstances to adopt, so far
as it did not conflict with his Christian pre-
cepts, legal principles of which he saw the
equity and the advantage. Augustine, sent to
the savage Saxon, had not the same oppor-
tunity, even if he had the ability.

The Crithgabhlach and the word " Saxon" —
There is one Tract which had been generally
accepted as of late origin (A.L. IreL, iv.

ANCIENT LAWS OF IRELAND 219

p. 298 et seq.), a treatise entitled the " Crith-
gabhlach." It was of sufficient age for the
title to have become unintelligible, as appears
from the opening sentences, which give alter-
native explanations of the word.

The Tract concerns itself with the different
ranks of society, the kings and chieftains, their
privileges and duties, and may be compared
with the ancient Book of Rights translated by
Dr O'Donovan. It would be of great interest if
we could believe that it was even an exaggerated
account of real conditions in very early times.

The chief arguments for lateness are that
the bishop and not the abbot is said to be of
higher authority than the king, an objection
of small weight if the Tract was copied under
the direct influence of Rome planting dioceses
in the place of wandering bishops, who were
under the abbots of the tribe, as it appears
to have been (Sequel to Crithgabhlach,
p. 353). The Roman ecclesiastic would be
pretty sure to state a Roman rather than a
tribal organisation.

The second point is (p. 335) that it is said
that a king may call upon his people " to drive
out foreign races, i.e. against the Saxons." It
is argued that the reference must be made to
those times when the rule of the English king
had come to be regarded as that of a foreigner,
which was not apparently much before the
fourteenth century, as the only invasion of
which we have any knowledge in earlier times,
before the two centuries of attack by the

220 HISTORICAL MATERIAL

Norsemen from the ninth century to Clontarf,
was a solitary raid in great force of the people
of Northumbria, who were otherwise very
friendly, in 684, and that the special instance
given " against the Saxons " would refer to a
race with whom they were constantly in
enmity rather than to the single incursion of
a race with whom in other respects they were
friendly.

I should say that the conclusion to be drawn
would be exactly the opposite — that a sudden
and most unexpected raid of a hitherto friendly
people would impress itself more strongly on
the mind than any attempt to drive out in
later days a people seated in their midst, with
whom their chiefs had intermarried, and of
whom many so related to them had suffered
for their hostility to the kings of the Saxons
in all times.

It is remarkable that, however late in time
the copies of these Law Tracts may be, they
never give us any clue to their date by any
references which could be written of current
political troubles, or by any word of abuse of
the English ruler. The Crithgabhlach has no
commentary, the whole MS. being apparently
of one date, which looks as if a late copyist
had run text and commentary into one. If so,
the original book may very well have treated
of the conditions of times long past, and might
quite possibly have been written not long after
the only attack in early times from the sister
island.

ANCIENT LAWS OF IRELAND 221

The term Saxon might stand for any century,
as it is the universal word to express the
people of the larger island, whether English or
Scots, in all times. Considering the mixed
character of the body of the invaders of Ireland
in the twelfth century, it is not surprising that
the Irish used one word to cover them all — a
word used ever since to the present day by
the Celtic races both of Ireland and western
Scotland to express the people of the east of
England and Scotland.

The leaders of the first expedition from
Wales in the twelfth century, the Fitzgeralds,
FitzStephens, and FitzHenries, were Norman
on the father's and Welsh on the mother's
side. They may have had English blood
among their followers, but probably the
majority of them were Flemings recruited
from little England beyond Wales. This,
I understand, is Mr Orpen's opinion in his
edition of " The Song of Dermot and the
Earl." Giraldus speaks of them as " the flower
of the youth of Wales." He himself was
born in Pembrokeshire.

The leader of the second expedition, Strong-
bow, was a Norman who married an Irish-
woman and drew a following from all parts,
but especially from Wales.

Henry II., who took the fruits of the work
of those who went before him, was a Norman
Angevin, whose grandmother was a Saxon
with Scottish blood. As we know from the
first volume of the Calendar of Documents

222 HISTORICAL MATERIAL

relating to Ireland, he drew his levies from
every county in England as well as from his
French provinces. The French writer of " The
Song of Dermot and the Earl " speaks of them
as the English.

Throughout the Irish Annals they are
spoken of as the Saxons or the foreigners,
though sometimes the pirates of the east is
the term substituted.

Henry appears as the king of the Saxons,
Strongbow as the Saxon earl, John as the son
of the king of the Saxons (Annals of Loch
Ce, 1170, 76, 77, 78, 84, 85, etc., etc.). The
Annals of Ulster in 1327 report great war
between the king of the Saxons (Edward II.)
and his own wife ; the son of the king of the
Saxons (Lionel, duke of Clarence, son of
Edward 111.) came into Ireland 1368 ; William
Mac William the Saxon (William Burke) died.
The Four Masters : 1254, the king of the
Saxons (Henry III.) went to Spain on a host-
ing ; 1297, Edward, i.e. the king of the Saxons
(Edward III.). Annals of Clonmacnois : 1135,
Henrich McWittelan, king of France and
Saxonie (Henry I.) died, and so on.

As we come down in Irish history we meet
with the same use of the word. M. de la
Boullaye Le Gouz, travelling in Ireland in
the middle of the seventeenth century, says
(p. 44) that "as soon as the Irish soldiers
learned that I was Frankard they did not
molest me in the least, seeing that I was
neither Sazanach (Scottish) nor English."

ANCIENT LAWS OF IRELAND

They considered, he says, the English and
Scotch as their irreconcilable enemies. Moore,
in the nineteenth century, gives us—

" Nor dread that the cold-hearted Saxon will tear
One chord from that harp or one lock from that hair.1"

" On our side is virtue and Erin,
On theirs is the Saxon and guilt."

To come to our own day, the Athenceum,
January 13, 1914, in a review of John Mitchell's
Jail Journal, speaks of him as " dowered with
all that racial perversity which is so perplexing
to the Saxon " ; February 28, " Stories are told
which are not quite true — why should they
be ? — and the Englishman present who asks,
Is that story really true? is looked upon as
a stupid Saxon who does not understand the
amenities of social intercourse."

It was no doubt very difficult for the people
of Henry's day to find a common name for
the mixed hordes who followed Henry or
Strongbow. They called them Saxon, just
as the people of the islands called the Scandi-
navians of the eleventh century Danes, as
the eastern races called the Crusaders Franks,
and the people of India called the Europeans
Feringhees.

Why has the name Saxon stuck to the
English ruler ? In the first instance, it is an
indication of the slight connection of the
Normans with Wales or with the west coast.
The Irish only knew the first group of the

224 HISTORICAL MATERIAL

invaders of England by the name of Saxons ;
the Norman Conquest had never been brought
near enough for them to realise its revolu-
tionary character. To them the castles of
the VVelsh border were, like Waterford and
Wexford, merely points held by alien traders,
pirates to be fought and chaffered with ; they
contrasted the Saxon foreigner with the
Scandinavian foreigner, who in Henry's time
was a power in their midst. By our dealings
with Ireland, by our neglect to enforce im-
partially the imperial authority, playing into
the hands of the alien pope, we have kept
up the illusion, with the results of insane
and barbarous revolution of irreconcilables in
Dublin and importation of German arms by
anarchists into Ulster. If the British poli-
tician would try to acquaint himself with
Irish history and her social institutions of the
past it might be possible even now that to
the Irish we should cease to be the Saxon.
Here at least force is no remedy.

THE USE OF THE MATERIAL 225

PART IV
CHAPTER XXII

THE USE OF THE MATERIAL

WHEN the original authority, verbal or written,
has been discovered, has been compared with
other sources, and its place and circumstances
of discovery considered, the making of the
history book will begin, but not by the
historian. In the present condition of histori-
cal investigation, it is as much as the compiler
of history can do to take a bird's-eye view of
the period of which his book treats, a view
probably extending over many centuries. He
may investigate some of the original records,
on which he will put his gloss in print ; he
may even go so far as to examine them in a
foreign or an ancient language ; but he is not
in the least likely ever to look at a manuscript.
That absolutely necessary work is done by
other men.

The Archivist. — One is very glad to see
that, when a great naval battle occurs, re-
cognition is given here and there to those
bravest of men, the firemen of the great ships.
They do not see the battle ; there is for them
none of the triumph, none of the gaiety of
war ; they do not even know how the battle
may be faring ; any moment the event of it
may send them to sudden death ; but down in

15

226 HISTORICAL MATERIAL

the bowels of the ship, unseen and unthought
of, often unthanked, they do the drudge-work
which drives it towards the enemy and enables
their fellows to fight for victory.

The man who corresponds in literature to
the fireman of the warship is the archivist.
On him rests the work of putting into shape
the MS. material which enables the work of
writing history to proceed. He is the skilled
interpreter of obsolete language, antique writ-
ing, technical expressions, occult cues and
signs, barbarous spellings ; he is the unthanked
worker of the engine without which the ship
cannot move, the mine-sweeper who makes
safe the seas for traffic, the mason who lays
the solid foundations for the airy crockets of
the historical building.

Like an old doctor who from long and wide
experience diagnoses the condition of your
unseen body, or an old farmer who does the
same by the land, the archivist, tending his
engines, may by his experience and learn-
ing restore the text where time and misuse
and the wearing effects of weather have made
it illegible ; he may even, like a conjurer,
reproduce some ancient word (some rabbit out
of a hat, so to speak), which in the damaged
condition of the MS. would be guessed by a
layman to represent an imaginary ancient form
of a modern expression which had no connec-
tion with the matter ; he will detect forgery ;
he will correct mistakes made by copyists ; he
will suggest new readings.

THE USE OF THE MATERIAL 227

If as well as an archivist he is a man
endowed with historical insight and imagina-
tion, he will bring to bear on the MS. the
political and social views of the age of which
it professes to be the expression, and by de-
tecting some reference to such views will
fix a possible date for the MS. This labour
will be interesting, but before and besides
this there is much drudgery of routine work
to be done. Let us be thankful that some
undiscovered instinct makes men firemen and
archivists.

As a general account of the many labours
and difficulties which attend the work of the
archivist, especially if he looks beyond his MS.
to its use for history, there is nothing more
instructive than Mr Pike's observations of
his experience in the prefaces to the Year
Books (R.S.).

The law French and black-letter of the
Year Books are not an easy combination to deal
with, but it is rather interesting to translate
those volumes not yet edited, if one had time.
I have not used them for this book, but not
for this reason. My reason was that one
misses the careful guardianship of Messrs
Horwood, Maitland, and Pike when one leaves
the edited volumes.

Of the identification of a particular roll,
making light of the difficulty, Mr Pike says
(12-13 Edw. III., pref.) : "There is no escape
from the labour of turning over and examining
a roll which consisted of 475 skins of parch-

228 HISTORICAL MATERIAL

merit, about 33 inches long by 10 broad, closely
written" (in law Latin) "on both sides and
without any guide to the contents except the
names of counties occurring in the margin, and
these not in alphabetical or other systematic
arrangement." He speaks (18 Edw. III.) of
the confusion of titles, endorsement, and ar-
rangement, of the miscellaneous character, as
in the MS. of the Irish laws, of the matter.
Of one MS. he says (13-14 Edw. III.) : " The
volume of the Harleian Collection in the
British Museum, No. 741, contains other matters
besides Year Books, is in several different hands,
and is of very unequal merit in the different
parts. There were generally many MSS. for
each year (17 Edw. III.). In themselves as
originals there were many inaccuracies." Mr
Pike tells us (18 Edw. III.) that he corrects a
non-contemporary MS. " by the aid of the
knowledge which is acquired in the correction
of the vicious readings of other MSS. and
printed texts."

But there was worse to do than the correc-
tion of originals. " They must generally," he
says, " be copies more or less imperfect, and
many of them copies of copies." " The tran-
scribers who multiplied copies were not by any
means infallible, and sometimes made many
serious mistakes ; remarks originally in the
margin get into the text, and the abbreviations
may be wrongly made, made in accordance
with the forms in use in the transcriber's and
not in the reporter's time."

THE USE OF THE MATERIAL

The MSS. had been in use for generations
before any printed texts were issued, and when
printed previous to the nineteenth century,
"there was no collation of MSS., no com-
parison of the reports with the records, no
translation, and not even any trustworthy
extension of the abbreviations which occur in
the original MSS."

This brings us to one of the chief causes of
mistake and difficulty, the abbreviations or
contractions of words.

The Abbreviations. — When the ancient MSS.
are printed for our use the words are generally
written at full length. But no ancient MS.
was so written. The originals were written
in a shorthand which varied in different times
and places like the different systems of short-
hand now.

Where the writer was following the words
of judge or counsel, or was taking down the
contents of a letter from dictation, such con-
tractions might be useful ; a great majority
of them at all times avoided labour and space,
as, for instance, qr for quaeritur ; but a number
of them would not appear to have been of any
value either for time or space when a MS.
was being copied or a history edited or com-
posed in the quiet and leisure of the scrip-
torium. For instance, apd for apud, sem'l for
semel, cu for cum, qa for qua, taolas for tabulas,
could have saved neither time nor space. The
signs would have to be made very carefully, as
some of the forms were so much alike that

230 HISTORICAL MATERIAL

there was opening for confusion by careless
writing for all posterity.

But the occult sign of the copyist may
continue to be used for other purposes than
convenience. Many people could read a little
in those early times, but it is hardly likely that
they could read the technical contractions.
The use, I think, was one of the difficulties put
by the trade union of writers in the way of
the unskilled labour which might have inter-
fered with their profession.

The use of these contractions has resulted in
making the editing of MSS. very difficult. It
often is very difficult to tell which of several
forms very much alike and standing for many
different words has been used, and to know
whether or not the copyist has made a mis-
take in their use, as, for instance, ]) post, p
pretium, p post or potest, p per, ty pro. Any
one of these, if hastily made, or if the writing
was bad, or the MS. rubbed or damaged,
might be mistaken by a subsequent copyist
for another, even if the original copyist had
not erred.

Or a later editor, who proposed to restore
the text, seeing the mistake, and being unable
to make sense, might substitute p° probatio or
praepositio, or pr probabiliter, or pe prope, or
p1 probi, or p1 possibilis. The opportunities
for error are manifold. And if he became
convinced that his new reading was the right
one, he would be very likely to make further
alterations to make sense.

THE USE OF THE MATERIAL 231

The fact is that the careless making of
abbreviations by copyists, combined with the
decay of MSS. and alteration of language, is a
chief cause of difficulty in deciphering them.

The following example of these contractions
may give some idea of the difficulties to be
overcome when they have to be treated on an
ancient and timeworn piece of parchment.
The instance is taken from the Misse Rolls
of 14 John, on p. 249 of Documents illustrative
of English History in the Thirteenth and
Fourteenth Centuries, selected from the
Records of the Department of the Queen's
Remembrancer of the Exchequer, edited by
Sir Henry Cole (Record Commission, 1844).
This has been partly translated by the editor
(Preface, p. ix).

D MBcuf in festo Sci StepKi ibid
Die Mercurii in festo Sancti Stephani ibidem

Wilekin de Marisc ad runcinu emendu de dono
Wilekino de Marisco ad runcinum emendum de dono

ii m p R Ibid! Arnaldo nucio

duas marcas per Regem Ibidem Arnaldo nuncio

Burgensiu de Ruplla eunt in priam suam de
Burgensium de Rupella euntem in patriam suam de

dono i . m p ft Ibid MonialibS de

dono unam marcam per Regem Ibidem Monialibus de

Cestrunt de dono i m p ft Ibid

Cestrunt' de dono unam marcam per Regem Ibidem

^ vi bisanciis emptis <j$ obloe dni Reg
pro sex bisanciis emptis pro oblatione domini Regis

232 HISTORICAL MATERIAL

fca ad relliquias apd Rading die Diiica
facta ad relliquias apud Radingam die Dominica

post festum Oihium ScoL xi

proxima post festum Omnium Sanctorum undecim

t^\

s vi d D Jovis in festo Sci Joh

solidos sex denarios die Jovis in festo Sancti Johannis

Evangle ap Eiswefi in ludo Dili Reg ad
Evangelisti apud Eiswell' in ludo Domini Regis ad

tafolas qn lusit cu Brian de Insul v

tabulas quando lusit cum Briano de Insula quinque

s.
solidos.

Notice the difference in the signs for Regis
and Regem, and the different apuds before
Rading and before Eiswell.

Translation. — " On Wednesday the feast of
St Stephen at the same place to Wilekin de
Marisco to buy a horse a gift of two marks
from the king. At the same place to Arnold
the emissary of the burgesses of Rochelle
going to his own country a gift of one mark
from the king. At the same place to the
nuns of Cheshunt a gift of one mark from
the king. At the same place for six byzants
bought for the oblation of the lord king made
before the relics at Reading on the Sunday
next after the Feast of All Saints eleven
shillings and sixpence. On Tuesday the Feast
of St John the Evangelist at Eiswell for the
(losses at) play of the lord king at tables when
he played with Brian de Lisle five shillings."

THE USE OF THE MATERIAL

The account might be analysed as : War
Department for a horse, £l, 6s. 8d. ; Foreign
Office to messenger, 13s. 4d. ; Ecclesiastical
Commissioners, grants in aid of the Church,
£l, 4s. lOd. ; privy purse, 5s.

The contractions of the native languages
were even worse. Charles O'Conor, a very
learned Irishman, writing to the Chevalier
O'Gorman in 1781-3 (Introduction to Four
Masters, pp. xxxvi- vii) says : " I request that
you will make your scribe to confine himself to
an accurate facsimile, the contractions being
singularly uncommon and explainable only by
readers long and well acquainted with our
writings." Any deviation, he says, would
render the text unintelligible. " But the
worst of it is I doubt if you have a man in
France or in Ireland who could decipher the
contractions. In my province of Connaught
I know of none, myself excepted, who can
read these Annals."

The editor of the Four Masters (p. xxxi),
speaking of the grandson of this man, Dr
O'Conor, to whom Ireland is much indebted
as one of the first to preserve the ancient
Annals, says : " It is generally acknowledged
that Dr O'Conor has fallen into many serious
mistakes not only in the translation but also
in deciphering the contractions of the auto-
graph MS. of the Four Masters"

Translation. — When, however, this difficulty
is overcome, there is another very formidable
one to be faced in the decay of knowledge

234 HISTORICAL MATERIAL

concerning the ancient languages in which
valuable records survive, archaic forms of
modern languages, Saxon, Irish, Welsh, French,
and Scandinavian, which have been shouldered
out of the way for the more generally used
instrument of monastic Latin. Apart from
this medium of expression, the perspective of
history has suffered much distortion from the
want of an elementary knowledge by authors
of the languages in which the records have
been written.

As an example, Palgrave (Antient Calendars
and Inventories, vol. i.) tells us that among
the books in the Royal Treasury was one
written " in a language unknown to the
English," beginning, " Edmygaro douit duyr-
myd Dinas." Two learned Cymric antiquaries
translated it ; the first read it, Edmygar I will
honour, Ddovydd the Deity, dwyrinnydd the
upholder, Dinas of the city ; the second made
it, Edmygau solemnity, douit that overspreads,
du gloom, yn opposite, myd a circular enclosed
Dinas city.

The Irish language had fallen so entirely
into disuse that the ancient MSS. were barely
decipherable by the experts in the eighteenth
century. It would hardly, I think, be too
much to say that a great part of our political
difficulties with Ireland have been due to the
fact that her early history and laws were
written in a language which, since the seven-
teenth century, was in process of decay, and
that men of letters took no pains to make

THE USE OF THE MATERIAL 235

themselves acquainted at first hand either with
language or literature. The histories continued
to be written both from Roman Catholic and
Protestant standpoints, but without any
knowledge of the social or political history of
the times preceding religious disputes from
original sources.

Writing of the unpublished condition of
Irish MSS., Mr James Hardiman, a learned
antiquary, says in 1843 (Tracts relating to
Ireland, Irish Archseol. Soc., vol. ii.) : " It is not
therefore boldness or presumption to say that
those writers who have hitherto treated of the
affairs of Ireland were in a state of positive
though not of invincible ignorance of the
sources from which alone they could have
drawn the most instructive portion of their
labours. . . . Events they have narrated with
sufficient accuracy as to time, space, and
circumstance ; but not so the causes to which
those events might have been placed."

It is generally admitted that the translation
of the Brehon laws would be the better for
revision.

It would certainly, if revised, assist us to a
clearer insight into social conditions ; for
instance, the use by the editors of the word
tenant, tenancy, tenure as applied to cattle
mortgages is entirely misleading. The trans-
lation of A.L. IreL, vol. ii. p. 194, begins,
" Cain law of saer stock tenure." The Irish is
" Cain tsaorraith." Raith has no connection
whatever with tenure.

236 HISTORICAL MATERIAL

If one turns to the glossary in vol. vi., one
finds raith = surety, security. But under rath
this passage is quoted, and rath is said to be
equivalent to stock. Then under saer it says
saer rath, the law relating to free tenants, which
is what you might expect from a glossary.

Ireland has suffered more than the other
parts of the islands from the difficulty of
editing her ancient tongue. The Irish lan-
guage, like the Greek, has aspirate signs and
accents, which are an added difficulty and
source of error, especially as the language
remained so long uncultivated that, when the
attempt was made to decipher the old records,
they were all but unintelligible even to the
best archivists.

Being Ireland, less money and less care
have been bestowed by the Government on
their archives. The present withdrawal of
the grant for the study of Celtic will be a
hindrance to loyal Irish scholars, but none
to the disloyal, except to give them a more
secret means of communication among them-
selves.

Sir J. T. Gilbert, in pamphlets called Record
Revelations, in 1863-4, exposes the treatment
of the Irish records, and gives examples of
the many mistakes of translation and editing
made by the editors of the Calendar of Patent
and Close Rolls of Ireland, from want of
knowledge of the language, the true Irish
archivists being ignored.

This is their very lucid explanation of the

THE USE OF THE MATERIAL 237

entertainment of a chief and his following,
called, in the language of the days of the
Rolls, " coshering " or " coshery " : " cois-a-re,
cess or rent for the king received by him by
receiving him into coshery " — which is a very
clear definition. " Colp," a Gaelic word in
common use to express the number of sheep
that can graze on a certain extent of pasturage,
is explained as a wax candle — " colpo a copo de
cere." " Cahernamarte " i.e. Cathair-na-Mart,
the stone fort of the beeves, is cleverly turned
into the equivalent of Cahernemort, the city
of the dead.

In the monastic Latin the same errors
occur. In the Patent and Close Rolls above
mentioned, " de quolibet bolte de Eylesham "
(i.e. bolt of stuff from Eylesham in Norfolk)
appears as " every bolt of isinglass " ; " lanu de
quolibet capite syndonis " becomes yarn; ** frai-
ello de batteria " (a basket of kitchen ware, says
Gilbert) becomes a frail of butter; " de qualibet
sella," for every saddle, becomes for every seal,
and " de omnibus generibus de averio ponderis,"
for all kinds of avoir de pois or valuable goods
weighed by the pound, is turned into all
kinds of haberdashery. Every crannoch of
malt ("crannaco brasias") becomes every load
of hay.

But it is not necessary to take Latin in-
stances from Ireland. In Tacitus, Germania,
chap. xvi.,the cultivation of the arable lands
is said to have been " per vicos," by townships,
or is it " per vices," alternately ? Some editors

238 HISTORICAL MATERIAL

say the one, some the other. There is no
chance of settling the question from an original
MS. Either will make equally good sense,
but a different effect. New editions give
various meanings and draw different conclu-
sions and settle nothing.

Monastic Latin is a study in itself. " Le
Latin des 9e, 10e et lle siecles, surtout le
Latin des chartes et des diplomes, n'a rien
de commun que le nom avec le Latin de
Ciceron et de Tite-Live."

As an example of the French of charters,
the Bond of Allegiance to Edward I., printed
in Sir J. H. Ramsay's Bamff Charters, may
be referred to.

Minor Difficulties. — When the MS. has been
deciphered and translated, the difficulties are
by no means surmounted. For one thing,
different peoples began the year at different
times, and not only so, but dated their
calendar from a different date of origin.
Every date in a document has to be most
closely scrutinised and compared with those
of other documents at the same time. Where
during long periods of years the reckonings
of the Northumbrian chroniclers differ from
those of the south by two whole years, in
every date Mr Kemble concludes that the
Northumbrians were in the right.

The spelling was phonetic, and barbarous
in the extreme, growing worse rather than
better in the later times. And the inter-
change of letters helped the confusion. Mr

THE USE OF THE MATERIAL

Pike (16 Edw. III., vol. ii. p. 513, note 2)
instances a difficulty occasioned by the inter-
change of u and v. There was a Lord
Chancellor in Edward's time whose name has
always been quoted as Parmng. Mr Pike
shows that it was Parking, by it being here
spelt Parwyng for Parking.

The imminent perils of forgery present a
perpetual difficulty. The archivist must con-
sider all the accompanying circumstances
which may point to spuriousness, such as
anachronisms, parties being named who are
not contemporary, or the introduction of cor-
roborative circumstances, as people would
not be likely to insert facts which everyone
knew.

When we have considered all the pitfalls,
all the dangers and difficulties which beset
the expert who remakes and translates the
ancient MS., we are in no position to throw
stones at the men of a century or two ago
who failed in absolute accuracy or in pheno-
menal perception. We have all the advantages
of their mistakes ; the interest which they
created in the ancient MSS. has enured to
our benefit; we have photography and its
allied arts to help us ; we have better housing —
read Mr Pike's Preface to 18 Edw. III. on
the many journeys taken by the Rolls of
Court ; many new MSS. have been made
which assist us in the knowledge of the old
MSS. Many new workers have come into
the field ; the older men are not afraid of

240 HISTORICAL MATERIAL

translations and other helps to enlarge know-
ledge ; we have better glossaries and better
mechanical appliances ; our improvements,
where they exist, are made upon the founda-
tions of the former men. They acted as the
pioneers who cleared the unbroken woods with
a narrow strip of iron and an ox. We can
plough deeper, and break the ground better,
and have larger crops ; but we need not think
ourselves so much the better men on that
account.

CHAPTER XXIII

MODERN USE

The Seventeenth-Century Antiquarians. — Pass-
ing by the destruction of ancient documents,
both of Scotland and Ireland, which seems to
have taken place on a large scale from the
thirteenth century onwards, and the perils of
forgery and re-editing, we come to another
danger, the perils from the labours of the
seventeenth- (and, we may add, the sixteenth-)
century antiquarians, who held the same
position with regard to ancient MSS. as
Horace Walpole and his time did to Gothic
architecture.

An age that was the creator of new concep-
tions of beauty, that enjoyed new romances
of daring adventure, new letters, new music,

MODERN USE 241

new ballads, new faiths, new worlds discovered,
could hardly be expected to concern itself
seriously with musty records, the parchments
of a time to which they felt themselves so
vastly superior. Their intellectual trunk-hose
were a world too wide for the shrunk shanks
of the centuries left behind them. Like all
creative ages, they were hopelessly uncritical,
enjoying a mass of undigested information as
a plaything for amusement and self-gratifica-
tion. As a pleasure they worked, and they
worked hard, employing their research on past
history and old records. You may read the
results in Spenser's View of Ireland and Leland
and Bale's editing of Walter of Coventry.

They did good work in this, that they
collected a vast amount of material for investi-
gation and critical examination. The worship
of the Saxon Chronicle dates from that time ;
Lambarde edits it in 1568, Wheelock in 1644.
Magna Charta becomes for political purposes
our palladium of liberty as directed against
the predecessor of Charles. It became the
fashion to collect books and to read ; even Mr
Pepys has to have an " alphabet " of his books.
But the times had gone by too far. The old
conditions of society were forgotten ; the
conclusions which men drew from their in-
vestigation of the past were based on artificial
theories, political and social, of their own times
which had no connection with the former life.
Their labours waited for a century and a half
before t hey bore any fruit of value.

16

242 HISTORICAL MATERIAL

The Modern Historian. — In the latter half
of the nineteenth century there was a very
brilliant opportunity for a rapid increase of
intimate knowledge of early British history.
During the first half of the century, following
the Napoleonic wars and the reform agitation
of the thirties, the excavation, arrangement,
translation, and editing of material had gone
on in every direction, in records of ancient,
mediaeval, and modern history, in law, in Church
history, in letters and all kinds of documents,
often in the hands of very able editors, men
with their heart in the work of clearing ground
unthanked for those who were to come after.

It was an age of really popular education,
encouraging all that was best in men, before
the influence of 1870 stopped the drawing out
of mental powers and substituted the pouring
in of accumulated and undigested facts. It
must have looked in those days as if the mean
jealousies of the different parts of the islands
would be put to one side, and that all would
look at past story through the same strong
telescope. Many men, such as Hardy, Skene,
Petrie, O'Donovan, O'Curry, Kemble, Pal-
grave, Aneurin Owen, Gilbert, and Thorpe,
were working on the new material, fashioning
it into shape for the popular historian.

Most unhappily, many circumstances inter-
vened to prevent the fruition of the work of
the men who had provided it.

The political temper of the times was
against any accurate presentation of facts.

MODERN USE 243

After the Reform Bill of 1832, the Whigs who
were the writers of past history rewrote it in
the light of their political theories, and, follow-
ing the bias of the seventeenth century, they
laid for us the foundation of that false use of
the monastic distortions of the twelfth century
which, using the successive evidences of histori-
cal tradition to depress the kingship, and with
it the Church, has, as democracy has widened,
become a habit even with Church historians.

Then, unfortunately, most of the histories
were histories of England. One great judicial
historian, Burton, arose for Scotland ; and the
writers of history in Ireland, both Protestant
and Roman Catholic, made full use of his-
torical facts to put forward their views of
religion,1 with no outlook towards the early
Irish history before religion was superadded to
the original cause of trouble.

But none of the men who wrote of English
history made use of the new material to carry
their action over the border north or west,
unless to illustrate some great superiority of
the Anglo-Saxon over the peoples of the rest
of the islands ; and as a result the histories of
the other parts reflected the reverse of the
English view, jealous, envious, and critical at
every point of contact with the contemptuous
superior, but not in the least constructive of
their own past histories, except as they were
affected by England.

1 There is one absolutely impartial history of Ireland,
by John O'Driscoll, probably out of print.

244 HISTORICAL MATERIAL

Another influence leading to the same result
was the prevalence of the idea that the only
good things of this world, whatever might
happen in the next, came through the Anglo-
Saxon from Germany. As a result the settle-
ment of England by the " Anglo-Saxon " be-
came the world of story round which the
twinkling stars of other worlds revolved.
Speaking of the unknown author of the
Mirror of Justice, Mr Maitland in his preface
quotes him as saying, " We must go back to
the coming of the English." " Further back
than that," says the editor, " we need not go.
He is as ardent a Teutonist as Mr Freeman ;
more ardent, for of the Norman Conquest he
says no word. Of British, of Scandinavian, of
French elements in our history, he will know
nothing ; the feudal arrangement of society is
for him a sacred, primeval, unalterable arrange-
ment." The passage is a good description of
the narrative histories of the last half of the
nineteenth century on which our generation
was fed. Dr Franck Bright, in his History of
England, a capital compilation of facts, thinks
so little of the value of the four hundred
years of Roman civilisation that he ignores it
altogether and begins with the invasions of
the savage slave-traders from the Elbe and
Weser.

Then, lastly, the very evil influence of de-
cadent political ideas, the belief that past
history can only be read to advantage in the
light of the view that freedom is the power to

MODERN USE 245

refuse the rights of a freeman the right to
contribute towards the needs of the State
goods or personal service, destroyed all the
little interest in early history which the in-
dustry of men such as Mr Freeman had
created. Every act of a king or minister, in
days when they were responsible for all acts or
omissions, was judged by its bearing on what
is called constitutional history.

To give one instance of the result of such
a theory in an otherwise admirable history, I
quote from a modern Advanced History of
England. It is evidently a work widely used,
as the quotation is from p. 165 of the fifth
edition, 1901. In 1198 Richard I. required
means to repulse the attacks of Philip Augustus
on Normandy. He asked his barons for means
to pay 300 knights ; but Bishop Hugh of
Lincoln objected to paying for soldiers abroad,
and being backed by the bishop of Salisbury,
the king's request was refused. The writer's
comment is : " This successful resistance to a
scheme of taxation marks a further advance in
constitutional progress " — why, it is not easy
to see.

When in the next reign such methods lead
to the loss of Normandy, it is safe to follow
the monastic chronicler and put the blame on
King John. In 1 2 1 4, says Walter of Coventry,
some of the barons of the north refuse to pay
scutage or to go with John to Poitou, "dicentes
se propter terras quas in Anglia tenent non
debere regem extra regnum sequi nee ipsum

246 HISTORICAL MATERIAL

euntem scutagio juvare." As a result John
lost Normandy, The same point was raised
in 1225, the chronicler remarking that it was
a chief cause of wars against John. This
" successful resistance to a scheme of taxa-
tion " lost us later our American colonies. It
may lose us our national existence.

Throughout this most depressing period of
the nineteenth century, past history was
written almost solely from the standpoint of
a national development which looked only to
a time of luxuriant happiness when " the fair
white-winged peacemakers " would fly over the
world carrying the raw cotton to Manchester,
and taking back the manufactured goods to
the other peoples, the millennium being reached
when all the working men would have a vote.

Although the more extended histories deal-
ing with later times kept alive a certain amount
of general interest, and a few men1 deal
brilliantly with short special periods, the effect
of the " constitutional history " doctrine has
been that narrative history, at least for edu-
cational purposes, has died a painful death, and
that the materials collected for its illustration
have been practically thrown away.

But the deadening of the interest in narrative
history may have had the effect of giving
an impetus to the study of another branch

1 E.g. Ireland under the Normans ; The Song of Dermot
and the Earl, by G. H. Orpen ; The Reign of Henry VII., by
A. F. Pollard ; The Popish Plot, by John Pollock ; A Short
History of Ireland to James I., by Joyce, etc., etc.

MODERN USE 247

of history, the history of social institutions,
bringing to the study of this subject the
labours of writers who might otherwise have
been diverted to the more interesting task of
telling a story. Not only has much laborious
work been done in all quarters over old records,
as, for instance, in the editing of the records
of the Orkneys and Shetlands by Messrs
A. Goudie, J. Storer Clouston, and A. W.
Johnston, or of the English counties by
members of various societies (e.g. Records of
Somerset Quarter Sessions, edited by Rev.
E. H. Bates Harbin, 1907, 1908, 1912), but,
following Maine de Lavaleye and other earlier
authorities, Maitland, Skene, and O'Curry of
past writers, and many very learned and brilliant
living men, have illuminated dark corners of
knowledge.

But here again their labours run the risk
of being merely local and antiquarian. The
greater number of such men devote themselves
to the conditions under feudalism, dealing only
with the English portions of the islands, and
ignoring the social features of tribal or com-
munal society in the other parts. This is a
small matter by the side of the chief obstacle
to the diffusion of knowledge, the wide-spread
ignorance of any of the real facts of narrative
history by the mass of readers, which must
make any attempt to assimilate the learning
on past institutions an appalling effort. It
must be very hard for a university student,
brought up on constitutional history, to make

248 HISTORICAL MATERIAL

anything of the information lavishly poured
out in the chapter on franchises in Professor
VinogradofFs English Society in the Eleventh
Century. Constitutional history would give
him no idea that there were such things as
franchises. Some elementary knowledge and
some imaginative faculty are necessary before
one can digest such writing.

We want a new elementary history of the
British Islands which can forget that there
was ever such a thing as a Parliament — a
historian who will try to tell a straightforward
tale without introducing the political atmo-
sphere of his own day.

Perhaps a woman might do it, for women
have shown of recent years a considerable
capacity for writing good history. Miss Law-
less has shown that an account of Ireland may
be written which is impartial ; Miss Hull, that
women can bring to history the necessary
imagination without loss of accuracy ; Miss
Bateson, that learned editing of difficult records
need not of necessity be dull. Miss Norgate
has continued narrative history in England ;
Miss Zimmern, history of commerce ; Miss
Bazeley creates interest in the cinder-heaps of
the Forest of Dean, and so forth.1

1 Ireland, by Emily Lawless ; The Northmen in Britain,
by Eleanor Hull ; Borough Cuslomals, by Mary Bateson
(Selden Soc.) ; England under the Angevin Kings, by Kate
Norgate ; The Hansa Towns, by Helen Zimmern ; The Forest
of Dean in its Relations with the Crown in the Twelfth and
Thirteenth Centuries, by Margaret L. Bazeley.

MODERN USE 249

If no man is ready for the work, may not
one of such women write a new elementary
history of the British Islands as a whole, apart
from politics, for the use of the illiterate pro-
fessional classes and others ? Before the labours
of the men who write at length with profuse
learning on abstruse subjects will meet with
any intelligent appreciation, it is necessary
that such a history should be written, and it
is also necessary for the furtherance of our
political ideals.

CHAPTER XXIV

CONCLUSION.

I END by making a few suggestions as to
historical study on which others may pass
criticism.

The value of a trained memory, and the
extraordinary powers of the memory when
trained, are not sufficiently appreciated in our
day. Our education, even in the mathematics,
is carried on so entirely by the use of books
and paper that little encouragement is given
to the balancing of facts or figures accumulated
in the mind, leading to a mental indigestion
of food which may be followed by terrible
results.

250 HISTORICAL MATERIAL

The value of the training of the memory
does not merely consist in the housing of the
material ; the process of digestion is of far
greater importance, and one which has a far
more enduring effect than the mere acceptance
of facts by reading. It is this which gives
the great value to the training of the memory ;
the man can turn over in his mind the facts
which he has remembered ; they are his own
and not another's ; he can consider for himself
their explanation ; he can see them in their
full bearing, and not merely as the written,
perhaps casual, opinion of one party, to whose
work, if he has relied on the writing, he must
refer before he can so consider them ; and by
the more frequent use of his memory he can
strengthen the powers of observation, the
accuracy of thought, the grasp in the mind of
the bearing of the facts digested.

This is an especially valuable assistance in
the study of history, in which there may be a
great mass of facts leading in many different
directions, resting sometimes on very question-
able authority, useless for any purpose unless
the conclusions drawn from them can be
formulated by weighing in the mind their
different aspects.

At present we are so entirely given up to
diffuse reading, for the most part foolish
reading and vain repetitions, that very few
men indeed, I believe, ever think out any
political or historical question for themselves.
They read either for the one or the other

CONCLUSION 251

what someone else has written about it,
taking the written opinions of men who, like
the monks of past times, were frequently
anonymous, of whom they know nothing
unless it is the name, men who very likely
have not given any more consideration to the
subject than the reader, or have merely com-
piled their facts from others who went before
them. This want of mental responsibility for
one's opinions is not only a pressing danger in
our political life, but it is a symptom of the
decay of a language and of our civilisation, a
decay which comes when men cease to think
for themselves.

I would suggest that geography is not suffi-
ciently taught or studied. Without it, most
facts of history are meaningless, and many
lead to wrong conclusions. All histories should
be accompanied by maps to illustrate the
movements of peoples, the military campaigns,
and the limits of the jurisdictions. I do not
mean by maps those pictures in which all the
Teutons are on one side of a painted line and
all the Celts on the other, but maps showing
the watercourses — the course, for instance, of
the Clyde and the Forth — and the mountain
ranges which form watersheds, such as the
Grampians. Scottish history, even if it may
satisfy the pride of the Lowlander, is imperfect
and misleading without such assistance. The
military movements of former times, the great
march of William I. from the north into
Wales, the movements of the armies in the

252 HISTORICAL MATERIAL

barons' wars of the fourteenth to the seven-
teenth centuries, cannot be appreciated at all
without some knowledge of the obstacles, such
as swamps, rivers, and mountains, which con-
fronted men in days when journeys were made
on foot or on horseback, to say nothing of the
movements of commerce which were depend-
ent on them.

It would not be at all a bad thing if very
elementary facts of geological formation
assisted the knowledge of geography. It is
especially of force in the history of Scotland
and Ireland. If some such maps as those in
Mr Edward Hull's Physical Geography and
Geology of Ireland were inserted in histories,
it might be easier to understand why the Pale
remained where it was or shrank in one direc-
tion rather than another ; why corn-growing
Meath was so often raided on all sides ; why
Connaught only came under English rule in
the reign of Elizabeth ; it might even help
to show why the people of East Ulster, apart
from any matter of religion, have always
separated themselves from the rest of Ireland
and joined their own people in Western
Scotland.

I would urge that, so far as may be possible,
every reader of history should be instructed in
what is known about the writers on whom he
is to rely for facts, not only those who lived at
the time, but those who followed them. It
should be impressed on him that, although
Brompton and such authorities as that " very

CONCLUSION 253

curious specimen of the apocrypha of the law,"
the Mirror of Justice, are discredited as auth-
orities in these more critical times, it was not
always so, and that many errors have passed
from their pages into credited works now in
use of which he must be wary. His attention
should be called to the difficulty attendant on
the obtaining of correct information in those
days of slow motion, and the certainty that any
story must have passed through many mouths
before the original oral tradition dropped into
the written form in the MS. from which the
history is taken. It is not the amount of fact,
but the conclusion which can safely be drawn
from it, which is of importance.

Everyone who takes up history as a serious
study ought to make himself acquainted with
at least one of the great languages of the
world, Latin, Greek, or a modern tongue, and
one of the historical languages of the islands
as well, Saxon or Irish or French or Welsh or
Norwegian or Danish, with a view to applying
the knowledge to the unlocking of the ancient
dialects in which so much of our history is
written. There are few workers and a large
field to cover. The knowledge of languages
so acquired could be used in addition in
furtherance of commerce or even in the
Foreign Office. Our ignorance of languages
handicaps our people in every relation with
other peoples.

Very few people ever get any further in the
reading of history than the middle of the

254 HISTORICAL MATERIAL

seventeenth century. Most do not get so far.
All the great deeds of our navy, all our great-
ness and good luck in expansion which has
followed, all the history of the routes which
commerce has taken in the past and may
leave in the future, are hidden from the man
who is being perpetually told by the politician
that he is the ruler of a great Empire. Such
study would be of immense value if an early
and a late period (the times of Henry II. and
Anne, for instance) were read together and
contrasted.

A reference to the rise of the Italian re-
publics and the history and persecution of the
Jews might lead to a sympathetic understand-
ing of that most necessary study for the
historian — the sources of national wealth,
and the changes in national finance. In this
connection, some of the accounts of the
king's household in times past would put
a truer light on his position as sole manager
of popular affairs and sole leader and guardian
of the State, revealing an interesting de-
velopment which could be traced down to
our own time.

A study of legal matters would show the
limitations to the king's authority by custom
and the law courts, and their bearings on
revolutions. It would show the student that
the liberty which we have had has been won
not half so much by fighting or by talking in
Parliament as by judicial decision at the hands
of judges who dared, in days of great difficulty

CONCLUSION 255

and under grievous temptation, to stand up for
the only true liberty — the right to a fair trial
before an impartial bench.

I urge that, when reading and when writing
history of the past, we should cultivate humility
in comparing ourselves with the men and
women who fought and suffered in past times.
It is doubtful if in any respect we have made
any advance beyond the conditions of the
Middle Ages, except in the one great matter of
medical and mechanical appliances ; we can
move about the world much faster than was
thought to be possible less than a century ago,
and we can send thoughts and facts and news
round the world in a few minutes. But few
of us have the hardy frames of the men of the
twelfth century ; few of us, like the seven-
teenth-century lawyer, can rise to read at four
in the morning. We have easier life, greater
freedom from plague, artificial >means of pro-
longing days ; morally or mentally, it is doubt-
ful if there is any change, at least for the better.
It is easy to sneer at the great Duns Scotus,
and to babble about angels dancing on the
point of a needle. How many of the best
minds of our day can command the clarity of
expression, the logical thought, the reserve in
use of forcible language, the bold reverence
in treatment of the subject, of the author of
Cur Deus Homo ?

A just appreciation of the facts of past
history and of their bearing on the conditions
of the present will depend on our getting rid

256 HISTORICAL MATERIAL

of the aggravated assumption of superiority
over all former times.

I have spoken throughout this book of the
evil to historical study of accepting the monastic
statements of the Anglo- Roman chroniclers
without checking them and distrusting them.
But I protest against the possible suggestion
that anything I have said should be taken as
reflecting on Christ's Holy Catholic Church,
more especially that Reformed branch of it
established in this kingdom, which repre-
sents to me in many respects the highest
teaching of Christian morals to be found in
the world.

It is the fashion for the ignorant to sneer at
the National Church and to attribute to her
neglect any lack of faith and any decay of
morals. The National Church is a human
institution, and has all the defects of a Catholic
Church which holds the mean between the
two extremes. Her faults and failings are
ours, and at her best she stands for all that is
best in us which we have learnt from her.

We cannot judge the mediaeval Church by
the standards of our own time, but we owe
it nearly all the advance in civilisation which
we have made. In a time when unceasing
war was the normal condition of Europe, the
Church always directed its efforts to widen
the short intervals of peace ; it enforced the
sanctity of oaths and contracts, using all the
penalties of the Church to safeguard them.
It is to the unceasing efforts of the Church

CONCLUSION 257

that we owe any progress that we have made
in this direction, and it would be the grossest
ingratitude not to acknowledge her overpower-
ing influence in awakening our moral sense, as
well as our debt to her for progress in the arts
and sciences.

But for that very reason the monastic
writers — a class apart in the land, responsible
only to an alien authority, judging all men's
actions by the test of unquestioned obedience
to the Roman discipline which was their
strength, to the only power which intended
a moral sense — are most unsafe and partial
authorities to follow without a certain counter-
check either for estimates of personal char-
acter, which they must always have judged
by the relations to the Church, or for his-
torical facts in matters where the king or
other layman was in conflict with the views
of the Church.

This becomes the more marked when the
monasteries grow to be immensely wealthy and
very worldly, when the monk, or more often
the layman, with no more religion than a
pheasant, masquerading under the tonsure as a
religious, writes his accounts of the affairs of
Church and Court from the idle gossip which
he picked up in the streets or the antechamber.

In the hands of our modern historians,
especially in the hands of churchmen, these
accounts become doubly unsafe. It is due to
the higher moral sense impressed by the great
National Church that these most impartial

17

258 HISTORICAL MATERIAL

writers are only too apt to accept as truthful
the monk's stories as the account of a religious
man, without considering the strong bias under
which they were written ; whereas, for the
reasons just given, though they are very
necessary and in fact indispensable, it is not
safe to trust the monk by himself without the
exercise of common sense on the conditions
under which he wrote, aided by every available
check from without. Nothing is gained to
religion or to morals by basing history on
doubtful presentation of facts.

There is no truth in the idea that history
can be made to revolve round any one person-
ality or can be written from one side only.
There is a plaintiff and defendant in every
cause, and neither holds the whole of the truth.
If you take the monastic view that one man
in any age controlled affairs because he was
unutterably bad or impossibly saintly, you
lose sight of the causes, spiritual, physical, and
commercial, which regulated the happenings of
history.

The danger is still with us. It is not un-
likely that in later days the history of these
stirring times may be written round the
personality of some one man.

Moreover, in early days, owing to poor
means of communication, the single person,
even if most exalted, was of far less importance
than he now may be. The spiritual call of
life which leads to events never follows the
moral character of any one man. To take

CONCLUSION 259

such a position is to lose sight of all the lessons
which history can teach us.

What can history teach us ? As a training
for the mechanical powers of the mind, for
improving the qualities which require rigidity
and narrowness of view, for strengthening the
memory, for encouraging accuracy or concen-
tration of thought, it is surely inferior to
languages and mathematics. But in another
direction, away from the mechanical operations
of the intellect, it may have very great value.
It can assist in forming a right judgment on
matters of national importance about which
we may learn lessons from the past, and it
can encourage a broad and temperate out-
look upon contemporary affairs. It can do
more than this ; if the history is read with a
definite end in view, if the facts put before the
reader be real facts, and he be warned against
the distorted vision which is sure to accompany
every contemporary presentation, the study of
past history can lead the mind into a higher
sphere, can bring it to a contemplation of
hopes and plans for future social advantage,
unselfish conceptions of human progress,
dreams of a better and happier world which
may unite all the jarring atoms hi harmony.

Through long centuries history is identical
with poetry ; it hands down to us the subjects
of poetry, the greatest actions of the bravest
men, the purest thoughts of the greatest minds.
It is closely bound up with ethics; it shows
us the persistent efforts made in every age by

17*

260 HISTORICAL MATERIAL

men of action and reflection to restrict the
evils which afflict society ; it is the compendium
of many books, of many ages, from which can
be drawn out of the experience of the past an
unselfish ideal of social life, racial, national, and
imperial — a united people with a definite social
aim for which they are willing to make great
sacrifice, a nation not ashamed to own to past
faults strenuously urging forward its aims at
social betterment regardless of the cost to
itself, and an empire resting on the content-
ment of its varied races. And it can be
an equally evil influence if it is falsely taught
in hatred and suspicion.

At present we have no historical or national
ideal whatsoever, and apparently no voice
through which an ideal may speak to us.

I make no excuse for my views. As some
great writer has said, there is no harm in a
false theory, because men set to work at once
to refute it : it is the false presentation of
fact only which matters.

INDEX

Abbreviations in ancient MSS.,

229.
Advowsons, litigation over, 100,

IO2, III.

Alexander III., bard recites
pedigree at coronation, 11.

Alfred, laws of, 32, 33.

Anglo-Saxon, as the modern
soldier, viii ; a fictitious term,
182 ; its origin, 183 ; in Pollock
and Maitland's History of
English Law, 184, 189; his
assumed superiority, 243 ; as
the centre of history, 244.

Aphorisms, antiquity of, 31 ;
instances from Senchus Mor,
ibid.

Appeal of robbery by infants,
104.

Archdeacon, the business man of
the Church, 148 ; the Welsh,
ibid. ; an original writer, ibid.

Archivist, work of, 225 et seq.

Ardri, powers and functions of,

52, 53, 56.

Are and Soemund Frode, 147,
189.

Astronomical calculations in
Irish Annals, 170.

Attainder of the Earl of
Desmond in 1586, and for-
feiture of lands of the clan,
81, 82.

Ballads as the origin of law and
history, 23.

Bards, poetry of, 14 ; session of,
in Wales, 17 ; rights and pri-
vileges, 19 ; Irish bard be-
comes Brehon, 20 ; Spenser's
opinion, 20 ; satires, 21 ; mer-
cenary motive for writing,
171.

Battle Psalter of Columba, 137.

Bede — writings used by his-
torians, 147 ; wrong dates
given by, 170 ; history of
Angles, 183.

Birleymen of Sutherland, regula-
tions of, 35.

Blood feud, the, 202.

Book of Kells, beauty of orna-
mentation in, 137, 170.

Book of Rights — account of rights
and gifts as between rulers,
52 ; Crithgabhlach compared
with, 219.

Born, Bertrand de, political
satire of, 18.

Braose, William de, fine paid by,
for slander, 22.

Breast lawes of deemsters in Isle
of Man, 72, 73.

Brehon, training of, 14 ; skalds,
2O ; obscure terms used by,
25 ; Irish caste, 20, 38 ; feudal
conflict with, 60 ; ollam of,
61 ; functions and powers, 6r,
64, 66, 67, 78 ; pupils trained
by, 62 ; high ideals professed
by, 67 ; fees, 77, 78 ; divisions
of, 80 ; foreign and native

261

262

HISTORICAL MATERIAL

notices, 80, 81, 82; Welsh
caste, 70; rent roll kept by,
86.

Brehon laws — woman's position
in marriage, 47 ; English at-
titude towards, 55, 57, 59, 60,
85 ; condition under James
I. and VI., 58 ; first mention
of writing, 63 ; intellectual
development, 67 ; professional
jealousy against, 83 ; Chief
Baron Finglass on, 84 ; Spen-
ser's opinion, 84 ; promptness
of, 105 ; new translation re-
quired, 235.

Brets and Scots, laws of, 202-3.

Brunanburg battle, date of
account of, 15.

Caenfaeladh, studies of, 62.
Cain or canon law, 65, 216.
Cairde or interterritorial law, 65.
Calendar of Documents relating

to Ireland (quoted as CZ>./.),

53, 61, 180, 221.
Catchwords, use of, 30.
Catholic Church, civilising in-
fluences of, 256.
Charles I., judges and law in

Commons' struggle with, 94.
Charters, use of obsolete terms

in, 29 ; writing of, 140 ; to

monasteries, 141 ; forgeries

in, 143 ; French of, 238.
Chronicon Scotorumy possible

origin of, 178.
Clergy — litigation cases in Year

Books, 1 08.
Coke, Sir Edward — Irish law and

character, 85 ; laws of Isle of

Man, 85.

Columba, MS. copied by, 137.
Common lands — cases in Year

Books, 1 1 8.
Common law, Sir J. Davis on,

90, et seq., 95.

Communal cases, procedure in,

77-

Communal society, ecclesiastics'
position under, 46.

Compilation of history, I ; con-
temporary written records
invaluable, 2 ; conditions of
writing record to be noted, 3 ;
language used, 3 ; monastic
attitude, 4, 9, 16 ; scrutiny of
source of story, 7 ; records
held in the memory, 9.

Confession of St Patrick, 210.

Connaught, king of — grant from
King John, 53.

Contract, extent of, in Irish law,
78.

Conveyance, verbal, 70 ; by
handshake in the Orkneys,
76 ; in the old Germanic
forms, 185.

Cormac, 62, 211.

Crithgabhlach, age of, 218 ; lack
of commentary, 220.

Crusades, effect of, 146, 150,
171.

Cucogny O'Cleary, will of, 178.

Custom — rule of action in sta-
tionary society, 39 ; applica-
tion to new facts, 3^, 217 ; in
Indian law, 66 ; Magna Charta
a declaration of ancient un-
written law, 88 ; when custom
becomes a law, 92 ; writing
down, 199, 210.

D'Arbois de Jubainville, M. —
criticism of Irish literature,
209-10 ; dates in MSS., 238.

Davis, Sir J. — Irish law and
character, 85, 186, 196 ; report
of Anglo-Irish courts, 90 ;
English common law, 92.

Domesday survey (1085-6), 119.

Druids, Greek influence on,
49-

INDEX

Earl Rognwald pays fines for
members of Norse com-
munity, 74.

Edward III. and Archbishop
Stratford, 93.

Eleanor of Aquitaine, 18.

England — condition in 1348,

131-
English common law — Sir J.

Davis' opinion, 92 ; origin of,

96 ; defects in system, 98 ;

delays in, 106.
Et cetera — use and meaning in

petitions, 29.
Eyres, 95, 122, 130.

Fact — contrast with news, 8.

Feinechus law, Brehon know-
ledge of, 65 ; Four Masters'
note on, 80.

Feini, laws of distress by, 35.

Finglass, Chief Baron, on Brehon
law, 84.

Fletcher of Saltoun's saying
about ballads, 23.

Fosterage included in treason,
57 ; literary, 62 ; reference in
Mabinogion, 169 ; in the Tres
Ancien Coutumier de Nor-
mandie, 208 ; clothing of chil-
dren in, 214.

Four Masters, notice of death of
Brehon in, 80 ; Annals used
by, 175; origin of, 177; pre-
face to, 1 78 ; omissions from,
179 ; use of term Saxon, 222 ;
abbreviations in, 233.

Fragmenta Veterum Legum,
203.

France — poet historian in the
south, 17.

Geography — value in teaching

history, 251.
Geology an aid to knowledge of

geography, 252.

Germanic law and forms, erro-
neous use of, 185.

Giraldus, and entries in Bishop
of St Asaph's book, 8 ; on
ignorance of the clergy, 37 ;
difficulties as archdeacon, 68 ;
writings, 148, 158, 170, 221 ;
legends and tales, 149, 150,
1 52 ; influence of, 1 53.

Greek literature, influence of,
44 ; monastic attitude towards,
45, 48 ; druidical knowledge
of, 49.

Henry II. — invasion of Ireland,
36, 51, 221 ; seaports retained
in Ireland, 61 ; Court life in
time of, 148 ; Bishop Stubbs'
character of, 158.

Historical records — interval be-
tween report and reduction to
writing, 9 ; tribal or national
history, 12.

History — cannot be impartial, 3 ;
monastic records of events,
143 ; twelfth-century chroni-
cles, 147 ; essentials for writ-
ing, 251-6; lessons to be
drawn from, 259 ; modern
system of teaching, 242, 260.

Hoveden — re-edits Simeon of
Durham,9; noteon Norwegian
custom, 181.

Howel Da, origin of laws of, 69.

Iceland— procedure at Thing,
75 ; women's position, 195.

Icelandic sagas — actual condi-
tions of life recorded, 16, 191 ;
effect of Christianity, 192,
198 ; immorality absent from,
194.

Ireland— literary matter un-
edited, 19, 235 ; feudal law
and custom introduced, 52 ;

264

HISTORICAL MATERIAL

Henry II. in, 52, 61 ; struggle
between feudal law and Brehon
law, 52, 63, 98 ; James I. and
VI. administers, 58 ; opinions
on Irish character, 85 ; cause
of trouble in, 89, 224, 234 ;
simplicity of style in Annals,
174 ; Welsh expeditions to,
221.

Irish Annals — astronomical
dates in, 170 ; simplicity of
style, 1 74 ; absence of abusive
epithets, 170, 174; transcripts
of earlier MSS., 174 ; origin
of, 1 76 ; value in compilation
of history, 176, 178 ; contents
of, 179 ; ecclesiastical position
and writing, 180; polygamy
in, 1 80 ; use of term Saxon,
222 ; difficulty of translating
Irish language, 234, 236.

Irish law — bard becomes Bre-
hon, 20 ; commentary on ob-
scure passages, 25, 29, 214 ;
Roman influence, 34, 46 ;
origin of writing customary-
law, 41 ; Patrick's conference
at Tara, 43 ; theory of origin
of unwritten law, 44 ; antiquity
of, 44, 216, 218; ecclesiastical
influence, 4 5 ; Greek influences,
48, 50; expansion and adapta-
tion, 51 ; kingship under, 52,
54 ; divisions of, 65 ; Feine-
chus law, 65, 80; high ideals
professed, 67 ; distress pro-
cedure, 78 ; English law-
yers' opinions, 84, 85, 90 ;
opinion of Sir J. Davis, 90 ;
contract in, 98 ; date of, 209,
211, 214; unpublished MSS.,

235.

Isle of Man — unwritten laws, 71,
72 ; Breast Lawes, 72, 73 ; pay-
ment of deemsters, 73 ; dis-
covery of thief, 73 ; Coke's
opinion on laws, 85.

James I. and VI. — administra-
tion of Ireland, 58 ; on the
divine right of kings, 59.

Jedburgh battle between English
and Scots, 132.

Jorwerth, son of Madog, laws
collected by, 69.

Judge, making of, in Wales, 7 1 ;
attitude towards precedent,
125; in Year Books, 122-7.

Jury — legal use under Henry
II., 40; in Year Books, 120,
129 ; moving with court, 123 ;
Norman law, 200, 207.

King — title rested on kinship,
1 1 ; commands as law, 34, 36,
58 ; Irish conception in time
of Henry II., 52 ; doctrine of
divine right, 54, 61, 62.

King John — grant to king of
Connaught, 53 ; visit to St
Edmund's, Bury, 143 ; con-
temporary records of his
reign, 154; Stubbs" character
of, 158; Green's estimate of,
1 60 ; school histories on,
162 ; notices of his death,
162 ; verses on him, ibid. ; Mr
M'Kechnie on, 163 ; cause of
dispute with barons, 164, 245.

Kinship — base of ancient society,
10 ; Roman missionary breaks
in upon, 12.

Land — communal and feudal
systems opposed, 35, 51, 98;
holding and cultivation system
adopted from Rome, 45 ; no
land without a king, 70 ; con-
veyance verbal or by hand-
shake, 70, 76, 185 ; Welsh
cases and evidence, 70, 77 ;
ownership under English and
Irish law, 98 ; common land
cases in Year Books, 118;
Icelandic custom, 195 ; ec-

INDEX

265

clesiastical nature of books or
charters, 201.

Language — value of expressions,
3 ; effect of changes of, on
unwritten law, 28.

Law — records of common cus-
toms, 12; unwritten law and
police regulations, 24 ; com-
munal origin of tribal codes,
24, 35. 38> 59; effect of changes
of language on unwritten law,
28 ; Norman terms whose
meaning is lost, 30 ; verse in
legal records, 31, 32 ; king's
command as origin of, 34, 36,
58 ; influence of Roman law,
36, 45 ; English and Irish
divergence, 36, 56 ; enlarge-
ment by fiction, 39 ; customary
law adapted to new usages,
39; fiction in, 41; barbarian
local collections, 43 ; theory of
origin of unwritten law, 44 ;
nature of commentary, 67 ;
person privileged to enact, 70 ;
communal case procedure, 77 ;
administration of unwritten
law by Lochiel, 87 ; English
common law, 92, 96, 106; speed
of tribal procedure and Anglo-
French pleadings contrasted,
105 ; monastic work in writing
and editing, 140 ; date of writ-
ing down, 199; influence of
Mosaic law, 218.

Lawyer, originally a poet, 20,
24 ; technical language used
by, 25 ; gradation of rank,
etc., 64.

List of documents quoted, xiii-
xxvi.

Lochiel of Lochaber, jurisdiction
exercised by, 87.

Magna Charta — public declara-
tion of ancient unwritten
custom, 88; Mr M'Kechnie

on, 163 ; origin of, 165 ; seven-
teenth-century attitude, 241.

Maine, Sir H. — Rajputana litera-
ture, 1 1 ; poems in Hindu law,
31 ; Early Law and Custom,
66; date of Book of Aicill, 209.

Maitland, F. W. — introduction
to Year Books, 96 ; authorities
for manorial court, 166; pro-
cedure in case of suspected
killing, 200 ; nature of land
books or charters, 201 ; pre-
face to Mirror a/Justice, 244.

MSS. — seldom originals, 7; glos-
saries of obsolete words in
twelfth-century, 30 ; owner-
ship of copies, 136; Irish works
of art, 136, 137 ; monastic
work in copying, 137, 138, 200 ;
untrustworthy copies, 138, 199,
228, 237 ; forgeries, 143, 166,
239 ; scrutiny of dates, 201,
211, 238; abbreviations in,
229 ; difficulties experienced
in translating, 233 ; spelling
in, 238 ; advantages of modern
translators, 239 ; seventeenth-
century antiquarians' work, 240.

Manx laws, 71-73.

Massacre of St Brice, 17.

Matthew Paris — additions in
re-editing, 139; charges made
by, 159 ; trustworthiness of
writings, 152, 164, 171.

Memory — power to retain and
hand down records, 9 ; modern
neglect of training, 249.

Mirror of Justice — Mr Maitland's
preface, 244 ; errors copied
from, 253.

Misae Rolls of 14 John, example
from 231.

Missionaries, Roman, break
into kinship, 1 2 ; Roman atti-
tude towards Greek learning,
45 ; writing begins with, 134 ;
separate community, 135.

266

HISTORICAL MATERIAL

Monasteries, litigation by, 108 ;
wealth and powers of, 112;
gifts and grants to, 140 ;
forgeries in charters, 143 ;
manuscripts copied and records
kept in, 143-4.

Monastic Chronicles — attitude
of writers, 4, 257 ; origin of,
8 ; verse embodied in, 14, 15 ;
un trustworthiness of, 87, 148 ;
superstition as a safeguard,
135 ; matters treated of, 144,
146, 150; vituperation in, 146,
X53> 169, 171; Scottish fictions,
1 66 ; Welsh records, 167 ;
language used for, 172.

Morning gift — antiquity of
custom, 1 86.

Mosaic laws, influence of, 218.

News — contrast with fact, 8.
Nial's Saga — procedure at Thing,

26, 191 ; quotations from,

192 ; women's position, 194 ;

changes made in, 197.
Nickname — effect of bestowal,

21.
Norman — obscure words in

charters, 29, 30 ; inability to

spell Saxon words, 30 ; laws,

206.

Northumbria — early charters, 29.
Norway — position of king's

illegitimate son, 181.
Norwich, Bishop of — abbey of

Bury, 109.

Oaths, rhythmical form of, 32.
Obsolete words — glossaries in
twelfth-century manuscripts,

3°-

O'Conor, Dr Charles— letter to
Chevalier O' Gorman, 233.

Oral tradition — records based
on, 7 ; poetry as vehicle of,
15, 1 6, 22, 24, 31 ; changes of
language in, 28 ; first connec-

tion with written manuscript,
63 ; part played in formation
of records, 87, 93 ; political
history, 94 ; safety of, 133.

Ordeal, trial by, 40.

Orkneys — unwritten law in, 73 ;
date of documents in, 74 ; Law
Thing procedure, 75 ; decree
of court in, 76 ; Norwegian
control, 1 88 ; Scottish rule,
190; women's position, 195.

Orphans, guardianship of, 208.

Parliamentary draughtsman's
work and functions, 28.

Patrick, St, 35 ; arrival in Ire-
land, 38, 42 ; conference at
Tara, 43, 50.

Pedigree — value in ancient life,
10, 13 ; Rajputana literature,
1 1 ; in First Book of Chronicles,
ii.

Plato's Republic, 49, 50, 54.

Poetry — Celtic, 14; Scandi-
navian, 15, 17 ; in France, 18 ;
English, 19; Spenser's criti-
cism, 20; in records of law, 31.

Poets, seven degrees of (Crith-
gabhlach), 19.

Polygamy — record in Annals of
Loch C6, 1 80; Brehon laws,
182.

Reporter in Year Books, 127.

Roman law — pagan law modi-
fied, 42 ; definition of injury,
45 ; Continental use as founda-
tion, 54.

Roman literature, influence of,
44, 48.

Rome — effect of fall on law in
Europe, 42 ; contributions to
the needs of the Western
world, 48.

" Sac and soc," use and meaning
of, 29.

INDEX

267

Sagas — events recorded, 15, 191-

193 ; historical value of, 189 ;
absence of sexual suggestion,

194 ; women's position, 194 ;
enlargement in re-editing, 196.

St Cyric — cures wrought by staff,
149.

Salic laws, origin of, 42.

Satire — political satires of Ber-
trand de Born, 18 ; bardic use
of, 21 ; distress for "crime of
thy tongue," 22.

Saxon — no racial affinity with
Angles, 182 ; use of term in
Irish Annals, 221, 222 ; use
by historians, 244.

Saxon Chronicle— extant MS.,
copies of, 3 ; William of
Malmesbury re-edits, 9 ; battle
of Brunanburg in, 1 5 ; skaldic
verse in, 16; vituperation in,
169; seventeenth-century study
of, 241.

Saxon laws — verse in, 32 ; tariff
for torts only, 33 ; date of
extant MSS., 201.

Saxon words, Norman inability
to spell, 30.

Scandinavian laws awaiting
editing, 206.

Scandinavian Sagas — absence of
ill words, 169 ; language used,
173; historical value of, 182,
189, 190; social life repre-
sented in, 191 ; Christianity
in, 192 ; healthy moral tone,
194 ; women's position, 194 ;
alterations in re-editing, 196 ;
absence of ecclesiastical
matters, 198.

Scandinavian settlement — ex-
tent of, 187 ; Scottish names
of Norse origin, 188 ; British
characteristics traceable to,
189.

Scottish laws — date of earliest
MSS., 202.

Senchus Mor — enigmatical
phrases, 31 ; verse embodied
in, 32 ; traditions of written
origin, 42 ; references to previ-
ous text, 50 ; date of, 209, 213;
Dublin fragment, 215.

Shetland — unwritten law, 73 ;
land conveyance in, 76.

Skald — poetic form used by, 14,
1 6 ; verses disappear from
England, 19 ; Irish Brehon
as, 20 ; Statutes of Kilkenny
against,2o; mercenary motive
for writing, 171.

Skapti, appeal to, 26.

Spenser — opinion on bards, 20 ;
sonnets, 21 ; Irish administra-
tion, 57, 58 ; Brehon law,
84.

Stubbs, Bishop — on Walter of
Coventry, 1 54, 1 56 ; character
of King John, 1 58.

Sweyn — atonement for killing
Arni Spindleshanks, 74.

Taillefer and the song of Roland,
1 8.

Tara, conference at, 43.

Tariffs for tort, 33, 34.

Theodosian code, 42.

Tighernach — use made of
writings of, 147 ; dates given
by, 170; connection with the
Annals of Loch Ce, 175.

" Toll and team," use and mean-
ing of, 29.

Treason, law of, 56.

Treatise on Social Connections
and oral origin, 63.

Tribal law — authors of, 35 ;
alteration and amplification,
35 ; influence of Roman law,

36.
Troubadour (or Trouvere), 18.

Urradhus law, 65, 216.

268

Vernacular prose, Irish, Welsh,
and Scandinavian use of, 172.

Wales — tribal system in, 68 ;
expeditions from, 221.

Walter of C oventry — Memorials,
154, 245 ; Stubbs' criticism,
156.

Welsh law — session of bards,
1 7 ; connection with writing,
69 ; origin of laws of Howel
Da, 69 ; authority privileged to
make, 70 ; chiefs or manorial
court, 70 ; making of a judge,
71 ; land cases and evidence,
77 ; date of earliest MSS., 201.

Welsh records — contents of, 1 67 ;
songs and romances, 168 ;
language used for, 172 ; free-
dom from Roman monastic
influence, 168, 173.

White language, 65.

William of Malmesbury — re-
edits Saxon Chronicle, 9 ; writ-
ings of, 63, 144, 149, 171.

Willoughby, C.J., trial of, 126.

Women — provisions illustrating
position in Saxon law, 33 ; in
Irish law, 46-7, 50, 195 ; in
Northumberland Assize Rolls,
47 ; as fighters in Plato's Re-
public and Early Ireland, 49-
50; as wives of clerks, 113,
202 ; as litigants in Year Books,

114 et seq. ; as tenants by
knight service, 114 ; as judges
in the King's Court, 115; as
appellants in criminal cases,

115 ; as claimants for dower,
115 ; as boarders in a nunnery,
116; as wives in polygamous
marriages in Ireland, 180-82;
in Scandinavia, 181, 194;
adaltrach in Brehon laws,
181 ; in the Mabinogion, 186 ;

in Iceland, 194 ; under feudal
law, 195 ; in Davis' Irish
Reports, 196 ; in Welsh law,
202 ; as nuns, 232 ; as histori-
ans, 248-9.

Writ — terms used in, 31 ; ficti-
tious words, 40 ; form of, 99 ;
any mechanical slip sufficient
to abate, 101.

Writing — risks affecting written
matter, 133 ; origin of use,
134; monastic use, 135, 144;
history in twelfth century, 146.

WyclifFe — use of resoun in
Gospel of St Matthew, 125.

Year Books — origin of, 63 ; what
they are, 96 ; link between
oral tradition and writing, 97 ;
a unique record, ibid. ; their
language of great philological
value, ibid. \ litigation carried
on over technical forms, 99,
101-4 5 evidence in, 100 ;
decision beforehand as to
points to be fought, 100 ; liti-
gation over advowsons, 100,
1 02, in ; long delays in pro-
cedure, 106 ; possible cause of
delays, ibid. ; delays by suitors,
107 ; clerical and monastic
litigation, 108 ; women as
litigants, 114 ; variety of mat-
ters illustrated, 116-22 ; may-
hem and early Norman law of
reprisal, 118; statutes, etc.,
quoted, 119; corruption of
judges, 119, 126; the jury in
every aspect, 120, 123, 124 ;
prison, 120-21 ; editors' pre-
faces, 121 ; language used in,
122 ; use of precedent, 125,
129 ; reporter, 127 ; discrep-
ancies between Year Books
and records, 130.

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