characteristics which give proof of its Asiatic origin: the excessive number of bishops, country bishops, or bishops for the rural districts, in opposition to the Church of Rome, which only allowed one bishop for each city. Asiatic custom was associated with the celebration of Easter, and the mode of administering baptism. Moreover, it applied to ecclesiastical functions the juridical notions of the clan: on the decease of the person vested with the duties of bishop or abbot, the clan to which he had belonged had the right to nominate his successor, and if at the time there was no person with the qualifications necessary for the position, the clan had the power, on the death of the stranger which it had been obliged to designate in his stead, to insist upon its inherent rights and obtain the corresponding appointment on behalf of one of its members who had finally become qualified to accept the duty of the office. The Irish law had certain characteristics more or less disconcerting to those who believed that law originates only in the forms in which it is seen to develop among nations who have reached a high stage of civilization. There did not exist, it is true, either legislative or judicial power; nevertheless juridical rules governed social relations, and judgments were rendered for the purpose of settling differences; these judgments were preserved and respected.

The Druids had disappeared from Ireland but the "brehons" and the "bards" still remained. The word "brehon" comes from a verb which means to arbitrate. In the law as administered by the "brehons" everything pointed toward forcing the adverse parties to submit to arbitration, by means of seizing their cattle and their effects, as a general rule, and by means of an enforced fast, when it came to dealing with persons called named, which means sacred—such as kings, nobles, priests, scholars and master-workmen. When the arbitration was completed, and the sentence pronounced, the last step had not been taken; the decision had yet to be enforced. Recourse was again had to forcible seizure; then followed a sanction of a special kind. He who refused to submit to the decision put himself in the place of forever refusing the protection of the "brehons," who went so far as to declare that "neither God nor man owed him any

thing" and who thus in effect released all his creditors. was called "flight," and he who resisted was a "fugitive."

Resistance

The "file" exercised the powers of the brehons or the arbitrators. "The file," wrote Henry d'Arbois de Jubainville, "are in Ireland. jurisconsults, and by virtue thereof judges, legislators and lawyers. * * * They are tellers of tales. They relate in speech or song old war legends, deeds of arms, and tales of pomp and travel, which Ireland considers constitute her national history. They

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are devins; by means of incantations, or magic formula they were able to impose upon a man certain rules of conduct and to make it impossible for him under pain of death to do such or such an action, whether inoffensive or commendable, from a moral standpoint.”

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It is to be observed that the arbitrator guilty of prevarication was subject to punishment. "When a file handed down a wicked sentence," says H. d'Arbois de Jubainville, " lumps ordinarily appeared upon his face, which constituted the visible signs of prevarication. When in the midst of judges assembled Chanchobar Fachtna, the son of Sencha, pronounced an unjust judgment, if it was harvest time all the fruits of the earth where he was fell from the trees in one night; if it was at milking time, the cows refused to nourish their calves."

Some Christian preachers succeeded, but only in small numbers, in exercising an influence similar somewhat to that of the file; in any event it was, as a general rule, the file who succeeded in holding the confidence of the Irish inhabitants. That lasted for hundreds of years, and even in the seventeenth century, when the English conquest had been effected under circumstances of implacable cruelty, the brehons were at that time dispensing justice. A great poet, Edmund Spencer, who had belonged to the English administration and who had lived in Ireland for a number of years, had, in the vicinity of 1592, paid solemn tribute to the character of the brehons and praised the justice of their decisions. But soon the jurists of the conquering power took the offensive, and thus during the first years of the seventeenth century, Sir John Davies, Attorney-General for Ireland, denounced the Celtic juridical theories as tending towards the destruction of the public weal.

IV. THE THREE PHASES OF LAW

In the development of law there is to be found in almost all civilizations, a first phase, to wit, that of esotery, or the phase where the doctrine is generally kept secret, and confided solely to the initiated. In the second phase juridical rules are recognized and made public. In the third phase they are systematically expounded, and made the subject of commentary.

Moreover, juridical rules are not necessarily the subject of codification. They may be in the form of custom, which does not by any means signify that they are kept sealed. To give an example of one of the most interesting European civilizations that of Iceland let us state that before the diffusion of the written word, precedents and customs were confided to the memory of the Skalds, the singers and poets. During the pagan epoch of the Icelanders they played an important part in matters involving successions. When Christianity was introduced, the clergy, having a more or less extended knowledge of letters, dispensed with the services which up to that time had been rendered by the Skalds, and introduced the art of writing. In Iceland, as well as elsewhere, in Norway, in the Althing, at the assembly of delegates from all the freemen, laws were not only made but preserved. As a matter of fact, each year the announcer of laws, the Laghman, came to recite the laws. He was elected by the people; in case discussion arose it was his duty to state what the law was with regard to a particular case. The abrogation of laws was easily accomplished: if during three consecutive years the law had not been announced and if no protest was made, it was considered abolished. Not only were juridical rules preserved by means of oral tradition in this northern civilization; the sagas too were thus handed down from mouth to mouth.

Often in the history of law, collections of laws have been designated as codes." The Roman codex was literally a collection of tablets, each of which had served its turn for inscription. We have stated in a former work how official collections were made at different periods. It may be added that the term "code" was given to these compilations whether they were cut in rock or engraved on metal.

In December, 1901, there was discovered at Susa the stone block on which Hammurabi, the Babylonian king, caused to be inscribed the provisions of public and private law, about the year 2000 before the Christian era. It is not known whether this monarch caused a number of transcriptions to be made, one of which may have been placed at Susa, the capital of the conquered province, or whether the block was transported as booty from Babylon in Elam, or, to use another name, Susiana.

In ancient India, the right of dealing out justice belonged to the entire tribe, which, generally speaking, exercised it through its "elders; "later, the chief of the tribe dispensed civil and penal justice, but his judicial authority soon passed to a great extent to persons learned in the law. At a later date, the Hindoo king is represented as taking part in the judicial hearings; competent men assisted him and acted as judges. The king condemns, precedents are invoked, and the strictest of all rules is that the law as it has been handed down shall not be changed.

There is a poem which expresses the first primitive notions of the origin of royal power, of order, and of law:

According to these ideas, royalty, through a divine ordinance, is the result of an after-thought on the part of the gods; men lived originally in an anarchic manner; at first there was neither king nor kingdom, nor punishment, nor one to inflict it; but when man's sense of justice was destroyed, then they laid hands on the property of others; this begot desire; desire passion; passion provoked a loss of all knowledge of duty; then perished the sense of right; the gods became frightened, they created law and order, till finally one man righting the uneven earth, brought the world into a state of order, blessed them by his protecting and directing power, and was thereupon, on account of his kindness, made king.

Juridical, moral, and religious ideas are mingled and interlaced with the juridical system of the Hindoos. At first their aim was a simple and practical one: to render each man secure with regard to what belonged to him, and to prevent rapine. According to one poem, the absence of law would be disastrous in its consequences: "Women could be stolen; people would devour each other like fishes. This was," it is added, "the state of the world before Mance was made

king; previous to his arrival people had tried to make laws for themselves; the laws were: 'a boaster, a bully, an adulterer, a thief must be banished; but no one enforced these rules, and the people were miserable and asked for a king."

At a more advanced period the words of Leist, in his "Alt-arisches Jus gentium," are applicable, to wit, that the ancient Ayran law is founded on the belief in gods who protect das Recht and punish das Unrecht.

Rudolph von Jhering states that he has searched this epoch in the history of India in vain for an expression of the exact equivalent of law, or even the rudiments of the separation brought about from the very beginning in the Roman law between divine and human law, or between law and religion. This means to the jurist that the exact nature of law had not yet been recognized. During the historic epoch, the law of ancient India was essentially based on custom; to tell the truth, there were few, if any royal ordinances; kings recognized the limits of their power in tribal and local rules and in institutions. Moreover, it must be pointed out that the force of the Hindoo law was, above all, in itself, automatic, and the scope of such a sanction becomes apparent if one considers that marriage by abduction and by fraud was abandoned, not because of penalties or condemnations, but simply because the idea was introduced that, of the various modes of marriage and there were as many as eight the best and most dignified was the marriage in which the father gave his daughter away; inferior methods met with disfavor, and ended in comparative if not in total disuse.

The Hindoo customs have been compiled. As many as eighteen compilers have been mentioned who have been honored with the title of "legislators," and there were besides numerous commentators. One of the principal compilations is the Book of Laws of Manou; it is itself an off-shoot of an ancient compilation drawn up by the Vedic school, probably made towards the commencement of the sixth century before our era. At the beginning of the work, Manou, the father of mankind, is seen expressing his willingness to set out in detail to the rishis, in accordance with their request, the law of the