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seems to me from several expressions to have supposed that if the
English Law of Evidence were re…constructed on his principles
questions of fact would cease to present any serious difficulty。
Almost every one of his suggestions has been adopted by the
Legislature； and yet enquiries into facts become more protracted
and complex than ever。 The truth is that the facts of human
nature； with which Courts of Justice have chiefly to deal； are
far obscurer and more intricately involved than the facts of
physical nature； and the difficulty of ascertaining them with
precision constantly increases in our age； through the progress
of invention and enterprise； through the ever…growing
miscellaneousness of all modern communities； and through the ever
quickening play of modern social movements。 Possibly we may see
English law take the form which Bentham hoped for and laboured
for； every successive year brings us in some slight degree nearer
to this achievement； and consequently； little as we may agree in
his opinion that all questions of law are the effect of some
judicial delusion or legal abuse； we may reasonably expect them
to become less frequent and easier of solution。 But neither facts
nor the modes of ascertaining them tend in the least to simplify
themselves； and in no conceivable state of society will Courts of
Justice enjoy perpetual vacation。
I have been at some pains to explain what sort of authority
the Irish Brehon law did not； in my opinion； possess。 The 'law of
nature' had lost all supernatural sanction； except so far as it
coincided with the 'law of the letter。' It had not yet acquired；
or had very imperfectly acquired； that binding power which law
obtains when the State exerts the public force through Courts of
Justice to compel obedience to it。 Had it； then； any authority at
all； and if so； what sort of authority？ Part of the answer to
this question I endeavoured to give three years ago （'Village
Communities； in the East and West；' pp。 56； 57）； and though much
more might be said on the subject； I defer it till another
opportunity。 So far as the Brehon law declared actual ancient and
indigenous practices； it shared in the obstinate vitality of all
customs when observed by a society distributed into corporate
natural groups。 But； besides this； it had another source of
influence over men's minds； in the bold and never flagging
self…assertion of the class which expounded it。 A portion of the
authority enjoyed by the Indian Brahminical jurisprudence is
undoubtedly to be explained in the same way。 The Brehon could
not； like the Brahmin； make any such portentous assertion as that
his order sprang from the head of Brahma； that it was an
embodiment of perfect purity； and that the first teacher of its
lore was a direct emanation from God。 But the Brehon did claim
that St。 Patrick and other great Irish saints had sanctioned the
law which he declared； and that some of them had even revised it。
Like the Brahmin； too； he never threw away an opportunity of
affirming the dignity of his profession。 In these law…tracts the
heads of this profession are uniformly placed； where Caesar
placed the Druids； on the same level with the highest classes of
Celtic society。 The fines payable for injury to them； and their
rights of feasting at the expense of other classes （a form of
right which will demand much attention from us hereafter）； are
adjusted to those of Bishops and Sings。 It is more than likely
that the believing multitude ended by accepting these
pretensions。 From what we know of that stage of thought we can
hardly set limits to the amount of authority spontaneously
conceded to the utterances of a sole literary class。 It must have
struck many that the influence of the corresponding class in our
own modern society far exceeds anything which could have been
asserted of it from the mere consideration of our social
mechanism。 There is； perhaps； an impression abroad that the
influence it exerts increases as history goes on； an impression
possibly produced and certainly strengthened by the brilliant
passages in which Lord Macaulay contrasted the well…paid literary
labour of his own day with the miseries of the literary hack of
Grub Street a century before。 I think that this opinion； if
broadly stated； is at the very least doubtful。 The class which；
to use a modern neologism； 'formulates' the ideas dimly conceived
by the multitude which saves it mental trouble by collecting
through generalisation； which is an essentially labour…saving
process； the scattered fragments of its knowledge and experience
has not always consisted of philosophers； historians； and
novelists； but had earlier representatives in poets； priests； and
lawyers。 It is not at all a paradoxical opinion that these last
were its most powerful members。 For； nowadays； it has to cope
with the critical faculty； more or less found everywhere； and
enormously strengthened by observation of the methods of physical
discovery。 No authority of our day is possibly comparable with
that of the men who； in an utterly uncritical age； simply said of
a legal rule； 'So it has been laid down by the learned；' or used
the still more impressive formula； 'It is thus written。'
While； however； I fully believe that the Brehon law possessed
great authority； I think also that it was in all probability
irregularly and intermittently enforced； and that partial and
local departures from it were common all over ancient Ireland。
Anybody who interested himself in the question of its practical
application would have to encounter the very problems which are
suggested by the Brahminical Hindoo law。 The student of this last
system； especially if he compares it with the infinity of local
usage practised in India； is constantly asking himself how far
was the law of the Brahmin jurists observed before the English
undertook to enforce it through their tribunals？ The Editor of
the Third Volume of the Ancient Laws of Ireland has given a very
apposite example of a problem of the same kind （iii。 146）；