Читать книгу Folklore as an Historical Science - George Laurence Gomme - Страница 19

In the meantime it is well to bear in mind that there is one important department of history which has always been frankly and unhesitatingly accepted as history and yet which has no stronger foundation than tradition, and tradition of the most formal kind. I allude to the early laws of most of the peoples who have become possessed of an historic civilisation. These laws have all been preserved by tradition, are in rhyme or rhythm in order to assist the memory, have become the sacred repository of a school or class of priests, and have finally been reduced to writing by a great lawgiver, who by the act of giving the people written laws has had attributed to him supernatural origin and powers. That history should have accepted from tradition such an important section of its material is worth consideration by itself, apart from its bearing on the present study, and I shall proceed, therefore, to set out some of the chief facts in this connection.

There can be no doubt that in the tribal society of Indo-European peoples the laws and rules which governed the various members of the tribe were deemed to be sacred and were preserved by tradition. The opening clauses of the celebrated Laws of Manu illustrate this position. "The great sages approached Manu, who was seated with a collected mind, and having worshipped him spoke as follows: Deign, divine one, to declare to us precisely and in due order the sacred laws of each of the four chief castes and of the intermediate ones. For thou, O Lord, alone knowest the purport, the rites, and the knowledge of the soul taught in this whole ordinance of the self-existent which is unknowable and unfathomable."[111] They were not only sacred in origin but they dealt with sacred things, and Sir Henry Maine has drawn the broad conclusion that "there is no system of recorded law, literally from China to Peru, which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance."[112] In Greece the lawgivers were supposed to be divinely inspired, Minôs from Jupiter, Lykurgos from the Delphic god, Zaleukos from Pallas.[113] The earliest notions of law are connected with Themis the Goddess of Justice.[114] In Rome it is to Romulus himself that is attributed the first positive law, and it is by a college of priests that the laws were preserved.[115] In Scandinavia the laws were in the custody and charge of the temple priests, and the accumulated evidence for the sacred origin and connection of the laws is to be found in the sagas.[116] Among the Celtic peoples it is well known that the laws were preserved and administered by the Brehons, who are compared with the Hindu Brahmins by Sir Henry Maine, "with many of their characteristics altered, and indeed, their whole sacerdotal authority abstracted by the influence of Christianity."[117] In the Isle of Man the laws were deemed sacred and known only to the Deemsters.[118]

In all cases laws were preserved by tradition and not by writing and evidence, and the superior value attached to the traditional record appears everywhere. The oldest record of Hindu law agrees with the best authority that it was not founded on writing but "upon immemorial customs which existed prior to and independent of Brahminism."[119] In Greece the very nature of the themistes shows that they were judgments dependent upon traditional custom. In Rome it is the subject of definite research that the "greater part of Roman law was founded on the mores majorum."[120] In Scandinavia the law speaker was obliged to recite the whole law within the period to which the tenure of his office was limited.[121] The Celtic laws are based upon customs handed down from remote antiquity,[122] and late down in English law it was admitted as a principle that if oral declarations came into conflict with written instruments the former had the more binding authority.[123]

One of the means by which this sacred tradition was preserved was through the medium of rhythm and verse. Thus, as Sir Henry Maine explains,

"The law book of Manu is in verse, and verse is one of the expedients for lessening the burden which the memory has to bear when writing is unknown or very little used. But there is another expedient which serves the same object. This is Aphorism or Proverb. Even now in our own country much of popular wisdom is preserved either in old rhymes or in old proverbs, and it is well ascertained that during the middle ages much of law, and not a little of medicine, was preserved among professions, not necessarily clerkly, by these two agencies."[124]

In Greece the same word, νόμος, was used for custom and law as for song. The ῥήτρα (declared law) of Sparta and Taras was in verse; the laws of Charondas were sung as σκόλια at Athens,[125] and Strabo refers to the Mazacenes of Cappadocia as using the laws of Charondas and appointing some person to be their law-singer (νομωδός), who is among them the declarer of the laws.[126]

Sir Francis Palgrave, noticing the same characteristic of Teutonic law, says:—

"It cannot be ascertained that any of the Teutonic nations reduced their customs into writing, until the influence of increasing civilisation rendered it expedient to depart from their primeval usages; but an aid to the recollection was often afforded as amongst the Britons, by poetry or by the condensation of the maxim or principle in proverbial or antithetical sentences like the Cymric triads. The marked alliteration of the Anglo-Saxon laws is to be referred to the same cause, and in the Frisic laws several passages are evidently written in verse. From hence, also, may originate those quaint and pithy rhymes in which the doctrines of the law of the old time are not unfrequently recorded."[127]

Again, the editors of the Brehon Law Tracts point out that early laws are handed down "in a rhythmical form; always in language condensed and antiquated they assume the character of abrupt and sententious proverbs. Collections of such sayings are found scattered throughout the Brehon Law Tracts."[128] The sagas contain many verses which partake of the character of legal formulæ, and in Beowulf there seems to be a definite example. It occurs in the passage describing Beowulf engaged in his fatal combat with the fiery dragon, when his "companions," stricken with terror, deserted him, on which Wiglaf pronounced the following malediction:—

"Now shall the service of treasure,

and the gifts of swords,

all joy of paternal inheritance,

all support

of all your kin depart;

every one of your family

must go about

deprived of his rights

of citizenship;

when far and wide

the nobles shall learn

your flight,

your dishonourable deed.

Death is better

to every warrior

than disgraced life."

Mr. Kemble remarks on this passage, that it is not improbable that the whole denunciation is a judicial formula, such as we know early existed, and in regular rhythmical measure.[129]

These early examples may be followed up by others preserved to modern times. The most significant of these occurs in the Church ceremony of marriage, which preserves in the vernacular the ancient rhythmical formula of the marriage laws, and the antiquity of the Church ritual is proved from the fact that it is accompanied and enforced by the old rhythmical verse, which is indicative of early legal or ceremonious usage.

"With this rynge I the wed

And this gold and silver I the geve,

and with my body I the worshipe,

and with all my worldely cathel I the endowe."[130]

Sir Francis Palgrave has noticed the subject, and points out that the wife is taken

"to have and to hold[131] from this day forward for better, for worse, for richer, for poorer,[132] in sickness and in health, to love and to cherish, till death us do part and thereto I plight thee my troth."

These words are inserted in our service according to the ancient canon of England, and even when the Latin mass was sung by the tonsured priest, the promises which accompany the delivery of the symbolical pledge of union were repeated by the blushing bride in a more intelligible tongue.[133] This is a curious and significant fact, and as we trace out these rhythmical lines farther back in their original vernacular, the more clearly distinct is their archaic nature. According to the usage of Salisbury the bride answered:—