both sexes have been opened in Morocco, Tunis, and some towns of the Turkish Empire.

The Jewish Board of Deputies was established about twelve years ago, subsequent to the visit of Sir Moses Montefiore to Morocco. The immediate cause of that gentleman's expedition to the country was to procure, if possible, the remission of sentence of death which was impending over a few individuals of his own persuasion who were falsely accused of the murder of a Spaniard. The only evidence against the prisoners was the confession, extorted by torture, from a Jewish lad, who, though he admitted he was concerned in the murder, and named some of his accomplices, yet on being released from his anguish retracted everything he had deposed to. Another adult Jew, though severely tortured, consistently refused throughout the entire of his dreadful ordeal to accuse himself or others; still some ten or twelve individuals were arrested, one was executed, and it was probable the others would have shared the same fate if Sir Moses Montefiore, who had been made acquainted with the circumstance, had not himself visited the Sultan, and by the most earnest endeavors, in which he was amply supported, I am told, by the British Minister, Sir John Hay, succeeded in procuring a pardon for the accused.

Sir Moses Montefiore then petitioned the Sultan to relax the restrictive laws against the Israelites, which had existed in bitter force for so many centuries. This request was also acceded to by that potentate, which it well might be, for it cost his Sheerifian Highness no more than the paper on which the promise was written. The engagements have not been kept, and most certainly were never meant to be kept, for the simple reason that, were any serious attempt made to place the Jews of Morocco on an equal footing with the Mussulman population, a revolution would be the consequence, which would cost the Sultan his throne, and most probably his life also.

The Jewish race in this country may be divided into three distinct classes, all differing considerably in manners and customs, and holding but little communication with each other.

The members of the first division claim to be descended from some of the Jewish

nation who, they say, left Palestine and migrated to the Barbary States before the Babylonian captivity. They reside in the Atlas mountains, and always attach themselves for protection to some Berber tribe, the language of which people they speak; they are permitted to bear arms, and are naturally more independent than the Hebrews of the plains, whom they affect to despise. Very meagre and untrustworthy are the accounts generally received of the Atlas Jews, as they never visit the low country, and communication with them is both difficult and hazardous; it is a fact, however, that a city inhabited by this race exists, either in the distant recesses of the Atlas, or between that range and the Sahara desert. The descriptions given of it are very vague, and even a fair approximation to the locality cannot be indicated.

The Barbary Jews who are comprised in the second class generally inhabit the towns and villages of the interior; they are descended from those wandering Israelites who, on the general dispersion of their race through the world, settled in Morocco, where they have lived up to the present time, an oppressed and despised but perfectly distinct race. Their language is the dialect of Arabic which is spoken in Morocco, and they can scarcely be said to profess Judaism, for in the long course of centuries during which they have been completely isolated from the outer world, their religion has degenerated into a most degrading system of superstition, embracing rites and observances not only not sanctioned by, but actually contrary to, the faith observed by the Jews of Europe. Thus, early marriages are encouraged to a degree which must produce disastrous consequences; it is by no means uncommon to see girls of ten years old already married, and often to men five times their own age. Sometimes, on the other hand, both bride and bridegroom are mere children; and I know of one instance myself in which a boy of ten was married to a girl of eleven years of age. The race has now become stunted, and both mentally and physically enfeebled; in fact, it is fast dying out.

The Jews of the third class live for the most part in the coast towns; they are descended from the Jews who were expelled from Spain during the fifteenth and sixteenth centuries, and from other parts

of Europe at earlier periods. Though until lately much oppressed, and even still denied equal rights with the Moors, they are enlightened compared with the other races just described, and it is this section of the people who are now endeavoring to avail themselves of a system of European education. They speak a dialect of Spanish, said to be precisely the same as that which was used in Spain at the period of their expulsion, and differing considerably in idiom from the modern tongue. As at the same time they are well acquainted with Arabic, and in some cases with both French and English, they have become the channel of communication between the Moors and those Europeans who have business relations with the country. Besides acting as agents to European merchants, they carry on a certain amount of trade themselves, and the small quantum of banking business which exists in the country is in their hands.

The Jewish school which I visited consisted of a range of one-storeyed buildings divided into different class-rooms, one spacious apartment being set apart for the female pupils, of whom there were about two hundred. The principal, Monsieur Gogman, a French Israelite, appeared to be very well fitted for the post he occupied, and, as he showed me over the school, gave me many interesting particulars regarding the educational movement now going on amongst the Hebrews of Barbary. He said that the pupils were generally extremely intelligent, showing an avidity for work seldom exhibited in the same degree amongst European children; on leaving school many of them repair to Algeria, where they find more ready employment with better remuneration than in Morocco, and Monsieur Gogman mentioned with just pride that excellent accounts are received continually regarding his former pupils, many of whom are occupying good positions in different public offices throughout the colony. He also informed me that gratuitous instruction had been offered by him to any of the Moorish families who he thought might wish to avail themselves of it; in not one case, however, was it accepted, owing to the strong prejudice which exists in Morocco against any (no matter how intelligent or well educated) of the despised Jewish race.

There at present residing at Tetuan

sixty-two Arab families who have migrated from Algeria, and who, though preferring to live away from the direct sway of the Christian, yet, being subjects of France, claim the protection of that country, and, in point of fact, are French subjects residing in Morocco. On these Arabs, many of whom are people of comparative wealth and intelligence, Monsieur Gogman urged the propriety of allowing their children to be educated on the European system; he thoroughly explained to them that the instruction to be imparted would be purely secular, that it could not fail to be of use to them in after life, fitting them, as it would, for the most important offices under Government, and that, besides this, it would be the first step towards their attaining once more that state of civilisation for which their ancestors were so famous. Those to whom he addressed his arguments admitted their force, said they had seen the good effects of a European education in Algeria, and professed themselves anxious to profit by the instruction thus generously offered, but to do so would have been to incur an amount of contempt and odium from their co-religionists which they dared not encounter. Their children are now growing up in the dense ignorance common to the Mussulman population of Morocco, where education consists, for the most part, in repeating by rote passages from the Koran in a dialect which the learner does not understand.

It is scarcely possible that a country gifted with an exceptionally rich soil, and the boundless mineral resources which Morocco possesses, should remain for many more years beyond the influence of European enterprise. The Sultan and his ministers are well aware that the present system of official rapacity and oppression would be speedily swept away by the influx of any considerable number of Europeans into their country, and therefore, wise in their own generation, they will not permit the mines to be worked in any case, or the agricultural products to be exported unless saddled with duties all but prohibitory.

On the time arriving, however, when the country and its Government may be brought more directly under the influence of European opinion (and I believe myself that period cannot be far distant), an era of prosperity will set in to which it has long been a stranger; and when the shower of

gold falls on Morocco, so wretched and poverty-stricken at present, in spite of its extraordinary natural wealth, it is not difficult to see that, of its different races, the

hitherto despised and persecuted Hebrew will be the first to profit by the change.Fraser's Magazine.

A PHILOSOPHICAL work may be regard ed from two points of view, with reference, namely, to the additions which it makes to our knowledge within its special department, and to its bearings on other subjects. The special subject of Sir H. Maine's book is archaic law, but the results of his researches derive additional value from their relation to some of the chief social and political problems of our time. The early history of law is full of interest, the curiosity it excites is ever increasing; and to Sir H. Maine belongs the whole credit of arousing attention to it in this But modern questions respecting the capacities of different races and sexes are among those on which his Lectures throw light; and his historical method is applicable to other than the legal phenomena of society. As to one class of early institutions, his present work may be considered as complementary to his two previous ones, Ancient Law and Village Communities, together with M. de Laveleye's De la Propriété et ses Formes Primitives. The extraordinary extent of M. de Laveleye's researches in both hemispheres made the lacuna in respect of Celtic institutions more remarkable. This could be filled only by the study of ancient Irish usages, and Sir H. Maine's present work may be said to complete the proof of the collective ownership of land in early society by groups of kinsmen. But his investigations have a much wider range, covering the whole field of the primitive institutions of men arrived at the social stage. Some English scholars have looked askance at the Celtic nations, and shown a manifest reluctance to admit them on equal terms within the pale of historical inquiry, as though the Greek, the Roman, and the Teuton had almost an exclusive claim to the philosophic historian's attention. The chief place in Sir H. Maine's book is assigned

* The Early History of Institutions. By Sir

Henry Sumner Maine. New-York: Henry Holt & Co.

to the ancient Irish, the obscurest and most unfortunate of the Celtic nations.

The early history of Ireland-of the events of which it is made up-is buried. in darkness and disaster, but something may be recovered through the study of the native institutions of the Irish people. It would, however, be a misapprehension of Sir H. Maine's chief object in investigating Irish law, and of the point of view from which he examines it, to suppose that he is concerned with the legal history of Ireland as such. He considers it in connection with the general problems of historical and comparative jurisprudence. He takes Irish law as an example of an archaic legal system, and proceeds to ascertain its characteristics as such, the degree of its archaicism, if we may so speak, or the stage of early progress to which it belongs, the mode of its development, its analogies to other bodies of primitive law, its peculiar features, and the causes of those peculiarities. The inquiry is one as to which on many points only probable, on some only conjectural conclusions can be reached, and on not a few doubt and diversity of opininion may always exist. It is said in the Senchus Mor that the ancient poets of Ireland were deprived of the judicature" because "obscure indeed was the language which they spoke, and it was not plain what judgments they had passed." If the judgments of the Brehons who succeeded to the poets were no clearer than are the tracts which go by their name, they too might fairly have forfeited the judicial office. Sir H. Maine's acuteness and learning afford a clue through much which before was a pathless maze, but no genius could extract from the tracts as yet published or accessible a decisive answer to several inquiries which present themselves. One of these relates to the mode in which the ancient laws of Ireland were developed. A legal system may be developed in several ways, by the spontaneous growth of popular usage, by the interpretation of lawyers, by the judgments

66

of regular tribunals, and by the legislation. Sir H. Maine, who traces to primitive Aryan usage the original elements of Irish law, inclines to refer its subsequent development chiefly, if not exclusively, to juridical interpretation.* A class of writers, on the other hand, of whom Dr. Sullivan is at once the latest and the ablest, attribute to Ireland at a very early period a central government with a complete legislative and judicial organization for the enactment and administration of law, and to this period they refer the institutions described in the so-called Brehon law tracts. A third view which seems to the present writer most in conformity with the evidence will subsequently appear.

A preliminary question is, what authority are we to ascribe to the tracts just named? Can we accept them, according to the title officially given to them and under which they are published, as the Ancient Laws and Institutes of Ireland? Ought they in strictness to be even called Brehon law tracts? O'Curry, one of the translators, when citing them, uses the phrase, "the law says," and Dr. Sullivan attributes to part of them the authority of statute law. A material observation is that they ought not to be taken in the lump as entitled uniformly to the same character and authority; a consideration of the more importance, since besides those already published and hereafter to be published by the Brehon Law Commission, others, such as the Crith Gablach and the Book of Rights, are sometimes cited as authentic records of Irish law. There is for the most part no unity of authorship even in the case of each tract singly. An original text is in most cases imbedded in glosses and commentary, written by different and unknown hands at different periods. "On its face, the commentary," in the language of the learned editors, "bears the appearance of a work which has grown up under the hands of successive generations of lawyers," with frequent variations and contradictions. Sir H. Maine traces an analogy in several respects between the writers of these Irish tracts and the authors of the Brahminical jurisprudence, at the same time observing that it is doubtful how far the latter can be accepted as truly repre

*Early History of Institutions, pp. 10, II; 42, 43; and 286-290.

"Ancient Laws of Ireland " vol., iii. General Preface.

senting the old customary law of India. But we do not even know that the writers of the so-called Brehon law tracts were all Brehons, and are not without reason for supposing that some of them were not. Sir H. Maine suggests that the compiler of the Corus Bescna may have been an ecclesiastic, or if a lawyer was one writing in the interest of an ecclesiastical client. He finds evidence of bias, mere speculation, triviality and silliness in the tracts; and in truth there are passages which it is impossible to record as the utterances of expert judges, legal practitioners, or professors of law, and which must be the work of mere tiros and dabblers. The tracts moreover appear not to have been in the hands of the Irish lawyers generally; each appears, in Sir H. Maine's words, to have been "the property and to have set forth the special legal doctrines of a particular family or law school."* He remarks that Shane O'Neill's view of the Irish law of legitimacy was directly contrary to the legal doctrine of the Book of Aicill, and that it would seem to follow that this book had not an universally recognised authority. The Books of Rights, according to Dr. Sullivan, contains the law regulating the relations between the local authorities and the different kingdoms; but this book is really a book of the claims of the Munster dynasty, and its authority could hardly have been recognised by the rival dynasties. The editors of the tracts officially published, in their preface to the third volume, compare the Corus Bescna with Chitty on Contracts, as the work, not of a legislator or a judge, but of a private lawyer without official authority. But, apart from the possibility that the compiler was not even a lawyer, there is the essential difference that Mr. Chitty's treatise was written for, and has circulated as a standard work among, the whole English legal profession, whereas the Corus Bescna may have been unrecognised by, and even unknown to, the majority of the profession in Ireland. Edmund Spenser evidently had never heard of the Brehon law as being in writing, and defines it as "a rule of right unwritten, delivered by tradition from one to another." Some written texts of law may have been in the possession of Irish lawyers in general, but the tracts as a whole, with their glosses and commentaries, seem

* Lecture i. p. 16. Compare pp. 21, 33, 280.

certainly not to have been so. Sir James Ware appears to have been as ignorant as Spenser of any written corpus of Irish law, and states that the Brehons in their judg. ments were guided by aphorisms taken partly from the Civil and Canon laws, and partly from certain Irish rules and customs.*

A fresh set of difficulties arise with reference to the period to which the tracts belong. Most of the extant MSS. appear to have been written in the fourteenth and fifteenth centuries, but when were they originally composed? Mr. Whitley Stokes ascribes the Senchus Mor to the eleventh, and the Book of Aicill to the tenth century, but this opinion is understood to refer only to the text, with perhaps the oldest part of the glosses and commentary. From the differences in substance, as well as in language, between the text of the tracts and the commentary and glosses, it is plain that the latter are often of much later date than the former; and it is hardly conceivable that the transcribers of the fourteenth and fifteenth centuries added no glosses or comments of their own. But were we able to fix the time of the composition of every part of each of the tracts, the inquiry would in many cases remain, were the writers describing a past, a present, or an ideal state of things? It is impossible to answer this question with respect to the Book of Rights, much of the Crith Gablach, and various passages in the Senchus Mor and the Book of Aicill. In some cases a sufficient answer may be arrived at. We know, for instance, that the eric-fine for murder and other offences was an existing institution in the time of Edmund Spenser, and we may be certain that it had existed for many centuries. We may, again, feel assured that the Irish process of distress, with the practice of fasting on debtors of rank, is older than any known event in Irish history, and was a primitive Aryan institution. But there are not a few cases where we are left in doubt as to the period, and even as to the real existence at any period, of the customs and rules which the tracts describe. The conclusion to which all these considerations conduct us is, that the tracts are not properly entitled to the name of "the Ancient Laws of Ireland," and that even" the Brehon law tracts" is an inaccurate and a misleading title, though one

* Antiquitates Hiberniæ, cap. viii.

probably now irrevocably attached to them. They are not the Laws of Ireland, but only evidence respecting them, evidence of great importance, yet needing to be scrutinised at every step with the utmost caution. No one would give the title of the Laws of England to all the books, tracts, and unpublished manuscripts that have been written about English law. We may accept the Senchus Mor as unimpeachable evidence of the nature of the Irish remedy of distraint, because the learning of scholars like Sir H. Maine and Mr. Whitley Stokes has established the close analogies between it and ancient Roman, Germanic, and English remedies on the one hand, and the Hindoo custom of "sitting dharna" on the other. We may further accept some, perhaps nearly all, of the tracts as sources of law, through the influence they exercised on the Brehons who had access to them, but this influence must have been in a great measure local, since as a body they were not in the hands of the legal profession throughout the country.

The question then arises, was there no source of law in Ireland of a more authoritative kind? Dr. Sullivan, in his very learned and ingenious treatise, asserts that during two or three centuries previous to the invasions of the Danes, Ireland was far advanced in civilisation, material and moral, and possessed a complete legislative and judicial organization. But after the eighth century, through the anarchy resulting from the incursions of the Northmen, this organization was, in his view, broken up; and such continued to be the condition of things after the English invasion, by reason of "the isolation of the numerous small states into which the country was divided, and the continuous feuds between their chiefs."* The assumption of a complete legislative and judicial organization in the seventh and eighth centuries is founded mainly on the Crith Gablach, though apparently a composition of comparatively modern date, and one or two other tracts; but Dr. Sullivan attributes it chiefly to the influence of the Christian Church, together with peace, extensive commerce, industry, wealth, and learning. If however we are, with Dr. Sullivan, to take the Senchus Mor and the Book of Aicill as recording the usages of that early

* Introduction to O'Curry's Lectures, pp. xvi., cclii.