THE UTILITARIAN PHILOSOPHY.
that it presupposes the theory of Equality. The greatest number is the greatest number of men taken as units; 'one shall only count for one,' said Bentham emphatically and over and over again. In fact, the most conclusive objection to the doctrine would consist in denying this equality; and I have myself heard an Indian Brahmin dispute it on the ground that, according to the clear teaching of his religion, a Brahmin was entitled to twenty times as much happiness as anybody else. Now how did this fundamental assumption of equality, which (I may observe) broadly distinguishes Bentham's theories from some systems with which it is supposed to share the reproach of having pure selfishness for its base-how did it suggest itself to Bentham's mind? He saw plainly-nobody more clearlythat men are not as a fact equal; the proposition that men are by nature equal he expressly denounced as an anarchical sophism. Whence then came the equality which is a postulate of his famous doctrine about the greatest happiness of the greatest number? I venture to think that this doctrine is nothing more than a working rule of legislation, and that in this form it was originally conceived by Bentham. Assume a numerous and tolerably homogeneous community-assume a Sovereign whose commands take a legislative shape-assume great energy, actual or potential, in this legislature the only possible, the
only conceivable, principle which can guide legislation on a great scale is the greatest happiness of the greatest number. It is in fact a condition of legislation which, like certain characteristics of laws, has grown out of the distance from which sovereign power acts upon subjects in modern political societies, and of the necessity under which it is thereby placed of neglecting differences, even real differences, between the units of which they are composed. Bentham was in truth neither a jurist nor a moralist in the proper sense of the word. (He theorises not on law but on legislation; when carefully examined, he may be seen to be a legislator even in morals. No doubt his language seems sometimes to imply that he is explaining moral phenomena; in reality he wishes to alter or re-arrange them according to a working rule gathered from his reflections on legislation. This transfer of his working rule from legislation to morality seems to me the true ground of the criticisms to which Bentham is justly open as an analyst of moral facts.
CCEPTANCE of stock, effect of, 163; not always voluntary, ib.; by King of Erin from the Emperor, 165; from the successor of St. Patrick, 166 Agnatic kindred in Roman law, 106, 112 Aicill, Book of, 12; probably oldest of the Irish Law Tracts, 24; relates the story of Cormac, 37; advanced legal views of, 45; on dog-fights and bees, 46; on rule of legitimacy, 53, 59; on fuidhir tenancy, 174; on distribution of the Irish family, 208; on the Geilfine group, 219
Aires, the nobles, 136; seven grades of,
ib. Alfred, feud law of, 303 Alienation of tribal lands, how limited, 108; in Hindoo law, 109; in Russia, ib.; decision of Madras High Court on, 110
Analytical Jurists, the, 343; Bentham on legislation, Austin on jurispru- dence, ib.; Hobbes on government, 354; assertions of, in regard to sove- reignty, 357; on force and order, 372; limits of analytical system, 385; in- fluence of the analytical system, 397 Anglo-Norman settlement in Ireland, effects of, 54
Argyll, Duke of, on the 'Reign of Law,' 373
Aristocracy, modern, the rise of, 130; original in some communities, 133; a sovereign government, 350
Aryan customs, bond between East and West, 20. See Institutions.
Athens, formed from a coalescence of village communities, 84; its empire not legislative, 385
Augustus, Marriage Law of, 336 Austin, John, unknown abroad, 343 his Province of Jurisprudence de- termined,' 345; nature of his proposi- tions, 346; his definition of sove- reignty, 347, 348; the individual or collegiate sovereign, 349; various forms of monarchy, 350; the govern- ment of Great Britain, an aristocracy, ib.; the sovereign determinate, 351; obeyed by the large majority, 352; must receive habitual obedience, 353; difficulty as to obedience to the See of Rome, ib.; uncontrolled by any human superior, ib.; compared with Hobbes, 354, 356; force of society, 358; sovereignty an abstraction, 359; eli- mination of historical influences, 360; scientific method, 361; law depend- ent upon sovereignty, 362; right, duty, and punishment, 363; cus- tomary law, ib.; sovereigns command what they permit, 364; the Greek tyrants, 365; theory of morality, 366, 367; his utilitarianism, 368; on law of God, 369; the most serious blemish in his work, ib.; his analysis of extant governments, 376; on anar- chy, 377; on state of nature, 378; no sovereign in very small group, 379; quotes Montesquieu, ib.; on particular commands, 382; on cus- tomary law, 392
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CESAR, his description of the Celts
in Gaul, 5; on writing of the Gauls, 13; his account of the Druids, 28; of the three Celtic orders, 29; failed to observe the divisions of septs and families, 30; found the Celts polygamous, 59; on noble class among Celts, 132; on the debtors of Celtic chiefs, 167 Canon Law, origin of, 63; on consan- guinity, 213
Capital, formerly more important than land, 168; in the hands of the nobles, 169; source of power over the poorer classes, ib.
Capitis Deminutio,' of the Roman law,
Caste, origin of, 244; tendency of trades to become hereditary, 245; Brahmins the only true hereditary caste, ib.; resemblance to literary fosterage in the Brehon Tracts, 246
Cattle, wealth in, 137; reward of ser- vice to the chief, 142; object of a Kafir chief's retainers, 143; cattle stealing, 144; in Ireland a 'survival,' ib.; importance of in early ages. 147; original capital,' ib.; origin of pe- cunia, 148; their importance in Ro- man law and among the Hindoos, ib.; most valuable when men settled to cultivate land, ib.; measure of value, 149; in Brehon laws, ib.; value of, for labour in tillage, ib.; cause of their protection in Rome and India, 150; Irish system of giving stock, 151; source of vassalage, 152; resembling commendation, 158; source of power to the nobles, 168; regulated by the Brehon laws, 169; distraint of, 262; impounding, 263
Ceile, or Kyle, a vassal to the chief,
Celtic societies, 4; three orders of, 29; polygamy among, 59; land system, 96; society described by Sir W. Scott,
Chief, Ancient Aryan, or King, appears as priest, judge, and captain, 35 Chief, the elective, succeeds the patri- archal power, 117; sometimes with Council of Kinsmen, ib.; his status, 119 seq.; the source of primogeni- ture, 120; Irish tribal chief, 127; the Norman nobles as Irish chiefs,
128; relations of chief and tribe, 128; growth of his power over the land, 130; his position in the Bre- hon laws, 132; necessarily rich, 133; not in land, but in cattle, 134; power increased by giving stock, 157; right of refection, 161; employed the fuidhirs on his lands, 173; derived great increase of power by so doing, 177; private estates of, 193; in- stances of estates divided by, 194; possessed power of distributing in- heritances, 196; his family venerated as representing the purest blood, 200 ; eldest relative preferred to eldest son,
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Code Napoléon, on personal revenge, 303 Coin and Livery, oppressive nature of in Ireland, 128, 161 Collective ownership of the soil, primi- tive and universal, 1
Comitatus, the companions of the King, 138; the Royal Household, 139. See Companions
Commendation, effects of, 130, 154; ac- counted for, 155; illustrated in Bre- hon Tracts, 156; incurred by accept- ing stock, 165
Companions of the King, 138; of Erin, 139; of Iceland, 140; of Highland chiefs, 141; of Teutonic kings, ib.; everywhere rewarded by gifts of land, ib.; and of cattle, 142; their status at first servile, 145; when free, not the king's near kindred, ib.
Compurgation, an ancient test of truth,
Consanguinity. See Kinship Contracts, conception of, due to the Church, 56; influence of the Church upon, 104
Contributory negligence, principles of, in ancient Irish laws, 45 Coote, Mr., on origin of English insti- tutions, 295
Corus Besena, one of the Irish Law Tracts, 56; deals chiefly with con- tracts, ib. and limitations of contract, 58; on tribal property, 103; bias of author towards the Church, 104; on alienation of tribal land, 111, 191 Coshering, oppressive nature of, in Ire- land, 128, 161 Co-tenancy, Irish law of, 112 Cultivating groups, 113 Cumhal, a measure of value, 149; ori- ginally a female slave, ib. Custumals, French manuals of feudal rules, 6
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Dasent, Mr., his history of Burnt Njal, 140; on Norse customs, 288
Davis, Sir J., on Irish law, 18; on Irish Land, 98; on Irish oppression, 127; on right of refection, 161; de- nounces the Eric-Fine, 170; on Tanistry, 205; on Gavelkind, 185, 206; on degeneracy of the Normans settled in Ireland, 247
Dharna,' the Hindoo custom of sitting, 40, 297, 298; Lord Teignmouth's ac- count of, 299; sanctions of, 300; modern prohibition of, 301; survives in native Indian States, 304
Distress, Law of, 8; forms a large part of Brehon law, 39. See Legal Reme- dies
Dithim, delay in pound, 281 Ditmarsh, Aristocracies in, 230 Divorce, the liberty of, facilitated the introduction of monogamy, 60; re- strained by Christian morality, ib. Doniol, on English copyholds, 125 Dotatior, compulsory in Roman Law, 336; promoted by the Christian Church, 338; its power in France,
Druids, mentioned in the Irish Law Tracts, 28; described by Cæsar and Strabo, ib.; their functions, 31; re- sembled the Brehons, 32; believed in the immortality of the soul, 40 Dubhthach, compiler of the Senchus Mor, 22; blessed by St. Patrick, ib. resembles the chief Druid of Cæsar, 33
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