These conclusions have been drawn from that great class of tradition preserved by historic peoples in historic times, and yet unmistakably pointing to prehistoric culture. We have been able to show the methods to be adopted for, and the results of, disengaging the myth which has gravitated to the historic person or place from the historic facts which have become part of the legend, and to trace out in the folk-tale facts which belong to a culture far removed from civilised life. There are thus revealed two distinct centres of influence, the traditional centre and the historic centre, and it is obvious that the question must be asked—which is the more important? It seems to me equally obvious that the answer must be given in favour of the historic. History is indebted to tradition for preserving some of the most remote facts of racial or national life, which but for tradition would have been lost, and if we are content to use this tradition as a storehouse from which we may provide ourselves with ancient historical documents, we can trace out therefrom points in the history of any given country wherever the traditions have been preserved.
The folk-tale, in point of fact, equally with the personal and local legend, comes into close contact with history. The periods of history in the folk-tales are different from those in the legends, but together these periods reach from prehistoric culture to historic event. We cannot, however, call this extent of time a continuous period, and we cannot point to definite stages within the detached periods. Much more research must be accomplished before it will be possible to claim such results as these. I have indicated some points of difficulty, some methods of treatment which appear to me to be wrong, and to which I shall have again to refer later on; but in the meantime, from the necessarily incomplete evidence which I have been able to produce, it is, I think, abundantly clear that folklore has to be studied from its historical surroundings if we would draw from it all that it is capable of telling.
III
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:—