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." 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." In Greece the lawgivers were supposed to be divinely inspired, Minôs from Jupiter, Lykurgos from the Delphic god, Zaleukos from Pallas. The earliest notions of law are connected with Themis the Goddess of Justice. 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. 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. 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." In the Isle of Man the laws were deemed sacred and known only to the Deemsters.

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." 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." In Scandinavia the law speaker was obliged to recite the whole law within the period to which the tenure of his office was limited. The Celtic laws are based upon customs handed down from remote antiquity, 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.

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."

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, 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.

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."

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." 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.

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."

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

"to have and to hold
from this day forward
for better, for worse,
for richer, for poorer,
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. 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:—

"I take thee, John,
to be my wedded husband,
to have and to hold
fro' this day forward
for better, for worse,
for richer, for poorer,
in sycknesse, in hele,
to be bonere and buxom [obedient]
in bedde and at borde
till death do us part
and thereto I plight thee my trothe."

The Welsh manual in the library of the Dean and Chapter of Hereford has a slight variation in the form, and an older spelling:—

"Ich N. take thee N.
to my weddid wyf,
for fayroure for foulore,
for ricchere for porer,
for betere for wers,
in sicknesse and in helthe,
forte deth us departe,
and only to the holde
and tharto ich plygtte my treuthe."

To this may be added the many local examples of the preservation of laws or legal formulæ by means of their form in verse. The most interesting of these, perhaps, is that by which the Kentishman redeemed his land from the lord by repeating, as it was said, in the language of his ancestors:—

"Nighon sithe yeld
And nighon sithe geld,
And vif pund for the were,
Ere he become healdere."

The first verse,

"Dog draw
Stable stand
Back berend
And bloody hand"

justified the verderer in his punishment of the offender. In King Athelstane's grant to the good men of Beverley, and inscribed beneath his effigy in the Minster,

"Als fre
Mak I the
As heart may think
Or eigh may see,"

we have perhaps the ancient form of manumission or enfranchisement, just as we have the surrender by a freeman who gave up his liberty by putting himself under the protection of a master, and becoming his man, still preserved among children, when one of them takes hold of the foretop of another and says:—

"Tappie, tappie, tousie, will ye be my man?"

All over the country we meet with these rhyming or rhythmical formulæ which have legal significance. In the north the chief of the Macdonalds gave grants in the following form:—

"I, Donald, chief of the Macdonalds, give here, in my castle, a right to Mackay, to Kilmahumag, from this day till to-morrow and so on for ever."

"Mise Donull nau Donull,
Am shuidh air Dun Donuill,
Toirt còir do Mhac-aigh air Kilmahumaig,
O'n diugh gus a màireach
'S gu la bhràth mar sin."

At Scarborough there is an old proverbial saying as to "Scarborough Warning," which has had various accounts given of its origin, but the true explanation of which is that it is the fragment of an ancient legal formula of the kind we are investigating. Abraham De la Pryme describes it in his seventeenth-century diary as follows:—

"Scarburg Warning is a proverb in many places of the north, signifying any sudden warning given upon any account. Some think it arose from the sudden comeing of an enemy against the castle there, and haveing dischargd a broad side, then commands them to surrender. Others think that the proverb had it's original from other things, but all varys. However, this is the true origin thereof.

"The town is a corporation town, and tho' it is very poor now to what it was formerly, yet it has a ... who is commonly some poor man, they haveing no rich ones amongst them. About two days before Michilmass day the sayd ... being arrayed in his gown of state he mounts upon horseback, and has his attendants with him, and the macebear[er] carrying the mace before him, with two fidlers and a base viol. Thus marching in state (as bigg as the lord mare of London) all along the shore side, they make many halts, and the cryer crys thus with a strange sort of a singing voyce, high and low:—

"'Whay! Whay! Whay!
Pay your gavelage, ha!
Between this and Michaelmas Day,
Or you'll be fined I, say!'

"Then the fiddlers begins to dance, and caper and plays, fit to make one burst with laughter that sees and hears them. Then they go on again and crys as before, with the greatest majesty and gravity immaginable, none of this comical crew being seen so much as to smile all the time, when as spectators are almost bursten with laughing. This is the true origin of the proverb, for this custome of gavelage is a certain tribute that every house pays to the ... when he is pleased to call for it, and he gives not above one day warning, and may call for it when he pleases."

Rhyming tenures have been frequently noted but never understood. They occur in many parts of the country. The tithingman of Combe Keynes, in Dorsetshire, is obliged to do suit at Winforth Court, and after repeating the following incoherent lines, pays threepence and goes away without saying another word:—

"With my white rod
And I am a fourth post
That three pence makes three
God bless the King, and the lord of the franchise
Our weights and our measures are lawful and true
Good morrow Mr. Steward I have no more to say to you."

It is hardly necessary to quote more examples. They are not unknown to the historian, but because they are in rhyme they have been hastily assumed to be spurious or even burlesque. But the evidence of a rhyming formula is the opposite to this. It is evidence of their genuineness, and if some of the words appear to be nonsensical it is due to the fact that the sense of the old formula has been misunderstood, and has then become gradually altered.

All these rhyming tenures, indeed, find their place among the traditional examples of legal formulæ. They are the local offshoots preserved because of their legal significance, preserved by those interested from their legal side. Because they are not preserved in the formal codes they need not be neglected, and they must not be misunderstood. They are not to be put on one side by the historian as freaks of local landowners. They are real descendants by traditional lines from the times when laws were not written, but kept alive in the memory by means of such assistance as rhyme could supply, and from the tribesmen who thus treasured the law they obeyed.

That this branch of recorded law is not only early but tribal is undoubted, but perhaps it will be well to refer to tribal rhyming formulæ of an independent kind in order to show by parallel evidence the tribal characteristics. In 1884 Mr. Posnett drew attention to this important subject, and noted that

"Dr. Brown, in an attempt to sketch the origin of poetry—an attempt which attracted the attention of Bishop Percy in his remarks introductory to the Reliques—proposed more than one hundred years ago to discover the source of the combined dance, song, melody, and mimetic action of primitive compositions in the common festivals of clan life. The student of comparative literature will probably regard Dr. Brown's theory as a curious anticipation of the historical method in a study which, in spite of M. Taine's efforts, has made so little progress as yet. The clan ethic of inherited guilt and vicarious punishment has attracted considerable attention. But the clan poetry of the ancient Arabs and of the bard-clans, surviving in the Hebrew sons of Asaph or the Greek Homeridæ, has not received that light from comparative inquiry which the closely connected problems of primitive music and metre would alone amply deserve."

Not much has been done since this was penned. Max Müller had previously, in 1847, declared that the Rig Veda consisted of the clan songs of the Hindu people, but the importance of such a conclusion has been entirely neglected. In the meantime evidence is accumulating that in Britain there are still preserved many examples of clan songs. Thus Lord Archibald Campbell has published, in the first volume of his Waifs and Strays of Celtic Tradition, some sixteen or seventeen sagas. Some of these are clan-traditions; and the editor notes as evidence of their antiquity the fact that none of them makes any mention of firearms. These clan-traditions all relate to feuds and vendettas; and in one case it is expressly recorded that the descendants of one of the foes of the clan, in their account of the incident narrated, "altered this tradition and reversed the main facts." This has been followed by a volume definitely devoted to "clan-traditions," while in the Carmina Gadelica and many of the Highland incantations there are preserved specimens of ancient clan songs.

The most interesting of the tribal songs is that preserved at the Hawick Common riding. The burgh officers form the van of a pageant which insensibly carries us back to ancient times, and in some verses sung on the occasion there is a refrain which has been known for ages as the slogan of Hawick. It is "Teribus ye teri Odin," which is probably a corruption of the Anglo-Saxon, "Tyr habbe us, ye Tyr ye Odin"—May Tyr uphold us, both Tyr and Odin.

Fortunately Dr. Murray has investigated this formula, and I will quote what he says:—

"A relic of North Anglian heathendom seems to be preserved in a phrase which forms the local slogan of the town of Hawick, and which, as the name of a peculiar local air, and the refrain, or 'owerword' of associated ballads, has been connected with the history of the town back to 'fable-shaded eras.' Different words have been sung to the tune from time to time, and none of those now extant can lay claim to any antiquity; but associated with all, and yet identified with none, the refrain 'Tyr-ibus ye Tyr ye Odin,' Tyr hæb us, ye Tyr ye Odin! Tyr keep us, both Tyr and Odin! (by which name the tune also is known) appears to have come down, scarcely mutilated, from the time when it was the burthen of the song of the gleó-mann or scald, or the invocation of a heathen Angle warrior, before the northern Hercules and the blood-red lord of battles had yielded to the 'pale god' of the Christians."

And in a note Dr. Murray adds:—

"The ballad now connected with the air of 'Tyribus' commemorates the laurels gained by the Hawick youth at and after the disastrous battle, when, in the words of the writer,

"'Our sires roused by "Tyr ye Odin,"
Marched and joined their king at Flodden.'

Annually since that event the 'Common-Riding' has been held, on which occasion a flag or 'colour' captured from a party of the English has been with great ceremony borne by mounted riders round the bounds of the common land, granted after Flodden to the burgh; part of the ceremony consisting in a mock capture of the 'colour' and hot pursuit by a large party of horsemen accoutred for the occasion. At the conclusion 'Tyribus' is sung, with all the honours, by the actors in the ceremony, from the roof of the oldest house in the burgh, the general population filling the street below, and joining in the song with immense enthusiasm. The influence of modern ideas is gradually doing away with much of the parade and renown of the Common-Riding. But 'Tyr-ibus ye Tyr ye Odin' retains all its local power to fire the lieges, and the accredited method of arousing the burghers to any political or civil struggle is still to send round the drums and fifes, 'to play Tyribus' through the town, a summons analogous to that of the Fiery Cross in olden times. Apart from the words of the slogan, the air itself bears in its wild fire all the tokens of a remote origin."

We could not get better evidence than this of the survival of tribal custom, custom that is distinctly connected with tribes rather than with places or individuals, with groups of people who, now bound together by local considerations and influences, have only recently passed away from the far more ancient influences of the tribe. Alike in the forms of historical codes and in traditional local remains, we have found evidence of the use of rhyme for the preservation of unwritten rules and forms; and this use restores to tradition an important branch of its material.

We have thus ascertained that there is direct and acknowledged indebtedness of history to tradition. Its extent covers a wide area of culture progress, and of unbroken continuity from tribal to historic times. The legal codes of the barbaric tribes of Western Europe are the direct successors of the traditional originals; and because these legal codes, equally with their unwritten predecessors, cannot be dispensed with by the historian, they find their place unquestioned among genuine historical material. They are no more, and no less, historical than other traditional material. They are part of the life of the people rescued from prehistoric days, and they tell us of these days by the same sanction and the same methods as the rest of the traditional material which has been so strangely and so persistently neglected by the historian. The whole of tradition, and not selected parts of it, must be brought into use if we would follow scientific method, and I claim this for the study of folklore on the strength of the results which have now been brought together.