Lectures on the Early History of Institutions | Page 4

an appendage of later glosses and commentaries; and, if its authenticity could be fully established, this ancient Irish Code would correspond historically to the Twelve Tables of Rome, and to many similar bodies of written rules which appear in the early history of Aryan societies. There is reason, however, to think that its claims to antiquity cannot be sustained to their full extent, and that the Code itself is an accretion of rules which have clustered round an older nucleus. But that some such kernel or perhaps several such kernels of written law existed, is highly probable, and it is also probable that the whole of the Brehon law consists of them and of accumulations formed upon them. It is farther probable that the process by which these accumulations were formed was, as in the infancy of the Roman State, juridical interpretation. According to the opinion which I follow, the interesting fact about the ancient Irish law is, that this process was exclusive, and that none of the later agencies by which law is transformed came into play. The Brehon laws are in no sense a legislative construction, and thus they are in no sense a legislative construction, and thus they are not only an authentic monument of a very ancient group of Aryan institutions; they are also a collection of rules which have been gradually developed in a way highly favourable to the preservation of archaic peculiarities. Two causes have done most to obscure the oldest institutions of the portion of the human race to which we belong: one has been the formation throughout the West of strong centralised governments, concentrating in themselves the public force of the community, and enabled to give to that force upon occasion the special form of legislative power; the other has been the influence, direct and indirect, of the Roman Empire, drawing with it an activity in legislation unknown to the parts of the world which were never subjected to it. Now, Ireland is allowed on all hands to have never formed part of the Empire; it was very slightly affected from a distance by the Imperial law; and, even if it be admitted that, during certain intervals of its ancient history, it had a central government, assuredly this government was never a strong one. Under these circumstances it is not wonderful that the Brehon law, growing together without legislation upon an original body of Aryan custom, and formed beyond the limit of that cloud of Roman juridical ideas which for many centuries overspread the whole Continent, and even at its extremity extended to England, should present some very strong analogies to another set of derivative Aryan usages, the Hindoo law, which was similarly developed. The curious and perplexing problems which such a mode of growth suggests have to grappled with by the student of either system.
The ancient laws of Ireland have come down to us as an assemblage of law-tracts, each treating of some one subject or of a group of subjects. The volumes officially translated and published contain the two largest of these tracts, the Senchus Mor, or Great Book of the Ancient Law, and the Book of Aicill. While the comparison of the Senchus Mor and of the Book of Aicill with other extant bodies of archaic rules leaves no doubt of the great antiquity of much of their contents, the actual period at which they assumed their present shape is extremely uncertain. Mr Whitley Stokes, one of the most eminent of living Celtic scholars, believes, upon consideration of its verbal forms, that the Senchus Mor was compiled in or perhaps slightly before the eleventh century; and there appears to be internal evidence which on the whole allows us to attribute the Book of Aicill to the century preceding. The Senchus Mor, it is true, expressly claims for itself a far earlier origin. In a remarkable preface, of which I shall have much to say hereafter, it gives an account, partly in verse, of the circumstances under which it was drawn up, and it professes to have been compiled during the life and under the personal influence of St Patrick. These pretensions have been ingeniously supported, but there is not much temerity, I think, in refusing to accept the fifth century as the date of the Senchus Mor. At the same time it is far from impossible that the writing of the ancient Irish laws began soon after the Christianisation of Ireland. It was Christianity, a 'religion of a book', which for the first time introduced many of the ruder nations outside the Empire to the art of writing. We cannot safely claim for the Christian era, precisely the same degree of culture which Caesar attributes to the Celts of the Continent in the first century before Christ; but, even