Lectures on the Early History of Institutions | Page 7

its manifesting, when it was published, an equity and reasonableness which would put to shame the barbarous jurisprudence of England. Much of it -- I am afraid I must say, most of it -- is worthless save for historical purposes, but on some points it really does come close to the most advanced legal doctrines of our day. The explanation -- which I will hereafter give at length -- I believe to lie in the method of its development, which has not been through the decision of courts, but by the opinions of lawyers on hypothetical states of fact.
I think I may lay down that, wherever we have any knowledge of a body of Aryan custom, either anterior to or but slightly affected by the Roman Empire, it will be found to exhibit some strong points of resemblance to the institutions which are the basis of the Brehon law. The depth to which the empire has stamped itself on the political arrangements of the modern world has been illustrated of late years with much learning; but I repeat my assertion that the great difference between the Roman Empire and all other sovereignties of the ancient world lay in the activity of its legislation, through the Edicts of the Praetor and the Constitution of the Emperors. For many races, it actually repealed their customs and replaced them by new ones. For others, the results of its legislation mixed themselves indistinguishably with their law. With others, it introduced or immensely stimulated the habit of legislation; and this is one of the ways in which it has influenced the stubborn body of Germanic custom prevailing in Great Britain. But wherever the institutions of any Aryan race have been untouched by it, or slightly touched by it, the common basis of Aryan usage is perfectly discernible; and thus it is that these Brehon law-tracts enable us to connect the races at the eastern and western extremities of a later Aryan world, the Hindoos and the Irish.
The Lectures which follow will help, I trust, to show what use the student of comparative jurisprudence may make of this novel addition to our knowledge of ancient law. Meantime, there is some interest in contrasting the view of its nature, origin, and growth, which we are obliged to take here, with that to which the ancient Irish practitioners occasionally strove hard to give currency. The Senchus Mor, the Great Book of the Ancient Law, was doubtless a most precious possession of the law-school or family to which it belonged; and its owners have joined it to a preface in which a semi-divine authorship is boldly claimed for it. Odhran, the charioteer of St Patrick -- so says this preface -- had been killed, and the question arose whether Nuada, the slayer, should die, or whether the saint was bound by his own principles to unconditional forgiveness. St Patrick did not decide the point himself; the narrator, in true professional spirit, tells us that he set the precedent according to which a stranger from beyond the sea always selects a legal adviser. He chose 'to go according to the judgment of the royal poet of the men of Erin, Dubhthach Mac ua Lugair,' and he 'blessed the mouth' of Dubhthach. A poem, doubtless of much antiquity and celebrity, is then put into the mouth of the arbitrator, and by the judgment embodied in it Nuada is to die; but he ascends straight to heaven through the intercession of St Patrick. "Then King Laeghaire said, "It is necessary for you, O men of Erin, that every other law should be settled and arranged by us as well as this." "It is better to do so," said Patrick. It was then that all the professors of the sciences in Erin were assembled,and each of them exhibited his art before Patrick, in the presence of every chief in Erin. It was then Dubhthach was ordered to exhibit all the judgments and all the poetry of Erin, and every law which prevailed among the men of Erin... This is the Cain Patraic, and no human Brehon of the Gaedhil is able to abrogate anything that is found in the Senchus Mor.'
The inspired award of Dubhthach that Nuada must die suggests to the commentator the following remark: "What is understood from the above decision which God revealed to Dubhthach is, that it was a middle course between forgiveness and retaliation; for retaliation prevailed in Erin before Patrick, and Patrick brought forgiveness with him; that is, Nuada was put to death for his crime, and Patrick obtained heaven for him. At this day we keep between forgiveness and retaliation; for as at present no one has the power of bestowing heaven, as Patrick had at that day, so no one is put to death for