Lectures on the Early History of Institutions | Page 4

come down to us, professes to be an ancient
Code, with 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