Lectures on the Early History of Institutions | Page 7

of the most
ruthless in his practical suggestions, looked forward to 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actually repealed their customs and replaced them by new ones.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