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Lecture 2






The Ancient Irish Law













    The great peculiarity of the ancient laws of Ireland; so far






as they are accessible to us; is discussed; with much instructive






illustration; in the General Preface to the Third Volume of the






official translations。 They are not a legislative structure; but






the creation of a class of professional lawyers; the Brehons;






whose occupation became hereditary; and who on that ground have






been designated; though not with strict accuracy; a caste。 This






view; which is consistent with all that early English authorities






on Ireland have told us of the system they call the Brehon law;






is certainly that which would be suggested by simple inspection






of the law tracts at present translated and published。 The Book






of Aicill is probably the oldest; and its text is avowedly






composed of the dicta of two famous lawyers; Cormac and






Cennfeladh。 The Senchus Mor does; indeed; profess to have been






produced by a process resembling legislation; but the pretension






cannot be supported; and; even if it could; the Senchus Mor would






not less consist of the opinions of famous Brehons。 It describes






the legal rules embodied in its text as formed of the 'law of






nature'; and of the 'law of the letter'。 The 'law of the letter'






is the Scriptural law; extended by so much of Canon law as the






primitive monastic Church of Ireland can be supposed to have






created or adopted。 The reference in the misleading phrase 'law






of nature'; is not to be the memorable combination of words






familiar to the Roman lawyers; but to the text of St Paul in the






Epistle to the Romans: 'For when the Gentiles; which have not the






law; do by nature the things contained in the law; these; having






not the law; are the law unto themselves。' (Rom。 ii。 14) The 'law






of nature' is; therefore; the ancient pre…Christian ingredient in






the system; and the 'Senchus Mor' says of it: 'The judgments of






true nature while the Holy Ghost had spoken through the mouths of






the Brehons and just poets of the men of Erin; from the first






occupation of Ireland down to the reception of the faith; were






all exhibited by Dubhthach to Patrick。 What did not clash with






the Word of God in the written law and the New Testament and the






consciences of believers; was confirmed in the laws of the






Brehons by Patrick and by the ecclesiastics and chieftains of






Ireland; for the law of nature had been quite right except the






faith; and its obligations; and the harmony of the Church and






people。 And this is the 〃Senchus Mor〃。'






    Dr Sullivan; on the other hand; whose learned and exhaustive






Introduction to O'Curry's Lectures forms the first volume of the






'Manners and Customs of the Ancient Irish'; affirms; on the






evidence of ancient records; that the institutions which in some






communities undoubtedly developed into true legislatures had






their counterparts in the Ireland to which the laws belonged; and






he does not hesitate to designate certain portions of the Irish






legal system 'statute…law'。 In the present sate of criticism on






Irish documents it is not possible to hold the balance exactly






between the writers of the Introduction and of the General






Preface; but there is not the inconsistency between their






opinions which there might appear to be at first sight。 In the






infancy of society many conceptions are found blended together






which are now distinct; and many associations which are now






inseparable from particular processes or institutions are not






found coupled with them。 There is abundant proof that legislative






and judicial power are not distinguished in primitive thought;






nor; again; is legislation associated with innovation。 In our day






the legislator is always supposed to innovate; the judge never。






But of old the legislator no more necessarily innovated than the






judge; he only; for the most part; declared pre…exiting law or






custom。 It is impossible to determine how much new law there was






in the Laws of Solon; or in the Twelve Tables of Rome; or in the






Laws of Alfred and Canute; or in the Salic Law which is the






oldest of the so…called Leges Barbarorum; but in all probability






the quantity was extremely small。 Thus; when a body of Brehon






judgments was promulgated by an Irish Chief to a tribal assembly;






it is probable than convenience was the object sought rather than






a new sanction。 A remarkable poem; appended to O'Curry's






Lectures; tells us how certain Chiefs proceeded every third year






to the 'Fair of Carman' and there proclaimed 'the rights of every






law and the restraints'; but it does not at all follow that this






promulgation had any affinity for legislation in the modern






sense。 The innovating legislatures of the modern world appear to






have grown up where certain conditions were present which were






viturally unknown to ancient Ireland  where the primitive






groups of which society was formed were broken up with some






completeness; and where a central government was constituted






acting on individuals from a distance coercively and






irresistibly。






    There are; moreover; some independent reasons for thinking






that; among the Celtic races; the half…judicial;






half…legislative; power originally possessed by the tribal Chief;






or by the tribal Assembly; or by both in combination; passed very






early to a special class of learned persons。 The Prefaces in






Irish found at the commencement of some of the law…tracts; which






are of much interest; but of uncertain origin and date; contain






several reference to the order in Celtic society which has






hitherto occupied men's thoughts more than any other; the Druids。






The word occurs in the Irish text。 The writers of the prefaces






seem to have conceived the Druids as a class of heathen priests






who had once practised magical arts。 The enchanters of Pharaoh






are; for instance; called the Egyptian Druids; in the Preface to






the Senchus Mor。 The point of view seems to be the one familiar






enough to us in modern literature; where an exclusive prominence






is given to the priestly character of the Druids; nor do the






Brehon lawyers appear to connect themselves with a class of men






whom they regard as having belonged altogether to the old order






of the world。 I am quite aware that; in asking whether the






historical disconnection of the Brehons and the Druids can be






accepted as a fact; I suggest an enquiry about which there hangs






a certain air of absurdity。 There has been so much wild






speculation and assertion about Druids and Druidical antiquities






that the whole subject seems to be considered as almost beyond






the pale of serious discussion。 Yet we are not at liberty to






forget that the first great observer of Celtic manners describes






the Celts of the Continent as before all things remarkable for






the literary class which their society included。 Let me add that






in Caesar's account of the Druids there is not a word which does






not appear to me perfectly credible。 The same remark may be made



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