24

SENCHUS MOR AND BOOK OF AICILL.

LECT. II.

LECTURE II.

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 Cennfaeladh. 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

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LECT. II.

INGREDIENTS OF THE SENCHUS MOR.

25

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 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 a 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

26

LEGISLATION AND ANCIENT IRISH LAW. LECT. II.

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 'statutelaw.' In the present state 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-existing 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 Bar

LECT. II.

NATURE OF ANCIENT LEGISLATION.

27

barorum, 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 that 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 virtually unknown to ancient Irelandwhere 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 references to the order in Celtic

28

THE DRUIDS.

LECT. II.

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 Cæsar's account of the Druids there is not a word which does not appear to me perfectly credible. The same remark may be made of Strabo. But the