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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