The first two of the published volumes[1] contain the[Pg 584] Seanchus Mór [Shan?χus more], which includes a preface to the text, in which we are told how and where it was put together and purified, and the law of Athgabhail or Distress7. The second volume contains the law of hostage-sureties, of fosterage, of Saer-stock tenure8 and Daer-stock tenure, and the law of social connexions. The third volume contains the so-called Book of Acaill, which is chiefly concerned with the law relating to torts and injuries. It professes9 to be a compilation10 of the dicta and opinions of King Cormac mac Art, who lived in the third century, and of Cennfaeladh, who lived in the seventh.[2] The fourth volume of the Brehon law consists of isolated11 law-tracts12 such as that on "Taking possession," that containing judgments14 on co-tenancy, right of water, divisions of land, and the celebrated16 Crith Gabhlach which treats of social ranks and organisation17.
The text itself of the Seanchus Mór, which is comprised in the first two published volumes, is comparatively brief, but what swells18 it to such a size is the great amount of commentary in small print written upon the brief text, and the great amount of additional annotations19 upon this commentary itself. Whatever may have been the date of the original laws, the bulk of the text is much later, for it consists of the commentaries added by repeated generations of early Irish lawyers piled up as it were one upon the other.
Most of the Brehon law tracts derive20 their titles not from individuals who promulgated21 them, but either from the subjects treated of or else from some particular locality connected with the composition of the work. They are essentially22 digests rather than codes, compilations23, in fact, of learned lawyers. The essential idea of modern law is entirely24 absent from them, if by law is understood a command given by some one possessing authority to do or to forbear doing, under pains and penalties. There appears to be, in fact, no sanction laid down in the Brehon law against those who violated its maxims25, nor[Pg 585] did the State provide any such. This was in truth the great inherent weakness of Irish jurisprudence, and it was one inseparable from a tribal26 organisation, which lacked the controlling hand of a strong central government, and in which the idea of the State as distinguished27 from the tribe had scarcely emerged. If a litigant28 chose to disregard the brehon's ruling there was no machinery29 of the law set in motion to force him to accept it. The only executive authority in ancient Ireland which lay behind the decision of the judge was the traditional obedience30 and good sense of the people, and it does not appear that, with the full force of public opinion behind them, the brehons had any trouble in getting their decisions accepted by the common people. Not that this was any part of their duty. On the contrary, their business was over so soon as they had pronounced their decision, and given judgment15 between the contending parties. If one of these parties refused to abide31 by this decision, it was no affair of the brehon's, it was the concern of the public, and the public appear to have seen to it that the brehon's decision was always carried out. This seems to have been indeed the very essence of democratic government with no executive authority behind it but the will of the people, and it appears to have trained a law-abiding and intelligent public, for the Elizabethan statesman, Sir John Davies, confesses frankly32 in his admirable essay on the true causes why Ireland was never subdued33, that "there is no nation or people under the sunne that doth love equall and indifferent justice better than the Irish; or will rest better satisfied with the execution thereof although it be against themselves, so that they may have the protection and benefit of the law, when uppon just cause they do desire it."
The Irish appear to have had professional advocates, a court of appeal, and regular methods of procedure for carrying the case before it, and if, a brehon could be shown to have delivered a false or unjust judgment he himself was liable to damages. The brehonship was not elective; it seems indeed[Pg 586] in later times to have been almost hereditary34, but the brehon had to pass through a long and tedious course before he was permitted to practise; he was obliged to be "qualified35 in every department of legal science," says the text; and the Brehon law was remarkable36 for its copiousness37, furnishing, as Sir Samuel Ferguson remarks, "a striking example of the length to which moral and metaphysical refinements38 may be carried under rude social conditions." As a makeweight against the privileges which are always the concomitant of riches, the penalties for misdeeds and omissions39 of all kinds were carefully graduated in the interests of the poor, and crime or breach40 of contract might reduce a man from the highest to the lowest grade.
There is little intimation in the laws as to their own origin. Like the Common Law of England, to which they bear a certain resemblance, they appear to have been in great part handed down from time immemorial, probably without undergoing any substantial change. It is curious to observe how some of the typical test-cases carry us back as far as the second century. Thus the very first paragraph in the Law of Distress—one of the most important institutions among the Irish, for Distress was the procedure by which most civil claims were made good—runs thus:[3]
"Three white cows were taken by Asal from Mogh, son of Nuada, by an immediate41 seizure42. And they lay down a night at Lerta on the Boyne. They escaped from him and they left their calves43, and their white milk flowed upon the ground. He went in pursuit of them, and seized six milch cows at the house at daybreak. Pledges were given for them afterwards by Cairpre Gnathchoir for the seizure, for the distress, for the acknowledgment, for triple acknowledgment, for acknowledgment by one chief, for double acknowledgment."
But these things are supposed to have happened in the days[Pg 587] of Conn of the Hundred Battles, yet the case remained a leading one till the sixteenth century.
The Brehon laws probably embody44 a large share of primitive45 Aryan custom. Thus it is curious to meet the Indian practice of sitting "dharna" or fasting on a debtor46 in full force amongst the Irish as one of the legal forms by which a creditor47 should proceed to recover his debt.[4] "Notice," says the text of the Irish law,
"precedes every distress in the case of inferior grades, except it be by persons of distinction or upon persons of distinction; fasting precedes distress in their case. He who does not give a pledge to fasting is an evader49 of all. He who disregards all things shall not be paid by God or man. He who refuses to cede48 what should be accorded to fasting, the judgment upon him according to the Feini [brehon] is that he pay double the thing for which he was fasted upon, [but] he who fasts notwithstanding the offer of what should be accorded to him, forfeits50 his legal right to anything according to the decision of the Feini."
There were, according to Irish history, four periods at which special laws were enacted51 by legislative52 authority, first during the reign53 of Cormac mac Art in the third century, secondly54 when St. Patrick came, thirdly by Cormac mac Culinan the king-bishop of Cashel, who died in 903, and lastly by Brian Boru about a century later. But the great mass of the Brehon Code appears to have been traditionary, or to have grown with the slow growth of custom. None of the Brehon Law books so far as they have as yet been given to the public, shows any attempt to grapple with the nature of law in the abstract, or to deal with the general fundamental principles which underlie55 the conception of jurisprudence. A great number of the cases, too, which are raised for discussion in the law-books, appear to be rather possible than real, rather problematical cases proposed by a teacher to his students to be argued upon according to general principles, than as actual serious subjects for legal discussion.[Pg 588] This is particularly the case with a great part of the Book of Acaill.
The part of the Brehon Law called the Seanchus Mór was redacted in the year 438, according to the Four Masters, "the age of Christ 438, the tenth year of Laeghaire, the Seanchus and Feineachus of Ireland were purified and written." Here is how the book itself treats of its own origin:
"The Seanchus of the men of Erin—what has preserved it? The joint56 memory of two seniors; the tradition from one ear to another; the composition of poets; the addition from the law of the letter; strength from the law of nature; for these are the three rocks by which the judgments of the world are supported."
The commentary says that the Seanchus was preserved by Ross, a doctor of the Béarla Feini or Legal dialect, by Dubhthach [Duffach], a doctor of literature, and by Fergus, a doctor of poetry.
"Whoever the poet was that connected it by a thread of poetry before Patrick, it lived until it was exhibited to Patrick. The preserving shrine57 is the poetry, and the Seanchus is what is preserved therein."[5]
Dubhthach exhibited to Patrick—
"The judgments and all the poetry of Erin, and every law which prevailed among the men of Erin through the law of nature and the law of the seers, and in the judgments of the island of Erin and in the poets.... 'The judgments of true nature,' it tells us, 'which the Holy Ghost had spoken through the mouths of the brehons and just poets of the men of Erin from the first occupation of this island 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 in the New Testament58 and with the consensus59 of the believers, was confirmed in the laws of the brehons by Patrick and by the ecclesiastics60 and the chieftains of Erin; for the law of nature had been quite right, except the faith and its obligations, and the harmony of the church and the people—and this is the Seanchus Mór."
[Pg 589]
M. d'Arbois de Jubainville,[6] however, has shown that the Seanchus Mór is really made up of treatises belonging to different periods, of which that upon Immediate Seizure is the oldest. While some of the other treatises must be of much later date, this tract13, he has proved, cannot in its present form be later than the close of the sixth century, because it contains no trace of the right of succession accorded to women by an Irish council of about the year 600, while at the same time it cannot be anterior61 to the introduction of Christianity, because it contains mention of altar furniture amongst things seizable, and contains two Latin words, altoir (altar) and c?s (cinsus = census).[7] This, however, does not wholly discredit62 the tradition that St. Patrick had a hand in the final redaction of at least a part of the Seanchus Mór, for altars were certainly known in Ireland before Patrick, and the insertion of the clause about altar furniture may even have been due to the apostle himself. How far certain parts of the law may have reached back into antiquity63 and become stereotyped64 by custom before they became stereotyped by writing there is no means of saying. But, as M. d'Arbois de Jubainville has pointed65 out, the Seanchus Mór is closely related to the Cycle of Conor and Cuchulain, as the various allusions66 to King Conor, and to his arch-brehon Sencha, and to Morann the Judge, and to Ailill, and to the custom of the Heroes' Bit, show, while the cycle of Finn and Ossian is passed over.
There are many allusions to the Seanchus Mór in Cormac's Glossary68, always referring to the glossed70 text, which must have been in existence before the year 900.[8] Again the text of the Seanchus Mór relies upon judgments delivered by ancient brehons[Pg 590] such as Sencha, in the time of King Conor mac Nessa, but there is no allusion67 in its text to books or treatises. The gloss69, on the other hand, is full of such allusions, and it is evident that in early times the names of the Irish Law Books were legion. Fourteen different books of civil law are alluded71 to by name in the glosses72 on the Seanchus, and Cormac in his Glossary gives quotations73 from five such books. It is remarkable that only one of the five quoted by Cormac is among the fourteen mentioned in the glosses on the Seanchus Mór, and this alone goes to show the number of books upon law which were in use amongst the ancient Irish, most of which have long since perished.
********
[1] Published in 1865 and 1869.
[2] For him see above p. 412.
[3] This passage was already so old in the time of Cormac mac Cuilennáin or Culinan, who died in 907, that it required a gloss, for Cormac in his Glossary refers to the gloss on the passage.
[4] See p. 229 for a case of fasting on a person.
[5] Vol. i. p. 31.
[6] "Cours de Littérature celtique," tome vii. "études sur le droit Celtique," II. partie, chap. 2.
[7] Modern cíos, "rent." "Census," according to M d'Arbois de Jubainville, was pronounced "kêsus," and had a variant74 cinsus in Low Latin pronounced "c?sus," whence Irish c?s and German Zins.
[8] See under the words Athgabail, Flaith, Ferb, Ness, as Jubainville has pointed out.
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treatises
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| n.专题著作，专题论文，专著( treatise的名词复数 ) | |
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determined
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| adj.坚定的；有决心的 | |
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transcribing
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| （用不同的录音手段）转录( transcribe的现在分词 )； 改编（乐曲）（以适应他种乐器或声部）； 抄写； 用音标标出（声音） | |
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vicissitudes
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| n.变迁，世事变化；变迁兴衰( vicissitude的名词复数 )；盛衰兴废 | |
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transcribed
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| （用不同的录音手段）转录( transcribe的过去式和过去分词 )； 改编（乐曲）（以适应他种乐器或声部）； 抄写； 用音标标出（声音） | |
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accomplished
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| adj.有才艺的；有造诣的；达到了的 | |
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distress
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| n.苦恼，痛苦，不舒适；不幸；vt.使悲痛 | |
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tenure
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| n.终身职位；任期；(土地)保有权，保有期 | |
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professes
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| 声称( profess的第三人称单数 )； 宣称； 公开表明； 信奉 | |
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compilation
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| n.编译，编辑 | |
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isolated
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| adj.与世隔绝的 | |
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tracts
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| 大片土地( tract的名词复数 )； 地带； （体内的）道； （尤指宣扬宗教、伦理或政治的）短文 | |
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tract
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| n.传单，小册子，大片(土地或森林) | |
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judgments
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| 判断( judgment的名词复数 )； 鉴定； 评价； 审判 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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celebrated
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| adj.有名的，声誉卓著的 | |
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organisation
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| n.组织，安排，团体，有机休 | |
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swells
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| 增强( swell的第三人称单数 )； 肿胀； （使）凸出； 充满（激情） | |
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annotations
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| n.注释( annotation的名词复数 )；附注 | |
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derive
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| v.取得；导出；引申；来自；源自；出自 | |
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promulgated
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| v.宣扬（某事物）( promulgate的过去式和过去分词 )；传播；公布；颁布（法令、新法律等） | |
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essentially
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| adv.本质上，实质上，基本上 | |
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compilations
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| n.编辑，编写( compilation的名词复数 )；编辑物 | |
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entirely
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| ad.全部地，完整地；完全地，彻底地 | |
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maxims
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| n.格言，座右铭( maxim的名词复数 ) | |
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tribal
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| adj.部族的，种族的 | |
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distinguished
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| adj.卓越的，杰出的，著名的 | |
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litigant
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| n.诉讼当事人；adj.进行诉讼的 | |
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machinery
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| n.(总称)机械，机器；机构 | |
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obedience
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| n.服从，顺从 | |
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abide
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| vi.遵守；坚持；vt.忍受 | |
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frankly
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| adv.坦白地，直率地；坦率地说 | |
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subdued
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| adj. 屈服的，柔和的，减弱的 动词subdue的过去式和过去分词 | |
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hereditary
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| adj.遗传的，遗传性的，可继承的，世袭的 | |
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qualified
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| adj.合格的，有资格的，胜任的，有限制的 | |
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remarkable
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| adj.显著的，异常的，非凡的，值得注意的 | |
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copiousness
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| n.丰裕，旺盛 | |
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refinements
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| n.（生活）风雅；精炼( refinement的名词复数 )；改良品；细微的改良；优雅或高贵的动作 | |
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omissions
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| n.省略( omission的名词复数 )；删节；遗漏；略去或漏掉的事（或人） | |
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breach
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| n.违反，不履行；破裂；vt.冲破，攻破 | |
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immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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seizure
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| n.没收；占有；抵押 | |
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calves
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| n.(calf的复数)笨拙的男子，腓；腿肚子( calf的名词复数 )；牛犊；腓；小腿肚v.生小牛( calve的第三人称单数 )；（冰川）崩解；生（小牛等），产（犊）；使（冰川）崩解 | |
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embody
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| vt.具体表达，使具体化；包含，收录 | |
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primitive
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| adj.原始的；简单的；n.原(始)人，原始事物 | |
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debtor
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| n.借方，债务人 | |
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creditor
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| n.债仅人，债主，贷方 | |
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cede
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| v.割让，放弃 | |
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evader
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| 逃避者，逃避物 | |
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forfeits
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| 罚物游戏 | |
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enacted
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| 制定（法律），通过（法案）( enact的过去式和过去分词 ) | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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reign
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| n.统治时期，统治，支配，盛行；v.占优势 | |
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secondly
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| adv.第二，其次 | |
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underlie
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| v.位于...之下，成为...的基础 | |
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joint
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| adj.联合的，共同的；n.关节，接合处；v.连接，贴合 | |
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shrine
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| n.圣地，神龛，庙；v.将...置于神龛内，把...奉为神圣 | |
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testament
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| n.遗嘱；证明 | |
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consensus
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| n.(意见等的)一致，一致同意，共识 | |
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ecclesiastics
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| n.神职者，教会，牧师( ecclesiastic的名词复数 ) | |
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anterior
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| adj.较早的；在前的 | |
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discredit
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| vt.使不可置信；n.丧失信义；不信，怀疑 | |
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antiquity
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| n.古老；高龄；古物，古迹 | |
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stereotyped
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| adj.(指形象、思想、人物等)模式化的 | |
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pointed
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| adj.尖的，直截了当的 | |
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allusions
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| 暗指，间接提到( allusion的名词复数 ) | |
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allusion
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| n.暗示，间接提示 | |
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glossary
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| n.注释词表；术语汇编 | |
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gloss
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| n.光泽，光滑；虚饰；注释；vt.加光泽于；掩饰 | |
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glossed
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| v.注解( gloss的过去式和过去分词 )；掩饰（错误）；粉饰；把…搪塞过去 | |
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alluded
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| 提及，暗指( allude的过去式和过去分词 ) | |
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glosses
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| n.（页末或书后的）注释( gloss的名词复数 )；（表面的）光滑；虚假的外表；用以产生光泽的物质v.注解( gloss的第三人称单数 )；掩饰（错误）；粉饰；把…搪塞过去 | |
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quotations
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| n.引用( quotation的名词复数 )；[商业]行情（报告）；（货物或股票的）市价；时价 | |
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variant
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| adj.不同的，变异的；n.变体，异体 | |
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