24
INTRODUCTION
pi. s-preterites : (b) -dearndsat (gl. II) and (f) tucsat (gl. III). There
is also an example of the Mid. Ir. 3 pi. perfect passive (h) rogatait
(gl. II). These few forms hardly constitute a body of dating evidence,
but are consistent with a 13th century origin.
The C commentary is linguistically more uniform than the A
glosses and commentary, and seems slightly earlier. It contains 17
examples of ro against none of do , and three examples of the 3 pi.
s-pret. ending (App. 2 (a) romillsid , tardsad, (d) rogabsad ) against
none with - r . The independent pronoun is attested in (c) roletair hi
and in the 3 pi. preterite passive (e), (f), (g) gabait iat. There are no
infixed pronouns.
The legible part of the D commentary contains two correctly used
infixed pronouns: noscomaitcend and nosbeir (App. 3 (c)). As the
infixed pronoun went out of use during the 12th century (6 Cathain,
ZCP xix 7; Hull, ZCP xxiv 138) it is unlikely that this section of
commentary was composed after 1200.
Finally, section (c) of the L commentary contains the early forms
it (3 pi. pres, indie, of the copula, replaced by is in Mod. Ir.) and
rordidsium (with ro and 1 pi. s-pret. ending).
LEGAL INTRODUCTION
BB is a tract of central importance for the history of the classical
legal texts themselves and also for the law of neighbourhood
(comaithches). These two ways in which BB is of significance are
connected, for part of the interest of BB as a tract comes from the
way the topic of bees is fitted, with some ingenuity, into the general
framework provided by the law of neighbourhood.
The usual, and correct, picture of the development of Irish law
distinguishes two main types of text. There is, first, the text which
in essence is a piece of oral instruction, of a permanent and formal
kind; it has been written down, but not transformed in the process
of writing. Such texts are in verse or consist either of old maxims
or what purport to be the instructions of an ancient sage to his pupil.
With the progress of Christianity, and the consequent availability
of writing, the form of texts changed from verse, maxim or the
instructions of a sage to more straightforward expository prose. It
was still technical, succinct, uncompromising prose, but not written
in a high or arcane style. Some of the old verse texts may be obscure
INTRODUCTION
25
because they were only the central pillar round which the teacher
built a whole framework of explanation and elaboration. That they
are so obscure may not be so much a matter of deliberate obfuscation
to intimidate the layman — presumably his opportunities to eavesdrop
on the teaching of an expert brithem must have been rare indeed — but
more because they were a teacher’s tools, not the full exposition to
be expected of a text-book which could be used by a layman.
It should be noted that this is a classification of text, not of tract.
Tracts often consist of archaic material alongside later text. Bretha
Crolige ‘ judgements of blood-lying ’ is mostly straightforward prose,
but from §58 ( Eriu xii 46) the style suddenly changes and until the
end it is mostly in the archaic mode. There is a similar change of
style in Bretha Dein Checht {Eriu xx 36, §25 marks the beginning of
the archaic material). Then again, archaic material may appear as
short quotations in later texts, as in CG 21-2, introduced by the
phrase amail arinchain fenechas, ‘ as the Fenechas sings it ’.
The importance of BB is that it provides an instrument by which
the second type of text, the ordinary prose text, can be better understood. In particular, BB can be made to show that the straightforward prose text went through at least two phases of development
even within the classical period.
The best known of Irish lawtracts, CG, is an excellent example of
a tract which has undergone the influence, in terms of form rather
than of matter, of the ecclesiastical schools, in particular the influence
of the writings of Latin grammarians. It is reasonable to speak of
a standard O. Ir. textbook prose, deriving from the texts and teaching
practices of Latin grammarians, which achieved widespread
popularity about A.D. 700. It cannot be much later, for CG, one of
the most securely dated (within a generation or so) of all O. Ir. texts,
is such a good example of the type.
A full discussion of this question must be kept for another place.1
It will be enough to establish that certain lawtracts employ three
devices that are characteristic of this textbook prose. The three
devices are, first, a form of question and answer in which the pupil
is understood to ask the question and the master replies ni anse ,
6 not difficult ’, and then gives the answer to the question. This form
is found in insular Latin and in O. Welsh as well as in O. Ir. {non
difficile ; nit abruid). The second device is that of enumeration,
1 Stadia Hibernica xx 141-162.26
INTRODUCTION
whereby a series of things of a given type is listed usually in answer
to the question, cis lirl The third is etymology, often in answer to
the question, cid ara n-eperr ? Sometimes alternative etymologies
are given as at the beginning of Isidore’s Etymologies ( Origines ):
B Comaithchesa ( CIH 64.6) and Corns Aitire ( CIH 597.4) begin with
such double etymologies.
BB does not contain these devices, nor does its sister- tract CU.
While both tracts are linguistically relatively homogeneous they
employ one form, enclitic -ch ‘ and ’ (for which see p. 13) which is
never used by tracts of the CG type except in quotations or in
longer passages of archaic material set in a later tract. This particular
linguistic form, enclitic -ch, is of importance in the history of Irish
lawtracts. It is found in the archaic material alongside tmesis,
Bergin’s law, sceo ‘ and ’ and an absence of the definite article and
of Christian Latin loanwords. It is found in later texts in the phrases
no-ch is, se-ch is and nach, but in other contexts it appears to have
gone out of use towards the end of the seventh century. Thus
enclitic -ch serves to distinguish an earlier group of lawtracts, or
parts of tracts, which belong definitely to the seventh rather than to
the eighth century and yet are not archaic in style. If, then, we are
to reserve the term ‘ archaic ’, as Professor Greene has recommended,1 for those texts and parts of texts in the high and arcane
style which contain such linguistic features as Bergin’s law, we must
admit that enclitic -ch is both archaic and also early but non-archaic,
while sceo is definitely archaic.
There is one definite objection to this argument, which is that
there is one example of enclitic -ch, no. 8 in Dr. Binchy’s collection,2
in the tract Corns Bescnai. This tract contains two of the three
elements of standard O. Ir. textbook prose: question and answer of
the ni anse type and enumeration. Moreover the example in
question comes from a passage seeking to make use of the Patrick
legend in order to justify Irish law in the face of Christian criticisms.3
It might be argued that this cannot have been composed until the
Armagh propagandists of the seventh century had developed the
legend to the point at which it was sufficiently well known and
1 D. Greene ‘ Archaic Irish in Indogermanisch und Keltisch ed. K. H.
Schmidt (Wiesbaden, 1977), 11-33.
2 D. A. Binchy, ‘IE Q%E in Irish ’, Celtica v 77-94.
3 Cf. D. A. Binchy, ‘ The Pseudo-historical Prologue to the Senchcis Mar ’ :
Studia Celtica x-xi 23f.
INTRODUCTION
27
sufficiently influential for it to be worthwhile using to justify the
native legal tradition. These are weighty arguments but they are not
unanswerable. First, Corns Bescnai is not, it seems, a homogeneous
tract. This in itself is nothing surprising: several texts, some already
mentioned, are heterogeneous in style and date. Corns Bescnai is
not so obvious a case, for it contains nothing that is clearly archaic,
but it does have short passages which have something of the archaic
manner (e.g. CIH 521.28-9; 522.1-4). In subject-matter it varies
from general material on contracts to highly specific regulations
limiting the value of grants by laymen to churches. The use of the
Patrick legend does not suggest any direct dependence on Muirchu.
This single example, then, is not a conclusive objection to the theory
which would draw a sharp line between the older, but not archaic,
texts of the BB type and the later texts which date from about A. D.
700.
BB , moreover, has a terminus post quem because of the references
to Congal Caech (see notes to §§31 and 32). This cannot be a later
insertion since it contains one of the examples of enclitic -eh. BB ,
therefore, must have been composed after Congal’s loss of the
kingship of Tara, which probably occurred not long before his
death at the battle of Mag Rath in 637. The text must, therefore, be
dated to the period c. 637 - c. 700.
The tracts in which -eh occurs, other than in the phrases no-ch is
and se-ch is, are worth reviewing as a group (see Binchy, Celtica v
83-90). It is, in fact, a very small group if we set aside archaic texts
and archaic portions of texts. The collection of Heptads, surprisingly
perhaps, is definitely one of the group, though in its case one must
make the qualification that the date of any particular heptad is not
the same thing as the date of the Heptads as a collection. An example
also occurs in a heptad probably inserted into the archaic text Din
Techtugud (Binchy’s no. 7). In this case an archaic text has been
edited in the early post-archaic period. There is, as has been observed
already, one example in the tract Corns Bescnai , and one also in the
tract Di Chetharslicht Athgabdlae (but this is easily the longest of
the tracts in the Senchas Mar and not homogeneous). A possible
example occurs in the tract later called D’Fodlaib Cineoil Tuaithi.1
We are left with two tracts: BB and Coibnius Uisci Thairidne ( CU ).
These, however, as Dr. Binchy has observed in his edition of CU,
were almost certainly the work of the same man.2
1 Celtica v 92 n. 1.
2 Eriu xvii 54.
28
INTRODUCTION
This man, the author, as I think we may justly call him, of these
two tracts, deserves some attention, for he may be the earliest
person to put together law-tracts in plain prose as distinct from the
archaic style of the traditional fenechas. BB is a relatively long text,
but even so, the number of examples of -ch shows that we are not
dealing with isolated or haphazard survivals. Moreover, use of
enclitic - ch cannot be dismissed as a stylistic phenomenon, for BB
is not distinguished in terms of style from several tracts which have
no specially early features. Hence it is good evidence for the date of
the text which accordingly must be pushed back into the seventh
century, probably towards the middle of the century. One may note
in passing that Hull’s claim, in his discussion of the date of Apgitir
Chrabaid,1 that such features as enclitic -ch ‘ are confined to
“ rhetorical ” texts, such as the oldest Irish lawtracts, which
remained uninfluenced by Latin learning and Christianity ’ is refuted
by BB and CU which could not conceivably be described as
‘ rhetorical ’. Thus it is a point against the traditional ascription of
Apgitir Chrabaid to Colman macc Beognai2 that the text contains
no examples.
Another tract which may be connected with BB and CU is Bretha
im fuillema gell ( BFG ) ‘ Judgements concerning pledge-interests \3
This shares a number of stylistic preferences with the other two tracts.
It immediately follows them in H.2.15A and probably did so in the
Senchas Mar , the major collection of tracts dated by Thurneysen to
the first half of the eighth century.4 It has the same type of colophon
(see note to §55), the same liking for, and tendency to impersonal use
of, the verb alid (see note to §2), the same tendency to use (/) neoch
ma rather than plain ma, the same fondness for the terms arise and
assae, not in the phrase ni arise but in references to legal problems,
1 Celtica viii 51.
2 Hull ( Celtica viii 49) takes the more archaic form of the name of the author of
Apgitir Chrabaid to be Colman maccu Beognae rather than Colman macc
Beognae. However, the evidence seems to point in the direction of macc not
maccu. The earliest mention of the saint is in Adomnan’s VSC, where he is
referred to as Columbanus filius Beogn{a)i (I 5; II 15) or Colman mocu Sailni
(I 5). In AT s.v. 610 ( RC xvii 169) the death is recorded of Colman Ela maic
hid Seilli , and in VSH i 258 his father is called Beogne. The MS tradition of
Apgitir Chrabaid ( Celtica viii 45-9) is divided evenly between mac ( filius ) and
maccu ( mac ui). The main early evidence for maccu is Fel. Oen. (Jan. 22) where
the MSS have mac{c ) hui and mac hua. To emend to macc would leave the line
one syllable short so we take maccu to be a mistake on the part of Oengus.
3 CIH 462-77.
4 ZCP xvi 186.INTRODUCTION
29
and, finally, the same unusually frequent use of the conjunction
ar (air) ’ because Yet BFG also uses the phrase ni anse which the
other two tracts do not; though it has examples of no-ch is it has no
other example of -ch outside this type of phrase. It is likely, on the
whole, that BFG derives from the same school as CU and BB , but
not from the same author and at a later date. A number of these
stylistic features can, of course, be paralleled elsewhere but the
extent to which these three tracts exhibit them clearly marks them
out from the generality of legal texts.
If these arguments are correct we have here a result of great
significance. The Senchas Mar had evidently won a position of
great influence by the end of the O. Ir. period at the latest. So much
is implied by its use, alongside the Munster lawbook Bretha Nemed ,
in Cormac’s Glossary.1 It is important to ask how it may have won
this position. One might suppose it to have begun life as the product
of a single school which then made its way against its rivals by its
intrinsic merits; or, alternatively, to have been the result of some
attempt by lawyers of different schools to establish an authoritative
corpus (authoritative, that is, within the law schools, not authoritative as legislation). Naturally such a question as this can hardly
be settled conclusively until more tracts have been carefully edited;
but the arguments advanced above do suggest quite strongly that
the second conclusion is correct, namely that the tracts included in
the Senchas Mar stem from more than one law school.
A partial parallel is the group identified by Thurneysen as the
work of the same man: Cain Iarraith, Cain Soerraith, Cain Aicillne,
Cain Lanamna ,2 Just as BB contains a reference to CU (in §11), so
does Cain Lanamna §1 refer back to Cain Soerraith and Cain
Aicillne. The group consisting of BB, CU and BFG is, however, the
more interesting in that it is apparently not the work of one author,
but the work of one school, and furthermore the work of that school
over two generations at least. It is only by establishing the separate
identity of the group consisting of BB, CU and BFG that one can
argue that the compiler of ‘ the four cana \ as the old introduction
to the Senchas Mar calls them,3 belonged to a different school.
1 Cormac’s Glossary (ed. from the Yellow Book of Lecan by Meyer, Anecdota
iv) nos. 50, 575, 584, 693, 970, 975.
2 Stud. E. Ir. Law 4.
3 ZCP xvi 176, §6.
30
INTRODUCTION
There may be other similar groups of tracts. A likely candidate
is a sequence of three tracts which appear one after the other in
H.2.15A {CIH 426-36): the tract on the fuidir, the tract called in the
MS D'fodlaib cineoil tuaithi and finally the tract called in the MS
Di dligiud raith -j somaine la flaith. The first two are evidently
connected since the first two sentences of the second tract contain
references back to the first ( CIH 429.14-15; 20-21). The second is
divided from the third by a short archaic passage (432.16-20); it
looks, however, as though the preceding sentences (432.12-13)
belong to the second tract but refer forward to the third. The second
and third begin with the same opening formula (429.14-15;
432.22-23). Here again we may well have the work of one compiler.
The Senchas Mar appears to be a lawbook made up not just of tracts
but of groups of tracts; and these groups may be distinguished as
much by belonging to different schools as by being the work of
different compilers. It is likely that these schools belonged to Leth
Cuinn and, in particular, to the territory of the Northern Feni (see
last note to §33). Munster had its own leading lawbook, the Bretha
Nemed;1 the schools of the Ulaid and the Laigin may be unrepresented in the surviving legal texts.
BB is an unusually well organized tract. This may be due in part
to its homogeneity, though the same praise cannot be given to its
sister tract, CU. By scrutinizing BB in detail it is possible to reveal
something of the intellectual procedures of an Irish lawyer of the
seventh century.
The structure of the tract is as follows:
1. The keeper of a new hive and his neighbours: §§1-26:
(a) tairgille, ‘ fore-pledge ’ : §§1-3;
(b) teora bUadnai solve , ‘ three years of immunity ’ : §§4-10:
(c) cobdaili saithe, ‘divisions of swarms’: §§11-26; with
excursus on fidbretha: §§12-17.
2. Injuries to persons: §§27-35:
(a) general distinction between injuries which do not incur
liability and those which do: §§27-29;
(b) blinding: §§30-35.
1 D. A. Binchy, ‘ Bretha Nemed Erin xvii 4-6; of. xviii 44-54.INTRODUCTION
31
3. Acquiring and retaining ownership of swarms and their
produce: §§36-49:
(a) tracked bees: §§36-43:
i. settle in the tree of a nemed : §§36-38;
ii. settle on the branches/open land/spread cloth of a
nemed : §§39-41;
iii. settle on the branches/open land/spread cloth of a
non -nemed : § §42-43 ;*
(b) bees not tracked but origin more or less provable :
§§44-45;
(c) bees found : §§46-49:
i. in a faithche : §§46-47;
ii. outside the faithche : §48 ;
iii. in forest, unshared land or inaccessible country:
§49.
4. Thefts of bees: §§50-54:
i. in a les or lubgort : §§50-51 ;
ii. in a faithche : §52;
iii. outside the faithche: §53;
iv. theft by a man entitled to a share: §54.
5. Colophon: §55.
Comments on the details will be left to the notes, but some
discussion of the plan of the tract is necessary here. The author of
the tract is interested in two main topics: the problem of fitting a
new hive into an existing framework of rules governing relations
between neighbours and the problems of ownership caused by
swarming. Personal injuries committed by bees are of less interest
to him apart from the leading case concerning Congal Caech and
the kingship of Tara.
The first principal topic is, then, the problem of fitting a new
hive into the law of comaithches, neighbourhood. As can be seen
from the plan of the text given above the main preoccupation here
is with cobdaili saithe, dividing the swarms so that the neighbours
1 The large initial B at this point in both A and B is clearly an error which
demonstrates a textual connection between the two MSS.
32
INTRODUCTION
get a swarm each after they have allowed the first bee-keeper three
years of immunity for his bees. One must remember that the basis
of the law of neighbourhood was a group of neighbours who each
gave a tairgille ‘ preliminary pledge, fore-pledge ’ to the rest that
they would pay compensation for a range of offences, typically
trespass by farm animals. This group of neighbours was often,
particularly in the earlier period, regarded as a kindred. The term
comaithches itself, ‘ neighbourhood ’, is sometimes used in a concrete
sense for such a group of neighbours.1
Bees plainly are not to be compared with the usual offenders in
the law of comaithches , cows, pigs and other farm animals. The
author of BB, however, is determined to envelop them in the same
network of rules, although others were not prepared to go as far as
he does (see note to §1). It may well be thought that, in his determination to treat a bee as if it were not so different from a cow,2 he
lands himself in absurdity (cf. §8). But he had his reasons, and we
should pause before condemning him outright. Like many lawyers,
perhaps, he has two ends in view: first, he wants to secure a certain
solution to possible disputes or legal problems; and, secondly, he
wishes to do so at a minimum cost in terms of disturbance to
established principles and institutions. The solution he is aiming at
is to give the new hive a period in which to get established and to
bring some return to the bee-keeper, the three years of immunity,
but then, and this is important, to give the neighbours, the comaithig ,
their chance to establish their own hives from the swarms sent out
by the first hive. In essence this is an arbitrator’s compromise
between the claims of the bee-keeper and those of the neighbours.
The bee-keeper has all the rights of an owner; but if the neighbours
are indeed his kinsmen they may well press for some share in the
rewards of his new enterprise. The proposed solution has much to
recommend it: it gives the owner his temporary immunity and yet
gives the neighbours their swarms. Once the neighbours have
received their swarms they too will enjoy a period of immunity after
which everyone will be on the same footing. The solution protects
the first bee-keeper and yet spreads the new asset throughout the
group of neighbours.
1 Cf. 1. 23 of the poem ed. D. A. Binchy, Celtica ix 157.
2 Cf. CIH 1531.13 . . . is a[i]r doforgealait bai -j beith ( = beich ) ‘it is on it
(the land) that cows and bees graze’ (O’Dav. 1611).
INTRODUCTION
33
It should be noticed that our lawyer takes a similar line in CU.
There his problem is that the water-mill is being established on the
land of one neighbour, but the mill-race is likely to come across, or
start in, the land of the others. The solution allows them each to use
the mill gratis on a fixed rotation, just as the neighbours in BB get
their swarms gratis.
On the whole, the author of BB is successful in arriving at his
solution without doing violence to established legal principles.
Common sense may occasionally be strained; analysis may be
confused; but his approach as a whole has much to be said for it.
This approach is built upon the idea that one should arrive at a
solution for a particular legal problem by analogies drawn from
neighbouring legal topics. In this case the topics drawn upon by
the author of BB in order to find his analogies are, first, the law
governing trespass by such farm-animals as cows or pigs, and,
secondly, the law concerning trees, fidbretha. If cows trespass, so
do bees, and they may even, like cows, be considered to do damage
(i orcun ) to the land on which they trespass (§ §3, 7, 8). Naturally this
seems a little far-fetched; but it is a doctrine which has most valuable
consequences. Trespass and damage require compensation, and
hence the first bee-keeper is unavoidably a debtor to his neighbours.
Without this doctrine our lawyer would have had difficulty in arriving
at his solution by which the neighbours had a claim to the swarms.
Moreover it means that bees can be fitted immediately into the law
of neighbourhood and the institution of the group of comaithig.
At this point, however, the author of BB runs up against the
problem that the neighbours may demand the usual smachta 4 fines ’
for trespass. These were usually payable in sacks of grain ( CIH
66.32ff. ; 70.3ff.). But this is not at all the solution he has in mind.
Hence he summons another analogy to his aid, that of the division
of the fruit of a tree which overhangs a neighbour’s land. It is from
this source that he derives the cycle of three years of immunity and
one year (or two) in which swarms go to the neighbours. The
parallel is that the owner of the land on which the fruit falls is
entitled to keep it all in the fourth year, but in the first three years he
must share it equally with the owner of the tree (§§12-13). It might
be said with justice that the parallel is very imperfect: after all, in
the case of bees the bee-keeper is entitled to complete immunity,
not to a half share of the honey or the swarms. But our lawyer passes
with some agility over this small crevice in his path towards his
34
INTRODUCTION
predetermined solution. At the end of the excursus on fidbretha there
is a sentence pertaining to bees (§17). This has to do with the very
same tree which overhangs the neighbour’s land. Bees are supposed
to have settled on the overhanging branch and no third party has a
claim. Who gets the torad — the owner of the tree or the owner of
the land over which the branch hangs ? Ni arise, not difficult, as he
might have said had he written a generation or two later: for three
years they divide it in two. Then he adds the rather opaque remark
acht is in tire assa n-asa bunad in toraid ‘ but it is to [the owner of]
the land from which it (the tree) grows that the source of the produce
belongs This marks the point at which the parallel again fails. In
the fidbretha the owner of the land on which the fruit falls gets all
of it in the fourth year; then the cycle will repeat itself. With bees,
as we are to discover later in the tract, the crucial question is to whom
does the swarm, as distinct from a share of the honey, belong. There
is no such problem with the fruit of a tree. The reason why the
problem is crucial is that bees swarm. If the origin of a swarm can
be shown, the owner of the hive from which the swarm came has a
claim, the extent of which varies according to circumstance. Hence
the issue of ownership is crucial, and is settled by the clause quoted
above. We are, however, never told what happened to the torad ,
‘ produce ’, of those bees in the fourth year. The parallel, then, is
still imperfect, but it is nonetheless useful in order to tie together the
analogy from fidbretha and the deduction from that analogy.
We may be able to guess what happened in the fourth year; or,
even, our lawyer may have thought us able to deduce it from what he
says. The case of the bees settling on the overhanging branch is an
unusual one: the usual case is of a new hive being established within
one holding, perhaps through swarming, perhaps through purchase.
In that case the new bee-keeper, as we have seen, enjoys three years
of immunity and in the fourth year the swarms go to the neighbours
in turn. It is very likely that, in the case of the overhanging branch,
the neighbour over whose land it hung got the first swarm in the
fourth year, in accordance with the next sentences, §§18-19. Moreover, in the fourth year the owner of the bees gets none of the swarms,
just as in the fourth year the owner of the tree got none of the fruit.
There remains the transition from torad in the sense of honey (and
wax) to swarms, but at least the scheme of three years plus one year
works with the exception of the fourth neighbour who must wait
until the fifth year (§22). These imperfections in the analogy do not
INTRODUCTION
35
really matter greatly, except that they show that the origin of the
scheme of three years plus a fourth year belongs to fidbretha not to
bechbretha.
At this point our lawyer may be said to be coping skilfully with
his problem. But he undoubtedly blots his copy-book with another
venture in analogy, that of the sharing of land by kinsmen (§§11, 18).
On the details see notes on §2 (second note) and §18. This analogy
serves the purpose of introducing a multiplicity of neighbours and
affirming an order of precedence between them. Unfortunately, the
needs of the argument require, as is shown in the note on §2, two
inconsistent forms of the analogy.
In the end, therefore, there are both good and bad aspects of
the treatment of the first topic. The solution itself seems intelligent
and satisfactory, but while the means used to get there are sometimes
ingenious enough the author of BB is insufficiently alive to the
inconsistencies in his approach. For modern scholars his use of
analogy has considerable value, for it enables us to gain information
on other aspects of Irish society in the seventh century than the
keeping of bees, and, above all, some appreciation of the methods
of work of an Irish lawyer attempting to write a manual for his
colleagues on a particular range of problems.
The second part of the tract, covering injuries to persons, is on
the whole less instructive than the first and the third. It shows that
‘ leading cases ’ were not confined entirely to events of the legendary
past (§§31-33). The uses of very general maxims are illustrated by
§34 as they are, even more strikingly, by §24 in the first part. §34
again demonstrates the use of analogy.
The third part of the tract, however, is more interesting for
further hints it gives of the way the author worked. He is interested
in problems, and is ready to declare them to be 4 most difficult ’ or
4 no easier ’ (§§1, 36, 39). Not for him the formulaic 4 not difficult ’,
manse , of later compilers or authors; for them nothing was difficult.
Our author seems to relish being impaled upon the horns of a
dilemma (§36), before offering his solution (§37). For his specially
difficult problems he has two approaches. We meet the first in §§1-3 :
it may be termed the problem-solution-justification approach. It
is expressed in the following terms: Annsam i A B. Alid side) son C,
ar D. 4 Most difficult in A is B. That (the problematic situation)
entails C (the solution), because D (the justification)’. The second
approach may be called the problem-justification-solution approach;
36
INTRODUCTION
it is used in §§36-41. It goes like this: ‘ Most difficult (or no easier)
in A is B, for C (justification) D (solution)’. This second approach
is the less obvious and thus deserves particular attention. The first
example is §§36-38. The problem is stated as beich thetechtai gaibte
crann n-uasalnemid ‘ tracked bees which settle in the tree of a noble
dignitary ’. We then have the statement of a dilemma, which explains
why the problem is 1 no easier but also excludes two solutions, and
so leads on to the solution actually adopted in §§37-38; noch ni asu
a beim in chrainn fo bith ind nemid na asu dano a tuaslucud , ‘ for it
is not easier to cut the tree on account of the dignitary nor is it
easier to release them ’. This implies that the owner of the hive from
which the swarm came will never recover possession of them; and,
once this is accepted, the solution proposed in §§37-38 becomes, at
least in its main lines, inevitable. The other example, §§39-41, is
rather different. In this case the explanation of the difficulty of the
problem goes on to provide a solution, for bees are listed in the
heptad as the first of the exceptions to the general rule which creates
the problem ( cam dimet ind nemid ni doda-airret ? ‘ do not the
dignitaries protect anything which comes to them?’).
These are the special problems, but the same approaches are
used for others, less difficult. For example in §42 the problem is
stated ( Bretha bairr i maigne di neoch do-etegar acht arddnemed );
the solution is introduced by the phrase dilid-son and a justification
is given in terms of a general maxim. Usually, for the lesser problems
of the second half of the tract, no justification is given: the general
principles are by now clear and any further explanation is otiose.
What is retained is a problem-solution approach. The problem is
stated by means of a nominativus pendens construction on which
depend one or more relative clauses. The syntax can become unwieldy
as in the highly complex §45 (see notes), but usually it is straightforward as in §§46-49 on finding bees.
Two final questions must be asked. What kind of a man was the
author of BBl And for whom did he compile BB1 Professor Binchy
has raised a major question in the introduction to CIH (pp. ix-x).
Were clerics responsible for writing down the lawtracts, or were
they professional lay jurists? A full discussion of this problem is
out of the question here, but the evidence of BB is very pertinent and
may be considered briefly. The easiest approach is to consider the
second question first, the question of the intended audience, or
readership, of the text. The archaic texts are evidently composed
INTRODUCTION
37
for actual or intending judges, brithemain. Often they will be openly
addressed to a pupil, and thus contain such phrases as diamba brithem
arafeser, ‘ if you would be a judge you should know . . .’. A similar
phrase, but not in the second person, has already been noted as the
opening formula of some tracts which are not archaic ( CIH
429.14-15; 432.22-23): ‘the man who does not know . . . is not
capable of being a judge ’. BB confirms this impression. Problems
are difficult for brithemain (§36). The whole purpose of the enterprise
is to establish what are the correct bretha , ‘judgements’ ( § §3, 11,
12, 31, 33, 42, 55). These are not references to case-law, to particular
bretha by particular judges, for Irish law hardly ever refers to cases
(§31 is exceptional, possibly unique). Rather our author thinks of
his bretha as the opinions of learned and authoritative lawyers on
particular issues. These learned and authoritative bretha should
then determine the bretha given by judges in actual cases (cf. §55).
There can be little doubt, then, that BB is a professional tract
designed to instruct actual or prospective judges.
The importance of BB and similar tracts for this question is
that they are not archaic. For archaic texts, such as Din Techtugud ,
one must distinguish between the composition of the text and its
being written down. The two events may have been separated by a
considerable interval. Thus one may attribute the composition to a
lawyer addressing other lawyers but the writing down to a cleric
bringing arcane learning to a wider, ecclesiastical audience. For the
later, non-archaic, texts, things are not so simple. Some of them are
composed in a style owing much to Latin learning.
Even those for which this is not true, BB for example, are
composed as written texts. The archaic tract could form a stable
part of the legal tradition because of its style: it was probably, as
was remarked earlier, the central pillar round which other teaching
was organised. Its brevity and its high and solemn manner enabled
it to gain this position of a stable centre in the tradition. But the
later tracts gained their position in the tradition only by being
written. It was because they were written from the beginning that
they had no need of a special solemn mode of composition and so
could be composed in straightforward prose, albeit succinct and
technical. BB , therefore, and tracts like it, were written, not merely
composed, for professionals. There can be no sharp distinction in
their case between composition and writing. But the only person
who could aspire, as does the author of BB , to carry weight among