Historical Notes: Irish in legal stew over tanistry

WHO WOULD have thought that the ancient Irish law system, whose first known codification was in AD 438 and which was abolished by English statute and common law in the 17th century, would be the subject of litigation and international legal controversy today?

The irony, moreover, is that, while the Irish Republic is trying to give the last, swift kick to this old Gaelic law, lawyers are advising the Irish government that international law is firmly on the side of those claiming redress under the ancient law system.

When I started writing tales of adventures in seventh-century Ireland, in 1993 hardly anyone outside academia had even heard of the Brehon Law, so called from the Irish word breitheamh - a judge. Today, the Internet is fairly humming with comment on the system which was purported to have been set in place in the eighth century BC by the High King Ollamh Fodhla.

The current controversy is concerned with the dynastic succession of Gaelic titles. All Gaelic titles were abolished and made "utterly extinct" under English statute and common law in the period 1541-1613 during the Tudor conquests of Ireland.

In 1944 the Irish State decided to give "courtesy recognition" to a number of surviving heads of families descending from the old Gaelic kings and nobles who still claimed those titles. But the Chief Herald of Ireland insists on only giving this social courtesy on the basis of primogeniture, not under the Gaelic tanistry system where younger sons, uncles and cousins succeeded equally by the agreement of the family.

Enter the MacCarthy Mor, Prince of Desmond, whose lineage and titles, descending by the old Gaelic law of dynastic succession from the Kings of Munster and Desmond, are recognised by such luminaries as the Castile and Leon King of Arms of Spain, by several other international heralds and by judgments in an Italian Court of Arbitration. He was even recognised by the Chief Herald of Ireland in 1991, after a six-year investigation, in spite of the fact that he had never claimed his title under primogeniture.

MacCarthy Mor, as a published historian and heraldic expert, has, for 20 years, been an outspoken critic of the Irish Chief Herald's policy of recognising Gaelic titles by the law which made them "extinct forever".

Last month, and with a new Chief Herald at the helm, the Irish State has announced it is considering "de-recognising" MacCarthy Mor because recognition must be under primogeniture and not under the ancient Irish law system. To add insult to injury, the Chief Herald announced he is considering recognising the great-nephew of an eccentric old British India judge who adopted the title "MacCarthy Mor" as a name by deed poll back in 1921.

International lawyers, genealogists and heralds, as well as Celtic scholars, are now having a field day. International law clearly states that no successor state, such as a republic like Ireland, can retrospectively change the dynastic laws of succession practised in a predecessor state such as the Gaelic kingdoms of Ireland which finally disappeared in 1603. Gaelic titles can only descend by Gaelic law succession.

Today the websites and Internet are positively buzzing with pro-Brehon Law lobbyists and MacCarthy Mor supporters.

It seems a long time ago when one of my Celtic Studies students asked me to write some short stories to demonstrate how a woman could be a lawyer in seventh-century Ireland and how the ancient law system worked. Was there something in the ether? For I made my sleuth, Fidelma, a sister of King Colgu of Cashel; that would make her the 37 times great-aunt of the current MacCarthy Mor.

Peter Tremayne is the author of `The Monk Who Vanished' (Headline pounds 5.99)