Ancient Law

As in law and all other branches of learning some knowledge of one system is useful in the study of any other system, so also one cannot well appreciate the relative proportions and importance of what belongs to one nation without taking some account of the condition in the same respect at the same period of neighbouring nations with which a comparison may be instituted. For this reason I think our present subject should be introduced by a preliminary notice of the condition of law in early times in neighbouring nations with which we are liable to be compared. We can, however, scarcely do more than glance at one such nation; and remembering where we are, and the circumstances of our country, the English nation seems the most appropriate for our purpose.

The first collection of Saxon laws into writing was made under Æthelbirht, king of Kent, after Saint Augustine had converted him to Christianity and baptised him. This occurred about the beginning of the seventh century, Saint Augustine having arrived in Kent in A.D. 597. Æthelbirht’s was a collection of the most meagre scraps, such as only extreme poverty in this respect could make any people consider worth collecting or preserving. After that time collections of laws continued to be made occasionally in Kent and the various little kingdoms into which England was then divided; but none of them reached respectable dimensions until that of Alfred the Great, towards the end of the ninth century. Alfred is said to have been educated in Ireland. His is the earliest collection the English nation can show of any real value. Besides those given under Alfred’s own name, it is probable that he may also be credited with the so-called Dooms of Ine.

It is believed that none of the originals of the early English laws, or works relating to law, were written in the language of the English people, that the originals in Saxon times were always in Latin, and those of Norman times in Latin or Norman-French, and that the copies of the Saxon Dooms now extant are transcripts from the translations made for vulgar use. The originals of Acts of Parliament continued to be written in Norman-French down to the beginning of the sixteenth century, and the records in legal proceedings down to the middle of the eighteenth century. The brand of native inferiority, first impressed upon the people, continued thus long impressed upon the laws the people were bound to obey. Even in this year of grace, 1894, the royal assent is given to Acts of Parliament in words which neither the Queen nor her subjects understand, and which never were used by any generation of Englishmen.

Bearing in mind these few facts regarding the early condition and historical development of English law, we come in a proper mood to consider the most archaic system of law and jurisprudence of Western Europe, of which many records now exist, namely, what are now generally known as the Brehon Laws. This is not their real name. Irish Laws, or Gaelic Laws, would be a better name for English speakers to use; but the thing meant has always been known to Gaelic speakers as Feineachus. A general term for all law, without special reference to that of Ireland, was Recht. But the law of the Gaels was Feineachus. It included Cáin Law, being that which was enacted or solemnly sanctioned by national assemblies, was of universal obligation, and could be administered only by professional judges; and it also included Urradhus Law, which was law relating to local matters, modified by local assemblies and by local customs, and which might be administered by the Flaiths who were not professional lawyers.

Inquirers into the native antiquities of Western Europe naturally turn to Caesar to learn what was the state of things he found existing in Gaul; and if that could be ascertained with certainty, we might reasonably assume that the state of things in Ireland at that and at a later period was not very different. But although it was very good of Caesar to write so much as he did, his mind was far too much occupied with Caesar to be troubled recording many facts relating to mere barbarous life, or with adequately checking those recorded. Caesar and other Roman writers give it to be understood that the Gauls on some occasions sacrificed human beings to their gods; and some modern writers calmly assume, as a matter beyond question, that the Gauls ‘sacrificed human beings in hecatombs,’ and that the Druids presided over these horrible butcheries. The innate absurdity of such assumptions might have prevented their expression were it not that the ghastly and sensational grows upon and takes possession of the mind that conceives it, until from excessive fulness the temptation to communicate it becomes irresistible. When communicated, it strikes the hearer or reader more forcibly and effectually than truth, modest and sober, can ever hope to do. Remembering what gross and scandalous falsehoods are sometimes deliberately told of our own contemporaries, even by people of respectable and sanctimonious exterior, I cannot admit that there is any truth in those stories of the Gauls and their Druids who are unable to return with their explanation. It is probable that either Caesar was misinformed or some ceremony, observed by the Gauls in putting criminals to death, was misinterpreted to him or by him. At all events, there is no reason at all to think that human sacrifice ever was practised in Ireland.

Owing to the isolated geographical position of Ireland, references to it by Roman and other ancient writers are comparatively few and of a vague and general character; but fortunately a very full study of Gaelic Ireland can be made from native sources without consulting other authorities except for corroboration. Many leading facts of Irish history have been quite satisfactorily ascertained to the extent of three hundred years before Caesar’s time. It would, however, be difficult to lay down a connected and consequential narrative until about A.D. 250, in the reign of King Cormac. This was the time at which some of the laws we are about to consider were reduced to their present form, though they had existed in some other form long before. Those laws, as well as the laws comprised in the greater collection made two centuries later, had probably existed, as laws, a thousand years before Cormac’s time. Almost all the Brehon Laws had actually reached their full proportions and maturity about the time that Alfred was reducing to order the scraps of elementary law he found existing amongst his people. It is with the remains of the laws that then existed in Ireland—boulders from the dun—that we are mainly concerned. Needless to say, they were not written in a foreign tongue. No foreign mind conceived them. No foreign hand enforced them. They were made by those who, one would think, ought to make them: the Irish. They were made for the benefit of those for whose benefit they ought to have been made: the Irish. Hence they were good; if not perfect in the abstract, yet good in the sense that they were obeyed and regarded as priceless treasures, not submitted to as an irksome yoke. And the presence or absence of popular sympathy with law I take to be a true test of the quality of that law and the very touchstone of good government. Originating in the customs of early settlers in times beyond the reach of history, these laws grew in volume and in perfection down to the time mentioned; after which, though continually applied, though copied, re-copied, and commented upon, little of substantial value was added to them. They prevailed over the whole country until the arrival of the Anglo-Normans, and they prevailed over the whole country except the Pale until the beginning of the seventeenth century. In such a great length of time they must have undergone more or less change; but the political condition of the country during all that time being wholly adverse to true development, the actual changes may be taken to have been the very least possible. In proportion as they lost in utility owing to this cause, they now gain in value to us as archaic relics. And not to us alone, but to continental peoples; to some especially, because they claim a common origin with with us and have little or no native records reaching so far back as ours; to all, for their philological and general antiquarian interest, and because in these laws can be studied nearer to their source than anywhere else the ancient legal ideas of a Celtic people expanding free from external control. Other Celtic nations were subjected to Roman sway and modified by Roman influences, and now little can be ascertained regarding their pre-Roman state except through Roman sources. The isolated position of our country, perhaps a disadvantage on the whole, had, at all events, the effect of leaving one nation truly Celtic, while its kindred on the Continent were being transmuted. The incursions of the Danes produced the first external effect on our laws; but only to the extent of stopping their growth and development and throwing what may be called the organs of development into disorder, from which, owing to historical causes, they never recovered. The Danes never obtained supreme control over Ireland, as they did over England and the North of Gaul, but they harassed and plundered the people, lowered the standard of religion, morality, and patriotism, and fatally smote the institutions of the country, so that from the first arrival of the Danes in A.D. 795 the nation and its laws ceased to progress. The laws were petrified and fossilised, and remained at the expulsion of the Danes what they had been at their arrival. And they remain practically the same still; for to conquer the Danes at Clontarf, though hard the task, was easier than to restore efficiency and fresh growth to institutions once paralysed, or to revive national patriotism, the stagnation of which had become normal. Those institutions had not recovered their former vigour when the Anglo-Normans came, threw the country once more into turmoil, and kept it so. The Normans, like the Danes, had conquered England and established their own institutions there; but even they never conquered the whole of Ireland, and institutions of their introduction flourished only in the Pale, a small district whose extent varied with the fortunes of war, rarely exceeding four of the present Leinster counties. The Anglo-Norman settlers in other parts of Ireland conformed in the main to the Irish laws, with here and there some slight modifications which were strictly transgressions. Successive English Governments sent over Deputies and Governors, nominally to rule Ireland, but really to rule the Pale, to create as much dissension as possible beyond that limit, and at any rate to maintain a foothold. A country so circumstanced, partially conquered, the mutilated prey for which two nations hungered and tore and thwarted each other, was one in which the rational development of law or of anything else was scarcely possible. And thus it comes to pass that the laws may be said to remain to-day substantially what they were before the arrival of the Danes more than a thousand years ago.