The Existing Remains of Irish Law

Most of the literary remains of ancient Ireland that are really valuable and characteristically beautiful appear to belong to the same distant period; and therefore they are highly interesting philologically, quite apart from the intrinsic beauty of some, which is very great. Of all those remains, those dealing with law are, considered as literature, the least attractive. But their value to the earnest student of antiquity is inferior to none, but is perhaps superior to all the rest, owing to their rigorously authentic character. The charge of having been produced or tinged by imagination cannot be made against the laws, rules, and customs which actually controlled the daily lives, conduct, and destinies of our ancestors, and under which they laboured, fought, played, and prayed, as occasion demanded. These remains at least represent what were once the realities of life: and the knowledge and the study of them must, with absolute certainty, help so far as they go to dispel the mist of years. We are brought if possible still closer to the actuality of individual life by the suits and judgments which are scattered through these laws for the purpose of illustrating their principles and their application. And while one reads, if perchance his taste should be of wider scope, he is enabled to gather incidentally much archaeological information not strictly legal, but of a kind difficult if at all possible to glean from other sources, all stamped here with the authenticity of the law, and not less valuable for being thus given without design.

The fact is as expressive as it is painful that, beyond the limited operations of one or two stunted societies, almost the whole of our Gaelic records, laws, and literature remained in manuscript, and practically inaccessible until the middle of the nineteenth century, and that much of those materials remain so even now at the close of the century. Most of those manuscript books, and some of the longer tracts, the legal as well as the others, refer to and quote from other and older books, sometimes by name, sometimes by a description which had become recognised as a name, as the White Book of such a person, the Black Book of such a place, the Yellow Book or the Speckled Book of So-and-so; and sometimes the reference is general, as to other versions or other books. From these references it is evident that, although we still possess a great deal of written matter as compared with other countries, far more than we possess has been lost. This is not wonderful in the circumstances of Ireland, but it is none the less matter for regret. Still, competent judges say that our extant manuscript materials are, both for antiquity and intrinsic worth, treasures such as no nation north of the Alps can boast of. Any one who suspects this for a Gaelic exaggeration had better visit the Royal Irish Academy and have his incredulity speedily and agreeably cured by the evidence of his own eyes. Whatever else may be said of those remote ancestors of ours, it must be admitted that they were singularly devoted to literature, and if the remains of their work have a high value and interest for strangers and Teutons, to us whose heritage they are, and whose privilege and pride it is to call Ireland our native land, they should be not alone valuable and interesting, but sacred. A people possessing such precious monuments and indifferent to them would certainly be unworthy of the race and country that produced them, and would merit the censure of civilised mankind. Do we value these treasures as we ought? Do we escape the censure or fall under it? Apparently we fall under it; and this while we possess the power, and at heart the desire, to escape it. In practice we neglect what in theory we venerate; and thus, as in other respects, we perpetuate against ourselves as a nation a wrong begun by others.

But this extraordinary condition of things has not come about spontaneously, as a reader of Mr. Standish O’Grady’s Heroic Period might infer. Mr. O’Grady, in common with all who study the subject, laments the fact that Irishmen of the present day devote so little attention to the extraordinary wealth of historic treasures they possess. But the implied assertion is only half a truth, and the candour that prompts telling half a truth when bitter to Irishmen will justify telling the remaining half though it should be bitter to Englishmen; in addition to which we, as real inquirers, are entitled to the whole truth. Ours is the bitterness of loss, theirs the bitterness of guilt. If to be made wince be a wholesome discipline for us, it cannot be unwholesome for our neighbours. Our alleged indifference, then, so far as it exists, is neither native nor natural to us, but is a plant of English culture and a necessary result of the species of English rule that Ireland has experienced. Both Danes and Normans, the former especially, destroyed our manuscripts in the course of warlike operations; but to modern Englishmen from Elizabeth’s time downwards—Ireland’s darkest age—to men who came not frankly to plunder as the Danes did, but to govern us and set us a bright example, some of them with Bibles in their hands and Scripture on their lips; to these men the distinction is due of having, in times of so-called peace and in cold blood, burned and destroyed our books, hanged or hunted their owners as vermin, made it criminal to teach or learn the language in which they were written, or indeed to teach or learn at all;—the alternative or rather twofold object of this enlightened statesmanship being to drive the Celts out of their native land or reduce them to savagery in it. Both policies have had a large measure of success; neither has completely succeeded. The Irishmen who, when their own fortunes and hopes, like those of their country, were utterly ruined, risked liberty and life itself during that perilous age for the preservation of those precious monuments of the past, must be not charged with indifference, but credited with devotedness almost equalling that of the original writers. As few ancient nations have been more fruitful in original literary effort, so few modern nations have shown more attachment to literary treasures than the Irish; and in no other case that I am aware of has that natural and creditable attachment been subjected to such a terrible strain. On this very subject let me quote from Dr. Sullivan, the learned editor of O’Curry’s Lectures on the Manners and Customs of the Ancient Irish. Dr. Sullivan says, ‘During the first part of the eighteenth century the possession of an Irish book made the owner a suspected person, and was often the cause of his ruin. In some parts of the country the tradition of the danger incurred by having Irish manuscripts lived down to within my own memory; and I have seen Irish manuscripts which had been buried until the writing had almost faded, and the margins rotted away, to avoid the danger their discovery would entail at the visit of the local yeomanry.’ Was not that a pretty state of things? What Dr. Sullivan saw was of course but a single isolated instance after the real danger had passed away; but from it we may judge how much was destroyed under Elizabeth, under Cromwell, under William the Third, and throughout the whole of that dark age; and the calculation is materially assisted by the lurid stories heard by some of us at our fathers’ firesides. It is morally certain that at the present moment some priceless Irish manuscripts are mouldering away in old walls, caves, graves, and other places under the earth. The causes of our apparent indifference to historical treasures are so obvious that they cannot possibly have escaped even the most casual and careless reader of our modern history; into the soul of every Irishman worthy of the name they must be indelibly burnt. Every one who cares at all about Ireland knows them, and knows that the real wonder is that we have any such treasures and that anybody cares for them. Mr. O’Grady has an intimate knowledge of all this. Yet he seizes an occasion to censure, neither Elizabeth nor Cromwell, neither the imported yeomanry who were planted on the fat lands of our people nor the governors who planted them there, but Irishmen. Here surely is perceptible the taint of that bitterly anti-Irish institution, Trinity College, Dublin. A man educated anywhere else in the world would, in the premises, place the blame on other shoulders, and if he blamed Irishmen at all in this connection it would be on very different grounds. It does not afford much matter for pride on that side or for shame on this that the Irish people could be, and were, by brute force, robbed of their learning for the purpose of civilising them. But brute force has not yet robbed them of their intelligence or of their love of learning. These, though in a measure rendered latent, still exist and will yet respond to more rational treatment. The number of persons who can read the manuscripts has indeed been reduced; but the number who would risk much in their preservation is as large as ever; and certainly their veneration would not be less if the vellum were found to smell of turf-smoke contracted in the course of such a history. However this may be, and whatever may be thought of ourselves, we have at least this much matter for legitimate satisfaction that the existence of these manuscripts renders it impossible for any one with a decent regard for truth to charge our ancestors with ignorance. Commercially it were better for us if the order of merit were reversed; but however low we may have fallen we have not reached the depth at which the commercial view alone is adopted. Neither man nor nation lives by bread alone, and if we are satisfied that merit rests where it does, no one else has a right to complain.

In spite of the burning and burying and drowning of manuscripts, a vast number still exist in public libraries and in private collections, in Ireland, in England, and on the Continent. Some of those relating to law are separate works, while others are written on the same vellum or otherwise bound up together with histories, genealogies, poems, religious works, and the like. All have come down by successive transcription. Of the more important works there are duplicate copies, hardly any of them being quite complete, and most of them differing slightly in text owing to the causes which similarly affect all ancient manuscripts, as want of time or want of diligence on the part of transcribers. Most of the existing legal manuscripts are believed to have been written—that is, copied from older ones—between the beginning of the twelfth and the end of the fourteenth century. None of the originals, which were written in the fifth century, now exist; nor are the existing manuscripts thought to have been copied directly from those originals. They are considered to be copies of copies. Repeated transcripts had already been made with, on each occasion, some modernisation here and there of the antiquated phraseology, or with the introduction of a gloss or a commentary to render the matter intelligible. The laws were originally written in the Bearla Feini, the Fenian dialect of Gaelic. As this language in course of time tended to become obsolete the laws tended to become unintelligible, and the tenacious adherence to old forms of expression common to all laws had to be severed or counteracted in some way. The transcribers did not act according to any uniform plan, nor did any transcriber continue throughout the work the mode of treatment with which he began, but each from time to time translated early into late Gaelic to the extent of some words that were in his time difficult, or left the original phrase standing, and supplied a gloss or a commentary. Each may be considered to have done the best that his circumstances permitted, for writing was not a thousand years ago the simple thing it now is. The great antiquity, both of the original text and of the commentaries, is shown in several ways. Quotations from both are found in works admittedly written not later than the tenth century. Some parts of these older commentaries, although written later than the text, are still very ancient, and besides they contain, as quotations or otherwise, some fragments of traditional law fully as archaic as any in the text. The language being of a highly technical, elliptical and abbreviated character too, and devoid of all proper definitions, is now scarcely intelligible to speakers of what is nominally the same language; and of the few who can read still fewer can confidently construe. Even some of the Gaelic transcribers of the Middle Ages may possibly have erred in its construction.

Imagine a work treated at one time in the manner described, and then, after another century or two had elapsed, treated again in a similarly irregular fashion by another transcriber—here a literal copy, there a translation, in another place a gloss or a commentary, to keep pace with the further changes in the spoken language, and you will have a fair idea of the present condition of the Brehon Laws. What are thus spoken of under the general name of commentaries contain much matter not suggested by that title. Many independent decisions and dicta, old and current, are inserted under particular texts with which some of them have little or no connection, but as the most suitable or most convenient place the writer could find for them. The most valuable of the commentaries were written before the existing manuscripts were transcribed, and they interpret not alone obscure passages in the text but the substantive law itself. Later commentaries were written by various hands on the present manuscripts, and even these may not be all original. They were written between the original lines, on the margin, at the foot, wherever room was found. For the most part a text is given; but in some instances the whole of the original text does not now exist, only the opening words of passages being retained in the existing transcripts. These opening words, used as headings or catchwords, are quite meaningless in themselves as they now stand; but of course they were full of meaning for those whose business it was to know what followed. They are now followed by commentaries from which may be gathered the substance of the original, as a commentary on the Lord’s Prayer might be headed with the words ‘Our Father.’ Comments upon law and glosses upon words are inserted without any apparent attempt to keep them separate, and with the latter are frequently given an assortment of etymological speculations in which the writers display some knowledge of what they call ‘the four principal languages of the world,’ Hebrew, Greek, Latin, and Gaelic. Derivations of words, of rules, and of customs are suggested almost at random, and are no more reliable than similar attempts of ancient Roman writers; some of them being clearly fabulous and not seriously meant. When the commentary is mainly etymological and in the nature of a translation of the text, and both are translated into English side by side, the result in the English is an unpleasant tautological repetition of the same thing. Sometimes the commentators purport to explain the text, start with that apparent object but with a relative pronoun for which it is now difficult to find an antecedent, plunge in medias res, and end by leaving the whole matter quite as obscure as the text had left it. Accounts of the effects of particular judgments are also met with, some of them legendary, others of real value. According to one commentator, ‘Sencha MacColl Cluin was not wont to pass judgment until he had pondered upon it in his breast the night before.’ This probably refers to a judgment in a grave case involving human life. Judges of the Hebrew nation in early times were accustomed to fast the night and morning before passing a death sentence. The text of the old laws is fairly self-consistent throughout. The commentaries, as might be expected from the manner in which they were written by different hands at different times, are not always reconcilable, and there is a good deal of tiresome repetition in them. The translators have found them useful in many cases, misleading in some. They are interesting throughout.

The condition just described involves so many difficulties in dealing with these laws, that Gaelic scholars generally in the last century believed the translation of them to have become impossible, the key having been lost. If occasionally an educated Englishman of the present day finds the legal documents in which he is personally concerned hard to understand, though assisted by his knowledge of the actual facts to which they relate, his knowledge of the language and of contemporary life in all its phases, how much more difficult must it not be to draw legal writings of a distant past from their dust and cobwebs and the greater load of impedimenta just mentioned, to understand them fully and to render them correctly, when the system of life which those laws contemplated and provided for has vanished from the earth leaving no derivative institutions in existence?

In 1852 a Royal Commission was appointed to translate and publish the Ancient Laws and Institutes of Ireland, and thus bring them within the reach of English readers. The nature of the undertaking may be judged from the difficulties enumerated, and many others must have been encountered in the actual performance of the work. It is only just that we who can now read those laws at our ease should remember those difficulties and be grateful to the learned men who have surmounted them; and we cannot be surprised to find that, distinguished scholars though they were and are, they have actually failed to understand some passages which they have translated; and they repeatedly emphasise the fact that their translation is in certain parts conjectural only and must not be taken as final or satisfactory. Many technical terms relating to status, ranks and degrees, as well as names of fines, diseases of horses, &c., are retained in the English untranslated; some because the translators were unable to satisfy themselves as to the true meaning; others because the words have no direct or adequate equivalents in English, and would demand a tedious circumlocution each time they had to be used; others because, although the translators understood them, and could find suitable equivalents in English, yet remembering that the ancient Irish manuscript materials have never in modern times been fully investigated, the translators have, with commendable modesty and patriotism, retained the original words, appending to them temporary explanations to serve until that better time comes for which, without being politicians, we are all permitted to hope, when those laws can be thoroughly analyzed and explained. This latter work is one of greater difficulty still, and should be undertaken only by men free from the preliminary work of translating, free from the necessity of making a living, and endowed with a keen and unconquerable genius for minute research. This was not the work undertaken by the Commissioners; it still awaits the enthusiast.

That these laws should be found difficult is not wonderful, seeing that the English are now unable to translate some technical terms in the Saxon laws so late as those of the reign of Cnut. The Brehon Law Commissioners have already published, at different dates as the work proceeded, four volumes of the Ancient Laws of Ireland, and a fifth is now (1894) in the press. The ancient law book called the Senchus Mór, or rather all that remains of it, was the first selected for publication, as being one of the oldest and most important portions of the Brehon Laws which have escaped destruction. This ancient work occupies the whole of the first volume of the translations, the whole of the second volume, except an appendix of scraps, and a portion of the third volume. The part of the Senchus Mór given in the first volume deals directly with the law of distress, that is the seizure by distraint of property for the satisfaction of debt, and only incidentally with other subjects. It will be seen in the chapter on distress why this branch of law required so much space and was given this extraordinary prominence. This first volume of the translations was published in 1865. The second volume, which was published in 1869, contains very interesting fac-similes of ancient writing, and more than four hundred pages of text of the Senchus Mór, consisting of the completion of the law of distress, the law of services of hostage sureties (from which I have not drawn for the present occasion), the law of fosterage, the law of tenure, and the law of social connections, all of which are of the highest interest. The text of this volume is preceded by a long dissertation, the object of which is to prove that Saint Patrick was a Briton. Interesting though this might be as a separate publication, dependent for its worth solely on its author’s name, I cannot but think it out of place here where the question cannot be discussed on equal terms. In the third volume of the translations, published in 1873, further specimens of ancient writing are given. The volume contains a long general preface, followed by a special introduction to the remaining portion of the Senchus Mór—the Corus Bescna—which itself occupies seventy-nine pages. This is the conclusion of the Senchus Mór so far as it is now known to exist. The Corus Bescna, or customary law, is said to have been the fifth book of the original work, there being then more than five books. Possibly the remaining portions exist somewhere, but they have not been discovered. The Senchus Mór, as now given to us, is not clearly divided into books. Portions of the original work having been lost, we may be thankful to get the remainder kept together in any way. After the conclusion of the Senchus Mór in the third volume, we are given nearly one hundred pages of preface to the Book of Aicill, followed by the Book of Aicill itself, which, with an appendix, occupies over five hundred pages. The fourth volume opens with a long and elaborate introduction containing a discussion of the different subjects treated in the volume, but dealing especially with the Irish family and clan system. The text of this volume consists of a number of tracts selected as especially illustrating the land laws of the ancient Irish, the law of taking possession, and the laws affecting the constitution of clan and fine and the rights and obligations of members of those two organisations. I have no knowledge of the contents of the fifth volume now in type.