Section I.
Introductory.
Some historical writers go so far as to say that there was an entire absence of legislative power in ancient Ireland. This is quite too sweeping, and wholly inconsistent with the ascertained facts of the period in which we are mainly interested, the period, namely, of the compilation of the Brehon code. But, unfortunately, it is applicable to the nation, though not quite so to the clan, at a subsequent period when the national assembly had ceased to meet. Authors who appear to be better informed maintain that there were five different sorts of legislative assemblies in ancient Ireland, some of them being for national, some for provincial, and some for local or tribal purposes. No one has yet sufficiently investigated the subject to be able to set forth with precision what the constitutions, duties and powers of those assemblies were.
The idea of making laws does not appear to be natural to primitive man. This is proved by the early history of many nations gleaned with the greatest care; though a good deal that is theoretical might be advanced to the contrary. The prevailing sentiment of primitive races always has been, and still is, that laws handed down from remote antiquity should not be meddled with. The object of the long and apologetic preambles of old English Acts of Parliament was to soothe this sentiment and reconcile it to the changes about to be enacted. So long as such a sentiment prevails, and to its extent, there is a reluctance to tamper with laws. I cannot say how far this sentiment prevailed in Ireland, but it is certain to have existed to some extent; and what is given as a Gaelic proverb would go to support it—‘The old rule transcends the new knowledge.’ But quite apart from this sentiment, the simple life of the people, the system of clan and fine, with its network of rights conferred and duties imposed, and the just character of the existing laws must have reduced to a minimum the necessity for direct law-making.
When nations which had not fallen under subjection to a despotism had arrived at the idea of making and altering their laws, they at first met in public assembly and did it by direct vote of the free and qualified citizens, those citizens being on such occasions, in some nations, armed and clashing their arms in token of final assent. Later on when some system of representation or delegation had been devised, the assemblies so formed were usually given power, not only to make and alter the laws, but to enforce them and also to apply them judicially, and to determine whether they had or had not been observed or violated. There being little direct making of new law, but chiefly a gradual adaptation and blending in the course of administration, there was no clearly marked distinction between legislative, executive, and judicial functions. All those functions were discharged, for instance, by the Saxon Witan; and it was from such a state of things, though in very different circumstances, that the English Star Chamber arose.
The judicial powers of the House of Lords and of the Privy Council of the present day come, through various winding ways, from the same source. These observations apply so generally to other nations that one would expect to find traces of a similar evolution in Ireland; yet those who have read Irish manuscripts most extensively assure us that, so far as they have been able to discover, the Irish always had courts of justice quite distinct from their legislative assemblies. Irish courts of justice appear to have attained a far more advanced stage of development than Irish legislative assemblies. The converse of this would be true of ancient Rome, for instance. But some of the Irish assemblies, perhaps all, were still much more than legislative; or rather the work of legislation does not appear to have been the sole, or even the principal, duty of any of them. In pagan times, at all events, their primary and principal duties were of a semi-religious character, with legislative, executive, administrative, and social duties superadded as occasion arose. And possibly the introduction of Christianity effected no greater change in the assemblies than the elimination of the old religious observances. Some of the assemblies were constituted mainly of the Flaiths, or nobles, with a small number of other distinguished men, and in this respect may be said to have resembled the present House of Peers. A national assembly of this character met at Tara, and there was in each provincial kingdom an assembly constituted on the same exclusive model. Some of the assemblies, especially those that were local, were probably constituted of as many heads of families of the Céile, or freehold class, as chose to attend them, the clan system conferring the qualification, and there being no other form of election.
The wilful disturbance of any lawfully constituted public assembly, national or local, was one of the few things for which a fine was not considered adequate punishment; the penalty was death.
Section II.
The Feis of Tara.
The most important of all the ancient assemblies was the Feis of Tara. It is said by some to have been founded, in the year of the world 3884, by King Ollamh Fodhla, whose name means Sage of Ireland, and whose reign was so propitious that ‘it was difficult for the stalk to bear its corn in his reign.’ Others say the Feis originated in funeral games. The truth probably is, that it originated in funeral games, and was turned to the other purposes by Ollamh Fodhla. At all events, a national assembly was held at Tara from a very early period down to A.D. 560, when the last was held there under King Dermot, son of Fergus.
The Feis of Tara was an assembly of the leading men of the whole island—kings, tanists, flaiths, warriors, brehons, chief poets, &c.—not a meeting of all classes of society. It was not ambulatory, like the English national assembly of later times, held now in one place, now in another, wherever the king happened to be; nor was it haphazard like that by which Magna Carta was adopted. Its constitution and its place of meeting were fixed, and its times of meeting fairly regular. It met at Tara every third year, three days before the 1st of November, and it continued in session three days after the 1st of November. Thus its ordinary session lasted for seven days. For some time before it ceased, however, it had been summoned less frequently.
There was an important pagan festival observed all over the country on the feast of Belltainé, which was the 1st of May; and at Tara it was the occasion of an assembly lasting for some days. But those assembled on this occasion seem to have been brought together mainly by religious and social motives and the attractions of the royal court.
Dr. Joyce is of opinion that some of the ancient Irish national assemblies did directly enact laws, but that the Feis of Tara was not one of these; and he doubts that the Feis was convened to enact laws, and says there is no ancient authority for holding that it was. Other authorities do not agree with Dr. Joyce in this latter view, and I find himself speaking in another place of the summoning of the Feis on ‘some urgent occasion.’ An assembly which was summoned on an urgent occasion, when there were serious matters to be considered and dealt with, was certainly summoned for some practical purpose, and must have been in some sense the Great Council of the Nation; and if it did not enact laws, it must have deliberated on national affairs with effect, which is a near approach to law-making. In a poem, written in the tenth century, the Feis is spoken of as having been convened ‘to preserve laws and rules.’ Edward O’Reilly, the Gaelic scholar, calls the Feis ‘a parliament.’ It may be that neither the Feis of Tara nor the other assemblies were convened for the express purpose of making new laws, or ever professed to make new laws, but only to promulgate, reaffirm, retrench, modify or otherwise affect laws long known but for some temporary or partial or local reason suspended, or to extend to the whole kingdom some advantageous local custom, or to correct or abrogate some vicious custom, or to enforce uniformity among the brehons in case of conflicting judicial interpretation, or to restrain on the ground of some local or temporary hardship the strict enforcement of a law otherwise just. There are countless things like these which a national assembly could do well, and in doing which it would be modifying the law; and although it never called itself a legislative assembly, and never claimed to make laws, we are still quite justified in calling its acts legislative. While many eminent authorities hold that the Feis of Tara did these things, Dr. Joyce’s view cannot be accepted as final.
Among the other duties performed at the Feis was one of some importance even now, but of infinitely more then, because on it the title to rank, property, and privileges largely depended. This was the comparing and checking of the local pedigrees with each other, and with the Monarch’s Book, or Register, kept at Tara. Analogous duties are now divided between the offices of the Herald and the Registrar-General.
King Dermot died in A.D. 563 (or 565), and after his death no Ard-Ríg resided at Tara. No separate Ard-Ríg was any more appointed with the kingdom of Meath for his mensal. One of the provincial kings usually assumed the office, or at least the title, retaining and residing in his own province. Tara was deserted, and no place for holding a national assembly was ever substituted. To the time from this date onward, the saying applies that there was no central legislative authority acting for the whole island. Once after the reign of Dermot a national assembly, or convention, was held at Tara, but although legislative it can hardly be called the Feis. It was held in the reign of the monarch Loingseach about A.D. 697; and at the instance of Saint Adamnan a law was adopted which, among other things, freed women from liability to military service, and prohibited their presence in battle.
After the abandonment of Tara as a royal residence, and the consequent discontinuance of a national assembly, it can hardly be said that one concrete state, broad and national in basis and concentrated in executive power, existed in Ireland. As though Tara had been the vivifying sun of true national life, a summons or word of command from any other source never could be and never was frankly recognised as the voice of the Ard-Ríg, never could and never did inspire the old generous patriotism, but often inspired bitter jealousy of (as was deemed) a local usurper in the person of the nominal Ard-Ríg, a desire to dispute his title if possible, and to set up a rival. Many holders of the office after Dermot’s time are marked kings ‘with opposition’; and though this opposition was not successful, its existence had a disintegrating effect among the people, and in law actually reduced the king’s status and rights in certain cases. True national unity, and with it true national security, was at an end. The nation was divided into a large number of small isolated communities called Tuaths, the territorial extent of which is in many cases represented by the modern baronies. These communities had some of the characteristics of states, and fancied themselves such, but were in reality fragments of a nation falling asunder, and were doomed to become political ruins if not re-united. Small nationalities are dear to the Spirit of Freedom, but she loves not the aimless subdivision of a nation that is really one in race and interest. There always had been much independence of action in the several tuaths; and this was well so long as it originated in worthy aims, or in wholesome and honest rivalry, and could be subordinated at once to the interests of the tuath, and of the nation by the controlling and assimilating influence of a supreme central authority. But once that authority ceased to exist at Tara it de facto ceased to have any existence; the several tuaths pursued what they deemed their several interests, keen in the assertion of a puny autonomy but blind and indifferent to the common national interest; and the country sank into the condition of England under what is called the Heptarchy, when the petty Saxon kingdoms were so independent that they were almost constantly at war with each other.
It is thought that one of the events which had most influence in bringing about the consolidation of England was the reduction of the Church there to a single national Church by Theodore of Tarsus, when Archbishop of Canterbury, in the latter part of seventh century. Before his time, the territorial limits of ecclesiastical jurisdiction had varied and shifted with the varying fortunes of the little kingdoms. He fixed permanently the limits of spiritual jurisdiction, and subjected the Church throughout England to one central authority. Some such service would then have been a boon of inestimable value to Ireland, even if it had come from foreign lands; for while over-centralisation is undoubtedly a great evil, so much of it as is necessary to inspire a common patriotism and prevent the degradation of local rivalry to sordid jealousy is as undoubtedly a great good. It happened that the Church in Ireland exerted no such influence and afforded no such example, for it had from the beginning accommodated itself to the genius of the people to the extent of assuming somewhat of a clannish complexion without the national organism and outward visible bond with which we are now familiar. Each clan aimed at being self-provided, self-contained, and self-existing in every respect, spiritual and temporal. It built small churches, monasteries, and schools; endowed them with lands, stock, and all necessaries, in the same generous manner in which, in previous generations, it had provided for the Druids and other learned men; it dedicated, as a rule, every first-born son to the Church; and it retained to itself the right of succession to all posts, clerical and lay, so long as it possessed qualified persons. Indeed, the requirement of qualification can hardly have been always very rigorously insisted upon, inasmuch as positions of great importance were in many instances filled for successive generations by members of the same family, as though in a sense hereditary. This latter feature, however, was due to a certain general tendency, which we shall have a more suitable occasion to notice.
The clan had its bishop too, or an abbot having episcopal faculties; and so far as territorial jurisdiction was known at all his was coterminus with that of the clan. The bond between those pastors seems to have been of a very vague character, the chief connecting link apparently being the purely spiritual one of a common faith. The successor of Saint Patrick was always Primate, and always held in special reverence over the whole country. The occupant of that position could have done for Ireland what Theodore did for England; but being usually a man of Irish training, and seeing things as he had been accustomed to see them and with Irish eyes, the necessity for organising the Church on the modern principle does not appear to have occurred to him with sufficient force to call forth effective action in its attainment until a later time, just when the nation had become incapable of profiting by the example.
Section III.
Tailltenn and Uisneach.
Another very celebrated national assembly was that held for many centuries at Tailltenn on the Blackwater in Meath. It was a general assembly of the people—that is to say, not restricted to men of rank and distinction like that at Tara. It was held annually about the beginning of August. It also originated in funeral games, or rites; but its subsequent purposes were even more manifold than those of the assembly at Tara, and they varied from time to time. They always included the social and political; and, as at all the great assemblies, the laws were always proclaimed anew—that is, read aloud in public that they might not be forgotten, and any changes in them carefully explained to those present. The last of the regular assemblies at Tailltenn was held under King Roderick O’Connor in A.D. 1168.
The Hill of Uisneach, in Westmeath, was, in pagan times, the site of a national assembly distinctly legislative in character. It was at one such assembly, held there about one hundred years before the birth of Christ, that a uniform law of distress for the whole country was adopted. Uisneach has been the site of many political conferences since then, but I have met with no account of an assembly there, purely legislative, since the nation became Christian.
Section IV.
The Aenach.
Of local assemblies, the Aenach appears to have been the most generally important. Aenach is the word now translated fair, and is, in fact, the present Irish term for a cattle-fair. But though some such fairs originated in aenachs, they bear very little resemblance to the original. Fair is no translation of the word, but is one of those things which one would rather have expressed differently. Aenach means, first, an assembly; second, a hill, from assemblies meeting on hills; third, a cattle-fair, from such fairs springing up where aenachs once were held. Wherever an aenach was held a fair sprang up, but the latter was purely a consequential and collateral adjunct to the former. The aenach proper was an assembly of all the people of a district, without distinction of rank, and apparently without distinction of clan. Some were held annually, others triennially. Originating, like all the other Irish assemblies, in pagan funeral or commemorative rites, the aenach continued even in Christian times to meet in a cemetery. There is no definite statement that the aenach enacted laws; but one of the many objects of the assembly was that the laws might be published, and where this was done the effect of the laws may have been in some way modified. The aenach was also taken advantage of for holding a high court of justice for the trial of appeals and cases of special difficulty, a Church synod in Christian times, a place for musical and bardic contests, for the recitation of martial and other poetry and family pedigrees, a weapon-show or sort of military review, feats of arms, horse-racing, athletic sports, and all the games of the time, and, of course, for the distribution of honours and prizes amongst the successful competitors. So far the assembly might be considered the aenach proper. But all these proceedings, and the multitude of people they brought together and detained in one place for a couple of days, rendered a market for refreshments necessary; and this developed into a market for all kinds of wares and produce and for cattle. Owing to the scarcity of towns and shops in those days, this incidental feature of the aenach was found very convenient; and it grew to such an extent that it ultimately overshadowed the primary purposes of the aenach, and furnished a practical if not an etymological reason for translating the word into fair. For the commercial purposes of the fair those meetings were frequented by merchants, Irish and foreign, and a brief but vigorous trade was carried on.
Aenachs were held in many places throughout the country, and the word still forms part of the names of a number of places, the best known in this respect being Nenagh. But the accident of retaining the name is no indication of the relative importance of the different aenachs held in those places. For they did differ greatly in importance. The aenach of Carman was for a long time one of the most celebrated in the South of Ireland. Carman was a place near the site of the present town of Wexford, and, I believe, is the Irish name of that town. The last aenach was held there in A.D. 1033, under Donnchadh MacGillaphadraig, Chief of Ossory, who was King of Leinster then. Greek merchants are spoken of as having attended the aenach of Carman for commercial purposes.
Section V.
The Tribal Assemblies.
Each clan had two local assemblies of its own for the transaction of its ordinary business, legislative and administrative. These were the authoritative fountains of urradhus law. One was called the Cuirmtig (pronounced Coorthy), and was probably open to all clansmen who paid tribute. In it, for the most part, new proposals originated. The other was called the Dal, and appears to have been open only to heads of septs; possibly to heads of fines also. Dal means a tribe or division of a race, but it had also the special meaning of an assembly representing and acting for the tribe. It was a sort of local second chamber, in which bills passed in the first had to be ratified before they became legally binding. Each clan had also a further assembly called a Tocomra. This was the assembly in which the king or chief or tanist was elected. So far as I can discover it consisted of the same persons as the Dal; but it was summoned by the Bruigh–fer, or Biadhtach (pronounced Beetagh), and met in his house. This house was not the private property of this officer, but was considered somewhat as a public hall belonging to the clan, and used as occasion required for clan purposes. The Bruigh-fer, or Biadhtach, was its occupant and keeper and a clan official appointed and empowered to discharge various duties of high importance. Besides summoning the assembly just mentioned, he was bound to entertain the king, bishop, bard, judge, and some other public functionaries of the clan who were privileged to claim entertainment for themselves and a number of attendants fixed in each case by the law. He was also bound to entertain when required, on behalf of the clan, friendly visitors, if for any reason the king or chief could not conveniently do so; and he was under certain legal obligations to all belated travellers who passed by the way. In fact he may be called a public hospitaler, and this is almost the literal signification of the word Biadhtach. To enable him to comply with these extensive requirements, he was allowed about five hundred acres of free land, besides various personal privileges; and he was, by virtue of his office, a magistrate empowered to administer justice in certain cases. There were many special provisions in the law for the protection of himself and his official property, for he and his house were rightly regarded as an important public institution. He was fancifully supposed to have five doors to his house, facing in different directions, always a pot of meat boiling, and cattle and pigs on the premises fat enough for killing.
In later centuries ballybetagh, so named from this officer, came to mean among the English in Ireland a sort of rough measure of land equal to about five hundred acres.