(Hibernice: The Conclusion Begins Down Here.)
The Danes were the first wreckers of purely Gaelic institutions in Ireland. Though their power was broken at Clontarf, so also, in the death of Brian and his son, was destroyed the rising hope of an immediate and thoroughly national restoration of Celtic institutions and forms which had been interrupted. The interruption becoming permanent, the spell of attachment was broken, and some of those institutions and forms became definitely extinct. Instead of a speedy return of vigorous national life, there was a state of doubtful oscillation between relapse and convalescence. Recovery was not complete when the Anglo-Normans came and put an eternal period to its progress. The Celtic system was indeed maintained over the greater part of the country; but only in its shattered and incomplete condition, and only with a view to the interests of isolated and rival communities or rival individuals; never universally or with a view to the interests of the nation as a whole, and never with the old unquestioned power and full reverential obedience. The Anglo-Irish, wherever they were sprinkled throughout the country, except the Pale, did in the main adopt Irish laws, language, dress, and customs; and such of them as attained sufficient power became Irish chiefs, and appointed their own brehons in the Irish way. But the nation considered as a political unit had lost the essential organism and attributes of a state, and the statesmanship of England was directed to the prevention of re-organisation and the fomenting of disorder. In obedience to this statesmanship a so-called parliament, consisting mainly of self-elected English officials, was held in Kilkenny in 1367, and an Act was passed, written not in Irish, nor even in English, but in Norman-French, branding the Irish as enemies, and penalising the adoption of their dress, manners, language, and laws. Various other measures conceived in a like spirit followed. They were not immediately successful in their direct object; but they were too successful in sowing discord among people who wanted only to be let alone, and they armed and created an opportunity for miscreant adventurers hungry for a morsel of prey. This latter was the main object of those measures. The trade of fomenting disorder throve apace. It was the only trade that did. The Gaelic race, with its peculiar institutions, national and domestic, was kept disorganised until disorganisation became its normal condition. It was not so much that civilisation was undergoing a change as that it was being strangled. There were two nations in the land, animated not by a desire to evolve a better condition of things, but by a mutual desire to thwart each other at every hand’s turn. Neither was able to establish a central government of its own of sufficient potency to enforce its own views. Each was able and willing to prevent the other from doing it. It is doubtful that either correctly understood the true remedy of the evil they jointly created; and certain that they would not have adopted the true remedy if they had understood it. All over the country, except the Pale, the Brehon Laws, like sun through storm, prevailed in some way; for other law there was none.
The so-called parliaments held before the reign of Henry the Eighth were organised mainly by hungry adventurers and in their interest, and consisted of themselves, their friends and connections in office, and knights of the Pale. Hardly any Gaelic Irishmen attended them, and many were unaware of their existence. During the reigns of Henry the Eighth, Edward the Sixth, and Mary, a semblance of English institutions gradually grew upon the country, not by reason of their superiority, but partly with the hope that their adoption would, as a concession to English prejudice, contribute somewhat to peace, and partly owing to the enforced decay of all that was native. I need not tell how, in Elizabeth’s bloody reign, the hope was blasted, the work of destruction carried on by fire and sword, craft and poison, and Teutonic institutions set up on the ruins. The great transformation was completed under James the First, and confirmed and rendered irrevocable under Charles the First, Cromwell, and William the Third. Such old brehons and ollamhs as may have been then living sank into obscurity and into the grave without successors. Night had fallen on the Gael, and Justice as a living presence had been banished from among them.
In the third, fourth, and probably all future volumes of the Brehon Laws the student will find elaborate introductions written by the editors, no doubt in good faith, for his guidance. From the same volumes he will miss the simpler and safer Gaelic guidance of O’Donovan and O’Curry. He will soon realise that he has passed into the hands of men of Teutonic instinct, training, and sympathies, and under alien, if not unfriendly guidance. Should he be so much in earnest about his subject that his guides do not succeed in disgusting him with it, as they are apt to do, he will begin to realise that it would have been just as well for his progress and for their reputation if those elaborate introductions had never been written. When he has begun to relish and digest the Brehon Laws in spite of the introductions, his success in acquiring a knowledge of them is assured, and the rate of his further progress will correspond with the rate at which he frees himself from their guidance.
As a classic poet may be translated in such a way as to make him look ridiculous, so it is conceivable that of two presentations of these laws equally true in substance one may be positively unfair. Without being intentionally unfair, those introductions are distinctly so in effect. Originating in a Teutonic mind, they are based on the initial assumption that the Teuton alone of all mankind is capable of devising and attaining perfection in legal and political institutions, and that the Irish Celt is incapable of either devising them or adopting them when devised by others. The notion is so grotesque as not to be worth contradicting. But why has its expression been given a place in our national documents? It is clearly the offspring of mental bias, however acquired or however unconscious. The sum paid to this un-Irish editor was, I fear, too small; yet it was probably quite as much as his Irish predecessors had been paid, and so long as he did take it one cannot help thinking that he might have been a little more polite towards a nation good enough to pay it.
Of many passages in which the Teutonic type is set up as the standard of perfection and anything differing from it stamped as barbarous, one sentence taken at random will be quite enough as a specimen. ‘An act is criminal in the correct use of the word when it is regarded as an offence against the State.’ Observe the word ‘correct.’ What does it mean here? It means ‘English.’ Or, expanded, it means ‘In accordance with the present English theory of crime, in which I have been instructed.’ The editor seems quite oblivious of the fact that if he had been instructed in a different system his ‘correct’ would have a different meaning, that if he had been instructed solely in English law of a past age his ‘correct’ would have a different meaning. Which of these meanings, then, would be truly correct? I think none of them. In such matters there is no such thing as perfect abstract correctness universal and eternal. The most correct in one set of circumstances might be the most incorrect in another. To set up any one system, however good, as the only correct system for all mankind in all ages, is not alone incorrect, but is absurd arrogance. Our ancestors happened to think, as some of ourselves think, that a wrongful act, knowingly and wilfully committed against another person, contained in itself all the essentials of a crime, irrespective of the manner in which the State regarded it. Of course this alien editor would object that this is confounding the moral view with the legal, a thing abhorrent to an English lawyer. A brehon would ask in astonishment, What harm if they are confounded? If the moral view is enforced by law it becomes the legal view as well, and there is harmony instead of unnatural antagonism.
An exponent of Gaelic law who can, without seeing the impropriety, write of English law as ‘our ancient law,’ as Mr. Richey does, appears to me to stand self-condemned. It is a confession, if it be not a boast, that he must not be regarded as a native exponent. Deliberately taking up the position, not of a friendly editor, but of a foreign and more or less adverse critic, he scrutinises his subject from aloft or from without. To him these are at best ancient laws, and at that only Irish ancient laws. To us they are much more. They are OUR ANCIENT LAWS emphatically. Nations, like individuals, have their heirlooms, which they do not like to see disrespectfully used. If a Scotch advocate were stupid enough to commit in a treatise on Scotch law such a blunder as that just pointed out he would be completely discredited. It is only for Irish laws this treatment is considered good enough.
The matters in which the foreign mind of the editor manifests itself are mostly small, taken singly, but scattered over a volume or two, positively in statements and negatively in omissions, they produce a lasting effect. Even defect of knowledge which hundreds of living Irish men and women could have supplied is to be met with; as where a note of interrogation is inserted after the word dilesc, a form of duileasg, the name of a sea-plant well known under both its English and its Irish names all round the coast, and to be seen on the stalls of market women. The editor apparently did not condescend to ask information from such people.
To acquire perfect knowledge of a difficult subject, as to acquire skill in a difficult art, one needs the inspiration and guidance of some degree of affection, or at least tolerant sympathy. Unless he takes the ideas to himself, and warms them in his own breast, they are like stricken roses which never open, and he inevitably misses or misunderstands some portion of them. To be able to present in the English language a true picture of the Gaelic laws, one requires much more than philological knowledge, literary skill, and a keen legal perception. He obviously requires to imbibe the Gaelic spirit to some extent if it is not naturally his. Why not? Otherwise ‘it is the lark and not the nightingale.’ He requires a heart attuned to the Gaelic pulse, a mind capable of understanding, for the time at least, the Gaelic mode of reasoning: and this necessity is rendered not less imperative but more so by the fact that the Gaelic pulse now beats low and has done so for some time past. It does beat still, and may even yet beat strongly once more; for it is the native pulse of many who now know it not. Still ‘There is many a man of the race of Conn in beautiful Erinn of the smooth grass,’ and many more elsewhere. No one can expound those laws unless he understands them, and to understand them one must treat them respectfully, somewhat as one would treat flowers he had found preserved amongst the leaves of a deceased friend’s book, or the cerements of a mummy. They will not yield their sweetness to him if he tosses them disdainfully as with a pitchfork. It is a privilege to be allowed to meddle with them, and ought not to be done as though it were an irksome task grudgingly performed. The editor of whom I complain has not squandered any affection on these laws. What one does not respect he does not warm in his bosom. One does not imbibe a spirit he despises.
I am quite aware that opinions such as mine have to contend, and often to contend in vain, against the universal disposition, unusually developed in the Teutonic temperament, to spurn the suggestion that any people have peculiarities which outsiders cannot understand as well as themselves. This disposition is fortified by the acknowledged importance of seeing ourselves as others see us. The vision of others may be true, while our own may be partial. The opinions of an unfriendly critic may be sound, so far as he understands the subject. My contention is, that the principle of seeing ourselves as others see us may be carried too far on one side, that so far as it is good it is universally applicable, that Teutonic peoples do not pay us for telling how we see them, that there is much in human life and manners which outsiders never can by any means perceive, and not perceiving never can understand or describe, and that the translation of our own laws at our own expense was an occasion when the Gaelic view was unquestionably the view that ought to have been presented above all others.
No one presumes to claim that either the laws or the brehons were perfect. They would indeed have been wonderful, and out of place in this world, had they been perfect. It is very easy to point out imperfections in both. The laws were in many respects painfully restrictive, in many crude and seriously defective according to our conceptions. But why should we expect the Brehon Laws, any more than other leges barbarorum with which they may be classed, to suit modern conceptions or to be adaptable to the complex texture of the modern world? They were never intended for that. If they suited ancient conceptions they fulfilled the object of their institution. That they did this to as large an extent as any other laws, past or present, is sufficiently established by the enormous length of time during which they continued in force, and in force, remember, by the will of the people. In considering them it should be borne in mind throughout, but especially when any startling feature is met with, that it is not with modern laws they ought to be compared, but with those of their own time. This test they bear well, so far as it can be applied; and from such a comparison we have no occasion to shrink.
But the fact is that few modern nations possess material sufficiently old for instituting this comparison, and what they do possess of ancient date is mainly concerned with crimes. To be sure, the Irish laws ought to have been gradually adapted to the changed conditions of the people. But then they would have lost in the process that archaic character in which their chief interest now lies. Even now, tried by our modern consciences and searched by our modern lights, they afford sufficient evidence that all perfection is not modern. Side by side with the crude, and equally archaic with it, are some principles which modern legislators might adopt with advantage. The desire just now so prevalent to found courts of arbitration and conciliation is the best practical tribute that could be paid to the wisdom of our ancestors, as shown in the consensual character of the brehon’s jurisdiction. Every competent and impartial reader of these laws will admit that their merits far outnumber their defects, that they were animated by a spirit of justice and a desire to secure fair dealing, especially to those who needed that security, and that they were highly creditable as an attempt to harmonise conflicting rights. These must always be important objects of law; and that they should be attained in each age and country in its own way is the important thing, not the manner of their attainment. The development of legal ideas was not uniform in Ireland. It never has been uniform anywhere.
The remarkably just character of the Brehon Laws has been attributed to the fact that for centuries they were not meddled with by rulers or ruled, but were moulded to a large extent by the brehons, who occupied a neutral position. This, if it be correct, adds to the merit of the brehons when the reader is reminded that throughout the whole range of English law what is judge-made can nearly always be traced by its execrable character.
In almost every respect the Brehon Laws bear comparison very well with English laws not so old. English laws from the time of Alfred, and perhaps before it, down to the present day, have been constantly disfigured by hardships and disabilities imposed upon people on account of their religion or their want of religion, and by ghastly, absurd, and generally vain efforts to force people’s consciences. Of course there is not a trace of these absurdities to be found in the Irish laws. Our ancestors, like ourselves, had faith in reason and good example, not in the thumbscrew. They thought that penal laws ought to be applied only to criminal acts, and that the consciences of harmless people ought to be let alone.
The odious system of torture called the ordeal, so common in the Middle Ages, by which evidence was roasted or boiled, according to taste, out of unwilling witnesses, and confessions of guilt wrung often from persons perfectly innocent; this was never known in Ireland, except possibly in the Pale. There is not a word about it in the Brehon Laws. Englishmen, never short of an excuse when their own national reputation is concerned, have no better to offer for the practice of the ordeal than that it was universal. Even this poor excuse, however, is not valid; for, small though Ireland is, a thing never practised there was not universal.
Now with more direct regard to the brehons and ollamhs, any modern reader will be at once struck with the want of scientific arrangement in their work, and with the manner in which they open a new subject, in the middle, so to speak, instead of at the beginning as we should desire. Language apparently simple is found to be most difficult and disappointing for want of the primary foundations and proper definitions. Initial facts and principles are assumed, not explained. We constantly feel that only a part of the law is revealed to us, the writer assuming that we know the rest. Nowhere is an attempt made to grapple with any branch of law and give a complete exposition of it throughout. It is easy to point out defects like these, because they lie on the surface, and are the first a reader encounters. They are serious obstacles, and may disgust him; but they do not affect the law itself. They are but its shell, a rough shell, which must be cracked before the kernel can be reached. To murmur against the brehons for these defects would be about as reasonable as to murmur against them for not having delivered judgments into phonographs. This is the nineteenth century, not the tenth. The brehons did not live in a scientific age. Are not the very defects of their work interesting, if not instructive, to us? Should our little difficulties prevent our appreciating the enormous difficulties they had to surmount? Though most of the matter we have been considering was written more than a thousand years ago, much of it is marked by a clearness of expression which modern Acts of Parliament do not always attain. The connection of the brehons and ollamhs with the law was too long and intimate to allow of our entirely withholding either praise or blame from them as the laws may seem to merit. But before blaming we should be very sure that we understand. We should remember that with our best efforts we can never acquire more than a partial knowledge of these men and their laws. We can never successfully free ourselves from our own surroundings, and cast ourselves back into their world, or revive its conditions around ourselves. The brehons and ollamhs knew, far better than we can ever realise, what an inadequate picture of themselves and their laws these writings would present if a time should come when no other picture remained, nor living voice to tell the mysteries of this, wherein it is full, wherein it wholly fails. That time has come, and to it and our imperfect vision much that is distorted or unintelligible may very justly be attributed.
The student of legal history, Roman and English, will turn from exasperating auspices and fantastic ceremonial, and all the cruel delay and injustice of which these were the guilty occasion, and will give credit to the brehons for their manly good sense in not inventing artificial meshes for their own feet and the feet of those who sought justice at their hands. That a man had moral right on his side did not matter a pin’s point to the old-fashioned judges of Rome and of London if their fantastic technicalities had not been complied with. In no instance in the Brehon Laws have I met with an outrage upon justice for the sake of mere form, a thing quite common under the Formal system at Rome, quite common in England until a few years ago, and possible even now, as in the case of Kendall versus Hamilton.
The brehons of the Gaelic decadence, owing mainly to political causes, have left us little whereby to gauge their capacity. For this it would ill become us to blame them. It is a mistake to suppose that to transmit judgments to posterity to criticise is at any time the highest duty of a judge. If in the disorder of their times they managed still to make just laws prevail amongst their contemporaries against the law of the strong hand, they performed their whole duty, and a difficult one it must have been. Through no fault of theirs their rulings, once executing themselves proprio vigore, were no longer universally obeyed. Their sphere of influence was shrinking, and with it virility of thought. We, however, cannot be indifferent to the fact that if they had neither the ability nor the opportunity to add to or develop the laws, they had at least the judgment and grace to preserve them. It is easy to be wise after events, and to point out in what respects things might have been better had they been managed differently. It is easy, but not brave, to censure those who cannot return to explain. Not even the wise men of the nineteenth century can penetrate far into the future, nor do they always understand the hidden springs of their own conduct or the drift of their own acts; and in their most pretentious efforts they may be merely spoiling some possibilities of the future. Since the days of the brehons man’s powers and purposes have increased and multiplied tenfold. We shall not be deemed unworthy members of society if, with our enlarged facilities, we deserve as well of our own age as the brehons did of theirs.
Law at best is not the most fascinating of subjects. Very handsome things have been said of it, and justly; but they have been said mostly by lawyers. It is, among other things, the bulwark of the righteous, the shield of the weak, the noble science of discovering in circumstances of great complexity what is just, and making the balance play on its pivot with strict impartiality. It may also be considered as a very vulgar business, mainly connected with, and sometimes debased to the promotion of, what is sordid and criminal. Whichever view be taken, the importance of the law of a country cannot be disputed. There are many important things connected with ancient Ireland yet to be learned; few more so than that which we have been considering. A nation’s law is an irrebuttable witness to its character, a mirror that cannot be disclaimed. We should in justice remember that it is in general an unfavourable witness, an unflattering mirror. It reflects cases, disputes, quarrels, and lends undue importance to the comparatively few members of the population who figure in them, while almost wholly ignoring all the sweetness and goodness of human life and the vast numbers who pass through life without a legal dispute at all. It takes little notice of duties faithfully discharged, but is endlessly garrulous about obligations broken. It provides against offences which are rarely committed, and disregards the good acts with which the hours are studded. In a vast flock, which it apparently sees not, it spies with eagle eye the distempered kid. It is so little concerned with quiet folk who all their lives do right and justice that if left to legal reading one might suppose they did not exist; so much concerned with wrong and wrong-doers that if left to legal reading one might judge the world very uncharitably indeed. These remarks in the abstract apply neither more nor less to Irish than to other laws. But in the case of other laws that are now read, the effect on the reader’s mind is usually counteracted by other miscellaneous literature of the nation to which the laws belong, while it is likely that many who will read this little treatise on Irish laws will not be fortified with much miscellaneous reading in reference to ancient Ireland. Persons for whom the quiet voices of ancient peace and harmony are wholly still, and to whom the best types of our race are wholly unknown, will here make acquaintance with ancient disputes and with the aspects of men in contest. These, unrelieved, will linger in the memory, and these alone the mention of ancient Ireland will recall. In truth, they formed little of the real ancient Ireland, and I now feel guilty of having in some measure contributed to their posthumous importance.
Having read some of those ancient laws, and made some notes as I proceeded, the thought occurred to me that, although the subject is dry and harsh as all laws are, and although it is stale and obsolete which other laws are not, still there might be some who would take sufficient interest in the subject to read my notes if reduced to order. On comparing the notes and setting them together, as so many fragments of a broken vessel, I found that considerably more than half of them were utterly useless for my purpose, belonging apparently to vessels of which I had no conception, and quite irreconcilable as parts of one structure. All the fragments were doubtless genuine, if one only knew their respective times and districts. In the vast expanse of time over which those laws extend many varieties of law and practice must necessarily have arisen from local, temporary, and accidental causes. To follow all these and treat them adequately would demand several volumes. Hence many fragments, in themselves interesting, had to be sacrificed, and some whole branches of substantive law, as the law of taking possession of land, and the very important law of suretiship, had to be either wholly admitted or compressed into a few obscure sentences of a sub-section. The rest I do not pretend to have treated as they deserve to be treated by an Irishman and a lawyer; and though availing of the assistance of those who have gone before me, even of some with whose views I herein expressly disagree, I may possibly have gone astray myself on some points. Other writers retaining fragments which I reject, may, with perfect fidelity to truth, have educed, or may yet educe, legal structures and conceptions of Brehon Law inconsistent with mine. I claim no more than to present the laws as I understand them, well aware that even in my own conception of them there are points difficult to reconcile and explain. I am also quite aware of my silence on several legal matters on which information is very desirable. The laws themselves are silent on these matters, and the importance we attach to them may be due to our own surroundings. If any one should open this little book with great expectations he will close it with disappointment correspondingly great. I have neither treated the whole subject descriptively, nor entered into an exhaustive criticism of any part of it. To do either satisfactorily within this compass were quite impossible. It is not every man can put a gallon of liquid into a pint bottle. My aim is to interest the general reader, to put within the reach of all who desire some knowledge of those laws a convenient synopsis of their leading features, with some corrections of current errors, and above all to induce some student better equipped than I to undertake a thorough examination of those laws and treat the world to a work really worthy of the subject and calculated to take the wind completely out of my small sail. To succeed in any one of these respects would be not to have worked in vain; success in the last mentioned is the summit of my ambition.