THE ANCIENT LAWS OF IRELAND.
Next to written and well-authenticated historical annals, the clearest insight that can be afforded us of the civilization, polity, and social condition of the nations of antiquity is derived from the study of ancient laws and customs, when their authenticity is guaranteed by existing contemporary authorities, and they bear in themselves the intrinsic evidence of adaptability to time, place, and circumstance, so easily recognized by the antiquarian and the philologist. Were it possible to conceive the total destruction of this republic with all its material monuments and historical literature, nothing being left for posterity but our books of law, the philosophical student a thousand years hence would be able to form a pretty correct and comprehensive idea of the state of society at present existing and of the nature of the institutions under which we have the good fortune to live. From the large number of statutes regulating the intercourse of man and man, he would deduce the fact that we were a commercial and ingenious people; from our laws relating to real estate, he would necessarily argue that its ownership was general and its transmission from one to another a matter of everyday occurrence; and from the few restrictions imposed on its possession or sale, that the facilities for its acquisition were comparatively easy and unrestricted; while from the care that has been taken by our national and local legislatures to guard the life, liberty, and prosperity of the citizen, he would naturally conclude that our right to the enjoyment of these inalienable rights formed the corner-stone of the edifice of our government.
In the same manner, we of this century, looking back to a country so old as Ireland, one of the most antique of the family of European nations, by examining the laws framed in the early days of her dawning civilization, can picture to ourselves, even without the aid of history, the genius of her inhabitants, and form comparatively accurate opinions of how much or how little intelligence and natural sense of justice and the "eternal fitness of things" were exhibited by them in their efforts to regulate and organize society. Strange to say, we are partly indebted for this opportunity to the English government, never very generous in its patronage of Irish interests, though of course the principal credit is due to that noble band of Irish scholars, formerly headed by the late lamented O'Curry, Petrie, and O'Donovan, who by their antiquarian lore, profound knowledge of their vernacular, and untiring industry, have reconstructed from the scattered and almost illegible manuscripts deposited in various libraries the body of the laws of ancient Ireland, and have presented them to the world in the language in which they were originally written, with the elaborate glosses of after-years, accompanied by an accurate English translation. This long-desired work bears the appropriate and principal title of Senchus Mor, or great law, and contains all the laws that were enforced in Ireland from the fifth to the seventeenth centuries, if we except a small portion of the island which was occupied by the Anglo-Norman colony from the invasion till the reign of James I. That it was admirably adapted to the wants and dispositions of the people, we can judge by the affection and tenacity with which the natives so long clung to it, in despite of all the efforts of the invaders to induce them by force or fraud to adopt that of the conquerors, and that it was more liberal and equitable than the harsh restrictions of the feudal system is proved from the alacrity of the Anglo-Norman lords who resided without the "pale" in conforming to it in preference to their own enactments.
Like most of her other blessings, Ireland owed the possession of this excellent and merciful code to the Catholic Church, for it was in the eighth or ninth year of the ministration of her great apostle and at his instance that it was framed as we at present find it, purified from all the grossness of paganism, and freed from the uncertainty and doubt which always attach to mere tradition. Up to his time, law in Ireland had been administered at the discretion of Brehons or judges, and, being preserved only in the poems of the bards and ollamhs (professors), was deficient in those essential qualities of all human legislation, exactness and uniformity. That there were learned and wise lawgivers in Ireland before the introduction of Christianity, we know from history and from the introduction to and the text of the Senchus itself, in which frequent mention is made of decisions and writings, but they were necessarily the exponents of that limited sense of justice which the human mind, unaided by religion, is capable of comprehending. The propagation of the faith in Europe created a complete and permanent revolution in the laws of each country successively visited with the light of the gospel, and while the darkness of paganism vanished before it, the municipal laws which upheld idolatry were either totally abrogated or modified so as to conform, as much as possible, to the benign spirit of the church. The immediate occasion of the revision of the Irish laws is stated to have been the deliberate murder of one of St. Patrick's servants by a relative of the reigning sovereign, but the real cause, no doubt, was the desire of the saint to root out of the judicature of the people all traces of paganism as effectually as he had erased it from their hearts.
Accordingly, by virtue of his high office, he summoned a convention of the learned men of the country, a few years after his arrival, and proceeded to execute his important reforms. His principal assistants, we are informed, were Laeghaire, monarch of all Ireland, Corc, and Dairi, two subordinate kings, whom we may suppose represented the temporal authority of the nation, and without whose countenance and support it would have been difficult, if not impossible, to enforce the new code; Rossa, Dubhtach, and Fergus, those poets and professors whose duty it had been to preserve and perpetuate the legal traditions of their race and the decisions of the Brehons; and two ecclesiastics, Saints Benen and Cairnech. The former of these bishops, afterward known by the name of Benignus, was one of St. Patrick's earliest and favorite converts, and eventually his successor in the primatial see of Armagh, and the latter, a Briton from Wales, was remarkable alike for his piety and extensive learning. Thus sustained by the civil arm, and assisted by the advice and knowledge of men well versed in the common and canon law, the saint, in addition to his other apostolic labors, succeeded in leaving to the people he loved so well a harmonious and Christian code, the spirit of which, like that of all his teachings, sank deep in the popular heart, and defied the efforts of time and the ruthlessness of man to eradicate it.
While this code remained the rule of guidance for the mass of the people, it was sacredly preserved by the Brehons, who, though not empowered to alter it in any respect, added elaborate commentaries explanatory of its general or obscure provisions; but when the country was divided into counties by the conquerors, and their system took the place of the national one, the manuscripts of the ancient laws were scattered through the country, in England and on the Continent, whither they were brought by the exiles.
As early as 1783, Edmund Burke, ever mindful of the fame of his native country, suggested the propriety of collecting and publishing in English or Latin those remarkable remnants of former greatness and wisdom, but it was not till the year 1852 that the English government, at the repeated solicitation of several distinguished and influential Irish gentlemen, consented to lend its aid to the great work, which from its very magnitude was beyond the ability of any individual or voluntary association to accomplish. In that year, at the special instance of Doctors Todd and Greaves, both eminent Protestant clergymen, a commission was issued appointing them and several other well-known scholars "to direct, superintend, and carry into effect the transcription and translation of the ancient laws of Ireland, and the preparation of the same for publication," etc., with power to employ proper persons to execute the work. The persons selected by the commissioners were Dr. O'Donovan and Professor O'Curry, both thoroughly qualified to perform so momentous and laborious a labor, and whose conscientious discharge of the duties so assigned them ended only at their much lamented deaths. With the patience and zeal of true antiquarians, they set about transcribing the various MSS. relating to the old laws, deciphering the half-obliterated characters of the earlier centuries, and rendering the peculiar phraseology of the Gaelic into modern English. They were succeeded by W. N. Hancock, LL.D., professor of jurisprudence in Queen's College, Belfast, and the Rev. Thaddeus O'Mahony, professor of Irish in the Dublin University, under whose auspices the two volumes already in print were prepared for publication, having first received the sanction and approval of the commission. With such endorsement, we do not wonder that, speaking of the authenticity of the Senchus Mor, O'Curry should have said in one of his admirable lectures on Irish history, "I believe it will show that the recorded account of this great revision of the body of the laws of Erin is as fully entitled to confidence as any other well-authenticated fact in ancient history."
The principal materials used by the distinguished translators are thus described in the preface to the first volume:
"I. A comparatively full copy among the manuscripts of Trinity College, Dublin. H. 3, 17.
"II. An extensive fragment of the first part, 432, of the Harleian manuscripts in the British Museum.
"III. A large fragment of the latter part among the manuscripts of Trinity College, Dublin, H. 2, 15.
"IV. A fragment among the manuscripts of Trinity College, Dublin, H. 3, 18."
Of the capacity of the gentlemen above-mentioned to faithfully transcribe and translate these valuable relics of past legislation there can be no doubt, nor of the genuineness and authenticity of the records themselves. They are not, of course, the originals as written in the fifth century, but are accurate copies, as far as they have been saved from destruction, made centuries ago by the Brehons and ollamhs, and handed down by them from father to son, for the Brehon order was hereditary, and from generation to generation, until the beginning of the seventeenth century. Besides this, by their peculiar wording and reference to contemporaneous events and opinions, they bear the undoubted impress of great antiquity, and of having been intended for the government of a primitive people, who had little or no intercourse with the outside world. We have thus before us for the first time a complete body of written fundamental laws, collected and perfected over fourteen hundred years ago by a segregated and peculiar race, occupying a remote part of Europe, the only part, in fact, of the civilized portion of that continent that never echoed to the tread of a Roman soldier, or bowed before the edicts of an imperial Cæsar. In reading over the laws of that unique and ancient people, so unlike all we know of the Roman and Anglo-Saxon jurisprudence, we find, not without some regret, we must confess, that the halo of exalted virtue and unsullied purity with which the poetic fancy of subsequent historians and poets led them to surround their pagan ancestors, vanishes like the mists of a summer morning, but we discover also that the epithets, barbarous, ignorant, and unlettered, so freely bestowed on them by the venal scribes of the dominant race, rest on no foundation whatever save on the malice or deficiency of knowledge of the Anglo-Norman authors. In truth, the Irish of the pagan era seem to have had nearly all the virtues and failings of their posterity of to-day, the former being brought more actively into play under the influence of Christianity, and the latter repressed by the unlimited authority of the Catholic Church and the judicious regulations of the Senchus.
We find this more particularly the case in studying the laws regulating the domestic relations of the family, which, being the unit of which society is but an aggregate, is the most vital and important part of all human enactments. Ample provision is made for the mutual protection of husband and wife, and the reciprocal rights and duties of parent and child are clearly and minutely defined; but we observe with regret that much of this portion of the code is occupied with provisions for the distribution of property on the disagreement or separation of married people, and for other domestic infelicities of a more criminal nature. The prohibition of an offence in a statute does not necessarily imply the frequency of the commission of the crime itself; but so much pains are taken to point out the rights and disabilities of persons cohabiting without the sanction of lawful wedlock that the conviction is forced upon us that they were not by any means unnecessary. As an offset to this, however, we find that a lawful wife was treated with the greatest indulgence, being in many ways the equal of her husband, and in this respect the Senchus presents a marked contrast to all the other European legislation of that time, by which woman was held little better than a slave, and generally at the mercy of her father or husband, even in some instances to the taking of her life. We feel certain that our strong-minded sisterhood who are so manfully battling for social and political equality will be gratified to learn that a portion of their principles, at least, were fully recognized fourteen centuries ago, and for their edification we quote the following passage from the expressed wisdom of our ancestors:
"In the connection of equal property, if with equal land and cattle and household stuff, and if their marriage state be equally free and lawful, the wife in this case is called the wife of equal rank. The contract made by either party is not a lawful contract without the consent of the other, except in cases of contracts tending equally to the welfare of both; such as the alliance of co-tillage with a lawful tribe when they (the couple) have not the means themselves of doing the work of ploughing; the taking of land; the collection of food; the gathering for the festivals; the buying of breeding-cattle; the collecting of house-furniture; the collecting of litters of pigs; the buying of stacks and other necessaries.... Each of the two parties has the power to give refection and feast according to their respective dignity."
In case of separation, adequate protection was thrown around the wife's rights of property. If her property were equal to that of her husband at the time of marriage, she took an equal moiety of the collective lands, goods, and chattels, and, in case of dairy produce and the proceeds of the loom, two-thirds. If the property had originally belonged wholly to the husband, the wife was entitled to one-third on her separation, and if it had been her own before marriage, to two-thirds. Whether these provisions extended to their mutual claims after death, we are not informed by the glossators, but it is not improbable that they were, thus creating estates not unlike the more modern dower and courtesy of the English law. This equality of married persons was still further extended in the right of each to the disposal or guardianship of their offspring, and in their authority to demand in return the assistance of their children in poverty or decrepitude.
The relations between parent and child were the subjects of careful and minute legislation. The father was obliged to see that his daughter was educated in a manner becoming her rank, and, when at a marriageable age, to procure her a husband of suitable means and family. In return, she was to give him one-third of her first marriage gift (coibhche), and a certain proportion of other gifts received after her nuptials. Should the father be dead, his son, succeeding him as heir, was also obliged to assume the same responsibility, and received from his sister a proper equivalent at her marriage. The mother's duty to her son was similar to that of the father to his daughter, he being required to assist her in her poverty or old age, and in conjunction with the daughter to provide, if necessary, for both his parents, an obligation imposed even on grandchildren. That the father should especially have care of the daughter and the mother of the son is something very contrary to the modern ideas of domestic discipline, but it doubtless, in a primitive state of society, had the advantage of equalizing the stronger and weaker elements of the family, giving to the woman the benefit of manly protection, and to the rougher masculine nature a gentler and more humanizing influence.
Fosterage, though not unknown in other countries, was so general in ancient and mediæval Ireland as to give it a character almost peculiar to that island.
It is known to have been of very ancient origin, and to have originated in the natural relations that existed between the sept or tribe and its chief, which was one of mutual rights and duties; for, observes the Senchus, "every head defends its members, if it be a goodly head, of good deeds, of good morals, exempt, affluent, capable. The body of every head is his tribe, for there is no body without a head. The head of every tribe, according to the people, should be the man of the tribe who is most experienced, the most noble, the most wealthy, the wisest, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and be sued for losses." It will thus be easily understood, particularly by the citizens of a republic, that the authority of a chief, thus qualified, depended to a great extent on the affection and good-will of his constituents; and, in order to create more close relations between himself and them, it was customary for him to send his children at an early age to be nursed and trained by some family of his sept. The children thus placed under tutelage were regarded with equal, if not greater, affection by the foster-parents than their own. The existence of this custom may still be traced in Ireland, and well-authenticated instances of the most self-sacrificing devotion on the part of the natural child of the foster-parent to his foster-brother or sister form the theme of many of our best Irish stories and historical romances. The foster-parent for the time being stood in the place of the actual parent, and was obliged to feed, clothe, and educate the foster-child for a certain number of years, males till they had attained the age of seventeen, and females fourteen years, and the children were expected in return to compensate, succor, and in some cases support their foster-parents, as if they were their actual progenitors.
The statutes regulating fosterage occupy a large portion of the Senchus, so far as published, and affords us a fuller and more accurate knowledge of the social habits and condition of the Gaelic people in and before the fifth century than any other portion of the collection, or even all the histories of Ireland extant which profess to treat of that remote epoch. Fosterage, we are told, was of two sorts, for affection and compensation. When the latter, the fosterage price was regulated according to the rank of the chief, and varied from three cows in the case of the son of an Og-Aire, or lowest chief, to thirty cows for the son of a king. The services to be rendered for their payments, being food, raiment, and education, were proportioned to the amount, and seem to have been the subject of much elaborate legislation, not easily reconcilable to our modern notions. For instance, in the matter of food, Dr. O'Donovan renders a very ancient commentary on the first clause of the law of fosterage as follows:
"What are their victuals? They are all fed on stirabout; but the materials of which it is made, and the flavoring with it, vary according to the rank of the parents of the children. The children of the inferior grades are fed to bare sufficiency on stirabout made of oatmeal on buttermilk or water, and it is taken with stale (salt) butter. The sons of the chieftain grades are fed to satiety on stirabout made of barley-meal upon new milk, taken with fresh butter. The sons of kings are fed on stirabout made of wheaten meal upon new milk, taken with honey."
According to one authority, every foster-child should be provided with two suits of clothing, in color and quality according to the rank of his father—blay, yellow, black, and white colored clothes for the inferior grades, red, green, and brown for the sons of chieftains, and purple and blue for princes. According to another, the distinction of rank was indicated in the following manner:
"Satin and scarlet are for the son of the king of Erin, and silver on his scabbards, and brass rings on his hurling-sticks; and tin upon the scabbards of the sons of chieftains of the lower rank, and brass rings upon their hurling sticks.... And brooches of gold having crystal inserted in them with the sons of the king of Erin and of the king of a province, and brooches of silver with the sons of the king of a territory."
The course of instruction to be pursued by the foster-children was likewise regulated by the degree of the dignity of their parents. The sons of the "lower classes" were to be employed in "the herding of lambs, and calves, and kids, and pigs, and kiln-drying and combing, and wood-cutting," while the girls were expected to learn the use of the quern, or hand-mill for grinding grain, the useful household art of making bread, and winnowing corn, etc.; the young chieftains were to be taught horsemanship, shooting, swimming, and chess-playing, and their sisters, sewing, cutting-out, and embroidery. We have thus placed before us in all its simplicity, and upon the best authority, the modes of living prescribed for the youth of both sexes in Ireland at the time of its conversion to Christianity—a record valuable to the historian and the antiquarian, dissipating alike the poetic imaginings of too partial Celtic chroniclers and the voluntary misrepresentations of the Anglo-Norman writers. It may be objected that such limited views of education argued little for the civilization of the race who entertained them; but when we recall the condition of Western Europe at the time the Senchus was composed, we may well be surprised at the sound sense and practical wisdom so often found in its pages. Nor must it be supposed that the labors of the child ended with the performance of the tasks thus assigned him. There existed another and correlative species of tutelage called literary fosterage, which is thus defined in the "law of social connections":
"The social connection that is considered between the foster-pupil and the literary foster-father is, that the latter is to instruct him without reserve, and to prepare him for his degree, and to chastise him without severity, and to feed and clothe him while he is learning his profession, unless he obtains it from another person, and from the school of Fenius Forsaidh onward this custom prevails; and the foster-pupil is to assist his tutor in poverty and to assist him in his old age, and the honor price of the degree for which he prepares him and all the gains of his art while he is learning it, and the first earnings of his art after leaving the house of his tutor, are to be given to the tutor."
In addition to this excellent and equitable plan of intellectual culture, we also find in the law of tenures that the sons of tenants holding church lands were entitled to receive instruction from the holders of the benefices, which, we may presume, were not necessarily altogether of a spiritual nature. We thus find that fosterage constituted one of the most important elements of society, and, though much condemned by subsequent and partial writers, contained within itself most of the duties and responsibilities which we now divide among corporations and individuals under different names. The importance which ancient Irish lawgivers seemed to attach to this crude but not altogether unsuccessful attempt to define the relations of parent and child, employer and employed, master and scholar—questions still raised in this enlightened age—is shown in the number of the statutory enactments originally made, and the elaborate and critical glosses afterward appended to them, the whole not unworthy the notice of the modern legislator.
The land tenure has always been a subject of doubt and difficulty in Ireland, and the laws of the Senchus appear to us as little satisfactory and as hard to be understood as that recently passed in the British Parliament under the supervision of Mr. Gladstone. It seems to us, from the careful examination of the different statutes relating to it, that each chief held the whole of the land of his tribe in his own name, not, however, in his own right altogether, but partly as trustee of his tribe, and in this respect the Irish system differs materially from the feudal, which for centuries prevailed in all parts of Europe, except in the country of which we are writing. The tenants were divided into two classes, those who held by saerrath or daerrath, terms for which we can find no equivalents in the English language. The first class received from their chief, upon taking the land, and without security, sufficient cattle to stock the same, for which they were obliged to return an annual rental in kind, or, at the chief's option, its value in personal service and labor, such as working on his dun or rath, and following him in his wars. This species of tenure, except in the case of those who held immediately from the king, could at pleasure be turned into holding by daerrath, by which the tenant gave security for the stock received, and was exempt from personal and military service. The rents and their manner and time of payment varied according to circumstances, but always subject to the above restrictions, and were, of course, the exclusive property of the landlord or chief for the time being. The restrictions on the alienation of land, or rather of the good-will of it—for in fact the fee did not rest in the individual, but in the tribe as represented by its chief—were many and onerous, including forfeiture and other penalties, and were generally directed to the exclusion of members of neighboring or hostile tribes. The agrarian portion of the ancient code, in fact, while far superior in point of liberality to that of many of the then existing nations, resembled more the laws that govern our Indian reservations than those of any enlightened country of the present day. It was full of fatal and mischievous errors, and to its baleful operation have been ascribed many of the evils which centuries before and after the Anglo-Norman invasion afflicted Ireland. By jealously confining the occupancy of a certain district to one particular tribe or family, it engendered a feeling of faction, and what might be called parish patriotism, which unfortunately have outlived the cause that gave them birth, and, by persisting in considering the tribal land as indivisible, it destroyed that high sense of independence and spirit of enterprise which can only be felt and maintained by him who owns his own farm and calls no fellow-man master.
The laws relating to distress, or the form of collecting claims, such as debts, tributes, forfeitures, etc., are the least attractive and instructive portion of the work, and for dense obscurity and incomprehensibleness can only be compared to our own Code of procedure. We gather, however, from them that all civil claims and damages for injuries were collectable by a short process of the seizure of the goods and chattels of the defendant, and the retention of the same on the premises of the plaintiff, or, as in the case of cattle, in the public pound. After the expiration of a certain number of days, if the defendant did not replevin his property or disprove his opponent's claim, the goods became the absolute property of the creditor. With a humanity, however, which many suppose to be the growth of our century, the plaintiff should exhaust first the property upon the possession of which the subsistence of the defendant's family did not immediately depend, and even some articles of primary necessity were altogether exempt from seizure. Imprisonment for debt, however, partially existed, and, when the debtor had no goods and did not belong to the class of freemen, he was arrested and compelled to labor for the creditor until the demands of the latter were fully satisfied.
Such, in brief, is a résumé of the laws contained in the two volumes of the Senchus Mor already published, and which we hope soon to hear of occupying a position on the shelves of every library of reference in the country. Much yet remains of the ancient Code of St. Patrick[148] to be given to the world before the entire work is completed, and we are assured that this will be done at an early day, and in as scholarly a manner as the portion before us. We shall look eagerly for its appearance, not for its practical value as a legal study, but as a picture of a remote but interesting era and race, and as an additional evidence of how much the world owes to the Catholic Church even in the civil and political affairs of life. The science of true government has been a plant of slow but sure growth, and, while we enjoy so many of its fruits in our favored land, we must not forget that the seeds were planted with so much suffering and labor by the apostolic men who have gone to their rest centuries ago.