The Irish Race in the Past and the Present

by Augustus J. Thébaud

Here would be the proper place to speak of the Brehon law, which remained thus in antagonism to feudal customs for several centuries. Up to recently, however, only vague notions could be given of that code. But at this moment antiquarians are revising and studying it preparatory to publishing the "Senchus Mor" in which the Irish law is contained. It is known that it existed previous to the conversion of Ireland to Christianity, and that the laws of tanistry and of gavelkind, the customs of gossipred and of fostering, were of pagan origin. Patrick revised the code and corrected what could not coincide with the Christian religion. He also introduced into the island many principles of the Roman civil and canon law, which, without destroying the peculiarities natural to the Irish character, invested their code with a more modern and Christian aspect.

Edmund Campian, who afterward died a martyr under Elizabeth, says, in his "Account of Ireland," written in May, 1571: "They (the Irish) speak Latin like a vulgar language, learned in their common schools of leechcraft and law, whereat they begin children, and hold on sixteen or twenty years, conning by rote the aphorisms of Hippocrates, and the Civil Institutes, and a few other parings of these two faculties. I have seen them where they kept school, ten in some one chamber, grovelling upon couches of straw, their books at their noses, themselves lying prostrate, and so to chant out their lessons by piecemeal, being the most part lusty fellows of twenty-five years and upward."

It was then after studies of from sixteen to twenty years that the Brehon judge—the great one of a whole sept, or the inferior one of a single noble family—sat at certain appointed times, in the open air, on a hill generally, having for his seat clods of earth, to decide on the various subjects of difference among neighbors.

Sir James Ware remarks that they were not acquainted with the laws of England. He might have better said, they preferred their own, as not coming from cold and pagan Scandinavia, but from the warm south, the greatest of human law-givers, the jurisconsults of Old Rome, and the holy expounders of the laws of Christian Rome.

What were those laws of England of which Ware speaks? There is no question here of the common law which came into use in times posterior to Henry II., and which the English derived chiefly from the Christian civil and canon law; but of those feudal enactments, which the Anglo-Normans endeavored to introduce into Ireland, for the purpose of supplanting the old law and customs of the natives.

There was, first, the law of territory, if we may so call it, by which the supreme ruler became really owner of the integral soil, which he distributed among his great vassals, to be redistributed by them among inferior vassals.

There was the law of primogeniture, which even to this day obtains in England, and has brought about in that country since the days of William the Conqueror, and in Ireland since the English "plantations" of the sixteenth and seventeenth centuries, the state of things now so well known to Europe.

There was also the long list of feudal conditions to be observed, by the fulfilment of which the great barons and their followers held their lands. For their tenure was liable to homage and fealty, as understood in the feudal sense, to wardships and impediments to marriage, to fines for alienations, to what English legists call primer seizins, rents, reliefs, escheats, and, finally, forfeitures; this last was at all times more strictly observed in England than in any other feudal country, and by its enactments so many noble families have, in the course of ages, been reduced to beggary, and their chiefs often brought to the block. English history is filled with such cases.

The law of wardship, by which no minor, heir, or heiress could have other guardian than the suzerain, and could not marry without his consent, was at all times a great source of wealth to the royal exchequer, and a correspondingly heavy tribute laid on the vassal. So profitable did the English kings find this law, that they speedily introduced it into Church affairs, every bishop's see or monastery being considered, at the death of the incumbent, as a minor, a ward, to be taken care of by the sovereign, who enjoyed the revenues without bothering himself particularly with the charges.

There were, finally, the hunting laws, which forbade any man to hunt or hawk even on his own estate.