Phases of Irish History

by Eoin Mac Neill

Mr. Orpen gives an extended account of Irish law, with footnotes, references, and all the apparatus of learned exposition, compelling the respect and acquiescence of the less learned reader. Irish law, he tells us, was merely consecrated custom; implying by contrast that England and Normandy were at that time in the enjoyment of codes and statute books. In Irish law, we are told, there were no crimes. No breach of the law was regarded as an offence against the common-wealth, to be punished by the executive power of the State. The State did not interfere to enforce the law among the subjects. There were, in fact, no penalties. Every offence, from homicide down to the smallest breach of the peace was, in Irish law, merely a tort, a matter for civil litigation between the offended and the offender, and capable of being settled by an assessment of damages. But what was worse still was this, that when judgment was given and the damages assessed, there was no machinery for enforcing obedience to the decree; in legal phraseology, the law had no sanction. Unpopularity, the pressure of public opinion, some sort of boycotting, furnished the only resource of making men amenable to the law and the decrees of the courts. Credo quia impossibile!

It was not merely in twelfth-century Ireland that this wildly absurd legal system might be discovered by Alice from Wonderland, even though Giraldus Cambrensis completely failed to make a note of it. The thing was an essential vice of Celtic barbarism, and could be found in full bloom among the Gauls of Cæsar's time. Celts are impossible people, and therefore quite capable of keeping an impossible and utterly negative system of law in full operation for twelve centuries and upwards. The child's game of playing at law-courts which Irish brehons enjoyed in the twelfth century and afterwards had amused the druids of Gaul before the Christian era; and Cæsar himself is called into the witness-box. Certain forms of mental aberration are known to be infectious, and this may explain why all the great feudal lords of Ireland were fain in time to adopt this preposterous system of Celtic law with all its apparatus. Here is what Cæsar says about the druids and their judicature:

"Whosoever, be it a private individual or a people, does not obey their decree, is excluded from the sacred rites. This among them is a penalty of extreme severity. Those who are under this ban are classed among the impious and the criminal. All men abandon their society and shun their approach and conversation, lest they may suffer harm from contagion with them. When such men seek their legal right it is not rendered to them. When they seek any public office, it is not conferred on them." Mr. Orpen's comment on this passage is concise. "It was," he says, "the primitive boycott." The analogy which he thus brings down to date appears incomplete. If a man having a credit balance at the bank draws a cheque within the amount, he seeks a legal right. If that right is not rendered to him, there is something more than a boycott. Complete divestment of legal rights is not boycotting, it is attainder. It goes a long way beyond the greatest excesses of social ostracism that have been charged against the Land League or the Primrose League.

Mr. Orpen is not satisfied with this exposure of Celtic law at long and at large in his first volume. He repeats it in somewhat varied phrases in the second. Now mark how plain a tale shall put him down. In his search for this particular plum of the Celtophobe, he has travelled to the sixth book and thirteenth chapter of Cæsar's history. Mr. Orpen's historical method is identical with one of which I have had later experience, when I have seen the file of a periodical presented to the tribunal with a sentence here and a paragraph there marked by the blue pencil of a Crown Prosecutor. There is a first book in Cæsar's Gallic War. It comes before the sixth book. The first episode related in the first book is doubtless familiar to Mr. Orpen since his school days, if the exigencies of the historical indictment of a nation have not compelled him to forget it. Let us recall that first episode of the Gallic War, bearing in mind all the time the doctrine that under Celtic law there were no crimes against the State, no sanction or penalty for breaches of the law except payments in composition, and no machinery for enforcing obedience.

The first episode in the Gallic War is the migration of the Helvetii. Cæsar tells us that this enterprise was undertaken by the Helvetian state at the instance of a great noble named Orgetorix, and that Orgetorix was commissioned to take charge of the preparations. Before all was ready, an accusation was brought forward against him of aiming at the subversion of the republican constitution of the state and at the usurpation of supreme power. This was not a tort, a matter for private litigation. The Helvetii, says Cæsar, according to their custom (it was, therefore, no exceptional proceeding) sought to compel Orgetorix to stand his trial under arrest [ex vinculis]. If found guilty, Cæsar adds, the penalty which he must duly incur was death by burning. Here we have the crime, the State tribunal, the executive authority, and the penalty fore-ordained; not exactly features of "the primitive boycott." Orgetorix, we are told, was by far the greatest and wealthiest noble of his people. He stood in no fear of a boycott. Cæsar continues: "On the day fixed for the trial, Orgetorix gathered from every side and brought with him to the place of judgment all his slaves to the number of ten thousand, and all his dependents and rent-payers, of whom he had a great number. By this array, he extricated himself from being placed on trial." Here was a crucial test of the question, whether there was or was not what Mr. Orpen calls "machinery" for enforcing the law. The State, says Cæsar, (civitas is his word) was provoked by this conduct and set about the enforcement of its law by force of arms. The magistrates, meaning in the Roman sense the principal officers of State, collected from the land a large body of men. But while this was going on, Orgetorix died; and it was suspected, so the Helvetii believe, that he committed suicide.

All this is related in the first four chapters of the first book of Cæsar's Gallic War. It is not to the purpose, and so we are invited to judge the case from a blue-pencilled extract from book vi., chapter 13.

The notion of a system of Celtic law from which all cognisance of crimes as crimes, all State authority, all power of enforcement was absent, which had no sanction except public opinion exercised through boycotting, is borrowed from Sir Henry Maine's "Early History of Institutions." Sir Henry Maine, however eminent his authority, acquired this notion from an inspection of a portion of the Ancient Laws of Ireland. The sort of judicature which he happened to find there was that which was administered by the Irish brehons in courts of arbitration. Mr. Orpen shows familiarity with a much wider range of Irish literature in English translations. When he wrote his history, in which he claims expressly for himself the title of historian, he knew certain things, but the necessities of the case compelled him to forget he knew them. He knew quite well that the ancient literature in general ascribes the judicial function to every Irish king, the head of every Irish state, great or small. He knew that a hundred and a hundred times the good king is said to be a just judge, and the unjust judge is said to be a bad king. But when he assumes the rôle of historian, he puts the microscope to the blind eye, and, though he knows the facts are before it, he is unable to see and describe them. In the very chapter which contains his indictment of Irish law, he quotes Standish Hayes O'Grady's fine collection of pieces of Irish medieval literature, the Silva Gadelica. I observe that his footnote refers the reader to the Irish text, not to the English translation, and the reader may conclude, if it please him, that Mr. Orpen is most at his ease among Irish originals. Since most of those for whom Mr. Orpen's work is intended are not familiar readers of Middle Irish, I would refer them to the volume of the English translations, where they will be able to understand and verify. On page 288 we find how Cormac, a stripling, came to Tara, where in his father's house the usurper MacCon held rule. When he arrived in the royal house, a lawsuit was in progress. The story proceeds thus:

"There was in Tara a she-hospitaller, Bennaid, whose roaming sheep came and ate up the queen's crop of woad. The case was referred to Lughaidh [MacCon the king] for judgment, and his award was: the queen to have the sheep in lieu of the woad. 'Nay,' Cormac said, 'the shearing of the sheep is a sufficient offset to the cropping of the woad; for both the one and the other will grow again.' 'That is the true judgment,' all exclaimed: 'a very prince's son it is that has pronounced it!' ... MacCon's rule in sooth was not good: the men of Ireland warned him off therefore and bestowed it on Cormac."

Here, quite as a matter of course, we find a king sitting in judgment, without even a brehon for assessor, on a civil case of no great importance, a case of damage done by straying sheep. The king judged unfairly, not indeed because it was in his wife's lawsuit, but because he made an award of excessive damages. His people deposed him and gave the kingship to the youth who proposed the fair award. And so intimately was the judicial office combined with the kingly office in the medieval Irish mind, that the capacity of judging rightly was thought to be hereditary in the royal blood: "A true judgment, he who pronounced it is in truth the son of a king!"

From this same work, cited by Mr. Orpen, I could quote example after example of the same fact, quite well known to Mr. Orpen, but "in the heat of hatching, the hen does not know an egg from a stone." I could also cite a bookful of instances from the annals, the historical poems, the ancient stories, and other sources, showing that the ancient and medieval Irish were quite as familiar as were the magistrates of the Helvetian State with criminal jurisdiction and with penalties in every degree, including the death penalty, as the sanction of their laws.