RUKSUNIVERSITPit I ITor-^.__

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CONTENTS

I. —Introductory :

The form oi Celtic society—notions and theories in vogue—Dr. Goddard Orpeh—Dr. P. W. Joyce—Sir Paulnbsp;Vinogradoff—Mr. Christopher Dawson—Father Davidnbsp;Mathew—Mr. Dawson’s qualified notion—his distinctionnbsp;between barbaric and civilised society—the Pax Romananbsp;cult—the notion of immutability in Celtic society—decaynbsp;of Irish institutions-rCeltophobia—superficial evidence—nbsp;I Dr. W. F. Butler maintains thenbsp;nbsp;nbsp;nbsp;theory—his examples

disprove it—Irish freeholders ' numerous—their expropriation—changes of ownership under Irish rulers— problem of the expansion of ruling kindreds-—a tentativenbsp;explanation—cities of the fields^tagricultural not pastoralnbsp;—facts incredible—Csesar and Gommios—a false view ofnbsp;civilisation—Britain’s Dark Age—Nationalism and Nationality—the West-European factor.nbsp;nbsp;nbsp;nbsp;...nbsp;nbsp;nbsp;nbsp;.¦¦nbsp;nbsp;nbsp;nbsp;page 5

II. — Laws and Institutions of Ireland :

Their European character—^insular not isolated—the Celtic influx-i-the Celtic polity—the quest of the primitive—Pre-Celtic inhabitants. ...nbsp;nbsp;nbsp;nbsp;...nbsp;nbsp;nbsp;nbsp;... page 56

III. —Survival of Pre-Celtic Institutions ;

The status of craftsmen—the status qf yrqjnep—Druidism of Pre-Celtic origin—the Druids were not priests—nbsp;geographical range of Druidism—Greek estimate—Romannbsp;hostility—scope of Druidical culture—the Druids innbsp;relation to Law—survival of Druidism in Ireland—nbsp;Druids and the use of writing—the use of writing mnbsp;Gaul—Meillet misunderstands—invention of the Oghamnbsp;alphabet—transformed Druidism in Christian Ireland—nbsp;the Jurists originally Druids—cultural background ofnbsp;Irish laws.nbsp;nbsp;nbsp;nbsp;•••nbsp;nbsp;nbsp;nbsp;••.nbsp;nbsp;nbsp;nbsp;••• page 63

IV. —The Beginning of Written Irish Laws :

The story of Cenn Faelad—its implication—beginnings of written Irish literature—modern misconception—thenbsp;Commission of 1852—merits and demerits of the Commission’s work—Irish law national not local—explanationnbsp;of its national character. ...nbsp;nbsp;nbsp;nbsp;...nbsp;nbsp;nbsp;nbsp;... page 84

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V.—The Political Framework of Ancient Ireland :

Early political groupings—imaginary tribal basis—the Tuath and its franchise—Law national in scope butnbsp;local in operation—structure of the Tuath—successionnbsp;of kingship—functions of kingship—rural character ofnbsp;the Tuath. ............... page 91

VL—Public Assemblies and Kingship :

* The assembly the chief social organ—its functions— hegemonies—the Assembly of Carman—political andnbsp;cultural features—the National Assembly—kings asnbsp;executive officers at law—complex structure of the Tuathnbsp;• —Caesar’s evidence. •••nbsp;nbsp;nbsp;nbsp;¦ ¦¦nbsp;nbsp;nbsp;nbsp;¦ ¦¦nbsp;nbsp;nbsp;nbsp;100

VIL—Clientship :

Caesar’s evidence for Gaul—Irish evidence—relations of Client and Patron—two kinds of Client—Client servicesnbsp;—Roman analogies—advantages of Clientship—a king’snbsp;Clients................... page 118

VIII. —The Period of Decay :

Early influence from Feudalism—introduction of Feudal institutions—legal aspect of the Anglo-Norman Invasion— the Plantagenet Lordship not based on conquest—illegalnbsp;policy of Henry II—Henry’s illegalities repeated by hisnbsp;grantees—the Treaty of Windsor—Henry’s lawless policynbsp;continued by John—how Feudal judicial procedure commenced—the outlawry of the Nation. ... page 129

IX. —Later Developments :

Development of town life—Irish law rehabilitated—the fiction of immutability—defects of Irish law—effects of itsnbsp;administration.nbsp;nbsp;nbsp;nbsp;page 145

EARLY IRISH LAWS

CHAPTER I

INTRODUCTORY

When I was attracted to the study of Irish History it was natural that I should come tonbsp;it imbued with the notions in vogue at the time,nbsp;especially with the notions in vogue about thenbsp;forms of government and society that werenbsp;supposed to have prevailed in ancient andnbsp;medieval Ireland and among other peoplesnbsp;who were classed as Celtic. I soon discoverednbsp;that these notions, so far as Ireland was concerned, were not based on anything that couldnbsp;be called study, on any kind of systematicnbsp;investigation. I discovered also that the samenbsp;notions were quite modern and had come intonbsp;vogue among educated people in the coursenbsp;of the nineteenth century mainly. As theynbsp;Were not based on systematic study, so alsonbsp;they were not reduced to any form of intelligible description in detail. The whole accountnbsp;that one could find of the social and politicalnbsp;structure in what was called Celtic Irelandnbsp;could be summed up quite justly in the wordsnbsp;of T. D. Sullivan’s ballad :

“ Chiefs and clans in all directions,

With their far and near connections.”

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We were told on all hands that Irish social and political life took the form of the Clannbsp;System. As evolutionary theories regardingnbsp;human society became more fashionable,nbsp;writers who wished to appear learned sometimes preferred to say the Tribal System. Dr.nbsp;Goddard Orpen’s work, Ireland Under thenbsp;Normans, was published in 1911. Its mainnbsp;thesis is an endeavour to show that the Feudalism forced upon Ireland in the twelfth centurynbsp;and later was justified by the primitive conditions obtaining in Ireland until then. In hisnbsp;first chapter Dr. Orpen says : “ Ireland wasnbsp;still in the Tribal state. The allegiance of thenbsp;free-born Irishman was given in the first placenbsp;to the head of his family, kindred or sept (Fine),nbsp;and through the family head (Cenn Fine) tonbsp;the chief of the tribe of which his familynbsp;formed an element related by real or supposednbsp;remoter kinship and connected by commonnbsp;ownership of land. The Irishman’s countrynbsp;was the tuaih or territory belonging to hisnbsp;tribe.”

It would not be just to say that all this came out of Dr. Orpen’s head, but it certainly allnbsp;came out of the heads of his particular tribe,nbsp;the class of writers who have written aboutnbsp;Irish social history without having taken thenbsp;slightest trouble to investigate it. Nor can itnbsp;be regarded as mere fiction. It was as confidently believed, repeated, and accepted as wasnbsp;the fable of Hengist and Horsa in Englishnbsp;history books within our memory.

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One naturally turns for information to the work of Dr. P. W. Joyce, A Social History ofnbsp;Ancient Ireland, which was published in 1903.nbsp;Joyce had a full acquaintance with the materialnbsp;upon which his work ought to depend, so farnbsp;as this material had been published in hisnbsp;time. Much of what he writes is based onnbsp;original and laborious investigation, and wherenbsp;he brings forward information of an unfamiliarnbsp;kind he usually cites his authorities for it. Henbsp;cites no authorities for the following accountnbsp;headed “ Groups of Society,” regarding it, nonbsp;doubt, as a thing accepted and beyond question :

“ The people were formed into groups of various sizes, from the Family upwards. Thenbsp;Family was the group consisting of the livingnbsp;parents and all their descendants. The Septnbsp;was a larger group descended from commonnbsp;parents long since dead ; but this is an imported word, brought into use in comparativelynbsp;late times. All the members of a Sept werenbsp;nearly related, and in later times bore the samenbsp;surname. The Clan or house was still larger.nbsp;Clann means children, and the word thereforenbsp;implied descent from one ancestor. The Tribenbsp;{luatK) was made up of several septs, clans ornbsp;houses, and usually claimed, like the subordinate groups, to be descended from a commonnbsp;ancestor.” (I, 166.)

This piece of classification assumes the aspect of constructive knowledge based onnbsp;objective reality. When we look into it, wenbsp;recognise that the only real information which

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it purports rightly or wrongly to give is that the community called tuath was a tribe claimingnbsp;descent from a common ancestor. The remainder we could have supplied for ourselves.nbsp;Joyce does not tell us what Irish words corresponded to sept and clan, though these arenbsp;printed as technical terms in heavy type withnbsp;capital initials. He does indeed tell us thatnbsp;the Irish word clann does not mean what isnbsp;called a clan in his apparently technical description. Further on he avows that “ the theory ofnbsp;common descent became a fiction except fornbsp;the leading families . . . the tribe became anbsp;mere local association of people, occupying anbsp;definite district and bound together by commonnbsp;customs, by common interests, by living undernbsp;one ruler, and in some degree by the fictionnbsp;of descent from one common ancestor.” Wenbsp;note the use of the past tense in the wordnbsp;“ became.” Joyce does not suggest whethernbsp;this change came about in remotely prehistoricnbsp;or relatively recent times. He does not saynbsp;that there was any known period in the socialnbsp;history of Ireland at which the change hadnbsp;not already taken place. He offers no evidencenbsp;that the community technically known as anbsp;tuath was of common ancestry or was joinednbsp;in a fictitious claim to common ancestry. Clearnbsp;and compact as it is, Joyce’s account of thenbsp;tribe falls utterly to pieces when he goes on tonbsp;exemplify it. He gives for an example Kinel-Owen (Cenél Eoghain) “ who possessed thenbsp;principality of Tir-Owen (Tir Eoghain)

INTRODUCTORY nbsp;nbsp;nbsp;9

(Tyrone), and were supposed to be descendants from Owen, son of Niall of the Nine Hostages.”nbsp;These, he says, included the septs of 0’Cahan,nbsp;MacQuillan, O’Flynn and many others. Nownbsp;the territory of Cenél Eoghain comprised notnbsp;one tuath only but many tuatha. The “ sept ”nbsp;of MacQuillan was not included by descentnbsp;under Cenél Eoghain. The MacQuillans werenbsp;a Welsh family whose name took an Irishnbsp;form, and they acquired their territory bynbsp;grant under the feudal lordship of Ulsternbsp;established by John de Courcy in the twelfthnbsp;century. The “sept” of O’Flynn were not andnbsp;were not supposed to be descendants of Niall,nbsp;Joyce, in short, in his endeavour to providenbsp;a notion in vogue with a semblance of structural features, is merely conforming to annbsp;opinion founded on knowledge much inferiornbsp;to his own. The late Sir Paul Vinogradoff wasnbsp;one of the chief exponents in his time of anbsp;somewhat rigid evolutionary theory of thenbsp;development of human society. The methodnbsp;tends to produce a passionate eagerness in thenbsp;search for primitive examples. In his Outlinesnbsp;of Historical Jurisprudence (1920), under anbsp;heading “ The Law of the Tribal Federation ”nbsp;(Vol. I, chap. 10), he deals with the examplenbsp;of Albania : “ In Albania the system of socialnbsp;organisation is founded on the alliance of anbsp;number of clans in the larger body of the tribe.”nbsp;I venture to say that in this terminology Vinogradoff has allowed himself to pass tacitlynbsp;from the meaning of tribe as it is commonly

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understood to a very different meaning. The tribe so described by him is based on a politicalnbsp;alliance and no longer on the fact or fiction ofnbsp;a common ancestry. In the same chapter wenbsp;read: “In ancient history there are manynbsp;instances of tribal federations and federalnbsp;governments. Caesar, for example, gives us anbsp;remarkable description of the political state ofnbsp;German tribes-—a description in which everynbsp;word counts, as it was used by a man of actionnbsp;and is free from the influence of rhetoric ornbsp;political prejudice.” This, indeed, is thenbsp;general character of Caesar’s descriptions, andnbsp;we may add that they aim at precision butnbsp;suffer often from being too concise. Vinogra-doff gives the passage from Caesar in thenbsp;original Latin, and makes upon it the followingnbsp;comment :nbsp;nbsp;nbsp;nbsp;“ The most striking feature in

Caesar’s account is that there is no common tribal authority in time of peace, though withinnbsp;the regional clans themselves disputes arenbsp;settled by the chieftains. As soon, however,nbsp;as war breaks out, a common authority isnbsp;elected for the whole tribe, and this representative (magistratus) of the union wields powernbsp;over life and death.” Here Vinogradoff importsnbsp;the technical vocabulary of the tribal theorynbsp;into a passage of Caesar in which not one wordnbsp;corresponds to the terms imported. Vinogra-doff’s tribe replaces Caesar’s civitas, his clannbsp;replaces Caesar’s pagus, his chieftains replacenbsp;Caesar’s principes regionum.

When we eome to the Highlands of Scotland,

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where the Clan System is supposed to have lasted longest in this part of the world, historical investigation is satisfied for Vinogradoffnbsp;by a quotation from Waverley. The very wordsnbsp;spoken by the Highland chieftain in the novelnbsp;are given as though they were taken from thenbsp;record of a court of justice. I confess I do notnbsp;know to what degree Sir Walter Scott’s description of the Clan of Fergus Macivor innbsp;1745 tnay be accurate. If there be evidencenbsp;outside of works of fiction, it is such evidence,nbsp;and not its presentation in literary form, thatnbsp;We ought to look for in a work of history.nbsp;Assuming however that Scott, who was annbsp;amateur antiquarian as well as a vei^ greatnbsp;writer of fiction, has given us in this instancenbsp;a true picture of a Highland clan, it is enoughnbsp;to say that nothing of the kind and nothingnbsp;resembling it is described or implied as existingnbsp;in Ireland, so far as my knowledge goes, in thenbsp;whole range of relevant Irish literature.

Vinogradoff passes on to Wales and gives us what he calls one simple and characteristicnbsp;example of a Welsh clan-unit. The examplenbsp;is merely the extension, by one added generation,nbsp;of the Irish derbfine described by me in thenbsp;following pages. It can only be called a clannbsp;by wresting that word away from any sensenbsp;in which it is commonly understood.

In Phases of Irish History (1920), in the tenth chapter, I deal with this matter mainly to thenbsp;extent of negative statement as regards thenbsp;theory of a tribal constitution or clan system

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in Irish society and the associated theory of a communal ownership of land. Writingnbsp;before Vinogradoff’s work was published, Inbsp;said : “I think that the popular notion of anbsp;Gaelic clan is derived from Scottish writersnbsp;like Thomas Campbell and Sir Walter Scott.nbsp;... I do not know how far such pen picturesnbsp;are true of Scotland and the time to whichnbsp;they relate. I do know that you will findnbsp;nothing of the kind in historical Ireland.” Inbsp;go on to specify some of the things, mainlynbsp;verbal usages misunderstood, upon which thenbsp;illusion is grounded in the minds of certainnbsp;modern writers. In Celtic Ireland (1921) Inbsp;have dealt at length with the form and naturenbsp;of the Irish family group, the fine, which, owingnbsp;to the faulty translations of the Ancient Irishnbsp;Law tracts, has often been mistaken for anbsp;tribal unit or clan. To what I have said therenbsp;on the subject of joint ownership of land bynbsp;such family groups I have to add, for I thinknbsp;it should be clearly understood, that withinnbsp;such groups each man was owner of his ownnbsp;land in severalty. It has come to my knowledgenbsp;that when my study, imperfect as it was, ofnbsp;this matter became known to Sir Paul Vino-gradoff, he avowed to more than one personnbsp;on separate occasions that it called for a revision of the treatment of the matter in hisnbsp;published work.

For Mr. Christopher Dawson as an historian I profess great admiration. Not the leastnbsp;admirable part of his work has been making

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war upon false and ill-founded notions of history which had obtained widespread acceptance so long as they were able to hold the vogue.nbsp;When Mr. Dawson undertakes to deal withnbsp;the structure of Celtic society he is not contentnbsp;with a blind acceptance of the vogue; he acceptsnbsp;it because he likes it, and with his eyes open.nbsp;He is like the man who had spent a lifetimenbsp;in prison and who, when he was released,nbsp;begged to be put in prison again-—^he found itnbsp;pleasanter. Mr. Dawson had read what I hadnbsp;written in refutation of the vogue so far asnbsp;concerned the imagined clan system or tribalnbsp;system in ancient and medieval Ireland. Henbsp;had read the endorsement of my argument bynbsp;Professor Macalister. He sets aside Professornbsp;Macalister’s studies and mine, dismissing themnbsp;with the hardly courteous description ofnbsp;“ patriotic protests ” (The Making of Europe,nbsp;1932, p. 69.) It is, I think, right and fittingnbsp;to challenge Mr. Dawson, upon his reputationnbsp;as an historian, to state where is the evidencenbsp;Upon which he bases his contrary opinion, andnbsp;what and whose are the studies and investigations upon which that evidence is based. Wenbsp;have a proverb in Irish describing a certainnbsp;kind of testimony : “ Dubhairt bean liom gonbsp;ndubhairt bean lei ”—a woman told me thatnbsp;a woman told her. Has Mr. Dawson reallynbsp;any better evidence than this for a view whichnbsp;he seriously puts forward as an historian, andnbsp;for imputing a certain obliquity of motive tonbsp;Professor Macalister and to me ?

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Errors of this kind can lead to great falsifications of history. I have in my hand a book by Father David Mathew, The Celtic Peoplesnbsp;and Renaissance Europe (1933). Its main thesisnbsp;is that a form of society existed among thenbsp;peoples whom the writer classes as Celts, whichnbsp;refused to mix with Renaissance civilisation asnbsp;oil refuses to mix with water. The Celticnbsp;tribal form of society, we are told, extendednbsp;all the way from Cape Wrath to Cape Clear,nbsp;and its incapacity for assimilating the Europeannbsp;developments which began with the Renaissance offers a complete and sufficient explanation of “ the fate of the Celtic peoples in thenbsp;fifteenth century.” The last phrase is takennbsp;from the introduction, which again is writtennbsp;by Mr. Christopher Dawson. No greaternbsp;perversion of history is possible—the truenbsp;explanation is pushed out of sight in favournbsp;of a figment sustained without evidence andnbsp;in spite of evidence to the contrary.

Mr. Dawson is not content with adherence to a notion which has held the vogue by virtuenbsp;of being a cheap and easy way of filling thenbsp;vacuum of knowledge and enquiry. He proposes to consecrate this notion, raising it tonbsp;the dignity of a principle, which enables himnbsp;to distinguish between barbaric and civilisednbsp;society. In The Making of Europe (p. 68) henbsp;writes : “ The essence of barbaric society isnbsp;that it rests on the principle of kinship rathernbsp;than on that of citizenship, or that of thenbsp;absolute authority of the State. It is true that

INTRODUCTORY

{ünship is not the only element in tribal society ; in practically every case the territorial and thenbsp;niilitary factors also intervene. But whereasnbsp;in a civilised state the unit is the individual ornbsp;the economic group, the unit of tribal societynbsp;IS the group of kinsmen. A man’s rights dependnbsp;not on his direct relation to the state, but onnbsp;his position in the kindred, and in the samenbsp;t^ay crime is not conceived as an offencenbsp;against the state, but as an occasion of feud ornbsp;negotiation between two groups of kinsfolk.nbsp;The guilt of blood lies on the whole kindrednbsp;Ilf the slayer and must be atoned by compensation to the kindred of the slain.”

And now comes the qualification which enables Mr. Dawson to say when a tribe is not a tribe, and how a clan is usually not a clan.

It is true that the higher political unit of the tribe or clan does not necessarily consist ofnbsp;men of common blood, though they are aptnbsp;to claim such unity by some genealogicalnbsp;fiction. It is usually a territorial or militarynbsp;linion of groups of kinsmen.” The word territorial is twice used in these passages as a meansnbsp;of disguising the idea which should have beennbsp;^presented by the word civil or political.

“ Consequently, in spite of the protests of patriotic Irish scholars, such as Professornbsp;MacNeil(l) and Professor Macalister, it isnbsp;togitimate to describe the social organisationnbsp;of Celtic Ireland as a tribal one, since it was,nbsp;00 less than that of the ancient Germans, basednbsp;On kinship groups, such as the sept or the clan.”

EARLY IRISH LAWS

The evidence is Waverley, and the value of “ consequently ” and “ since ” in Mr. Dawson’snbsp;historical method may be assessed accordingly.nbsp;A footnote adds : “ But as we have pointed out,nbsp;the tribe is not necessarily a union of kinsfolk.nbsp;In the majority of cases it consists, as innbsp;Ireland, of a number of such groups or septs.quot;

Mr. Dawson knows well that that is not the meaning attached to the word tribe for anynbsp;purpose or in any use other than the supportnbsp;of an unhistorical and unscientific theory.

If the “ tribe ” in this new and convenient sense, the barbaric society in essence, is notnbsp;shown by any evidence to have existed innbsp;Celtic Ireland, it will be found to be quitenbsp;an accurate description of the democracy ofnbsp;ancient Athens or of the populus of ancientnbsp;Rome. In both cases the whole free communitynbsp;consisted of a number of genealogical groupsnbsp;or septs. In the case of Celtic Ireland Mr.nbsp;Dawson, although badly informed, and not toonbsp;willing to learn, makes plain the kind of groupsnbsp;of kinsfolk that he has in mind. It is the groupnbsp;to which compensation must be paid in thenbsp;case of homicide of one of its members. Innbsp;Celtic Ireland (p. 119) I have shown whatnbsp;precisely was the extent and constitution ofnbsp;such a group. Those who were entitled tonbsp;receive compensation were those who had thenbsp;same father, grandfather or great-grandfather asnbsp;the man who was killed. Further, I shownbsp;(p. 165) that the same form and extent of thenbsp;legal family group exists at present in India

INTRODUCTORY

under Hindu law. My study of this feature of ancient Irish law led me to the conclusionnbsp;that it originated in a more ancient patrianbsp;potestas such as existed in Roman law ; thatnbsp;the Irish legal kin represented those who innbsp;an earlier stage of society would have comenbsp;Under the power of a pater familias, exercisingnbsp;all their legal rights through him ; and thatnbsp;the community of rights thus created wasnbsp;continued in the group after the patria potestasnbsp;had ceased to be their common bond. Quitenbsp;independently the same explanation for thenbsp;origin of the Hindu joint family is given by anbsp;recognised authority, John D. Mayne, in Hindunbsp;Law and Usage (Cap. VII). This is the kindnbsp;of kin which was operative within an Irishnbsp;tuath. For some purposes the operation ofnbsp;kinship extended two degrees wider. In Walesnbsp;find the same kind of kin, normally thenbsp;descendants of a great-grandfather, in certainnbsp;Cases extending to a somewhat wider zone,nbsp;ueyond these extensions kinship had no operation whatsoever. When I say that it was opera-this must not be understood to meannbsp;that the kin so constituted formed an organicnbsp;part or performed any organic function in thenbsp;structure and the functioning of the tuath. Itnbsp;IS an error to say the tuath was composednbsp;?t such kins. Under English law, if a man diesnbsp;^htestate, the group of persons who may benbsp;entitled to succeed to his estate requires to benbsp;ascertained. Before his death that group as anbsp;group might be regarded as non-existent. In

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like manner under Irish law it was only when assets or liabilities required to be assessednbsp;among the members of a legal kin that suchnbsp;a kin existed in the sense of having any operation or activity.

To my mind Mr. Dawson’s errors exemplified in the passages quoted are not confined to thenbsp;facts. The very meaning of civilisation isnbsp;involved in his argument. He contrasts twonbsp;forms of society—the barbaric and the civilised.

It is not easy to see why individualism should be regarded as a higher form of civilisationnbsp;than kinship. For my part I repudiate fromnbsp;my heart and mind any doctrine that proposesnbsp;to base civilisation on State absolutism. It seemsnbsp;to me that this notion of civilisation, if it isnbsp;indeed seriously entertained and not merelynbsp;put forward as an interesting antithesis, isnbsp;very closely akin to that pagan worship of thenbsp;State against which His Holiness Pope Pius XInbsp;has recently warned the world. Shall we nownbsp;be asked to believe that Marathon was a victorynbsp;for barbarism over civilisation, or that Mexiconbsp;as we see it to-day is more civilised thannbsp;Attica was in the time of Pericles ? In thenbsp;same spirit Mr. Dawson is a wholeheartednbsp;admirer of the Pax Romana. I shall probablynbsp;be accused of denying that there was anythingnbsp;good in the Roman Empire when I say, as Inbsp;have written in the following pages and repeatnbsp;here with special reference to Mr. Dawson’snbsp;attitude towards history and civilisation : thenbsp;worship of success, the worship of bigness.

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the worship of the State'—we may say in short, the worship of the Beast and his image—it isnbsp;in the spirit of this abasement that the historynbsp;of the Roman power has been written, andnbsp;iw historian has yet faced the other side ofnbsp;the picture, the amount of steam-rolling ofnbsp;humanity that went to make up the Pax Romana.

With all that is to be said in its favour, the Pax Romana would have been an immensenbsp;^larnity for civilisation and for mankind ifnbsp;Ood in His providence had not made the Romannbsp;power a medium for the propagation of Chris-tianity. Nowhere can the results of the Paxnbsp;Romana be studied more clearly or in morenbsp;detachment than in the island of Britain. Itsnbsp;general effect has been told in the words of anbsp;remarkable prophecy by the historian Tacitus,nbsp;whose father-in-law. Agricola, completed thenbsp;Roman conquest. Having detailed the measuresnbsp;3^opted by Agricola to impose civilisation innbsp;the Roman manner on the conquered Britons,nbsp;^nd having told of the rapid success from thenbsp;Roman point of view that attended thosenbsp;measures, Tacitus goes on to say: Idqtienbsp;apud imperitos humanitas vocahatur cum essetnbsp;pars servitutis, “ and this by those who had notnbsp;sense enough to know was called civilisationnbsp;^oen in truth it was a factor of enslavement.”nbsp;the history of the Britons under Roman rule,nbsp;to be distinguished from the history of Romannbsp;i^le over the Britons, and the history of thenbsp;Rritons in the Post-Roman period remain yetnbsp;to be written. When it is written, this sentence

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of Tacitus will stand at the beginning and at the end of it.

The same sort of whole-hearted adulation has characterised the attitude of historians fornbsp;the most part towards the Renaissance. Againnbsp;I may expect to be charged with denying anynbsp;good in the Renaissance when I say that innbsp;many ways it operated and still operates as anbsp;setback to European civilisation. It broughtnbsp;popular culture, the traditional and vital cultures of the peoples, into contempt and enthroned an artificial culture confined to anbsp;privileged few and imbued everywhere with anbsp;spirit of snobbishness and aflFectation. I couldnbsp;wish it had been true, as Father David Mathewnbsp;professes to have found in his somewhatnbsp;paperish vision of Ireland “ under the Tudors,”nbsp;that the Renaissance in these governing respectsnbsp;failed owing to the clan system or any othernbsp;system, to find a foothold in Ireland. Renaissance ideas, potent among the new conquerorsnbsp;and possessors, but able to make a strongnbsp;lodgment among the conquered and dispossessed, overthrew in Ireland a rich nationalnbsp;culture and replaced it by a pretentious andnbsp;imitative vulgarity.

The Irish laws and institutions described in the following pages, taking them all together, asnbsp;parts of the national framework, were at theirnbsp;highest development when they were first reduced to writing and during the century or twonbsp;that followed before the pressure of thenbsp;Norse invasions became intense. In the later

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that are added to the law we can see a progressive decadence innbsp;the outlook of the jurists themselves and in thenbsp;^ws and institutions which they describe,nbsp;¦by the time of the latest commentators somenbsp;cf the early institutions had become whollynbsp;obsolete, and some had even become quitenbsp;^^^utelligible to the juristic writers. Thenbsp;official editors were unaware of this kind ofnbsp;change. They treat the whole mass of materialnbsp;if it were written at one period and shouldnbsp;therefore be taken as affording a coherentnbsp;description of a single and permanent state ofnbsp;things. Joyce, in his Social History of Ancientnbsp;handles this matter and many othernbsp;diatters in precisely the same way. A thousandnbsp;years in expositions of this kind are the samenbsp;^ a day, and a day as a thousand years. Whatnbsp;Was written in the seventeenth century isnbsp;supposed to hold good for the seventh. Whatnbsp;is Written in the seventh for the seventeenth.nbsp;A page dealing with the learning of the earlynbsp;Jdonastic period (Vol. i, p. 33) is illustratednbsp;dy a plate exhibiting gold ornaments of thenbsp;bronze Age.

, quot;^he decay of Irish institutions begins with ue disturbances of the national order broughtnbsp;^bout by the Norse invasions. The first clearnbsp;symptom of it may perhaps be discerned in anbsp;^ontemporary entry of the Annals of Ulsternbsp;cr the year 873 ; “ The Assembly of Tailtenbsp;^as not held in the absence of just and worthynbsp;Cause, a thing we have not heard to have

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befallen from ancient times.” Three years later, and again five years later, the failure tonbsp;hold the assembly is recorded. After thatnbsp;there is no more about it until 916. In thatnbsp;year Niall Glundubh became King of Ireland,nbsp;and the annalist writes : “ The assembly ofnbsp;Tailte was held by him, which had not beennbsp;held for a long time before.” Considering thenbsp;small amount of ground that the Norsemennbsp;during three centuries were able to gain innbsp;Ireland, it might at first sight appear hardlynbsp;credible that their incursions and settlementsnbsp;should have produced any deep or lasting effectnbsp;on the national life. Their chief permanentnbsp;settlements were Dublin, Waterford and Limerick. They held a small stretch of territorynbsp;along the seaboard northward and southwardnbsp;from Dublin, a still smaller territory betweennbsp;Waterford and the sea and probably not morenbsp;than a few square miles of land adjoiningnbsp;Limerick. The extent of these settlements,nbsp;however, affords no measure of the strainnbsp;imposed by them on the entire country. Whatnbsp;this must have been we can better estimatenbsp;from their activities in neighbouring lands.

Let us go back four years before that first abandonment of the national assembly. Innbsp;870 Olaf and Imar, joint kings of the Norsemennbsp;of Dublin, fitted out an expedition from Dublin,nbsp;sailed to the Firth of Clyde, besieged therenbsp;the ancient fortress of the Britons at Dumbarton which they had held for centuriesnbsp;against the neighbouring Scots and Piets.

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After a siege of four months, an operation unexampled until then in this part of thenbsp;World, they captured and destroyed the fortress.nbsp;The following year, the Irish annalist relates,nbsp;they returned to Dublin with 200 ships, bring-^ug a very great multitude of men. Angles andnbsp;britons and Piets, in captivity to Ireland.nbsp;Norse armies in the same period literallynbsp;Walked over England in every direction. Thenbsp;Norsemen were in possession of all the islandsnbsp;uf Scotland and of Caithness, Argyllshire andnbsp;Galloway on the Scottish mainland, and thenbsp;Ule of Man. Under a Norse leader from thenbsp;Orkneys the “ Normans ” took possession ofnbsp;northern France from Flanders to Brittany. Thenbsp;Wide plains of Ireland and her great shelteringnbsp;harbours gave every opportunity for extensivenbsp;conquests. The small amount of territorynbsp;which the Norsemen were actually able tonbsp;occupy, instead of indicating a small degree ofnbsp;strain on the people of Ireland, has directlynbsp;the opposite significance. Only the most deter-nained resistance and the most constantnbsp;readiness to resist could have kept them withinnbsp;those small bounds. The Battle of Clontarfnbsp;in 1014 was decisive in the sense of puttingnbsp;3^n end to the hope of a Norse conquest. Thenbsp;event was epitomised in the song of an Icelandicnbsp;poet ;

“ Brian fell but saved his kingdom.”

Brian’s high-kingship, however, had been purchased at the cost of a great breach in thenbsp;national tradition, and it was followed by half

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a century of disruption. At the end of that time, when the high-kingship was restored, anbsp;strong influx of feudal ideas from the continentnbsp;is already visible. In 1169 fully organisednbsp;feudalism with a powerful military backingnbsp;made its entry into Ireland, and within aboutnbsp;half a century feudal lordships had beennbsp;established here and there in regions coveringnbsp;two-thirds of the country. Apart from thenbsp;permanent outlawry of the Irish, the presencenbsp;of this rival system necessarily accelerated thenbsp;decay of native institutions. It is thereforenbsp;to be understood that the account of Irish lawsnbsp;and institutions here given applies in its fullnessnbsp;only to the earlier period, let us say down tonbsp;the year 900 or thereabouts.

The modern figment of a Celtic form of society based on “ the Clan System ” recommended itself in the first instance by appearingnbsp;to fill the vacuum of knowledge. To thenbsp;patriotic mind it became an object of affectionnbsp;in Ireland and also, I think, in Scotland. Inbsp;have read imaginative accounts of the imaginednbsp;“ system,” in which its virtues and benefitsnbsp;have been held up to admiration. The figmentnbsp;was equally welcomed from the antipatheticnbsp;standpoint. Dr. Orpen, who found in it thenbsp;chief justification for the law-breaking and faithbreaking encroachments of Feudalism undernbsp;Henry II and John, resulting in that secularnbsp;tragedy, the outlawry of the Irish, is typicalnbsp;of a numerous school of modern writers, whonbsp;seem to think that any kind of oppression

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becomes virtuous if its advocates can propose a theory that the oppressed were in somenbsp;sense less civilised than the oppressors.

The figment, indeed, was admirably fitted to sustain the sentiment of Celtophobia which,nbsp;being the natural counterpart of Anglosaxo-nomania, has pervaded the views of history,nbsp;as well as of contemporary affairs, expmssednbsp;by publicists of various grade and kind in thenbsp;English language during the past century.

“ Saxon and Norman and Dane are we,” sang a Poet Laureate of the United Kingdom ofnbsp;Great Britain and Ireland, on a salary to whichnbsp;Scotland and Wales and the West Countrynbsp;contributed. Not that their existence otherwisenbsp;than as taxpaying dependencies was ignored,nbsp;for the same official State Poet celebrated innbsp;song “ the schoolboy heat, the wild hystericsnbsp;of the Celt,” The official bard, apart from hisnbsp;ruerits in other respects, is generally believed tonbsp;have held the mirror up faitWlly to a large massnbsp;of popular sentiment. Lord Salisbury, Primenbsp;Minister of the same United Kingdom, a masternbsp;of the contemptuous phrase, invented for anbsp;political purpose “ the Celtic fringe.” suggesting something tacked on to the main fabric ofnbsp;Saxon and Norman and Dane. I find the termnbsp;adopted as a datum of history in recent worksnbsp;which profess to rectify much falsification andnbsp;obnubilation in the vogue of historical writings.nbsp;Ï suggest that nearly every generalisation thatnbsp;has passed current about things Celtic ornbsp;things supposed to be Celtic—the Celtic

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race, the Celtic temperament, Celtic art, the Celtic Church, Celtic society-—stands equallynbsp;in need of revision and reetification. Thenbsp;beginning is to be made by a rejectionnbsp;of all mere notions and assumptions ofnbsp;modern date, no matter how widely theynbsp;may appear to have been accepted or hownbsp;seeurely they may have been postulatednbsp;in the schoolbooks and the magazines, thenbsp;leading articles, the speeches and the histories.nbsp;In passing, with a view to getting the truthnbsp;in such matters, in disregard of the phobiasnbsp;and manias, I invite students and workers innbsp;history and ethnology, all and any of them,nbsp;on this side of the Atlantic and beyond it, tonbsp;produce evidence, historical or ethnological,nbsp;which will give any intelligent and unprejudiced jury of persons reason to believe thatnbsp;the modern population of England—I do notnbsp;say of Britain—is of Anglo-Saxon origin tonbsp;the extent of twenty-five per cent.

It must be avowed that, for those who approach the study or the reading of Irishnbsp;history already obsessed with the notion of thenbsp;Clan System, and they are the many, there isnbsp;much that rises to the superfieial and externalnbsp;view to confirm them. The chief cause of thisnbsp;illusion is to be found in the Irish custom ofnbsp;naming territories and their inhabitants by thenbsp;names of the family groups to which theirnbsp;rulers belonged. This custom was very ancient,nbsp;in its origin prehistoric, and it continued tonbsp;operate, giving rise to new territorial names,

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down to nearly modern times. Thus the whole extent of the regions of Alide and Brega,nbsp;comprising the modern counties of Meath,nbsp;Westmeath and Longford, and large parts ofnbsp;some adjoining counties, is named Ui Neill,nbsp;leaning “descendants of Niall,” and this namenbsp;IS already in evidence in the seventh century,nbsp;¦W’hen the descendants of Niall could still benbsp;counted on the fingers. One of his later descendants was Aodh Buidhe Ua Neill, a king whonbsp;died in 1280. Certain descendants of Aodhnbsp;Buidhe invaded and took possession of a partnbsp;of the feudal territory of the earldom of Ulster.nbsp;That country was known by the name of Clannnbsp;Aedha Buidhe as early as 1493 {Annals ofnbsp;Ulster III, p. 374). In these instances, whichnbsp;are typical of many, the territory takes its namenbsp;from an intrusive dynastic family, who werenbsp;not kinsmen of the older inhabitants, and whonbsp;could not have displaced them to any considerable extent at the time when the name camenbsp;into use. To a superficial observer, with “ thenbsp;Clan System ” taken for granted, such namesnbsp;niay well appear to support the notion of anbsp;territory inhabited by a population claiming tonbsp;be of one kin.

The late Dr. W. F. Butler was one who took the Clan System for granted and refusednbsp;to part with it. His work entitled Gleaningsnbsp;From Irish History (1925) provides a leadingnbsp;example for other regional histories for whichnbsp;niaterials abound and which remain to benbsp;Written before any general history of Ireland,

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worthy of the name, can be rightly undertaken. About two-thirds of the volume are taken upnbsp;with the MacCarthy lordships in Munster.nbsp;Clans, sub-clans, and clansmen are all over thenbsp;pages, somewhat defiantly, I imagine, for Dr.nbsp;Butler was well aware of what I had writtennbsp;on the subject. We may note in passing thatnbsp;for these terms, so adopted in measured language to describe what are represented as thenbsp;main organic parts in the structure of Celticnbsp;society in Ireland, no corresponding terms innbsp;the Irish language are recognised. The wordnbsp;“ clann” itself is not Irish or Celtic, beingnbsp;imported from Latin through a British medium.nbsp;It means simply children and, by the usualnbsp;metaphoric extension, descendants, and it isnbsp;never employed in the technical sense attachednbsp;to “ clan ” in modern English writings. Othernbsp;words denoting a kindred comprising a groupnbsp;of families having a common ancestor are cenel,nbsp;cinind, muinter, tellach, slicht, aicme ; but these,nbsp;like clann, are not used in the technical sensenbsp;of a structural part of the social or politicalnbsp;organism. The words that are so used, delsnbsp;and fine, belong in the precise technical sensenbsp;to the older social order before decadencenbsp;prevailed : dels carried no meaning or implication of kinship, and what fine signified is explained in the following pages. The theoristsnbsp;or notionists of the Clan System thus professnbsp;to recognise prominent structural featuresnbsp;existing in Irish society from time immemorialnbsp;—they are always proclaimed to be primitive

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survivals—down to the seventeenth century, features of which the Irish themselves werenbsp;not sufficiently conscious to endow them withnbsp;names.

The terminology notwithstanding, Dr. Butler’s book provides a complete demonstration that, within the period with which it is mainlynbsp;concerned, beginning with the twelfth centurynbsp;and coming down to the establishment of thenbsp;English régime in the seventeenth century, nonbsp;semblance of that Celtic tribal society whichnbsp;elicits acts of faith from writers like Dr. Orpen,nbsp;Mr. Dawson and Father David Mathew existednbsp;in the Irish territories of Desmond. The “ subclans ” or “ subordinate clans ” enumeratednbsp;by Dr. Butler one and all bear Irish surnames.nbsp;Let us consider what this signifies. Suchnbsp;surnames, formed with O (Ua) and Mac, makenbsp;their first appearance about the end of thenbsp;tenth century, and then only in a few instances.nbsp;They begin to become numerous in the eleventhnbsp;century, and do not become the general rulenbsp;tintil the twelfth century. In general, then,nbsp;they are formed from the names of ancestorsnbsp;'vho lived in the tenth or eleventh century.nbsp;Some, especially in Scotland, are of much laternbsp;formation. The “ sub-clans ” mentioned bynbsp;Lr. Butler all bear surnames of families whichnbsp;held rule over the territories where theynbsp;dwelt; they are the descendants of some rulernbsp;of the tenth century or of later date. It isnbsp;evident that a “ clan ” of such recent originnbsp;Could not have constituted the social com-

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munity, and could not even have formed the community of freemen, the body politic, whichnbsp;met in assemblies in their respective territories. At the most, they could have been nonbsp;more than an aristocratic crust.

The case is still clearer when we come to the superior “ clans,” bearing the surnamesnbsp;MacCarthy (MacCarthaigh) and O’Sullivannbsp;(Ua Suilliobhain). These were not evennbsp;indigenous to Desmond. They are branchesnbsp;of an ancient dynastic sept of the overkingsnbsp;of Munster, the Eoghanacht of Cashel, whonbsp;were seated in or around Cashel, in the eastnbsp;of Munster, from the fifth to the eleventhnbsp;century. Their migration to south-westernnbsp;Munster cannot be precisely dated, but it wasnbsp;a sequel to the reign of Brian, who fell atnbsp;Clontarf in 1014, having wrested the kingshipnbsp;of Munster from the Eoghanacht kindred.nbsp;Their position in Munster was determined mnbsp;1118 by the king of Ireland, Toirdhealbhachnbsp;Ua Conchubhair, who was also king of Connacht. This king, probably inspired by Feudalnbsp;influences, pursued a centralising policy. Innbsp;order to break the power of the descendantsnbsp;of Brian, he divided Munster into two coordinate kingships, a partition which continuednbsp;operative until the seventeenth century. Thenbsp;northern part of Munster, known later tonbsp;Anglo-Norman writers as the kingdom ofnbsp;Limerick, he left to the descendants of Brian ;nbsp;the southern part, the kingdom of Cork innbsp;Anglo-Norman parlance, he gave to Tadhg

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MacCarthaigh, whose father, Muireadhach, had been king of the Eoghanacht of Cashel. Tadhgnbsp;''vas succeeded in 1124 by his brother Cormac,nbsp;¦who continued to reside in Cashel, wherenbsp;Cormac’s Chapel commemorates his reign,nbsp;i adhg, Cormac, and their brother Donnchadh,nbsp;^re the first recorded bearers of the surnamenbsp;MacCarthaigh, derived from their grandfathernbsp;Carthach, king of the Eoghanacht of Cashel,nbsp;^ho was killed in 1045. Diarmaid, son ofnbsp;Cormac, was king of Desmond at the time ofnbsp;the Norman invasion. As the genealogicalnbsp;table at the end of Dr. Butler’s volume shows,nbsp;this Diarmaid, who died in 1185, was ancestornbsp;?f the whole MacCarthaigh stock of Desmondnbsp;all their numerous branches. By mapsnbsp;numbered I and IV, Dr. Butler shows thenbsp;distribution of these branches in subordinatenbsp;tordship in various parts of Desmond. In pagenbsp;^tter page, all these branches jointly are anbsp;clan ” in Dr. Butler’s terminology. A clannbsp;^cy are in precisely the same way as thenbsp;flantagenets or the Bourbons are a clan, differ-from these in being more prolific ; butnbsp;.here were many other clans of the same kindnbsp;Ireland which, like the Plantagenets andnbsp;he Bourbons, tended to dwindle and die out.nbsp;¦Let us consider the relation of the MacCar-m clan to the population of Desmond overnbsp;'''hich its head, MacCarthaigh Mor, was ruler,nbsp;^dd the relation of each branch of the clannbsp;d the population of the small region in whichnbsp;he head of the branch was ruler in subordi-

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nation to him. The entire stock springs from an ancestor who died in 1185, and whosenbsp;father and all his earlier ancestors, as far backnbsp;as the fifth century, had not occupied an acrenbsp;of land in or near Desmond, but had dweltnbsp;in the district of Cashel at the other side ofnbsp;Munster. In Desmond we are far away fromnbsp;the vision of Celtic society derived fromnbsp;Waverley. There is indeed a numerous kindrednbsp;bearing the surname of the rulers, but it is annbsp;aristocratic upper stratum, rather a section ofnbsp;that stratum, and it is not connected by kinship, real or adoptive, with the communitynbsp;in general or with the freeman element of thenbsp;indigenous population.

The same kind of research and synthesis that Dr. Butler brought to bear on “thenbsp;MacCarthy Lordship ” will show similar socialnbsp;and political conditions to have existed overnbsp;the length and breadth of Ireland. There arenbsp;differences indeed in date, and not every rulingnbsp;kindred will be found so prolific as the MacCar-thys and the O’Sullivans ; but the position ofnbsp;these in Desmond, in relation to the popxilationnbsp;of that region from the twelfth to the seventeenth century, is a true replica of the “ Nepotesnbsp;Neill” in the midlands when Tirechan wrotenbsp;of them, round about the year 700 and fromnbsp;the fifth to the twelfth century.

In the ancient order, as shall be more fully set out, the freeman element in an Irish tuathnbsp;consisted chiefly of landed freeholders, butnbsp;the same franchise belonged to men of liberal

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’'locations, that is, to men of learning in Irish Latin and to skilled craftsmen. If thenbsp;Lnded men had been few in number, theynbsp;^ould have been outnumbered by the othersnbsp;^nd their franchise—their voice and part innbsp;the direction of public affairs—would havenbsp;heen diminished. That this was not so isnbsp;evident on every hand. The freeholders werenbsp;h^nierous, comprising not only the rulingnbsp;Cobles (airig) but all their clients (cell)nbsp;since clientship was voluntary, othersnbsp;besides. This state of things existed beforenbsp;the oldest law tracts and continued until thenbsp;hnal overthrow of the Irish order under Crom-t^ell’s régime, when the small freeholders werenbsp;Either exterminated or reduced to the conditionnbsp;°t tenants at will, virtually serfs of the newnbsp;P^^oprietors. The change thus accomplished,nbsp;'vhich was a social revolution of a thoroughlynbsp;^trograde kind, had been initiated undernbsp;f^enry VIII and continued under Elizabeth,nbsp;the operation of what is called “ the policynbsp;^ surrender and regrant.” In his Gleaningsnbsp;^otn Irish History, Dr. Butler devotes a largenbsp;hapter to a study of this operation, and hasnbsp;Contrived in it to combine much valuable in-j^r^ation with a mass of erratic statements,nbsp;h brief, he sets out (page 195) to dispute thenbsp;lew that the policy of surrender and regrantnbsp;educed the main body of landowners tonbsp;ighants, but the general effect of his statementsnbsp;to leave that view substantially confirmed.

I he obsession of fixed ideas about “ Celtic

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society ” has had one manifest consequence on the minds of writers like Richey, author of twonbsp;ponderous editorial treatises prefixed as “ introductions ” to Volumes III and IV of Thenbsp;Ancient Laws of Ireland ; they see no neednbsp;to compare one period of Irish history withnbsp;another so as to ascertain whether the adoptednbsp;picture reproduces itself in the facts centurynbsp;after century, and if not, why not. Yet, comparing successive periods, one may easily find,nbsp;in almost every part of Ireland, evidence clearnbsp;and abundant of changes in the ownership ofnbsp;land. As in Desmond, so in various othernbsp;regions, we find at one time numerous land-owners whose ancestors did not own a foot ofnbsp;land in the same territory a few generationsnbsp;earlier. In other regions we find a particularnbsp;kindred spread widely in the ownership ofnbsp;lands, whose ancestors, though indigenous, hadnbsp;not owned land except in a relatively smallnbsp;fraction of the territory. In both classes ofnbsp;case, it can be observed, that those who acquirenbsp;the new ownership belong as a rule to collateral branches of the chief ruling kindred. Innbsp;other words, Irish rulers in every part of thenbsp;country found means of establishing their ownnbsp;kinsmen as new proprietors taking the placenbsp;of older freeholders. The expansion of annbsp;exogenous kindred in this way is exemplifiednbsp;in the case of Desmond, where it is workednbsp;out in detail by Dr. Butler. The similar expansion of an indigenous family is exemplified innbsp;the instance of Fir Manach (Fermanagh). The

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first king of Fir Manach who bore the surname •MagUidhir (Maguire) reigned from 1303 tonbsp;*324. All his successors appear to have beennbsp;of the same surname, and within three centuriesnbsp;a large part of the land of Fir Manach has passednbsp;ownership to numerous freeholders of thenbsp;same kin and surname. What is perhaps annbsp;extreme example of the process is furnishednbsp;fiy the Civil Survey of 1654, in the first volumenbsp;thereof published by the Irish Manuscriptsnbsp;Commission in 1931. The barony of Ikerrin,nbsp;m the county of Tipperary, represents an Irishnbsp;territory which was formerly a subdivision ofnbsp;the kingdom of Eli and was ruled by a line ofnbsp;chiefs hearing the surname Ua Meachair,nbsp;^ritten Meagher, Maher, etc., in English. Thenbsp;treeholders are sixty in number, and of thesenbsp;thirty-nine are of the surname Ua Meachair.nbsp;^1 these are descendants of an ancestornbsp;h^echar, whom I cannot date, but who probably lived in the eleventh century, certainlynbsp;not earlier than the tenth century, as the formnbsp;the surname indicates.

If it be asserted that the landowning groups hearing such surnames as MacCarthaigh,nbsp;MagUidhir and Ua Meachair, may properlynbsp;he called “ clans,” I do not propose to debatenbsp;^he propriety of the word. It is enough tonbsp;recognise that they are in every instance kindreds of relatively recent historical origin, notnbsp;primitive tribal communities and not sectionsnbsp;remnants of such ; also that they are not

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necessarily indigenous to the community in which they hold a dominant position.

The expansion of leading families at the expense of other freeholders is a problem ofnbsp;social history which has not been studied,nbsp;mainly because the notions of a primitive tribalnbsp;organisation or a static clan system have cloudednbsp;it from view. It was present to the mind ofnbsp;Dubhaltach MacFirBhisigh the genealogist, innbsp;1650, when he gave this explanation {Genealogical Tracts I, edited by T. O Raithbheartaighnbsp;for the Irish Manuscripts Commission, p. 26,nbsp;1932): “ It is a usual thing in the case ofnbsp;great princes, when their children and theirnbsp;families multiply, that their clients and followers are ^ueezed out, wither away, andnbsp;are wasted. Take Ireland, and even the wholenbsp;world if you desire, and there is no limit tonbsp;all the instances which you will find of that.”

There are, indeed, a number of instances, recorded in the annals and elsewhere, of thenbsp;violent expropriation of a body of freeholdersnbsp;to make room for the kinsmen of ruling princes.nbsp;In general, however, oppressive action is notnbsp;in evidence and cannot be taken to explain thenbsp;spread of dynastic kindreds. A policy of expropriation, as soon as it could be perceived,nbsp;would have roused the hostility of the free-holding class and brought the overthrow of thenbsp;ruler who attempted it, for this class was thenbsp;predominant power in every region—is treisenbsp;tuath nd tighearna. The changes of ownership

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must usually have come about in such a way as not to appear oppressive.

A tentative explanation of the problem may be offered. When a client {céle) died leavingnbsp;no direct heirs, his property, in this case callednbsp;dibad (wrongly rendered “ legacy ” in thenbsp;official translations of the Ancient Laws ofnbsp;Ireland), was divided, one-third going to hisnbsp;patron (flaith) and two-thirds to his legal kin,nbsp;the derhfine. The clients of a king comprisednbsp;the leading landed nobles of the tuath, andnbsp;much property must have passed from themnbsp;to the kings and through those to their kinsmen,nbsp;by the operation of the law of dibad. Therenbsp;is no evidence of a continuous increase of thenbsp;population of rural Ireland in medieval times.nbsp;Unchecked epidemics and probably a high ratenbsp;of infant mortality must have tended to keepnbsp;the number at a level in century after century.nbsp;This would imply that, on the average, eachnbsp;man alive at the beginning of a century wouldnbsp;have no more than one male descendant ofnbsp;the same age at the end of that century—anbsp;fact worth the attention of those who think tonbsp;rehabilitate the clan theory on the basis of anbsp;collection of derbfine groups. Since some linesnbsp;of descent expanded into collaterals in theirnbsp;successive generations, it follows that a stillnbsp;larger number became extinct; in other words,nbsp;that instances of dibad were frequent, and thatnbsp;a dynastic kindred, if it continued long in possession of the kingship, must have constantlynbsp;acquired a growing share of land in freehold.

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A further explanation of the problem may be stated by hypothesis. The Book of Rightsnbsp;shows Ireland divided into seven major kingdoms, and each of these into a number ofnbsp;minor kingdoms, the tuatha of the lawtracts.nbsp;The minor kingdoms are of two kinds, tributarynbsp;and non-tributary. When the dynastic kindrednbsp;of a minor kingdom was a collateral branch ofnbsp;the dynastic kindred of the major kingdom, itnbsp;was free from tribute. This may be stated innbsp;another form : the ruling kindred of the majornbsp;kingdom was entitled to receive tribute fromnbsp;every tuath therein, but when a tuath was rulednbsp;by a branch of the same kindred, its revenuenbsp;was intercepted and retained by that branch.

In this way the tuath, while it came under a line of rulers of external origin, was laidnbsp;under no additional burden of tribute. Something similar, it is suggested, may have takennbsp;place within the tuath. A king who desired tonbsp;provide for one of his kinsmen would assignnbsp;to him the regalities of a district, where henbsp;would become a chief magnate without layingnbsp;the landowners of the district under a freshnbsp;burden of tribute or appearing to depress themnbsp;in status. By the operation of the law of dibadnbsp;as aforesaid and of the law of clientship (celsine)nbsp;which I explain later, the descendants of suchnbsp;a man—for all offices and vocations tended tonbsp;become hereditary in the Irish legal sense,nbsp;that is, within the fine—would become in timenbsp;the chief landowners in their district. Thisnbsp;would undoubtedly involve the “ squeezing.

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withering, and wasting ” of the older class of landowners, but by a process so gradual andnbsp;insensible as not to provoke their discontentnbsp;and resistance. We might perhaps compare itnbsp;on this score to what has happened in the casenbsp;of an old and a new class of shopkeepers withinnbsp;living memory.

The true distinction between the social structure in medieval Ireland and the socialnbsp;structure of the Mediterranean countries ofnbsp;antiquity can be discerned without havingnbsp;recourse to theoretical figments. In the Mediterranean area, the nucleus of the communitynbsp;was a town, which was usually walled to resistnbsp;attack. In northern and middle Europe lifenbsp;was entirely rural, and the social and politicalnbsp;nucleus was probably among all peoples, as wenbsp;have it recognised and described in Ireland,nbsp;the assembly of freemen. The duration of thenbsp;rural community varies in the different regions.nbsp;In Gaul it was already passing away beforenbsp;the Roman conquest: Plutarch says that thenbsp;Galli defended 800 towns against the forces ofnbsp;Julius Caesar. It is a significant fact thatnbsp;many of the cities of Gaul continued duringnbsp;the Roman régime, and after it, to be namednbsp;simply by the name of the people whose chiefnbsp;centres they had formerly been : Langres wasnbsp;Lingones, Sens was Senones, Chartres wasnbsp;Carnutes, Ebreux was Eburovices. Nantes wasnbsp;Namnetes, Vannes was Veneti, Paris wasnbsp;Parish, Tours was Turones, Rheims was Remi,nbsp;Beauvais was Bellovaci, Treves was Treviri.

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Chalons was Catalauni, Amiens was Ambiani, and so forth. The first towns in historicalnbsp;Ireland grew out of the fortified shippingnbsp;resorts of the Norsemen, piratical strongholds,nbsp;as Rome had once been. Prehistoric Ireland,nbsp;too, has examples of how piracy is the potentialnbsp;mother of cities. The Aran Islands contain thenbsp;well-preserved remains of a number of largenbsp;fortified enclosures. Two of these, in thenbsp;middle island, if they were furnished insidenbsp;with dwellings, could easily accommodate thenbsp;whole population of the island. It does notnbsp;seem possible to explain the existence of thesenbsp;great fortresses on any other hypothesis thannbsp;that they were, at some remote prehistoricnbsp;time, the strongholds of a piratical populationnbsp;which lived on the plunder of the mainland.nbsp;Ptolemy, in the second century, thought thatnbsp;there were a number of cities in Ireland. Hisnbsp;information in this matter must have beennbsp;based indirectly on accounts derived from continental traders. These, as in later times, whennbsp;they sought a market for their wares in Ireland,nbsp;would have resorted to the chief places ofnbsp;assembly at times of assembly, and such placesnbsp;at such times would have presented the aspectnbsp;of cities. The chief ecclesiastical centres, suchnbsp;as Armagh, Kildare and Derry, were developingnbsp;into cities as the stress of the Norse wars diminished ; but further progress in this directionnbsp;was made impossible for “ Celtic Ireland ” bynbsp;the policy of perpetual outlawry maintainednbsp;under the Feudal régime.

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An Irish tuath, while it was based on a rural community and a rural economy, was nevertheless a veritable city of the fields. The smallnbsp;extent of the average tuath ensured that itsnbsp;freemen should maintain close relations tonbsp;each other and should have a consciousness ofnbsp;common interests, less only in degree, not othernbsp;in kind, than if they had dwelt together innbsp;towns. The kingdom of Dal Riada, out ofnbsp;which grew the kingdom of Scotland, extendednbsp;in its greatest length to 30 miles, in breadthnbsp;to 20 miles.

Regarding the rural economy of the tuath, the ancient laws are rich in details of information. Professional endowment took the formnbsp;of estates in land, and one must think that thenbsp;old juristic writers took a keen interest in thenbsp;cultivation of their own lands, they so revelnbsp;in all that concerns agriculture even to thenbsp;smallest particulars. They also show that thenbsp;typical Irish nobleman was what is called innbsp;our times a gentleman farmer. “ The apparatusnbsp;of his house ” comprises “ a cauldron (fornbsp;festive use) with its spits and supports ; a vatnbsp;in which a boiling (for ale) may be stirred ; anbsp;cauldron for ordinary use (and its) utensils,nbsp;including irons and trays and mugs ; a washing-trough and a bath, tubs, candlesticks, knivesnbsp;for cutting rushes, ropes, adze, saw, auger,nbsp;shears, trestle, axe ; the tools for use in everynbsp;season, every implement thereof unborrowed ;nbsp;grindstone, mallets, billhook, spears for killingnbsp;cattle ; a fire always alive, a candle on the

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candlestick without fail ; full ownership of a plough with all its outfit ”¦—the freeholder ofnbsp;less noble grade was part-owner of a ploughnbsp;and an ox-team. “ There be two casks in hisnbsp;house always, a cask of milk and a cask of ale.nbsp;A man of three snouts (he is): the snout ofnbsp;a rooting hog that smoothes the wrinkles ofnbsp;the face in every season ”—^this refers to thenbsp;herd of swine kept at large in the woodland’.nbsp;“ the snout of a bacon pig on a hook; thenbsp;snout of a plough that cleaves the soil; so thatnbsp;he may be ready to receive king or bishop ornbsp;doctor or judge from the road and for thenbsp;visits of every company ; a man of three sacksnbsp;always in his house for each quarter of the year :nbsp;a sack of malt, a sack of sea-ash against thenbsp;cutting up of joints of his cattle, a sack of charcoal for irons. Seven houses he has : a kiln,nbsp;a barn, a mill'—his share therein so that henbsp;grinds in it for others-—(another tract explainsnbsp;that those through whose lands the watercoursenbsp;passes are entitled to share in the use of thenbsp;mill, as also are the workers who work thenbsp;mill), a dwelling house of twenty-seven feet,nbsp;an outhouse of seventeen feet, a pigsty, anbsp;calf-fold, a sheepfold ; twenty (milch) cows,nbsp;two bulls, six oxen (of draught), twentynbsp;(sty-fed) pigs, twenty sheep, four hundred hogsnbsp;(in the forest), two brood sows ; a saddle horse,nbsp;an enamelled bridle ; sixteen sacks (of seed) innbsp;the ground. He has a bronze cauldron in whichnbsp;a hog fits. He owns a park in which there are

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always sheep without (need for) change of ground.”

What the writer of the lawtract (Crith Gab-lach), writing a century or so before the Norse incursions, has in mind in this description isnbsp;an agricultural economy, not a pastoral economy.nbsp;That Celtic society was pastoral, and that itnbsp;was a “ warrior ” society (in contrast with thenbsp;Roman order)—these are figments whichnbsp;accompany the figment of the tribal basis,nbsp;being products of the same degree and kindnbsp;of study and investigation. There are somenbsp;who go so far as to pretend that they cannbsp;discern a time when the Celtic inhabitants ofnbsp;Britain had not arrived at the condition ofnbsp;settled pastoral communities, but were stillnbsp;“ nomadic.” The basis for the whole set ofnbsp;notions, nomadism, warriorism, pastoralism,nbsp;tribalism, is a crude a priori application ofnbsp;evolutionary theory, which turns the blindnbsp;eye to the results of historical, ethnological,nbsp;and archaeological research.

We have seen from contemporary evidence that Celtic society in Ireland was agricultural,nbsp;not pastoral, in the seventh century. We havenbsp;seen also that Irish institutions suffered anbsp;set-back from the protracted resistance tonbsp;Norse invasion, and that, after a short respite,nbsp;they had to encounter a more formidable enemynbsp;in Anglo-Norman Feudalism, firmly centralisednbsp;in Dublin, an enemy who, reinforced bynbsp;Renaissance statesmanship directed fromnbsp;England, was at last able to suppress them.

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It might be supposed, if we were to be guided by the method of a priori notionalism, thatnbsp;the agricultural character of the Irish ruralnbsp;economy had been mortally stricken in thenbsp;struggle, and that Celtic society had beennbsp;driven back on a pastoral plane which wasnbsp;not imaginary. Let us call a witness who,nbsp;not without motive, anticipates the modernnbsp;school of Celtophobes in stating, as a fixednbsp;principle, that the Irish are naturally and innbsp;spite of any apparent e\idence, however cogentnbsp;to the contrary, essential barbarians. Hisnbsp;testimony has reference to the Irish territorynbsp;of Laoighis (Leix), which lay on the bordernbsp;of the English Pale, its centre being aboutnbsp;fifty miles from Dublin : a remarkable territorynbsp;which retained its autonomy from prehistoricnbsp;times, throughout the whole Celtic period, andnbsp;later through the Anglo-Norman period, thoughnbsp;almost surrounded by Feudal lordships, allnbsp;the time under an unbroken line of dynasts ofnbsp;Pictish origin. The policy of plantation,nbsp;initiated under Mary Tudor, had sought tonbsp;convert it into shireland with an Englishnbsp;colony, and it was incorporated in the newnbsp;“ Queen’s County,” its capital. Port Laoighse,nbsp;being named anew Maryborough in honour ofnbsp;this benefaction. Its rulers, surnamed Uanbsp;Mordha (“ 0’More, Moore,”) held out, andnbsp;it is of them and their people that Fynesnbsp;Moryson writes in the last years of Elizabeth’snbsp;reign and in the course of the longest war in

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Irish history. He describes an expedition led against Laoighis by the Lord Deputy :

“ Our captaines, and hy their example, {for it teas otherwise painefuU), the commonnbsp;souldiers did cut downe with their swordesnbsp;all the rebels come, to the value of tennbsp;thousand pound and upward, the onely meansnbsp;by which they were to live and to keepnbsp;their bonaghts or hired soldiers. It seemednbsp;incredible that hy so barbarous inhabitantsnbsp;the ground should be so manured, thenbsp;fields so orderly fenced, the townes sonbsp;frequently inhabited, and the high waiesnbsp;and paths so well beaten as the Lord Deputynbsp;here found them. The reason whereof wasnbsp;that the Queenes forces during these warsnbsp;never till then came among them.”

In a contemporary document (Gerrard Papers, Analecta Hibernica 2, p. 145),nbsp;3s. 4d. is the price of a peck *of wheat, thenbsp;same for a peck of malted barley ; and 4,562nbsp;pecks of each are reckoned (p. 160), for thenbsp;victualling of i ,000 men in garrison for a year.nbsp;This gives £3,041 6s. 8d. in money of thatnbsp;time. The Queen’s forces in the raid on Leix*nbsp;should at this rate have destroyed cornnbsp;sufficient to provide more than 3,000 mennbsp;with bread and ale, more than 6,000 withnbsp;bread only, for a whole year.

This was no singular instance ; soon after the end of the same war, in 1605, Sir Thomasnbsp;Phillips made a journey through Ulster and

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wrote about it to Lord Salisbury: “ They now begin to grow rich, so that for the mostnbsp;part during peace they increase very fat innbsp;cattle, and for corn this year they have great

Ö. He passed through the fastest (most y wooded) country in Tirone where henbsp;did not expect to have seen so much corn.”nbsp;Phillips goes on to recommend that Kingnbsp;James should raid the country for cows andnbsp;provisions.

In the case of Gaul, Mr. Dawson does not see eye to eye with Tacitus. “ First thenbsp;Germanic peoples and then the Celts havenbsp;learnt to exalt the achievements of theirnbsp;ancestors —or rather of those whom theynbsp;suppose to be their ancestors, and to minimisenbsp;the debt that the Western people owe to Rome.”nbsp;In this respect, we are told, they depart fromnbsp;the vogue established by “ our humanistnbsp;predecessors,” the sages of the Renaissance.nbsp;“ Like M. Camille Jullian, in his great Historynbsp;of Gaul, they regard the Roman Empire asnbsp;an alien militarism that destroyed with brutalnbsp;force the fair promise of a budding culture.nbsp;And no doubt there is some ground for thisnbsp;view inasmuch as the Roman conquest was,nbsp;in itself, brutal and destructive, and thenbsp;imperial culture that it brought was stereotyped and lacking in originality.” Fynesnbsp;Moryson only went so far as to say that factsnbsp;seemed incredible when they belied the prejudgments of his upbringing. Mr. Dawsonnbsp;refuses to have the facts from Camille Jullian.

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It is told that a County Down Orangeman once paid a visit to the Zoological Gardens innbsp;the Phoenix Park; when he came to thenbsp;giraffe, he stood gazing at it for a minutenbsp;then turned away growling resolutely, “ There’snbsp;no such animal.” Mr. Dawson writes : “ Butnbsp;it is very difficult to find any justification fornbsp;M. Jullian’s belief that Celtic Gaul wouldnbsp;have accepted the higher civilisation of thenbsp;Hellenistic world without the intervention ofnbsp;Rome.” Shall we add, in the form of anbsp;stereotyped and sterilised imperial culture ?nbsp;If Xerxes had conquered Greece ! The factsnbsp;prove sufficiently that Celtic Gaul was wellnbsp;on its way to do something very much betternbsp;than accepting the Hellenistic civilisation innbsp;a stereotyped and devitalised form ; it wasnbsp;already receiving inspiration from Hellenicnbsp;civilisation, taking what came to it asnbsp;nourishment rather than as furniture.

Tacitus was not alone in thinking that Roman conquest was for the magnificationnbsp;and enrichment of Rome and not for thenbsp;benefit of the conquered. Julius Caesar himselfnbsp;has left us a clear enough indication of hownbsp;he thought about it. After he had crushednbsp;the resistance of the Atrebates, whose name,nbsp;worn down to Arras, still denotes their chiefnbsp;place, he appointed one of themselves as kingnbsp;over them. The Roman Senate found itnbsp;sometimes more convenient to rule through anbsp;Herod than through a Pilate. Like Romenbsp;itself, the Gallic states, including the Asiatic

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Galatia, had rejected monarchy and were aristocratic republics governed by senates ;nbsp;and the Romans, in setting up kings of theirnbsp;own choosing, were taking a step towards thenbsp;suppression of the state. The man chosen bynbsp;Caesar to be king of the Atrebates was one ofnbsp;their nobles named Commios, who had greatnbsp;influence among them, and was regarded bynbsp;Caesar from his own standpoint as courageousnbsp;and trustworthy. Commios afterwards actednbsp;as an intermediary between Caesar and othernbsp;Belgic states, including some of those innbsp;Britain. “ In recognition of these merits,nbsp;(Caesar) decided that his state should be freenbsp;of tribute, restored its rights and laws, andnbsp;placed the Morini also under the governmentnbsp;of Commios (quibus ille pro mentis civitatemnbsp;eius immunem esse iusserat, iura legesquenbsp;reddiderat, atque ipsi Morinos attribuerat).nbsp;Neither Caesar nor Commios, nor presumablynbsp;the Atrebates themselves, regarded the possession of their own laws and institutions innbsp;the light of a penalty.

Historically and actually, civilisation has not a political origin or a political basis, evennbsp;though a tendency to take that and impartnbsp;that view of it has often vitiated the writingnbsp;of history. Historians have made themselvesnbsp;the advertising agents of statecraft, and havenbsp;done their utmost to root in the popular mindnbsp;the idea of the all-comprising State, supremenbsp;and absolute. How shall we quarrel with thisnbsp;idea if we admit that civilisation is dependent

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for its very existence on a form of government ? At no time could the propagation of this idea, or any countenance given to it, benbsp;more unfortunate than at present, when, notwithstanding the “ lessons ” of the Great War,nbsp;we see one country after another followingnbsp;the lead of politicians towards new and extremenbsp;forms of the all-comprising State. If manynbsp;are right in thinking that European civilisationnbsp;has been gravely imperilled in our time, wherenbsp;is the reason to be found if not in the fact thatnbsp;statesmen and politicians have succeeded beyondnbsp;measure in our time in winning over, not merelynbsp;a schooled minority, but large masses of thenbsp;people to the cause of the absolute and allcomprising State ?

Civilisation and barbarism are matters of degree. Between them, though it flatterednbsp;the Hellenic mind and its Roman counterfeitnbsp;to imagine it, there is no boundary line. Mennbsp;are barbarians in the degree to which they arenbsp;dominated by their non-human natural surroundings, and are civilised in the degree tonbsp;which they succeed in dominating these,nbsp;including among these all that lower naturenbsp;within themselves that men have in commonnbsp;with animals. A wholly barbarous man ornbsp;society of men has yet to be discovered, andnbsp;some degree of barbarism, with the seeds ofnbsp;more, is always present in the most completenbsp;civilisation.

A centralised authority is an instrument of civilisation, not an essential. The absolute

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State, the all-comprising State, is a thing specifically pagan. “ The kings of the Gentilesnbsp;lord it over them, and they that have powernbsp;over them are called beneficent, but you notnbsp;so.” The true function of the State in thenbsp;Christian order is to subserve the civilisationnbsp;of the people, not to dominate it; and thenbsp;moral authority of the State is increased by itsnbsp;fidelity to this function and diminished bynbsp;exceeding it or departing from it. Ifnbsp;centralised authority were to be regarded asnbsp;the criterion of civilisation, militarism wouldnbsp;become the acme, and we should have tonbsp;consider the claims of Attila in competitionnbsp;with Theodosius.

Pads imponere morem. If we are to identify the Pax Romana in conquered countries withnbsp;civilisation, it was an imposed civilisation,nbsp;imposed from without by a centralised militarynbsp;power, and comparable thus to the proverbialnbsp;inverted pyramid. It needed shoring up, andnbsp;the supports were naturally subject to decay.nbsp;We may admire the efforts of statecraft madenbsp;from time to time by some of the greaternbsp;Emperors to strengthen the structure, andnbsp;we may commiserate the failures. The Romannbsp;Empire was not overthrown by the Barbarians.nbsp;It could have withstood the Barbarians if thenbsp;main sustaining parts of its own structure hadnbsp;not been unsound. Roman culture, the gildingnbsp;of Hellenism that ornamented the Pax Romananbsp;in the conquered regions of the West,nbsp;was quickly succeeded by a Dark Age. The

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darkness was not caused by the substitution of Barbarian for Roman rule. Roman Britainnbsp;was not occupied by the Barbarians for anbsp;century and a half after it was abandoned bynbsp;the Empire, and the darkness that came uponnbsp;the imposed culture in Britain throughout thatnbsp;time was not exceeded in any country thatnbsp;the Barbarians invaded and controlled. Innbsp;that darkness, and by reason of it, the decayingnbsp;remains become phosphorescent in a formnbsp;typified by Hisperica Famina. The leastnbsp;Romanised part of Roman Britain was Wales,nbsp;and Wales was overrun and in part occupiednbsp;by Barbarians from Ireland. Yet Wales, innbsp;the post-Roman period, is a land of light innbsp;comparison, let us say, with that great centralnbsp;stretch of Britain adjoining it, called afterwardsnbsp;Mercia, extending from the southern maritimenbsp;shires to Yorkshire. Here the Romanisednbsp;Britons remained in full possession during twonbsp;centuries of complete darkness. It was precisely in Wales, and in that part of Walesnbsp;where the Barbarian element was strongest,nbsp;that Latin culture found its proper continuation in the form of scholarship andnbsp;learning, until it passed into the hands ofnbsp;Barbarians who had never lived under thenbsp;Pax Romana, and consequently it did notnbsp;become pars servitutis.

Mr. Dawson expounds in several pages (70 seqq.) his notions about “ the warlikenbsp;tribal culture of the Celts and the Germans” innbsp;contrast with “ Roman civilisation.” Here

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the conception of civilisation as a political thing is still dominant, and bigness is stillnbsp;glorified. The main defect on the Barbariannbsp;side is detected and exposed at length:nbsp;“ Barbarian ciilture was never a single ornbsp;uniform thing.” The idea of a single ornbsp;uniform culture is so appalling that one mustnbsp;think something else to be intended. Annbsp;explanation of the diversity and superficialitynbsp;of barbarian culture follows, and let us adjurenbsp;the reader to keep firmly in mind, as he readsnbsp;sentence after sentence, that Mr. Dawson isnbsp;writing about barbarian culture and not aboutnbsp;the operation and effects of the Pax Romana.nbsp;“ Underneath the ruling society and thenbsp;conquering warriors the life of the conquerednbsp;peasants still went on, sometimes possessingnbsp;its own language and religion, and alwaysnbsp;tending to preserve a distinct social andnbsp;cultural tradition. Consequently, the morenbsp;warlike a society is, the more superficial andnbsp;disunified is its culture. Successive waves ofnbsp;conquest do not necessarily involve a changenbsp;of population ; in many cases they amount tonbsp;no more than the substitution of one warriornbsp;aristocracy for another. The ruling class isnbsp;often responsible for the introduction in (or ?)nbsp;the development of a new and higher type ofnbsp;culture, but it has no permanence and it maynbsp;pass away without leaving any permanentnbsp;impression of (on ?) the life of the peasantnbsp;population.” As applied to the Barbarians,nbsp;this is purely an a priori statement; it gives

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the writer’s notion of what ought to have happened, but what, if we take historicalnbsp;instances, is often just the converse of whatnbsp;did happen. If we apply it to the Pax Romana,nbsp;it falls short of being quite adequate. Takingnbsp;again the case of Britain, the superficial culturenbsp;did indeed pass away, but not without leavingnbsp;a permanent impression in the fulfilment ofnbsp;the prophecy of Tacitus.

I rejoice in the opportunity of protesting against a cardinal error in history and anbsp;mischievous error in effect: to representnbsp;civilisation as a political thing or as havingnbsp;a political origin or as resting on a politicalnbsp;foundation. Throughout history, the kingdomnbsp;of this world, the realm of statecraft andnbsp;politics, has been the Devil’s playground,nbsp;swept and garnished for him by the ambitionnbsp;of statesmen and politicians to have a part innbsp;something that is supreme and absolute, anbsp;thing which has a code of ethics all its own.nbsp;I would ask my readers to think and thinknbsp;again over what is implied in Nicholas Murraynbsp;Butler’s phrase, “ the fundamental differencenbsp;between the Nation and the State.”nbsp;Nationality is to be distinguished fromnbsp;Nationalism, which is a political doctrine,nbsp;meaning localised Statism ; it is a fact, not anbsp;theory ; a nation is a species of the genusnbsp;civilisation, a State is a species of the genusnbsp;government. Nationality is the type ofnbsp;civilisation which a people has developed,nbsp;which has become that people’s tradition, and

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Is distinctive of that people. Nationalities, as such, do not hate each other, do not fear ornbsp;suspect each other, do not war upon eachnbsp;other, do not circumvent each other, do notnbsp;spy upon each other : these being the privilegesnbsp;of statecraft. Neither Europe nor the worldnbsp;suffers any detriment from the diversity ofnbsp;national civilisations. On the contrary,nbsp;uniformity, if it were possible, would benbsp;calamitous.

The chapters which follow here reproduce almost word for word a series of lectures givennbsp;in the New York University and under thenbsp;auspices of its Law School, in the spring ofnbsp;1931, but to audiences open to the generalnbsp;public. They describe certain aspects of onenbsp;national civilisation, mostly, as it happens, thenbsp;more political aspects : veritably a civilisation,nbsp;notwithstanding what may be pretended tonbsp;the contrary by the adulators of the Pax Romananbsp;and of the Renaissance. Though it was anbsp;localised nationality, it was more genuinelynbsp;and typically European than the Romannbsp;civilisation was-—I do not argue whether itnbsp;was better or worse on that account. When Inbsp;say it was European, I do not mean that itnbsp;was Indo-European or that it was Nordic.nbsp;I think it likely that, though the Celtic elementnbsp;which dominated was Indo-European innbsp;language and therefore mainly in socialnbsp;tradition, and was largely Nordic in racialnbsp;composition, the social complex which isnbsp;commonly spoken of as “ Celtic ” with refer-

INTRODUCTORY

cnce to Ireland, Britain, and the western parts of the Continent was far from being purelynbsp;Celtic, and derived much of its character fromnbsp;West-European antecedents. The West-European factor in the development of Europeannbsp;civilisation has been left altogether to thenbsp;archaeologists, but it did not cease to exist bynbsp;coming under the political domination of mennbsp;from the east and the north who carried ironnbsp;weapons. It is time that some championnbsp;should come forward to claim justice for thenbsp;Westerners. So long as Celtophiles and Anglophiles, Romanomania and Nordomania, withnbsp;their correlative phobias, hold the field, anbsp;vigorous campaign in the cause of Hespero-mania should be welcomed as a corrective innbsp;the interest of truth and fair play.

While it has been my aim in the present chapters to provide for readers in general anbsp;clear if limited view of the Irish social structure,nbsp;I also trust that students of Irish history willnbsp;find here a useful introduction and summary.nbsp;It is a matter of temporary necessity, as generalnbsp;readers and students will alike recognise, thatnbsp;space which in other circumstances wouldnbsp;appear excessive in proportion, is taken upnbsp;here with corrective criticism.

In the Special Report on Surnames in Ireland, by Sir Robert E. Matheson, then Registrar General for Ireland, in the secondnbsp;edition published in 1909 by H.M. Stationery Office in Dublin,nbsp;the proportion of the most numerous surnames in the countynbsp;of Cavan is given as indicated by the registrations of births fornbsp;the year 1890 ; Reilly, 137 ; Smith (Mac a’ Ghobhann, Mac-Gowan), io8 ; Brady, 85 ; Lynch, 51 ; McCabe, 36 ; Clarke, 30 ;

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Farrelly, 29 ; Maguire, 26 ; Sheridan, 26 ; Galligan, 20 ; Fitzpatrick, 19 ; Dolan, 18 ; McGovern, 18 ; Donohoe, 17 ;nbsp;Martin, 15 ; McMahon, 15. Surnames showing smallernbsp;numbers are not given. The surnames Maguire and McMahonnbsp;represent influx from neighbouring regions, probably for thenbsp;most part later than the sixteenth century. There is no reasonnbsp;to think that among the indigenous surnames, that of O’Reillynbsp;or Reilly was more numerous in proportion to the others innbsp;1598 than in i8go, and it is evident that, when Dr. Butler wrotenbsp;of this county as inhabited by O’Reillys in the sixteenth century,nbsp;he was providing an additional example of the distortions ofnbsp;historical fact which, under the dominance of a fictitious theory,nbsp;could usurp the mind of an original and painstaking investigatornbsp;in Irish history.

CHAPTER II

LAWS AND INSTITUTIONS OF IRELAND

I.'—Their European Character.—laws and institutions, in fact the whole civilisationnbsp;of ancient Ireland, have an interest and importance passing far beyond the bounds of Irishnbsp;history. They may be regarded as peculiarlynbsp;and typically European. The great civilisations of the Mediterranean are in large part ofnbsp;Oriental origin. In Ireland the Oriental elementnbsp;first makes itself felt in a marked degree bynbsp;the introduction of Christianity. The popularnbsp;view of history regards the people of ancientnbsp;Ireland as peculiarly Celtic. This, in a sense,nbsp;is true, for the peoples who are designated bynbsp;the name Celts in history are those who arenbsp;known to have been Celtic in language. The

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term Celtic has no definite racial significance. Ethnological study recognises no Celtic race.nbsp;The inhabitants of Ireland in the earliestnbsp;historical period, as later, were of mixed race,nbsp;one might say racially composite as the peoplenbsp;of the United States are to-day. As withnbsp;their racial so with their cultural connections.nbsp;Archaeology shows intimate relations in pre-historical times between Ireland and thenbsp;Scandinavian area, the middle and westernnbsp;parts of Europe and the Mediterranean area,nbsp;especially Spain.

2.'—Insular but not Isolated.—A glance at the map of Europe shows Ireland on its extremenbsp;north-western bounds. This position has lednbsp;men in various departments of investigation tonbsp;suppose Ireland in ancient times, both in thenbsp;racial and the cultural aspects, to have been anbsp;vefy isolated country ; the place in which tonbsp;look for isolated racial and cultural types. Wenbsp;have here a good example of the danger ofnbsp;thinking in one dimension. An extreme geographical position on the map is taken to benbsp;the important deciding factor ; other factorsnbsp;of equal or greater importance are ignored,nbsp;especially the factor that movements of population and movements of cultural influencenbsp;take place with greater facility along the seanbsp;coasts and across the narrow seas than overnbsp;any stretch of continental land.

As Ireland is an island on the extreme northwest of Europe, so in the north-west of Ireland there is a habitable island named Cliara,

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called, in English, Clare Island. A scientific survey based upon this island was carried outnbsp;under the ai^ices of the Royal Irish Academynbsp;in 1912. The writer was requested to dealnbsp;with that part of the survey which was concerned with the place names and family names.nbsp;The study of the family names led to thenbsp;conclusion that in this island alone one-halfnbsp;of the inhabitants derived their origin fromnbsp;remote regions, some from Norway, somenbsp;from Scotland, some from Wales, and itnbsp;appeared not unlikely that a large proportionnbsp;of the remaining half, whose origin was notnbsp;so easily traced, were no less exogenous.

In like manner it is certain that the population of Ireland, in general, from remote pre-historical times, has originated in various continental areas. But this mixed population,nbsp;as has been said, until the introduction ofnbsp;Christianity remained largely aloof fromnbsp;Oriental influences.

By a singular fortune, Ireland remained from first to last outside the bounds of Romannbsp;imperial rule. Again, when the Westernnbsp;Empire sank under the waves of Barbariannbsp;invasion, the migratory hordes left Irelandnbsp;untouched.

From all this, we see at a glance that the social and political and economic way of lifenbsp;in ancient Ireland while they are not to benbsp;considered isolated phenomena, are characteristically and typically European.

Already in the Bronze Age there was an

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active commerce between Ireland and the neighbouring European countries. Goldnbsp;ornaments recognised to be of Irish worknbsp;reached various parts of the continent fromnbsp;Brittany to Denmark. The chief people ofnbsp;Ireland in that age appear to have been thosenbsp;who were afterwards known by the namenbsp;Piets.

3.—The Celtic Influx.—^That Celtic colonization and the introduction of the Iron Age reached Ireland and Britain at the same timenbsp;was a view put forward by the writer somenbsp;years ago on historical and archaeologicalnbsp;grounds. It implies that the Celtic colonization of Ireland as well as of Britain belongednbsp;to a relatively late period of the pre-history ofnbsp;both countries. An older theory, associating annbsp;early Celtic invasion with the introduction of thenbsp;Bronze Age, is no longer accepted by leadingnbsp;archaeologists.

The Celts, we have seen, were a people of a particular language and tradition, but not of anbsp;particular race. Racially they were very largelynbsp;of what is called the Nordic type. That thisnbsp;was their own tradition has been well shownnbsp;by Professor Macalister in his work on Celticnbsp;Ireland. He quotes personal descriptions fromnbsp;a large range of early Irish literature, and henbsp;shows that the dominant population rejoicednbsp;in being described as tall and fair complexioned,nbsp;fair-haired and blue or grey-eyed, in contradistinction to a subject population which

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belonged to a dark-haired and dark-complexioned type.

The Celtic tradition is a branch of the Indo-European tradition, not, as in the Mediterranean areas, crossed by powerful Oriental currents. Mixed with it, however, in Ireland,nbsp;is the tradition of the old West-Europeannbsp;populations of whom the most distinctivenbsp;survival is found in the Basques.

4. —The Celtic Polity.—Tht colonization innbsp;Ireland established a number of small states-—nbsp;distinct political communities. The Irishnbsp;name for such a state is Tuath. The centralnbsp;factor in each Tuath was the public assembly.nbsp;At the head of each state was a king. He wasnbsp;the military commander, president of thenbsp;assembly, the judge in matters of litigation,nbsp;and possibly also chief priest.

These states were of small territorial extent, so that attendance at the public assembly wasnbsp;convenient to everyone and implied no lengthnbsp;of travel or prolonged absence from home.nbsp;In fact, the rural areas which have a commonnbsp;market centre would represent to-day the samenbsp;notion of public convenience. In earlynbsp;historical times the number of such statesnbsp;in Ireland varied between 80 and 100, thatnbsp;is to say, the state on an average was aboutnbsp;one-third of the size of the modern Irishnbsp;county.

5. —The Primitive Quest.'—The Pre-Celticnbsp;inhabitants of Ireland were good soldiers, yetnbsp;skilled in the arts of peace. Some modern

LAWS AND INSTITUTIONS 6i

writers have fancied that they can recognize a time, not altogether remote, when thenbsp;inhabitants of Ireland, as well as of Britain,nbsp;were pastoral nomads. To find them in thatnbsp;way of life we must go back to the Stone Age,nbsp;and when we get there we must admit thatnbsp;we know very little about the social habits ofnbsp;the people, and the little we know does notnbsp;carry evidence of pastoral nomadism. Therenbsp;shall be occasion later to refer to the overpowering effect of the quest after the primitivenbsp;among modern investigators of antiquity. Itnbsp;is one of the ways of thinking in one dimensionnbsp;and it is a very natural weakness, for thenbsp;infancy of the human race, if we could recovernbsp;it, must be as charming to contemplate as thenbsp;infancy of the human individual. It is notnbsp;concealed that this natural quest after thenbsp;primitive receives a powerful stimulus fromnbsp;the evolutionary idea. Taking that standpoint, one consideration is offered to thenbsp;zealous primitivist. Associated with thenbsp;earliest traces of mankind, archaeologists findnbsp;the remains of various animals. Some ofnbsp;these animals, for example, the mammoth, arenbsp;now quite extinct, but other species are stillnbsp;existing, and when they are, they exhibit nonbsp;evolutionary development whatsoever as compared with their ancestors of paleolithic times.nbsp;Why, then, should we postulate an appreciablenbsp;evolutionary development in the human racenbsp;within the same period ? It is true, there hasnbsp;been an immense development in the products

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of human skill, and it is thought never in history or before history has that developmentnbsp;been more rapid than within living memory.nbsp;This wonderful modern progress in artifacts,nbsp;to use a convenient term of the archaeologist,nbsp;we have not found it argued that it betokensnbsp;or is necessarily associated with a commensuratenbsp;development of the human intellect or of thenbsp;moral sense or of the social order. Considerations of the kind may help to warn usnbsp;against expecting quick results from ournbsp;passionate quest of the primitive.

6. -Pre-Celtic Inhabitants. —The Bronze Age in Ireland—we need not go further back—hasnbsp;left abundant evidence of a settled population,nbsp;forming organized civil communities, tillingnbsp;the land, skilled in various crafts, and engagednbsp;in commerce with other countries beyond thenbsp;seas. To the continental Celts, the Pre-Celtic inhabitants of Britain and Ireland werenbsp;known in common by the name Pretani.nbsp;The Irish equivalent of this name, Cruithin,nbsp;was at one time in common use to designatenbsp;their descendants, and it enables us to identifynbsp;this ancient people with the people namednbsp;Piets in Latin writings. If we call them Pietsnbsp;for convenience, let it not be held to implynbsp;any racial uniformity. The racial andnbsp;linguistic affinities of the Piets remain annbsp;unsolved problem. The writer is stronglynbsp;of the opinion that the Piets belonged to annbsp;old West-European stock.

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CHAPTER III

SURVIVAL OF PRE-CELTIC INSTITUTIONS

At least three outstanding features of the later Celtic civilisation of Ireland can be tracednbsp;in all likelihood to a Pictish origin : the statusnbsp;of craftsmen, the status of women, andnbsp;Druidism. Each of these features operatednbsp;in time to bring about a fusion between thenbsp;conquering and dominant Celts and thenbsp;conquered Pre-Celtic elements, to break downnbsp;the distinction between a dominant patriciannbsp;stratum, possessors of the land and the politicalnbsp;franchise, and a subject plebeian population.nbsp;Traditions of Celtic and Pre-Celtic origin werenbsp;very much alive in later ages, lasting down tonbsp;modern times, yet no distinction of statusnbsp;based on real or supposed racial origin findsnbsp;recognition in Irish law. It is quite possiblenbsp;that the ancient jurists were consciously hostilenbsp;to hereditary class-distinctions, for in one law-tract dealing specifically with the law of statusnbsp;we find the maxim, “ A man is better thannbsp;his birth.” In Irish law the skilled craftsmannbsp;was a freeman ex officio^ and this tradition ofnbsp;the law has become enshrined in the language :nbsp;the word saor, meaning “ free ” or “a freeman,” means also “ a craftsman.”

i.—The Status of Craftsmen. —To our modern

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minds, the admission of craftsmen to the franchise of the ruling or patrician order innbsp;virtue of their craft might seem nothingnbsp;surprising, but in the old Mediterraneannbsp;civilisation the craftsman was often a chattelnbsp;slave. It is thought that the explanation asnbsp;regards Ireland is likely to be that the Celticnbsp;invaders obtained territorial control onlynbsp;gradually and slowly. As they obtainednbsp;control they formed a land-owning, militarynbsp;and patrician class. The fact is enshrinednbsp;in the name by which they are known in ournbsp;oldest documents, the name Fetii: it denotesnbsp;the land-owning class, but by etymology itnbsp;means the military class. There is evidencenbsp;that the struggle for domination of the countrynbsp;between the older rulers and the Celtic invadersnbsp;lasted well on into the Christian era, probablynbsp;ujitil about A.D. 250, in some parts later still.nbsp;In its earlier stages, the Celts are likely to havenbsp;held no more than a number of seaboardnbsp;colonies. There it may be supposed they werenbsp;eager to attract to their service the skillednbsp;craftsmen of the older native population bynbsp;admitting them to their own communities onnbsp;the basis of freemen.

2.—The Status of Women.'—The status of women in ancient Irish law, and the socialnbsp;prominence of women in ancient Irish literature, have been found remarkable. This alsonbsp;can be explained through the influence of thenbsp;older Pictish social order. It is a well-provennbsp;fact that, among the Piets, inheritance passed

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in the female line. It was a fact so well known to ancient Irish writers that a special legendnbsp;was invented to account for it. This is onenbsp;of the indications that the Piets were not ofnbsp;Indo-European stock.

The Pictish custom of succession in the female line and its influence on the status ofnbsp;women are well and prominently exemplifiednbsp;in the ancient sagas of the Ulster Cycle. Innbsp;these, the little states of Ireland are groupednbsp;into five chief kingdoms. Of the chief kingsnbsp;of these five groups three are brothers, sonsnbsp;of one father. Two at least of these threenbsp;should have succeeded to the kingship, notnbsp;through their own paternal line, but throughnbsp;marriage into the existing dynasties. Thatnbsp;this was so in the case of one of them, thenbsp;king of Connacht, is made clear in the sagas.nbsp;How these sagas, written first in the seventhnbsp;century, give in many respects a faithfulnbsp;reflection of traditions coming from a muchnbsp;earlier time, has been shown by modernnbsp;research. In the seventh century and later,nbsp;we find no such law or custom in operationnbsp;as that which made a man king by reason ofnbsp;his becoming husband of a daughter of thenbsp;preceding king. Those who told and wrotenbsp;these sagas, when they told of such a man beingnbsp;king of Connacht, told a thing which theirnbsp;hearers and readers knew not to be possiblenbsp;in their own time, and therefore could toleratenbsp;only because it was believed to be in accordnbsp;with the law and custom of an earlier time.

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As for the practical influence of this custom, it is well exemplified in the same sagas and innbsp;the same instance. Though Ailill is king ofnbsp;Connacht, his wife, Medb, is the predominantnbsp;partner-—in the sagas she is able to dominatenbsp;not alone her husband and his kingdom ofnbsp;Connacht, but four-fifths of the whole island.nbsp;She directs the war and accompanies thenbsp;armies in their march. She stands out as thenbsp;chief protagonist of the king of Ulster and hisnbsp;heroes, and the champions who meet these innbsp;deadly combat are thrown at them one afternbsp;another, so to speak, out of her right hand.nbsp;One version of the Tain Bo Cuailnge, and notnbsp;the oldest one, makes the great climax originatenbsp;in a dramatic dialogue between this lady andnbsp;her husband. Ailill begins the dialogue withnbsp;a remark in which what we may call the Indo-European and the Celtic tradition is statednbsp;briefly and pointedly : “ The wife of a mannbsp;of worth is a woman of worth.” Medb atnbsp;once takes up the challenge and undertakes tonbsp;show that her worth was as great as his beforenbsp;ever she married him and still remains asnbsp;great, for in Irish law the wife remainednbsp;mistress of all that she brought into thenbsp;partnership and all that her ability as managernbsp;of the household might have added.

We may therefore say with safety that the favourable status accorded to women in Irishnbsp;law originated in no small degree in the lawnbsp;and custom of the Pre-Celtic population.

3.—Druidism of Pre-Celtic Origin.—Druidism

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was the chief distinguishing feature of early Irish civilization, and continued to exercise anbsp;dominant influence for centuries after thenbsp;Druids themselves had passed away. Professor Pokorny, in a paper published by thenbsp;Smithsonian Institute, was the first to pointnbsp;out that Druidism had not its roots in thenbsp;Indo-European tradition, and should havenbsp;originated among the Pre-Celtic inhabitantsnbsp;of Britain and Ireland. This, there is reasonnbsp;to think, was actually the ancient Irish tradition.

4.—The Druids Were Not Priests.-—The only essay towards a comprehensive studynbsp;of Druidism that has found publication is thenbsp;work entitled The Druids by T. D. Kendrick,nbsp;of the British Museum, published in 1927.nbsp;Replete with valuable information, it fallsnbsp;short of being a full review of the evidence,nbsp;and its author has allowed too much weightnbsp;to the anti-druidical polemics of a number ofnbsp;Latin writers. He has succeeded in preparingnbsp;the ground by clearing away the imaginativenbsp;rubbish that accumulated during the periodnbsp;of modern romantic literature, except in onenbsp;respect, and the exception is a very grave one,nbsp;for it concerns the main character of Druidism.nbsp;Mr. Kendrick, in common with many othernbsp;writers and with people of romantic imagination, has allowed himself to be possessed bynbsp;the notion that the Druids were an ancientnbsp;Celtic priesthood. Yet in all the ancientnbsp;evidence which he has so well cited, the Druidsnbsp;are never once said to be priests, never once

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pictured as offering sacrifice or performing any other act of divine worship on behalf ofnbsp;the community. On the contrary, there isnbsp;good and sufficient evidence that they werenbsp;not priests.

Druidism was not known to exist outside of Ireland, Britain and Transalpine Gaul.nbsp;There is no trace of it among the Celts ofnbsp;Spain, of Middle Europe, of Northern Italy,nbsp;or of Asia Minor. If the Druids had beennbsp;the priests of the ancient Celts, they wouldnbsp;have been found among them in all thosenbsp;countries. Moreover, the Celts of Transalpine Gaul had priests who were not Druids,nbsp;the Gutuatri. Shall we suppose that they hadnbsp;two distinct and separate orders of priesthood,nbsp;and that ancient writers, including Caesar,nbsp;kept silence about it ? Caesar, indeed, isnbsp;explicit enough. The Celts, he says, employnbsp;the Druids in their sacred rites—but in whatnbsp;capacity ? Not as priests, ministri sacrorum,nbsp;but as administri ad sacra, that is to say, innbsp;some external capacity. So one Greek writernbsp;tells us that the same Celts do not offer sacrificenbsp;without the presence of a Druid; anothernbsp;has it, without a philosopher. No ancientnbsp;writer would have thought of saying that thenbsp;Celts employ priests in their worship or donbsp;not sacrifice without priests. It is preciselynbsp;because the Druids were known not to benbsp;priests that these things were written of them.

5.^—Geographical Range of Druidism.—In order, then, to arrive at a true historical view

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of Druidism, along with the rest of the imaginative fictions that Mr. Kendrick has so effectually swept away, we must sweep away the remainingnbsp;fiction that the Druids were a Celtic priesthood. If they had been a Celtic priesthood,nbsp;we should expect to find them among thenbsp;Celts of Spain, of Northern Italy, of Middlenbsp;Europe, and of Asia Minor. There is nonbsp;trace of them outside of Ireland, Britain andnbsp;Transalpine Gaul, now France. Moreover,nbsp;in Gaul, their chief centre was in the territorynbsp;of the Carnutes, in the middle of that part ofnbsp;Gaul which was nearest to Ireland. Add tonbsp;this the testimony of Julius Caesar, based onnbsp;first-hand information, and among his sourcesnbsp;of information we may recognize the Druidnbsp;Diviciacus, whom he held in high esteem.nbsp;Caesar testifies that Druidism originated notnbsp;anywhere among the Continental Celts, butnbsp;in a country which he calls Brittania, and thatnbsp;still in his time the headquarters ofDruidicalnbsp;teaching were in that country. The oldestnbsp;Irish evidence is to the same effect. We havenbsp;writers of the seventh century, Adamnan andnbsp;Muirchu and Tirechan, who have much tonbsp;say about Druids and who must have been innbsp;touch with very fresh traditions of Druidism,nbsp;and who never call the Druids by any namenbsp;indicating the priestly office and never ascribenbsp;to them any priestly function.

6.'—Greek Estimate of Druidism.—-'We first hear of the Druids from a number of Greeknbsp;writers who came to know about them through

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the Greek colonists of the western Mediterranean seaboard. Then we have a very concise but very instructive account of themnbsp;by Julius Caesar, written from first-handnbsp;knowledge. It is noteworthy that in Greeknbsp;writings, before and after Caesar, in Caesar’snbsp;account, and in the interesting passages innbsp;which Cicero tells us of his conversations withnbsp;the Druid Diviciacus, there is not a word ofnbsp;depreciation, not a suggestion that thenbsp;Druidical culture, regarded from the Greeknbsp;or Roman standpoint, was in any respectnbsp;deserving of censure or contempt. In fact,nbsp;when we take into account the prevalentnbsp;attitude of superiority taken up by the Greeksnbsp;and Italians of that age towards all the othernbsp;peoples of Europe, whom they classed innbsp;common as barbarians, we can only infernbsp;that the Druidical culture was such as tonbsp;command their esteem. One Greek writernbsp;indeed, who thought the wearing of trousersnbsp;could hardly be reconciled with a high degreenbsp;of civilization, says that he could well believenbsp;these Gauls with their legs cased in breechesnbsp;to be real barbarians were it not that theynbsp;accepted the Pythagorean and Druidicalnbsp;teaching as regards life after death.

7.^—Roman Hostility.—^When the Roman power became established over Transalpinenbsp;Gaul, we find a new literary attitude towardsnbsp;Druidism, but only in Roman writers—thenbsp;Greeks remain respectful as before. Druidismnbsp;is now marked out as an inhuman form of

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religion, associated with the sacrifice of human victims. This charge of inhumanity now raisednbsp;against the Druids by the literary henchmennbsp;of the Caesars is plainly a piece of imperialnbsp;hypocrisy. Rome itself, the imperial city,nbsp;was accustomed to be entertained and fillednbsp;with pride by gladiatorial shows, and by thenbsp;spectacle of the most illustrious men of thenbsp;conquered nations dragged through her streetsnbsp;chained to the cars of her triumphant warlords, and at the day’s end miserably stranglednbsp;in a prison dedicated to the war-god Mars.nbsp;The conquest of Transalpine Gaul was achievednbsp;by a war the like of which was not seen againnbsp;in Europe until our time. Plutarch tells thatnbsp;the Gauls defended 800 towns against Csesarnbsp;and put 3,000,000 men into the field, of whomnbsp;1,000,000 were killed and another millionnbsp;made prisoners and sold into slavery. Wenbsp;need not be asked to believe that the Romannbsp;emperors and their literary followers who livednbsp;through the reign of Nero were shocked bynbsp;the inhumanity of Druidism. The fact isnbsp;that Roman statesmen recognised Druidism tonbsp;be what would now be called a nationalizingnbsp;influence, hostile to the denationalizing policynbsp;of the Empire, and measures of graduallynbsp;increasing severity were adopted to suppressnbsp;it, based on the pretext of humanity. Undernbsp;Augustus the Druids and their disciples werenbsp;excluded from citizenship. Under Tiberius,nbsp;Druidism was made unlawful. Under Claudiusnbsp;it was “ wholly abolished.” Later Pomponius

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Mela describes the Druids still endeavouring to carry on their work of teaching, stillnbsp;attracting to their schools the noblest of thenbsp;nation, but these schools were in caverns ofnbsp;the earth and in the depths of the forest.

The imperial statesmen had a true instinct. Transalpine Gaul was at that time developingnbsp;a high and progressive civilization. Druidism,nbsp;ignoring political boundaries, was creatingnbsp;and organizing a sense of national unity.nbsp;Its continued influence would have been anbsp;danger to the imperial idea. There wasnbsp;nothing easier for the Caesars, if they wishednbsp;to be apostles of humanity, than to makenbsp;human sacrifice by itself unlawful under thenbsp;most extreme penalties, but their purpose wasnbsp;not to abolish a cruel rite ; it was to get ridnbsp;of the Druids.

8.—The Scope of Druidical Culture.— were the subjects of instruction in the Druidicalnbsp;Schools ? According to Caesar: the futurenbsp;state of the human soul; the stars and theirnbsp;movements, i.e., astronomy ; the magnitudenbsp;—the extent and measurement—of the universenbsp;and the lands of the earth ; the nature ofnbsp;things—physiology ; the force and power'—nbsp;as we would say, the nature'—of the immortalnbsp;gods—theology. As experts in theology, notnbsp;as priests, they interested themselves in mattersnbsp;of religion, laid down rules for public andnbsp;private rites, interpreted auguries and thenbsp;like. They also concerned themselves withnbsp;history, for Caesar says that the Gauls, on the

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authority of the Druids, held themselves to be descendants of a god (as did many othernbsp;ancient peoples), and Ammianus says thatnbsp;the Druids distinguished between an indigenousnbsp;and an immigrant element in the Gaulishnbsp;population and traced the latter element tonbsp;an insular and a Transrhenane, i.e., Mid-European, origin.

Pomponius Mela, in whose time the Druidical schools, though proscribed, continued tonbsp;exist in secret, briefly confirms Caesar’s statement as regards the teaching of physical andnbsp;theological science. A further confirmation isnbsp;found in Cicero’s treatise on divination. Nonenbsp;of these writers, and no other known writingsnbsp;of that age, suggest that the learning of thenbsp;Druids was backward or over-pretentious ornbsp;contemptible in any way. This tacit testimonynbsp;is all the more remarkable in view of thenbsp;evident hostility towards the Druids and thenbsp;desire to brand them with barbarity, on thenbsp;part of the imperial writers, Suetonius, Lucan,nbsp;Pliny, and Tacitus. Of the learning of thenbsp;Gallic Druids, one monument alone survives,nbsp;the Calendar of Coligny. The writer’s published account of the Calendar shows it to benbsp;of complex structure, based on a calculatednbsp;relation between the astronomical months andnbsp;years, but not constructed in imitation of anynbsp;other known system of chronography.

All this implies that the Druids were the leaders and teachers of a large and progressivenbsp;culture, and so, in fact, they were. The

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Roman conquest of Gaul crushed a young and promising Gallic civilization, as the earliernbsp;Roman conquest of Italy had crushed thenbsp;highly developed civilization of Etruria. Thenbsp;worship of success, the worship of bigness, thenbsp;worship of the State'—we may say in short,nbsp;the worship of the beast and his image, it is innbsp;the spirit of this abasement that the historynbsp;of the Roman power has been written, and nonbsp;historian has yet faced the other side of thenbsp;picture, the amount of steam-rolling of humanitynbsp;that went to make up the Pax Rotnana.

9. —The Druids in Relation to Law. —What has all this to say to the laws and institutionsnbsp;of Ireland ? There is another aspect of thenbsp;Druidical culture that so far has not beennbsp;touched upon'—its relation to laws and institutions. Gaul before Caesar’s conquest wasnbsp;divided into a large number of states, each ofnbsp;which in the modern expression would benbsp;described as sovereign and independent, thoughnbsp;there was a tendency among them, as amongstnbsp;the states of ancient Greece, to group intonbsp;hegemonies, allied groups in each of whichnbsp;some one state held an acknowledged leadingnbsp;place. Not the least remarkable character ofnbsp;Druidism was that it formed a bond of unionnbsp;among all these independent communities.

The Druids of Gaul, we learn from Caesar, had a common president, elected by vote, andnbsp;met in annual convention at a fixed time andnbsp;place. One of the functions of these conventions was to provide an international court

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of law for the states of Gaul. “ Hither come together from all parts all who have disputes,nbsp;and they render obedience to the awards andnbsp;judgments of the Druids.” Their acknowledged jurisdiction extended not merely tonbsp;disputes between individuals, but to disputesnbsp;between states : “ They lay down the law innbsp;almost all disputes, public and private (j.e.,nbsp;between peoples or states as well as betweennbsp;private persons), and if any offence is established, if homicide has been committed, ifnbsp;there is a dispute about inheritance or aboutnbsp;boundaries, they adjudicate on it and fix thenbsp;compensation and the penalty. If their decreenbsp;is not obeyed by any, whether private personnbsp;or state (populus), they interdict from religiousnbsp;rites.” And Caesar goes on to say that theirnbsp;power of interdiction was fully efective, andnbsp;deprived those who were in contumacy ofnbsp;both ius and honos, the right to the protectionnbsp;of law and the right to hold public office. Wenbsp;have seen that the general character of Druidismnbsp;was to be recognized as experts and teachersnbsp;in the higher b^ranches of knowledge. Whennbsp;we find them acting as Caesar describes in thenbsp;application of law, we may infer that they alsonbsp;concerned themselves with the theory andnbsp;teaching of laws—with jurisprudence. Thisnbsp;inference is placed beyond doubt by thenbsp;known facts regarding ancient Irish law.

10.—Survived of Druidism in Ireland.—A round-up and massacre of Druids in the islandnbsp;of Mona or Anglesea by the Roman forces

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under Suetonius in a.d. 6i made an end of Druidism in the countries under Roman power.nbsp;In Ireland, Druidism continued for centuriesnbsp;later, and was transformed, not abolished, bynbsp;the introduction of Christianity. It cannot benbsp;claimed that Irish Druidism continued tonbsp;exhibit the spirit of acquisitive and progressivenbsp;learning and culture that characterized thenbsp;Gallic Druids. On the contrary, it is thoughtnbsp;likely that the suppression of Druidism undernbsp;the Roman Empire had a narrowing andnbsp;sterilizing effect in Ireland, making the Druidsnbsp;hostile and negative towards things associatednbsp;with the Roman power.

II.'—The Druids and the Use of Writing.— When Caesar says that the Druids avoided thenbsp;use of writing, he makes it quite clear thatnbsp;this observance was confined to teaching, fornbsp;he goes on to give alternative explanations fornbsp;it; the purpose was either to cultivate thenbsp;memory and ensure remembrance of what wasnbsp;taught, or it was to prevent their doctrine fromnbsp;flowing out among the general public. Allnbsp;this implies that writing was at the commandnbsp;of the Druids if they desired to use it, butnbsp;much more is implied. If doctrines deliverednbsp;orally could be kept within a select circle ofnbsp;the learned, whereas doctrines delivered innbsp;writing were in danger of becoming commonnbsp;property, it could only be because the art ofnbsp;writing was in general use. That it was innbsp;general use among the Gauls in the time ofnbsp;Caesar, he himself testifies very plainly, for

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in contrast to the avoidance of writing in the Druidical schools he goes on at once to saynbsp;that “ they employ writing with the Greeknbsp;alphabet in almost all their affairs, both publicnbsp;and private.”

12.'—The Use of Writing in Gaul.—^The fact thus placed on record by a witness of thenbsp;highest authority is not to be brought undernbsp;doubt by reason of the scanty remains ofnbsp;writing in the Gaulish language. When thenbsp;Gauls submitted to the Roman conquest, theynbsp;speedily abandoned all their own distinctivenbsp;culture and adopted the Latin culture instead,nbsp;not merely adopted it, but excelled in it.nbsp;Considering that not a single manuscript ofnbsp;Latin dating from the time when the Gaulishnbsp;language still flourished has been preserved,nbsp;it is not surprising that very little that wasnbsp;written in Gaulish is known to survive. Nevertheless, enough has survived to bear out thenbsp;testimony of Cfesar that writing was commonlynbsp;and widely used by the Transalpine Gauls innbsp;their own language, not by a limited circle ofnbsp;the learned, but for various public and privatenbsp;purposes, in religion, in affairs of state, andnbsp;in the transactions of industry and commerce.nbsp;Caesar himself got possession of the writtennbsp;census of the Helvetii, containing 263,000nbsp;names of men, women and children—it wasnbsp;drawn up nominatim.

The Calendar of Coligny, graven on a bronze table, contained a tabulated ritual programmenbsp;for five years, month by month, day by day.

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over 1,800 days, with a separate line for every day. In the extant remains there are aboutnbsp;three-fifths of the whole calendar. In aboutnbsp;1,000 entries, there are fewer than fifty wordsnbsp;written in full. The remaining words arenbsp;written in abbreviations of one, two, three ornbsp;more letters. This free use of abbreviationsnbsp;implies the greatest familiarity with readingnbsp;and writing on the part of those who drew upnbsp;the Calendar and on the part of those for whosenbsp;use it was drawn up. The language is Gaulish,nbsp;and my published study of the Calendar showsnbsp;that it exhibits an elaborate system of chrono-graphy, based on astronomical computation,nbsp;not adopted from any known model, Greek,nbsp;Roman, or other, and that its arrangement ofnbsp;the months is in accord with the Druidicalnbsp;method described by Pliny. In it we havenbsp;evidence that the Druids used writing, andnbsp;used it freely and familiarly, when they foundnbsp;it useful. But the most notable proof of thenbsp;common and widespread use of writing innbsp;Transalpine Gaul is provided by the recentlynbsp;discovered graffiti of La Graufesenque.

This place, in Aquitaine, became the seat of a flourishing ceramic industry, which, anbsp;century or so after the Roman conquest ofnbsp;Gaul, supplied earthenware to the Romannbsp;armies in various parts of Western Europe,nbsp;in Britain, along the Rhine, and in Spain—nbsp;we know this from finds of pottery markednbsp;with the names of makers whom the graffitinbsp;show to have carried on their industry at La

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Graufesenque. Besides these master potters, who directed the manufacture, there seem tonbsp;have been a number of agents or contractors,nbsp;who distributed the orders for the requirednbsp;pottery among the makers and collected andnbsp;forwarded the goods to their destination. Thenbsp;graffiti contain lists of different kinds of potterynbsp;goods—cups, bowls, dishes, jars, ink bottles,nbsp;etc.—^the number of each kind required, thenbsp;liquid measure of each kind, and the names ofnbsp;the makers by whom the orders were supplied.nbsp;These lists are found scraped on fragments ofnbsp;pottery'—about 40 have been found'—^whichnbsp;seem to have been thrown away when theynbsp;had served their purpose. We may, therefore,nbsp;conjecture that they were transcribed from thenbsp;books of the contractor and given to a dispatchnbsp;clerk for the purpose of collecting the goods.nbsp;In one instance the clerk appears to havenbsp;amused himself by scribbling a couple of verses.nbsp;The language of the graffiti is Gaulish. Takennbsp;with the Helvetian census and the Colignynbsp;Calendar they exemplify the truth of Caesar’snbsp;evidence that the Gauls used writing in almostnbsp;all their affairs, both public and private.

13.—Meillet Misunderstandsthese are solid facts of history, they appear to be almostnbsp;unknown, therefore almost without significance,nbsp;to the learned world of our time. We mightnbsp;expect that, if anjrwhere, they should be knownnbsp;and appreciated in France. But in France, notnbsp;less than in any other country, the history ofnbsp;the Roman Empire, written throughout the

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ages in a one-sided spirit of adulation, appears to pass for the whole truth. In philologicalnbsp;science no name among our contemporariesnbsp;stands higher than the name of Meillet. Thenbsp;following passages are taken from a recentnbsp;work of his, Esquisse d’une Histoire de la Languenbsp;Latine :

“ The countries of Celtic and Germanic language, even in part those of Slavonicnbsp;language, were civilised only by nourishingnbsp;themselves from Latin.

“ The Gauls almost wholly avoided writing and what has survived of Gaulish is of smallnbsp;account.”^

“As a matter of choice (de parti pris), they ignored the use of writing which, innbsp;the time of Caesar, the Druids continuednbsp;not to employ. Inhabiting a territory whichnbsp;bordered on several Greek colonies, andnbsp;having come down into Italy where everybody already wrote (ou tout le monde écrivaitnbsp;déja), the Gauls hardly wrote at all : Gaulishnbsp;inscriptions are rarities and in general havenbsp;no official character (elles n'ont en généralnbsp;rien d'officiel)”*

The last phrase is a curious revelation of the domination of cultured minds by the fact andnbsp;idea of the Roman state. But what is M.nbsp;Meillet thinking of when he says that every-

•Meillet, Esquisse d’une Histoire de la Langue Latine (1928),

‘Ibid. 17. ^Ibid, 77.

II.

PRE-CELTIC INSTITUTIONS 8i

body used writing in Italy at the time of the Gallic immigrations ? As for what he says ofnbsp;the Gauls and their Druids, with special reference to Caesar, it is to be feared that, as innbsp;the case of many a less brilliant intellect, thenbsp;early stages of his learning must have sufferednbsp;from such a concentrated diet of Caesar as tonbsp;leave only disagreeable impressions and a fixednbsp;reluctance to return to that source of nourishment. It remains to be said that a Germannbsp;professor of distinction has recently been accusing M. Meillet of Keltomanie.

14. —Invention of the Ogham Alphabet.—Thenbsp;Irish Druids, on the other hand, appear tonbsp;have avoided the use of the Roman alphabet.nbsp;No inscriptions in Greek or Roman charactersnbsp;have been found in Ireland of earlier datenbsp;than the introduction of Christianity. Butnbsp;they were acquainted with the Roman alphabet and they devised an elaborate cipher,nbsp;the Ogham alphabet, to take its place.nbsp;Except for inscriptions and other statementsnbsp;of like brevity, this alphabet was not suitablenbsp;and beyond this its known and its traditionalnbsp;use did not go. The fact that it was basednbsp;on the Roman alphabet and that the Romannbsp;alphabet itself was avoided, the writer takes tonbsp;be evidence that the Roman ban against Druid-ism evoked hostility on the part of Druidismnbsp;against the apparatus of Roman civilisation.

15. '—Survival of Druidism in Christian Ireland.—The adoption of Christianity did notnbsp;abolish Druidism, but rather transformed it.

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Except as regards religion, everything that Caesar tells about Druidism in Gaul is foundnbsp;reflected in the learning of early Christiannbsp;Ireland ; schools to which the youth of thenbsp;country flock in great numbers ; teachers heldnbsp;in high honour ; a class of professional mennbsp;of learning, who form a common societjr innbsp;disregard of the division of the country intonbsp;numerous separate political communities ; thisnbsp;learned class exempt from military service ;nbsp;instruction given orally and in verse, andnbsp;spread over a long course of years. The titlenbsp;of Druid was abandoned ; it came to meannbsp;merely a magician and is translated in Latinnbsp;by magus. For it is substituted the term Fili,nbsp;usually translated “ poet,” but originally meaning “ seer.” The isolated Druidism of Irelandnbsp;developed a pedantic spirit which has ever sincenbsp;been characteristic in greater or less degree ofnbsp;Irish learning and culture. You will find itnbsp;well exemplified in the glosses and commentaries that accompany the ancient Irish lawnbsp;tracts.

i().^Jurists were Originally Druids.'—^The Irish jurists of the early Christian period heldnbsp;in direct succession to the Druids. This mightnbsp;be inferred from the historical facts that havenbsp;been indicated, but it was also their own tradition. The legend of their transformation isnbsp;told in the introduction to Senchus Mor, andnbsp;will be found in the first volume of the Ancientnbsp;Laws of Ireland. At Patrick’s request a convention for all Ireland was held under the high-

PRE-CELTIC INSTITUTIONS 83

king Loiguire, in order to bring the laws of Ireland into harmony with Christianity. “ Thenbsp;fili Dubhthach was ordered to expound thenbsp;jurisprudence and the science of the Filidhnbsp;and all the laws that prevailed among the mennbsp;of Ireland in the form of the natural law andnbsp;the law of the seers and the judgments of thenbsp;island of Ireland and the law of the Filidh.nbsp;The judgments of the true natural law whichnbsp;the Holy Spirit had spoken through the mouthsnbsp;of the jurists and the faithful Filidh of thenbsp;men of Ireland from the first occupation ofnbsp;the island down to the coming of the Faith,nbsp;all these Dubhthach exhibited to Patrick.”nbsp;Another legend traces the origin of Irish jurisprudence to Amorgen, the first Druid of thenbsp;Gaelic race in Ireland.

17.—Cultural Background of Irish Lazus.— We see now how great has been the error ofnbsp;those modern investigators, beginning with Sirnbsp;Henry Maine, who have approached the studynbsp;of the ancient laws of Ireland under the impression that the Irish law tracts, when theynbsp;emerged into writing in the seventh century,nbsp;should present, as it were, a kind of phonographic record of primitive customary law.nbsp;Irish law, when it emerged into writing, camenbsp;forth not from the customs of the countrysidenbsp;or the practice of popular assemblies, but fromnbsp;schools of law and from a long tradition ofnbsp;teaching under a class of men who claimed tonbsp;be and were recognised to be the authenticnbsp;expositors of all high knowledge.

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CHAPTER IV

THE BEGINNING OF WRITTEN IRISH LAWS

I.—The Story of Cenn Faelad.—^Adamnan, in his Life of St. Columba, speaks of an eventnbsp;of his own time—the battle of Moira, in connection with a warning given by the Saint tonbsp;his friend Aidan, king of Dalriada. A successornbsp;of Aidan, Domnall Brecc, in disregard of thenbsp;warning, made war on the king of Ireland andnbsp;was defeated in this battle in the year 637.nbsp;The event became famous, and it is the subjectnbsp;of a great saga. A youth named Cenn Faelad,nbsp;grandson of a former king of Ireland, wasnbsp;wounded in the battle, and in the sequel he, too,nbsp;became famous. Here is his story as it hasnbsp;come down to us.

After the battle Cenn Faelad was taken for the cure of his wound to the monastery ofnbsp;Tuaim Recon, for the Abbot of this monastery was reputed to be a skilful surgeon. Innbsp;Tuaim Recon there were three schools—anbsp;Latin school attached to the monastery', anbsp;school of filidecht or Irish learning in general,nbsp;and a school of Irish law. Cenn Faelad attendednbsp;the three schools and became a learned man—nbsp;he is the only layman, so far as has been observed, to whom Irish tradition accorded the

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title Sapiens. The main interest of the story is in his aehievement as a student of Irish law.nbsp;All that he learned by day in the sehool ofnbsp;law, he wrote down by night, writing it firstnbsp;on slates and waxen tablets and afterwardsnbsp;copying it into books.

2.—The Implication of the Story.—^Those who related this story in later times no longernbsp;understood its original significance. Theynbsp;imagined that the main point of it was the featnbsp;of memory, and to explain this they told thatnbsp;the young man’s wound required a surgicalnbsp;operation on the skull, and that in the coursenbsp;of the operation he had his “ brain of forgetting ” removed, and so became able to remember and record all that he had heard. Butnbsp;the real point in the original story was thatnbsp;in an Irish school of law, in the first half ofnbsp;the seventh century, instruction was purelynbsp;oral and the laws themselves remained unwritten. Moreover, it is evident that whennbsp;this story was first told, the writing of doctrinesnbsp;of Irish law by Cenn Faelad was surreptitiousnbsp;and that it was an innovation'—^what he learnednbsp;by day he wrote by night. In the Latin schoolsnbsp;reading and writing were matters of course,nbsp;and the young warrior took advantage of thenbsp;Latin school to acquire the art of writing. Cennnbsp;Faelad was no legendary person. His deathnbsp;is recorded by the annals in 679. He wrotenbsp;a number of poems on events of Irish history.nbsp;He undertook another daring innovation, anbsp;work on the grammar of the Irish language.

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The little of his work that has remained cannot be called a marvel of philology, yet the undertaking itself was a noteworthy one, fornbsp;if we except Latin and Greek, about a thousandnbsp;years passed before any other European language was felt to require grammatical explanation.

3. —Beginnings of Written Irish Literature.—nbsp;In applying writing to the record of Irish law,nbsp;it is possible that Cenn Faelad was only onenbsp;of a school of innovators, but the evidence ofnbsp;his story is corroborated by other evidencenbsp;in so far as it indicates the first half of thenbsp;seventh century as the time in which literaturenbsp;of various kinds in the Irish language begannbsp;to be written. The story reflects historicalnbsp;reality in so far as it shows that Irish law camenbsp;into writing not as a record of purely customarynbsp;usage but as the subject of a learned traditionnbsp;already ancient.

4. '—Modern a Priori Misconception.'—If certainnbsp;modern investigators had been able to recognisenbsp;that Irish law in its earliest recorded form hadnbsp;the historical background, a sketch of whichnbsp;has been attempted above, we may charitablynbsp;assume that they would not have come tonbsp;Irish law as to a happy hunting ground for primitive big game. The fashion was set by Sirnbsp;Henry Maine, but his example in the candidnbsp;confession of disappointment has not been universally followed. Sir Henry Maine took upnbsp;the first published volumes of the Ancientnbsp;Laws of Ireland, expecting to find in them

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evidence of a primitive custom of tribal communism, and the result of his inquiry was the finding, which may be allowed both tonbsp;amuse and to enlighten us, that the ancientnbsp;Irish jurists, all of them, “ seem to have anbsp;bias towards private as distinguished fromnbsp;collective property.” Here at all events wenbsp;find recognition of the juristic factor in thenbsp;shaping of Irish law. But notwithstanding allnbsp;the importance that has been shown to belongnbsp;to Druidism, one shrinks from imagining thenbsp;Druids at the height of their authority, muchnbsp;less the jurists who succeeded them, undertaking to supplant the prevalent conservativenbsp;custom of collective ownership, by inventingnbsp;and imposing a revolutionary and radical doctrine of private property.

5.—The Commission of 1852.’—In 1852 the British Government appointed Commissionersnbsp;for the transcription, translation and publication of the ancient laws of Ireland. The Commissioners, not being themselves in any degreenbsp;experts either in historical jurisprudence or innbsp;the language of the Irish laws, employednbsp;O’Donovan and O’Curry to make the transcripts and translations. The transcripts madenbsp;by these men amount to about 5,400 pages ofnbsp;manuscript. They also prepared preliminarynbsp;English translations of almost all this material.nbsp;But neither of them lived to revise or completenbsp;their work before it could be printed. Theirnbsp;task was enormous. The least part of it wasnbsp;the scribal labour of writing 10,000 pages or

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more. They had to render into English a mass of material written in the ancient forms ofnbsp;Irish from the seventh to the seventeenthnbsp;century and not in the common literary usagenbsp;of any period, but in a highly technical diction.nbsp;To determine the meanings of technical wordsnbsp;and phrases they had no help but a number ofnbsp;ancient glossaries which were then still unprinted. Neither O’Curry nor O’Donovan hadnbsp;any philological training, and their knowledge ofnbsp;the old and middle Irish of the law tracts wasnbsp;based on a good knowledge of modern Irishnbsp;supplemented by an extensive and intensivenbsp;reading of older writings, mostly unprinted.

6.—Merits and Demerits of the Commission’s Work.—When the facts and circumstances arenbsp;borne in mind, we must admit that the “ preliminary translations ” are a great and admirable work. Those who have recourse to thenbsp;published volumes should be careful to recognise that the English version of the textsnbsp;consists throughout of these preliminary translations. None of the editors, except Atkinson,nbsp;who edited the fifth volume and prepared thenbsp;glossary which forms the sixth and last volume,nbsp;had any competency to revise or criticise thenbsp;work of the first translators. In fact, therenbsp;was no editing in any proper sense of eithernbsp;text or translation, and the editorial contributions consist mainly of speculative essays, thenbsp;chief value of which is to exemplify how notnbsp;to do it.

The translations are gravely defective. It

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was impossible to understand or explain writings, the chief of which were in the oldest form of written Irish, without the aid ofnbsp;modern philology. The foundations of thenbsp;philological study of the Irish language hadnbsp;just been laid by Zeuss, whose Grammaticanbsp;Celtica was published in the year following thenbsp;institution of the Commission for the Ancientnbsp;Laws of Ireland. The vocabulary and phraseology of the Irish law-texts are highly technicalnbsp;and peculiar, so that even a philological expertnbsp;in old and middle Irish must make a specialnbsp;study of the language of these texts to be ablenbsp;to understand and explain them. The translators could not recognise the technical exactitudenbsp;of the originals and did not seek to reproducenbsp;it. Their knowledge and their imagination didnbsp;not rise to the conception of a system and formnbsp;of law largely different from the English lawnbsp;under which they and their forefathers fornbsp;generations had lived. So these preliminarynbsp;translations contain very many errors, and somenbsp;of the errors are based on fundamental misconceptions and have given support to fundamental misinterpretations.

7.—Irish Law National not Local.'—^When we regard the ancient laws of Ireland takennbsp;together, their most noteworthy aspect is, asnbsp;Kuno Meyer pointed our, that they are thenbsp;laws of Ireland. In all the texts that have beennbsp;published or studied, the principles and provisions of law that are stated are equallynbsp;applicable in every part of Ireland, and laws

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of localised application find no place among them. This is all the more remarkable because,nbsp;when Irish law prevailed, the country wasnbsp;divided into a number of small states, eachnbsp;state complete in itself, each having its ownnbsp;complete legislative, judicial and executivenbsp;machinery. Moreover, the laws, as we findnbsp;them, fully and explicitly recognise the existence of such states, and their theory throughoutnbsp;is that, while they are equally applicable everywhere in Ireland, they are carried into effectnbsp;by the authority and through the action ofnbsp;each state separately. Where the need arosenbsp;for common action between states in the application of law, that is to say, when the partiesnbsp;belonged to different states, special means werenbsp;provided in the general law for joint action,nbsp;judicial and executive.

8. —Explanation of its National Character.'—It might be imagined that this institution, a common system of law operating through a numbernbsp;of quite distinct political communities, shouldnbsp;have originated in an earlier condition ofnbsp;political unity. All the evidence is to the contrary. In short, the reason why there was anbsp;system and body of laws common to all Irelandnbsp;was because the jurists, the expert and recognised custodians and exponents of law, formednbsp;a common society for the whole of Ireland,nbsp;and their right to do so was not questioned.nbsp;Here we see reflected clearly in Ireland, fromnbsp;the seventh to the seventeenth century, thenbsp;position achieved by the Druids in Trans-

POLITICAL FRAMEWORK

alpine Gaul, described by Caesar in the first century B.c. It has already been shown thatnbsp;the jurists knew themselves to be the successors to the Druids, whom they held in suchnbsp;reverence as to declare that the justice of theirnbsp;jurisprudence was inspired by the Spirit ofnbsp;God. The proof is more complete. Thenbsp;Druids were not jurists only, but experts innbsp;all the higher branches of knowledge. So, innbsp;Irish history from the earliest recorded timesnbsp;down to the dethronement of Irish nationalitynbsp;in the seventeenth century, not only the juristsnbsp;but all the other men of learning in like mannernbsp;regarded themselves and were regarded by thenbsp;people as belonging to all Ireland in common.

CHAPTER V

THE POLITICAL FRAMEWORK OF ANCIENT IRELAND

I.'—Early Political Groupings in Ireland.-— For the right understanding of Irish historynbsp;as regards laws and institutions, as in othernbsp;respects, the first thing necessary is to clearnbsp;the ground of weeds. The fact has alreadynbsp;been stated that ancient Ireland was dividednbsp;into a number of distinct states. These alwaysnbsp;tended to form associated groups under thenbsp;leadership of one state in the group, and the

EARLY IRISH LAWS

groups tended to form larger groups. A firm tradition points to a time, about the beginning of the Christian era, when Ireland consisted of five main groups of states, each ofnbsp;which in the ancient writings is called anbsp;“ coked,” which means a fifth part. Thoughnbsp;the fivefold division or grouping had alreadynbsp;disappeared before our oldest written records,nbsp;the word coiced remained, and still remains tonbsp;commemorate the fact. For example, thenbsp;province of Ulster is known in Irish as Cuis'nbsp;Uladh, which means the fifth of the Ulaidh.nbsp;Of the single states which formed the groups,nbsp;smaller and larger, the number varied in different periods. In general, their number may benbsp;estimated between 8o and lOO. Those whonbsp;have some detailed knowledge of Irish topography will grasp the fact more easily if wenbsp;say that a modern Irish county, on the average,nbsp;would be equal in extent to two or three ofnbsp;the ancient Irish states.

2.—Imaginary Tribal Basis of Irish States.'— The notion has sprung up in quite modernnbsp;times and among those who have approachednbsp;Irish history from an English standpoint, thatnbsp;these small Irish states were what are callednbsp;tribal communities. This notion has beennbsp;popularised in Ireland, and the popular formula for it is “ the clan system.” To be briefnbsp;about this theory or notion of tribal organisation or clan system, it is all moonshine. Partlynbsp;it has grown out of Sir Walter Scott’s poemsnbsp;and novels, partly out of the ardent quest

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after the primitive, partly out of the subconscious idea that the old tragedy of English rule in Ireland is to be justified in some degreenbsp;by depreciating the native Irish civilisation.nbsp;Support for the erroneous notion is found innbsp;the old Irish custom of naming a territory bynbsp;the name of the sept whose chiefs held rulenbsp;in it. Connacht is an instance, it really meansnbsp;the sept whose ancestor was Conn, and it originally denoted a dynastic family, but thenbsp;name is given to the entire region, one of thenbsp;ancient Fifths of Ireland, over which the kingsnbsp;of that sept held rule. The custom came downnbsp;to relatively late times. In the thirteenthnbsp;century, Ricard de Burgh was aided by thenbsp;viceroy Maurice FitzGerald in invading Connacht and making himself feudal lord of thenbsp;greater part of it, and a particular region overnbsp;which his descendants held rule came to benbsp;called Clann Ricaird, Clanrickard. Mauricenbsp;FitzGerald left some of his posterity in anothernbsp;part of Connacht, which is still called Clannnbsp;Mhuiris, Clanmorris. We cannot infer fromnbsp;these names that the country called Clanrickardnbsp;was ever inhabited mainly by De Burghs ornbsp;Burkes, or that the country named Clanmorrisnbsp;was ever peopled with FitzGeralds, and thenbsp;same applies in earlier periods wherever wenbsp;find territories named in this way.

We are not concerned now with the theory that all human society passed through a primitive tribal organisation into the stage of politicalnbsp;organisation not based on kinship. No reason

EARLY IRISH LAWS

is seen for assuming an identity of process throughout the human race. Vinogradoff rathernbsp;has in view a primitive political communitynbsp;formed by a grouping or alliance of differentnbsp;clans or kindreds, though he confuses thenbsp;description by giving such an associated groupnbsp;the name “ tribe,” which, it is believed, isnbsp;commonly understood to mean a groupingnbsp;based on kinship only. At all events, thenbsp;historical political community in ancient Ireland was not a tribe or clan.

3.—The Tiiath and its Franchise.—The specific name for it in the laws is “ tuath,” and no indication has been found in the law tracts thatnbsp;the jurists imagined the tuath to be formed onnbsp;a basis of kinship actual or fictitious. Wenbsp;find a maxim which implies the contrary : “Anbsp;man is better than his birth (or kindred),”nbsp;meaning that a man can acquire free status,nbsp;or can rise in the grades of status, no matternbsp;how humble is his origin. Let us considernbsp;who they were who held the franchise ornbsp;citizenship in an Irish state. First, there werenbsp;those who had property in land-—a numerousnbsp;class. Secondly, there were all men of learning,nbsp;which was classed as Latin learning and Irishnbsp;learning. The men of Latin learning comprised the clergy of all grades and the teachersnbsp;and pupils of Latin schools : “ There is nonbsp;Latin learning without franchise.” The mennbsp;of Irish learning comprised jurists and professional men of letters. Thirdly, there were mennbsp;of the liberal crafts, enumerated thus ; House-

POLITICAL FRAMEWORK

builders, builders of ships and boats, and of mills, wood-carvers, chariot-makers, turners,nbsp;leather-workers, fishermen, smiths and metalworkers, and some others ; among musicians,nbsp;harpers only.

Excluded from franchise were persons who had no property or possessions : The tenantnbsp;class of occupiers of land ; craftsmen of inferior grade; strangers to the tuath; andnbsp;persons who lost their franchise by defyingnbsp;the laws. Within the tuath there were noblesnbsp;who had political authority over smaller communities, and even these were not the headsnbsp;of clans. A freeman became the subject of anbsp;ruling noble by a definite form of contract,nbsp;which could be legally discharged and whichnbsp;in any case was terminated by the death ofnbsp;either party. The jurists, however, held thatnbsp;such a contract should preferably be betweennbsp;kinsmen. There was a clear preference fornbsp;the hereditary nexus. The novus homo, thenbsp;man who sought to enter a higher grade ofnbsp;status, to which his father and grandfather hadnbsp;not both belonged, was required to have qualifications in double measure. There was anbsp;prevalent belief in hereditary aptitude, andnbsp;nearly every profession tended to run innbsp;families. As Dr. J. C. Kenney has seen, onenbsp;reason for the tendency of professions andnbsp;avocations to become hereditary was their endowment with estates in land. The sentimentnbsp;sometimes called clannishness was very strong,nbsp;particularly towards kinsmen, and the ruling

EARLY IRISH LAWS

families had great opportunities of aggrandising themselves. How they used these opportunities is told very forcibly by a strong partisan of their order after its fall, one ofnbsp;their hereditary historians, Dubhaltach Macnbsp;Fir Bhisigh.

^.—Law National in Scope, Local in Operation.—^Were it not for Julius Caesar, his power of grasping the significant facts, and the briefnbsp;yet lucid account that he has left us of Gallicnbsp;Druidism, it would be hard to understand ornbsp;explain that remarkable character of ancientnbsp;Irish law—how it was in theory and in factnbsp;the law of the whole Irish nation, yet it operatednbsp;normally, not through any common nationalnbsp;authority, judicial or executive, but throughnbsp;the judicial and executive organs of each ofnbsp;the numerous little states of which the nationnbsp;was composed. This twofold character ofnbsp;Irish law is expressly recognised in the ancientnbsp;texts. It is exemplified in a formula frequentnbsp;in the Heptads, e.g.: “ There are seven gifts in anbsp;Tuath which are most insecure in the customnbsp;of the Feni.” Here the basis of the law is thenbsp;custom of the freemen of all Ireland, but thenbsp;operation of the law is within a single tuath.

5.—Structure of the Tuath.—Let us see what was the form and character of these little states.nbsp;Their number seems to vary from period tonbsp;period, but if we estimate eighty of them in thenbsp;whole of Ireland, we shall not err to the extentnbsp;of forming a deceptive view of their size.nbsp;This would mean that the average territory of

POLITICAL FRAMEWORK

an Irish state would contain about 400 square miles. The average population of each statenbsp;is not easy to estimate, but we may put it atnbsp;about 25,000. The political structure of thesenbsp;small states was naturally of the simplest kind.nbsp;Political power belonged to the body of freemen, and was exercised through the assemblynbsp;of freemen. Their chief man who presidednbsp;over the assembly of freemen had the title ofnbsp;king. This office was partly hereditary, partlynbsp;elective. A candidate to be legally eligiblenbsp;should be the son, grandson or great-grandsonnbsp;of a man who had already held the office, andnbsp;when the kingship became vacant, the electionnbsp;was made from among the persons thusnbsp;qualified.

6. '—Succession of Kingship.'—This combination of the elective with the hereditary principle was not a constitutional device. It was anbsp;logical application of the Irish law of inheritance, under which a man’s heirs were a familynbsp;group,the descendants of one great-grandfather.nbsp;Moreover, it had a tendency to bring trouble.nbsp;It tended to divide the royal kin into opposingnbsp;factions, favouring the claims of this or thatnbsp;person, and to invite external interference.nbsp;The feuds within the ruling kindreds and thenbsp;advantage taken of their rivalries by ambitiousnbsp;outsiders are in every page of history.

7. —Functions of Kingship.'—^The chief functions of a king of a tuath were three : Henbsp;was president of the assembly, commander ofnbsp;the forces in war, and judge in the public

EARLY IRISH LAWS

court. In other words, he was the chief executive, judicial and military officer of the state. Notwithstanding this concentration of authoritynbsp;in one person, the kings were far from beingnbsp;autocrats. There were no standing militarynbsp;forces, no professional soldiers. Organisednbsp;permanent bodies of fighting men, the Fiana,nbsp;existed for a short period in the third andnbsp;fourth centuries. Their formation was probablynbsp;inspired by the example of the Roman legions,nbsp;and supported by the plunder of Roman provinces, Britain and Gaul, during the decay andnbsp;disorders of the Empire. When that periodnbsp;passed, the abnormal institution of standingnbsp;military forces and the military professionnbsp;passed likewise, only to be remembered andnbsp;commemorated in the epic tradition of thenbsp;Fiana. A professional and permanent soldierynbsp;under Irish kings did not reappear in historynbsp;until the close of the thirteenth century, whennbsp;the Hebrides and Argyle, no longer subject tonbsp;Norway, began to pour men into Ireland tonbsp;do military duty for pay and lands, the “ Gallo-glasses.” Before this time military service innbsp;Ireland was rendered by the men of the ordinary civil population, called out from theirnbsp;ordinary civil occupations when there was military duty to be done. The long resistance tonbsp;the Norse invasions and the later resistancenbsp;to the Anglo-Norman invasion were sustainednbsp;altogether by such temporary civilian levies.nbsp;In the Irish law traets, where almost everynbsp;profession and occupation is explicitly recog-

POLITICAL FRAMEWORK

nised, the military profession finds no place. A ruler who depended for military power onnbsp;the muster of his free people was not likelynbsp;to encroach on their liberty.

The public function most regularly and frequently exercised by a king was the functionnbsp;of judge. The king as judge is all over Irishnbsp;literature, from the earliest writings on St.nbsp;Patrick in the seventh century down to thenbsp;biography of the last Irish king, Aodh Ruadhnbsp;O Domhnaill, in the seventeenth century. Yetnbsp;it has been my fate to have to bring this outstanding fact to the notice of persons professing to write Irish history ; persons, too, whonbsp;show themselves no strangers to the contentsnbsp;of that literature as published. The a priorinbsp;theory prevails, in much writing about Irishnbsp;history, over the facts and the evidence.

8.’—Rural Character of the Tuath.^—So much is centred in town life in our times that thosenbsp;who have been brought up to it must exercisenbsp;some force of imagination if they would recovernbsp;a view of the old Irish form of state, the tuath.nbsp;It is likely to have preserved or to have originated in a form once common, if not to thenbsp;Indo-Europeans, at all events to their westernnbsp;group, the Germano-Celto-Italic group. Somenbsp;of the old Italic languages akin to Latin hadnbsp;the same word which becomes tuath in Irish,nbsp;with the same meaning, civitas, the completenbsp;political community. From the same originalnbsp;have come the common appellations Teutonicnbsp;and Deutsch. We find the ancient Greeks

EARLY IRISH LAWS

organised like the Irish in small political communities, but these under the influence of the older Mediterranean civilisations and commercial life are based in each case on a wallednbsp;town. The Irish state remained a rural city,nbsp;a city of the fields. Its chief occupation wasnbsp;agriculture, and all its magnates were agriculturists. The Irish law tracts may be said tonbsp;revel in the details of agricultural industry.

CHAPTER VI

PUBLIC ASSEMBLIES AND KINGSHIP

The members of such a community, occupied with their daily and domestic concerns, became an organic unit when they met in theirnbsp;public assembly. The assembly was the chiefnbsp;organ and manifestation of their common life.nbsp;The people rejoiced in their assemblies. Whennbsp;their poets and writers pictured the happinessnbsp;of a life after death, the scene becamenbsp;an assembly. An ancient heathen tale tellsnbsp;how a woman of the other world came tonbsp;Connla, son of Conn of the Hundred Battles,nbsp;and carried him away. We are told hownbsp;another prince was privileged to visit the othernbsp;world, and there found Connla in the assemblynbsp;of his fathers. The celebrated vision of Adam-nan pictures in detail the Christian Heaven as

ASSEMBLIES AND KINGSHIP loi

an assembly where the King of Kings presides. Matthew Arnold has given celebrity in Englishnbsp;to the verses composed in memory of the poet-monk, Oingus Cele De :

“ Oingus in the assembly of Heaven, here are his tomb and his bed,nbsp;here he passed away from sightnbsp;on the Friday to holy Heaven.

Here in Clonenagh he was reared, in Clonenagh he was buried,nbsp;in Clonenagh of many crossesnbsp;he began to chant his psalms,”

To have a voice in the assembly of his tuath was the characteristic right of every freeman.nbsp;The old legal word conn, which means a freeman means also a head. The Latin wordnbsp;caput, a head, also means franchise. The freemen were those whose heads were counted.nbsp;The right of freemen to take part in the assemblynbsp;was probably the chief factor in determiningnbsp;the average territorial extent of the state. Thenbsp;territory was of such a size that a man mightnbsp;attend the assembly without becoming a wayfarer and a stranger.

I.'—Functions of the Assembly.^—The chief political power of the free community wasnbsp;exercised in and by the assembly. In it kingsnbsp;were elected and deposed, agreements and disagreements with external states were decided,nbsp;lawsuits were heard, taxes imposed, laws enacted. Among the normal powers exercised wasnbsp;that of adopting an agreement with a neigh-

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bouring state to establish a common jurisdiction between them. An ancient law tract on the subject of such agreements is known bynbsp;name {Bretha Cairde) and by a number ofnbsp;references, but the tract itself does not appearnbsp;to survive. Numerous references to the operation of joint judicature between states arenbsp;found in the laws. We learn that the agreementnbsp;was negotiated in the first instance betweennbsp;the kings of the two states and then submittednbsp;to their assemblies for ratification, that it heldnbsp;good for a year and required to be renewed innbsp;successive assemblies.

2.'—Hegemonies.-—There was a natural tendency, from various motives, for the states to group together under hegemonies, and thesenbsp;again under larger hegemonies which customnbsp;made permanent. An immemorial traditionnbsp;divided Ireland into five principal hegemonies,nbsp;the Five-Fifths of Ireland, still familiar in thenbsp;tradition of Irish speech. In the time of thenbsp;oldest documents and for centuries later, thenbsp;ancient Pentarchy is replaced by a Heptarchy.nbsp;We have in the Book of Rights, drawn upnbsp;about the year 900 and revised about a centurynbsp;later, a detailed account of the Heptarchy andnbsp;the states composing each section of it. Thesenbsp;larger groups of states, when they became permanent, had their joint assemblies, held, ofnbsp;course, on a much larger and more imposing scale than the assemblies of the individual states. We are fortunate in possessing anbsp;fairly full description of one such major assem-

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bly^-Oenach Carman'—held for all the states of Leinster under the presidency of the superiornbsp;king of Leinster. It met once in every threenbsp;years, and each assembly lasted for seven days.nbsp;The place of assembly in this as in othernbsp;instances, probably at one time in all instances,nbsp;was the precinct of an ancient heathen cemetery. The time was in the beginning of August,nbsp;the old heathen festival of Lugnasad. Thenbsp;first day, Sunday, was given to religious rites,nbsp;the rites of Christian worship having taken thenbsp;place of some earlier heathen celebration. Itnbsp;is thought likely that the priestly function onnbsp;such occasions originally belonged to the presiding king—^that the king, as he was president,nbsp;and judge and military chief, was also the priestnbsp;of his people. It is certainly noteworthy thatnbsp;the oldest documents, some of them writtennbsp;while the memories of heathenism must havenbsp;been vivid, point to no distinct order of priests,nbsp;and that no Irish word denoting the priestlynbsp;function is known to have existed. Possiblynbsp;the view suggested may have a bearing on anbsp;statement found in both of the documents thatnbsp;we have from the pen of St. Patrick. In evidence of God’s favour, St. Patrick proclaimsnbsp;in both documents that he has succeeded innbsp;converting the sons of the Scots and thenbsp;daughters of their kings. If he had succeedednbsp;in converting the kings themselves, it couldnbsp;have been still stronger evidence and morenbsp;likely to be proclaimed.

The assembly of freemen was anciently an

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assembly of spearmen, the right to carry arms and the duty of defence being, it is supposed,nbsp;an element of every ancient franchise. Thenbsp;freemen of Leinster came armed to the assembly.nbsp;When they arrived their arms were laid asidenbsp;and stored while the assembly lasted, for itnbsp;was a time of peace and any breach of peacenbsp;during the assembly was a grievous crime.nbsp;When the assembly ended, the freemen againnbsp;took up their arms. Then they raised threenbsp;great shouts and set off on the homewardnbsp;march.

3.'—The Assembly of Carman.^—^The account of the Assembly of Carman is contained innbsp;a poem written in the eleventh century. Sincenbsp;people do not always associate poetry withnbsp;historical truth, we have to bear in mind thatnbsp;we are still in the Druidical tradition. Thenbsp;Druids gave their teaching, or parts of it,nbsp;through “ a great number of verses.” Almostnbsp;every kind of learning in ancient Ireland wasnbsp;presented in the form of verse. We havenbsp;pedigrees in verse, church calendars in verse,nbsp;numerous historical discourses in verse, anbsp;geography of the world in verse. The poemnbsp;in question belongs to this didactic kind.nbsp;Moreover, as it happens, this particular poemnbsp;has a remarkable achievement to its credit.nbsp;Some 25 or 30 years ago the distinguishednbsp;Italian archaeologist. Boni, was in Ireland. Henbsp;was engaged at the time in investigating thenbsp;antiquity of the Roman Forum, and it appearednbsp;to him that some light on the origin of the

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Forum might be obtained from Irish records and traditions. The result is told in a brochurenbsp;written and published by Sir Horace Plunkett,nbsp;who was Boni’s host during his visit. Whennbsp;Boni inquired about the history of Irish placesnbsp;of assembly, his attention was directed to thisnbsp;poem. The poem showed that the place ofnbsp;assembly was associated with a prehistoricnbsp;cemetery and that funeral games continued tonbsp;be a chief feature of the assembly down tonbsp;the time of the poem. Boni inferred thatnbsp;the Forum should have had a similar origin.nbsp;He returned to Rome, resumed his investigations, and discovered the remains of thenbsp;ancient cemetery beneath the historic assemblynbsp;place of the Roman people. It is submitted,nbsp;therefore, that the poet’s evidence may be taken.

“ Hearken ! Leinstermen of the monuments, host ruling Raigne of hallowed rights,nbsp;till ye get from me, gathered on every hand,nbsp;the fair legend of Carmun high in fame.

“ Carmun, site of a hospitable fair, with level sward for horse-races,nbsp;the multitude that used to come to hold itnbsp;contended in its brilliant courses.

“ A burial-ground of kings is its noble cemetery, the great delight of hosts of freemen ;nbsp;under the mounds of assembly many restnbsp;of its original ever-honoured people.

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“To mourn the death of queens and kings, to lament revenges and illdeeds,nbsp;came many a fair-haired throng in autumnnbsp;over the noble smooth cheek of ancient Car-mun.”

Then the poet tells the legend of the lady Carmun who died there and was buriednbsp;“ among the oaks of the straight graves,”nbsp;and how the first assembly was held in hernbsp;honour. Then he tells of the long line of kings.nbsp;Heathen and Christian, who presided. Thenbsp;Heathens of Ireland, he says, kept good ordernbsp;in the celebration.

“ The Heathen of the Irish held often enough to be greatly vauntednbsp;an assembly free from tribute and from guilt,nbsp;free from deeds of violence and foulness.

“ Ye people of Christ’s baptism, take note, hearken to it, for it is certain,nbsp;all the more do ye earn a cursenbsp;who transgress despite Christ and His Christianity.

“ The kings and saints of Ireland,

Patrick and Crimthann^ at their head, have banned every battle here,nbsp;they have blessed the assembly.”

In this way an institution which had undoubtedly been clothed with a strong religious character in Heathen times is commended tonbsp;the piety and reverence of Christian people.

‘Crimthann was the first Christian king of Leinster.

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The poet voices the popular mind, for the first day of the assembly was set apart for religiousnbsp;rites—it is named the Assembly of the Saints.

4.—Political and Cultural Features.^—Each succeeding day has its special funeral games,nbsp;commemorating in order the kings of Leinster,nbsp;the women of Leinster, the tributary states,nbsp;the men of royal kindreds, the freemen innbsp;general. These games, which included horseracing, formed the ceremonial framework. Thenbsp;public business is the next theme :

“ There they discussed and debated the rights and taxes of the province :nbsp;every legal enactment right piously,nbsp;every third year it was settled.”

All occasion of strife was forbidden, even to the initiation or execution of legal claims.nbsp;For flouting the presiding king’s authority thenbsp;penalty was death. There was music to pleasenbsp;and buffooneries to divert the throng :

“ Trumpets, harps, hollow-throated horns, pipers, timpanists, unwearied,nbsp;pipes, fiddlers, gleemen,nbsp;bone-players and bagpipers,nbsp;a crowd hideous, noisy, profane,nbsp;shriekers and shouters.”

The men of learning paid their tribute from the store of national tradition, and the poetnbsp;tells us what themes could please :

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“ The tales of Finn and the Fiana, sackings, forays, courtships,nbsp;tablets inscribed in Ogham,nbsp;satires, keen riddles.

Proverbs, maxims of might, the truthful teachings of Fithal,nbsp;dark lays of the Dinnsenchas,nbsp;the teachings of Cairbre and Cormac.

“ The great feast of Tara and the other feasts, the assembly of Emain and the other assemblies,

the annals of Ireland, the subdivisions of Ireland.

“ The tale of Tara’s estate, the knowledge of every cantred in Ireland,nbsp;the History of the women of Ireland,nbsp;armies, combats, hostels, spells, captures.

“ Death-tales, slaughters, musical compositions, synchronisms, the pedigree of the king,nbsp;his battles and his hardy valour.

“ They all raise up their efforts to the king of the seething Barrow,nbsp;the noble king pays by measurenbsp;for each art its due reward.

“ Three busy markets on the ground, a market of food, a market of live stock,nbsp;the great market of the Greek strangersnbsp;wherein is gold and fine raiment.”

The last statement is taken to mean that

Irish gold was exchanged for Eastern silks.

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5-'—The National Assembly.—^The assembly described in this poem represents one of thenbsp;large permanent groups of states-—the provinces, as they are commonly called in modernnbsp;English writings. At the head of all thesenbsp;groups was the high-kingship, an office andnbsp;dignity which was not so much politicallynbsp;operative as expressive and symbolic of thenbsp;sense of national unity. Notwithstanding thenbsp;undefined and almost intangible powers of thenbsp;king of Ireland, the primacy attached to hisnbsp;office was a valid historical fact from the thirdnbsp;to the twelfth century, except in the half-century following the battle of Clontarf (1014),nbsp;during which the high-kingship was in abeyance. Associated with it was the nationalnbsp;assembly held annually at Taillte in the valleynbsp;of the Boyne. When, during the height of thenbsp;Norse aggression, it was found impossible tonbsp;convene this assembly in the year 873, a contemporary chronicler notes that such a failurenbsp;to hold it was a thing unheard of from thenbsp;most ancient times.

6.'—Grades of Kings.^—It is thus seen that there were four grades of kings : the king ofnbsp;a single state, the king of a major state holdingnbsp;hegemony among a small group of states, thenbsp;king of a larger group of states (what is callednbsp;a province—^in Irish the old traditional designation is preserved, “ king of a Fifth”), and thenbsp;king of all Ireland. The smaller groups werenbsp;impermanent, depending on the vigour and thenbsp;fortunes of local dynasties. The larger groups

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over the greater part of Ireland were permanent. There is a full dated record of the successionnbsp;of kings over Leinster, Munster and Connacht,nbsp;from the fifth to the twelfth century. In thenbsp;remaining quarter of Ireland, north of Dublinnbsp;and east of the Shannon, containing four ofnbsp;the seven main groups, the grouping variesnbsp;from century to century.

We can trace clearly in the Irish law tracts an older tradition which regards hegemoniesnbsp;and the subordination of kings to higher kingsnbsp;and of individual states to provincial headshipsnbsp;as extra-legal and as matters of political transience, and recognises only one grade of kingnbsp;and one form of political community and jurisdiction, the tuath. Nevertheless rigid adherencenbsp;to this theory would have brought the nationalnbsp;law into conflict with actual facts and well-established and accepted customs, and we cannbsp;see the older theory of the jurists adaptingnbsp;itself to the historical facts and giving expressnbsp;recognition to the grading and subordinationnbsp;of kings and states, and further making practical application of these realities. The adaptation of ancient theory to contemporary factnbsp;is made evident by variety of treatment.

7.’—Later Evidence.—^We learn much from one particular tract which was not includednbsp;in the officially published volumes, but whichnbsp;was printed without translation or explanationnbsp;by Kuno Meyer in the first volume of Eriu.‘^

^Kuno Meyer, Erin I, 214.

ASSEMBLIES AND KINGSHIP in

It occupies less than two octavo pages, and yet is a document of exceptional value and importance. To begin with, it shows and warnsnbsp;us that we cannot depend on the materialnbsp;previously published for a full and adequatenbsp;conception of ancient Irish law, even in itsnbsp;main features and fundamentals,and it suggestsnbsp;that this branch of European history demandsnbsp;the publication and study of every page of thenbsp;laws of Ireland that still remains unprinted innbsp;manuscript. It was this brief tract that showednbsp;me the first clear light on the structure of thenbsp;Irish joint family and the Irish law of inheritance and succession. It helps to crystallise anbsp;body of evidence which, there is good reasonnbsp;to think, involves a complete recasting ofnbsp;certain theories of historical jurisprudence andnbsp;ancient social organisation shaped by a succession of writers from Sir Henry Maine to Sirnbsp;Paul Vinogradoff. At present our concern isnbsp;with what it tells us about the executive function of kings of different grades in givingnbsp;effect to the processes of law.

8.—Kings as Executive Officers at Law.— The tract supposes a case of homicide, andnbsp;supposes the facts not to be in dispute. Thenbsp;legal kin of the deceased have lost a man andnbsp;are entitled to be paid his life-price, his honour-price, and compensation for any other lossesnbsp;incidental to his injuries and death. Thenbsp;purpose of the tract is to show in what proportions the sum of these payments is to benbsp;divided among the members of the legal kin.

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and so incidentally we have a description and a definition of the family group such as hasnbsp;not been found in all the material previouslynbsp;published. The tract further supposes that thenbsp;deceased man and his legal kin belong to onenbsp;tuath, the party liable belongs to another tuath.nbsp;It makes this supposition in order to providenbsp;a comprehensive statement, under which thenbsp;simpler case would be regulated where bothnbsp;parties came under the same primary jurisdiction. The text further supposes that thenbsp;conjoint jurisdiction known as cairde, whichnbsp;has already been mentioned, has not beennbsp;established between the two states.

In these circumstances, the king of the state whose man has been killed resorts to the kingnbsp;next in rank above him-—^the ascending gradesnbsp;are named—and takes from him a hostage,nbsp;thereby engaging the superior king to executenbsp;the claim. In case the superior king is notnbsp;in authority over the state of the other party,nbsp;there must be further resort to a king of highernbsp;grade, until a common authority is found, whonbsp;in the last resort will be the king of Ireland.nbsp;Whichsoever of these has the proper authoritynbsp;then forms an armed force, which enters thenbsp;territory of the defendant party’s state andnbsp;levies there chattels sufficient to meet thenbsp;entire claim, including the costs of thisnbsp;operation. It is presumed that redress hasnbsp;been refused and is still refused on the partnbsp;of the defendant party and of the state tonbsp;which he belongs. By the analogy of another

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tract, which deals with litigation between persons under one primary jurisdiction, wenbsp;may infer that demand is made and opportunity offered to the defendant party to satisfynbsp;the claim beforehand and to avoid the cost ofnbsp;a forcible seizure. Other texts imply that innbsp;such a case the state became answerable, andnbsp;levy could be made on its chattels at large,nbsp;leaving the apportionment of liability to benbsp;fixed, no doubt by rule of law, as between thenbsp;defendant party and his own state. The textnbsp;contemplates a very substantial seizure, whichnbsp;would normally be of the cow kind, alreadynbsp;equipped with the means of sufficientlynbsp;rapid transport. The apportionment of thenbsp;amount levied is regulated in detail. One-seventh is paid to the hostage aforesaid. Ofnbsp;the remaining six-sevenths, one-third is paidnbsp;to the king by whose authority the levy hasnbsp;been made, another third goes to requite allnbsp;intermediate authorities between this Mngandnbsp;the claimant kin, and the remainder, two-sevenths of the total, goes to the claimant kinnbsp;and is divided in regulated shares among itsnbsp;members. Certain variations of the apportionment are explained, but these need notnbsp;detain our attention.

In two ways, therefore, laws could be made operative between persons living under separatenbsp;jurisdictions, by the adoption of “ cairde”nbsp;and by employing the authority of a superiornbsp;king. This power and duty of a superiornbsp;king in inter-territorial cases is developed

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from a similar power and duty vested in an ordinary king in regard to his own territory.nbsp;The law tracts generally regard the law asnbsp;operative without calling in the power of thenbsp;state, but they do not ignore the possibilitynbsp;of lawless resistance or contumacy. To refusalnbsp;of law and right they attach the consequencenbsp;of loss of status. “ The man who resists anbsp;king’s government,” which means in thenbsp;administration of law, not in arbitrary exercisenbsp;of power, becomes an outlaw, and to affordnbsp;him food or shelter involves liability. Thenbsp;habitual law-breaker is made a dangerousnbsp;criminal. We read in a poem of counsels tonbsp;a king :

“ Every offender who is not restrained (by law).

Every deliberate habitual law-breaker.

From g3wes to the dungeon.

From the dungeon to the gallows.”

To those who are not familiar with the hostile strictures passed upon Irish law, somenbsp;of them centuries old, others in quite recentnbsp;writings, it might seem as if the statement ofnbsp;things which might be expected to exist undernbsp;any system of law and government is laboured.nbsp;The wide range of the principles of compensation in Irish law offended the fine legal sensenbsp;of ardent feudalists, who hanged men for pettynbsp;theft and burned women on charges of witchcraft : they reproached Irish law with “ compounding felony,” and said that for that

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reason it was “ a law which was no law.” In our own time, writers professing to have anbsp;knowledge of Irish law and the literaturenbsp;bearing on it, but who have contrived to turnnbsp;a blind eye to both, have furbished up thenbsp;old partisan cries in the language of modernnbsp;jurisprudence : Irish jurists regarded breachesnbsp;of law only as offences against particularnbsp;rights, never as offences against the publicnbsp;order ; Irish law did not distinguish betweennbsp;crimes and torts ; or, if it did, according tonbsp;one distinguished authority, it made a mistakenbsp;and w'as merely adopting the principles ofnbsp;English law some centuries before their time ;nbsp;Irish law had no sanctions, but depended fornbsp;its effectiveness on the pressure of publicnbsp;opinion through some kind of boycott ornbsp;social ostracism.

9. Complex Structure of the Tmo/A.—The tuath was not a simple homogeneous aggregation of freemen superimposed on an unfreenbsp;population. There was a certain amount ofnbsp;complexity in its structure, bearing a certainnbsp;outward resemblance to the feudal organization with its degrees of lordship and vassalage.nbsp;It is possible that the resemblance is notnbsp;merely accidental, but goes back to a commonnbsp;ancestry. It is suggested that the feudalnbsp;system had roots in an ancient Celto-Germanicnbsp;custom which was preserved and developednbsp;in the Irish tuath : let us say a Germano-Celto-Italic custom, for just as we can tracenbsp;the name of the tuath among the Italic peoples,

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so it seems permissible to trace a common origin for certain features of the politico-social organization in ancient Rome and innbsp;ancient Ireland. The analogy was observednbsp;and recorded centuries ago by a remarkablenbsp;man in a remarkable way, and his testimonynbsp;was recognised in our time by D’Arbois denbsp;Jubainville.

To the writer it has often been thought unfortunate that one of the first Latin textbooks to be placed in the hands of beginners,nbsp;as it was in his school days, was Caesar’s Denbsp;Bello Galileo. Our struggles with these firstnbsp;texts, and our efforts to give our teachers anbsp;maximum impression of our achievements,nbsp;leave us rather cold towards the authorsnbsp;themselves and the merit and interest of theirnbsp;writings, and when we are through with it,nbsp;we hope in our youthful heart of hearts thatnbsp;we are done for ever with “ Eo cum venisset.”nbsp;Julius Caesar was a man of might with a mindnbsp;of might. His powers of observation andnbsp;insight were exceptional, and his power ofnbsp;compact description was in full accord.

lo.—Ccesar's Evidence.^—^The first episode in the account of the Gallic war is full ofnbsp;instruction for the student of Celtic antiquity.nbsp;It came to Caesar’s knowledge that the Helvetii,nbsp;occupying the modern Switzerland, being hardnbsp;pressed on their frontiers by the Germans, withnbsp;whom they had daily battles, were preparingnbsp;to migrate in a mass and to seek a newnbsp;territory in the already well-peopled regions

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of Gaul. If this migration were carried out, its effects would be incalculable, but one resultnbsp;was certain, it would bring the Germans closenbsp;to the borders of the Roman province. Thenbsp;migration was actually begun when Caesarnbsp;first commanded and then compelled thenbsp;Helvetii to return to their own country. Onenbsp;of the most noteworthy incidents of the storynbsp;is that the retreating Helvetii left behindnbsp;them in Caesar’s hands a document which henbsp;thus describes : “In the camp of the Helvetii,nbsp;tables were found drawn up in Greek lettersnbsp;and were brought to Caesar, in which tablesnbsp;an account was drawn up name by name,nbsp;enumerating those who had left their homes,nbsp;who were capable of bearing arms, and alsonbsp;separately the children, the old men, and thenbsp;women. Of all these, the total sum wasnbsp;263,000 heads of the Helvetii.” The incidentnbsp;and details are full of significance, but wenbsp;must pass from them.

The chief promoter of this plan of migration was a noble of the Helvetii named Orgetorix,nbsp;and he was put in charge of the scheme.nbsp;Before it came to a head, an accusation wasnbsp;brought against Orgetorix of seeking to becomenbsp;autocrat. (We wonder what thoughts werenbsp;passing in Caesar’s mind as he recorded this.nbsp;The Helvetii, like all the other Gallic statesnbsp;at this time and like the Roman people, werenbsp;a republic. In view of certain pet theoriesnbsp;about Celtic society in relation to the state and thenbsp;administration of law, I follow Caesar’s words as

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closely as possible in telling the sequel). The magistrates of the Helvetii, according to customnbsp;(it was no exceptional procedure), requirednbsp;Orgetorix to submit to trial under arrest (exnbsp;vinculis causam dicere). If he were found guilty,nbsp;the penalty was to be death by burning. Onnbsp;the day appointed for the trial, Orgetorixnbsp;assembled from all sides and brought with himnbsp;to 'the tribunal all those in his service, to thenbsp;number of 10,000 men, and all his clients andnbsp;debtors, of whom he had a great number, andnbsp;by their means he saved himself from beingnbsp;brought to trial. While the state, roused bynbsp;this event, endeavoured to enforce its law, andnbsp;the magistrates collected a multitude of mennbsp;from the lands, Orgetorix died : not withoutnbsp;a suspicion, as the Helvetii think, that henbsp;contrived his own death.

CHAPTER VII

CLIENTSHIP

This narrative is commended to the attention of those who write or read that the ancient Celts had no conception of the state,nbsp;no curial procedure, no distinction betweennbsp;crimes and torts, no penal enforcement ofnbsp;judicial decrees. At present, it is desired tonbsp;concentrate attention on a single phrase innbsp;Caesar’s account. Besides his familia, his

CLIENTSHIP

slaves, and probably his serfs, Orgetorix brought with him to overawe the tribunalnbsp;and the magistrates all his clients and debtors,nbsp;of whom he had a great number. We notenbsp;that Caesar uses here a word which conveyednbsp;a very definite meaning to Roman readers,nbsp;the word clientes. But debtors ! Why shouldnbsp;he gather up his debtors, of whom he had anbsp;great number, and why should his debtorsnbsp;flock to his assistance to enable him to defynbsp;the law of the state ? The explanation wasnbsp;seen many years ago by D’Arbois de Jubain-ville. It is found in the Irish law ofnbsp;“ cehine” clientship. By an idiom frequentnbsp;in Latin, Caesar uses the two terms, clientesnbsp;and obceratl—clients and debtors—the morenbsp;fully to describe one class of persons, whonbsp;were both clients and in a peculiar sensenbsp;debtors. As regards the corresponding class innbsp;ancient Ireland, we are fortunate in having anbsp;minute account preserved in the law tracts.

I.—Irish Evidence.—^We are less fortunate in the published official translation. Therenbsp;the misuse of a single term has caused thenbsp;whole order of things connected with it tonbsp;be fundamentally misunderstood. The translators were born and lived under the shadownbsp;of a land law that dominated Ireland andnbsp;everything in Ireland in their time, a lawnbsp;that represented feudalism carried to the lastnbsp;extreme. They could only think of land lawsnbsp;in the terms of the Anglo-Irish landlordnbsp;system. There is an interesting passage in

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the Irish laws which explains the procedure when the king of a tuath was a party in litigation. The king could not be both litigantnbsp;and judge. Another person had to sue ornbsp;to be sued in his place and to assume hisnbsp;claims and liabilities. The technical name ofnbsp;this attorney-general of a king was aithechnbsp;fortha, which means a client or debtor, ornbsp;client-debtor, of sub-security. The translators cast about in the terminology of theirnbsp;own experience for something that mightnbsp;appear to correspond, and gave this functionarynbsp;the amusing designation of “ steward-bailiff.”nbsp;But that is only a detail. A much more seriousnbsp;error of the same kind was committed in thenbsp;rendering of the term cele by “ tenant.” Bynbsp;this word the Anglo-Irish agrarian systemnbsp;(since then abolished) was carried back fromnbsp;the nineteenth to the seventh century. Withnbsp;D’Arbois de Jubainville we can identify thenbsp;cele of Irish law with the debtor-client knownnbsp;in Gaul to Caesar. Thurneysen, in a revisednbsp;edition of one of the tracts, was the first tonbsp;recognise in print that the cele of Irish lawnbsp;was a freeholder, a landowner, and not anbsp;tenant. The correlative of cele is flaith, andnbsp;in relation to the cele the flaith was politicalnbsp;chief, not landlord. The Roman analogue,nbsp;as Caesar implies, was the pair onus in relationnbsp;to the client.

2.'—Relations of Client and Patron.— law tracts tell us clearly enough how thisnbsp;relation was established. A freeman of the

CLIENTSHIP

landed class acquires surplus wealth in live stock. “ The surplus of his stock, his cattle,nbsp;his swine, his sheep, which his own landnbsp;cannot carry, and which he cannot sell fornbsp;more land, which he does not need himself,nbsp;he gives to acquire clients.” The clients sonbsp;acquired become his debtors, bound to paynbsp;him a substantial interest on the stock whichnbsp;he advances them, and to repay the principal.nbsp;The term cele, which in the technical meaningnbsp;is peculiar to the laws, has a synonym innbsp;general use, aithech, meaning literally onenbsp;who repays ; cele ordinarily means companion.

The first important fact to be noted with regard to the relation between the two parties,nbsp;the flaith, that is, the patron or lord, and thenbsp;cele or client, is that this relation in everynbsp;instance was established by a formal contractnbsp;made by them with each other. The act isnbsp;invariably described in the laws by the legalnbsp;term which means a contract, cor, and sonbsp;frequent and usual were such contracts thatnbsp;when we find this term used and no othernbsp;kind of contract specified or clearly implied,nbsp;it usually refers to the contract of clientship.nbsp;A second character was that the relation sonbsp;established was terminable at will. The termsnbsp;upon which the client could separate fromnbsp;the patron are expressly stated : they assumenbsp;that the patron suffers a loss and is entitlednbsp;to a measure of compensation. It appearsnbsp;to be presumed that the patron never desiresnbsp;to separate from the client—the reason

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doubtless being that his own legal status depended in part on the number of his clients.nbsp;Further, the relation automatically came tonbsp;an end by the death of either party. It wasnbsp;a personal relation and had no force as regardsnbsp;their heirs or successors. Finally, the contractnbsp;could be impugned and annulled by the legalnbsp;kin of the client, if its terms could be shownnbsp;to be detrimental to them.

3.—Two Kinds of Client.—There were two quite distinct kinds of client, distinguished bynbsp;names which literally mean free companionnbsp;and unfree companion, soerchele and doerchele.nbsp;They were so distinct that the law in regardnbsp;to them is stated in two separate chaptersnbsp;with distinguishing titles. It has been saidnbsp;in some modern writings that the conditionsnbsp;of payment or render to the lord were morenbsp;onerous for the so-called “ unfree tenant ”nbsp;than for the so-called “ free tenant ”—it isnbsp;repeated here that “ tenancy ” did not enternbsp;at all into the relation in either case. Fromnbsp;a detailed reckoning it appears that the scale ofnbsp;payment was much lighter for the so-called unfree than for the free client. The contrarynbsp;statement is merely a superficial inference fromnbsp;the distinctive names. Let us consider firstnbsp;the case of the free client. The agreement andnbsp;contract having been made, the lord advancednbsp;to the client a certain amount of capital,nbsp;ordinarily in the form of live-stock. Thenbsp;amount was not variable at will, but wasnbsp;fixed in relation to the status of the client.

CLIENTSHIP

If, for example, he was of the grade of boaire, the amount was 12 cows or their equivalent.nbsp;The technical name of capital advanced innbsp;this way was rath, which means grace ornbsp;favour. The client was bound to rendernbsp;interest on this loan at the rate of one unitnbsp;per annum for every three advanced, 33I %.

The unfree client paid interest to the lord at the rate of one unit for every 12 advanced,nbsp;8|%, but he was also bound to render anbsp;supply of food which is estimated to be aboutnbsp;equal to the render of interest. In additionnbsp;to receiving capital like the free client, thenbsp;unfree client received his honour-price, thenbsp;legal valuation of his franchise. In fact, henbsp;made a sale of his franchise to the lord whilenbsp;the contract lasted, and ceased for the timenbsp;being to be a freeman, his franchise and allnbsp;rights and duties pertaining to it being vestednbsp;in the lord and exercised on his behalf by thenbsp;lord.

4.—Client Services.—In addition to such renders in kind, quite improperly describednbsp;as “ food-rents,” clients were bound to rendernbsp;various services and reliefs. Their honorificnbsp;name, companions, doubtless has referencenbsp;to the duty of forming the company of thenbsp;lord on certain public occasions, especiallynbsp;when he attended an assembly or was callednbsp;out on military service. Their chief servicenbsp;was the supply of agricultural labourers to donbsp;his work in seed-time and harvest-time. Thisnbsp;service, even in the earliest texts, has a signi-

EARLY IRISH LAWS

ficant name, manchuine, which primarily meant monastic service. One of the effects ofnbsp;monasticism was an increase and improvement of agriculture to meet the requirementsnbsp;of large communities. The early law tractsnbsp;were plainly written in an environment ofnbsp;developing agriculture. They have much tonbsp;say about the subdivision, enclosure, fencing,nbsp;etc., of tillage land, and the name given tonbsp;the service of agricultural labour seems tonbsp;indicate that the example and stimulusnbsp;came from the monasteries. Mr. Benedictnbsp;Fitzpatrick’s book, Ireland and the Foundationsnbsp;of Europe, touches upon the similar economicnbsp;influence of the Irish monastic communitiesnbsp;on the Continent.

5.^—Roman Analogies.'—It is, we trust, sufficiently clear why Caesar used a wordnbsp;meaning debtor to describe the followers ofnbsp;Orgetorix other than his familia or bondmen.nbsp;He also calls them clientes. What this designation conveyed to his readers may be learnednbsp;from books of reference. The following isnbsp;quoted here from the brief account of thenbsp;Roman clientes given in Smith’s Smallernbsp;Dictionary of Antiquities :

“ In the earliest times of the Roman state, we find a class of persons callednbsp;clientes, who must not be confounded withnbsp;the plebeians, from whom they were distinct.nbsp;The clientes were not slaves ; they hadnbsp;property of their own and freedom, andnbsp;appear to have had votes in the commitia

CLIENTSHIP

centuriata, but they did not possess the full rights of the Roman citizens ; and thenbsp;peculiarity of their condition consisted innbsp;every client being in a state of dependencenbsp;upon or subjection to some patrician, whonbsp;was called his patronus, and to whom henbsp;owed certain rights and duties. . . . Thenbsp;relative rights and duties of the patrons andnbsp;the clientes were, according to Dionysius,nbsp;as follows : The patron was the legal advisernbsp;of the client; he was the client’s guardiannbsp;and protector, as he was the guardian andnbsp;protector of his own children ; he maintainednbsp;the client’s suit when he was wrong, andnbsp;defended him when another complained ofnbsp;being wronged by him; in a word, the patronnbsp;was the guardian of the client’s interests,nbsp;both private and public. The client contributed to the marriage portion of thenbsp;patron’s daughter, if the patron was poor ;nbsp;and to his ransom or that of his children,nbsp;if they were taken prisoners ; he paid thenbsp;costs and damages of a suit which the patronnbsp;lost, and of any penalty of which he wasnbsp;condemned ; he bore a part of the patron’snbsp;expenses incurred by his discharging publicnbsp;duties or filling the honourable places innbsp;the state. Neither party could accuse thenbsp;other, or give his vote against the other.nbsp;This relation between patron and clientnbsp;subsisted for many generations, andnbsp;resembled in all respects the relationshipnbsp;by blood.”

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There is hardly a clause in this description which has not either its exact parallel or itsnbsp;analogue in the rules of Irish law regulatingnbsp;the relations between flaith and cele. Thenbsp;last sentence, stating that the relation in Romannbsp;custom subsisted for generations, is on thenbsp;surface an exception, since in Irish law thenbsp;relation was based on a terminable contract.nbsp;But the law tracts more than once lay stressnbsp;on the propriety of adhering to a previousnbsp;family connexion rather than going outsidenbsp;of it in contracts of clientship. To follow outnbsp;the comparison in all its details would be tonbsp;produce a special treatise. The outstandingnbsp;benefit which the Roman clientship securednbsp;was the protection of legal interests. Innbsp;Irish law, the lord or patron, we read, “ protects the rights of his clients as regardsnbsp;breaches of law, justice, legislation, interterritorial jurisdiction, and whatever injuresnbsp;his good name.” The Irish noble, like thenbsp;Roman patrician, was expected to know thenbsp;practice of the law. “ He is well grounded,”nbsp;says the jurist, “ in the law of the joint family,nbsp;and of the tuath, and of lordship, and of thenbsp;church, and of government, and of interterritorial jurisdiction.”

6.—Advantages of Clientship.—To the client the chief advantage of his clientship was legalnbsp;assistance and the protection of his interestsnbsp;by a man of high standing in the state. Thenbsp;capital advanced to him was plainly regardednbsp;as a bond rather than a boon. Thus the law

CLIENTSHIP

provides that the advance is binding if it is not promptly repudiated, and we read in thenbsp;commentaries that no man can refuse tonbsp;receive capital from the king of his tuath.nbsp;To the lord or patron there were advantagesnbsp;beyond a very profitable investment of surplusnbsp;wealth. By acquiring a sufficient number ofnbsp;clients, he could pass from the normal statusnbsp;of freeman to the higher zone of ruling noble,nbsp;and by increasing the number he could risenbsp;from a lower grade of ruling noble to a highernbsp;grade.

If this institution, in some ancient form, was common to the Celtic and Italic peoples, it isnbsp;almost certain to have existed also among thenbsp;Germanic peoples, and the inquiry is raisednbsp;if it were not the root out of which feudalismnbsp;degenerated.

If we wish to understand the ancient world or any part, we must begin by guardingnbsp;ourselves against interpreting the facts throughnbsp;modern abstract theories. In the modernnbsp;democratic idea, all citizens are equally free;nbsp;there is the same freedom for the rich andnbsp;the poor, for the weak and the strong. Innbsp;the ancient world we can find a similarnbsp;theoretical view of liberty, but the practicalnbsp;view amounted to this, that the degree ofnbsp;liberty which anybody possessed was measurednbsp;by his power to do things or get things done.nbsp;The weaker man or the poorer man had notnbsp;the slightest doubt that he could increase hisnbsp;practical liberty by diminishing his theoretical

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liberty, by acquiring the protection, on terms, of a stronger or a richer man. The Irishnbsp;system safeguarded the liberty of the citizennbsp;by making the relation contractual and terminable. The feudal system, on the contrary,nbsp;made the relation a matter of permanentnbsp;status, binding all future generations. Itsnbsp;most effective inroad on liberty was its combination of the idea of property with thenbsp;idea of political direction. When a mannbsp;became a vassal, he became a tenant; henbsp;surrendered the superior ownership of hisnbsp;land to the person whom he took for lord,nbsp;and to that person’s heirs to the end of time.

It is clear from various evidences that clientship was the normal condition of landowning freemen in Ireland. The landednbsp;freemen were thus organised in groups undernbsp;the headship of nobles. Ten clients formednbsp;the minimum group which gave the status ofnbsp;flaith or ruling noble to its head. Thenbsp;highest grade of ruling noble had forty clientsnbsp;or upwards. This grouping amounted innbsp;effect to a rudimentary representative systemnbsp;in the direction of public affairs. The publicnbsp;assembly was not so much a meeting ofnbsp;individual freemen as a convention of smallnbsp;associations of freemen, each group acting asnbsp;a unit through its chief.

7.—A King's Clients.—^There was a body of clients attached to the king of a tuath, andnbsp;these, beyond doubt, were drawn from thenbsp;principal nobles of the territory. They formed

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collectively the airecht, the curia regis, a kind of senate, and, no doubt, historically identicalnbsp;with the body which Caesar calls the senatenbsp;in the case of the republican states of Gaul.nbsp;It was unlawful to refuse to become freenbsp;client to the king—^and this was equivalentnbsp;to a constitutional provision by which thenbsp;king could require any noble of the tuath tonbsp;become a member of his court and attend it.nbsp;The court combined two functions. It wasnbsp;a social gathering and it was the ordinarynbsp;judicial tribunal of the territory. When thenbsp;court was a court of law, even though thenbsp;king himself were learned in the law, he hadnbsp;associated with him his official judge, annbsp;expert jurist, as legal assessor and adviser.

CHAPTER VIII

THE PERIOD OF DECAY EARLY INFLUENCES FROM FEUDALISM

There are signs of the influence of feudalism in Ireland before the feudal invasion. Thenbsp;spread of feudal institutions over a large partnbsp;of Europe is one of the most noteworthynbsp;things in history. The traditional institutions of a people are not easily changed, butnbsp;in this case a new form of politico-socialnbsp;organization was able to establish itself in

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face of and instead of long-established older forms among a variety of peoples, in France,nbsp;Spain and Italy, which had been thoroughlynbsp;adapted to the Roman order, and in all thenbsp;Germanic countries, including Scandinavia,nbsp;which had remained outside of the Romannbsp;order. As regards Celtic countries, we cannbsp;trace the Irish kingdom of Scotland becomingnbsp;feudalised from the time of Malcolm Ceann-mhor, contemporary with William thenbsp;Conqueror. In Wales, the so-called lawsnbsp;of Howel Dha, purporting to date from thenbsp;tenth century, but likely to have been recastnbsp;in the twelfth century, show William thenbsp;Conqueror’s system adopted by the ruler ofnbsp;Wales—all land in Wales is declared to benbsp;“ held of ” the king of Wales.

No such doctrine appears in Irish law, even after the feudal invasion, but there are thingsnbsp;recorded in the annals and otherwise whichnbsp;may well betoken the influx of feudal ideas.nbsp;There is an evident tendency towards anbsp;centralized autocracy on the part of the chiefnbsp;kings, and there are various instances of theirnbsp;active interference in local affairs and the assumption of powers which normally belongednbsp;to the local assemblies. The high kingshipnbsp;fell into abeyance for about half a centurynbsp;after the battle of Clontarf in 1014. It wasnbsp;revived in the year 1070 or thereabouts bynbsp;Toirdelbach 0’Briain. One of the earliestnbsp;acts of his reign was to force a king of hisnbsp;own kin, Conchobhar 0’Briain, on the petty

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state of Tulach Og. This state belonged to the North-Western group, with the king ofnbsp;Ailech at its head, and its own dynastienbsp;kindred was a branch of the superior dynasticnbsp;kindred of Ailech. The new king was anbsp;complete outsider from a distant part of thenbsp;country, and his intrusion violated the lawnbsp;of succession and over-rode the elective powernbsp;of the local assembly. If the experiment hadnbsp;succeeded, it would no doubt have been widelynbsp;repeated, and would have led towardsnbsp;feudalism. It was defeated by a revolt ofnbsp;the people in Tulach Og.

A later king of Ireland, Toirdelbach O Conchobhair, renewed the experiment. Henbsp;appointed one of his sons king over the Norse-Irish kingdom of Dublin. Again there wasnbsp;a revolt, the intruder was driven out. Hisnbsp;father did not venture to reinstate him, butnbsp;did not abandon the policy. He foundnbsp;another kingdom in Meath for the youngnbsp;prince. This also was an intrusion. Oncenbsp;more there was a revolt, and the intrudingnbsp;king was killed. The high king sent a punitivenbsp;expedition, and the annalist says that hisnbsp;vengeance on the men of Meath was like thenbsp;Day of Judgment, but we hear no more ofnbsp;this kind of experiment. In the same line ofnbsp;policy, but in a less lawless manner, the samenbsp;high king dealt with Munster. He himselfnbsp;was king of Connacht, and he had securednbsp;the kingship of Ireland against the rivalry ofnbsp;the Munster kings of Brian’s line. The group

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kingdom of Munster had existed from time immemorial. Toirdelbach undertook to breaknbsp;its power, and succeeded by dividing it intonbsp;two group kingdoms, north and south. Thisnbsp;division held until the invasion of Munsternbsp;by the Normans.

These are outstanding examples. There is much more on record that points in the samenbsp;direction, towards a centralizing autocracy.nbsp;The sentiments of potentates are naturallynbsp;reflected in the writings of poets who lookednbsp;to kings for rewards, and we have a numbernbsp;of poems of this period in which the majornbsp;kings are encouraged to rule with a highnbsp;hand, and in particular to exercise controlnbsp;over the tuatha. The spread of feudalism isnbsp;mainly to be explained by its appeal to thenbsp;self-interest of rulers. The persistence ofnbsp;Irish law for centuries after feudalism hadnbsp;been widely established in Ireland is withoutnbsp;parallel in other countries, and the reason is tonbsp;be found in the rooted position of Irish law innbsp;the national culture.

I.—Introduction of Feudal Institutions.— Feudalism gradually established a new ordernbsp;among the wreckage of the Roman Empire,nbsp;but it would be no mark of respect for thenbsp;intelligence of an educated public to ask themnbsp;to accept seriously the pretence that Henrynbsp;of Anjou, his son John and their filibusteringnbsp;barons introduced the reign of law into anbsp;lawless and anarchical Ireland. We may readnbsp;in the Anglo-Saxon Chronicle what sort of

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law and order prevailed in their own country at the time in which these men were broughtnbsp;up. In various histories we find describednbsp;the character and conduct, as regards law,nbsp;peace, and good government, of Henry, hisnbsp;sons, and their noble adherents. Bearing thenbsp;facts in mind, we wonder what miracle transformed these men into apostles of law andnbsp;order when they crossed the Irish Sea.nbsp;When the records of Irish and English historynbsp;are examined, we learn that the real miraclenbsp;is the transformation of the historical rod intonbsp;the unhistorical snake.

In 1155, Pope Adrian IV, an Englishman, granted the feudal lordship of Ireland to hisnbsp;friend, Henry the Second. In making thisnbsp;grant, Adrian asserted his own feudalnbsp;sovereignty over Ireland. In that time, outside of Ireland, feudalism passed in Westernnbsp;Europe for a part of the natural order, andnbsp;feudal law was thought to hold good not onlgt;nbsp;for all countries, but for all times. The basisnbsp;of Adrian’s lordship over Ireland was thenbsp;fabulous Donation of Constantine. Thenbsp;Roman emperors were imagined to havenbsp;been supreme feudal lords of the wholenbsp;earth, and Constantine was held to havenbsp;granted to the Bishops of Rome the feudalnbsp;lordship of all the islands of the ocean. Therenbsp;can be no doubt that Henry accepted thisnbsp;grant as valid. We have for that the testimonynbsp;of John of Salisbury who acted as intermediary. “ Pope Adrian,” he writes, “ at

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niy prayer granted Ireland to Henry as an inheritance, as his letter to this day testifies,nbsp;and also sent by me a golden ring adornednbsp;with an emerald for the purpose of investiture, and this is still ordered to be kept innbsp;the State archives.”

In face of this and other testimonies, the evidence of the grant is not at all dependentnbsp;on the Laudabiliter controversy, which hasnbsp;been going on for more than three centuries.nbsp;The act by which the grant was made wasnbsp;the act of investiture, the giving and takingnbsp;of the emerald set in a golden ring, and thenbsp;Pope’s letter, as John of Salisbury recognizes,nbsp;was merely corroborative evidence.

2.—Legal Aspect of the Anglo-Norman Invasion.—^Though this grant, in fact andnbsp;from the standpoint of Irish law, was nullnbsp;and void, it was not so for Adrian and Henry,nbsp;who not only acted under feudal law, butnbsp;believed beyond doubt in its validity. Thenbsp;legal position created for them by the grantnbsp;was this, that Henry, as lord of Ireland,nbsp;became the Pope’s vassal, and that thosenbsp;who held rule in Ireland became Henry’snbsp;vassals.

For reasons that may be recognized, the grant appears to have been kept secret untilnbsp;the opportunity came for acting on it. Elevennbsp;years passed before the opportunity came.nbsp;In ii66, acting under Henry’s authoritynbsp;the Earl of Pembroke undertook to restorenbsp;the exiled Diarmuid to his kingdom of

PERIOD OF DECAY

Leinster, Diarmuid having agreed to become Henry’s vassal. After a certain amount ofnbsp;fighting, in which the chief incidents werenbsp;the captures of the Norse cities of Wexford,nbsp;Waterford and Dublin, and the defeat of annbsp;attempt to retake Dublin, Diarmuid wasnbsp;effectually restored. It should be borne innbsp;mind that after Diarmuid’s restoration therenbsp;was no war of conquest, and that the war upnbsp;to that point was not on behalf of Henry’snbsp;claim to be lord of Ireland. It is necessarynbsp;to be clear on this point, for Giraldus Cam-brensis, in whose time these things were done,nbsp;and who could have had no doubt about thenbsp;legal aspect of the transactions, laboured tonbsp;create the impression that Henry acquirednbsp;the lordship of Ireland by conquest. If thatnbsp;had been true, Henry, according to the ideasnbsp;of his time, would be lawfully entitled tonbsp;dispose of the conquered land at his pleasure.

Diarmuid died in 1171. His ally, the Earl of Pembroke, commonly called Strong-bow, had providently married a daughter ofnbsp;Diarmuid, and now claimed that she was hernbsp;father’s sole heiress, and that he, as her husband,nbsp;was in feudal law the rightful successor tonbsp;the lordship of Leinster. The claim had nonbsp;validity in Irish law, but it was confirmed bynbsp;Henry, who made haste to come to Ireland.

3.—The Plantagenet Lordship was not Based on Conquest.—Henry fought no battle innbsp;Ireland. He made no pretence of an armednbsp;conquest and the title which Giraldus

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Cambrensis gave to his history of the events, Hibernia Expugnata, was a title with a purpose.nbsp;On the contrary, Henry received the peacefulnbsp;submission of the kings of the greater part ofnbsp;Ireland, and accepted them as his vassals,nbsp;assuring them of his protection, as evennbsp;Giraldus testifies. The only outstanders ofnbsp;importance were Ruaidhri, king of Connacht,nbsp;who claimed to be king of all Ireland, andnbsp;the kings of Western Ulster. In their case,nbsp;Henry was content to bide his time, and henbsp;made no attempt either to enforce their submission or to claim default and forfeiture.nbsp;Henry returned to England in 1172, and innbsp;the same year he obtained a confirmation ornbsp;renewal of Pope Adrian’s grant from Popenbsp;Alexander HI, who also addressed a letternbsp;to the kings and princes of Ireland, commending them for having received Henrynbsp;as king of their own free will, that is, withoutnbsp;any conquest.

4.—Illegal Policy of Henry II.—Henry was now at the pinnacle of his power and fortune.nbsp;Up to this point, his main proceedings innbsp;regard to Ireland were at least formally legalnbsp;from the feudal standpoint. From this onwardnbsp;he threw legality to the winds, and good faithnbsp;along with it, and his principal agents innbsp;Ireland followed his example. In the newnbsp;lordship of Leinster, the Irish princes whonbsp;had done homage to Henry were dispossessednbsp;and the lands ruled by them granted to newnbsp;adventurers without any pretence of legal

PERIOD OF DECAY

forfeiture or escheatment. The same process was extended to every part of Ireland wherenbsp;it could be enforced and to many parts wherenbsp;it could not be enforced.

Professor Curtis, in his History of Mediaval Ireland, says : “ Henry had not won Irelandnbsp;by the sword. ‘ There was scarcely anyonenbsp;of rank or name in the island,’ says Giraldus,nbsp;exaggerating the numbers indeed, ‘ who didnbsp;not in person or otherwise, pay to the kingnbsp;the homage due from a liegeman to his lord.'nbsp;He makes the submission a legal and constitutional one by saying that the princes ofnbsp;Ireland voluntarily submitted to the king ofnbsp;England, doing him fealty and taking oaths ofnbsp;allegiance. . . . Finally, papal authority completes and confirms Henry’s title. Thus,nbsp;either the Irish kings were feudal vassals innbsp;the sense that the Scottish king was for anbsp;time vassal of the English one, or else thenbsp;whole Irish people by free contract had beennbsp;secured in the same rights as the people ofnbsp;England. But, in fact, Ireland was treatednbsp;as an annexed, conquered, and thereforenbsp;rightless country, and this was immediatelynbsp;shown when Henry, before leaving Ireland,nbsp;granted ‘ the land of Meath, as fully asnbsp;Murchard Hua Melachlin or any before himnbsp;had held it,’ to Hugh de Lacy, though henbsp;(Henry) had but lately received the homagenbsp;of the reigning O’Melachlin.” Only a fewnbsp;weeks separated the two transactions. Denbsp;Lacy, thus rewarded, had accompanied Henry

EARLY IRISH LAWS

to Ireland, and was left by him Justiciar— that is, viceroy—of Ireland and Governor ofnbsp;Dublin. “ This,” Professor Curtis goes onnbsp;to say, “ was more than a mere feudal grant.nbsp;It was the giving away of a kingdom, a matternbsp;of handing over nearly a million acres of thenbsp;richest land in Europe to a subject, with thenbsp;rights of a native ‘ Ri ’ and full feudal regalitiesnbsp;all at the petty service of fifty knights. Thenbsp;rights of 0’Melachlin were extinguished, andnbsp;the evil precedent was successively followednbsp;in Ulidia, Oriel, Connacht, Desmond, andnbsp;portions again of these.” It was not merelynbsp;the rights of the provincial king that werenbsp;thus lawlessly extinguished, but the rights ofnbsp;his subordinate kings and nobles and of thenbsp;entire freeholding population.

5.'—Henry's Illegalities Repeated by His Grantees.—From this time, Henry’s fortunesnbsp;were on the decline, and De Lacy was callednbsp;away from Ireland to uphold him againstnbsp;his rebellious sons. When De Lacy returnednbsp;to Ireland he proceeded to carry out whatnbsp;Dr. Orpen sonorously calls the “ subinfeudation of Meath,” which means subjectingnbsp;the freemen of Meath to the same lawlessnbsp;treatment to which Henry had subjectednbsp;their king. It seems somewhat of a reflectionnbsp;on De Lacy’s fellow-adventurers to say, asnbsp;Orpen says, that De Lacy was no filibuster.nbsp;When is a filibuster not a filibuster ? Whennbsp;his filibustering is done on the grand scale,nbsp;and when it is successful. The Irish chronicle

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known as the Annals of Tigernach was written year by year in the celebrated monastery ofnbsp;Clonmacnois. In the year 1178, De Lacynbsp;made a filibustering raid on Clonmacnois,nbsp;and the chronicle came to an end. Tighearnannbsp;O Ruairc, king of Breifne, had rival claimsnbsp;to the overlordship of Meath. He was invitednbsp;to a conference by De Lacy and murdered.nbsp;The monastery of Durrow, founded by St.nbsp;Columba, was turned by De Lacy into anbsp;fortress, but while De Lacy was one daynbsp;superintending this item of civilization, annbsp;Irishman rushed upon him and ended hisnbsp;career with a stroke of a battle-axe.

Giraldus qualifies his eulogy of Henry by the admission that from the time his sonsnbsp;turned against him, Henry ceased to havenbsp;any regard for even the most solemn treatynbsp;obligations. The rebellion of his sons begannbsp;in 1173, the year following the grant of Meath.nbsp;In that same year, Henry sent the Archbishopnbsp;of Rouen and the Bishop of Lisieux to Louis,nbsp;king of France, offering to make Louis umpirenbsp;in the quarrel with his sons. The reply ofnbsp;Louis, reported by the envoys, is on record,nbsp;and may be compared with the statementnbsp;of Giraldus. “ Louis,” they write to Henry,nbsp;“ spoke of your character with freedom andnbsp;asperity. He said that he had been too oftennbsp;the dupe of your artifice and hypocrisy, thatnbsp;you had repeatedly, and on the slightest pretence, violated your most sacred engagementsnbsp;and that after the experience which he had

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had of your duplicity, he had determined nevermore to put faith in your promises.”

6.—The Treaty of Windsor.—Not long after Henry had received this testimonial, he setnbsp;about making another of his most sacrednbsp;engagements. The Treaty of Windsornbsp;between Henry and Ruaidhri, former kingnbsp;of Ireland, was concluded in October, 1175.nbsp;By this treaty, Ruaidhri acknowledged Henry’snbsp;overlordship and abandoned his own claimnbsp;to authority over Leinster, Meath and a smallnbsp;part of Munster near Waterford. Henrynbsp;acknowledged Ruaidhri’s authority over thenbsp;rest of Ireland, about three-fifths of the whole,nbsp;subject to a tribute in the form of a tax onnbsp;hides, and undertook to maintain Ruaidhrinbsp;in this position, with the specific assistance,nbsp;if required, of Henry’s Constable or chiefnbsp;military officer.

Henry’s manner of observing this treaty fully justifies the opinion formed of him bynbsp;the king of France. The recorded factsnbsp;indicate that he planned without delay anbsp;systematic violation of the treaty as opportunity might be furnished. He made a grantnbsp;of all Ulster to John de Courcy and of Munsternbsp;to a group of barons. Though no record ofnbsp;a grant of Connacht at this time has beennbsp;preserved, the attempt made by Henry’snbsp;agents to seize that province points to suchnbsp;a grant also having been made. His plan tonbsp;tear up the Treaty of Windsor began tonbsp;operate with the appointment of FitzAudelin

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as Viceroy, about a year after the treaty was concluded. Giraldus, who is significantlynbsp;silent about the treaty, shows that four mennbsp;were sent on a particular commission w^ithnbsp;FitzAudelin, but the purpose of this commission he leaves to be revealed by thenbsp;course of events. One of the commissionersnbsp;was De Cogan, appointed Constable of Dublin,nbsp;whose duty under the treaty was to assistnbsp;Ruaidhri in maintaining his authority overnbsp;Ulster, Connacht and Munster. De Courcynbsp;was another commissioner. There was nonbsp;delay. With a force provided by FitzAudelinnbsp;and De Cogan, De Courcy made a suddennbsp;raid into Ulster and captured Downpatrick,nbsp;ousting the local king, who was an acceptednbsp;liegeman of Henry. This exploit was a violationnbsp;both of feudal law and of the recently concluded treaty. A few months later a similarnbsp;invasion of Connacht was attempted, but it wasnbsp;ignominiously defeated. Its failure led to thenbsp;recall of FitzAudelin who, we may suspect, wasnbsp;to have been rewarded with Connacht for hisnbsp;portion. Henry did not abandon his design.nbsp;At the Council of Oxford, a year and a halfnbsp;after the agreement with Ruaidhri, he conferrednbsp;the lordship of Ireland on his son John,nbsp;who was not in rebellion, being only ten yearsnbsp;of age ; he renewed the grant of Meath tonbsp;De Lacy ; he granted southern Munster tonbsp;two of the commissioners—^the Constablenbsp;de Cogan and FitzStephen, thus condoningnbsp;and rewarding the invasion of Ulster and the

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attempted invasion of Connacht; and he granted northern Munster to Philip de Braose. Thesenbsp;Munster grants were in violation of the treatynbsp;and of the rights of Henry’s liegemen, thenbsp;kings of Munster.

7.—John Continued his Father's Policy.—In 1185, John, aged 17 or 18—^visited his lord-ship of Ireland. Then and later he continuednbsp;the lawless and faithless policy of his father,nbsp;even so far as to earn the disapproval ofnbsp;Giraldus who accompanied him. “ Our ownnbsp;Irishmen,” Giraldus writes, “ who from thenbsp;first coming of Fitz Stephen and the Earl hadnbsp;been faithful, now had their lands taken awaynbsp;and given to Norman courtiers.” One of thosenbsp;who accompanied John was the founder of anbsp;great Irish family, William de Burgo. Therenbsp;is evidence that William about this timenbsp;received a secret grant of the kingdom of Connacht. By every art of war and intrigue atnbsp;his disposal, he kept Connacht in turmoil fornbsp;twenty years, but failed to obtain a footholdnbsp;in it. Ruaidhri was succeeded as king of Connacht by his brother Cathal, and during a longnbsp;reign Cathal was able to defeat every attempt tonbsp;deprive him of his kingdom or of any part of it.

The tradition established by Henry and continued by John is still in evidence undernbsp;John’s son, Henry HI. In 1215, the year ofnbsp;Magna Charta, John appeared to recognisenbsp;Cathal’s right by a new grant of the kingdomnbsp;of Connacht. In his ideas of keeping law andnbsp;keeping faith, John was his father’s son. Henbsp;made a simultaneous grant of Connacht to

PERIOD OF DECAY

Richard, son of William de Burgo. In Knox’s History of the County of Mayo we find thenbsp;gratuitous assertion that “ the grant to Richardnbsp;was to provide for failure of Cathal to acceptnbsp;his grant in accordance with agreement.” Unfortunately for this attempt to whitewash anbsp;piece of lawless duplicity, the grant to Richardnbsp;records the fact, kept secret otherwise, thatnbsp;William his father, then ten years dead, hadnbsp;previously obtained a grant of “ all the landnbsp;of Connacht ” from the same John.

8. —Houo Judicial Procedure Commenced.—nbsp;Cathal died in 1224, and was succeeded bynbsp;his son Aedh. Henry III was then king ofnbsp;England. In 1226 Geoffrey de Marisco wasnbsp;appointed Justiciar or viceroy of Ireland, andnbsp;the orders made for his guidance included annbsp;instruction to summon “ Oethus, son of Kathal,nbsp;late king of Connacht, to be before the Justiciarnbsp;at the king’s court, to surrender the land ofnbsp;Connacht, which he ought no longer to holdnbsp;on account of his father’s and his own forfeiture,” and a further instruction to put Richardnbsp;de Burgo in possession of the land of Connacht with the exception of five cantreds tonbsp;be retained for the king of England. Thisnbsp;patent travesty of judicial procedure, half anbsp;century later than the Treaty of Windsor, isnbsp;the first instance that the writer has been ablenbsp;to find of any pretence to provide legal groundsnbsp;for the dispossession of an Irish lord.

9. —Evil Consequences.—Such was Ireland’snbsp;introduction to law and order under Feudalism.nbsp;The facts do not exemplify mere arbitrary

1^

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breaches of law by the autocrat. They show a settled policy of negation of law. And theynbsp;led to miserable consequences. For the feudalnbsp;settlers in Ireland at that period no history ofnbsp;the course of events was necessary and nonbsp;argument or exposition of the legal aspect ofnbsp;the events was required. Their daily breadnbsp;was not more familiar to them than the principles of law regulating feudal ownership ofnbsp;land, its creation and its extinction. In short,nbsp;the majority of them, and in large tracts ofnbsp;the country every one of them, knew that theirnbsp;titles were bad, that they held illegally landsnbsp;which, even by their law, belonged to men ofnbsp;the older native stock. Out of the systematicnbsp;illegalities of Henry and John and the effectsnbsp;on those who benefited by them, there grewnbsp;a doctrine and a practice that did violence tonbsp;human nature and empoisoned for centuriesnbsp;the life of Ireland. The doctrine, inevitable ifnbsp;these illegalities were by any means to benbsp;clothed in a show of legality, was simply this ;nbsp;that the population of Ireland, except thenbsp;settlers and their descendants, was outside thenbsp;law. This doctrine appears already in operation about the time when that first pretencenbsp;of legal escheatment was enacted which hasnbsp;been mentioned ; that is to say, during thenbsp;second generation of feudal settlers in Ireland.nbsp;In 1227 the whole process of English law,nbsp;which by that time had taken shape, was extended by royal decree to Ireland, and thenbsp;accompanying writ or proclamation declared anbsp;general indemnity for all who might otherwise

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be impleaded for the death or chattels of an Irishman. The example came from King Johnnbsp;himself. Heir to his father’s commission fromnbsp;Pope Adrian to reform the Irish in matters ofnbsp;religion, John, in 1217, issued an edict forbidding the ecclesiastical promotion of men ofnbsp;Irish origin. The logical outcome of the doctrinenbsp;was the last degree of barbarity, a perpetualnbsp;state of war, and this in effect was made law,nbsp;the strangest law perhaps that was ever made,nbsp;by the celebrated Statute of Kilkenny in 1366,nbsp;which enacted that, in order to make jointnbsp;resistance to the Irish, parleys and treatiesnbsp;with them must be in common by legal permission, and that there should be but onenbsp;peace and one war throughout the whole ofnbsp;the king’s land of Ireland. This was the spiritnbsp;that animated government. Needless to say,nbsp;it was too much for human nature. In factnbsp;the main object of the Statute of Kilkenny wasnbsp;to force the desired state of perpetual hostilitynbsp;not on the outlawed Irish but on the reluctantnbsp;settler element. These it failed to compel.nbsp;They continued to become Hibernis ipsis Hiber-niores.

CHAPTER IX

LATER DEVELOPMENTS

The principal positive achievement of the feudal regime in Ireland was the developmentnbsp;of town life, a sort of paradox, for the stimulus

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of town development under feudalism was the exemption from feudalism which towns werenbsp;able to secure either by special charters or bynbsp;force of custom. The early Irish laws takenbsp;no cognisance of town communities. Ptolemy,nbsp;in the second century, names a number ofnbsp;towns in Ireland, but some of these appear tonbsp;have been the places of residence of importantnbsp;kings, others may have been places of assembly,nbsp;others landing places on the coast. At all events,nbsp;in Irish records, the first towns are monasticnbsp;and academic centres, such as Armagh, Derry,nbsp;Kildare, Cork. The first fortified towns werenbsp;established by the Norsemen, and they soonnbsp;became emporia of trade, chief among themnbsp;being Dublin, Waterford and Limerick. It isnbsp;likely that Norse traders established a numbernbsp;of smaller port towns around the coast, for wenbsp;find Norse names for a number of Irish harbours,nbsp;such as Ulfreks Fjord at Larne, Strangford,nbsp;Carlingford, Wexford (a fortified trading centrenbsp;which comes into history through being besiegednbsp;and captured by Strongbow), Helvick nearnbsp;Dungarvan, Smerwick in Kerry. The Norsenbsp;settlements were governed by their own lawsnbsp;and customs, and did not come under Irishnbsp;law or cause any special development of Irishnbsp;law. Many of the towns under the feudalnbsp;regime grew out of older monastic centres,nbsp;but they became settlements of new comers.nbsp;The natural opposition between townsmen andnbsp;feudal magnates caused the towns to rally tonbsp;the monarchy and look to it for support. Thenbsp;monarchy in turn favoured the towns, which

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were the best sources of revenue, supplies and transport by land and sea.

I.—Irish Lazo Rehabilitated.—In the course of the thirteenth and fourteenth centuries thenbsp;Irish recovered much of the territory which hadnbsp;been occupied by the grantees under Henry II,nbsp;John and Henry III. The position of the Irishnbsp;rulers of such recovered territories was oncenbsp;more regularised from the feudal standpointnbsp;by Richard II, who accepted them as liegesnbsp;\vithout questioning the validity of their lord-ships. The feudal magnates meanwhile foundnbsp;it politic, despite enactments to the contrary,nbsp;to adopt Irish law and to employ the servicesnbsp;of Irish judges and lawyers in dealing withnbsp;their own subjects. Much of the material innbsp;the extant law tracts¹ dates originally from thisnbsp;period. In the theory of the jurists, the laws,nbsp;in the form in which they were first committednbsp;to writing, were supposed to have originated

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The Irish law tracts normally contain three strata of material:

I. nbsp;nbsp;nbsp;Ancient text, purporting to show the doctrine of Irishnbsp;law in the form in which it was first committed to writing.

II. nbsp;nbsp;nbsp;Glosses.—Brief explanation of words in the ancient text.nbsp;Though often extremely pedantic, they throw much light onnbsp;the archaic vocabulary and sometimes enable the correctionnbsp;of errors. The custom of glossing the older texts goes back tonbsp;the ninth century.

III. nbsp;nbsp;nbsp;Commentaries.—In these the application of the ancientnbsp;texts is developed by later jurists, and the law itself undergoesnbsp;development notwithstanding its theoretical immutability. Thenbsp;method naturally involved pedantic treatment, and some of thenbsp;later commentaries seem to be mainly exercises in pedanticnbsp;ingenuity.

A curious feature is the effort, already visible in the oldest writings, to fix by regulation an arithmetical measure for rights,nbsp;dues, liabilities and qualifications of almost every kind, and alsonbsp;for general conditions modifying these.

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in St. Patrick’s time and in a formal revision of the whole body of Irish law by a jointnbsp;commission of kings, bishops and jurists—anbsp;demonstrable fiction. This ancient code, thenbsp;Fenechus, was in theory immutable. All laternbsp;juristic writings were held to be of the naturenbsp;of commentaries, however much they mightnbsp;depart from the ancient texts by way of development, innovation or desuetude. As late asnbsp;the last decade of the sixteenth century wenbsp;find the law school of 0’Davoren in full activity.nbsp;From this school, and from about this time,nbsp;come many of the extant manuscripts and thenbsp;most important extant glossary of legal diction.nbsp;A few years later, under James I, Irish lawnbsp;ceased to operate, and English law was formallynbsp;established in every part of Ireland.

2. —The Fiction of Immutability. —^The immutability of Irish law was, of course, no more than a professional convention. The law tractsnbsp;themselves furnish proof to the contrary innbsp;every period. The annals, continuous contemporary records from about a.d. 600 to thenbsp;seventeenth century, though they deal withnbsp;events rather than institutions, afford corroborative evidence. For example, the institutionnbsp;called “ tanistry,” under which a king’s successor was elected in the king’s lifetime, hasnbsp;often been s^posed to have been of immemorialnbsp;antiquity. The annals show that it originatednbsp;more than a century after the Anglo-Normannbsp;invasion, and it does not appear to have evernbsp;become quite general or legally necessary.

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About the same time the influx of mercenaries from Argyle and the Hebrides brought aboutnbsp;the establishment of permanent military forces,nbsp;no doubt legalised on a basis of contract. Innbsp;a proclamation by O’Neill in 1598 for the raisingnbsp;of an Irish force, the terms of engagement arenbsp;very minutely specified.

3.—Defects of Irish Law.-—The writer has no belief in the assurance of those, whethernbsp;they be learned or unlearned, who pretend tonbsp;be able to base a knowledge of the characternbsp;of a people on racial origins and distinctions,nbsp;which also they pretend to know but whichnbsp;no ethnologist of repute will recognise. Evennbsp;in these times of wide franchise and electednbsp;legislature, the proportion of any people thatnbsp;takes an active part in the shaping of the bodynbsp;of law is very small, but the share that the bodynbsp;of law takes, especially the administration ofnbsp;law, in moulding the general character of anbsp;people may be incalculably great. The feudalnbsp;law of primogeniture which allowed no exercise of discretion by anybody in the selectionnbsp;of ruler and no way of getting rid of a badnbsp;ruler, might appear in abstract theory to benbsp;far excelled by the Irish law which allowed anbsp;considerable range of selection and a full rightnbsp;of subsequent rejection. Yet in this very respectnbsp;the feudal law tended towards stability andnbsp;civil peace, the Irish law towards internalnbsp;strife and external danger. No student of thenbsp;history of law will accept the notion that thenbsp;existence of these provisions, one or other, was

EARLY IRISH LAWS

an index of national character. Nor will any student venture to deny that their prolongednbsp;operation had a distinct influence on nationalnbsp;habits, which are really national character.

Let us observe another consequence. Under the Irish law, in one of the small states thatnbsp;has been described, no person plainly incompetent to perform the functions of ruler wasnbsp;likely to be elected. Under the law of primogeniture it was inevitable that the lawfulnbsp;successor should sometimes be too young ornbsp;in some way too deficient to be an effectivenbsp;ruler, and this, even in the smallest principalities, made ministerial government a necessity. Necessity thus arising from defect becamenbsp;perhaps the most potent of all forces fornbsp;political development, for ministerial government, even though it be government bynbsp;ministers of an autocrat, implies developmentnbsp;in various directions.¹

4.'—Effects of Just Administration.—We may regard a system of law in two aspects—as anbsp;human culture-product apart from its results,nbsp;or in the light of its results without regard tonbsp;its own structural features. In the first of these

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E.g. Continuity from reign to reign. Change of policy made possible without change of ruler. Censure of policy madenbsp;possible without direct hostility to the ruler. Consequentnbsp;increase of public interest and participation in government. Onnbsp;the other hand, a tendency to control the magnates. In general,nbsp;a popularization of the idea of government detached fromnbsp;persons. Any page of the Irish Annals will suffice to exemplifynbsp;how from the sixth to the sixteenth century the personal fortunesnbsp;of rulers and magnates counted in public affairs above everything else.

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aspects one must be content to say that ancient Irish law is a subject of extraordinary interest.nbsp;In the second aspect it has already been shownnbsp;that in one particular and important outcome,nbsp;the prevalent form of government, Irish law wasnbsp;gravely defective, at all events it neither produced nor fostered a political organisationnbsp;capable of withstanding the hostility of a centralised enemy. Perhaps, however, the historiansnbsp;have been allowed to force unduly on us theirnbsp;own favourite standpoint, the standpoint of thenbsp;state. In another respect we have evidencenbsp;that Irish law worked well, that it producednbsp;among the common people a feeling of satisfaction with its operation and with the measurenbsp;of justice and peace that it brought into theirnbsp;lives. On that point there could be no clearernbsp;testimony than we have from two Englishnbsp;writers, one of whom, Payne, was an eyewitness of Irish law in operation within a shortnbsp;time of its abolition; the other, Sir Johnnbsp;Davies, Attorney-General of Ireland undernbsp;James I, was perhaps the principal agent innbsp;bringing about the extinction of Irish law.nbsp;Payne writes from Connacht in the reign ofnbsp;Elizabeth : “As touching their government innbsp;their corporations where they bear rule, it isnbsp;done with such wisdom, equity, and justice, asnbsp;demerits worthy commendations. For I myself divers times have seen in several placesnbsp;within their jurisdiction well near twenty causesnbsp;decided at one sitting, with such indifferencenbsp;that, for the most part, both plaintiff and

EARLY IRISH LAWS

defendant hath departed contented ; yet many that make show of peace and desireth to livenbsp;by blood do utterly mislike this or any goodnbsp;things that the poor Irishman doth.” Again,nbsp;he says : “ The Irish keep their promise faithfully and are more desirous of peace than thenbsp;English ; nothing is more pleasing to themnbsp;than good justice.” So also Finglas, Chiefnbsp;Baron, that is, chief judge of the court ofnbsp;exchequer : “ It is a great shame and reproachnbsp;that the laws and statutes made in this landnbsp;[he refers to English law] are not observednbsp;nor kept after making of them eight days ;nbsp;which matter is one of the destructions ofnbsp;Englishmen of this land ; and divers Irishmennbsp;doth observe and keep such laws and statutesnbsp;which they make upon hills in their countrynbsp;firm and stable, without breaking them fornbsp;any favour or reward.” Still more remarkablenbsp;is the testimony of Davies, who denouncesnbsp;the Irish laws in general, the land laws innbsp;particular, being so different from English law,nbsp;as barbarous. Yet he says : “ There is nonbsp;nation of people under the sun that doth lovenbsp;equal and indifferent justice better than thenbsp;Irish, or will rest better satisfied with the execution thereof, although it be against themselves,nbsp;as they may have protection and benefit of thenbsp;law when upon just cause they do desire it.”

PHnted at Parkgate Printing Works, Dublin, bp CafiUl C'Q*» London and Dublin,