CHAPTER IV.

LEGISLATIVE ASSEMBLIES

From The Brehon Laws by Laurence Ginnell, 1894

SECTION I.

INTRODUCTORY

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OME historical writers go so far as to say that there was an entire absence of legislative power in ancient Ireland. This is quite too sweeping, and wholly inconsistent with the ascertained facts of the period in which we are mainly interested, the period, namely, of the compilation of the Brehon code. But, unfortunately, it is applicable to the nation, though not quite so to the clan, at a subsequent period when the national assembly had ceased to meet. Authors who appear to be better informed maintain that there were five different sorts of legislative assemblies in ancient Ireland, some of them being for national, some for provincial, and some for local or tribal purposes. No one has yet sufficiently investigated the subject to be able to set forth with precision what the constitutions, duties and powers of those assemblies were.

The idea of making laws does not appear to be natural to primitive man. This is proved by the early history of many nations gleaned with the greatest care; though a good deal that is theoretical might be advanced to the contrary. The prevailing sentiment of primitive races always has been, and still is, that laws handed down from remote antiquity should not be meddled with. The object of the long and apologetic preambles of old English Acts of Parliament was to soothe this sentiment and reconcile it to the changes about to be enacted. So long as such a sentiment prevails, and to its extent, there is a reluctance to tamper with laws. I cannot say how far this sentiment prevailed in Ireland, but it is certain to have existed to some extent; and what is given as a Gaelic proverb would go to support it—"The old rule transcends the new knowledge." But quite apart from this sentiment, the simple life of the people, the system of clan and fine, with its network of rights conferred and duties imposed, and the just character of the existing laws must have reduced to a minimum the necessity for direct law-making.

When nations which had not fallen under subjection to a despotism had arrived at the idea of making and altering their laws, they at first met in public assembly and did it by direct vote of the free and qualified citizens, those citizens being on such occasions, in some nations, armed and clashing their arms in token of final assent. Later on when some system of representation or delegation had been devised, the assemblies so formed were usually given power, not only to make and alter the laws, but to enforce them and also to apply them judicially, and to determine whether they had or had not been observed or violated. There being little direct making of new law, but chiefly a gradual adaptation and blending in the course of administration, there was no clearly marked distinction between legislative, executive, and judicial functions. All those functions were discharged, for instance, by the Saxon Witan; and it was from such a state of things, though in very different circumstances, that the English Star Chamber arose.

The judicial powers of the House of Lords and of the Privy Council of the present day come, through various winding ways, from the same source. These observations apply so generally to other nations that one would expect to find traces of a similar evolution in Ireland; yet those who have read Irish manuscripts most extensively assure us that, so far as they have been able to discover, the Irish always had courts of justice quite distinct from their legislative assemblies. Irish courts of justice appear to have attained a far more advanced stage of development than Irish legislative assemblies. The converse of this would be true of ancient Rome, for instance. But some of the Irish assemblies, perhaps all, were still much more than legislative; or rather the work of legislation does not appear to have been the sole, or even the principal, duty of any of them.

In pagan times, at all events, their primary and principal duties were of a semi-religious character, with legislative, executive, administrative, and social duties superadded as occasion arose. And possibly the introduction of Christianity effected no greater change in the assemblies than the elimination of the old religious observances. Some of the assemblies were constituted mainly of the Flaiths, or nobles, with a small number of other distinguished men, and in this respect may be said to have resembled the present House of Peers. A national assembly of this character met at Tara, and there was in each provincial kingdom an assembly constituted on the same exclusive model. Some of the assemblies, especially those that were local, were probably constituted of as many heads of families of the céile, or freehold class, as chose to attend them, the clan system conferring the qualification, and there being no other form of election.

The wilful disturbance of any lawfully constituted public assembly, national or local, was one of the few things for which a fine was not considered adequate punishment; the penalty was death.

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