Conclusion to The Brehon Laws (6)

The remarkably just character of the Brehon Laws has been attributed to the fact that for centuries they were not meddled with by rulers or ruled, but were moulded to a large extent by the brehons, who occupied a neutral position. This, if it be correct, adds to the merit of the brehons when the reader is reminded that throughout the whole range of English law what is judge-made can nearly always be traced by its execrable character.

In almost every respect the Brehon Laws bear comparison very well with English laws not so old. English laws from the time of Alfred, and perhaps before it, down to the present day, have been constantly disfigured by hardships and disabilities imposed upon people on account of their religion or their want of religion, and by ghastly, absurd, and generally vain efforts to force people's consciences. Of course there is not a trace of these absurdities to be found in the Irish laws. Our ancestors, like ourselves, had faith in reason and good example, not in the thumbscrew. They thought that penal laws ought to be applied only to criminal acts, and that the consciences of harmless people ought to be let alone.

The odious system of torture called the ordeal, so common in the Middle Ages, by which evidence was roasted or boiled, according to taste, out of unwilling witnesses, and confessions of guilt wrung often from persons perfectly innocent; this was never known in Ireland, except possibly in the Pale. There is not a word about it in the Brehon Laws. Englishmen, never short of an excuse when their own national reputation is concerned, have no better to offer for the practice of the ordeal than that it was universal. Even this poor excuse, however, is not valid; for, small though Ireland is, a thing never practised there was not universal.

Now with more direct regard to the brehons and ollamhs, any modern reader will be at once struck with the want of scientific arrangement in their work, and with the manner in which they open a new subject, in the middle, so to speak, instead of at the beginning as we should desire. Language apparently simple is found to be most difficult and disappointing for want of the primary foundations and proper definitions. Initial facts and principles are assumed, not explained. We constantly feel that only a part of the law is revealed to us, the writer assuming that we know the rest. Nowhere is an attempt made to grapple with any branch of law and give a complete exposition of it throughout. It is easy to point out defects like these, because they lie on the surface, and are the first a reader encounters. They are serious obstacles, and may disgust him; but they do not affect the law itself. They are but its shell, a rough shell, which must be cracked before the kernel can be reached. To murmur against the brehons for these defects would be about as reasonable as to murmur against them for not having delivered judgments into phonographs. This is the nineteenth century, not the tenth.

The brehons did not live in a scientific age. Are not the very defects of their work interesting, if not instructive, to us? Should our little difficulties prevent our appreciating the enormous difficulties they had to surmount? Though most of the matter we have been considering was written more than a thousand years ago, much of it is marked by a clearness of expression which modern Acts of Parliament do not always attain. The connection of the brehons and ollamhs with the law was too long and intimate to allow of our entirely withholding either praise or blame from them as the laws may seem to merit. But before blaming we should be very sure that we understand. We should remember that with our best efforts we can never acquire more than a partial knowledge of these men and their laws. We can never successfully free ourselves from our own surroundings, and cast ourselves back into their world, or revive its conditions around ourselves. The brehons and ollamhs knew, far better than we can ever realise, what an inadequate picture of themselves and their laws these writings would present if a time should come when no other picture remained, nor living voice to tell the mysteries of this, wherein it is full, wherein it wholly fails. That time has come, and to it and our imperfect vision much that is distorted or unintelligible may very justly be attributed.