Chapter 7

NON-CITIZENS. From what precedes it will be understood that there were in ancient Ireland from prehistoric times people not comprised in the clan organization, and therefore not enjoying its rights and advantages or entitled to any of its land, some of whom were otherwise free within certain areas, while some were serfs and some slaves. Those outsiders are conjectured to have originated in the earlier colonists subdued by the Milesians and reduced to an inferior condition. But the distinction did not wholly follow racial lines. Persons of pre-Milesian race are known to have risen to eminence, while Milesians are known to have sunk, from crime or other causes, to the lowest rank of the unfree. Here and there a _daer-tuath_ = "bond community", of an earlier race held together down to the Middle Ages in districts in which conquest had left them and to which they were restricted. Beyond that restriction, exclusion from the clan and its power, some peculiarities of dialect, dress, and manners, and a tradition of inferiority such as still exists in certain parishes, they were not molested, provided they paid tribute, which may have been heavy.

There were also _bothachs_ = cottiers, and _sen-cleithes_ = old adherents of a _flaith_, accustomed to serve him and obtain benefits from him. If they had resided in the territory for three generations, and been industrious, thrifty, and orderly, on a few of them joining their property together to the number of one hundred head of cattle, they could emancipate themselves by appointing a _flaithfine_ and getting admitted to the clan. Till this was done, they could neither sue nor defend nor inherit, and the _flaith_ was answerable for their conduct.

There being no prisons or convict settlements, any person of whatever race convicted of grave crime, or of cowardice on the field of battle, and unable to pay the fines imposed, captives taken in foreign wars, fugitives from other clans, and tramps, fell into the lowest ranks of the _fuidre_--"serfs." It was as a captive that Saint Patrick was brought in his youth to Ireland. The law allowed, rather than entitled, a _flaith_ to keep unfree people for servile occupations and the performance of unskilled labor for the public benefit. In reality they worked for his personal profit, oftentimes at the expense of the clan. They lived on his land, and he was responsible for their conduct. By analogy, the distinctions _saer_ and _daer_ were recognized among them, according to origin, character, and means. Where these elements continued to be favorable for three generations, progress upward was made; and ultimately a number of them could club together, appoint a _flaithfine_, and apply to be admitted to the clan.

A _mog_ was a slave in the strict sense, usually purchased as such from abroad, and legally and socially lower than the lowest _fuidir_. Giraldus Cambrensis, writing towards the close of the twelfth century, tells us that English parents then frequently sold their surplus children and other persons to the Irish as slaves. The Church repeatedly intervened for the release of captives and mitigation of their condition. The whole institution of slavery was strongly condemned as un-Christian by the Synod held in Armagh in 1171.

CRIMINAL LAW. Though there are numerous laws relating to crime, to be found chiefly in the _Book of Aicill_, criminal law in the sense of a code of punishment there was none. The law took cognizance of crime and wrong of every description against person, character, and property; and its function was to prevent and restrict crime, and when committed to determine, according to the facts of the case and the respective ranks of the parties, the value of the compensation or reparation that should be made. It treated crime as a mode of incurring liability; entitled the sufferer, or, if he was murdered, his _fine_, to bring the matter before a brehon, who, on hearing the case, made the complicated calculations and adjustments rendered necessary by the facts proved and by the grades to which the respective parties belonged, arrived at and gave judgment for the amount of the compensation, armed with which judgment, the plaintiff could immediately distrain for that amount the property of the criminal, and, in his default, that of his _fine_. The _fine_ could escape part of its liability by arresting and giving up the convict, or by expelling him and giving substantial security against his future misdeeds.

From the number of elements that entered into the calculation of a fine, it necessarily resulted that like fines by no means followed like crimes. Fines, like all other payments, were adjudged and paid in kind, being, in some cases of the destruction of property, generic--a quantity of that kind of property. Large fines were usually adjudged to be paid in three species, one-third in each, the plaintiff taking care to inform correctly the brehon of the kinds of property the defendant possessed, because he could seize only that named, and if the defendant did not possess it, the judgment was "a blind nut." Crime against the State or community, such as wilful disturbance of an assembly, was punished severely. These were the only cases to which the law attached a sentence of death or other corporal punishment. For nothing whatsoever between parties did the law recognize any duty of revenge, retaliation, or the infliction of personal punishment, but only the payment of compensation. Personal punishment was regarded as the commission of a second crime on account of a first. There was no duty to do this; but the right to do it was tacitly recognized if a criminal resisted or evaded payment of an adjudged compensation. Criminal were distinguished from civil cases only by the moral element, the sufferer's right in all cases to choose a brehon, the loss of _eineachlann_, partial or whole according to the magnitude of the crime, the elements used in calculating the amount of fine, and the technical terms employed. _Dire_ (djeereh) was a general name for a fine, and there were specific names for classes of fines. _Eric_ = reparation, redemption, was the fine for killing a human being, the amount being affected by the distinction between murder and manslaughter and by other circumstances; but in no case was a violent death, however innocent, allowed to pass without reparation being made. A fine was awarded out of the property of the convict or of his _fine_ to the _fine_ of the person slain, in the proportions in which they were entitled to inherit his property, that being also according to their degrees of kinship and the degrees in which they were really sufferers. This gave every clan and every clansman, in addition to their moral interest, a direct monetary interest in the prevention and suppression of crime. Hence the whole public feeling of the country was entirely in support of the law, the honor and interest of community and individual being involved in its maintenance. The injured person or _fine_, if unable to recover the fine, might, in capital cases, seize and enslave, or even kill, the convict. Probably restrained by the fact that, there being no officers of criminal law, they had to inflict punishment themselves, they sometimes imprisoned a convict in a small island, or sent him adrift on the sea in a _currach_ or boat of hide. Law supported by public opinion, powerful because so inspired, powerful because unanimous, was difficult to evade or resist. It so strongly armed an injured person, and so utterly paralyzed a criminal, that escape from justice was hardly possible. The only way in which it was possible was by flight, leaving all one's property behind, and sinking into slavery in a strange place; and this in effect was a severe punishment rather than an escape.

FOREIGN LAW. The Danes and other Norsemen were the buccaneers of northwestern Europe from the eighth to the eleventh century. They conquered and settled permanently in Neustria, from them called Normandy, and conquered and ruled for a considerable time England and part of Scotland and the Isles. In Ireland they were little more than marauders, having permanent colonies only round the coast; always subject, nominally at least, to the _ard-ri_ or to the local chief; paying him tribute when he was strong, raiding his territory when he was weak, and fomenting recurrent disorder highly prejudicial to law, religion, and civilization. They never made any pretence of extending their laws to Ireland, and their attempt to conquer the country was finally frustrated at Clontarf in 1014.

The Anglo-Norman invaders also seized the seaports. The earlier of them who went inland partially adopted in the second generation the Gaelic language, laws, and customs; as many non-Celtic Lowlanders of Scotland about the same period adopted the Gaelic language, laws, and customs of the Highlanders. Hence they did not make much impression on the Gaelic system, beyond the disintegrating effect of their imperfect adoption of it.

Into the eastern parts of Ireland, however, a fresh stream of English adventurers continued to flow, as aggressive and covetous as their means and prudence permitted; calling so much of the country as they were able to wrench from the Irish "the English Pale", which fluctuated in extent with their fortunes; and, when compelled to pay tribute to Irish chiefs, calling it "black rent", to indicate how they regarded it. Their greatest difficulty was to counteract the tendency of the earlier colonists to become Hibernicized--a most unwilling tribute to the superiority of the Irish race. They, and still more those in England who supported them, knew nothing of the Irish language, laws, and institutions but that they should all be impartially hated, uprooted, and supplanted by English people and everything English as soon as means enabled this to be done. This was the amiable purpose of the pompously-named "Statute of Kilkenny", passed by about a score of these colonists in 1367. Presuming to speak in the name of Ireland, the statute prohibited the English colonists from becoming Irish in the numerous ways they were accustomed to do, and excluded all Irish priests from preferment in the Church, partly because their superior virtue would by contrast amount to a censure. The purpose was not completely successful even within the Pale. Outside that precinct, the mass of the Irish were wholly unconscious of the existence of the "Statute of Kilkenny." But expressing, as the statute did correctly, the views of fresh adventurers, it became, in arrogance and in the pretension to speak for the whole of Ireland, a model for their future legislation and policy.

Under King Henry VI. of England, Richard, Duke of York, being Lord Deputy, the Parliament of the Pale, assembled in Dublin, repudiated the authority of the English Parliament in Ireland, established a mint, and assumed an attitude of almost complete independence. On the other hand, in 1494, under Henry VII., the Parliament of the Pale, assembled at Drogheda, passed Poyning's Act, extending all English laws to Ireland and subjecting all laws passed in Ireland to revision by the English Council. This, extended to the whole of Ireland as English power extended, remained in force until 1782. Henry VIII. was the first English sovereign to take practical measures for the pacific and diplomatic conquest of the whole of Ireland and the substitution of English for Irish institutions and methods. His daughter, Queen Elizabeth, continued and completed the conquest; but it was by drenching the country in blood, by more than decimating the Irish people, and by reducing the remnant to something like the condition of the ancient _fuidre_. Her policy prepared the ground for her successor, James I., to exterminate the Irish from large tracts, in which he planted Englishmen and Scotchmen, and to extend all English laws to Ireland and abolish all other laws. James's English attorney-general in Ireland, Sir John Davies, in his work, _A Discoverie of the True Causes, etc._, says:

"For there is no nation of people under the sunne that doth love equall and indifferent [= impartial] justice better than the Irish; or will rest better satisfied with the execution thereof, although it bee against themselves; so as they may have the protection and benefit of the law, when uppon just cause they do desire it."

The ancient Irish loved their laws and took pride in obeying and enforcing them. The different attitude of the modern Irish towards foreign laws and administration is amply explained by the morally indefensible character of those laws and that administration, to be read in English statutes and ordinances and in the history of English rule in Ireland--a subject too vast and harrowing, and in every sense foreign to what has gone before, to be entered upon here. Though the Parliament of 1782-1800 was little more than a Pale Parliament, in which the mass of the Irish people had no representation whatever, one of its Acts, to its credit be it said, was an attempt to mitigate the Penal Laws and emancipate the oppressed Gaelic and Catholic population of Ireland. With the partial exception of that brief interval, law in Ireland has, during the last 360 years, meant English laws specially enacted for the destruction of any Irish trade or industry that entered into competition with a corresponding English trade or industry. In later times those crude barbarities have been gradually superseded by the more defensible laws now in force in Ireland, all of which can be studied in statutes passed by the Parliament, since the Union with Scotland, called British.

REFERENCES:

Pending the desirable work of a more competent Brehon Law Commission and translators, the subject must be studied in the six volumes of _Ancient Laws of Ireland_, produced by the first Commission, from 1865 to 1901, ignoring the long introductions and many of the notes. Whitley Stokes: Criticism of Atkinson's Glossary (London, 1903); R. Dareste: Etudes d'histoire de droit (Paris, 1889); d'Arbois de Jubainville and Paul Collinet: Etudes sur le droit celtique, 2 vols. (Paris, 1895); Joyce: Social History of Ancient Ireland, 2 vols. (London, 1913); Laurence Ginnell: The Brehon Laws (London, 1894).

IRISH MUSIC

By W.H. GRATTAN FLOOD, Mus. D., M.R.I.A., K.S.G.

Perhaps nothing so strikingly brings home the association of Ireland with music as the fact that the harp is emblazoned on the national arms. Ireland, "the mother of sweet singers", as Pope writes; Ireland, "where", according to St. Columcille, "the clerics sing like the birds"; Ireland can proudly point to a musical history of over 2,000 years. The Milesians, the De Dananns, and other pre-Christian colonists were musical. Hecataeus (B.C. 540-475) describes the Celts of Ireland as singing songs to the harp in praise of Apollo, and Aethicus of Istria, a Christian philosopher of the early fourth century, describes the culture of the Irish. Certain it is that, even before the coming of St. Patrick, the Irish were a highly cultured nation, and the national Apostle utilized music and song in his work of conversion. In the early Lives of the Irish Saints musical references abound, and the Irish school of music attracted foreign scholars from the sixth to the ninth century.

Hymnologists are familiar with the hymns written by early Irish saints and laics, _e.g._, St. Sechnall, St. Columcille, St. Molaise, St. Cuchuimne, St. Columbanus, St. Ultan, St. Colman, St. Cummain, St. Aengus, Dungal, Sedulius, Moengal, and others. Who has not heard of the great music school of San Gallen, founded by St. Gall, "the wonder and delight of Europe," whither flocked German students? One of the Irish monks, Tuathal (Tutilo), composed numerous sacred pieces, including the famous farced Kyrie, "Fons bonitatis", included in the Vatican edition of the _Kyriale_ (1906). Not alone did Irish monks propagate sacred and secular music throughout France, Italy, Switzerland, Austria, Germany, and the far North, but they made their influence felt In Lindisfarne, Malmesbury, Glastonbury, and other cities in England, as also in Scotland. St. Aldhelm, one of the pupils of St. Maeldubh, tells us that at the close of the seventh century, "Ireland, synonymous with learning, literally blazed like the stars of the firmament with the glory of her scholars."

During the ninth century we meet with twelve different forms of instruments in use by the Irish, namely:--the _Cruit_ and _Clairseach_ (small and large harp); _Timpan_ (_Rotta_ or bowed _cruit_); _Buinne_ (oboe or bassoon); _Bennbuabhal_ and _Corn_ (horn); _Cuisleanna_ and _Piob_ (bagpipes); _Feadan_ (flute or fife); _Guthbuinne_ (bass horn); _Stoc_ and _Sturgan_ (trumpet); _Pipai_ (single and double pipes); _Craoibh cuil_ and _Crann cuil_ (cymbalum); _Cnamha_ (castanet); and _Fidil_ (fiddle). The so-called "Brian Boru's Harp" really dates from the thirteenth century, and is now in Trinity College, Dublin, but there are numerous sculptured harps of the ninth and tenth centuries on the crosses at Graig, Ullard, Clonmacnois, Durrow, and Monasterboice.

Donnchadh, an Irish bishop of the ninth century, who died as abbot of St. Remigius, wrote a commentary on Martianus Capella, a well-known musical text book. Towering above all his fellows, John Scotus Erigena, in 867, wrote a tract _De Divisione Naturae_, in which he expounds _organum_ or discant, nearly a hundred years before the appearance of the _Scholia Enchiriadis_ and the _Musica Enchiriadis_. He also wrote a commentary on Martianus Capella, now in a Paris MS. of the ninth century.

The eulogy of Giraldus Cambrensis, or Gerald Barry, who came to Ireland in 1183, on Irish harpers and minstrels is too well known to be repeated, but Brompton and John of Salisbury are equally enthusiastic. Ground bass, or pedal point, and singing in parts, as well as bands of harpers and pipers, were in vogue in Ireland before the coming of the English. Dante, quoted by Galilei, testifies to the fact that Italy received the harp from Ireland; and, it may be added, the Irish harp suggested the pianoforte. In the Anglo-Norman ballad, "The Entrenchment of New Ross"--in 1265--allusion is made to pipes and flutes, and carols and dancing. Another poem, dating from about 1320, refers to Irish dances in a flattering manner.

John Garland (1190-1264) wrote a treatise on _Organum_, and outlined a scheme of dividing the interval, which developed into ornamentation, passing notes, and grace notes. The Dublin _Troper_ of the thirteenth century has a number of farced Kyries and Glorias, also a collection of Sequences. A Dublin _Processionale_ of the fourteenth century contains the most elaborate form of the _Officium Sepulchri_, with musical notation on a four-line stave--the foundation of the Miracle Play of the Resurrection. Another Dublin _Troper_ dates from 1360 and was used in St. Patrick's Cathedral. It contains the hymn, "Angelus ad Virginem", alluded to by Chaucer. The Christ Church Psaltery, about 1370, has musical notation and is exquisitely illuminated. Lionel Power, an Anglo-Irishman, wrote the first English treatise on music in 1395. Exactly a century later, in 1495, a music school was founded in Christ Church Cathedral, Dublin.

The Irish Annals of the thirteenth to the fifteenth century have numerous references to distinguished harpers and singers, and there are still sung many beautiful airs of this period, including "The Coulin" and "Eibhlin a ruin." John Lawless was a famous Irish organ-builder of the second half of the fifteenth century, and his successor, James Dempsey, built many fine organs between the years 1530 and 1565.

Notwithstanding the many penal enactments against Irish minstrels, all the great Anglo-Irish nobles of the Pale retained an Irish harper and piper in their service. Under date of 1480, we find Chief Justice Bermingham having an Irish harper to teach his family, as also "to harp and to dance." A century later "Blind Cruise, the harper"--Richard Cruise--composed a lamentation song on the fall of the Baron of Slane, the air of which is still popular. It is to the credit of the Irishman, William Bathe (who subsequently became a Jesuit), that he wrote the first printed English treatise on music, published in 1584--thus ante-dating by thirteen years Morley's work. Bathe wrote a second musical treatise in 1587, and he was the first to call measures by the name of bars. He also formulated methods of transposition and sight reading that may still be studied with profit.

Thomas Campion, the poet and composer, was born in Dublin in 1567, but spent nearly all his life in England. Other Irish composers, to mention only the most distinguished, were William Costello (madrigalist), Richard Gillie, Edward Shergold, and Walter Kennedy. Strange as it may seem, Queen Elizabeth retained in her service an Irish harper, Cormac MacDermot, from 1591 to 1603, and on the death of the queen he was given an annual pension of £46 10s. 10d.--nearly £500 a year of our present money.

Shakespeare refers to eleven Irish tunes, of which the famous "Callino Casturame" (_Cailin og a stuir me_) is still fresh. Irish dances were extremely popular at the English court from 1600 to 1603 and were introduced into the Masks. Shakespeare's "intrinsic friend," John Dowland of Dublin, was one of the greatest lutenists in Europe from 1590 to 1626. In the dedication of a song "to my loving countryman, Mr. John Foster the Younger, merchant of Dublin in Ireland," Dowland sufficiently indicates his nationality, and his compositions betray all the charm and grace of Irish melody. It is of interest to add that the earliest printed "Irish Dance" is in _Parthenia Inviolata_, of which work, published in 1613-4, there is only one copy known--now in the New York Public Library. From 1600-1602, Charles O'Reilly was harpist to the court of Denmark at 200 thalers a year. His successor was Donal _Dubh_ ("the black") O'Cahill (1602-1610), who followed Anne of Denmark to the English court. Walter Quin of Dublin was music master to King James's eldest son, Prince Henry, from 1608 to 1611. Other noted harpers of the first half of the seventeenth century are: Rory _dall_ ("the blind") O'Cahan; Nicholas _dall_ Pierce; Tadhg MacRory; John, Rory, and Henry Scott; Owen MacKeenan; Owen MacDermot; Tadhg O'Coffey; and Father Robert Nugent, S.J. Darby Scott was harper to the Danish Court from 1621 till his death, at Copenhagen, on December 19, 1634. Pierce Ferriter, a "gentleman harper", was executed at Killarney in 1652. Myles O'Reilly and the two Connellans were famous harpers between the years 1660-1680. Evelyn, the English diarist, in 1668, praises the excellent performance on the harp of Sir Edward Sutton, who, in the following year, was granted by King Charles II. the lands of Confey, Co. Kildare. Two beautiful harps of this period are still preserved--the Fitzgerald Harp and the Fogarty Harp.

There are many exquisite airs of the seventeenth century, some of which have been incorporated in Moore's _Irish Melodies_. The titles of several airs of this epoch are of historical interest, _e.g._, "Sarsfield's Lament," "Lament for Owen Roe O'Neill," "MacAlistrum's March," "Ned of the Hill," "The Breach of Aughrim," "Limerick's Lamentation," "Lilliburlero," "Ballinamona," "The Boyne Water," and "The Wild Geese." Irish tunes abound in the various editions of Playford's _Country Dances_ from 1651 to 1720.

Turlogh O'Carolan (1670-1738), who has been styled "the last of the Irish bards", wrote and composed innumerable songs, also Planxties, Plearacas, and Lamentations. It is here merely necessary to note that twenty-six of O'Carolan's airs are included in Moore's _Irish Melodies_, although his claim to them has only recently been proved by the present writer. Goldsmith's eulogy of O'Carolan is well known.