Cleveland Irish: The Irish and the Law
by Francis McGarry
In the most recent publication of this column, we discussed the history of the plea bargain as a peculiar American invention and how that effected the legal landscape in Cleveland: the intersections of industrial capitalism, social control and the Irish. My students are accustomed to my ability to intersect the Irish with almost every historical topic.
In the case of the plea bargain, it was more than historical happenstance that the Irish were one of the interlocutors. The Irish in Cleveland were a product of Ireland and the plea bargain was not our first tussle with the law.
The earliest recorded Irish laws were known as the Brehon Code, or the Fenechas. It is hard to even pin down the inception of Brehon Code, since it was originally created and passed down orally. A document called Seanchus Mor, the mother of Brehon law, was originally published in 438 A.D., well before the plea bargain in the 1830s. This was done at the request of St. Patrick and the king of Ireland.
The Code was edited for three years and all tenants of the Code that contradicted Christian doctrine were excluded. These laws were written in the oldest dialect of the Irish language, Berla Feini, which brehons were instructed in as part of training.
When English law overwhelmed Ireland, original documents of the Code were not assembled. Three Irishmen, Duald MacFirbis, Eugene O’Curry and John O’Donovan are responsible for translating and piecing together the Code in the 1800s.
In those early days, the Irish tribe had no machinery of legislation, no Tammany Hall. The king, Pace MacNeill, did not have the authority to make or change the law. He could make temporary ordinances.
Certain mythological kings, like Cormac mac Aiit, are credited in legend with legislative reforms and wise judgements, but the real custodians of the law were the “brehons,” a privileged caste ultimately descended from the druids and responsible for the codification over time of judge-made law which became known as the Brehon Code. While the Brehon administered the law, the law could only be made or eradicated by a committee composed of a poet, a historian, a landowner, a bishop, a teacher of literature, a teacher of law, a noble, a lay vicar and the chief or king. It was an early example of the division of powers.
One example of the Brehon code is a copyright case between two monks in 561 A.D. The first monk Finnen claimed the second monk Colmcille had copied from his illustrated Bible. As my college roommate explained his A in calculus, “when in doubt look about.” The Brehon who ruled on the case wrote down the decision as brehons had begun to do in the sixth century. “To every cow her young cow, that is, her calf, and to every book its transcript. To Finnen belongeth the book thou hast written, Colmcille.”
According to the Brehon Code, a king was bound by law to be just to his subjects. A man who stole an embroidery needle from a poor woman paid a higher fine than if he had stolen a needle from the queen. A member of the clergy would be fined twice as much as a lay person for the same offense. Teachers were held in the highest respect; those were the days.
Woman were considered equal to men and eligible to be warriors, priestesses and judges, such as Bridget Bretha. She was a goddess of the Tuatha De Danann, daughter of the chief of the gods. Bridget was the goddess of healers, poets, smiths, childbirth and inspiration. She is not the only example of gender equality. Wives were considered the partners, not the property, of their husbands.
However, not everyone was a fan of Brehon Code. English born Sir John Davies, a member of the House of Commons, arrived in Ireland following the Nine Years War. Also known as Tyrone’s Rebellion, it pitted Hugh O’Neil of Tyrone and Hugh Roe O’Donnell of Tyrconnell against the Tudor advances in Ireland, or, as Jay says, “Tyroneconnell.”
Davies, who eventually would become the Attorney General of Ireland, regarded the Brehon Code as antithetical to social and economic progress in Ireland. He considered it “soft.” He wrote, “For whereas by the just and honorable law of England, and by the laws of all other well-governed kingdoms and commonwealths, murder, manslaughter, rape, robbery and theft are punished by death, by the Irish custom, or Brehon Code, the highest of these offenses was punished only by fine, which they call erick.” Davies died of apoplexy after a dinner party in 1626.
The Brehon Code had been technically outlawed some 300 years earlier by the English invaders of Ireland. The English believed it did not deserve to be called law but rather an example of bad custom.
To obey it henceforward would be considered treason. As you can deduce, the Irish did not fear to be called treasonous by the English invaders. It was a criminal offense to be found in possession of a document written in the Irish language. The Irish concocted all sorts of devices to conceal these Irish language documents. The vast majority were discovered by the English soldiers and burnt or destroyed.
The Statute of Kilkenny
The English installed the Statute of Kilkenny, shockingly written in English, a creation of the Lord Lieutenant of Ireland at the time, Lionel of Antwerp, the 1st Duke of Clarence, the third son of Edward III and Philippa on Hainault. He was born in Antwerp, not Ireland. Chaucer worked for him.
It was passed at a meeting of the Irish Parliament in Kilkenny. The Statute of Kilkenny was largely ignored by the Irish and was primarily a response to English immigrants adopting Irish culture and worldview. The 1st Duke of Clarence returned to England soon thereafter. He died in Italy, reportedly after being poisoned. The Statute of Kilkenny was an initial indicator that the Brehon Code would be replaced by British common law.
It was the Brehon Code that established the importance of social connections, including the importance of the relationship between a chief and his tenants and the church and its parishioners. As the American legal system was reformed in the 1830s, we again see the importance of social relationship. Another chapter in the history of the Irish and the law.
*Francis McGarry holds undergraduate degrees from Indiana University in Anthropology, Education and History and a Masters in Social Science from the University of Chicago. He is an assistant principal and history teacher. Francis is a past president of the Irish American Club East Side. He is the founder and past president of the Bluestone Division of the Ancient Order of Hibernians.