The Irish Penal Laws

Peer Critique

Traditional Irish law was originally not compiled in a single work. Rather, it was passed orally from generation to generation and taught by the Druidic class and was written in various literature and judgements. It was not until the time of St. Patrick that the law was truly written as a single document (c. 438-441 A.D.). This codification of Irish law became known as the Brehon Laws, though this name is "not their real name. Irish Laws , or Gaelic Laws, would be a better name for English speakers to use; but the thing meant has always been known to Gaelic speakers as Feineachus"(Ginnell 3). Only four copies, in various degrees of completeness, exist today. Each of these copies was changed little from the original. Most of the changes made were substitutions of words as the language changed. Essentially, the Brehon laws existed unchanged for eight centuries. Though St. Patrick suggested and oversaw the compilation of the law, these laws

were not written in a foreign tongue. No foreign mind conceived them. No foreign hand enforced them. They were made by those who, one would think, ought to make them: the Irish. (Ginnell 6)

The largest portion of the laws set down by the Brehon Law Commission is that portion known as the Senchus Mó¢r(pronounced Shankus mor), which was "designed to be a comprehensive and more or less codified embodiment of the laws which were of universal obligation over the whole county before the arrival of St. Patrick" (Ginnell 26). This collection would be better thought of as a collection of "customs" (Ginnell 27) rather than one of statutes or commands. The Senchus M¢r was a collection of "laws already known and observed from time immemorial" (Ginnell 26). The Senchus M¢r did not use an imperious tone to present the law to the people of Erinn. They simply made a statement as to what the law was and then supported this statement based upon the rulings of various wise Brehons. There was no need for those in power to force their subjects to obey the law. The law was followed because the people took pride in doing so. The law had always been followed, it was honorable to do so, and so the people obeyed (Ginnell 27).

In order for the laws to fit into a Christian society there had to be some changes made, for Patrick could not allow pagan laws to govern a Christian society. St. Patrick thought for years about how to accomplish this task. During his time as a missionary and while he was held captive, Patrick studied the laws. He learned the ways in which they conflicted with the teachings of Christianity and how they could impede his efforts. He determined that the laws needed to be amended and that the most permanent way in which to effect any sort of change to the laws was to "have a simultaneous collection and revision of the laws decreed by a great assembly of the nation, and then to take care that the work should be actually performed by men imbued with the Christian spirit" (Ginnell 30). Patrick called together the chiefs and kings of Ireland and held a great assembly. At this gathering he preached and Laehaire (pronounced Leary), the Ard R¡g of Ireland, converted to Christianity "in the presence of every chief in Erinn" (Ginnell 30). This public conversion of the high king had the desired effect on the people of Ireland, for it convinced them that to become Christian was the right thing to do. After the conversion, "every law which prevailed amongst the men of Erinn" (Ginnell 30) was presented to Patrick. Those laws which did not conflict with "the Word of God . . . [or] with the consciences of believers, was confirmed in the laws of the brehons . . . . And this is the Senchus M r" (Ginnell 31). The introduction to the Senchus M r points out on numerous occasions that these laws were pre-existent in Ireland and were not imported. The laws were wholly Irish and this fact is what made them so important to the people of Ireland.

Unfortunately for the people of Ireland, the Dutch, and then the Anglo-Normans (English) moved in. The Dutch interrupted the growth of the Irish legal system and, though they were run out, the system was never able to re-emerge fully. When the English took over part of Ireland, namely Pale, they brought with them their own laws. These laws were not written in Irish, nor were they written in English or Latin. They were written in Norman-French in 1367 during a parliament session held in Kilkenny. These laws labeled the Irish as enemies and they punished "the adoption of their dress, manners, language, and laws" (Ginnell 232). The introduction of these laws was the beginning of a series of events which caused strife in Ireland. It was not intended that these laws be followed to the letter. Rather their purpose was to cause unrest and strife in Ireland. Though this goal was accomplished, these lasw were not the worst of what the English threw at Ireland. Those laws known as the Irish Penal Codes were quite a dreadful set of rules laid down by the English (Protestants) designed to deny any rights to the Irish (Catholics).

The term penal code is not entirely accurate. This set of laws, enacted in 1695, is not merely criminal law as the name would imply. Rather they are laws against Catholics in Ireland. The "aim of the anti-catholic laws was to eradicate the catholic religion in Ireland" (Moody 218). If one were to take the view that all Catholics were considered criminals (under the Penal Code) then criminal law would be an appropriate substitution though there is an obvious paradox here. The penal code can be summed up as

A Protestant King of Ireland; a Protestant Parliament; a Protestant hierarchy; Protestant electors and Government; the Benches of justice, the Army and the Revenue, through all their branches and details, Protestant; and this system supported by a connexion [sic] with the Protestant realm of England. (Reid 24)

I do solemnly and sincerely, in the presence of God, profess . . . that I do believe, that in the sacrament of the lord's supper there is not any transsubstantiation of the elements of bread and wine into the body and blood of Christ . . . and that the invocation or adoration of the virgin Mary, or any other saint, and the sacrifice of the mass , as they are now used in the church of Rome, are superstitious and idolatrous . . . (Moody 219)

By studying the repeal of the Penal Codes, a great deal of insight as to their nature is gained. The greatest change in these codes came about in 1778 when the Catholic relief act allowed Catholics to enter leases for up to 999 years as opposed to the previous 31 years. Catholics were, in 1782, "allowed to become schoolmasters and private tutors, to own horses exceeding the value of œ5, and to acquire land in socage tenure" (Reid 25). With the passage of the relief laws of 1792 and 1793, Catholics were allowed to enter into low levels of legal practice, earn degrees from universities, and become commissioned in the military. However, when a Catholic sought entrance into parliament he was flatly denied. To have such basic rights of citizenship denied must certainly have devastated a people who took such pride in being Irish. The Penal Code succeed in "alienat[ing] a large section of the population against law and government" (Reid 24). Certainly the Irish were no longer proud to obey the law. And why should they when, after "the faith and houour[sic] of the British Crown . . . pledged protection in their lives, liberties, and property, there was not a single right of nature or benefit of society which had not been either totally taken away, or considerably impaired'" (MacManus 460). The British had essentially stripped the Irish people of all things Irish and attempted to replace them with things British.

The "legal mind of British-ruled Ireland" (Reid 143) in the late seventeenth to eighteenth centuries was a twisted one. It was the belief of the government that when there was opposition, or the threat of opposition to the law, the law must be made more restrictive. Groups like the United Irish society were born out of this period of restrictive law. This group began as an overt organization which met openly and members of which signed manifestoes and documents. Their constitution read: We have no national government. We are ruled by Englishmen, and the servants of Englishmen, whose object is the interest of another country, whose instrument is corruption, and whose strength is the weakness of Ireland; and these men have the whole of the power and patronage of the country, as a means to seduce and subdue the honesty of her representatives in the legislature. (Reid 144) These were treasonous statements punishable by law. The laws were no longer written in Irish, by Irishmen, for the people of Ireland. They were no longer enforced by Irishmen. The laws were now imported from Britain and written in a foreign language. The Irish no longer held the belief that it was honorable to obey the law and so they began committing acts which violated the law. Acts which were simply Irish were now treason. It was almost illegal to live if one were a Catholic in Ireland. Life had taken quite a turn for the worse from the country in which law was changed only by the consent of an assembly of the chiefs of the nation to the country in which speaking one's native language was punishable by death.

Ireland's laws, since their earliest days, have undergone quit drastic changes. From an oral tradition which went unchanged for centuries, to a written compilation of these same laws there was very little change. However, as other nations began to move into and conquer the island nation, the changes began. Now things Irish became illegal. Irish people were denied certain rights that had never been denied before. To a people proud of their culture, these new rules were devastating. How could they now take pride in the law when it was no longer theirs? How could they take pride in being Irish when dressing or speaking like an Irishman was a legally punishable offence? Many groups tried to enact reforms in the parliament and other government groups, but there were no reforms for years. It is little wonder that there exists such strife and unrest in parts of Ireland today. The roots of the problem go back centuries to the Irish Penal Codes and perhaps further. Is it too late to try to re-instate a truly Irish government with Irish laws? We may never know.

Reid, John Phillip. In a Defiant Stance The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution, Pennsylvania State University Press: University Park, 1977.

MacManus, Seamus. The Story of the Irish Race, Random House: New York, 1921.

Moody, T. W. and F. X. Martin. The Course of Irish History, Roberts Rinehart: Niwot, Colorado, 1967.