| The Brehon Laws Part One |
| 1. The Brehons Law formed a most important factor both in public and private life in ancient Ireland. The native legal system, as briefly outlined in this chapter, existed in its fullness before the ninth century. It was somewhat disturbed by the Danish and Anglo-Norman invasions, and still more by the English settlement; but it continued in use till finally abolished in the beginning of the seventeenth century. In this short chapter I merely attempt a popular sketch of the main features of the Brehon laws, devoid of technical legal terms. In Ireland a judge was called a brehon, whence the native Irish law is commonly known as the "Brehon Law": but its proper designation is Fénechas, i.e. the law of the Féine or Féne, or free land-tillers. The brehons had absolutely in their hands the interpretation of the laws and the application of them to individual cases. They were therefore a very influential class of men and those attached to chiefs had free lands for their maintenance, which, like the profession itself, remained in the same family for generations. Those not so attached lived simply on the fees of their profession, and many eminent brehons became wealthy. The legal rules, as set forth in the Law Books, were commonly very complicated and mixed up with a variety of' technical terms; and many forms had to be gone through and many circumstances taken into account, all legally essential: so that no outsider could hope to master their intricacies. The brehon had to be very careful; for he was himself liable for damages, besides forfeiting his fee, if he delivered a false or unjust judgement. To become a brehon a person had to go through a regular, well-defined course of study and training. It would appear that the same course qualified for any branch of the legal profession, and that once a man had mastered the course he set up as a brehon or judge proper, a consulting lawyer, an advocate, or a law-agent. In very early times the brehon was regarded as a mysterious, half-inspired person, and a divine power kept watch over his pronouncements to punish him for unjust judgements : "When the brehons deviated from the truth, there appeared blotches upon their cheeks." The great brehon, Morann, son of Carbery Kinncat (king of Ireland in the first century), wore a sín [sheen] or collar round his neck, which tightened when he delivered a false judgement, and expanded again when he delivered the true one. All this agrees with the whole tenor of Irish literature, whether legendary, legal, or historical, which shows the great respect the Irish entertained for justice pure and simple according to law, and their horror of unjust decisions. It was the same at the most ancient period as it was in the beginning of the seventeenth century, when Sir John Davies -an Englishman- the Irish attorney-general of James I., testified :-"For there is no nation of people under the sunne that doth love equall and indifferent [i.e. impartial] justice better then 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." But later on the Penal Laws changed all that, and turned the Irish natural love of justice into hatred and distrust of law, which in many ways continues to manifest itself to this day. 2. The Senchus Mor and other Books of Law The brehons had collections of laws in volumes or tracts, all in the Irish language, by which they regulated their judgements, and which those of them who kept law-schools expounded to their scholars ; each tract treating of one subject or one group of subjects. Many of these have been preserved, and of late years the most important have been published, with translations, forming five printed volumes (with a sixth consisting of a valuable Glossary to the preceding five). Of the tracts contained in these volumes, the two largest and most important are the Senchus Mór [Shanahus More] and the Book of Acaill [Ack'ill]. In the ancient Introduction to the Senchus Mor the following account is given of its original compilation. In the year 438 A.D. a collection of the pagan laws was made at the request of St. Patrick; and Laegaire [Laery] King of Ireland, appointed a committee of nine learned and eminent persons, including himself and St. Patrick, to revise them. At the end of three years these nine produced a new code, from which everything that clashed with the Christian doctrine had been carefully excluded. This was the Senchus Mór. The very book left by St. Patrick and the others has been long lost. Successive copies were made from time to time with commentaries and explanations appended, till the manuscripts we now possess were produced. The existing manuscript copies of the Senchus Mór consist The original text, written in a large hand with wide spaces between the lines 1. An introduction to the text: 2. Commentaries on the text, in a smal1er hand 3. Glosses or explanations on words and phrases of the text, in a hand still smaller: commentaries and, glosses commonly written in the spaces between the lines of text, but often on the margins. Of these the text, as might be expected, is the most ancient. |
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| The laws were written in the oldest dialect of the Irish language, called Bérla Féini [Bairla-faina] which even at the time was so difficult that persons about to become brehons had to be specially instructed in it. Even the authors of the Commentaries and Glosses who wrote hundreds of years ago, and were themselves learned brehons, were often quite at fault in their attempts to explain the archaic text: and their words show that they were fully conscious of the difficulty. It will then be readily understood that the task of translating these laws was a very difficult one, rendered all the more so by the number of technical terms and phrases, many of which are to this day obscure, as well as by the peculiar style, which is very elliptical and abrupt-often incomplete sentences, or mere catch-words of rules not written down in full, but held in memory by the experts of the time. Another circumstance that greatly adds to the difficulty of deciphering these mss. is the confused way in which the Commentaries and glosses are written in, mainly with the object of economising the expensive vellum. The explanatory note under fig. 31 will give some idea of this. The two great Irish scholars-O'Donovan and O'Curry-who translated the laws included in the five printed volumes, were able to do so only after a life-long study ; and in numerous instances were, to the last, not quite sure of the meaning. As they had to retain the legal terms and the elliptical style, even the translation is hard enough to understand, and is often unintelligible. It is, moreover, imperfect for another reason: it was only a preliminary and provisional translation, containing many imperfections and errors, to be afterwards corrected ; but the translators did not live to revise it, and it was printed as they left it. 3. Suitability of the Brehon Laws The Brehon Code forms a great body of civil, military, and criminal law. It regulates the various ranks of society, from the king down to the slave, and enumerates their several rights and privileges. There are minute rules for the management of property, for the several industries - building, brewing, mills, water-courses, fishing-weirs, bees and honey - for distress or seizure of goods, for tithes, trespass, and evidence. The relations of landlord and tenant, the fees of professional men - doctors, judges, teachers, builders, artificers, - the mutual duties of father and son, of foster-parents and foster-children, of master and servant, are all carefully regulated. In that portion corresponding to what is now known as criminal law, the various offences are minutely distinguished - murder, manslaughter, assaults, wounding, thefts, and all sorts of wilful damage ; and accidental injuries from flails, sledgehammers, machines, and weapons of all kinds ; and the amount of compensation is laid down in detail for almost every possible variety of injury. The Brehon Law was vehemently condemned by English writers ; and in several acts of parliament it was made treason for the English settlers to use it. But these testimonies are to be received with much reserve as coming from prejudiced and interested parties. We have good reason to believe that the Brehon Law was very well suited to the society in which, and from which, it grew up. This view is confirmed by the well-known fact that when the English settlers living outside the Pale adopted the Irish manners and customs, they all, both high and low, abandoned their own law and adopted the Brehon Code, to which they became quite as much attached as the Irish themselves. 4. Structure of Society Five main Classes of People The lay people were divided into classes, from the king down to the slave, and the Brehon Law took cognisance of all - setting forth their rights, duties, and privileges. The leading, though not the sole, qualification to confer rank was property; the rank being, roughly speaking, in proportion to the amount. Under certain conditions, persons could pass from one class to the next above, always provided their character was unimpeachable. There were five main classes of people - Kings of several grades, from the king of the tuath or cantred up to the king of Ireland: 1. Nobles, which class indeed included kings: 2. Non-noble Freemen with property: 3. Non-noble Freemen without property, or with some, but not sufficient to place them among the class next above : 4. The non-free clauses. 5. The first three - Kings, Nobles, non-noble Freemen with property-were the privileged classes ; a person belonging to these was an aire [arra] or chief. Kings have been treated of in chapter ii. Flaiths or Nobles The Nobles were those who had land as their own property, for which they did not pay rent : they were the owners of the soil - the aristocracy. An aire of this class was called a Flaith [flah], i.e. a noble, a chief, a prince. There were several ranks of nobles, the rank depending chiefly on the amount of landed property. Non-noble Freemen with Property A person belonging to the other class of aire - a non-noble rent-paying freeman with property (No.3, above) - had no land of his own, his property consisting of cattle and other movable goods; hence he was called a Bó-aire, i.e. a ' cow-chief' (bó, 'a cow'). He should rent a certain amount of land, and possess a certain amount of property in cattle and other goods, to entitle him to rank as an aire. As in the case of the nobles, there were several classes of bo-aires, ranking according to their property. If a person belonging to the highest class of bo-aires could prove that he had twice as much property as was required for the lowest rank of noble, and complied with certain other conditions and formalities, and also provided his father and grandfather had been aires who owned land, he was himself entitled to take rank as a noble of the lowest rank. The three preceding main classes-kings, nobles, and bo-aires - were all aires, chiefs, or privileged people : the first two being flaiths or noble aires, the third, non-noble aires, i.e. free tenants, with property sufficient to entitle them to the position of aire. All three had some part in the government of the country and in the administration of the law, as kings, tanists, nobles, military chiefs, magistrates, and persons otherwise in authority; and they commonly wore a flesc or bracelet on the arm as a mark of their dignity. Non-noble Freemen without Property The next class - the fourth - the freemen with little or with no property, were céiles [kailas] or free tenants. They differed from the bo-aires only in not being rich enough to rank as aires or chiefs ; for the bo-aires were themselves céiles or rent-payers; and accordingly a man of the fourth class could become a bo-aire if he accumulated property enough: the amount being laid down in the Brehon Law. These céiles or tenants, or free rent-payers - corresponding with the old English ceorls - or churls- formed the great body of the farming class. They were called aithech [ah'-egh], i.e. 'plebeian,' 'farmer,' 'peasant,' -to distinguish them from the aires or chieftain grades: and the term féine or féne [faine], which means much the same as aitech, was also applied to them. The land held by the féine or free tenants was either a part of the tribe-land, or was the private property of some flaith or noble, from whom they rented it. Everywhere in the literature, especially in the laws, the féine or free farming classes are spoken of as a most important part of the community - as the foundation of society, and as the ultimate source of law and authority. Tradesmen formed another very important class of freemen. The greater number belonged to the fourth class - freemen without property. Some crafts were ‘noble' or privileged, of which the members enjoyed advantages and privileges beyond those of other trades: and some high-class craftsmen belonged to the class aire or chief. The Non-free Classes So far we have treated of freemen, that is those who enjoyed all the rights of the tribe, of which the most important was the right to the use of a portion of the tribe-land and commons We now come to treat of the non-free classes. The term 'non-free' does not necessarily mean that they were slaves. The non-free people were those who had not the full rights of the free people of the tribe. They had no claim to any part of the tribe-land, though they were permitted, under strict conditions, to till little plots for mere subsistence. This was by far the most serious of their disabilities. Their standing varied, some being absolute slaves, some little removed from slavery, and others far above it. That slavery pure and simple existed in Ireland in early times we know from the law-books as well as from history; and that it continued to a comparatively late period is proved by the testimony of Giraldus Cambrensis - twelfth century-who relates that it was a common custom among the English to sell their children and other relatives to the Irish for slaves - Bristol being the great mart for the trade. From this, as well as from our own records, we see that some slaves were imported. But the greater number were native Irish, who, from various causes had lost their liberty and had been reduced to a state of slavery. Groups of Society The people were formed into groups of various sizes, from the family upwards. The Family was the group consisting of the living parents and all their descendants. The Sept was a larger group, descended from common parents long since dead: but this is an imported word, brought into use in comparatively late times. All the members of a sept were nearly related, and in later times bore the same surname. The Clan or house was still larger. Clann means 'children,' and the word therefore implied descent from one ancestor. The word fine [finna] usually meant a group of persons related by blood within certain degrees of consanguinity, all residing in the same neighbourhood; but it was often applied in a much wider sense. The Tribe (tuath) was made up of several septs, clans, or houses, and usually claimed, like the subordinate groups, to be descended from a common ancestor. The adoption of strangers-sometimes individuals, sometimes whole groups - into the family or clan was common; but it required the consent of the fine or circle of near relations - formally given at a court meeting. From all this it will be seen that in every tribe there was much admixture; and the theory of common descent from one ancestor became a fiction, except for the leading families, who kept a careful record of their genealogy. |
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