THE BREHON LAWS

For four hundred years, all attempts to plant the feudal system in Ireland, went down before the Brehon Laws. The land system in Ireland was the chief evil in the eyes of the invader. The kings or chiefs in Ireland did not own the land and could not sell the clan-lands or eject free owners. This hindered confiscation and the Irish laws were declared barbarous. During the reign of Elizabeth in the sixteenth century the two civilisations stood face to face. One was represented by feudalism, where everything belonged to the monarch; and the other by the Brehon Laws.

Feudalism would reach as far as treachery and the English sword could carry it. To this end the Irish laws were prohibited.

Dr Sigerson says of the early Brehon Laws, ‘I assert, that, speaking biologically, such laws could not emanate from any race whose brains have not been subject to the quickening influence of education for many generations’.

The Irish Brehon Law Code goes back to a much earlier epoch than the days of St Patrick. Its interpreters were deeply esteemed by the Irish people because of their even-handed justice. There is not a single instance in recorded history of a Brehon (a Gaelic judge) accepting a bribe, or being deflected from the delivery of justice through personal bias or family interests. The attention of Gaelic law to the minutest detail of the rights of property has won praise from its bitterest foes.

English officials exhausted the vocabulary of abuse in condemnation of the Brehon Laws. Yet they were amazed how cheerfully, how uprightly the Irish obeyed its decisions. Even one of their detractors Sir John Davies, paid this tribute: ‘There is no people under the sun that doth love equal and indifferent (impartial) justice better than the Irish, or will rest better satisfied with the execution thereof, although it be against themselves’. The Briton, Chief Baron Finglas, has left the valuable testimony that his countrymen, who were loudest in gibing at the Irish law, did not obey their own laws. ‘Yet divers Irishmen doth observe and keep such laws which they make upon hills in their own country, firm and stable, without breaking them for any fear or favour’.

Payne, another English official gives this judgment; Gaelic government was ‘done with such wisdom, equity, and justice as to be worthy of all praise.’ ‘For I myself’, he continues, ‘have seen in several places within their jurisdiction well nearly twenty cases decided at one sitting, with such impartiality that for the most part both plaintiff and defendant hath departed contented’. This balanced justice displeases those of his countrymen who ‘lived by blood’, hence ‘they utterly disliked this or any other good things that the poor Irishman doth’. ‘The Irish keep their promise faithfully and are more desirous of peace than the English; nothing is more pleasing to them than good justice.’ ‘From each according to their ability and to each according to their need’ is a principle of fairness which is widely accepted by Irish people.

The Irish Brehons were men of deep learning, of wide influence and of riches. In the Annals we read of many of them being professors of new and old laws, civil and canon law.

It will be informative to take a glimpse at those marvelous old Irish laws that throw a flood of light upon both the intellectual and the social conditions of early Ireland. It has proved amazing to modern scholars in other countries to find such a great, and such a just and beautiful judicial structure reared up, in the dim centuries of antiquity, in one little island seated on the waters of a wide ocean, far off the rim of the world.

Of the great body of ancient Irish law still existing, five large volumes have been printed — the principal part of these being the Senchus Mór — which St Patrick is credited with codifying. When we reflect that these five volumes are but a small portion of what came down to the present century, and that what came to the twentieth-first century was necessarily but a small fraction of the ancient Irish ordinances, we get some impression of the vastness of the law literature of ancient Ireland. When it is stated that in the ancient glosses upon the Senchus Mór there are citations made from no less than fourteen different books of civil law; and that Cormac in his later Glossary (about the tenth century) quotes from five law books only one of which is among the fourteen of the Senchus glosses, that gives us some idea of the multitude of law books that must have existed prior to the tenth century in which the scholar Cormac wrote.

It is not surprising, then, to learn that these laws covered almost every relationship, and every fine shade of relationship, both social and moral.

The ancient Irish laws are now popularly called the Brehon Laws — from the Irish term Brehon which was applied to the official lawgiver. The Brehon was not a judge but rather a legal expert who devoted himself or herself to arbitration. For this the judge was paid a fee by the client — in the case of an award, the fee was about one-twelfth of the amount awarded. In studying for the profession the Brehon had not only to become master of the legal records, and of the very complicated legal rules, but also become a genealogist and historian.

It is curious that even at that time in primitive obscurity — for the purpose of shutting out the laity from the legal profession, and moreover for impressing them with their dazzling erudition — the lawyers wrapped the law in phraseology so obsolete that none but the initiated could understand the legal language. And despite a great reform by an angry King Connor MacNessa around the beginning of the Christian era, we find lawyers a couple of centuries later again indulging their vanity and their exclusiveness, concealing their legal wisdom under obsolete verbiage.

The Brehon law remained the law of three-quarters of Ireland — the area beyond the Pale — for several centuries after the coming of the English, and was adopted by the English settlers themselves, to the exclusion of the Anglo-Norman code. It went out of existence as living law about the sixteenth century.

Of the many collections of ancient Irish laws, the most famous known to scholars are: first, the Meill Brethra, or Mild Judgments, which had to do with regulations for juvenile sports; second, the Cain Fuirthime, a body of Munster laws in twelve books, compiled for King Finghin, who died 694, which like the Meill Brethra has been lost; third, the Crith Gablach (which the historian O’Curry thinks was part of the Cain Fuirthime), which is still preserved; fourth, the book of Acaill (third century) still preserved: and fifth, the Senchus Mór, still preserved.

The Senchus Mór is the most monumental and remarkable record of ancient Irish law. In contrast to the book of Acaill (which is chiefly a record of criminal law and laws relating to personal injuries), it deals entirely with civil law.

The laws in the Senchus Mór, like all the old Brehon Laws, were rarely legislative enactments. Some few undoubtedly were, but most of them were laws of user, which obtained their force from public opinion. Although O’Curry states repeatedly that the state enforced the Brehon’s decision, there is reason to believe that the executive power was that greatest of all powers, especially in Ireland: the moral power of public opinion.

As a sample of judicial procedure in civil law, the following example is the course taken for the recovery of a debt. A summons was first served upon the debtor, in which were entered the details of the claim, and demand for payment made according to law. A certain number of days of grace were then allowed, after which, if the debt was not paid, a gabail (distress) was laid upon some portion of the debtor’s property — usually against livestock. For this purpose the creditor took a law agent and seven witnesses, and attached but did not then carry off the seized goods. There was a stay of a day or days — to give the debtor a second chance of paying. If the debt was not paid within the stay, the goods were lifted — the cattle driven off and placed in a pound. A notice was then served, informing the debtor where the cattle were impounded. Then followed another stay, to give the debtor yet another chance to redeem the property. If the debtor had not yet redeemed the property, the next stage began. Instead of selling all the property in immediate and complete satisfaction of the debt, it was sold in portions — out of still further regard for, and mercy towards the debtor.

But if, when the creditor with his or her agent and witnesses first went to distrain, the debtor denied the claim, and demanded trial of the case — or if there was agreement to pay after the expiration of a certain time — a stay of execution was granted on giving pledge, or giving bail. If, then, the debtor did not fulfil the terms of the stay of execution, the pledge, or the bail, was forfeited, and the levying of the distress proceeded. Sometimes the debtor gave a son or perhaps a daughter in pledge. In this case the service of the son or daughter was forfeited, if the conditions were not fulfilled — the son became the bondsman of the creditor until the debt was worked off. In the case of bail, the bailsman became the creditor’s bondsman in the same way, if he could not meet the liabilities of the person he had bailed.

In the old Irish laws, the sword of justice had two edges sharpened for punishing people of rank. Of those to whom much was given, much was expected. If a noble was guilty of a crime, he or she had to pay the ordinary penalty plus a log-enach, or honour price, graduated in the scale according to rank. The higher the rank the higher was the honour price that had to be added to the ordinary penalty.

The Senchus Mór also established that half a noble’s honour price was lost the first time he or she was found guilty of false judgement, false witness, fraudulent security, false information, false character giving, bad stories, lying, criminal wounding, betrayal, or refusal of food. After the first offence the penalties were more severe.

The democracy of these old laws was shown in dozens of other ways. The king carrying building material to his castle had the same and only the same claim for right-of-way as the miller carting material to build his mill. The poorest man in the land could compel payment of debt from a noble — could levy a distress upon the king himself. The person who stole the needle (a valued possession) of a poor embroidery woman (who as a result may be without a profession) was compelled to pay a far higher price than the person who stole the Queen’s needle.

It is easy to see why the British were to despise these laws when we further note that one of the seven deeds forbidden by law was for a poor man to give service or rent to a noble who demanded an excess of either; and the noble was castigated for making the unjust demand. Even the king himself was bound by law to do justice to his meanest subject: for the law points out that while he has rights he has duties also. ‘The king must not exact his rights’, says the law, ‘by falsehood, nor by force, nor by despotic might. His fostering care must be perfect to all, both weak and strong.’ This sacred regard for rigid justice is well exemplified in the judgement given (in the case of the killing of St Patrick charioteer) by Dubtach, in the presence of the King and the court, and of Patrick, when, unlike the degenerate courtiers of later years, he boldly proclaimed:

Let every one die who kills a human being;
Even the king...
Who inflicts red wounds intentionally.

Running through all the laws for all the ranks, impartiality was the prominent characteristic. Always the Irish law expected most from those who received most. The laws bearing upon ecclesiastics again exemplify this. For instance, while there was a certain fine imposed upon laymen for neglecting to honour a summons to court, an ecclesiastic was fined double for the same offence. And, whereas for certain offences lay people of rank were deprived of half their honour-price the first time, and all their honour-price the third time, clerics for the very first offence were condemned not only to lose all their honour-price, but likewise be degraded. Pursuing stern justice still farther — while ordinary clerics could, by doing penance and suffering punishment, win back their grade, he of higher rank, the Bishop for example, not only lost his honour-price and was degraded for the first offence, but could never again regain his position.

The Brehons who framed the laws showed no leniency towards their own order either. ‘Every judge’, says the book of Acaill, ‘is punishable for his neglect. He has to pay a fine for his false judgement.’ Another law, too, ordered that for false judgement he should be degraded.

The old law’s fairness is shown again in the stipulation that every alien who came into the country to pursue a suit at law against a native was entitled to the free choice of the Brehons of Eireann.

The thoughtful wisdom of the ancient lawmakers is everywhere exemplified. There were laws prescribed for the care of the poor, the aged and the sick — with detailed instructions in each case. For the sick the doctor was bound to provide plentiful ventilation. Fresh water must flow through the hospital. For neglect, or blunder, or mismanagement of an operation, the doctor was fined. If the doctor failed, through ignorance, to effect a cure no fee could be claimed.

Details are given of what must be provided for the dependant aged person: details of the house, the furnishings of the house, the supplies necessary, details of the old person’s care — as for instance how often he or she must be bathed, how often they should have their heads washed, and so on.

O’Curry, gives a highly interesting enumeration of the various kinds of law that are embodied in this marvelous record — the Senchus Mór. This is a list that will surprise those who knew nothing of the subject of ancient Irish law.

The laws defining all the different species of Bargains, Contracts, and Engagements between people.

The laws respecting Property entrusted or given in charge from one person to another; and the liability of the person trusted, in the case of loss or damage, whether by accident or design.

The law respecting Gifts and Presents, and respecting Alms and Endowments.

The laws as to Waifs and Strays, Derelictions, and the Abandonment and Resumption of Property.

The laws of Loans, Pledges, Accommodations, and Securities.

The laws of Prescription, or Lapse, and of the Recovery of Possession of Property.

The laws concerning the relation of Father and Son, and the legal and illegal contracts of the son connected therewith.

The laws concerning illegitimate Children; as to Affiliations, and the Adoption of children.

Laws minutely regulating the fees of Doctors, Judges, Lawyers, and Teachers and all other professional persons.

A series of laws concerning the varied species of industry: such as Weaving, Spinning, Sewing, Building, Brewing, etc.; concerning Mills and Weirs; concerning Fishing, Beekeeping, Poultry, etc.

Laws regarding injuries to Cattle by neglect, by overdriving, etc.

Laws concerning Fosterage, and the relative duties of Parents and Children, Foster-Fathers and Foster-Mothers, including the training, food, clothing, etc., of all foster-children.

A very complicated, yet clearly defined series of laws for Landlord and Tenant, and Master and Servant; explaining the different species of lords and masters, of tenants and servants; and the origin and termination of Tenancy and Service.

Laws concerning Trespass and Damage to land, whether by man or beast.

A series of laws concerning Co-occupancy of Land, and concerning the dividing, hedging, fencing, paling, ditching and walling, and the ploughing and stocking of land.

Laws of Evidence; of Corroborative Testimony; and of Compurgation.

The law of Distress and Caption; including most details, which appear to embrace almost every possible point that could be made concerning the legality or illegality of a Distress or Seizure.

Laws concerning the regulation of Churches and the tenants of Church lands, and concerning the relationship of the church with the state or nation.

In Criminal Law; laws concerning Manslaughter and Murder, distinguishing accurately between principals and accessories before and after the fact.

Laws concerning Thefts, and the receiving and recovery of stolen property, in the greatest possible detail.

Laws concerning the infliction of Wounds and the shedding of Blood, and concerning the commission of violence by insane as well as sane persons.

And even Laws concerning Accidental Injuries, as from sledge hammers, flails, hatchets, and other implements connected with labour.

After perusing this wonderful list of only a small portion of the collected laws of ancient Ireland, of pre-Christian and Christian times, it is easy to guess at the early Irish civilisation that called forth these laws — and which evolved a highly trained body of lawgivers.

It is easy, too, to see why these Laws would not appeal to the British kings, land-grabbers, and feudal lords. The salient characteristics running through all the ordinances were impartiality, equality of justice for all ranks, and the protection of the poor, the downtrodden, the homeless, the sick and the aged.