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.
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 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.
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.
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 -
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.
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.
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.
The next class - the fourth - the freemen with little or with no property, were céiles [kailas] or free tenants. They differed from the bó-aires only in not being rich enough to rank as aires or chiefs ; for the bó-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.
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.
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.
It would appear that originally - in prehistoric times - the land was all common property, belonging to the tribe, not to individuals, and chief and people were liable to be called on to give up their portions for a new distribution. But as time went on, this custom was gradually broken in upon ; and the lands held by some, after long possession, came to be looked upon as private property. As far back as our records go, there was some private ownership in land.
Within historic times the following were the rules of land tenure, as set forth chiefly in the Brehon Laws, and also in some important points by early English writers. The tribe (or aggregate or tribes), under the rule of one king or chief held permanently a definite district of the country. The tribe was divided, as already described, into smaller groups-clans or septs - each of which, being governed by a sub-chief under the chief of the tribe, was a sort of miniature of the whole tribe ; and each clan was permanently settled down on a separate portion of the land, which was considered as their separate property, and which was not interfered with by any other clans or septs of the tribe. The land was held by individuals in some one of five different ways.
The portion of territory occupied by each clan or sept commonly included land held in all the five ways here described. It should be observed that the individuals and families who owned land as private property were comparatively few, and their possessions were not extensive: the great bulk of both people and land fell under the conditions of tenure described under the Fourth and Fifth headings.
Every tribesman had to pay to his chief certain subsidies according to his means. Those who held portion of the tribe-land, and who used the commons-land for grazing or other purposes, paid these subsidies of course; but beyond this they had no rent to pay to any individual for land held or used under headings four and five described above.
The tribesman who placed himself under the protection of a chief, and who held land, whether it was the private property of the lessor or a part of the general tribe-land, was, as already explained, a Céile [cail'eh] or tenant; also called féine and aithech, i.e. a plebeian, farmer, or rent-payer. But a man who takes land must have stock - cows and sheep for the pasture-land, horses or oxen to carry on the work of tillage. A small proportion of the ceiles had stock of their own, but the great majority had not. Where the tenant needed stock it was the custom for the chief to give him as much as he wanted at certain rates of payment. This custom of giving and taking stock on hire was universal in Ireland, and was regulated in great detail by the Brehon Law.
Every tenant and every tradesman had to give his chief a yearly or half-yearly tribute, chiefly food supplies - cows, pigs, corn, bacon, butter, honey, malt for making ale, etc.- the amount chiefly depending on the quantity of land he held and on the amount of stock he hired. Some tenants were obliged to give coinmed [coiney], that is to say, the chief was privileged to go with a retinue, for one or more days to the house of the tenant, who was to lodge and feed them for the time. This was an evil custom, liable to great abuse ; and it was afterwards imitated by the Anglo-Norman chiefs, who called it coyne and livery; which they chiefly levied from their own people, the English settlers. They committed great excesses, and their coyne and livery was far worse than the Irish coinmed, so that it came at last to be forbidden by the English law.
There was a numerous class of very poor unfree tenants called fudirs, who were generally in a very wretched condition. They were tenants at will, having no right in their holdings. A fudir was completely at the mercy of his chief, who might turn him off at any time, and who generally rackrented him so as to leave barely enough for subsistence.
The ancient rights of the tenants, i.e. of the ceiles or freemen, were chiefly three - A right to some portion of the arable or tribe-land, and to the use of the commons: a right to pay no more than a fair rent, which, in the absence of express agreement, was adjusted by the Brehon Law: a right to own a house and homestead, and (with certain equitable exceptions) all unexhausted improvements. Among the freemen who held farm land there was no such thing as eviction from house or farm, for there was a universal conviction that the landlord was not the absolute owner, so that all free tenants had what was equivalent to fixity of tenure. If a man failed to pay the subsidy to his chief, or the rent of land held in any way, or the debt due for stock, it was recovered, like any other debt, by the processes described in next section, never by process of eviction.
In Ireland the land descended in three different ways.
The two customs of Tanistry and Gavelkind formerly prevailed all over Europe, and continued in Russia till a very recent period : and Gavelkind, in a modified form, still exists in Rent. They were abolished and made illegal in Ireland in the reign of James I.; after which land descended to the next heir according to English law.
In very early times, beyond the reach of history, the law of retaliation prevailed, as in most other countries-" an eye for an eye, a tooth for a tooth "-in other words, every man or every family that was injured might take direct revenge on the offender. But this being found inconsistent with the peace and well-being of the community - especially in cases of homicide, which were frequent enough in those days - gradually gave place to the law of compensation, which applied to every form of injury. In Ireland the process was this -The injured party sued the offender in proper form, and, if the latter responded, the case was referred to the local brehon, who decided according to law. The penalty always took the form of a fine to be paid by the offender to the person or family injured, and the brehon's fee was usually paid out of this fine.
If the offender refused to submit the case to the usual tribunal, or if he withheld payment after the case had been decided against him, or if a man refused to pay a just debt of any kind - in any one of these cases the plaintiff or the creditor proceeded by Distress; that is to say, he distrained or seized the cattle or other effects of the defendant. We will suppose the effects to be cattle. There was generally an anad or stay of one or more days on the distress; that is, the plaintiff went through the form of seizing the cattle, but did not remove them. During the stay the cattle remained in the possession of the defendant or debtor, no doubt to give him time to make up his mind as to what course to take, viz. either to pay the debt or to have the case tried before the brehon: but the plaintiff had all the time a claim on them. If the debt was not paid at the end of the lawful stay, the plaintiff, in the presence of certain witnesses, removed the animals and put them in a pound, the expense of feeding and tending being paid out of the value of the cattle. If the debtor persisted in refusing to settle the case, the creditor sold or kept as many of the cattle as paid the debt.
In some cases before distress was resorted to, a curious custom came into play -the plaintiff "fasted on" the defendant It was done in this way. The plaintiff, having served due notice, went to the house of the defendant, and, sitting before the door, remained there without food ; and as long as he remained, the defendant was also obliged to fast. It may be inferred that the debtor generally yielded before the fast was ended, i.e. either paid the debt or gave a pledge that he would settle the case. This fasting process - which exists still in India - was regarded with a sort of superstitious awe ; and it was considered outrageously disgraceful for a defendant not to submit to it. It is pretty evident that the man who refused to abide by the custom, not only incurred personal danger, but lost all character, and was subject to something like what we now call a universal boycott, which in those days no man could bear. He had in fact to fly and become a sort of outlaw.
Homicide or bodily injury of any kind was atoned for by a fine called Eric [errick]. The injured person brought the offender before a brehon, by whom the case was tried and the exact amount of the eric was adjudged. Many modifying circumstances had to be taken into account - the actual injury, the rank of the parties, the intention of the wrong-doer, the provocation, the amount of set-off claims, etc. - so that the settlement called for much legal knowledge, tact, and technical skill on the part of the brehon - quite as much as we expect in a lawyer of the present day.
In case of homicide the family of the victim were entitled to the eric. If the culprit did not pay, or absconded, leaving no property, his fine or family were liable. If he refused to come before a brehon, or if, after trial, the eric fine was not paid by him or his family, then he might be lawfully killed. The eric for bodily injury depended, to some extent, on the "dignity" of the part injured: if it was the forehead, or chin, or any other part of the face, the eric was greater than if the injured part was covered by raiment. Half the eric for homicide was due for the loss of a leg, a hand, an eye, or an ear; but in no case was the collective eric for such injuries to exceed the "body-fine " -i.e. the eric for homicide.
The principle of compensation for murder and for unintentional homicide existed among the Anglo-Saxons, as well as among the ancient Greeks, Franks, and Germans. In the laws of the English king Athelstan, there is laid down a detailed scale of prices to be paid in compensation for killing persons of various ranks or society, from an archbishop or duke down to a churl or farmer; and traces of the custom remained in English law till the early part of the last century.
There was no such thing as a sentence of death passed by a brehon in a court of law, no matter what the crime was: it was always compensation; and the brehon's business was to determine the amount. Capital punishment was known well enough, however, and practised, outside the courts of law. Kings claimed the right to put persons to death for certain crimes. Thus we are told, in the Tripartite Life or St. Patrick, that neither gold nor silver would be accepted from him who lighted a fire before the lighting or the festival fire of Tara, but he should be put to death; and the death-penalty was inflicted on anyone who, at a fair-meeting, killed another or raised a serious quarrel. We have seen that if for any cause homicide was not atoned for by eric, then the criminal's life was forfeit.
Various modes of putting criminals to death were in use in ancient Ireland. Sometimes they were hanged. Sometimes the culprit was drowned by being flung into water, either tied up in a sack or with a heavy stone round his neck.
Where the death penalty was not inflicted for a crime, various other modes of punishment were resorted to, though never as the result of a judicial process before a brehon. Blinding as a punishment was very common, not only in Ireland but among many other nations. A very singular punishment was to send the culprit adrift on the open sea in a boat, without sail, oar, or rudder; as, for instance, in case of homicide, if it was unintentional. A person of this kind cast on shore belonged to the owner of the shore until a cuinal was paid for his release.
Courts for the trial of legal cases, as well as meetings of representative people to settle local affairs, were often held in the open - sometimes on green little hills, and sometimes in buildings. There was a gradation of courts, from the lowest - something like our petty sessions - to the highest, the great national assembly whether at Tara or elsewhere -representing all Ireland. Over each court a member of the chieftain or privileged classes presided : the rank of the president corresponded to the rank of the court; and his legal status, duties, powers, and privileges were very strictly defined. The over-king presided over the National Feis or assembly.
In each court - besides the brehon who sat in judgement - there were one or more professional lawyers, advocates, or pleaders, called, in Cormac 's Glossary, dálaige [dawlee] and dai who conducted the cases for their clients; and the presiding brehon judge had to hear the pleadings for both sides before coming to a decision. Whether the court was held in a building or in the open air, there was a platform of some kind on which the pleader stood while addressing the court.
With regard to evidence, various rules were in force, which may be gathered from detached passages in the laws and general literature. In order to prove home a matter of fact in a court of justice, at least two witnesses were required. If a man gave evidence against his wife, the wife was entitled to give evidence in reply; but a man's daughter would not be heard against him in like circumstances. Any freeman might give evidence against a fudir; but the fudir was not permitted to give evidence in reply. A king's evidence was good against all other people, with the three exceptions mentioned at page 23. The period at which a young man could give legal evidence was when he was seventeen years of age, or when he began to grow a beard.
The Irish delighted in judgements delivered in the form of a sententious maxim, or an apt illustration - some illustration bearing a striking resemblance to the case in question. The jurist who decided a case by the aid of such a parallel was recognised as gifted with great judicial wisdom, and his judgement often passed into a proverb.
Several judgements of this kind are recorded, of which one is given here. When Cormac mac Art, the rightful heir to the throne of Ireland, was a boy, he lived at Tara in disguise; for the throne was held by the usurper Mac Con, so that Cormac dared not reveal his identity. There was at this time living near Tara a female brewy, named Bennaid, whose sheep trespassed on the royal domain, and ate up the queen's valuable crop of glaisín [glasheen] or woadplants for dyeing. The queen instituted proceedings for damages; and the question came up for decision before the king, who, after hearing the evidence, decided that the sheep should be forfeit in payment for the glaisin. "Not so," exclaimed the boy Cormac, who was present, and who could not restrain his judicial instincts: "the cropping of the sheep should be sufficient for the cropping of the glaisin - the wool for the woad - for both will grow again." "That is a true judgement," exclaimed all : " and he who has pronounced it is surely the son of a king "-for kings were supposed to possess a kind of inspiration in giving their decisions. And so they discovered who Cormac was, and in a short time placed him on the throne, after deposing the usurper.The above is Chapter IV, an exerpt from "A (much) Smaller Social History of Ancient Ireland" by P.W. Joyce. Full text at Tir Na Nog.