It is to the combined
results of the antiquarian industry of a Welshman, the zealous
enthusiasm of an Englishman, the wise foresight of an Irishman, and
the generous liberality of a Scotsman, that we owe the preservation
to the present day of three of the most important existing
manuscripts of the ancient Brehon Laws, under which Ireland was
governed for upwards of 1200 years. For many years after the English
gained a foothold in Ireland, it was a criminal offence to be found
in possession of a document written in the Irish language. All sorts
of devices were therefore resorted to, for the purpose of concealing
them, but the greater number were discovered, and burned or
destroyed by the English soldiery.
About the year 1700, Edward Lhwyd, the eminent Welsh scholar, made a
tour through Ireland, and he there obtained in various parts of the
country about 20 or 30 old parchment manuscripts, amongst which were
the three precious ones above mentioned. These manuscripts
subsequently became a part of the Chandos collection, and later they
came into the hands of Sir John Seabright, a Scotsman. About the
year 1778, Colonel Vallancey, an Englishman, was sent by the
Government to superintend some works in Cork. He had previously
spent many years in India, and was a distinguished Oriental scholar.
Being struck with the similarity between certain words in Irish and
Hindustani, he began to study the Irish language, in which he soon
became very proficient.
In 1782, he obtained permission from Sir John Seabright to inspect
the manuscripts in his possession, and he subsequently published a
translation of some parts of them. In 1783, he wrote to Edmund
Burke, pointing out the national importance to Ireland of these
manuscripts and the desirability of their restoration to Irish
custody. Burke fortunately prevailed on Sir John Seabright, in
August of that year, to present the manuscripts to the library of
Trinity College, Dublin. There they remained for nearly seventy
years, unnoticed and almost forgotten, except by O'Reilly, who
refers to them in his essay on the “Ancient Institutes of Ireland,"
published in 1824. In 1852, a commission was appointed by the
government to superintend the transcription and translation of these
manuscripts, as well as other ancient Irish manuscripts in the
possession of the Royal Irish Academy, the British Museum and the
Bodleian Library at Oxford. The commissioners employed the eminent
Irish scholars Dr. O’Donovan and Professor O’Curry to do the work.
Both these gentlemen died while engaged on it, and afterwards Dr.
Neilson Hancock, Dr. O’Mahony, Dr. Alexander Richey and Dr. Robert
Atkinson were severally appointed to complete the task. Some idea of
the difficulty of this undertaking may be had when it is known that
the text was in a dialect which had become obsolete centuries
before, and that the best Irish dictionaries then in existence did
not enable one to understand the language, which was in fact
entirely unintelligible to one who knew only the modern Irish. By
dint of laborious study, repeated transcriptions, translations,
comparisons, and revisions, the entire manuscripts were rendered
into English, with the exception of a few technical law words, for
which no adequate translations have yet been found. The result is
embodied in five large volumes, which were printed at the expense of
the government. The first volume was published in 1865, the second
in 1869, the third in 1873, the fourth in 1879, and the fifth and
final volume, together with a glossary, in 1901. These books
contain, on one page the ancient Irish text, with the explanatory
notes and comments of subsequent annotators, in the same language,
and on the opposite page the English translations of text and notes.
They have thus made the whole subject of the ancient Irish laws
accessible to the interested student. The only thing lacking in the
glossary is the pronunciation of the names of persons and places
which occur in the books, as without this, one not familiar with old
Irish names can never be sure of getting them exactly right.
Before discussing the Brehon laws, let us first briefly consider
their origin, the period of their duration and the time and manner
of their abolition. Long before the arrival of St. Patrick in
Ireland in the year 432, and probably before the Christian era, the
Brehon law was in force in that country. So far as known, it had not
been yet reduced to writing, but was rhymed and committed to memory,
and thus handed down from one generation of Brehons to another. The
introduction of Christianity necessitated many modifications, and
these changes were effected by nine men appointed for that purpose
by a special assembly convened by St. Patrick. Three of these were
bishops, including St. Patrick himself, three more were kings,
including Laeghaire the “Ard Righ” or high king, and the remaining
three were Brehons, one of whom was especially skilled in the then
ancient dialect of the country, in which these laws had been
preserved. Their labors extended over the years 438 to 441, and all
the previous Brehon laws were examined and revised. Many were
rejected as obsolete, or as pertaining to Pagan rites, or as
unsuited to the altered conditions of the people. The remainder,
with suitable emendations, were finally embodied into the “Senchus
Mor” or “ Great Book of Irish Law,” which neither bishop, King nor
Brehon ever afterwards attempted to alter. The “Senchus Mor” does
not, however, appear to have entirely covered what would now be
called the criminal law, as that is principally contained in the
“Book of Aicill” mentioned hereafter.
The “Ard Righ” had attached to his court a council of Chief Brehons
or judges, who settled all matters within the central province, and
decided on the obligations of the four provincial kings to the “Ard
Righ,” as well as their mutual obligations to each other. Each
provincial King had also his circle of Brehons, but of lower rank
than those of the “Ard Righ,” to decide all matters within their
respective territories. Finally, each chief had one or more Brehons
attached to his household, to decide the quarrels of his tribe. The
office of Brehon was, by custom, hereditary in certain families, but
a Brehon as such, had no exclusive jurisdiction in any specified
district. His position was much like that of a professional lawyer,
who was consulted by his clients and paid for his opinion. Many
Brehons who attained great fame as arbitrators, acquired wealth in
the exercise of their profession. There were several law schools at
which the younger Brehons were instructed in their business. In the
absence of printed books, and the great scarcity of written ones,
the education naturally was first the committing to memory of the
customs of the locality, and afterwards applying them to imaginary
cases, suggested by the teachers.
The Brehon had no legislative power, and was under no obligation to
improve the law. He had no knowledge of any other system, and could
not therefore see the imperfections in his own. Students were then,
as now, more desirious of acquiring practical information of
immediate value to themselves, than to learn general principles from
which the practical rules were derived. It thus resulted that in the
great body of the Brehon law, there is no exposition of the general
principles of the law, but only a mass of particular rules. The
consequence is that the modern reader often finds himself unable to
obtain any general view of the system, or to grasp the general
principles that are usually taken for granted in the discussions.
The only period during which the laws of the “Senchus Mor” were
acknowledged over the whole of Ireland was from its compilation
until the invasion of Ireland by the Pagan Danes in 792. This was
the golden age of Ireland. After 300 years of fighting, first with
Danes, and afterwards with Normans, the latter, in the end of the
12th century, introduced their feudal system, which finally, in the
17th century, entirely supplanted the Brehon law. There was much
resemblance between the Brehon laws and those of ancient Britain,
and it is in fact claimed on good authority, that King Alfred the
Great borrowed many of his laws from Ireland. These laws were also
transferred to Scotland, but were there early modified by the feudal
system, whereas in Ireland they retained all their native purity,
until they were supplanted by English law.
Though the Anglo-Saxon legislators, by a statute passed in Kilkenny
in 1367, denounced the Brehon law as 41 wicked and damnable,’f yet,
down to the reign of Elizabeth, it continued to be as implicitly
obeyed in Ireland, outside of the English Pale, as it had been in
the fifth century. Even the English settlers outside of the Pale had
adopted the Brehon laws, and great Anglo-Saxon lords in Ireland kept
Brehons in their service like the Irish chiefs. The surrender of
Kinsale and the fall of the Castle of Dunboy in 1602, paved the way
for its final overthrow. In the year 1612, the ninth year of the
reign of James I, the common law of England became the jurisprudence
of the sister island, and the English Judges held their first Assize
circuit throughout the whole of Ireland. There is reason to believe
however, that, before that time, and even before the landing of
Strongbow, the Irish themselves had become sensible of the
deficiencies of their primitive system of legislation to meet the
requirements of the changed condition of affairs. There is certainly
evidence to show that several of the Irish chieftains, from the
reign of Edward III to that of Henry VIII, declared their desire to
be governed by English laws. It was not, however, the desire of
those responsible for the government of Ireland to extend the
protection of these laws to the “Irishrie. ” The reason was obvious,
because to rob a “mere Irishman” was not then theft, and to kill him
was no murder, but merely punishable by a petty fine. It is no
wonder, therefore, that the Irish clung so tenaciously to their
Brehon laws, because they found no protection under the English
substitutes.
With this brief, but necessary, introduction, we will now proceed to
consider the principal features and provisions of the Brehon laws.
The five published volumes already spoken of, contain the “ Senchus
Mor,” the book of Aicill, and certain miscellaneous law tracts. The
first portion of the “Senchus Mor” deals with the law of distress or
seizure without suit, which appears to have been the universal
remedy by which rights were vindicated and wrongs were redressed.
There were no regular courts of law, before which a creditor could
summon an unwilling debtor. The creditor therefore first gave notice
to the debtor of his claim, and if this was not settled, he
proceeded to distrain the cattle of the debtor. The chief wealth of
the country consisted in horses, cattle, sheep and pigs. The law
required that in distraining cattle that were not in a cow ho use, a
stone was to be thrown over them three times before witnesses, to
indicate that they were seized. If satisfaction was not given within
a certain time, or a pledge to proceed to arbitration, the creditor,
accompanied by his law agent and witnesses, removed the cattle so
distrained, and put them in a pound. He then served notice on the
debtor, and the distrained cattle became forfeited gradually, so
much a day, to the creditor, until the debt and costs were paid. If
it was found that enough had not been seized, a second seizure was
made and the same process gone through. The debtor could, by giving
a sufficient pledge that he would have the dispute legally tried,
obtain his cattle back. If he afterwards refused to carry out his
promise, the pledge was forfeited for the debt. This procedure
applied to a dispute between men of the same grade, but where the
debtor was a person of chieftain grade, it was necessary, before
making the distress, not only to serve the notice, but also to “fast
on him,” as it was called. This remarkable process points very
strongly to the Hindu origin of the Brehon laws, where, as pointed
out by Sir Henry Maine in his “Early Institution^,” a similar
practice called “sitting dharna,” existed until recently, when it
was prohibited by the government. It consisted in the creditor
sitting at the door of the debtor, and abstaining from food until he
consented to refer the dispute to a Brehon. The spectacle of a
hungry and clamorous creditor (who, though he was not allowed to
eat, was allowed to talk) sitting at a chieftain’s door and
proclaiming his wrongs to the passerby, would be such a disgrace,
that it would soon wring the necessary consent from the debtor to
have the claim adjudicated upon. It is solemnly declared in the
“Senchus Mor” that “He who does not give a pledge to fasting is an
evader of all,” and that “the judgment on him is that he pay double
the thing for which he was fasted upon.” When the consent was
obtained, the parties would thereupon proceed to a Brehon, who,
after hearing the evidence, would give judgment according to the
merits of the case, and the unsuccessful party would be ordered to
bear the costs.
Specific and detailed provisions were made as to the different kinds
of distress, the modes of taking and of keeping them, the limi*
tations as to taking a distress and the cases of exemption from
distress. The property distrained was to be brought into a strong
place for safe-keeping, and the law gave minute directions as to the
penalty in case of any accident happening to the cattle while under
seizure. Strict provisions existed for punishing every illegal act
in connection with a distress, whether committed through ignorance,
difficulty or carelessness. Appropriate fines were appointed for the
different acts of illegality, and the expense of feeding and tending
the cattle when impounded, were to be paid out of the proceeds of
the goods seized. A stranger or a landless man could not act as a
law agent, and there were also restrictions as to the selection of
advocates.
A debtor who had no property to be seized, could be arrested after
one day’s notice, unless he gave security that he would remain and
have his case tried, and that he would pay the debt, if adjudged to
do so. If he tried to escape, he might be arrested anywhere outside
of the territory where he resided, and if he had no residence, he
might be arrested anywhere. Kings and bishops were the only persons
exempt from distress.
Growing out of this system of procedure arose the law of hostage
sureties, caused by the division of Ireland into a number of
distinct provincial kingdoms and sub-kingdoms. The former
corresponded practically with the four provinces as they exist
today, and the sub-kingdoms were somewhat similar to the modern
baronies. When the plaintiff belonged to one of the sub-kingdoms and
the defendant to another, a different system of sureties had to be
adopted. The hostage surety of the defendant was one from whom a
plaintiff was bound to accept pledges, and whom he might sue if the
defendant absconded.
One of the principal features of Irish society was the prevalence of
fosterage, that is, placing the children in the charge of other
members of the tribe during their early years. Fosterage was either
“for affection,” in which case the foster parents received no
remuneration, or “for payment,” in which the terms are regulated
according to the rank of the contracting parties. The kind of food,
clothing and education to be supplied to the different ranks of
foster children were all minutely regulated by law. The period of
fosterage terminated when the young people arrived at a marriageable
age, which was fourteen for girls, and seventeen for boys. The
foster father was liable for all wrongs committed by his foster
children and for any injuries which they sustained while under his
charge. On the other hand, the children were obliged to support
their foster father in his old age, in case his own children were
dead or unable to support him. Naturally, however, less was expected
from girls than from boys in this respect. This law of fosterage was
also prevalent among the Anglo Saxons, the Welsh and the
Scandinavians.
As regards land tenure, the most important characteristic was that
each occupier of land belonged to a tribe, and was liable, in common
with the other members, to certain tribal obligations, and he was
bound to offer his interest in it for sale to a member of the tribe
before selling it to an outsider. The chieftainship of the tribe was
an office like that of a president of a republic, and not like that
of a hereditary monarch. The chief’s claim for rent was not for the
use of the land, as in England, but for stock supplied by him to the
occupiers of the land. This system is said to have originated in the
states and colonies of ancient Rome, to have been common in France
till the time of the revolution in 1789, and to still continue in
the north of Italy. The Norman chiefs who had been familiar with
this tenure in France, readily adopted it upon their settling in
Ireland, notwithstanding the stringent English laws against it. The
rent was paid by doing manual labor or rendering military service.
The law contained very careful provisions for guarding against
arbitrary termination, by either the chief or the tenant, of this
tenure, when it was once entered into, and each party was protected
against the wilful neglect of the other. When the English law was
finally established in Ireland, the tenants were deprived of their
joint ownership of the land, and to this is mainly attributable all
the subsequent trouble and misery over the land question in Ireland,
which has continued even to our own day.
The question of social connections formed an important part of the
law. The connections mentioned are eight in number, the two most
important of which are those between a chief and his tenants and
those between the Church and her tenants. The duty of the Church
towards the tenants of its lands was described as “preaching and
offering and requiem for souls, and the receiving of every son for
instruction.” From the tenants were due tithes, first fruits and
alms. The other matters dealt with under this head are the relations
between different members of the family.
The remaining part of the “Senchus Mor” is known as “The Corus
Bescna,” and relates to contracts and obligations. These are divided
into, 1st, those created by the actual agreement of the parties; and
2nd, those which arose from the social position of the parties,
independent of any actual agreement. Under the first head are
treated such things as the sale and purchase of goods and chattels,
and under the second, the reciprocal rights of the chief and the
tribe, and the Church and the people. The latter regulations were
practically new, having been rendered necessary by the introduction
of Christianity, and were therefore known as “the law of the
letter,” on account of their having been first promulgated at the
same time as writing was introduced into the country. In addition to
tithes and first fruits already mentioned, the Church was also
entitled by this law to “firstlings,” that is every first male
animal, but it is very doubtful whether these rights were ever
insisted upon. These rules had no connection with ordinary canon
law, but were local regulations between the National Church and its
members. In other countries the early missionaries introduced
Christianity and Roman Law at the same time, but in Ireland, the
organization of the Church appears to have been developed more
according to local ideas.
Having now completed our brief review of the “Senchus Mor,” we shall
turn our attention to the Book of Aicill. This book, which is
contained in the third volume, deals with the criminal law, and
professes to be a compilation of the opinions of King Cormac Mac
Art, who reigned in Ireland about 200 years before the time of St.
Patrick, and whose opinions were revised and brought into their
present form by Cennfaeladth the Learned, about the year 650. It may
be well to preface our remarks on this ancient criminal code by
explaining that no distinction was made between what are now known
as torts or private wrongs on the one hand, and crimes or public
wrongs on the other. The King or his ministers did not undertake to
punish any criminal act, even murder, but left it to the person
injured, or his family or tribe, to exact compensation in the same
way as for an ordinary act of trespass. If satisfaction was not duly
given, the offender was compelled to arbitrate before a Brehon, in
much the same way as for an ordinary debt. If he refused or was
unable to pay the amount awarded, his kinsmen were obliged to do so,
or to deliver him up to the aggrieved parties, who were entitled to
wreak their vengeance on him, even to the extent of putting him to
death. If he abandoned his tribe, he became an outlaw, and might be
killed by those who were aggrieved. The amount of payment to be made
necessarily varied according to the rank of the injured person and
his family, and the nature and extent of the injury. This involved a
very complicated system of pecuniary compensation, every detail of
which was provided for in the work under consideration. The great
body of the work consists of statements of the mode in which wrongs
were to be described, and forms or precedents to be followed in
calculating the damages to be awarded. Where the wrong was the act
of more than one person, or was committed against more than one, the
apportionment of the amounts to be paid and received was still more
complicated. There being no metallic currency then in Ireland, the
fine was calculated in “cumhals,” which were the conventional units
of value, a “cumhal” being equivalent to the value of three cows.
Where the damages exceeded three “cumhals, ” the payment was to be
made in three species of goods, viz., one-third in cows, one-third
in horses, and one-third in silver. Ordinarily, the amount of the
fine in cases of murder was double that in ordinary cases of
manslaughter. An important element in the calculation of the amount
of damages was the intention of the wrongdoer, both as to the person
whom he intended to injure, and the nature of the injury he intended
to inflict. In the case of injuries inflicted on the person, it was
attempted to schedule all possible hurts at different amounts. The
laws of Athelbright, the Saxon King of Kent, who was baptized by St.
Augustine, were on the same principle, and contain no less than
sixty-seven different items of the sums to be paid for different
injuries. Similar provisions existed in the laws of the other Saxon
Kingdoms. Alfred the Great was the first English King to enact laws
for the punishment of murder by death. It is evident from the
introduction to the “Senchus Mor,” that St. Patrick, prior to the
compilation of that great work, endeavored to introduce a similar
law into Ireland, as he actually obtained the passing of a sentence
of death on the murderer of his charioteer, but it is also evident
that this form of punishment was not agreeable to the people and was
not afterwards insisted upon.
The punishment of wrongs resulting from negligence, as distinguished
from wilful wrongs, is treated of under what are called
“exemptions,” and the attendant circumstances are considered to
diminish the fixed amount of damages otherwise payable. The amount
of these damages was also affected by what is now known as the
contributory negligence of the injured party. It is evident from
this and similar provisions, that the Brehon system would, under
favorable circumstances, have developed into a modern civil code. If
mercantile habits had been introduced and commerce established with
other nations, the cumbersome preliminary proceedings would no doubt
have been abandoned, as they gradually were abolished in England,
and the Brehon would eventually have assumed the fixed position of a
Judge. But no such development took place, and the legal distinction
between public and private wrongs was not carried beyond the
incipient stage above mentioned, nor were the principles applicable
to the cases of contract ever clearly distinguished from those
applicable to torts or crimes.
The fourth volume contains miscellaneous tracts illustrating the
land laws of Ireland under the Brehon system. The first of these is
entitled “On taking lawful possession.” The ancient Irish never
formed town communities, and had no fixed judicial system, all
judicial authority, as already shown, being derived from voluntary
submission to arbitration. The claimant of land therefore, was in
this, as in cases of claims for debts and damages, obliged, in the
first place, to take the law into his own hands, to compel his
opponent to agree to arbitration before a Brehon. The claimant gave
notice to the occupant that he intended to enter on the land in
pursuance of his claim. This notice was repeated at the end of ten
days, and if no satisfactory answer was returned, then the claimant,
accompanied by his witnesses, and leading two horses by the bridles,
crossed the boundary and remained upon the border of the contested
premises for a day and a night. He then left, and on the fifth and
tenth days thereafter, he repeated the notice. If satisfaction was
still denied, he again entered with four horses and two witnesses,
and advanced one-third of the way towards the centre of the lands.
If the occupier was still obdurate the claimant again withdrew, and
for two days more, gave notice
of his intention to make his final entry. He then entered again with
eight horses and four witnesses, some of whom had to be of chieftain
rank, and this time he advanced to the centre of the land and took
possession, unless the occupier submitted to arbitration. The
periods required for the notices and entries were intended to give
the occupier time to consider whether he would consent to
arbitration, and the final entry was made in such a form that he was
compelled either to do this or abandon possession. This procedure
was very similar to the ancient law of Wales. The necessity of
bringing horses, when making the different entries, was dispensed
with in certain cases, for instance in the case of a fort, or a
church without land belonging to it, or an island, or a place where
they were liable to be seized.
If the claimant failed to sustain his right to the land, he was
considered in law as a trespasser, and was compelled to pay
accordingly, and these damages varied according to various
circumstances of the case, prominent among which was the question as
to whether there was a full fence, a half fence or no fence at all.
There is only one case mentioned in the Brehon law where the King
was to be called upon to decide between two subjects, and that was
where, in a dispute about the ownership of land, there was no local
Brehon versed in the customary law of the district. The modern
doctrine which, in a case of fraud, protects a purchaser for
valuable consideration without notice, was recognized in the
following provision: “In the case of a person who buys without
stealing or concealment, with purity of conscience, the purchase is
his lawful property according to God and man; if his conscience is
free, his soul is free.” Certain parties could not enforce a
contract against certain other parties, even if made according to
legal forms, for example, a bondman against his chief, a son against
his father, or a monk against his abbot. But if a “defective
covenant” as it was called, was once acknowledged as binding by the
chief, the father, or the abbot, he could not afterwards repudiate
it.
In considering the tract entitled “The succession to land,” it must
be borne in mind that the ownership of the undivided land was vested
in the tribe, and that the rights of each member were only temporary
and personal. And even where land was allowed in separate ownership,
it did not descend, upon the owner’s death,
to the persons who, we now consider, would be his heirs. The owner,
as head of a house, acquired the property for his household, and his
possession was rather that of a manager of a partnership than of an
absolute owner. The household did not necessarily include all his
descendants, as sons or daughters might have left it in his
lifetime, and it often included persons who were not descendants.
Upon his death the property descended to the other members of the
household as joint tenants, the eldest male member of the household
becoming the head. Each successive head had certain limited rights
of alienation, but he could make no disposition of the land to the
detriment of the next four generations of his descendants. When the
entire line of inheritors gave out, the land thus left without an
owner fell back into the general tribe land out of which it had been
taken, or in some exceptional cases, became the property of the
chief.
The contents of the next tract, which is entitled “Judgments of
co-tenancy, ” show that the idea of exclusive ownership of land did,
however, exist in certain cases. Thus the members of a household who
were joint tenants under the law, might, by their unanimous consent,
sever the joint tenancy. After the division had been made, the duty
of fencing their respective shares fell upon the several parties.
The different kinds of fences were specified; and the shares to be
built by each owner, as well as the means of enforcing this duty,
were carefully prescribed. The claims for trespasses of horses,
cattle, pigs, hens, dogs and even cats, were all minutely provided
for. The various kinds of “man trespass,” as it is called, are also
enumerated, and the compensation therefor is specifically laid down.
In certain specified emergencies, the breaking down of fences and
crossing another’s land is justified, provided the trespasser
observed the minute regulations laid down for the purpose.
Agricultural leases were not unknown, but in such cases, they were
purely matters of mercantile contract, instead of representing the
position of lord and vassal as in England. They were entirely
distinct from the cattle tenure between chief and tenant previously
referred to.
Another tract is entitled “Bee judgments.” The culture of bees in
the middle ages possessed an importance which, in our modern days,
it has altogether lost. Sugar being very rare and expensive, honey
was largely employed to sweeten food, and beeswax was extensively
used for candles. It is quite natural therefore that the subject of
bees should have occupied the attention of the Brehons* Even the
great legal authority, Blackstone, did not deem it beneath him,
learnedly to discuss the same question in his Commentaries on the
law of England. The ownership of bees, their honey and their swarms
are all minutely provided for under all possible conditions, and
provision was also made for compensation, not only to persons stung
by bees, but to persons whose bees were killed, either intentionally
or inadvertently.
The subject of “Right of water” is treated of in another tract*
Water mills were introduced into Ireland by King Cormac Mac Art in
the third century, and there being no ancient customs with reference
to them to fall back upon, the Brehons proceeded to build upon the
subject, by analogy, a body of what is, in modern days, known as
“judge-made law.” One of the first and most necessary provisions was
that “ Every co-tenant is bound to permit the other co-tenant to
conduct drawn water across the border. Lands could be compulsorily
taken for the construction of a mill-race or pond, but the lands of
a church, a dun or a fair green were exempted from this liability.
The owners of mill courses were exempt from damages for accidents
arising from their construction.
In the tract entitled “Divisions of land” we get the Irish table of
superficial measurements, which was as follows: Three grains in an
inch, six inches in a hand, two hands in a foot, six feet in a pace,
six paces in an “intritt” measure, six “intritts” in a “lait”
measure, and six “Jaits” in a “forach” measure. The translators were
unable to find any corresponding English words for the last three
measures.
The tract which retains its Irish title of “Crith Grabblach” gives a
detailed description of the several social ranks and organizations
of the Irish tribes. The laity were divided into seven grades, to
correspond with the seven orders in the Church. In the sequel of the
tract it is laid down that the highest dignity on earth is that of
the Church, the highest dignity in the Church is a bishop, and the
highest bishop is “the Bishop of Peter’s Church.” Various penalties
are provided for injuries to the clergy, according to their official
position and the nature of the injury inflicted, but one-third of
the penalty specified was to be deducted if the cleric was married,
which shows that, while celibacy was favored, it was not then
insisted on, among the secular clergy. A further short and unnamed
fragment of a tract dealing with the law of succession completes the
fourth volume.
The fifth and remaining volume, which was edited by Dr. Robert
Atkinson, consists of certain tracts translated by Dr. O’Donovan and
Professor 0’Curry. The first of these is called “Small Primer,” and
was evidently intended as a kind of manual, and probably used as
such in the law schools of Ireland. The introductory remarks show
the influence of the Civil Law as well as some knowledge of Canon
Law, and there is a tripartite analysis of “Judgment” into truth,
law and nature. This tract gives a fuller insight into the general
direction of Brehon thought and procedure.
The next division deals with “Heptads,” of which eighty-two are
printed, though the learned editor points out that about a dozen
more are known from other sources, so he considers that the Brehons
had probably elaborated a hundred of these Heptads as a manual for
reference. He adds that “it can hardly be doubted that a work of
this kind, in the hands or memory of a competent oral teacher, would
be a very effective medium for instruction in the Brehon practice,
but it may be admitted that the solution in the continuity of oral
teaching by trained Brehons has left no small confusion and
misunderstanding.” The use of the formula seems to suggest that it
was a relic handed down from an earlier period and possibly
connected with the well-known septenary division of the grades. The
number seven had become, to a certain extent, consecrated by the
biblical references, such as the seven days of creation and the
seven years of jubilee, etc.
The third tract is entitled “Judgments on pledge interests,” which
are defined as “judgments that are given about the interests that
are given with the pledge, or about the pledges with which the
interests are given after their being lost.” The series of objects
concerning which these elaborate regulations are formulated begins
with the needle and covers all the different articles in domestic
use, ending with the pledge interests of a weapon, and forming a
presentation of the general circumstances of social life of early
Ireland.
The fourth subject, “On the confirmation of right and law,” is
elaborated into a series of Triads, but this series is not
continuously carried out. There are set down a number of dicta which
apparently are merely accumulations of notes taken from some larger
work. There does not seem to be any link of association between the
various items, and it is obvious that some of them have no bearing
on the subjects indicated by the title of the tract. After a
detailed discussion of fines, it ends with what is apparently an
enumeration of objects that are, to a certain extent, free to all,
that is, objects that the tribesmen could make use of without
liability to prosecution.
The fifth and final tract, “On the removal of covenants,” is a brief
dissertation on certain rights of property, and it introduces
certain further Triads. The tract discusses the question of
prescription, and ends with some notices of the rights and status of
the different members of the family.
This brief and necessarily very incomplete sketch of the Ancient
Laws of Ireland will enable us to place some estimate upon their
merits as well as their defects. The latter were attributable to the
circumstances under which these laws were first formed, and the
absence of any Parliamentary or other power, to repeal obsolete
laws, or to introduce necessary amendments. The existence of an
hereditary legal caste like the Brehons withdrew the laws from the
criticism of public opinion and, in a measure, no doubt prevented
the establishment of legislative and judicial authority. While
therefore much that has been said against these laws by prejudiced
and ignorant English writers is open to strong objection, still it
must be admitted that they were an obstacle in the way of any
considerable social or commercial progress. The laws were made
largely for the advantage of the ruling classes. The English real
property laws were at one time certainly open to the same objection,
but the Courts and Parliament during the past century have effected
many radical reforms in these laws.
But if we are to judge of the Brehon Laws on the whole, and see how
far they were adapted to attain the end which is the great object of
all law, viz.: not merely to settle disputes as they arise, but to
infuse into the hearts of the people a love of justice, we shall
find that the great lawyer who was most responsible for the final
overthrow of the Brehon laws, and who freely criticized their
provisions, has himself furnished the strongest testimony to their
beneficial effect upon the Irish race. Sir John Davies,
Attorney-General to James I, in concluding his none too friendly
report on the state of Ireland, felt constrained to make the
following remarkable admission: “There is no nation of people under
the sun that doth love equal and indifferent justice better than the
Irish, and will rest better satisfied with the execution thereof,
although it be against themselves, so as they may have the
protection and benefit of the law, when, upon just cause they do
desire it.”
M. J. Gorman.
Ottawa, January, 1913.
The Brehon
Laws, A Legal Handbook by Laurence Ginnell (pdf) |