1911 Encyclopædia Britannica/Brehon Laws
BREHON LAWS, the English but incorrect appellation of the ancient laws of Ireland, the proper name for which is Feineachas, meaning the laws of the Feine or Feini (fainyeh), who were the free Gaelic farmers. Dlighthe Feine is another name for the laws, with the same meaning. Laws of universal application which could be administered only by duly qualified judges were called Câin law, while minor laws administered by nobles and magistrates were called Urradhus law. Regular courts and judges existed in Ireland from prehistoric times. The Anglo-Irish word “Brehon” is derived from the Gaelic word Brethem (= judge).
The extant remains of these laws are manuscript transcripts from earlier copies made on vellum from the 8th to the 13th century, now preserved with other Gaelic manuscripts in Trinity College and the Royal Irish Academy, Dublin, the British Museum, Oxford University, some private collections and several libraries on the continent of Europe. The largest and most important of these documents is the Senchus Mór or “Great Old Law Book.” No copy of it now existing is complete, and some portions are missing from all. What remains of it occupies the first, second, and a portion of the third of the volumes produced by the Brehon Law Commission, which was appointed in 1852.
In the Annals of the Four Masters it is said: “The age of Christ 438, the tenth year of King Laeghaire (Lairy), the Senchus Mór and Feineachas of Ireland were purified and written.” This entry has ample historical corroboration. Of many separate treatises dealing with special branches of the law, the Book of Aicill, composed of opinions or placita of King Cormac Mac Art, otherwise Cormac ua Quim, Ard-Rig of Erinn from A.D. 227 until 266, and Cennfaeladh the Learned, who lived in the first part of the 7th century, is the most important.
The text and earlier commentaries are in the Bearla Feini—the most archaic form of the Celtic or Gaelic language. From gradual changes in the living tongue through a long expanse of time many words, phrases and idioms in the Bearla Feini became obsolete, and are so difficult to translate that the official translations are to some extent confessedly conjectural. In many cases only opening words of the original text remain. Wherever the text is whole, it is curt, elliptical, and yet rhythmical to a degree attainable only through long use. The rigorously authentic character of these laws, relating to, and dealing with, the actual realities of life, and with institutions and a state of society nowhere else revealed to the same extent, the extreme antiquity both of the provisions and of the language, and the meagreness of continental material illustrative of the same things, endow them with exceptional archaic, archaeological and philological interest.
In the earliest times all learned men, whether specially learned in law or not, appear to have acted as judges. Gradually as literature and learning increased, judgments delivered by men without special legal training fell into disfavour. In the 1st century of the Christian era, when Conchobhar or Conor Mac Nessa was king of Ulster, a crisis was reached, the result of which was that no man was allowed to act as Brehon until he had studied the full law course, which occupied twenty years, and had passed a rigorous public examination. The course of study for Brehon and Ollamh, advocate and law-agent respectively, is carefully laid down in the law itself. The Brehonship was not an office of state like that of the modern judge, but a profession in which success depended upon ability and judgment. The Brehon was an arbitrator, umpire, and expounder of the law, rather than a judge in the modern acceptation. It appears, without being expressly stated, that the facts of a case were investigated and ascertained by laymen, probably by the Aireachtas—a local assembly or jury—before submission to a Breton for legal decision. A Brehon whose decision was reversed upon appeal was liable to damages, loss of position and of free lands, if any, disgrace, and a consequent loss of his profession. No Brehon had any fixed territorial jurisdiction. A party initiating proceedings could select any Brehon he pleased, if there were more than one in his district. Every king or chief of sufficient territory retained an official Brehon, who was provided with free land for his maintenance. In ordinary cases the Brehon’s fee was said to have been one-twelfth of the amount at stake.
Assemblies, national, provincial and local, were a marked characteristic of ancient Irish life. They all, without exception, discharged some legal functions, legislative or administrative, and even in those in which amusement predominated, the Cáin law was publicly rehearsed. Most of the assemblies were annual, some triennial, some lasted only a day or two, others a week and occasionally longer. All originated in pagan funeral or commemorative rites, and continued to be held, even in Christian times, in very ancient cemeteries. They were called by different names—Feis, Aenach, Aireachtas, Dál, &c.
The Feis of Tara, in Meath, was from its origin seven centuries before Christ down to A.D. 560, mainly national and political, being convened by the Ard-Rig, held at his residence, presided over by him, and consisting of the provincial kings, tanists, flaiths, Brehons, warriors, historians, poets and other distinguished men from the whole of Ireland. It was due to be held every third year for the purpose of “preserving the laws and rules,” and it might be called specially on any urgent occasion. After the statesmen had consulted, the laws were proclaimed, with any modifications agreed upon. Then the proceedings became festive, queens and great ladies taking part. The Feis of A.D. 560 was the last regular one held at Tara because the monarch ceased to reside there. One national assembly of an exceptional character was held at Tara in A.D. 697, by a decree of which women were emancipated from liability to military service.
The Aenach held annually at Tailltenn, also in Meath, was a general assembly of the people without restriction of rank, clan or country, and became the most celebrated for athletic sports, games and contests. Yet even here the laws were read aloud, and it is not without significance that the last national assembly held at Tailltenn under King Rhoderic O'Connor in 1168 was a political one.
The Dál-Criche (= territorial assembly), held at Uisneach in Westmeath, was a gathering for political and quasi-legislative purposes. At one assembly there about a century before Christ, a uniform law of distraint for the whole of Ireland was adopted on the motion of Sen, son of Aigé. This did not prevent the gatherings at Uisneach from being for ages celebrated for gaiety and amusement.
Each provincial kingdom and each tuath had assemblies of its own. Every flaith and flaith-fine was a member of a local assembly, the clan system conferring the qualification, and there being no other election.
An assembly when convened by the Bruigh-fer for the special purpose of electing a tanist or successor to the king was called a Tocomra.
Very careful provision is made for the preparation of the sites of great assemblies, and the preservation of peace and order at them is sanctioned by the severest penalties of the law. The operation of every legal process calculated to occasion friction, such as seizure of property, was suspended during the time the assemblies lasted.
The term Rig (reeh = rex, king) was applied to four classes or grades of rulers, the lower grades being grouped, each group being subject to one of their number, and all being subject to, and owing tribute and allegiance to the Ard-Rig (= supreme king of Erinn). The Ard-Rig had an official residence at Tara and the kingdom of Meath for his special use. The provincial king, Rig Cuicidh, also had an official residence and kingdom of his own, together with allegiance and tribute from each Rig-mor-Tuatha in his province, who in his turn received tribute and allegiance from each Rig-Tuatha under subjection to him. The Rig-Tuatha received tribute and allegiance from the flaiths or nobles in his tuath. The tuath was the political unit, and the ruler of it was the lowest to whom the term “king” was applied. For each payment of tribute a king always made some return. Every king was obliged, on his inauguration, to swear that he would govern justly and according to law, to which he remained always subject. The Ard-Rig was selected by the sub-kings and other leading men who legally constituted the Feis of Tara, the sub-kings by those under them in their respective spheres. No person not of full age, imperfectly educated, stupid, blind, deaf, deformed or otherwise defective in mind or body, or for any reason whatsoever unfit to discharge the duties or unworthy to represent the manhood of the nation, could be king, even though he were the eldest son of the preceding king. “It is a forbidden thing for one with a blemish to be king at Tara.”
Tuath, Cinel and Clann were synonyms meaning a small tribe or nation descended from a common ancestor. A king and clan being able, subject to certain limitations, to adopt new members or families, or amalgamate with another clan, the theory of common origin was not rigidly adhered to. Kinship with the clan was an essential qualification for holding any office or property. The rules of kinship largely determined status with its correlative rights and obligations, supplied the place of contract and of laws affecting the ownership, disposition and devolution of property, constituting the clan an organic, self-contained entity, a political, social and mutual insurance co-partnership. The solidarity of the clan was its most important and all-pervading characteristic. The entire territory occupied by a clan was the common and absolute property of that clan. Subject to this permanent and fundamental ownership, part of the land was set apart for the maintenance of the king as such. Warriors, statesmen, Brehons, Ollamhs, physicians, poets, and even eminent workers in the more important arts, were, in different degrees, rewarded with free lands for their respective public services. On the death of any person so rewarded, the land in theory reverted to the clan; but if like services continued to be rendered by the son or other successor, and accepted by the clan, the land was not withdrawn. The successors of statesmen, for whom the largest provision was made, became a permanent nobility. Flaith (flah = noble chief) was a term applied to a man of this rank. Rank, with the accompanying privileges, jurisdiction and responsibility, was based upon a qualification of kinship and of property, held by a family for a specified number of generations, together with certain concurrent conditions; and it could be lost by loss of property, crime, cowardice or other disgraceful conduct. The flaiths in every tuath and all ranks of society were organized on the same hierarchical pattern as royalty. A portion of land called the Cumhal Senorba was devoted to the support of widows, orphans and old childless people.
Fine (finna), originally meaning family, came in course of time to be applied to a group of kindred families or to a whole clan. From differences between incidental accounts written in different ages, it appears that the social system underwent some change. For the purpose of conveying some idea, one theory may be taken, according to which the fine was made up of seventeen clansmen, with their families, viz. the Geilfine consisting of the flaith-fine and four others in the same or nearest degree of kinship to the centre, and the Deirbhfine, Tarfine and Innfine, each consisting of four heads of families, forming widening concentric circles of kinship to which the rights and liabilities of the fine extended with certainty, but in diminishing degrees.
In course of time a large and increasing proportion of the good land became, under the titles so far described, limited private property. The area of arable land available for the common use of the clansmen was gradually diminished by these encroachments, but was still always substantial. A share of this was the birthright of every law-abiding member of the Feini who needed it. To satisfy this title and give a start in life to some young men who would otherwise have got none, this land was subject to Gabhailcine (= clan-resumption), meaning that the clan resumed the whole area at intervals of a few years for a fresh distribution after some occupants had died, and young men by attaining manhood had become entitled. Hence the Anglo-Irish word gavelkind. Anciently this re-distribution extended throughout the clan at the same time. Later it extended only to the land of a fine, each fine making its own distribution at its own time and in its own way as determined by the seventeen men above specified. In this distribution men might or might not receive again their former portions. In the latter case compensation was made for unexhausted improvements. This land could not be sold, nor even let except for a season in case of domestic necessity. The Feini who used it had no landlord and no rent to pay for this land, and could not be deprived of it except by the clan for a crime. They were subject only to public tributes and the ordinary obligations of free men. Presumably their homesteads were not on this land and were not subject to Gabhailcine. Neither were the unfenced and unappropriated common lands—waste, bog, forest and mountain—which all clansmen were free to use promiscuously at will.
There was hardly any selling and little letting of land in ancient times. Flaiths and other persons holding large areas let to clansmen, who then became Ceiles, not land, but the privilege of feeding upon land a number of cattle specified by agreement. Flaiths and Bo-aires also let cattle to a ceile who had none or not enough, and this was the most prevalent practice. There were two distinct methods of letting and hiring—saer (= free) and daer (= base), the conditions being fundamentally different. The conditions of saer-tenure were largely settled by the law, were comparatively easy, did not require any security to be given, left the ceile free within the limits of justice to end the connexion, left him competent in case of dispute to give evidence against that of the flaith, and did not impose any liability on the fine of the ceile. By continued user of the same land for some years and discharge of the public obligations in respect of it in addition to the ciss or payment as tenant, a ceile became a sub-owner or permanent tenant and could not be evicted. There is no provision in these laws for evicting any one. For the hire of cattle a usual payment was one beast in seven per annum for seven years; after which the cattle that remained became the property of the hirer. A saer-ceile on growing wealthy might become a bo-aire. Daer-tenure, whether of cattle or of the right to graze cattle upon land, was subject to a ciss-ninsciss (= wearisome tribute), for the payment of which security had to be given. A man not in the enjoyment of full civil rights, if able to find security, could become a daer-ceile. A free clansman by becoming a daer-ceile lowered his own status and that of his fine, became incompetent to give evidence against that of a flaith, and could not end the connexion until the end of the term except by a large payment. The members of his fine were liable, in the degree of their relationship, to make good out of their own property any default in the payments. Hence this tenure could not be legally entered into by a free clansman without the permission of his fine. Daer-ceiles were also exposed to casual burdens, like that of lodging and feeding soldiers when in their district. All payments were made in kind. When the particular kind was not specified by the law or by agreement, the payments were made according to convenience in horses, cattle, sheep, pigs, wool, butter, bacon, corn, vegetables, yarn, dye-plants, leather, cloth, articles of use or ornament, &c. As the clan system relaxed, and the fine lost its legal power of fixing the amounts of public tributes, which were similarly payable to the flaith, and neglected its duty of seeing that those tributes were duly applied, the flaith became able to increase these tributes with little check, to confuse them with rent, to confuse jurisdiction with ownership, and to exalt himself at the expense of his fellow-clansmen. A flaith by arranging that his tenants should make their payments at different periods of the year, secured a constant and copious supply without an inconvenient surplus.
People who did not belong to the clan and were not citizens were in a base condition and incompetent to appear in court in suit or defence except through a freeman. The Bothach (= cottier) and the Sen-clèithe (= old dependent) were people who, though living for successive generations attached to the families of flaiths, did not belong to the clan and had no rights of citizenship. Fuidhirs, or manual labourers without property, were the lowest section of the population. Some were born in this condition, some clansmen were depressed into it by crime, consequences of war or other misfortune; and strangers of a low class coming into the territory found their level in it. The fuidhirs also were divided into saer and daer; the former being free by industry and thrift to acquire some property, after which five of them could club together to acquire rights corresponding to those of one freeman. The daer-fuidhirs were tramps, fugitives, captives, &c.
Fosterage, the custom of sending children to be reared and educated in the families of fellow-clansmen, was so prevalent, especially among the wealthy classes, and the laws governing it are so elaborate and occupied such a large space, that some mention of it here is inevitable. Beyond mention, there is little to be said, owing to the absence of general principles in an infinity of specific details, mostly domestic and apparently trivial. A child in fosterage was reared and educated suitably for the position it was destined to fill in life. There was fosterage for affection, for payment and for a literary education. Fosterage began when the child was a year old and ended when the marriageable age was reached, unless previously terminated by death or crime. Every fostered person was under an obligation to provide, if necessary, for the old age of foster-parents. The affection arising from this relationship was usually greater, and was regarded as more sacred than that of blood relationship.
The solidarity of clan and fine in their respective spheres, the provisions of the system, the simple rural life, and the prevalence of barter and payments in kind, left comparatively little occasion for contracts between individuals. Consequently the rules relating to contract are not very numerous. They are, however, sufficiently solemn. No contract affecting land was valid unless made with the consent of the fine and in the presence of the Aire-Forgaill. Contracts relating to other kinds of property are more numerous. When important or involving a considerable amount, they had to be made in the presence of a flaith or magistrate. The Aire-Coisring presided over most of the contracts of the common people. The parties to a contract should be free citizens, of full age, sound mind, free to contract or not, and under no legal disability. “The world would be in a state of confusion if express contracts were not binding.” From the repeated correlative dicta that “nothing is due without deserving,” and that a thing done “for God’s sake,” i.e. gratis, imposed little obligation, it is clear that the importance of valuable consideration was fully recognized. So also was the importance of time. “To be asleep avails no one”; “Sloth takes away a man’s welfare.” Contracts made by the following persons were invalid: (1) a servant without his master’s authority; (2) a monk without authority from his abbot or manager of temporalities; (3) a son subject to his father without the father’s authority; (4) an infant, lunatic, or “one who had not the full vigilance of reason”; (5) a wife in relation to her husband’s property without his authority. She was free to hold and deal with property of her own and bind it by contract. If a son living with his father entered into a contract with his father’s knowledge, the father was held to have ratified the contract unless he promptly repudiated it. “One is held to adopt what he does not repudiate after knowledge, having the power.” Contract of sale or barter with warranty could be dissolved for fraud, provided action was taken within a limited time after the fraud had become known. Treaties and occasional very important contracts were made “blood-covenants” and inviolable by drawing a drop of blood from the little finger of each of the contracting parties, blending this with water, and both drinking the mixture out of the same cup. The forms of legal evidence were pledges, documents, witnesses and oaths. In cases of special importance the pledges were human beings, “hostage sureties.” These were treated as in their own homes according to the rank to which they belonged, and were discharged on the performance of the contract. If the contract was broken, they became prisoners and might be fettered or made to work as slaves until the obligation was satisfied. Authentic documents were considered good evidence. A witness was in all cases important, and in some essential to the validity of a contract. His status affected the force of the contract as well as the value of his evidence; and the laws appear to imply that by becoming a witness, a man incurred liabilities as a surety. The pre-Christian oath might be by one or more of the elements, powers or phenomena of nature, as the sun, moon, water, night, day, sea, land. The Christian oath might be on a copy of the Gospels, a saint’s crozier, relic or other holy thing.
These laws recognized crime, but in the same calm and deliberate way in which they recognized contract and other things seriously affecting the people. Although we find in the poems of Dubhthach, written in the 5th century and prefixed to the Senchus Mór, the sentences, “Let every one die who kills a human being,” and “Every living person that inflicts death shall suffer death,” capital punishment did not prevail in Ireland before or after. The laws uniformly discountenanced revenge, retaliation, the punishment of one crime by another, and permitted capital punishment only in the last resort and in ultimate default of every other form of redress. They contain elaborate provision for dealing with crime, but the standpoint from which it is regarded and treated is essentially different from ours. The state, for all its elaborate structure, did not assume jurisdiction in relation to any crimes except political ones, such as treason or the disturbance of a large assembly. For these it inflicted the severest penalties known to the law—banishment, confiscation of property, death or putting out of eyes. A crime against the person, character or property of an individual or family was regarded as a thing for which reparation should be made, but the individual or family had to seek the reparation by a personal action. This differed from a civil action only in the terms employed and the elements used in calculating the amount of the reparation. The function of a judge in a criminal as in a civil action was to see that the facts, with modifying circumstances, were fully and truly submitted to him, and then by applying the law to these facts to ascertain and declare the amount of compensation that would make a legal adjustment. For this amount the guilty person, and in his default his kindred, became legally debtor, and the injured person or family became entitled to recover the amount like a civil debt by distraint, if not paid voluntarily. There were no police, sheriffs or public prisons. The decisions of the law were executed by the persons concerned, supported by a highly organized and disciplined public opinion springing from honour and interest and inherent in the solidarity of the clan. There is good reason to believe that the system was as effectual in the prevention and punishment of crime and in the redress of wrongs as any other human contrivance has ever been.
In calculating the amount of compensation the most characteristic and important element was Einechlan (= honour-price, honour-value), a value attaching to every free person, varying in amount from one cow to thirty cows according to rank. It was the assessed value of status or caput. It was frequently of consequence in relation to contracts and other clan affairs; but it emerges most clearly in connexion with crime. By the commission of crime, breach of contract, or other disgraceful or injurious conduct, Einechlan was diminished or destroyed, a capitis diminutio occurred, apart from any other punishment. Though existing apart from fine, Einechlan was the first element in almost every fine. Dire was the commonest word for fine, whether great or small. Eric (= reparation, redemption) was the fine for “separating body from soul”; but the term was used in lighter cases also. In capital cases the word sometimes meant Einechlan, sometimes coirp-dire (= body-fine), but most correctly the sum of these two. It may be taken that, subject to modifying circumstances, a person guilty of homicide had to pay (1) coirp-dire for the destruction of life, irrespective of rank; (2) the honour-value of the victim; (3) his own honour-value if the deed was unintentional; and (4) double his own honour-value if committed with malice aforethought. The sum of these was in all cases heavy; heaviest when the parties were wealthy. The amount was recoverable as a debt from the criminal to the extent of his property, and in his default from the members of his fine in sums determined by the degree of relationship; and it was distributable among the members of the fine of a murdered person in the same proportions, like a distribution among the next of kin. The fine of a murderer could free themselves from liability by giving up the murderer and his goods, or if he escaped, by giving up any goods he had left, depriving him of clanship, and lodging a pledge against his future misdeeds. In these circumstances the law held the criminal's life forfeit, and he might be slain or taken as a prisoner or slave. He could escape only by becoming a daer-fuidhir in some distant territory. When the effect of a crime did not go beyond an individual, if that individual's fine did not make good their claim while the criminal lived, it lapsed on his death. “The crime dies with the criminal.” If an unknown stranger or person without property caught red-handed in the commission of a crime refused to submit to arrest, it was lawful to maim or slay him according to the magnitude of the attempted crime. “A person who came to inflict a wound on the body may be safely killed when unknown and without a name, and when there is no power to arrest him at the time of committing the trespass.” For crimes against property the usual penalty, as in breach of contract, was generic restitution, the quantity, subject to modifying circumstances, being twice the amount taken or destroyed.
Distress of seizure of property being the universal mode of obtaining satisfaction, whether for crime, breach of contract, non-payment of debt, or any other cause, the law of distress came into operation as the solvent of almost every dispute. Hence it is the most extensive and important branch, if not more than a branch, of these ancient laws. Of several words meaning distress, athgabail was the most frequently used. A person having a liquidated claim might either sue a debtor or proceed at his peril to seize without this preliminary. In the latter case the defendant could stop the progress of the seizure by paying the debt, giving a pledge, or demanding a trial; and he then could choose a Brehon. Distress was of two kinds—(1) athgabal ar fut (= distress on length, i.e. with time, with delays); and (2) athgabail tulla (= immediate distress). Which method was pursued depended partly upon the facts of the case and partly upon the respective ranks of the parties. A person entitled to seize property had to do it himself, accompanied, if the amount was large, by a law agent and witnesses. No man was entitled to seize unless he owned, or had a surety who owned, sufficient property for indemnity or adjustment in case the seizure should be found to have been wrongful. The formalities varied in different circumstances and also at different times in the long ages in which these laws prevailed. Some forms may, in the Irish as in other legal systems, have become merely ceremonial and fictitious.
Tellach (= seizure of immovable property) was made in three periods or delays of ten days each (= 30 days). The first step was a notice that unless the debt was paid immediately seizure would be made. Ten days later, the plaintiff crossed the fence in upon the land, with a law agent, a witness and a pair of horses yoked or harnessed, and in a loud voice stated the amount of the debt and called upon the defendant to pay it according to law. On receiving no answer, or an unsatisfactory one, he withdrew. After an interval of ten days more, the creditor entered with his law agent, two witnesses and four horses, went farther in upon the land, repeated his demand, and if refused withdrew. Finally, after a further interval of ten days, he entered once more with his law agent, three witnesses and eight horses, drove up to the debtor's house, repeated his demand, and if not satisfied drove a herd of cattle or a flock of sheep in upon the farm and left men to care for them.
Athgabail ordinarily meant the seizure of movable property. The following technical terms will indicate the procedure in distress with time:—Aurfocre (= demand of payment, stating the amount in presence of witnesses); apad (= delay); athgabail (= the actual seizure); anad (= delay after seizure, the thing remaining in the debtor's possession); toxal (= the taking away of the thing seized); fasc (= notice to the debtor of the amount due, the mainder or pound in which the thing seized is impounded, and the name of the law agent); dithim (= delay during which the thing is in pound); lobad (= destruction or forfeiture of the debtor's ownership and substitution of the creditor's ownership). There was no sale, because sale for money was little known. The property in the thing seized, to the amount of the debt and expenses, became legally transferred from the debtor to the creditor, not all at once but in stages fixed by law. A creditor was not at liberty to seize household goods, farming utensils, or any goods the loss of which would prevent the debtor recovering from embarrassment, so long as there was other property which could be seized. A seizure could be made only between sunrise and sunset. “If a man who is sued evades justice, knowing the debt to be due of him, double the debt is payable by him and a fine of five seds.” When a large debt was clearly due, and there was no property to seize, the debtor himself could be seized and compelled to work as a prisoner or slave until the debt was paid.
When a defendant was of rank superior to that of the plaintiff, distress had to be preceded by troscad (= fasting). This is a legal process unknown elsewhere except in parts of India. The plaintiff having made his demand and waited a certain time without result, went and sat without food before the door of the defendant. To refuse to submit to fasting was considered indelibly disgraceful, and was one of the things which legally degraded a man by reducing or destroying his honour-value. The law said “he who does not give a pledge to fasting is an evader of all; he who disregards all things shall not be paid by God or man.” If a plaintiff having duly fasted did not receive within a certain time the satisfaction of his claim, he was entitled to distrain as in the case of an ordinary defendant, and to seize double the amount that would have satisfied him in the first instance. If a person fasting in accordance with law died during or in consequence of the fast, the person fasted upon was held guilty of murder. Fasting could be stopped by paying the debt, giving a pledge, or submitting to the decision of a Brehon. A creditor fasting after a reasonable offer of settlement had been made to him forfeited his claim. “He who fasts notwithstanding the offer of what should be accorded to him, forfeits his legal right according to the decision of the Feini.”