Brehon Laws

BREHON LAWS, more properly called Feinechus, were the ancient laws of Ireland. Brehon (Breitheamh) is the Irish word for judge. Regular courts and judges existed in Ireland from prehistoric times.

The extant remains of these laws are ms. transcripts from earlier copies made on vellum from the 8th to the 13th century, now preserved with other Gaelic mss. in Trinity college and the Royal Irish Academy, Dublin, the British Museum, Oxford uni versity, some private collections and several libraries on the continent of Europe. The largest and most important of these documents is the Senchus Mor, or "Great Old Law Book." No copy of it now existing is complete. What remains of it occupies the first, second and a portion of the third of the volumes produced by the Brehon Law Commission 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 Mot. and Feinechus of Ireland were purified and written." This entry has some historical corroboration.

The text and earlier commentaries are in the Bearla Feini—the most archaic form of the Gaelic language. Many words, phrases and idioms are now obsolete, and so difficult to translate that the official translations are to some extent confessedly conjectural. Frequently only the opening words of the original text remain. Wherever the text is whole, it is curt, elliptical and yet rhyth mical. The rigorously authentic character of these laws, relating to, and dealing with, the actual realities of life, and with institu tions 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 illustra tive of the same things, endow them with exceptional archaic, archaeological and philological interest. No man was allowed to act as judge until he had studied the full law course, which occu pied 20 years, and had passed a rigorous public examination. The course of study for judge and law-agent, respectively, is carefully laid down. The Brehon was an arbitrator, umpire and expounder of the law, rather than a judge in the modern accepta tion. It appears, without being expressly stated, that the facts of a case were investigated and ascertained by laymen before submission to a Brehon for legal decision. The complainant 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 main tenance and acted as registrar or assessor in the king's court. 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 char acteristic of ancient Irish life. They all, without exception, dis charged legal, legislative or administrative functions. 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, Dal, etc. At one assembly held at Uisneach about a century before Christ a uni form law of distraint for the whole of Ireland was adopted. Each provincial kingdom and each tuath had assemblies of its own. 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 Clan System.—Tuath, Cinel and Clann were synonyms meaning a small tribe or nation descended from a common an cestor. 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, disposi tion and devolution of property, constituting the clan an or ganic, self-contained entity, a political, social and mutual insur ance co-partnership. The solidarity of the clan was its most important and all-pervading characteristic. According to the tra ditional view the entire territory occupied by a clan was the common and absolute property of that clan, a portion being set apart for the maintenance of the king. Warriors, statesmen, Brehons, 011amhs, physicians, poets and even eminent workers in the more important arts, were also rewarded with free lands. Rank, with the accompanying privileges, jurisdiction and re sponsibility, 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. A portion of land called the Cumhal Senorba was de voted to the support of widows, orphans and old childless people. According to the later and now very generally accepted view of Prof. Eoin MacNeill there was no communal holding of land by the clan. Clan itself meant little more than a princely family, like, say, the Hohenzollerns in Germany. There was no land, blood or personal name common to the people subject to such a family. Anything in the nature of common holding or redistri bution of land was confined to the joint families next to be described.

Fine (fine) , originally meaning family, came in course of time to be applied to a group of kindred families or a joint family group of four generations. Even those who adhere to the tradi tional view of the clan will admit that in course of time a large and increasing proportion of the good land became limited pri vate property. The area of arable land available for the corn mon use of the clansmen was gradually diminished by these en croachments. The land belonging to the joint family (fine) was at intervals liable to redistribution when the joint family broke up. 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 holders had no landlord and no rent to pay for this land, and could not be deprived of it except for a crime. They were subject only to public tributes and the ordinary obligations of free men. The unfenced and unappropriated common lands— waste, bog, forest and mountain—all clansmen were free to use promiscuously at will.

Tenure of Land.—There was hardly any selling and little letting of land in ancient times. Nobles and other persons hold ing large areas let to clansmen, not the land, but the grazing of a number of cattle specified by agreement. They also let cattle to a clansman 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 doer (= unfree), the condi tions being fundamentally different. The conditions of saer-ten ure were largely settled by the law, were comparatively easy, did not require any security to be given, left the clansman free within the limits of justice to end the connection, left him corn petent in case of dispute to give evidence against that of the noble, and did not impose any liability on the joint family of the clansmen. By continued use 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 clansman 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. 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 an unfree clansman. A free clansman by becoming an unfree-clansman lowered his own status and that of his joint family, became incompetent to give evidence against that of a noble, and could not end the connec tion until the end of the term except by a large payment. The members of his joint family were liable, in the degree of their relationship, to make good out of their own property any de fault in the payments. Hence this tenure could not be legally entered into by a free clansman without the permission of his joint family. Unfree clansmen were also exposed to casual bur dens, 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 pay ments 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, etc.

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 (=cot tier) and the Sen-cleithe (=old dependant) were people who, though living for successive generations attached to the families of nobles, did not belong to the clan and had no rights of citizen ship. Fuidhirs, or manual labourers without property, were the lowest section of the population. Some were born in this condi tion, 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 free and unfree; 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 unfree f uidhirs were tramps, fugitives, captives, etc.

Fosterage, the custom of sending children to be reared and educated in the families of fellow-clansmen, was prevalent among the wealthy classes. A child in fosterage was reared and edu cated 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.

Law of Contract.

The solidarity of clan and joint family 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 in dividuals. Consequently the rules relating to contract are not very numerous. They are, however, sufficiently solemn. No con tract affecting land was valid unless made with the consent of the joint family. 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 noble or mag istrate. The parties to a contract should be free citizens, of full age, sound mind, free to contract 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 recog nized. 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 : (I) a servant without his master's authority; (2) a monk without authority from his ab bot 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 con tract. 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 draw ing a drop of blood from the little finger of each of the con tracting 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 im portance 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 pris oners 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 in curred 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.

Criminal Laws.

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 pre fixed to the Senchus Mir, 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 per mitted 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 re garded 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 em ployed 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. 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. Prof. MacNeill, however, contends that the State took a far more active part in enforcing Brehon decisions than that herein de scribed, the king in general acting as judge, subject to profes sional advice. 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 charac teristic and important element was Enechlann (=honour-price, honour-value), a value attaching to every free person, varying in amount from one cow to 3o cows according to rank. It was the assessed value of status or caput. It was frequently of conse quence in relation to contracts and other clan affairs; but it emerges most clearly in connection with crime. By the commis sion of crime, breach of contract, or other disgraceful or injurious conduct, Enechlann was diminished or destroyed, a capitis diminu tio occurred, apart from any other punishment. Though existing apart from fine, Enechlann 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 "separat ing body from soul"; but the term was used in lighter cases also. In capital cases the word sometimes meant Enechlann, 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 (i ) coirp-dire for the de struction of life, irrespective of rank; (2) the honour-value of the victim; (3) his own honour-value if the deed was uninten tional; 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 re coverable as a debt from the criminal to the extent of his prop erty, and in his default from the members of his joint family in sums determined by the degree of relationship; and it was dis tributable among the members of the joint family of a murdered person in the same proportions, like a distribution among the next of kin. The joint family of a murderer could free them selves 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 mis deeds. 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 an unfree labourer in some distant territory. When the effect of a crime did not go beyond an individual, if that individual's joint family 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 modify ing circumstances, being twice the amount taken or destroyed.

Law of Distress.

Distress or 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. There was no sale, because sale for money was little known. The prop erty 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 em barrassment, 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 com pelled 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 with out result, went and sat without food before the door of the defendant. To refuse to submit to fasting was considered indel ibly 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 con sequence 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." BIBLIOGRAPHY.-Pending the work of a second Brehon Law CornBibliography.-Pending the work of a second Brehon Law Corn- mission, the Laws are best studied in the six imperfect volumes (Ancient Laws of Ireland, 1865-1901) produced by the first Commis sion (ignoring their long and worthless introductions), together with Dr. Whitley Stokes's Criticism (1903) of Atkinson's Glossary (19o1) . The following are important references (kindly supplied by Dr. Whitley Stokes) for detailed research:—R. Dareste, Etudes d'histoire de droit, pp. 356-381 (1889) ; Arbois de Jubainville and Paul Collinet, Etudes sur le droit celtique (2 vols., 1895) ; Joyce, Social History of Ancient Ireland, vol. i. pp. (2 vols., 1903) ; Zeitschri f t f iir celtische Philologie, iv. 221 (see also vol. 14, p. 1 and vol. 15) ; the Copenhagen fragments of the Laws (Halle, 1903) ; important letters in The Academy, Nos. 699, 700, 701, 702, 703, 704, 706, 707 (substantially covered by Stokes's Criticism) ; Revue Celtique, xxv. 344 ; Eriu i. 209-315 (collation by Kuno Meyer of the Law tract Crith Gablach) . Maine's Early Hist. of Institutions (1875) and Early Law and Custom, pp. 162, 18o (1883) ; Hearn's Aryan Household (1879) and Maclen nan's Studies in Ancient History, pp. contain interest mg general reference, but the writers were not themselves original students of the laws. L. Ginnell's Brehon Laws (1894) may also be consulted. See also A. Ua Clerigh, History of Ireland to the of Henry II., chaps. 14 and 15 (1908) ; E. MacNeill, Phases of Irish History, chaps. Io and 12 (1919) ; S. Bryant, Liberty, Order and Law under Native Irish Rule (1923) ; R. Thurneysen, Coic Conara Fugill (Die fiinf Wege zum Urteil) (1926) ; and the article CELT, sections Language and Literature. (M. J. R.; A. E. C.)