1902 Encyclopedia > Brehon Law

Brehon Law




BREHON LAW, the law of Ireland previous to the Conquest, and of some communities of the Irish down to the 17th century (from breitheam, genitive breitheamain, a judge; root, breith, a judgment; compare Vergobretus, " vir-ad-judicandum," Cass., Be Bell. Gall., i. 16). Three volumes of these laws, comprising the code called the Senchus Mor, alleged to have been revised by St Patrick, have been published by a Royal Commission appointed in 1852, and other portions in the second series of O'Curry's Lectures on the Materials of Ancient Irish History, edited, with a learned introduction, by Dr W. K. Sullivan in 1873. The antiquated and often obsolete language both of the original text and of the interlined glosses, coupled with the fact that portions of both are cited in compilations con-sidered not later than the 10th century, are arguments for their acceptance as fragments of a primitive system un-modified by Anglo-Saxon, Danish, or Norman influences. The Roman (or civil) law is hardly traceable in them, except as regards ecclesiastical affairs, and that sub niodo only. From the first-mentioned cause also, the provisions are often obscure and sometimes unintelligible; but enough appears to indicate the general nature and much of the details of these laws.
As compared with the collections known under the generic title leges barbarorum, they are remarkable for their copiousness, and furnish a striking example of the length to which moral and metaphysical refinements may be carried under rude social conditions. They present a state of society such as may be conceived to have existed under the older manorial organization, when the land was to a greater extent "folk"-land than "boc"-land, and comprised com-mons of tillage as well as of pasture. This kind of occupancy entailed annual repartitions of the tillage, recall-ing the usage of the ancient Germans (Cass., Bel. Gall., vi. 20), and of which, as practised on a minor scale in Ireland in 1782, Sir Henry Piers has given an account in his description of Westmeath (Vallancey, Coll., vi. p. 115). Traces of such repartitions survived under the name of Rundale (Irish ranndach, " partire") in the Highlands of Scotland and in some parts of the West of England till recent times (Maine, Early Inst, p. 101). There is no evidence, however, in the Brehon code, as now published, of merely family occupancy, in which one household living together, or even one village community, enjoyed the land and its produce in common, although such an origin may be theoretically conjectured for the institutions described. The social unit comprised separate families and households numerous enough to occupy a crich or quasi manor, within which existed a court and complete system of primary social organization. In each of these, mensal lands were set per-manently apart for the chief, and means existed by which portions of the common land could, within certain limits, be acquired in severalty by individual owners. The crich formed portion of the tuath, or quasi barony, one or more of which constituted the mor tuath, or petty kingdom, equivalent to -i county or several counties, governed by a ri or regttlus, who, in theory at least, bore allegiance, through superior reguli, to the monarch. The grades of rank were numerous, but the distinctions of wealth which grounded them appear very arbitrary. The upper classes were all "Aires." To be eligible to the aire grade, the freeman should possess, besides a certain amount of wealth in cattle, a prescribed assortment of agricultural implements and household goods, the meagreness of which exemplifies the slow progress of the arts of life in early states of society, and he should have a house of given dimensions, ranging from 17 to 27 feet in length, and containing a given number of compartments. The houses were of timber and wattle-work, surrounded by open spaces of prescribed extent for each class. The lower limit for this space was the distance to which the owner seated at his door could throw a missile of given weight; multiples of that distance determined its extent for the higher classes. Tacitus has noticed a like custom of keeping clear spaces round the several dwellings among the early Germans; and this regulation has probably contributed to retard the progress of the early Irish out of pastoral and agricultural into civic habits. There was a serf and slave population, who were designated ernaans, as representing the earlier Firbolg and Pictish colonists, who did not enjoy these privileges, except by the process of becoming fuidhirs or tenants of the separate lands of the nobles, who called themselves Gaidel, or Gael, and claimed a different descent. Besides these tenants, or "feuers," there were dependants called ceiles, who stood to the wealthy classes in a relation re-sembling that of the clients of the Roman commonalty to their patrons. Both they and the fuidhirs owed suit and homage to their jiaths or lords, as well as services and rents in kind and in refections. The food-rents, biadh, corresponding to the Anglo-Saxon feorine (whence "farmer"), were supplied both at the residences of the chiefs and at the tables of their tenants, whence originated the customs of coyne and livery of later times.
The use of coined money was practically unknown, and the unit of value (sed, seota, " assets ") was the cow. The ceiles appear to have been attached to their lords by largesses, or " commendations" of cattle which they used in their own tribal lands. It is in the fuidhir class that a law of tenure of land originated, and possibly in these relations we may discover the rudiments of a partly-developed feudalism. The fuidhir is, in the theory of the native etymologists, the fo-tir or " land-underling," as one who holds land of another. The rules regulating these several kinds of enjoyment of the land are peculiar to the Brehon code, and, as may be observed of all its provisions, are extraordinarily minute, being designed to fix all rights and liabilities, under every prob-able state of circumstances, in values numbered, which may be one cause for the slow social progress made under their operation. For each supply of cattle to the ceile a definite return to the aire is fixed to the end of seven years, when the property vests in the ceile. But the supply should not exceed fixed limits if the recipient would pre-serve his status as a freeman. The. fuidhir, or base tenant, was bound to larger returns- in rent and services, and the lord might, on violation of the tenant's engagements, resume the possession of the land ; but it would appear that during the fuidhirs occupation he could not be otherwise disturbed without a measure of compensation. On the death of the ceile or of the fuidhir, a quasi heriot was payable to the lord.
The succession to the territorial headships was elective within hereditary limits; the succession to tribal rights of occupancy, and individual rights of ownership in the separate hereditaments acquirable by individuals, was hereditary. The law of distribution of a deceased person's property is very minute in its provisions, though obscure, owing to the technical description of the classes and persons entitled ; but it appears to have contemplated divisions per capita and not per stirpes. The law of marriage is remarkable for the variety of irregular relations which it appears to sanction, and for its careful protection of the separate property of the irregular as well as of the lawful wife, both during cohabitation and on separation, which appears to have been frequent. The lawful wife seems to have had no other protection against the introduction of the " adal-traich " wife than the withdrawal of her separate property, in addition to certaifi mulcts payable to her on the occasion. She possessed independent rights of alienating a portion of her separate property, and could, to some extent, control the rights of alienation of her husband. The looseness of the marriage tie evidenced by these laws was one of the evils calling for reform alleged by the Irish prelates in their letter moving Pope Alexander III. to ratify the grant of the island made by Adrian IV. to king Henry II.
The practice of putting out the children of the wealthier classes to be nursed and educated may have contributed to make such relations less incompatible with domestic peace. The law of fosterage, of which few if any recognizable traces, outside the law of apprenticeship, have survived elsewhere, provides for the external nursing and educating of the children of the upper class by poorer members of the community, who, besides the fosterage-fee received with the infant, had a claim on the foster-child for support in old age. The fostering began from infancy, and ter-minated, in the case of daughters, at thirteen, and of sons, at seventeen years of age. A certain amount of instruction should be imparted. Girls of the less wealthy class should be taught to use the handmill (quern) and sieve, to bake, and to rear young cattle; tbose of the higher class to sew, cut out, and embroider. The boys should learn kiln-drying and wood-cutting, and those of the upper class chess-playing, the use of missiles, horsemanship, and swim-ming. The lawful food for all was porridge. Their clothing, besides the nursing clothes supplied by the parents, was according to their status, from sober coloured stuffs for the children of the less wealthy to scarlet cloth and silks for the children of those of the rank of king. Provision was made for the necessary correction of the pupil, with mulcts for excess. During the pupilage, the foster-father was entitled to all compensation for injuries to his charge, and liable to all mulcts for their offences. If the child died in its pupilage, another might be sent in its place. If returned before the completion of the term, or imperfectly educated, the foster-father should refund. The fixing of the proportionate amounts due in the several cases gives rise to much minute regulation. The law of military service like the others, was based on a system of fines leviable for non-attendance and even for desertion in the field. To what has been said on the land-law it may be added that public contributions were leviable for the repair of roads and bridges, and the maintenance of the chiefs or king's fortresses; and that each community had a public mill, fishing-net, ferry-boat, &c, besides such objects, of this kind as were possessed in severalty by the wealthier members. There was also a law of waifs and strays, and of wrecks of the sea, with provisions for the entertainment of shipwrecked seamen at the common charge of the district entitled to the distribution of the wreck. There is little mention of testamentary disposition ; and from the language employed, a Eoman origin may be probably surmised for i it. To counterpoise the excess of privilege incident to the possession of wealth, the mulcts payable for misfeasances and nonfeasances of all kinds were graduated in the interests of the poorer classes. Crime and breach of con-tract might reduce from the highest to the lowest grade.
As regards the law of contracts generally, the disabilities arising from tribal partnership, infancy, imbecility, cover-ture, and obligation to the lord give rise to many excep-tions and qualifications, the general rule being that acquiescence, after notice, by the parties jointly interested, or standing in relations of protectorship, has the effect of validating what would otherwise be void. Distinct periods are limited within which the parties entitled to disagree may avoid the bargain ; and, in all cases, a locus pos?iitentice of twenty-four hours is annexed to the oral agreement, within which time either party may rescind it. The nature and effect of a warranty on sale appears also to have been understood and provided for; and frequent reference is made to the cases arising on unsoundness, latent or supervening. There are some traces of a law of the market, but how far, if at all, it qualified the ordinary rules of contract, does not appear. The Aenaclis, or great fairs, were held at distant places and at long intervals of time. Various immunities are given to the persons fre^ quenting them; and a violation of some of the necessary provisions for securing the peace and decorum of the meet-ings was exceptionally punishable with death, while almost every other offence might be condoned by a pecuniary payment. A highly interesting account of one of these great assemblages, which was held triennially at Carman, near Wexford, is given in a tract translated in the 2d series of O'Curry's Lectures, where, among the various classes resorting there for amusement and traffic, mention is made of Greek merchants bringing commodities for sale. The laws themselves give little intimation of their own origin or sanctions. They appear to have undergone no substan-tial changes from time immemorial; but some evidence exists of local law-making authority exercised at meetings of the freemen of the crick, subject to revision by some higher authority, and one of the objects of these fairs or comitia was to publish such enactments as well as the general body of the laws and customs from time to time. The law of torts regarded all offences, with the nominal exception of murder, as condonable by fines until the offender and those liable for him could pay no more, when the defaulter lost his status and fell into the servile class. For some of the offences of the individual, the finne or family were responsible; for others, particular sureties. Whether this system of quasi frank-pledge did not extend to breaches of contract, as well as to cases of non-feasance, misfeasance, and breaches of the peace,-appears uncertain. The scale of mulcts for the several sorts of homicides, wounds, and personal hurts, is in out-line the same with those of the other western European nations; but, in addition to their definite fine of so much for such and such a lesion or bruise, it provides by rateable deductions for excusatory circumstances of intention, knowledge, contributory negligence, accident, and necessity, all of which are considerable refinements on the contempor-aneous systems of the Continent. The penalty of death for murder was of ecclesiastical introduction, and, like the law ordaining the payment of tithes, appears to have fallen into desuetude before the Conquest. Chief Baron Gilbert, in Dwyer's case (Gilb., Ev., vol. i. p. 9) has an observation apposite to the state of society disclosed by this system of measured mulcts and mutual suretyship, in treating of the state of Britain before murder had become punishable with death under the later law of Canute:—
" It is not very hard to conceive how the kingdom was maintained hy pecuniary mulcts only ; for in those days every man was put in the Decenna (tything); and if found wandering three days out of the Decennary, he was taken up and imprisoned, and he was pre-sently to abjure the kingdom, or else he lay at the mercy of every one that could lay hands on him. And if any offence was comfoiitted in any of the Decennaries, if the party was brought to answer, he was obliged to pay his fine for his offence, or he was imprisoned for ever ; and, if he fled, the tything was answerable for his fine or mulct to the king. So that by this discipline men were put under a necessity of being innocent, or paying a grievous fine, or being totally deprived of the conversation of mankind. And the laying of the fine on the tything, in case the offender fled, made it the interest of every man to bring the offender to light, and made it exceeding difficult to conceal a theft or a murther."

Imprisonment, among the Irish at the period of these laws, does not appear as detention in a common gaol, but as a personal fettering of the culprit ; and some of their subtlest distinctions concern the liability of the person bound to provide the fetters, in case of the culprit's escape. It has been suggested with much appearance of reason, that refinements of this kind, inter apices juris, with which the Brehon law abounds, are rather exercises of the writer's ingenuity in framing suppositional cases illustrating classes of abstract rules than evidences of any actual application of law to the particular subjects. Such are the law of the measure of damages for injuries by bees, by cats, by the hunting hound, by traps for game, &c, all which are elaborated to a pedantic nicety. Of the courts in which these laws were administered we have but an imperfect view. The primary local tribunal was a quasi court baron, called the Airecht, composed of freemen of a certain status. The inferior classes were écorna airechta, that is, "impares curiae." The office of Brehon in the court is very obscurely indicated. The stays and imparlances (anad, esain, dithim), &c, incident to the process of bringing causes to final judgment, and the fact that damages were, in all cases of ordinary occurrence, assessed beforehand by specific rule, gave repeated opportunities for settling out of doors. There were professional advocates and means of carrying the case to courts of higher jurisdiction, but how these were consti-tuted does not appear ; but mention is made of several gradations from the airecht urnaidh (sheriff's tourns ?) to the cul-airecht, or ulterior court, which indicates some resort by way of appeal. Their rules of evidence, in addi-tion to the testimony of the eye, admitted, in questions of title to land, that of the ear, cluais, or general report, and laidh (cantus) or history in the form of a poem publicly recited (a remarkable example of practical functions be-longing to the office of a bard) as well as the evidence of landmarks or mearing stones. These, it seems (O'Curry, 2d series, Sullivan, Introd., clxxxvii.), should be sunk under the surface, as Martin in his account of the Western Isles of Scotland (p. 114) has described : —
" They preserve their boundaries from being liable to any debates by their successors, thus. They lay a quantity of the ashes of burnt wood in the ground, and put big stones above the same ; and for carrying the knowledge of this to posterity, they carry some boys from both villages next the boundary and then whip 'em soundly and tell it to their children. A debate having arisen between the villages of Ose and Groban in Skye, they found ashes as above men-tioned under a stone, which decided the controversy."
This gives countenance to the tradition that, prior to the reign of Aed Slaine in the 7th century, there were no fences in the country, but all was open save the walls and mounds surrounding dwellings. It is difficult to accept this statement unreservedly, partly on account of the habit of assigning fabulous origins indulged by all archaic, and notably so by the Irish writers, but chiefly because the Brehon code comprises a very full law of fences. The materials, dimensions, and several sorts of quick-setting of these are laid down with great particularity, and the rights and liabilities of adjoining owners are minutely described. Returning to the subject of judicial administration, we have a much clearer view given of the nature and incidents of process by which the jurisdiction of the court was made to attach, than of the constitution of the court itself. This was -by distress, or the seizure of the goods of the defendant, in some cases immediate, in others preceded by summons, and, in the case of the privileged classes, by trosgad or fasting on the part of the plaintiff, a practice still known in some parts of India, and much relied on as an evidence of common Aryan origin for the ancient Irish and present Hindu legal systems. The distress might either remain in the hands of the defendant, if of the superior grade, by way of attachment (fornasc), subject to a lien, on security for his appearing and abiding the award of the court, or it might at once be driven to a pound (forus). Here it was kept during a certain time or " stay " (anad), varying with the nature of the complaint, during which the defendant might have it back on like security. Failing this, a process of forfeiture (lobad) commenced, and ultimately the dis-tress, or so much of it as sufficed to satisfy the claim, vested in the plaintiff, the defendant receiving back the balance, if any. On security being given, the merits of the dispute were determined by the court. A proceeding analogous to the action of replevin was thus incidental to every litiga-tion ; and this appears to have been the early course of the common law in all the local courts, not proceeding on the king's writs, both of England and Scotland, down to the times of Bracton (fo. 156. 2, Reeves's Hist. Eng. Law, 59), and of the enactment " Quoniam attachiamenta" (Leges Bar. Scot., i. and cxi.). One of the few cases cited in the Brehon law (vol. i. p. 65) states the procedure in what was substantially an inter-tribal action of ejectment for recovery of land, in the incidents of which a resem-blance is found to many principles of jurisprudence and methods of procedure of the common law of England, such as prescription, limitation, set-off, entry, ouster, distress, rescue, fresh pursuit, withernam, replevin, surety in replevin, avowry, Welsh mortgage, writ of possession, and return of distress. The case was this:—
Land had been assigned by way of Welsh mortgage in part pay-ment of a mulct or fine. The mortgagee and his descendants re-mained in possession until it became a question whether the law of prescription (rudracl) had not given them the absolute estate. To try the title, a bailiff of the claimant tribe put his horses on the land. The bailiff of the tribe in possession drove them off, ac-companying the act with an admission that formerly the claimant tribe had been in possession. The claimant's bailiff then distrained three cows of the occupier's bailiff outside his cattle shed, and drove them to the border of the territory, where they lay down. It would have been his duty here to give public notification of his proceedings, and to have driven his distress to the nearest pound of the external territory ; but the cows, not having been milked, escaped, and returned to then' calves, which had been left behind. The distrainer, making fresh pursuit by the traces of the milk dropped on the ground (regarded probably as a constructive keeping in view), recaptured them at daybreak at the homestead of the owner, and, with them, in addition, distrained and impounded three [six !] others, taken from [out of] the door of the cattle-shed, by way of aitherach gabail, or second caption, to double the amount for what seems to have been considered a constructive rescue implied by the escaped beasts being again in the owner's custody. Notwithstand-ing these facts, the regularity of the proceeding was admitted by the tribe in possession, whose regulus now came forward and had back the distress, on giving pledges to try the question at law, and to return the cattle if unsuccessful. Further security was also given by him for some other liability. The action which, so far, was in the nature of replevin, now assumed the character of eject-ment, and the personal wrong of ousting the bailiff who had made the entry merged in the question of title to the possession of the land. It was held that the period of prescription, being the time of three successions to the kingship, had not expired, one of the successions being irregular. The land was, therefore, still redeem-able, and, on taking an account and setting off the receipts, includ-ing a mulct of less amount due by the mortgagee, against the original balance due to him, it was found he had been fully paid, and a return of the cattle was awarded, and possession of the lands de-livered to the claimant. (See "On the Rudiments of the Common Law discoverable in the published portion of the Senchus Mor," in Trans. Soy. Irish Academy, vol. xxiv. p. 83, 1867.)
It appears from this that the provisions of the statute of Marlbridge (52 Henry III. c. 4) in England, forbidding the driving of distresses beyond the bounds of the county, and of the " Regiam Majestatem " (re-enacted by 1 Robert, i. c. 7) in Scotland, requiring that when driven beyond the bounds of the territory the distress shall be exhibited before witnesses, are to be regarded not as merely intro-ductive enactments, but as substantially declaratory of the previous state of the common law; further, that the old opinion that " all administration of justice was at first in the king's hands, but afterwards, as the kingdom was divided into counties, hundreds, &c, so the administration of justice was distributed among divers courts, of which the sheriff had the government of the county court, &c.," is probably grounded on an inversion of the actual progress of the facts; and that when it is said of the right to recover land in a personal action, of set-off, and of other equitable incidents of justice, that such rights did not exist at the common law, the words " in actions commenced by original writ," should probably be understood; for there is no difficulty in conceiving how all the main incidents and principles of law disclosed by the Irish case could have arisen regularly in the county court, always a court of equity for the defendant, when the bishop was associated with the sheriff, and the right of the suitor to be his own apparitor had not yet been abrogated by the law of Canute, re-enacted by William I. (Leg. Qui. Conq., xliv.). How these resemblances have come to exist in the early laws of the two islands may be a question for the historian and ethnologist. It is well to know that, whencesoever derived, the common law may to so great an extent be recognized as substantially a common inheritance of all the popula-tions now organized into the United Kingdom. (s. r.)








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