Development of Brehon Law
Info taken from the following sites:
An tSeirbhis Chúirteanna Courts Service – http://www.courts.ie/Courts.ie/library3.nsf/pagecurrent/3CBAE4FE856E917B80256DF800494ED9
New Advent – http://www.newadvent.org/cathen/02753a.htm
Early Irish Law – http://en.wikipedia.org/wiki/Early_Irish_law#Origins
The Brehon Law – http://www.danann.org/library/law/breh3.html
Brief Outline of Brehon Law and replacement by English Common Law
Early Irish Law, referred to as Brehon Law, comprised the statues which governed everyday life in Early Ireland. Prior to English rule, Ireland had its own indigenous system of law dating from Celtic times and survived until the 17th century when it was finally supplanted by English common law.
The Brehon Law system developed from customs which had been passed on orally from one generation to the next. In the 7th century AD, the laws were written down for the first time. Brehon law as administered by Brehons (or brithem). These administrators were the successors to the Celtic druids. While similar to judges, their role was closer to that of an arbitrator. Their task was to preserve and interpret the law rather than to expand it.
In many respects Brehon law was quite progressive. It recognized divorce and equal rights between the genders and also showed concern for the environment. In criminal law, offenses and penalties were defined in great detail. Restitution rather than punishment was prescribed for wrongdoing. Cases of homicide or bodily injury were punishable by means of the eric fine, the exact amount determined by a scale. Capital punishment was not among the range of penalties available to the Brehons. Furthermore, all law was essentially civil, where offenders had to answer only to the victim and the victim’s representatives. The absence of either a court system or a police force suggests that people had strong respect for the law.
The first encroachment on Brehon law came in 1155, when Pope Adrian IV issued the Bull Laudabiliter endorsing King Henry II’s plan to conquer Ireland. This was followed by the Anglo-Norman invasion led by the Earl of Pembroke, Richard de Clare (Strongbow) in 1169. In 1171 King Henry II held a Council (known as the Curia Regis or King’s Council) at Waterford. It declared that “the laws of England were by all freely received and confirmed.” This declaration was more aspirational than realistic. English law was initially applied in most of the province of Leinster, where Henry II had granted feudal land rights to Strongbow. In 1172 Henry appointed Hugh de Lacy as the first Justiciar (administrator of justice) of Ireland.
In 1204 King John authorized the issuing of writs, essentially directing the Irish courts to apply the common law. In 1226 King Henry III ordered the Justiciar to adhere to the laws and customs of England. A year later, a Register of Writs, containing copies of all the writs issued by the English courts, was sent to Dublin. The first recorded appointment of an Anglo-Norman judge came in 1221. English law declined in influence during the 14th and 15th centuries, during which time the Normans, through inter-marriage with the native Irish, were said to have become ‘more Irish than the Irish themselves.’
England sought to re-assert the supremacy of its Parliament and of English law over any Irish Parliament or Irish legislation by enacting the Statutes of Kilkenny in 1366. This was followed by the enactment of two statutes at a Parliament held in Drogheda in 1494, together known as Poyning’s Law, which provided that the King’s Privy Council must give prior assent to the assembly of an Irish Parliament and to the introduction of any specific legislation in the Irish Parliament, and that all laws passed in England applied to Ireland. Despite this, by 1500 English law was confined to an area known as the Pale, made up of Dublin and the east coast. Beyond the Pale, Brehon law continued to be applied.
It was not until the reign of King Henry VIII in the mid-16th century that English law extended further. He implemented a scheme of ‘surrender and re-grant’ of the land held by native noble families, which brought them within the feudal system of land tenure. Moreover, the King’s break with the Roman Catholic Church led to the dissolution of the monasteries and the re-distribution of church land. English law gained a further foothold following the ‘Flight of the Earls’ from Ulster in 1607 and the consequent Plantation which saw the land being granted to Scottish and English settlers. The Flight of the Earls had an added significance in that it removed the Brehons’ remaining source of patronage.
During the early 1600s, the English controlled courts in Ireland rejected the Brehon rules of succession in favor of the English law of succession. In the latter case, the court, applying the rule of recognition, held that the native laws of a country survived if they were reasonable, certain, of immemorial usage and compatible with crown sovereignty. The court held that the native law failed to meet these requirements. The end of the Brehon Law’s authority was signaled by the Proclamation of King James I in 1603, which received the Irish people into the King’s protection. The country was subsequently divided into counties and English law was administered throughout the country.
Principal Provisions of Brehon Law
What is known of the principal provisions of the Brehon code is entirely owing to the labors of two men, O’Curry and O’Donovan, who were the first Irish scholars to penetrate and understand the difficult and highly technical language of the ancient law tracts. After much laborious work in the libraries of Trinity College Dublin, in the Royal Irish Academy, in the British Museum, and in the Bodleian Library at Oxford, O’Curry transcribed eight volumes full of the so-called Brehon Laws containing 2,906 pages, and O’Donovan nine more volumes containing 2,491 pages. Their labor was by any means exhaustive. There are many more valuable Brehon documents still untranscribed in the library of Trinity College, in the British Museum, and in other repositories. The works of O’Donovan and O’Curry do not by any means contain the whole of Irish law literature.
Irish Social Organization
We are able to gather fairly well from these books the remains only of what must once have been an immense law literature, the social organization of an advanced Celtic people.
Broadly speaking, the country was governed by a ruling class called “Kings”, of different grades, the highest being the High King of Ireland, and next to these were the nobles or princes called in Irish, Flaith (pronounced like flah or floih). In all there were, including kings and flaiths, seven 7 levels of different kinds of nobles. Provision was also made whereby a wealthy farmer or peasant, grown rich through cattle, could become a noble of the seventh or lowest degree. Thus wealth and descent were carefully balanced against each other. “He is an inferior chief whose father is not a chief”, says the law. But it took care at the same time not to close to anyone the avenues to chieftainship.
Under ancient Irish law the land did not belong to the king or the chief or the landlord, but to the tribe, and the lowest of the free-tribesmen had as much an inalienable right to his share as had the chief himself. Over time parts of the tribal territory appear to have become alienated to sub-tribes or families. The chief, who always exercised certain administrative duties with respect to the land, appears to have had certain specific portions of the tribal land allotted to himself for his own use, and for the maintenance of his household and relatives. He was in no sense, however, what is now known as a landlord, although the whole tendency of later times was to increase his power at the expense of his tribe and vassals.
The great bulk of the ancient Irish were the free-tribesmen from whom the Brehon law is called in Irish Féineachas, or the “Law of the Free-tribesmen”. In hours of distress Free-tribesmen found themselves involved in financial transactions with their head-chiefs, and, owing to poverty, or for some other reason, were driven to borrow or accept cattle from them, either for milk or tillage. These tribesmen became the chieftain’s céiles (kAlas) or vassals. They were known as Saer-stock (Free Tenants) and Daer-stock (Unfree Tenants) Céiles. The Free Tenants accepted only a limited amount of stock; and retained their tribal rights, always most carefully guarded by the Brehon law. But the Unfree Tenants who took stock from his chief, became liable for heavier but still carefully defined duties. Those tribesmen who accepted stock from his chief, parted to some extent with their freedom. However, their interests were carefully looked after by law, and it was provided that after food-rent and service had been rendered for seven years, the tenant should become entitled to the stock deposited with him should the chief die. If, on the other hand, the tenant died, his heirs were partly relieved from their obligation. By accepting stock from their overlords, a rent-paying class grew up in Ireland.
But outside of the Free-tribesman, there gradually grew up a class of tenants who were not free, who in fact must have been in something very like a state of servitude. These were known by the name of fuidirs or bothachs, i.e. cottiers. They appear to have been principally composed of outcasts from foreign tribes, fugitives from justice, and those driven out of or forsaking their own tribes. They sought refuge under some other chief. These men must have been natural objects of suspicion and became entirely dependent upon the chief, who settled them down upon the outlying or waste lands of the tribe. The Chief also imposed upon them far heavier tolls or rents than the law permitted to be exacted from any other members of the tribe. This group increased as Ireland became more troubled by invasions.
Irish Criminal Law
There seems to have been no hard and fast line drawn between civil and criminal offenses in Brehon law. They were both sued for in the same way before a Brehon, who heard the case argued. He either acquitted or found guilty and assessed the fine. In the case of a crime committed by an individual all the clan were liable. If the offense were one against the person, and the criminal happened to die, then the liability of the clan was wiped out, for, according to the maxim, “the crime dies with the criminal”. If, however, the offense had been one causing damage to property or causing material loss, then the clan remained still liable for it, even after the death of the criminal. This regulation resulted in every member of the clan having a direct interest in suppressing crime.
There was also a fine inflicted for manslaughter, even unpremeditated, which was called an eric. If the manslaughter was premeditated, or what we would call murder, the eric was doubled. It was distributed to the relatives of the slain in the proportion to which they were entitled to inherit his property. If the eric were not paid, then the injured person or family had a right to put the criminal to death. This acceptance of a blood-fine or eric for murder was a great source of scandal to the English. But, it was really a beneficent and logical institution, made necessary by the number of tribes into which Ireland was divided. Every man, from king to the lowest class of tenant, had his honor-price. This honor-price was forfeited in part or in whole, according to well-defined rules for various crimes.
- The honor-price was always forfeited for taking human life.
- Clergy were more heavily punished than laymen.
- Men of high rank were always fined more than one of lower rank for the same misdemeanor.
- An assault on a person of rank was more severely punished than one on an ordinary man.
- Fines for crimes against the person were particularly heavy; two cows, for instance, was the fine for a blow which raised a lump but did not draw the blood.
The punishments awarded by the Brehons were of a most humane character. There is no trace of torture or of ordeal in ancient Irish law.
From the earliest times in which the English invaders made the acquaintance of the Brehon law system they denounced it with great severity. However, Norman chiefs who ruled over Irish tribal lands governed their territories by Brehon Law in preference to English law. During Elizabeth’s reign the great Shane O’Neill pointed out with bitter irony three hundred families migrated from the English-controlled pale and English law to take refuge in his dominions, governed by Brehon Law. In 1367, the English Statute of Kilkenny denounced Brehon laws as “wicked and damnable”. “Lewd” and “unreasonable” are the epithets applied to it by Sir John Davies. The English poet Edmund Spenser, characterized it in this way: “In many things repugnant quite both to God’s law and man’s”
The student, however, who views these laws from a juridical point of view, will find in them, to use the words of the great English jurist Sir Henry Maine, “a very remarkable body of archaic law unusually pure from its origin”. It is, in fact, a body of law that reflects for us early Celtic custom in its purity and almost perfectly uninfluenced by Roman law, which overran so much of the rest of Europe. Brehons, in fact, appear to have never hesitated about inventing or imagining facts upon which to base their judgments. They endeavour to deal with all cases and all varieties of circumstances, and they had special rules for almost every relation of life and every detail of the social economy.
Origin and Gradual Growth
Ancient Irish law was not produced by legislation, but grew up gradually round the dicta and judgments of the most famous Brehons. These Brehons may very well have been in old times the Irish equivalents of the Gaulish Druids. There were only four periods in the entire history of Ireland when special laws were said to have been enacted by legislative authority: first, during the reign of Cormac Mac Airt already in the third century; second, during the time of St. Patrick; third, Cormac mac Culinan, the King-Bishop of Cashel, who died in 908; and lastly by Brian Boru, about a century later. However, much of the Brehon code appears to have been traditional or to have grown with the slow growth of custom.
The essential idea of modern law is entirely absent from the Brehons. There are no sanctions laid down in the Brehon laws against those who violated them, nor did the State provide any such sanction. This was the great inherent weakness of Irish jurisprudence, that it lacked the controlling hand of a strong central government to enforce its decisions. It is a weakness inseparable from a tribal organization in which the idea of the State, which had begun to emerge under the early Irish kings, had been repressed.
When a Brehon had heard a case and delivered his judgment, there was no machinery of law set in motion to force the litigant to accept it. The only executive authority in ancient Ireland which lay behind the decision of the judge was the traditional obedience and good sense of the people, and it does not appear that this was ever found wanting. The Brehons never appear to have had any trouble in getting their decisions accepted by the common people. The public appear to have seen to it that the Brehon’s decision was always carried out. This was indeed the very essence of democratic government, with no executive authority behind it but the will of the people. There can be no doubt whatever that the system trained an intelligent and law-abiding public. Even Sir John Davies, the Elizabethan jurist, confesses “there is no nation or people under the Sunne that doth love equal and indifferent justice better than the Irish; or will rest better satisfied with the execution thereof although it be against themselves, so that they may have the protection and benefit of the law when upon just cause they do desire it”.
Influence of the Catholic Church upon Brehon Law
With regard to the influence of the Catholic Church upon Irish law as administered by the Brehons it is difficult to say much that is positive. Its influence was probably greatest in a negative direction. However, it is the introduction of Christianity that Irish law began to be written down. Under the influence of St. Patrick, native Irish law was mixed with the law of the Chruch. Scholars believe that the conception of a Will was grafted upon Brehon Law by the Church, reflective of Latin influence.
However, the Church may have exercised a greater influence on the Law of Contract. It is also likely that much of the law relating to the alienation of land, all the land belonging originally to the tribe, was influenced by the Church, and indeed the Church seems to have been the grantee primarily contemplated in these regulations. There is a great mass of jurisdiction relating to its territorial rights, and no doubt this must have affected the outside body of law as well. Still the effect of Christian principles must certainly have been great, but they were probably powerful as a negative rather than as a positive factor.
Extinguished by the English
The Brehon law code was ultimately extinguished by the English in every part of Ireland. So soon as they conquered a territory they stamped it out, banished or slew the Brehons, and governed the land by English law. It would have been a very inconvenient doctrine for them that the tribe owned the land or that the people had rights as apart from the chief. Whenever a chief made his submission he was recognized as owner and landlord of the territory of the tribe, and the territory was adjudged to descend to his eldest son. In this way the hereditary rights of the mass of the people of Ireland were taken from them, and they were reduced to the rank of ordinary tenants. The native nobility being soon exterminated, land rights mostly fell into the hands of English landlords.
The Brehon laws remained in force in every part of Ireland where the Irish held sway until the final conquest of the country. Amongst the many bitter injustices inflicted upon Ireland and the Irish by the English conquest none has had more cruel or more far-reaching effects than the abrogation of the Brehon law relating to land-tenure and division of property.
Women and Marriage
By the 8th century Irish society under the Brehon Laws, although male-dominated, allowed women greater freedom, independence and rights to property than in many other European societies of the time. In the later tracts of the Senchas Mar, men and women held their property separately. The marriage laws were very complex. For example, there were scores of ways of combining households and properties and then dividing the property and its increase when disputes arose.
Divorce was provided for on a number of grounds (e.g. impotence or homosexuality on the husband’s part), after which property was divided according to what contribution each spouse had made to the household. A husband was legally permitted to hit his wife to “correct” her, but if the blow left a mark she was entitled to the equivalent of her bride-price in compensation and could, if she wished, divorce him.
Property of a household could not be disposed of without the consent of both spouses. However, in certain law tracts, women were still largely subject to their fathers or husbands and were not normally permitted to act as witnesses, their testimony being considered “biased and dishonest”.
Another aspect of Irish society in which women appeared to have gained status is the role of queens and chieftain’s wives in political life. This is reflected in later documents in which the office of queen seems to connote political power of some sort, compared to earlier ones in which a queen was referred to merely as a king’s consort.
- There were three levels of kings:
- Ard-Rí (High King)
- Provincial King
- Tribal King
- Kings were ranked at the top of the social order.
- They were parallel with bishops and the highest level of poets.
- Individuals were ineligible for kingship if they were blemished.
- To a certain degree, kings acted as agents of the law.
- But unlike the kings of Europe, Irish kings had very little authority to modify the law.
- They could issue a temporary law in times of emergency.
- But Irish kings could not, by their own authority, issue permanent law codes.
- When a king had to sit in judgement, he had to do so in accordance with the laws.
- Kings were not above the law.
- In fact, some stipulations applied specifically to the king.
- However, as the most powerful individual, it was difficult to enforce the law against he.
- To get around this, a dependent of the king could be enforced against instead.
- The laws also specified certain cases in which a king lost his honor price.
- Doing the work of a commoner,
- Moving around with a group of advisors or protectors, and
- Showing cowardice in battle.
- Laws also commented on how a king was to arrange his life y holdings.
- Mondays for judging
- Tuesdays for playing the Celtic board game fidchell (equivalent to chess)
- Wednesdays for watching hounds hunt
- Thursdays for sexual union
- Fridays for racing horses
- Saturdays for judging (different from the Monday judging – but the distinction is not clear)
Status in early Ireland was not entirely rigid and it was possible for a family to raise their status. If three consecutive generations—grandfather, father, and son—had the property qualifications of a lord, or the poetic qualifications of a higher level poet, etc., then the member of the third generation became a lord. On the other hand, the son or grandson of a lord, or a poet, etc., who did not have the proper qualifications, did not have that status. However, the grandson of a person with a certain status could have that status themselves, assuming they had the proper qualifications, even if their father did not.
This created an interesting in-between stage. A commoner who had the property qualifications but not the parentage to become a lord, referred to as a flaith aithig. These individuals had status in between a commoner and a full lord. In the case of poets, a poet with skill qualifications but who did not have proper training was a bard.
In addition, there were ways that, in extraordinary circumstance, an individual could achieve higher status without having parents with such qualifications.
- Someone who chose to become a briugu (hospitaller) could have twice the normal property qualifications of a lord of whatever grade (and this can extend, in theory, up to the qualifications of a king).
- Further, a briugu had to open his house to all guests.
- This included feeding them, no matter how large the group—he could lose his status if he ever refused a guest.
- Because of that stipulation, the position of briugu was potentially ruinous.
A commoner might also ascend to the status of a lord if he is a aire échta (lord of violence). Such a person helped individuals to avenge deaths committed in another túath for a limited time after the cessation of hostilities, although the details are unclear.
A poet who had the skill and training of a rank, but not the proper familial qualifications received half the honor price that his skill and training otherwise earned.
A member of the property-owning classes could advance himself by becoming a “free client” of a more powerful lord, somewhat akin to the Roman system of clientship.
- The lord made his client a grant of property (sometimes land, but more usually livestock) for a fixed period of time.
- The client owed service to his lord, and at the end of the grant period returned the grant with interest.
- Any increase beyond the agreed interest was his to keep.
- This allowed for a certain degree of social mobility as an astute free client could increase his wealth until he could afford clients of his own, thus becoming a lord.
A poorer man could become a “base client” by selling a share in his honor-price, making his lord entitled to part of any compensation due him.
- The lord could make him a smaller grant of land or livestock, for which the client paid rent in produce and manual labour.
- A man could be a base client to several lords simultaneously.
Payment for Injuries
Although early Irish law recognized a distinction between intentional and unintentional injury, any type of injury was still normally unlawful and requiring compensation. The main exception is injuries received when the victim has gone into a place where injury is likely. In all other cases an injurer was responsible for paying a fine. The legal text Bretha Déin Chécht “The Judgments of Dían Cécht” goes into considerable detail in describing the fines based on the location of the wound, the severity, and in some cases the type.
According to that text, the payment was decided by a physician after nine days. Prior to that, the victim was cared for by his family and a physician. Some suggest that effects of the wound would be clear to a physician at that point if not before.
- First, either the victim would have died if such was likely, or it would be clear that the patient was in danger.
- If the first was the case, the injurer had to face punishment for murder, and in the second he had to pay a heavy fine called a crólige báis, “blood-lying of death.”
- If the victim had recovered but his wound was still present, it was measured and a fine paid.
- The wound was measured according to how many grains of a certain plant fit in the wound.
- The higher status one was, the smaller the grain used.
- Thus, there are nine grains mentioned in historical records, from a grain of wheat to a bean.
- If the wound did not heal, and thus the physical blemish was a problem for the victim’s honor, further payments were required.
- If the potential for such wounds could turn deadly, the physician was entitled to a greater share of the fine—one half.
- Similarly, if the wound caused constant vomiting or bloody urine the physician received a greater fee.
- If he patient would recover but still needed nursing, the injurer was responsible for that.
- This was known as sick maintenance.
- The injurer had to find a suitable location and move the victim.
- Then the injurer had to pay for food for the victim and a retinue—which could be considerable depending on the victim’s rank.
- The injurer also had to provide someone to fulfill the victim’s duties while he was incapacitated.
- He also had to pay a fine for the missed opportunity for procreation if appropriate.
- It was also required that the proper environment be kept for the victim during his sick-maintenances.
- Largely this means that anything that might cause loud noise was prohibited in the vicinity.
- This included fights by men as well as by dogs, playing of games, and disciplining children.
Later in years, this personal requirement of sick-maintenance by the injurer was eventually dropped in favor of a payment to secure the maintenance of the injured party. This was due to the difficulty in requiring sick-maintenance by individuals of high rank or maintaining care of troublesome individuals (such as the insane and women.)
Murder and Avoidance of Capital Punishment
Early Ireland has the distinction of being one of the first areas to shun capital punishment. While a murderer might be killed for his/her crime, this was the option of last resort. Instead the murderer typically had to pay two fines.
- One is the fixed éraic or cró, that is either a “body fine” or a “wergild”, and
- The other is the Log nEnech, an honor price owed to the kin of the victim that varied according to the status of the kinsman to whom it was owed and the closeness of his relationship to the victim.
Should the murderer be unable to pay by himself, his family was normally responsible for paying any amount the murderer could not pay. Should the family be either unable or unwilling to pay, the victim’s family took custody of the murderer. At this point, the victim’s family had three options. They could await payment, sell the murderer into slavery, or kill the murderer. Even then, the monetary possibilities may have discouraged capital punishment in some cases. In certain cases, though, where the murderer and victim were relatives, capital punishment could not be carried out as it would make the executioner commit fingal or kin-slaying.
Another situation where the murderer could be killed was when the murderer was at large and the fines had not been paid. The victim’s family apparently was responsible to launch a blood feud. It is, of course, unclear how often capital punishment was carried out in situations such as this. However, it is clear that that punishment could be avoided in most cases.
Early Irish law recognized a number of degrees of kinship, based on a belief that there was common male ancestor.
- The closest kin group that is defined is gelfine (bright-kin)—descendants of a common grandfather (including the grandfather’s relationships to his descendants and his children).
- This is followed by the derbfine (certain-kin)—descendants of a common great grandfather.
- Next is iarfine (after-kin)—descendants of a common great great grandfather.
- Finally, the indfine (end-kin), all of which contain the old Irish word for kin or family, fine.
The derbfine is, by far, the kin-group most commonly mentioned.
One member of the kin-group was its leader, known either as ágae fine (pillar of the family) or cenn fine (head of the family). He apparently was a senior member selected from the kin-group based on various qualifications. One of his main duties was to take responsibility for members of the kin-group, acting as a surety for some of the actions of members, making sure debts are paid (including for murder). If the member could not be made to pay, the fee was normally be paid by members of the kin. He was also responsible for unmarried women after the death of their fathers.
As mentioned above, the actions of a member could require other kin to pay a fine. However, in certain cases the kin-group could refuse liabilities, although in some cases only after they been proclaimed as a non-member, which might occur if the member did not carry out his responsibilities to the kin.
One particularly heinous crime in early Irish law was fingal (kin-slaying), because it was against a group that had some right to trust. The killer had to give up their kin-land, but was still liable for fines incurred by other members of the kin. An undutiful son might also be excluded from certain kin rights as well, especially as sons of a living father generally did not have significant rights of legal actions except as permitted by the father.
Early Ireland practiced partitive inheritance whereby each of the sons received equal portions. Any grandsons whose father predeceased, their grandfather equally split their father’s portion. Early Irish law typically did not distinguish between “legitimate” and “illegitimate” children, so any recognized, even those of concubines, received a portion.
On the other hand, disobedient sons were automatically excluded. In addition, adopted children could receive a portion of kin land, though status as an inheritor, and the inheritance amount had to be explicitly stipulated.
The divisions of land is somewhat obscure. One maxim suggests that the youngest son divided the land into equal parts. The eldest chose first, followed by the second and so on until the youngest received the remaining land. The intent was to make division of land equal. Other laws suggested that the eldest son had automatic claims to the buildings. However, there are some hints that this only happened if a younger son challenged a division. The normal practice was that the eldest son both divided and chose first, but had to divide equally. More rarely, a father might divide the land for his sons in his lifetime.
While a daughter with brothers did not normally receive a portion of the inheritance in land, she could inherit movable property. Should there be no sons, some of the law tracts allow the daughter to inherit a limited portion. However, unless her husband was a foreigner to the túath and had no land of his own, the land did not descend to her sons, but instead went to the other members of her agnatic kin group. Still, there was pressure for a woman with land to marry a relative to keep the land within the kin group.
Finally, if a man died with no children, the property was distributed between his nearest kin—first the descendants of his father, and if there were no such descendants, then between the descendants of his grandfather, and so on. Any extra land that daughters could not inherit because of female inheritance limits also went to the wider kin. The head of a kin group was entitled to extra property since he was liable for debts a kinsman could not pay.
Details of Brehon Law
At first glance, the surviving law texts carry a generally patriarchal tone. Women seem to be relegated to subservial and domestic roles. However, this was not always the case. The Biblical admonition that woman should submit to her husband was contrary to early Irish tradition, and no doubt, vigorously opposed. Objective analysis reveals considerable evidence that the Irish women, from the earliest of times, were equal partners to the men in war, love and peace.
We find references to Druidesses, women physicians and women sages. Women frequently took up arms and join the men in battle. It was only in 697 that they were at last exempted from warfare by the law known as Caín Adamnan. The reason for the law was that Adamnan’s mother Ronaít observed women in combat hacking each other with sickles. She prevailed on her son to bring about a ban of such barbarous activity. While it is true that much within even the early law-tracts indicate a diminished role for Irish women, we must consider the source and times.
The following are some of the equal rights that were enjoyed by Irish women:
- Just as the men, women could and did hold whatever social rank and profession they desired according to ability and opportunity (This included the professions and even tribal leaderships).
- Women were free to wed whomever she chose and even divorce at their own choosing.
- Women were absolutely equal to men in property matters.
- Neither husband nor wife could sell, barter or make contract for the property of the other.
- Upon divorce, property was divided by the same ratio as was held by the each when wed. (For example, if the bride had twice as many cows as the groom upon marriage, the woman kept twice as many cows as her ex-husband upon divorce.)
Clan and Social Classes
Irish society, up through the Iron Age, was based on the following units:
The Family unit traditionally consisted of living parents and their children.
- The next larger unit came to be known as the Sept, which consisted of a closely related group of families such as the families of children of one set of parents and normally bore the same surname.
- The Clan (from clann meaning children) was the next larger unit and counted lineage from one ancestor.
- The (tribe) was generally considered the smallest political unit.
- It’s components were formed of several septs, houses or clans which likewise claimed descent from a common ancestor.
- The adoption of non-blood related individuals or groups into the Clan was a general practice. However, it required the formal approval or consent from the Clan members (Fine).
- Such a process resulted in a generous mixture of outside blood and the thus in many Clans the theory of one ancestor for all members became, in fact, just theory.
- Some leading families kept careful records of genealogy to prove unblemished lineage, but with the widespread practice of adoption, it would seem that some creative recording was likely.
The various classes of society were as follows:
- Rí (or rulers)
The Rí were of several grades from that of the Tuatha to the Ard-Rí of Ireland. In earlier times, the Rí may be of either gender and was elected into the position. If the Rí proved unworthy, for whatever reason, he or she could be voted out of office and another elected in their stead. Also, a temporary leader could be selected by the people for a specific purpose such as warfare. The designation of a new ruler by heredity apparently did not come into being until between the 8th and 12th centuries. Even then it was not a universal practice.
- Nemedh (literally, privileged)
The Nemedh were the noble (uasal) class and were the upper level of society. Sometimes referred to as the Flaith. These were the intelligencia and the movers and shakers. These included the professionals such as historian, healer, law-keeper, stonemason, metal-smith, etc. They controlled the tribal land and determined allotment by size and quality. Outright “ownership” of land, as we know it today, was foreign to the Irish mentality and it was not until Norman occupation that true ownership came into being. Rather, land was held more or less “in trust” for the greater community. Several ranks of Uasal or Flaith existed and were generally in proportion to the amount of land and other properties held.
The Aire were rent paying freemen who owned property including cattle, and other movable goods. They were considered doernemed (non-privileged). Though they couldn’t hold land outright, they could “rent” land from a land-holder for certain fees which might include cattle or a percentage of harvested crops. There were several classes of Aire who were ranked according to their holdings. In some law texts, it appears that the Aire could become a Flaith and thus nemedh when sufficient goods were accumulated and he or she could prove that their ancestors had been land-holders. The Aire, like the Rí and the Flaith, participated in the government of the clan or tribe.
- Céile or Féine
The Céile were free tenants. That is they held little of any property and rented land from the Flaith. Under the law, they could rise to the position of Aire when enough property had been accumulated. Also called Féine and/or aithech, they formed the greater body of the populace and the farming class. The land they held was either tribal land or land held by a Flaith. The Féine were the most important part of the community. They were the middle-class of their day and the larger portion of the clan. They were the foundation of the society and the ultimate source of law and authority. The Féine included not only those working as farmers and herdsmen; it included trades and crafts. Of course some crafts such as precious metal workers were considered privileged beyond other less glamorous trades and could hold land in their own right and were considered Aire.
- Bothach and Sencleithe — Non-free
The non-free people of the tribe fell basically into three classes. They were the Bothach, Sencleithe and the Fuidir. The Bothach and Sencleithe were herdsmen, laborers, horse-handlers, other unskilled laborers and squatters on wastelands. They were all poor and dependent on the good graces of the Nemedh for their survival. They did however have one valuable possession. They were part of the tribe and, though without most of its rights, they could claim to live within tribal territory and had the right to support themselves through their own labor.
- Fuidir — Non-free
The Fuidir were the lowest class within tribal territory. They were not members of the tribe and had no land rights. They were permitted to live within tribal territory only by the good graces of the Rí. Any transgression could lead to immediate expulsion. Generally, the Fuidir was a stranger, often a refugee from another territory who, for whatever reason, had become a person without a tribe. The Fuidir were of two classes; saer-fudír and daer-fudír.
The saer-fudír were the higher. They were not free in the sense of the Céile, but they were-law-abiding and, coming into the district voluntarily could receive somewhat favorable terms when getting land on which to live and work. They had no voice in tribal government, but were not bonded as such. If they were successful in their endeavors, they could gain a status almost equal to the Céile. In legal matters though, they had no stature and could not give evidence against those of higher social rank.
This was the lowest social class in the tribe. It included captives taken in battle, escaped criminals, those convicted of crime and unable to make restitution and slaves. Yet in spite of their low state, the Law favored emancipation and it was possible for a Daer-fudír to be elevated to Saer-fudír and in rare cases, even higher.
Hospitality was a major feature of Irish culture:
- Under Brehon Law, all householders had some obligation to provide hospitality to free persons.
- The greater responsibility was that of the Rí who appointed an individual to ensure obligations of hospitality for the tribe was met.
- This office was called briugu (later “brughaid“).
- Mensal lands and herds were provided to support the operation of the hostelry.
- The Briugu could refuse no free person and their retinue.
- If he were to do so, he summarily lost his title and position.
- The office was usually filled by either one of noble birth or a wealthy non-noble who exhibited the desired abilities and characteristics.
- The role seems to have been much prized as a non-noble could acquire nemedh stature as well as being lucrative in material terms.
The law distinguished between two types of professionals devoted to the law. They were the Brithem (Brehon) and the Aigne. :
- The Brithem (Brehon) were classified in three grades.
- The highest of these is the “judge of three languages;” that is traditional law, poetry and canon law. His honor price is 15 séts.
- The next rank is the arbiter of traditional law and poetry, with an honor price of 10 séts.
- The lowest rank is considered only competent in matters relating to craftsmen and has an honor price of 5 séts.
- Each Tuath had its own arbiter who was appointed by the Rí.
- The Aigne equates to the modern court lawyer or barrister. He or she pleads the case in court and is entitled to a portion of the client’s award.
Children under the age of 14 had no legal right to independent legal action:
- They were the responsibility of either the natural or fostering parents.
- At the age of 14 they seemed to gain limited independence and thus limited legal responsibility.
- At the age of 17 were considered adult with full rights and responsibilities.
- The child attained half-honor price at the age of 7 and full honor price at maturity.
- By at least the middle Irish period, the attitude of the Church seems to have been that females should be married to either man or church by the age of 14. As with many other issues, the monastery texts are not all in agreement.
All land was common property. As such it belonged to the tribe rather than an individual:
- As common property, it could be re-apportioned to meet changing requirements of the tribal members.
- As time passed however, the custom of common property began to slowly erode.
- Lands held by some families remained in their hands for such extended periods, they began to be considered as private property.
- Still, very little of Ireland was held as private property until the Incursions of the Vikings in the 9th century and the Invasions of the Normans in the 12th century began to bring considerable change to Irish law and custom including female disenfranchisement and land-holding laws.
- The land held by a tribe or clan was divided into holdings by the smaller groups (family and sept) in a more-or-less permanent arrangement.
- Each smaller group’s holdings were considered separate and was not interfered with by any other group of the tribe.
- Land held by an individual was under one of five arrangements.
- The Tribe or Clan chief held a portion of mensal land for as long as he or she held office. In this case, mensal land means property set aside to support the additional responsibilities of rulership.
- The portion of land held by the individual clan member or tuath.
- A portion of individual clan member holdings assigned to a tenant. Such assignments were usually under a seven-year contract and could be sub-let to another tenant. However, the original tenant retained responsibility to the original holder. Fees were paid for such tenancy were usually in cattle, hogs and/or a share of crops grown.
- The larger part of arable tribal territory was held in general trust. It belonged to the people in general and was normally allotted into sub-divisions for the various septs and families. None of this was considered “private property,” but was occupied by free members of the sept on more or less permanent basis. Every freeman had a right to a share. Land so held was not assigned for a fixed term, as it remained liable to occasional reassignment, usually every three or four years. It was also subject to gabhalaichean (Anglicized to gavelkind), a method whereby land held by a deceased tenant was redistributed. While these provisions may seem rather tenuous, individual rights were guaranteed. An individual could not be removed from his holdings until time of gaveling. Even then, each individual kept his crops and was compensated for un-exhausted improvements. While the person might lose one farm, it was always replaced by another.
- Non-arable or wastelands, such as bog, forest or mountain, was considered common land. It was not appropriated by individuals, but was available to all free citizens for grazing, hunting, procuring food and firewood etc. There was no need or desire to subdivide or fence the common land. All cattle grazed at will without distinction.
Tenant Subsidies and Payment
Every Tribesman was required to pay subsidies to the Chief according to individual means:
- Those who held tribe land and used commons-land for grazing paid such subsidies (However, this was not considered land rent).
- A tribesman under the protection of a chief and used commons-land was called Céile.
- Some Céile had stock of their own, but most did not.
- Those that did not own stock could receive such stock from the chief, Nemedh or Aíre at a designated rate of payment.
- This custom of receiving and taking stock on hire was universal in Ireland and regulated in great detail by the Law.
Inheritance of Land
Land passed from one person to the next in three ways:
- Privately held property was divided among the heirs at the holder’s death or could be divided among them during life. Generally, the land was divided so that the youngest heir held the original home-place and became responsible for care of the aging parents.
- Land held as a mensal estate passed to the person succeeding as Chief and not to the heirs. This system is known as Tanistry.
- When a land-holding tenant died, the farm did not go to the heirs. Rather, it was redivided or gaveled among all landholders of the sept, including the heirs of the deceased. Land excluded from this procedure were that held by the chief and privately held lands.
The most common legal act in Irish society was the verbal contract.
- Contracts were an exchange of obligation and a matter of honor.
- The amount of value involved in an individual contract could not exceed the honor-price of the contracting party(s).
- If a contract was desired that exceeded an individual’s honor-price, he or she must obtain permission from the kin who would be liable in case of default.
- There were certain situations in which a contract was invalid. These included contracts made under duress, in fear or in ignorance.
- Also invalid were fraudulent contracts and those made in drunkenness, except when it related to co-ploughing and the sale of stolen properties.
Adjustment of Contracts:
- A contract, in which there is no fraud or other impediments, turns out to be fraudulent, may turn out to be unfair to one of the contracting parties.
- In such case, terms of the contract may be adjusted to attain an even and fair contract.
- The aggrieved party has ten days for ‘discovering’ of defects in the contract.
- Written contracts were very rare outside of the Church.
- However, Canon Law required that agreements concerning the Church be written down.
- Thus, the early monastery law tracts did recognize the validity of such.
- Ancient Irish law relied greatly on the use of gell (pledges) to ensure that legal obligation was met.
- A pledge was something of value given by its owner for a fixed period into the custody of another.
- Giving of a pledge signified the givers willingness to accept the claim of another or – in the event of dispute – submit the issue to arbitration.
- Once agreement was reached, the pledge served as material hostage until the agreed upon terms were met.
- Usually, a pledge is an object of intimate value.
- At least by the middle Irish period, even the Brehon who arbitrated a case at law was required to make a pledge in the event that his findings are disputed. The intention was apparently to ensure some leverage for the individuals involved in the case.
- It is clear that the idea of hostage and pledge were closely related.
- The holding of hostages were usually taken to ensure continued submission of a territory over which a ruler claimed sovereignty, or to serve as surety of peace between warring territories.
- Early, hostages were kept generally according to their social status and accustomed life-style. Over time the rules became harsher due to outside influences.