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BREHON LAWS
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BREHON See also:LAWS , the See also:English but incorrect appellation of the See also:ancient laws of See also:Ireland, the proper name for which is Feineachas, meaning the laws of the Feine or Feini (fainyeh), who were the See also:free Gaelic farmers. Dlighthe Feine is another name for the laws, with the same meaning. Laws of universal application which could be administered only by duly qualified See also:judges were called See also:Cain See also:law, while See also:minor laws administered by nobles and magistrates were called Urradhus law. See also:Regular courts and judges existed in Ireland from prehistoric times. The Anglo-Irish word " Brehon " is derived from the Gaelic word Bret hem (= See also:judge).
The extant remains of these laws are See also:manuscript transcripts from earlier copies made on vellum from the 8th to the 13th See also:century, now preserved with other Gaelic See also:manuscripts in Trinity See also:College and the Royal Irish See also:Academy, See also:Dublin, the See also:British Museum, See also:Oxford University, some private collections and several See also:libraries on the See also:continent of See also:Europe. The largest and most important of these documents is the Senchus Mor or " See also:Great Old Law See also:Book." No copy of it now existing is See also:complete, and some portions are missing from all. What remains of it occupies the first, second, and a portion of the third of the volumes produced by the Brehon Law See also:Commission, which was appointed in 1852.
In the See also:Annals of the Four Masters it is said: " The See also:age of See also:Christ 438, the tenth See also:year of See also: From See also:gradual changes in the living See also:tongue through a See also:long expanse of See also:time many words, phrases and idioms in the Bearla Feini became obsolete, and are so difficult to translate that the See also:official See also:translations are to some extent confessedly conjectural. In many cases only opening words of the See also:original text remain. Wherever the text is whole, it is curt, elliptical, and yet rhythmical to a degree attainable only through long use. The rigorously See also:authentic See also:character of these laws, See also:relating to, and dealing with, the actual realities of See also:life, and with institutions and a See also: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 See also:continental material illustrative of the same things, endow them with exceptional archaic, archaeological and philological See also:interest. In the earliest times all learned men, whether specially learned in law or not, appear to have acted as judges. Gradually as literature and learning increased, judgments delivered by men without special legal training See also:fell into disfavour. In the 1st century of the See also:Christian era, when Conchobhar or Conor Mac Nessa was king of See also:Ulster, a crisis was reached, the result of which was that no See also:man was allowed to See also:act as Brehon until he had studied the full law course, which occupied twenty years, and had passed a rigorous public examination. The course of study for Brehon and 011amh, See also:advocate and law-See also:agent respectively, is carefully laid down in the law itself. The Brehonship was not an See also:office of state like that of the See also:modern judge, but a profession in which success depended upon ability and See also:judgment. The Brehon was an arbitrator, See also:umpire, and expounder of the law, rather than a judge in the modern acceptation. It appears, without being expressly stated, that the facts of a See also:case were investigated and ascertained by laymen, probably by the Aireachtas—a See also:local See also:assembly or jury—before submission to a Brehon for legal decision. A Brehon whose decision was reversedupon See also:appeal was liable to See also:damages, loss of position and of free lands, if any, disgrace, and a consequent loss of his profession. No Brehon had any fixed territorial See also:jurisdiction. A party initiating proceedings could select any Brehon he pleased, if there were more than one in his See also:district. Every king or See also:chief of sufficient territory retained an official Brehon, who was provided with free See also:land for his See also:maintenance. In See also:ordinary cases the Brehon's See also:fee was said to have been one-twelfth of the amount at stake. Assemblies, See also:national, provincial and local, were a marked characteristic of ancient Irish life. They all, without exception, discharged some legal functions, legislative or administrative, and even in those in which amusement predominated, the Cain law was publicly rehearsed. Most of the assemblies were See also:annual, some triennial, some lasted only a See also:day or two, others a See also:week and occasionally longer. All originated in See also:pagan funeral or commemorative See also:rites, and continued to be held, even in Christian times, in very ancient cemeteries. They were called by different names—Feis, Aenach, Aireachtas, Dal, &c. The Feis of See also:Tara, in See also:Meath, was from its origin seven centuries before Christ down to A.D. 56o, mainly national and See also:political, being convened by the Ard-Rig, held at his See also:residence, presided over by him, and consisting of the provincial See also:kings, tanists, flaiths, Brehons, warriors, historians, poets and other distinguished men from the whole of Ireland. It was due to be held every third year for the purpose of " preserving the laws and rules," and it might be called specially on any urgent occasion. After the statesmen had consulted, the laws were proclaimed, with any modifications agreed upon. Then the proceedings became festive, queens and great ladies taking part. The Feis of A.D. 56o was the last regular one held at Tara because the monarch ceased to reside there. One national assembly of an exceptional character was held at Tara in A.D. 697, by a See also:decree of which See also:women were emancipated from liability to military service. The Aenach held annually at Tailltenn, also in Meath, was a See also:general assembly of the See also:people without restriction of See also:rank, See also:clan or See also:country, and became the most celebrated for athletic See also:sports, See also:games and contests. Yet even here the laws were read aloud, and it is not without significance that the last national assembly held at Tailltenn under King Rhoderic O'See also:Connor in 1168 was a political one. The Dal-Criche (= territorial assembly), held at Uisneach in See also:Westmeath, was a gathering for political and quasi-legislative purposes. At one assembly there about a century before Christ, a See also:uniform law of distraint for the whole of Ireland was adopted on the See also:motion of Sen, son of Aige. This did not prevent the gatherings at Uisneach from being for ages celebrated for gaiety and amusement. Each provincial See also:kingdom and each tuath had assemblies of its own. Every flaith and flaith-See also:fine was a member of a local assembly, the clan See also:system conferring the qualification, and there being no other See also:election. An assembly when convened by the Bruigh-fer for the special purpose of electing a tanist or successor to the king was called a Tocomra. Very careful See also:provision is made for the preparation of the sites of great assemblies, and the preservation of See also:peace and See also:order at them is sanctioned by the severest penalties of the law. The operation of every legal See also:process calculated to occasion See also:friction, such as seizure of See also:property, was suspended during the time the assemblies lasted. The See also:term Rig (reeh=rex, king) was applied to four classes or grades of rulers, the See also:lower grades being grouped, each See also:group being subject to one of their number, and all being subject to, and owing See also:tribute and See also:allegiance to the Ard-Rig (=supreme king of Erinn). The Ard-Rig had an official residence at Tara and the kingdom of Meath for his special use. The provincial king, Rig Cuicidh, also had an official residence and kingdom of his own, together with allegiance and tribute from each Rig-mor-Tuatha in his See also:province, who in his turn received tribute and allegiance from each Rig-Tuatha under subjection to him. The Rig-Tuatha received tribute and allegiance from the flaiths or nobles in his tuath. The tuath was the political unit, and the ruler of it was the lowest to whom the term " king " was applied. For each See also:payment of tribute a king always made some return. Every king was obliged, on his inauguration, to swear that he would govern justly and according to law, to which he remained always subject. The Ard-Rig was selected by the sub-kings and other leading men who legally constituted the Fels of Tara, the sub-kings by those under them in their respective See also:spheres. No See also:person not of full age, imperfectly educated, stupid, See also:blind, See also:deaf, deformed or other-See also:wise defective in mind or See also:body, or for any See also:reason whatsoever unfit to See also:discharge the duties or unworthy to represent the man-See also:hood of the nation, could be king, even though he were the eldest son of the preceding king. " It is a forbidden thing for one with a blemish to be king at Tara." Tuath, Cinel and Clann were synonyms meaning a small tribe or nation descended from a See also:common ancestor. A king and clan being able, subject to certain limitations, to adopt new members or families, or amalgamate with another clan, the theory of common origin was not rigidly adhered to. Kinship with the clan was an essential qualification for holding any office or property. The rules of kinship largely determined status with its correlative rights and obligations, supplied the See also:place of See also:contract and of laws affecting the ownership, disposition and See also:devolution of property, constituting the clan an organic, self-contained entity, a political, social and mutual See also:insurance co-See also:partnership. The solidarity of the clan was its most important and all-pervading characteristic. The entire territory occupied by a clan was the common and See also:absolute property of that clan. Subject to this permanent and fundamental ownership, part of the land was set apart for the maintenance of the king as such. Warriors, statesmen, Brehons, 011amhs, physicians, poets, and even eminent workers in the more important arts, were, in different degrees, rewarded with free lands for their respective public services. On the See also:death of any person so rewarded, the land in theory reverted to the clan; but if like services continued to be rendered by the son•or other successor, and accepted by the clan, the land was not withdrawn. The successors of statesmen, for whom the largest provision was made, became a permanent See also:nobility. Flaith (flah = See also:noble chief) was a term applied to a man of this rank. Rank, with the accompanying privileges, jurisdiction and responsibility, was based upon a qualification of kinship and of property, held by a See also:family for a specified number of generations, together with certain concurrent conditions; and it could be lost by loss of property, See also:crime, cowardice or other disgraceful conduct. The flaiths in every tuath and all ranks of society were organized on the same hierarchical See also:pattern as See also:royalty. A portion of land called the Cumhal Senorba was devoted to the support of widows, orphans and old childless people. Fine (finna), originally meaning family, came in course of time to be applied to a group of kindred families or to a whole clan. From See also:differences between incidental accounts written in different ages, it appears that the social system underwent some See also:change. For the purpose of conveying some See also:idea, one theory may be taken, according to which the fine was made up of seventeen clansmen, with their families, viz. the Geilfzne consisting of the jlaillz-fine and four others in the same or nearest degree of kinship to the centre, and the Deirbhfine, Tarfine and See also:Inn fine, each consisting of four heads of families, forming widening concentric circles of kinship to which the rights and liabilities of the fine extended with certainty, but in diminishing degrees. In course of time a large and increasing proportion of the See also:good land became, under the titles so far described, limited private property. The See also:area of arable land available for the common use of the clansmen was gradually diminished by these encroachments, but was still always substantial. A See also:share of this was the See also:birth-right of every law-abiding member of the Feini who needed it. To satisfy this See also:title and give a start in life to some See also:young men who would otherwise have got none, this land was subject to Gabhailcine (= clan-resumption), meaning that the clan resumed the whole area at intervals of a few years for a fresh See also:distribution after some occupants had died, and young men by attainingmanhood had become entitled. Hence the Anglo-Irish word See also:gavelkind. Anciently this re-distribution extended throughout the clan at the same time. Later it extended only to the land of a fine, each fine making its own distribution at its own time and in its own way as determined by the seventeen men above specified. In this distribution men might or might not receive again their former portions. In the latter case See also:compensation was made for unexhausted improvements. This land could not be sold, nor See also:eve' let except for a See also:season in case of domestic See also:necessity. The Feini who used it had no landlord and no See also:rent to pay for this land, and could not be deprived of it except by the clan for a crime. They were subject only to public tributes and the ordinary obligations of free men. Presumably their homesteads were not on this land and were not subject to Gabhailcine. Neither were the unfenced and unappropriated common lands—waste, See also:bog, See also:forest and mountain—which all clansmen were free to use promiscuously at will. There was hardly any selling and little letting of land in ancient times. Flaiths and other persons holding large areas let to clansmen, who then became Ceiles, not land, but the See also:privilege of feeding upon land a number of See also:cattle specified by agreement. Flaiths and Bo-aires also let cattle to a ceile who had none or not enough, and this was the most prevalent practice. There were two distinct methods of letting and hiring—saer (=free) and daer (=See also:base), the conditions being fundamentally different. The conditions of saer-See also:tenure were largely settled by the law, were comparatively easy, did not require any See also:security to be given, See also:left the ceile free within the limits of See also:justice to end the connexion, left him competent in case of dispute to give See also:evidence against that of the flaith, and did not impose any liability on the fine of the ceile. By continued user of the same land for some years and discharge of the public obligations in respect of it in addition to the ciss or payment as See also:tenant, a ceile became a sub-owner or permanent tenant and could not be evicted. There is no provision in these laws for evicting any one. For the hire of cattle a usual payment was one beast in seven per annum for seven years; after which the cattle that remained became the property of the hirer. A saes-ceile on growing wealthy might become a bo-afire. 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 See also:civil rights, if able to find security, could become a daer-ceile. A free clansman by becoming a daer-ceile lowered his own status and that of his fine, became incompetent to give evidence against that of a flaith, and could not end the connexion until the end of the term except by a large payment. The members of his fine were liable, in the degree of their relationship, to make good out of their own property any See also:default in the payments. Hence this tenure could not be legally entered into by a free clansman without the permission of his fine. Daer-ceiles were also exposed to casual burdens, like that of lodging and feeding soldiers when in their district. All payments were made in See also:kind. 
When the particular kind was not specified by the law or by agreement, the payments were made according to convenience in horses, cattle, See also:sheep, pigs, See also:wool, See also:butter, See also: There was fosterage for See also:affection, for payment and for a See also:literary See also: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 See also:obligation to provide, if necessary, for the old age of See also:foster-parents. The affection arising from this relationship was usually greater, and was regarded as more sacred than that of See also:blood relationship. The solidarity of clan and fine in their respective spheres, the provisions of the system, the See also:simple rural life, and the prevalence of See also:barter and payments in kind, left comparatively little occasion for contracts between individuals. Consequently the rules relating to contract are not very numerous. They are, however, sufficiently See also:solemn. No contract affecting land was valid unless made with the consent of the fine and in the presence of the See also:Aire-Forgaill. Contracts relating to other kinds of property are more numerous. When important or involving a consider-able amount, they had to be made in the presence of a flaith or See also:magistrate. The Aire-Coisring presided over most of the contracts of the common people. The parties to a contract should be free citizens, of full age, See also:sound mind, free to contract or not, and under no legal See also:disability. " The See also:world would be in a state of confusion if See also:express contracts were not binding." From the repeated correlative dicta that " nothing is due without deserving," and that a thing done "for See also:God's See also:sake," i.e. gratis, imposed little obligation, it is clear that the importance of valuable See also:consideration was fully recognized. So also was the importance of time. " To be asleep avails no one "; " See also:Sloth takes away a man's welfare." Contracts made by the following persons were invalid: (I) a servant without his See also:master's authority; (2) a See also: His status affected the force of the contract as well as the value of his evidence; and the laws appear to imply that by becoming a witness, a man incurred liabilities as a See also:surety. The pre-Christian See also:oath might be by one or more of the elements, See also:powers or phenomena of nature, as the See also:sun, See also:moon, water, See also:night, day, See also:sea, land. The Christian oath might be on a copy of the Gospels, a See also:saint's See also:crozier, relic or other See also:holy thing. These laws recognized crime, but in the same See also:calm and deliberate way in which they recognized contract and other things seriously affecting the people. Although we find in the poems of Dubhthach, written in the 5th century and prefixed to the Senchus Mor, the sentences, "Let every one See also:die who kills a human being," and " Every living person that inflicts death shall suffer death," See also:capital See also:punishment did not prevail in Ireland before or after. The laws uniformly discountenanced revenge, See also:retaliation, the punishment of one crime by another, and permitted capital punishment only in the last resort and in ultimate default of every other form of redress. They contain elaborate provision for dealing with crime, but the standpoint from which it is regarded and treated is essentially different from ours. The state, for all its elaborate structure, did not assume jurisdiction in relation to any crimes except political ones, such as See also:treason or the disturbance of a large assembly. For these it inflicted the severest penalties known to the law—banishment, See also:confiscation of property, death or putting out of eyes. A crime against the person, character or property of an individual or family was regarded as a thing for which reparation should be made, but the individual or family had to seek the reparation by a See also:personal action. This differed from a civil action only in the terms employed and the elements used in calculating the amount of the reparation. The See also: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 See also: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 See also:debt by distraint, if not paid voluntarily. There were no See also:police, sheriffs or public prisons. The decisions of the law were executed by the persons concerned, supported by a highly organized and disciplined public See also:opinion springing from See also:honour and interest and inherent in the solidarity of the clan. There is good reason to believe that the system was as effectual in the prevention and punishment of crime and in the redress of wrongs as any other human contrivance has ever been. In calculating the amount of compensation the most characteristic and important See also:element was Einechlan (= honour-See also:price, honour-value), a value attaching to every free person, varying in amount from one cow to See also:thirty cows according to rank. It was the assessed value of status or ca put. It was frequently of con-sequence in relation to contracts and other clan affairs; but it emerges most clearly in connexion with crime. By the commission of crime, See also:breach of contract, or other disgraceful or injurious conduct, Einechlan was diminished or destroyed, a capitis diminutio occurred, apart from any other punishment. Though existing apart from fine, Einechlan was the first element in almost every fine. Dire was the commonest word for fine, whether great or small. See also:Eric (= reparation, redemption) was the fine for "separating body from soul"; but the term was used in lighter cases also. In capital cases the word sometimes meant Einechlan, sometimes coup-dire (=body-fine), but most correctly the sum of these two. It may be taken that, subject to modifying circumstances, a person guilty of See also:homicide had to pay (I) coirp-dire for the destruction of life, irrespective of rank; (2) the honour-value of the victim; (3) his own honour-value if the See also:deed was unintentional; and (4) See also:double his own honour-value if committed with malice aforethought. The sum of these was in all cases heavy; heaviest when the parties were wealthy. The amount was recoverable as a debt from the criminal to the extent of his property, and in his default from the members of his fine in sums determined by the degree of relationship; and it was distributable among the members of the fine of a murdered person in the same proportions, like a distribution among the next of See also:kin. The fine of a murderer could free themselves from liability by giving up the murderer and his goods, or if he escaped, by giving up any goods he had left, depriving him of clanship, and lodging a See also:pledge against his future misdeeds. In these circumstances the law held the criminal's life forfeit, and he might be slain or taken as a prisoner or slave. He could See also:escape only by becoming a daer-fuidhir in some distant territory. When the effect of a crime did not go beyond an individual, if that individual's fine did not make good their claim while the criminal lived, it lapsed on his death. " The crime See also: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 See also:arrest, it was lawful to maim or slay him according to the magnitude of the attempted crime. " A person who came to inflict a See also: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 See also:penalty, as in breach of contract, was generic restitution, the quantity, subject to modifying circumstances, being twice the amount taken or destroyed. See also:Distress of seizure of property being the universal mode of obtaining See also: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 See also:branch, if not more than a branch, of these ancient laws. Of several words meaning distress, athgabail was the most frequently used. A person having a liquidated claim might either See also:sue a debtor or proceed at his peril to seize without this preliminary. In the latter case the See also:defendant could stop the progress of the seizure by paying the debt, giving a pledge, or demanding a trial; and he then could choose a Brehon. Distress was of two kinds—(1) athgabal ar fut ( =distress on length, i.e. with time, with delays); and (2) athgabail See also:tulle ( =immediate distress). Which method was pursued depended partly upon the facts of the case and partly upon the respective ranks of the parties. A person entitled to seize property had to do it himself, accompanied, if the amount was large, by a law agent and witnesses. No man was entitled to seize unless he owned, or had a surety who owned, sufficient property for See also:indemnity or adjustment in case the seizure should be found to have been wrongful. The formalities varied in different circumstances and also at different times in the long ages in which these laws prevailed. Some forms may, in the Irish as in other legal systems, have become merely ceremonial and fictitious. Tellach (= seizure of immovable property) was made in three periods or delays of ten days each (= 30 days). The first step was a See also:notice that unless the debt was paid immediately seizure would be made. Ten days later, the See also:plaintiff crossed the fence in upon the land, with a law agent, a witness and a pair of horses yoked or harnessed, and in a loud See also:voice stated the amount of the debt and called upon the defendant to pay it according to law. On receiving no See also:answer, or an unsatisfactory one, he withdrew. After an See also:interval of ten days more, the creditor entered with his law agent, two witnesses and four horses, went farther in upon the land, repeated his demand, and if refused withdrew. Finally, after a further interval of ten days, he entered once more with his law agent, three witnesses and eight horses, drove up to the debtor's See also:house, repeated his demand, and if not satisfied drove a See also:herd of cattle or a See also:flock of sheep in upon the See also:farm and left men to care for them. Athgabail ordinarily meant the seizure of movable property. The following technical terms will indicate the See also:procedure in distress with time:—Aurfacre (=demand of payment, stating the amount in presence of witnesses) ; apad (=delay); athgabail ( = the actual seizure) ; anad (= delay after seizure, the thing remaining in the debtor's See also:possession) ; toxal (= the taking away of the thing seized) ; fast ( = notice to the debtor of the amountdue, the mainder or See also:pound in which the thing seized is impounded, and the name of the law agent) ; dithim ( delay during which the thing is in pound) ; lobad ( = destruction or See also:forfeiture of the debtor's ownership and substitution of the creditor's ownership). There was no sale, because sale for See also:money was little known. The property in the thing seized, to the amount of the debt and expenses, became legally transferred from the debtor to the creditor, not all at once but in stages fixed by law. A creditor was not at See also:liberty to seize See also:household goods, farming utensils, or any goods the loss of which would prevent the debtor recovering from embarrassment, so long as there was other property which could be seized. A seizure could be made only between, sunrise and sunset. " If a man who is sued evades justice, knowing the debt to be due of him, double the debt is payable by him and a fine of five seds." When a large debt was clearly due, and there was no property to seize, the debtor himself could. be seized and compelled to work as a prisoner or slave until the debt was paid. When a defendant was of rank See also:superior to that of the plaintiff, distress had to be preceded by troscad ( =See also:fasting). This is a, legal process unknown elsewhere except in parts of See also:India. The plaintiff having made his demand and waited a certain time without result, went and sat without See also:food before the See also:door of the defendant. To refuse to submit to fasting was considered indelibly disgraceful, and was one of the things which legally degraded a man by reducing or destroying his honour-value. The law said " he who does not give a pledge to fasting is an evader of all; he who disregards all things shall not be paid by God or man." If a plaintiff having duly fasted did not receive within a certain time the satisfaction of his claim, he was entitled to distrain as in the case of an ordinary defendant, and to seize double the amount that would have satisfied him in the first instance. If a person fasting in accordance with law died during or in consequence of the fast, the person fasted upon was held guilty of See also: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 See also:settlement had been made to him forfeited his claim. 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