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THE BREHON LAWS

A LEGAL HANDBOOK

BY

LAURENCE GINNELL

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW

London
T. FISHER UNWIN
PATERNOSTER SQUARE

MDCCCXCIV

 
 

WHEN it became known some time ago that I had
undertaken to lecture on the Brehon Laws before

the Irish Literary Society, London, one friend con-
gratulated me on the fine subject I had taken in
hand, and another on the same day asked me why

in the world had I chosen such an uninteresting
subject. To these two friends, and the classes they
typify, I respectfully dedicate this little volume.

L. G.

 
 

 

 

CONTENTS.

GAELIC
PAGE INITIAL

CHAPTER I.—ANCIENT LAW. . . . . I A

II.—EXISTING REMAINS OF IrRisH Law. M

I1I.— Tue SENCHUS MOR.

+ IV.—LEGISLATIVE ASSEMBLIES
Section 1. Introductory
2. The Feis of Tara
3. Tailltenn and Uisneach
4. The Aenach
5. The Tribal Assemblies

CHAPTER V.—CLASSIFICATION OF SOCIETY
Section 1. Introductory
2. Kings

3. Professional Men

Vv

 
   
   
   
 
 

   

vi CONTENTS.

GAELIC
PAGE INITIAL

CHAPTER V. (Continued.)

Sub-Section 1. Preliminary 3 . . 99 Pp
2. The Druids. . : . 93 D
3. The Bards . . : .: 46 N
4. The Brehons : . . 81 B
5. The Ollamhs . . . 8&9 A
6. Jurors. . ‘ . . 91 B
Section 4. The Flaiths . ‘ : a r
5. Freemen Owning Property . . - 08
Sub-Section 1. Preliminary. . ‘ . OS I
2. The Clan System ‘ . 100 A
3. The Céiles and the Land
Laws . . . . III A
4. Devolution of Property . 129 U

5. The Elizabethan Atrocities .

Section 6. Freemen owning no Property
7. The Non-Free .

Sub-Section 1. Preliminary
2. Bothachs and Sen-Cleithes . 148
3. The Fuidhirs . : . I5I F

CHAPTER VI.—THE LAW OF DISTRAINING

Section 1. Introductory . : : : +186 L
2. Definition and Scope. 158 A
3. Distraint by Fasting . : : . S161 G
4. General Procedure . . : . 164 Oo
5. Capacity . . . . . .. Nn I
6. Minutize S

 

 

CONTENTS.

CHAPTER VII.-—CRIMINAL LAw
Section 1. The Book of Aicill

2. The Law Therein Laid Down .

3. Capital Punishment .
4. The Maighin Digona.

CHAPTER VIIL.—LEGES MINORES
Section 1. Marriage .

2. Fosterage.

3. Contracts and Wills .

4. Artisans

5. Oaths

CHAPTER IX.—NATIVE, NOT ROMAN

CHAPTER X.—CONCLUSION

    
     

PAGE

177
177
184
199
208

211

 

vii

GAELIC
INITIAL

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-,

THE BREHON LAWS.

CHAPTER 1.

ANCIENT LAW.

TAR J S in law and all other branches

\%} of learning some knowledge of

one system is useful in the study

of any other system, so also one

.. cannot well appreciate the relative

J: proportions and importance of

what belongs to one nation with-

out taking some account of the condition in the same

respect at the same period of neighbouring nations

with which a comparison may be instituted. For

this reason I think our present subject should be in-

troduced by a preliminary notice of the condition of
2

 
Ci TILL tHE BREHON LAWS.

law in early times in neighbouring nations with
which we are liable to be compared. We can, how-
ever, scarcely do more than glance at one such
nation; and remembering where we are, and the
circumstances of our country, the English nation
seems the most appropriate for our purpose.

The first collection of Saxon laws into writing
was made under Athelbirht, king of Kent, after
Saint Augustine had converted him to Christianity
and baptised him. This occurred about the begin-
ning of the seventh century, Saint Augustine having
arrived in Kent in A.p. 597. Athelbirht’s was a
collection of the most meagre scraps, such as only
extreme poverty in this respect could make any
people consider worth collecting or preserving.
After that time collections of laws continued to be
made occasionally in Kent and the various little
kingdoms into which England was then divided;
but none of them reached respectable dimensions
until that of Alfred the Great, towards the end of
the ninth century. Alfred is said to have been
educated in Ireland. His is the earliest collection
the English nation can show of any real value.
Besides those given under Alfred’s own name, it is
probable that he may also be credited with the
so-called Dooms of Ine.

It is believed that none of the originals of the
early English laws, or works relating to law, were
written in the language of the English people, that
the originals in Saxon times were always in Latin,
and those of Norman times in Latin or Norman-

 

 

 

 

ANCIENT LAW. 3

French, and that the copies of the Saxon Dooms now
extant are transcripts from the translations made
for vulgar use. The originals of Acts of Parliament
continued to be written in Norman-French down to
the beginning of the sixteenth century, and the
records in legal proceedings down to the middle
of the eighteenth century. The brand of native
inferiority, first impressed upon the people, con-
tinued thus long impressed upon the laws the
people were bound to obey. Even in this year of
grace, 1894, the royal assent is given to Acts of
Parliament in words which neither the Queen nor
her subjects understand, and which never were used
by any generation of Englishmen.

Bearing in mind these few facts regarding the
early condition and historical development of English
law, we come in a proper mood to consider the most
archaic system of law and jurisprudence of Western
Europe, of which many records now exist, namely,
what are now generally known as the Brehon Laws.
This is not their real name. Irish Laws, or Gaelic
Laws, would be a better name for English speakers
to use; but the thing meant has always been known
to Gaelic speakers as Feineachus. A general term
for all law, without special reference to that of
Ireland, was Recht. But the law of the Gaels
was Feineachus. It included Cain Law, being
that which was enacted or solemnly sanctioned by
national assemblies, was of universal obligation,
and could be administered only by professional
judges ; and it also included Urradhus Law, which

 
4 THE BREHON LAWS.

was law relating to local matters, modified by local
assemblies and by local customs, and which might
be administered by the Flaiths who were not pro-
fessional lawyers.

Inquirers into the native antiquities of Western
Europe naturally turn to Cesar to learn what was
the state of things he found existing in Gaul ; and
if that could be ascertained with certainty, we
might reasonably assume that the state of things in
Ireland at that and at a later period was not very
different. But although it was very good of Caesar
to write so much as he did, his mind was far too
much occupied with Cesar to be troubled recording
many facts relating to mere barbarous life, or with
adequately checking those recorded. Cesar and
other Roman writers give it to be understood that
the Gauls on some occasions sacrificed human
beings to their gods; and some modern writers
calmly assume, as a matter beyond question, that
the Gauls * sacrificed human beings in hecatombs,”
and that the Druids presided over these horrible
butcheries. The innate absurdity of such assump-
tions might have prevented their expression were
it not that the ghastly and sensational grows upon
and takes possession of the mind that conceives it,
until from excessive fulness the temptation to com-
municate it becomes irresistible. When communi-
cated, it strikes the hearer or reader more forcibly
and effectually than truth, modest and sober, can
ever hope to do. Remembering what gross and
scandalous falsehoods are sometimes deliberately

ANCIENT LAW. 5

told of our own contemporaries, even by people of
respectable and sanctimonious exterior, I cannot
admit that there is any truth in those stories of the
Gauls and their Druids who are unable to return
with their explanation. It is probable that either
Cesar was misinformed or some ceremony, observed
by the Gauls in putting criminals to death, was
misinterpreted to him or by him. At all events,
there is no reason at all to think that human sacri-
fice ever was practised in Ireland.

Owing to the isolated geographical position of
Ireland, references to it by Roman and other
ancient writers are comparatively few and of a
vague and general character; but fortunately a
very full study of Gaelic Ireland can be made
from native sources without consulting other
authorities except for corroboration. Many leading
facts of Irish history have been quite satisfactorily
ascertained to the extent of three hundred years
before Czesar’s time. It would, however, be difficult
to lay down a connected and consequential narrative
until about A.D. 250, in the reign of King Cormac.
This was the time at which some of the laws we
are about to consider were reduced to their present
form, though they had existed in some other form
long before. Those laws, as well as the laws com-
prised in the greater collection made two centuries
later, had probably existed, as laws, a thousand
years before Cormac’s time. Almost all the Brehon
Laws had actually reached their full proportions
and maturity about the time that Alfred was re-

 
6 THE BREHON LAWS.

ducing to order the scraps of elementary law he
found existing amongst his people. It is with the
remains of the laws that then existed in Ireland—
boulders from the dun—that we are mainly con-
cerned. Needless to say, they were not written
in a foreign tongue. No foreign mind conceived
them. No foreign hand enforced them. They
were made by those who, one would think, ought
to make them: the Irish. They were made for
the benefit of those for whose benefit they ought to
have been made: the Irish. Hence they were good ;
if not perfect in the abstract, yet good in the sense
that they were obeyed and regarded as priceless
treasures, not submitted to as an irksome yoke.
And the presence or absence of popular sympathy
with law I take to be a true test of the quality of
that law and the very touchstone of good govern-
ment. Originating in the customs of early settlers
in times beyond the reach of history, these laws
grew in volume and in perfection down to the time
mentioned ; after which, though continually applied,
though copied, re-copied, and commented upon, little
of substantial value was added to them. They pre-
vailed over the whole country until the arrival of
the Anglo-Normans, and they prevailed over the
whole country except the Pale until the beginning
of the seventeenth century. In such a great length
of time they must have undergone more or less
change; but the political condition of the country
during all that time being wholly adverse to true
development, the actual changes may be taken to

 

 

ANCIENT LAW. 7

have been the very least possible. In proportion
as they lost in utility owing to this cause, they now
gain in value to us as archaic relics. And not
to us alone, but to continental peoples; to some
especially, because they claim a common origin with
with us and have little or no native records reaching
so far back as ours; to all, for their philological and
general antiquarian interest, and because in these
laws can be studied nearer to their source than
anywhere else the ancient legal ideas of a Celtic
people expanding free from external control. Other
Celtic nations were subjected to Roman sway and
modified by Roman influences, and now little can
be ascertained regarding their pre-Roman state
except through Roman sources. The isolated
position of our country, perhaps a disadvantage
on the whole, had, at all events, the effect of
leaving one nation truly Celtic, while its kindred
on the Continent were being transmuted. The
incursions of the Danes produced the first external
effect on our laws; but only to the extent of stopping
their growth and development and throwing what
may be called the organs of development into
disorder, from which, owing to historical causes,
they never recovered. The Danes never obtained
supreme control over Ireland, as they did over
England and the North of Gaul, but they harassed
and plundered the people, lowered the standard
of religion, morality, and patriotism, and fatally
smote the institutions of the country, so that from
the first arrival of the Danes in A.D. 795 the nation

 

 
 

 

IIT Be I NT

8 THE BREHON LAWS.

and its laws ceased to progress. The laws were
petrified and fossilised, and remained at the ex-
pulsion of the Danes what they had been at their
arrival. And they remain practically the same
still; for to conquer the Danes at Clontarf, though
hard the task, was easier than to restore efficiency
and fresh growth to institutions once paralysed,
or to revive national patriotism, the stagnation of
which had become normal. Those institutions had
not recovered their former vigour when the Anglo-
Normans came, threw the country once more into
turmoil, and kept it so. The Normans, like the

Danes, had conquered England and established
their own institutions there; but even they never
conquered the whole of Ireland, and institutions
of their introduction flourished only in the Pale, a

small district whose extent varied with the fortunes
of war, rarely exceeding four of the present Leinster
counties. The Anglo-Norman settlers in other parts
of Ireland conformed in the main to the Irish laws,
with here and there some slight modifications which
were strictly transgressions. Successive English
Governments sent over Deputies and Governors,
nominally to rule Ireland, but really to rule the
Pale, to create as much dissension as possible
beyond that limit, and at any rate to maintain a
foothold. A country so circumstanced, partially
conquered, the mutilated prey for which two nations
hungered and tore and thwarted each other, was
one in which the rational development of law or
of anything else was scarcely possible. And thus

en

 

 

ANCIENT LAW. 9

it comes to pass that the laws may be said to re-
main to-day substantially what they were before
the arrival of the Danes more than a thousand
years ago.

 
 

Rm 1) 7

X , Q \
Y fer

iH
Py
<0

 

CHAPTER 11.

THE EXISTING REMAINS OF IRISH LAW.

of ancient Ireland that are
really valuable and charac-
teristically beautiful appear
to belong to the same dis-
tant period; and therefore
they are highly interesting

philologically, quite apart
Lr from the intrinsic beauty of

some, which is very great. Of all those remains
those dealing with law are, considered as literature,
the least attractive. But their value to the earnest
student of antiquity is inferior to none, but is
perhaps superior to all the rest, owing to their
rigorously authentic character. The charge of
having been produced or tinged by imagination
cannot be made against the laws, rules, and customs
which actually controlled the daily lives, conduct
and destinies of our ancestors, and under which

10

 

 

THE EXISTING REMAINS OF IRISH LAW. 11

they laboured, fought, played, and prayed, as
occasion demanded. These remains at least repre-
sent what were once the realities of life; and the
knowledge and the study of them must, with abso-
lute certainty, help so far as they go to dispel the
mist of years. We are brought if possible still
closer to the actuality of individual life by the suits
and judgments which are scattered through these
laws for the purpose of illustrating their principles
and their application. And while one reads, if
perchance his taste should be of wider scope, he
is enabled to gather incidentally much archzeological
information not strictly legal, but of a kind difficult
if at all possible to glean from other sources, all
stamped here with the authenticity of the law, and
not less valuable for being thus given without design.

The fact is as expressive as it is painful that,
beyond the limited operations of one or two stunted
societies, almost the whole of our Gaelic records,
laws, and literature remained in manuscript, and
practically inaccessible until the middle of the
nineteenth century, and that much of those materials
remain so even now at the close of the century.
Most of those manuscript books, and some of the
longer tracts, the legal as well as the others, refer to
and quote from other and older books, sometimes by
name, sometimes by a description which had become
recognised as a name, as the White Book of such a
person, the Black Book of such a place, the Yellow
Book or the Speckled Book of So-and-so; and some-
times the reference is general, as to other versions or

 
 

A  —

I
2 THE BREHON LAWS.

other books. From these references it is evident
that, although we still possess a great deal of
written matter as Compared with other countries
far more than we possess has been lost. This i
not wonderful in the circumstances of Ireland, but
it is none the less matter for regret. Still cos e-
tent judges say that our extant manuscript a
are, both for antiquity and intrinsic worth, treasures
such as no nation north of the Alps an boast of
Any one who suspects this for a Gaelic exaggeration
had better visit the Royal Irish Academy ond have
his incredulity speedily and agreeably cured by the
evidence of his own eyes. Whatever else be
said of those remote ancestors of ours, it bli be
admitted that they were singularly devoted to
literature, and if the remains of their work have
a high value and interest for strangers and Teutons

to us whose heritage they are, and whose privile "
and pride it is to call Ireland our native land the

should be not alone valuable and interesting but
sacred. A people possessing such precious mony:
ments and indifferent to them would certain] be
unworthy of the race and country that aed
them, and would merit the censure of civilised man-

kind. Do we valye these treasures as we ought ?

Do we escape the censure or fal] under it? Appar-
ently we fall under it ; and this while we possess
the power, and at heart the desire, to escape it
In practice we neglect what in theory we venerate ;
and thus, as in other respects, we perpetuate against
ourselves as a nation a wrong begun by others.

 

Wy, WER

 

 

 

|
|

THE EXISTING REMAINS OF IRISH LAW. I3

But this extraordinary condition of things has
not come about spontaneously, as a reader of Mr.
Standish O’Grady’s Heroic Period might infer. Mr.
O’Grady, in common with all who study the subject,
laments the fact that Irishmen of the present day
devote so little attention to the extraordinary wealth
of historic treasures they possess. But the implied
assertion is only half a truth, and the candour that
prompts telling half a truth when bitter to Irishmen
will justify telling the remaining half though it
should be bitter to Englishmen ; in addition to
which we, as real inquirers, are entitled to the
whole truth. Ours is the bitterness of loss, theirs
the bitterness of guilt. If to be made wince be
a wholesome discipline for us, it cannot be unwhole-
some for our neighbours. Our alleged indifference,
then, so far as it exists, is neither native nor natural
to us, but is a plant of English culture and a neces-
sary result of the species of English rule that Ireland
has experienced. Both Danes and Normans, the
former especially, destroyed our manuscripts in
the course of warlike operations; but to modern
Englishmen from Elizabeth’s time downwards—
Ireland’s darkest age—to men who came not frankly
to plunder as the Danes did, but to govern us
and set us a bright example, some of them with
Bibles in their hands and Scripture on their lips;
to these men the distinction is due of having, in
times of so-called peace and in cold blood, burned
and destroyed our books, hanged or hunted their
owners as vermin, made it criminal to teach or learn

 
 

I4 THE BREHON LAWS.

the language in which they were written, or indeed
to teach or learn at all ;—the alternative or rather
twofold object of this enlightened statesmanship
being to drive the Celts out of their native land
or reduce them to savagery in it. Both policies
have had a large measure of success ; neither has
completely succeeded. The Irishmen who, when
their own fortunes and hopes, like those of their
country, were utterly ruined, risked liberty and life
itself during that perilous age for the preservation of
those precious monuments of the past, must be not
charged with indifference, but credited with devoted-
ness almost equalling that of the original writers.
As few ancient nations have been more fruitful in
original literary effort, so few modern nations have
shown more attachment to literary treasures than
the Irish; and in no other case that I am aware of
has that natural and creditable attachment been
subjected to such a terrible strain. On this very
subject let me quote from Dr. Sullivan, the learned
editor of O’Curry’s Lectures on the Manners and
Customs of the Ancient Irish. Dr. Sullivan says,
“During the first part of the eighteenth century
the possession of an Irish book made the owner
a suspected person, and was often the cause of his
ruin. In some parts of the country the tradition
of the danger incurred by having Irish manuscripts
lived down to within my own memory; and I have
seen Irish manuscripts which had been buried until
the writing had almost faded, and the margins rotted
away, to avoid the danger their discovery would en-

 

 

THE EXISTING REMAINS OF IRISH LAW. I5

tail at the visit of the local yeomanry.”” Was not
that a pretty state of things? What Dr. Sullivan
saw was of course but a single isolated instance
after the real danger had passed away; but from
it we may judge how much was destroyed under
Elizabeth, under Cromwell, under William the Third,
and throughout the whole of that dark age ; and the
calculation is materially assisted by the lurid stories
heard by some of us at our fathers’ firesides. It
is morally certain that at the present moment some
priceless Irish manuscripts are mouldering away in
old walls, caves, graves, and other places under the
earth. The causes of our apparent indifference to
histerical treasures are so obvious that they cannot
possibly have escaped even the most casual and
careless reader of our modern history; into the
soul of every Irishman worthy of the name they
must be indelibly burnt. Every one who cares at
all about Ireland knows them, and knows that the
real wonder is that we have any such treasures
and that anybody cares for them. Mr. O'Grady
has an intimate knowledge of all this. Yet he
seizes an occasion to censure, neither Elizabeth nor
Cromwell, neither the imported yeomanry who were
planted on the fat lands of our people nor the
governors who planted them there, but Irishmen.
Here surely is perceptible the taint of that bitterly
anti-Irish institution, Trinity College, Dublin. A
man educated anywhere else in the world would,
in the premises, place the blame on other shoulders,
and if he blamed Irishmen at all in this connection

 

 

i
em Ea —
EE nS SR Ai Ares ”
 

 

 

 

 

16 THE BREHON LAWS.

it would be on very different grounds. It does ot
afford much matter for pride on that side or o
shame on this that the Irish people could be,
were, by brute force, robbed of their ate i
the purpose of civilising them. But brute Ore
has not yet robbed them of their intelligence or
their love of learning. These, though in a misetnre
rendered latent, still exist and will yet respond to
more rational treatment. The number of persons
who can read the manuscripts has indeed he
reduced ; but the number who would risk ae
in their preservation is as large as ever on
certainly their veneration would not be less 1 hs
vellum were found to smell of turf-smoke contrac e
in the course of such a history. However this may
be, and whatever may be thought of ourselves, hil
have at least this much matter for legitimate vi is-
faction that the existence of these manuscripts a a
it impossible for any one with a decent sone by
truth to charge our ancestors with ee 0 4
mercially it were better for us if the order o Ter
were reversed ; but however low we may have falle
we have not reached the depth at which the os
mercial view alone is adopted. Neither man or
nation lives by bread alone, and if we are e
that merit rests where it does, no one else has a
ig mplain.
ig hie he burning and burying and drowning
of manuscripts, a vast number still exist in Wigs
libraries and in private collections, in a) in
England, and on the Continent. Some of those

 

 

THE EXISTING REMAINS OF IRISH LAW. 17

relating to law are separate works, while others
are written on the same vellum or otherwise bound
up together with histories, genealogies, poems,
religious works, and the like. All have come down
by successive transcription. Of the more important
works there are duplicate copies, hardly any of them
being quite complete, and most of them differing
slightly in text owing to the causes which similarly
affect all ancient manuscripts, as want of time or
want of diligence on the part of transcribers. Most
of the existing legal manuscripts are believed to
have been written—that is, copied from older ones
—between the beginning of the twelfth and the
end of the fourteenth century. None of the
originals, which were written in the fifth century, —
now exist ; nor are the existing manuscripts thought
to have been copied directly from those originals.
They are considered to be copies of copies. Re-
peated transcripts had already been made with, on
each occasion, some modernisation here and there
of the antiquated phraseology, or with the introduc-
tion of a gloss or a commentary to render the matter
intelligible. The laws were originally written in the /
Bearla Feini, the Fenian dialect of Gaelic. As this
language in course of time tended to become
obsolete the laws tended to become unintelligible,
and the tenacious adherence to old forms of expres-
sion common to all laws had to be severed or
counteracted in some way. The transcribers did
not act according to any uniform plan, nor did any
transcriber continue throughout the work the mode

3

 

 
 

18 THE BREHON LAWS.

of treatment with which he began, but each from
time to time translated early into late Gaelic to the
extent of some words that were in his time difficult,
or left the original phrase standing, and supplied a
gloss or a commentary. Each may be considered
to have done the best that his circumstances per-
mitted, for writing was not a thousand years ago
the simple thing it now is. The great antiquity,
both of the original text and of the commentaries,
is shown in several ways. Quotations from both are
found in works admittedly written not later than the
tenth century. Some parts of these older commen-
taries, although written later than the text, are
still very ancient, and besides they contain, as
quotations or otherwise, some fragments of tradi-
tional law fully as archaic as any in the text. The
language being of a highly technical, elliptical and
abbreviated character too, and devoid of all proper
definitions, is now scarcely intelligible to speakers
of what is nominally the same language; and of
the few who can read still fewer can confidently
construe. Even some of the Gaelic transcribers of
the Middle Ages may possibly have erred in its
construction.

Imagine a work treated at one time in the manner
described, and then, after another century or two
had elapsed, treated again in a similarly irregular
fashion by another transcriber—here a literal copy,
there a translation, in another place a gloss or a
commentary, to keep pace with the further changes
in the spoken language, and you will have a fair

 

 

a HEAP LE atm oF A oe A SS
rm, Re ie eo i et a Pep

THE EXISTING REMAINS OF IRISH LAW. I9

idea of the present condition of the Brehon Laws.
What are thus spoken of under the general name of
commentaries contain much matter not suggested
by that title. Many independent decisions and dicta,
old and current, are inserted under particular texts
with which some of them have little or no connec-
tion, but as the most suitable or most convenient
place the writer could find for them. The most
valuable of the commentaries were written before
the existing manuscripts were transcribed, and they
interpret not alone obscure passages in the text but
the substantive law itself. Later commentaries
were written by various hands on the present manu-
scripts, and even these may not be all original.
They were written between the original lines, on
the margin, at the foot, wherever room was found.
For the most part a text is given; but in some
instances the whole of the original text does not
now exist, only the opening words of passages being
retained in the existing transcripts. These opening
words, used as headings or catchwords, are quite
meaningless in themselves as they now stand; but
of course they were full of meaning for those whose
business it was to know what followed. They are
now followed by commentaries from which may be
gathered the substance of the original, as a com-
mentary on the Lord’s Prayer might be headed with
the words ‘Our Father.” Comments upon law
and glosses upon words are inserted without any
apparent attempt to keep them separate, and with
the latter are frequently given an assortment of

ee

 

 
 

 

20 THE BREHON LAWS.

etymological speculations in which the writers dis-
play some knowledge of what they call “the four
principal languages of the world,” Hebrew, Greek,
Latin, and Gaelic. Derivations of words, of rules,
and of customs are suggested almost at random,
and are no more reliable than similar attempts of
ancient Roman writers ; some of them being clearly
fabulous and not seriously meant. When the com-
mentary is mainly etymological and in the nature of
a translation of the text, and both are translated
into English side by side, the result in the English
is an unpleasant tautological repetition of the same
thing. Sometimes the commentators purport to
explain the text, start with that apparent object but
with a relative pronoun for which it is now difficult
to find an antecedent, plunge in medias res, and end
by leaving the whole matter quite as obscure as
the text had left it. Accounts of the effects of
particular judgments are also met with, some of
them legendary, others of real value. According
to one commentator, “ Sencha MacColl Cluin was
not wont to pass judgment until he had pondered
upon it in his breast the night before.” This
probably refers to a judgment in a grave case
involving human life. Judges of the Hebrew nation
in early times were accustomed to fast the night
and morning before passing a death sentence. The
text of the old laws is fairly self-consistent through-
out. The commentaries, as might be expected from
the manner in which they were written by different
hands at different times, are not always reconcil-

re mth ed

Tc a
A -. a RE 3

THE EXISTING REMAINS OF IRISH LAW. A

able, and there is a good deal of tiresome repetition
in them. The translators have found them useful
in many cases, misleading in some. They are
interesting throughout.

The condition just described involves so many
difficulties in dealing with these laws, that Gaelic
scholars generally in the last century believed the
translation of them to have become impossible, the
key having been lost. If occasionally an educated
Englishman of the present day finds the legal docu-
ments in which he is personally concerned hard to
understand, though assisted by his knowledge of the
actual facts to which they relate, his knowledge of
the language and of contemporary life in all its phases,
how much more difficult must it not be to draw legal
writings of a distant past from their dust and cob-
webs and the greater load of impedimenta just
mentioned, to understand them fully and to render
them correctly, when the system of life which those
laws contemplated and provided for has vanished
from the earth leaving no derivative institutions in
existence ?

In 1852 a Royal Commission was appointed to
translate and publish the Ancient Laws and Institutes
of Ireland, and thus bring them within the reach of
English readers. The nature of the undertaking
may be judged from the difficulties enumerated,
and many others must have been encountered in the
actual performance of the work. It is only just that
we who can now read those laws at our ease should
remember those difficulties and be grateful to the

 

 
rg ”
Va

Red A Ana >A GR POS wt

 

 

4 ; a a gr = me rt ah Ki ena SVT Jl REESE TF I Gr TS ES —————
PIRI Rb Ap TE TR = —-— ai

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22 THE BREHON LAWS.

learned men who have surmounted them; and we
cannot be surprised to find that, distinguished
scholars though they were and are, they have
actually failed to understand some passages which
they have translated; and they repeatedly empha-
sise the fact that their translation is in certain parts
conjectural only and must not be taken as final or
satisfactory. Many technical terms relating to
status, ranks and degrees, as well as names of fines,
diseases of horses, &c., are retained in the English
untranslated ; some because the translators were
unable to satisfy themselves as to the true meaning;
others because the words have no direct or adequate
equivalents in English, and would demand a tedious
circumlocution each time they had to be used; others
because, although the translators understood them,
and could find suitable equivalents in English, yet
remembering that the ancient Irish manuscript
materials have never in modern times been fully
investigated, the translators have, with commend-
able modesty and patriotism, retained the original
words, appending to them temporary explanations
to serve until that better time comes for which, with-
out being politicians, we are all permitted to hope,
when those laws can be thoroughly analyzed and
explained. This latter work is one of greater
difficulty still, and should be undertaken only by
men free from the preliminary work of translating,
free from the necessity of making a living, and
endowed with a keen and unconquerable genius for
minute research. This was not the work under-

I SN SIS
- re FT

|
|

 

 

THE EXISTING REMAINS OF IRISH LAW. 23

taken by the Commissioners; it still awaits the
enthusiast.

That these laws should be found difficult is not
wonderful, seeing that the English are now unable
to translate some technical terms in the Saxon laws
so late as those of the reign of Cnut.

The Brehon Law Commissioners have already
published, at different dates as the work proceeded,
four volumes of the Ancient Laws of Ireland, and a
fifth is now (1894) in the press. The ancient law
book called the Senchus Mor, or rather all that
remains of it, was the first selected for publication,
as being one of the oldest and most important por-
tions of the Brehon Laws which have escaped
destruction. This ancient work occupies the whole
of the first volume of the translations, the whole of
the second volume, except an appendix of scraps,
and a portion of the third volume. The part of
the Senchus Mor given in the first volume deals
directly with the law of distress, that is the seizure
by distraint of property for the satisfaction of debt,
and only incidentally with other subjects. It will
be seen in the chapter on distress why this branch
of law required so much ‘space and was given this
extraordinary prominence. This first volume of the
translations was published in 1865. The second
volume, which was published in 1869, contains very
interesting fac-similes of ancient writing, and more
than four hundred pages of text of the Senchus Mor,
consisting of the completion of the law of distress,
the law of services of hostage sureties (from which I

ES

 
 

24 THE BREHON LAWS.

have not drawn for the present occasion), the law of
fosterage, the law of tenure, and the law of social
connections, all of which are of the highest interest.
The text of this volume is preceded by a long
dissertation, the object of which is to prove that
Saint Patrick was a Briton. Interesting though
this might be as a separate publication, dependent
for its worth solely on its author’s name, I cannot
but think it out of place here where the question
cannot be discussed on equal terms. In the third
volume of the translations, published in 1873, further
specimens of ancient writing are given. The volume
contains a long general preface, followed by a special
introduction to the remaining portion of the Senchus
Mor—the Corus Bescna—which itself occupies
This is the conclusion of the
Senchus Mor so far as it is now known to exist.
The Corus Bescna, or customary law, is said to have
been the fifth book of the original work, there being
then more than five books. Possibly the remaining
portions exist somewhere, but they have not been
discovered. The Senchus Mor, as now given to us,
is not clearly divided into books. Portions of the
\ original work having been lost, we may be thankful
to get the remainder kept together in any way.
After the conclusion of the Senchus Mor in the third
volume, we are given nearly one hundred pages of
preface to the Book of Aicill, followed by the Book of
Aicill itself, which, with an appendix, occupies over
five hundred pages. The fourth volume opens with
a long and elaborate introduction containing a dis-

seventy-nine pages.

 

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PEt maa ray TOE oe
RE RSET TT rey

” ep CE SOT ET Lp TI —
a an Ry RT -

Ba a Ea

THE EXISTING REMAINS OF IRISH LAW. 25

cussion of the different subjects treated in the
volume, but dealing especially with the Irish family
and clan system. The text of this volume consists
of a number of tracts selected as especially illustrat-
ing the land laws of the ancient Irish, the law of
taking possession, and the laws affecting the consti-
tution of clan and fine and the rights and obligations
of members of those two organisations. I have no
knowledge of the contents of the fifth volume now in

type.

ER a TR

 
 

CHAPTER III.

THE SENCHUS MOR.

~

A ROM the synopsis just given of the
work already done by the Brehon
d Law Commission, it will be seen
that the Senchus Mor, or Grand
7 Old Law, occupies the first and
largest part of it. That ancient work was
designed to be a comprehensive and more

or less codified embodiment of the laws

which were of universal obligation over the whole
country before the arrival of St. Patrick. Outside
it such special rules as occasion demanded were
made or sanctioned by local assemblies, but all
were so framed as to harmonise with and be subject
to the general law as set forth in the Senchus Mor.
This is a great collection, not of statutes, proclama-
tions, or commands of any sort, but of laws already

known and observed from time immemorial; call
26

SN

Ve

\

Pe MG Ct GRP

A Ka

 

IN TT Te FF

THE SENCHUS MOR. 27

them rules or customs if you will, but having the
force of laws, authoritatively set forth in this work,
partly by way of direct statements or propositions,
partly by way of judicial decisions in actual cases.
The work contains nothing of the harsh, peremptory,
imperative style of early Roman law. The writers
do not say, Go, do this, or Go, do that, or If a man
does so and so, let him be hurled from the Tarpeian
Rock. No; they do not enact anything. Pursuing
the more gentle course of the later Roman lawyers,
they state what the law is, support the statement
with the decisions of the wisest Brehons, and then
leave the law to prevail suo vigore. They explain
that the men of Erinn having considered the matter
in times past decided that it was best it should be
so, and that nobles, chiefs and tribes have loyally
observed these laws. Any alteration really desired
could be effected, according to its scope, either in the
local assembly or in the national assembly. Being
Plebiscita in the very best sense, not emanating from
the mouth of a tyrant but from the wisest heads of
the nation, it followed as a natural consequence that

"these laws were obeyed and venerated as the spirit

by which the nation ought to be ruled. There was
therefore no occasion for the imperative, none for
coercion. It was needless to force people to do that
which they took pride in doing. Besides, the laws
having been made by the nation itself were, of course,
designed to promote and secure its wellbeing and
happiness, and were therefore broadly just and
generally found favourable to every good purpose.

 
28 THE BREHON LAWS.

One of the Gaelic commentators says of the
contents of the Senchus Mor, “In the Senchus Mor
were promulgated the four laws, namely—(1) the
law of fosterage ; (2) the law relating to free tenants
and the law relating to base tenants; (3) the law of
social relationship; (4) the binding of all by their
verbal contracts; for the world would be in a state
of confusion if verbal contracts were not binding.”
This is a very inadequate presentation of the con-
tents of the work. The most important branch of
law dealt with in the work is wholly omitted from
this enumeration, and those mentioned are given
neither in the order of their arrangement nor in that
of their importance. But the commentary goes on :

“ The binding of all to their good and bad contracts
prevents the lawlessness of the world. Except the
five contracts which are dissolved by the Feini

even though they be perfected—(1) The contract
of a labourer without his chief; (2) the contract of
a monk without his abbot; (3) the contract of the
son of a living father without the father; (4) the
contract of a fool or mad woman; (5) die contract
of a woman without her husband.” “In it was
established the dire-fine of each one according to his
dignity ; for the world was at an equality until the
Senchus Mor was established.” These few quota-
tions give an idea of the nature of the commentaries
and of the scope of the Senchus Mar proper.

: The Senchus Mor was, according to the introduc-
tion to it, compiled at the suggestion and under
the supervision of St, Patrick in the time of King

 

 

 

\)

THE SENCHUS MOR. 29

Laeghaire (Leary), when Theodosius was Ard-Rig
of the world. The same introduction places St.
Patrick’s arrival in the ninth year of the reign of
Theodosius as Ard-Rig of the world, and in the
fourth year of the reign of Laeghaire as Ard-Rig
of Erinn. Theodosius the Second is the emperor
meant. While a mere child he succeeded his father
Arcadius as Emperor of the East in A.D. 407. On
the death of his uncle Honorius in 423, he became
Emperor of the West also, and thus Ard-Rig or
monarch of the world. Nine years after this date
was 432, which is also the date of the arrival of
St. Patrick according to the Four Masters and other
Irish authorities. Theodosius did not continue
Emperor of the West during those nine years, but
voluntarily resigned that position to Valentinian
the Third and confined himself to the East again.
However, as the East and West were long ruled
as two parts of one empire rather than as two
distinct empires, the same laws being promulgated
simultaneously in both, the partial and friendly
abdication of Theodosius may well have escaped
the notice or comprehension of Irishmen in those
times. In the commentary it is stated that at the
end of nine years after the arrival of St. Patrick
the Senchus Mor was completed. That would be
A.D. 441. In the Annals of the Four Masters it is
said, “ The age of Christ 438. The tenth year of
Laeghaire. The Senchus Mor and Feineachus of
Ireland were purified and written.” The work must
have extended over several years, and those from
438 to 441 appear the most probable.

 
ERE Rapa

rE

CE
LR

30 THE BREHON LAWS.

The laws, being wholly the production of pagans,
needed some modification to reconcile them with the
requirements of Christianity. St. Patrick having
during seven or eight years of missionary work all
over the country, as well as in the previous years
of his bondage, learned in what respects the laws
conflicted with his teaching and thwarted his efforts,
desired, as well for the material welfare of the
people as for the success of his mission, to have
the laws amended. The most permanently and
universally effective way in which this could be
done was to have a simultaneous collection and
revision of the laws decreed by a great assembly
of the nation, and then to take care that the work
should be actually performed by men imbued with
the Christian spirit. Accordingly, ““ He requested
the men of Erinn to come to one place to hold
a conference with him. When they came to the
conference the Gospel of Christ was preached to
them all. . . . And when they saw Laeghaire and
his druids overcome by the great science and
miracles wrought in the presence of the men of
Erinn, they bowed down in obedience to the will
of God and Patrick, in the presence of every chief
in Erinn. It was then that Dubhthach (pronounced
Dhoovah) was ordered to exhibit the judgments and
all the poetry (literature) of Erinn, and every law
which prevailed amongst the men of Erinn, through
the law of nature, and the law of seers, and in the

judgments of the island of Erinn, and in the poets.
Now the judgments of true nature which the Holy

 

THE SENCHUS MOR. 31

Spirit had spoken through the mouths of the brehons
and just poets of the men of Erinn from the first
occupation of the island down to the reception of
the faith were all exhibited by Dubhthach to Patrick.
What did not clash with the Word of God in the
written law and in the New Testament, and with
the consciences of believers, was confirmed in the
laws of the brehons by the ecclesiastics and the
chief men of Erinn; for the law of nature was quite
right, except the faith and its obligations, and the
harmony of the Church and the people. And this
is the Senchus Mor.” Yes, such is the Senchus
Mor, a name which it is said to have received not
from the magnitude of the work but from the great-
ness of the number and nobility of the assembly by
which it was sanctioned. This latter statement,
however, is rendered doubtful by the existence of
a Senchus Beg. (Mor—Great. Beg—=Little. Sen-
chus is pronounced nearly Shankus).

It will be observed that the account just quoted
treats the laws in the plainest possible terms as pre-
existing, and neither as freshly enacted nor as im-
ported. In another place the introduction is equally
explicit on this point. Some of the commentaries
written centuries later, when Christian zeal was
greater than critical acumen or historical accuracy,

~ attributed the origin of the laws to the influence of

Cai, an imagined contemporary of Moses, who had
learned the law of Moses before coming from the
East. Of course this myth deserves no considera-
tion. Cai is only another word for ollamh, or sage.

 
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32 THE BREHON LAWS.

In other late commentaries, and also in other
writings in which reference is made to the laws,
so much importance is, by a pious exaggeration,
attached to what Saint Patrick had done that the
Senchus Mor itself is called the Cain Phadrazg, or
Patrick’s law. The abandonment of paganism may
have caused the discontinuance of some particular
species of actions, and hence some omissions from
the statement of the laws; the introduction and
enthusiastic adoption of Christianity profoundly
affected the moral and religious life of the people,
producing eventually new causes and new law ; some
rules of Canon Law, or rather Church Law, intro-
duced for ecclesiastical purposes, were quite novel
and therefore striking, and the Christian spirit
breathed through the whole law was important;
but the actual changes were few, and substantially
the laws remained the same as they had existed for
centuries before.

The number of the authors of the Senchus Mor is
preserved in one of the alternative names given to it
in the introduction and in some of the commentaries.
In the introduction it is said, ‘‘ Nofis therefore is
the name of the book, that is the knowledge of nine
persons.” And again it says, ‘ Nine persons were
appointed to arrange this book, namely, Patrick and
Benen and Cairnech, three bishops; Laeghaire and
Corc and Daire, three kings; Rossa mac Trechim,
a Doctor of Bearla Feini, Dubhthach, a Doctor of
Bearla Feini and a Poet, and Fergus the Poet.”
Benen, Latinised Benignus, was Saint Patrick's

a .

ESA

THE SENCHUS MOR. 33

favourite disciple, and afterwards became 2 We
and a saint. He was a Munsterman by birt , i

was residing at Duleek at the time of Saint Ba S
arrival. Cairnech, who is said to have been a Rilive
of Cornwall, was also a follower of Saint Bop
He, too, became a bishop and a Jn 2 3
honoured as such in both the Irish and the Eng Wy
calendars. Laeghaire, as already stated, ya a -
rie at Tara, and was a son of Niall the Grant, Buons
also as Niall of the Nine Hostages, who bot is ioe
had overrun Britain and Gaul in much the oo
fashion as the Danes of a later period So gy
countries. It is believed that Laeghaire 5 on
become a Christian. If he remained an In del :
must have been a very tolerant one, for the i
officers of his court appear ie ar 8
i est of the nation; he gave

he By of the assembly which Silanes he
preparation of the Senchus Mar, every facili y ou
carrying out the work, and in no way Spposs ne
modifications suggested by Saint Patrick ase es
he appear to have raised any obstacle to the B ne
sation of Christianity. He died at T ara, wi :

buted in one of the mounds there, standing on u y
armed, facing the south. Corc was the ling 3
Munster and resided at Cashel. He also is ik
to have remained a pagan. He died in ba to
Daire was the sub-king of a portion of See ond
chiefly from the fact that he afterwards gave os 2
of Armagh to Saint Patrick to found his see,

inferred that he must have become a Christian.

4

a =

 

 
TIRE sr sans

——————— A.

Le

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34 THE BREHON LAWS.

Of the nine nominal authors, the remaining three
were the learned men who really did the work.
They were men specially qualified from the legal
and national point of view, all three being eminent
in all the learning of the time; and specially quali-
fied from Saint Patrick's particular point of view, all
being converts to Christianity. For Saint Patrick’s
missionary method was first to make a bold attempt
to convert the learned and powerful. Besides their
personal qualifications, those three men being
specially chosen on this solemn occasion for the
performance of a task of the greatest national im-
portance, they were assiduously provided with
whatever manuscript or other material of the kind
existed, and given every possible assistance in the
performance of the undertaking. Dubhthach mac
ua Lugair was at once the chief brehon and chief
bard of the nation, a position to be reached only by
means of the highest legal and literary attainments.
He was a man celebrated for centuries after, on what
grounds scholars still have some means of judging,
for several fragments of his poetry are still extant,
in the libraries of the Royal Irish Academy and
Trinity College, and in some libraries on the Con-
tinent. A later Gaelic commentator on the Senchus
Mor says, ¢ Dubhthach mac ua Lugair put a thread
of poetry around it for Patrick.”

It was usual to state in ancient Irish manuscript
books the Name of the Author, the Time of writing,
the Place of writing, and the Occasion, Cause, or
Object of writing. It was in accordance with this

4 > oe Tey SS

 

THE SENCHUS MOR. 35

custom that the introduction to the Senchus Mor gave
the information just noticed ; and it goes on to tell in
the following words where the compilers sojourned at
the different seasons of the year while the work pro-
ceeded : — “ The place of the Senchus Mor was
Temhair in the summer and in the autumn, on
account of its cleanness and pleasantness during
those seasons; and Rath-guthaird, where the
stone of Saint Patrick is at this day in Glenn-na-
Mbodhur, near Nith nemonnach, was the place
during the winter and spring, on account of the
nearness of its firewood and its water, and on
account of its warmth in the time of winter's
cold.” Temhair, genitive Teamhrac, pronounced
Tara, is now so called [Gaelic words are frequently
adapted to English in the genitive, speakers of
modern English being generally ignorant of true
declension]. Glennavohur has been satisfactorily
identified as a lovely sheltered glen near Nobber,
in Meath. A small stream called the Nith flows
through it, and in this stream still stands the stone
called Saint Patrick’s stone.

The manuscripts of the Senchus Mor now existing
are four in number :—

1. A comparatively full copy among the manu-
scripts of Trinity College, Dublin.

2. An extensive fragment in the British Museum.

3. A large fragment in Trinity College, Dublin.

4. Another large fragment in Trinity College,
Dublin.

All these manuscripts were translated by Dr.

 

 
TT ———
SA ——————— wm INA
TT

——

nn sin bn sp —_—
PINS eS mR ip

yap

36 THE BREHON LAWS.

O'Donovan, and afterwards collated in consultation
with O’Curry and other Gaelic scholars, breaks and
obscure passages in one being made up and illus-
trated respectively from the others, and everything
done to render the translation as perfect as possible.

No credit whatsoever is due to Trinity College as
an institution for the preservation of the legal or
other ancient documents now stored there. When
it was dangerous to preserve them, they were pre-
served by Irish peasants in spite of the danger, in
spite of the system of government which created the
danger and of which Trinity College was a part and
an instrument ; and it was only when Ireland’s
darkest age, which Trinity College had heralded,
was coming to an end, that most of those ancient
documents reached their present resting-place.

Some English critics have raised various objec-
tions against the possibility of the Senchus Mor
having been compiled under the supervision of Saint
Patrick, as, for instance, that he had enough to do
besides, that he could not have been 2 member of
the Irish national assembly, and so on. Personally,
I do not think these shallow objections deserve any
notice ; but whoever cares to know how little of
substance there is in them should read Dr.
Hancock's comments thereon. He shows them to
be evidence of either ignorance or want of due con-
sideration. He might have added that they are, in
some instances, evidence of the old English animus
which would, if possible, deny the existence of the
Sechhus Mor itself, and in fact does so by represent-

 

 

THE SENCHUS MOR. 37

ing that Ireland was wholly without law until
English law was introduced. Many generations of
English children have been deliberately taught this
falsehood at school, and when they have grown up
the fact that a thing is respectable and Irish is quite
sufficient proof for them that it does not exist at all.
It is the very existence of the Senchus Mor and of
our beautiful illuminated manuscripts that confounds
such people, and therefore irritates them. Knowing
that themselves cannot err, they feel that the facts
are perverse and have got wrong somehow. They
would willingly lavish money digging for such things
in the débris of Greece or in the sands of Egypt, but
if told of its existence in Ireland they duly shrug
their shoulders and proceed to doubt and criticise
instead of taking the trouble to learn. A similar
modification and codification of laws took place in
Gaul about a quarter of a century earlier than in
Ireland ; and we have already observed that more
than a century and a half later Saint Augustine had
the scraps of Saxon laws that existed in Kent
collected, arranged, and modified.

I find it stated that after the laws had been
collected and revised by the Committee of Nine, they
did not ipso facto take effect in their altered state
until sanctioned by the national assembly. No
authority is given for this statement, nor have I met
with any in the Senchus Mor itself. But since
without a positive national ratification and accept-
ance, although the changes effected were not such
as could be called revolutionary, they might be

 

 
    

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2 AA SEN ed a - Ba ter Ed Bi cs AB a 2 . 1 ¢ 4 - 5 2
AH iY STI rd a ne rn yt he BP — i” :
~ - . - —— - - - a ————— - - - ————— - - — wv ——— - - ——— - - a oo

» ha ¢
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38 THE BREHON LAWS.

disputed in some quarter. As nothing of this sort
appears to have occurred, and as the universal
acceptance and stability of the alterations were
essential to the success of Saint Patrick’s work,
there is little doubt that he took the obvious pre-
caution of having the alterations sanctioned in the
most formal and effectual manner then known,
namely, by a great assembly. Whether the second
assembly was a special one of an unusual character
like the first, or the ordinary Feis of Tara, there is
no record to show.

 

 

 

 

em

 

CHAPTER IV.
LEGISLATIVE ASSEMBLIES.
SECTION IL
INTRODUCTORY.

25, OME historical writers go so far as
% to say that there was an entire
. absence of legislative power in
: ancient Ireland. This is quite too
" sweeping, and wholly inconsistent
with the ascertained facts of the
period in which we are mainly interested, the period,
namely, of the compilation of the Brehon code.
But, unfortunately, it is applicable to the nation,
though not quite so to the clan, at a subsequent
period when the national assembly had ceased to
meet. Authors who appear to be better informed
maintain that there were five different sorts of legis-
lative assemblies in ancient Ireland, some of them

 

39

 

I rT eS TTR rw

 
 

a a

TT ———"

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:
4
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at rs a

ARERR

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40 THE BREHON LAWS.

being for national, some for provincial, and some
for local or tribal purposes. No one has yet
sufficiently investigated the subject to be able to
set forth with precision what the constitutions,
duties and powers of those assemblies were.

The idea of making laws does not appear to be
natural to primitive man. This is proved by the
early history of many nations gleaned with the
greatest care; though a good deal that is theoretical
might be advanced to the contrary. The prevailing
sentiment of primitive races always has been, and
still is, that laws handed down from remote antiquity
should not be meddled with. The object of the long
and apologetic preambles of old English Acts of
Parliament was to soothe this sentiment and recon-
cile it to the changes about to be enacted. So long
as such a sentiment prevails, and to its extent, there
is a reluctance to tamper with laws. I cannot say
how far this sentiment prevailed in Ireland, but
it is certain to have existed to some extent; and
what is given as a Gaelic proverb would go to
support it—‘ The old rule transcends the new
knowledge.” But quite apart from this sentiment,
the simple life of the people, the system of clan and
fine, with its network of rights conferred and duties
imposed, and the just character of the existing laws
must have reduced to a minimum the necessity for
direct law-making.

When nations which had not fallen under subjec-
tion to a despotism had arrived at the idea of making
and altering their laws, they at first met in public

LEGISLATIVE ASSEMBLIES. 41

assembly and did it by direct vote of the free and
qualified citizens, those citizens being on such occa-
sions, in some nations, armed and clashing their
arms in token of final assent. Later on when some
system of representation or delegation had been
devised, the assemblies so formed were usually
given power, not only to make and alter the laws,
but to enforce them and also to apply them judicially,
and to determine whether they had or had not been
observed or violated. There being little direct
making of new law, but chiefly a gradual adaptation
and blending in the course of administration, there
was no clearly marked distinction between legisla-
tive, executive, and judicial functions. All those
functions were discharged, for instance, by the
Saxon Witan; and it was from such a state of
things, though in very different circumstances, that
the English Star Chamber arose. The judicial
powers of the House of Lords and of the Privy
Council of the present day come, through various
winding ways, from the same source. These
observations apply so generally to other nations
that one would expect to find traces of a similar
evolution in Ireland ; yet those who have read Irish
manuscripts most extensively assure us that, so far
as they have been able to discover, the Irish always
had courts of justice quite distinct from their legis-
lative assemblies. Irish courts of justice appear to
have attained a far more advanced stage of develop-
ment than Irish legislative assemblies. The
converse of this would be true of ancient Rome, for

 

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same exclusive model.

42 THE BREHON LAWS.

instance. But some of the Irish assemblies, perhaps
all, were still much more than legislative; or rather
the work of legislation does not appear to have
been the sole, or even the principal, duty of any of
them. In pagan times, at all events, their primary
and principal duties were of a semi-religious character,
with legislative, executive, administrative, and social
duties superadded as occasion arose. And possibly
the introduction of Christianity effected no greater
change in the assemblies than the elimination of the
old religious observances. Some of the assemblies
were constituted mainly of the Flaiths, or nobles,
with a small number of other distinguished men,
and in this respect may be said to have resembled
the present House of Peers. A national assembly
of this character met at Tara, and there was in each
provincial kingdom an assembly constituted on the
Some of the assemblies,
especially those that were local, were probably con-
stituted of as many heads of families of the Céile, or
freehold class, as chose to attend them, the clan
system conferring the qualification, and there being
no other form of election.

The wilful disturbance of any lawfully constituted
public assembly, national or local, was one of the
few things for which a fine was not considered
adequate punishment; the penalty was death.

 

 

 

FE)

BEE®

Jr ————

 

SECTION II.

THE FEIS OF TARA.

(55) ON blies was the Feis of Tara. It
SW is said by some to have been
founded, in the year of the world
3884, by King Ollamh Fodhla, whose name means
Sage of Ireland, and whose reign was so propitious
that ““it was difficult for the stalk to bear its corn
in his reign.” Others say the Feis originated in
funeral games. The truth probably is, that it
originated in funeral games, and was turned to
the other purposes by Ollamh Fodhla. At all
events, a national assembly was held at Tara from
a very early period down to A.D. 560, when thew
last was held there under King Dermot, son of
Fergus.

The Feis of Tara was an assembly of the leading
43

 
  
 

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44 THE BREHON LAWS.

men of the whole island—kings, tanists, flaiths,
warriors, brehons, chief poets, &c.—not a meeting
of all classes of society. It was not ambulatory,
like the English national assembly of later times,
held now in one place, now in another, wherever
the king happened to be; nor was it haphazard like
that by which Magna Carta was adopted. Its
constitution and its place of meeting were fixed,
and its times of meeting fairly regular. It met at
Tara every third year, three days before the 1st of
November, and it continued in session three days
after the 1st of November. Thus its ordinary
session lasted for seven days. For some time before
it ceased, however, it had been summoned less
frequently.

There was an important pagan festival observed
all over the country on the feast of Belltainé, which
was the 1st of May; and at Tara it was the
occasion of an assembly lasting for some days.
But those assembled on this occasion seem to
have been brought together mainly by religious and
social motives and the attractions of the royal
court.

Dr. Joyce is of opinion that some of the ancient
Irish national assemblies did directly enact laws,
but that the Feis of Tara was not one of these; and
he doubts that the Feis was convened to enact laws,
and says there is no ancient authority for holding
that it was. Other authorities do not agree with
Dr. Joyce in this latter view, and I find himself
speaking in another place of the summoning of the

 

   

LEGISLATIVE ASSEMBLIES. 45

Feis on ‘some urgent occasion.” An assembly
which was summoned on an urgent occasion, when
there were serious matters to be considered and
dealt with, was certainly summoned for some
practical purpose, and must have been in some
sense the Great Council of the Nation; and if it
did not enact laws, it must have deliberated on
national affairs with effect, which is a near approach
to law-making. In a poem, written in the tenth
century, the Feis is spoken of as having been con-
vened ‘to preserve laws and rules.” Edward
O'Reilly, the Gaelic scholar, calls the Feis “a
parliament.” It may be that neither the Feis of
Tara nor the other assemblies were convened for
the express purpose of making new laws, or ever
professed to make new laws, but only to promulgate,
reaffirm, retrench, modify or otherwise affect laws
long known but for some temporary or partial or
local reason suspended, or to extend to the whole _
kingdom some advantageous local custom, or to
correct or abrogate some vicious custom, or to
enforce uniformity among the brehons in case of
conflicting judicial interpretation, or to restrain on
the ground of some local or temporary hardship the
strict enforcement of a law otherwise just. There are
countless things like these which a national assembly
could do well, and in doing which it would be
modifying the law; and although it never called
itself a legislative assembly, and never claimed fo
make laws, we are still quite justified in calling its
acts legislative. While many eminent authorities

   

 
 

a Bart MA MA

sa iO a

Fon ima

San
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AE Sm Wg

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s—

 

 

 

46 THE BREHON LAWS.

hold that the Feis of Tara did these things, Dr.
Joyce's view cannot be accepted as final.

Among the other duties performed at the Feis
was one of some importance even now, but of in-
finitely more then, because on it the title to rank,
property, and privileges largely depended. This
was the comparing and checking of the local pedi-
grees with each other, and with the Monarch’s

Book, or Register, kept at Tara. Analogous duties

are now divided between the offices of the Herald
and the Registrar-General.

King Dermot died in A.D. 563 (or 565), and after
his death no Ard-Rig resided at Tara. No separate
Ard-Rig was any more appointed with the kingdom
of Meath for his mensal. One of the provincial
kings usually assumed the office, or at least the
title, retaining and residing in his own province.
Tara was deserted, and no place for holding a
national assembly was ever substituted. To the
time from this date onward, the saying applies that
there was no central legislative authority acting for
the whole island. Once after the reign of Dermot a
national assembly, or convention, was held at Tara,
but although legislative it can hardly be called the
Feis. It was held in the reign of the monarch
Loingseach about A.D. 697; and at the instance
of Saint Adamnan a law was adopted which, among
other things, freed women from liability to military
service, and prohibited their presence in battle.

After the abandonment of Tara as a royal resi-
dence, and the consequent discontinuance of a

M—————————— ET es a
EE ELL.

 

LEGISLATIVE ASSEMBLIES. 47

national assembly, it can hardly be said that one
concrete state, broad and national in basis and con-
centrated in executive power, existed in Ireland. As
though Tara had been the vivifying sun of true
national life, a summons or word of command from
any other source never could be and never was
frankly recognised as the voice of the Ard-Rig,
never could and never did inspire the old generous
patriotism, but often inspired bitter jealousy of
(as was deemed) a local usurper in the person of the
nominal Ard-Rig, a desire to dispute his title if
possible, and to set up a rival. Many holders of
the office after Dermot’s time are marked kings
« with opposition” ; and though this opposition was
not successful, its existence had a disintegrating
effect among the people, and in law actually reduced
the king's status and rights in certain cases. True
national unity, and with it true national security,
was at an end. The nation was divided into a large
number of small isolated communities called Twuaths,
the territorial extent of which is in many cases
represented by the modern baronies. These com-
munities had some of the characteristics of states,
and fancied themselves such, but were in reality
fragments of a nation falling asunder, and were
doomed to become political ruins if not re-united.
Small nationalities are dear to the Spirit of Freedom,
but she loves not the aimless subdivision of a nation
that is really one in race and interest. There always
had been much independence of action in the several
tuaths; and this was well so long as it originated

 
    

   

 

 

Sg A
—

  
 
 
 
 
  
  
   
  

TITY w

 

 

 

THE BREHON LAWS.

in worthy aims, or in wholesome and honest rivalry,
and could be subordinated at once to the interests
of the tuath, and of the nation by the controlling
and assimilating influence of a supreme central
authority. But once that authority ceased to exist
at Tara it de facto ceased to have any existence; the
several tuaths pursued what they deemed their
several interests, keen in the assertion of a puny
autonomy but blind and indifferent to the common
national interest; and the country sank into the
condition of England under what is called the
Heptarchy, when the petty Saxon kingdoms were
so independent that they were almost constantly at
war with each other.

It is thought that one of the events which had
most influence in bringing about the consolidation
of England was the reduction of the Church there
to a single national Church by Theodore of Tarsus,
when Archbishop of Canterbury, in the latter part of
seventh century. Before his time, the territorial
limits of ecclesiastical jurisdiction had varied and
shifted with the varying fortunes of the little
kingdoms. He fixed permanently the limits of
spiritual jurisdiction, and subjected the Church
throughout England to one central authority. Some
such service would then have been a boon of in-
estimable value to Ireland, even if it had come from
foreign lands; for while over-centralisation is un-
doubtedly a great evil, so much of it as is necessary
to inspire a common patriotism and prevent the
degradation of local rivalry to sordid jealousy is as

  

   

 

 

   
  
  
   
  
  
  
  
  
 
   
   

LEGISLATIVE ASSEMBLIES.

 

49

undoubtedly a great good. It happened that the
Church in Ireland exerted no such influence and
afforded no such example, for it had from the be-
ginning accommodated itself to the genius of the
people to the extent of assuming somewhat of a
clannish complexion without the national organism
and outward visible bond with which we are now
familiar. Each clan aimed at being self-provided,
self-contained, and self-existing in every respect,
spiritual and temporal. It built small churches,
monasteries, and schools ; endowed them with lands,
stock, and all necessaries, in the same generous
manner in which, in previous generations, it had
provided for the Druids and other learned men ; it
dedicated, as a rule, every first-born son to the
Church; and it retained to itself the right of suc-
cession to all posts, clerical and lay, so long as it
possessed qualified persons. Indeed, the require-
ment of qualification can hardly have been always
very rigorously insisted upon, inasmuch as positions
of great importance were in many instances filled
for successive generations by members of the same
family, as though in a sense hereditary. This latter
feature, however, was due to a certain general
tendency, which we shall have a more suitable
occasion to notice.

The clan had its bishop too, or an abbot having
episcopal faculties; and so far as territorial jurisdic-
tion was known at all his was coterminus with that
of the clan. The bond between those pastors seems
to have been of a very vague character, the chief

5

  
 

 

 

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Rd Ra

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wt We a, eee
Na

pe rr
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EE

 

 

 

50 THE BREHON LAWS.

connecting link apparently being the purely spiritual
one of a common faith. The successor of Saint
Patrick was always Primate, and always held in
special reverence over the whole country. The
occupant of that position could have done for
Ireland what Theodore did for England ; but being
usually a man of Irish training, and seeing things as
he had been accustomed to see them and with Irish
eyes, the necessity for organising the Church on the
modern principle does not appear to have occurred to
him with sufficient force to call forth effective action
in its attainment until a later time, just when the
nation had become incapable of profiting by the
example.

 

 

 

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SECTION III.

TAILLTENN AND UISNEACH.

0) NOTHER very celebrated national

4 assembly was that held for many

centuries at Tailltenn on the

, Blackwater in Meath. It was a

. general assembly of the people—

JF that is to say, not restricted to

= men of rank and distinction like

that at Tara. It was held annually about the
beginning of August. It also originated in funeral
games, or rites; but its subsequent purposes were
even more manifold than those of the assembly
at Tara, and they varied from time to time.
They always included the social and political ;
and, as at all the great assemblies, the laws were
always proclaimed anew—that is, read aloud in
public that they might not be forgotten, and any
changes in them carefully explained to those
present. The last of the regular assemblies at

51

 
BRS Sates

 

 

52 THE BREHON LAWS.

Tailltenn was held under King Roderick O'Connor
in A.D. 11068.

The Hill of Uisneach, in Westmeath, was, in
pagan times, the site of a national assembly dis-
tinctly legislative in character. It was at one
such assembly, held there about one hundred
years before the birth of Christ, that a uniform
law of distress for the whole country was adopted.
Uisneach has been the site of many political con-
ferences since then, but I have met with no account
of an assembly there, purely legislative, since the
nation became Christian.

 

 

 

SECTION IV. |

THE AENACH.

... I local assemblies, the Aenach

\: appears to have been the most

generally important. Aenach is

the word now translated fair,

and is, in fact, the present

Irish term for a cattle - fair.

But though some such fairs

originated in aenachs, they bear very little resem-
blance to the original. Fair is no translation of
the word, but is one of those things which one
would rather have expressed differently. Aenach
means, first, an assembly; second, a hill, from
assemblies meeting on hills; third, a cattle-fair,
from such fairs springing up where aenachs once
were held. Wherever an aenach was held a fair
sprang up, but the latter was purely a consequential
and collateral adjunct to the former. The aenach

proper was an assembly of all the people of a
53

 
 

 

 

 

54 THE BREHON LAWS.

district, without distinction of rank, and apparently
without distinction of clan. Some were held an-
nually, others triennially. Originating, like all
the other Irish assemblies, in pagan funeral or
commemorative rites, the aenach continued even
in Christian times to meet in a cemetery. There
is no definite statement that the aenach enacted
laws; but one of the many objects of the
assembly was that the laws might be published,
and where this was done the effect of the laws
may have been in some way modified. The
aenach was also taken advantage of for holding a
high court of justice for the trial of appeals and
cases of special difficulty, a Church synod in
Christian times, a place for musical and bardic
contests, for the recitation of martial and other
poetry and family pedigrees, a weapon-show or
sort of military review, feats of arms, horse-racing,
athletic sports, and all the games of the time, and,
of course, for the distribution of honours and prizes
amongst the successful competitors. So far the
assembly might be considered the aenach proper.
But all these proceedings, and the multitude of
people they brought together and detained in one
place for a couple of days, rendered a market for
refreshments necessary ; and this developed into
a market for all kinds of wares and produce and
for cattle. Owing to the scarcity of towns and
shops in those days, this incidental feature of the
aenach was found very convenient; and it grew to
such an extent that it ultimately overshadowed the

 

 

 

 

LEGISLATIVE ASSEMBLIES. 55

primary purposes of the aenach, and furnished a
practical if not an etymological reason for trans-
lating the word into fair. For the commercial
purposes of the fair those meetings were frequented
by merchants, Irish and foreign, and a brief but
vigorous trade was carried on.

Aenachs were held in many places throughout the
country, and the word still forms part of the names
of a number of places, the best known in this respect
being Nenagh. But the accident of retaining the
name is no indication of the relative importance of
the different aenachs held in those places. For they
did differ greatly in importance. The aenach of
Carman was for a long time one of the most cele-
brated in the South of Ireland. Carman was a place
near the site of the present town of Wexford, and,
I believe, is the Irish name of that town. The last
aenach was held there in A.D. 1033, under Donnchadh
MacGillaphadraig, Chief of Ossory, who was King
of Leinster then. Greek merchants are spoken of
as having attended the aenach of Carman for com-
mercial purposes.

 
 

 

 

 

 

 

SECTION V.
THE TRIBAL ASSEMBLIES.

YACH clan had two local assemblies
of its own for the transaction of its
ordinary business, legislative and
administrative. These were the
authoritative fountains of urradhus
law. One was called the Cuirmtig
(pronounced Coorthy), and was pro-
bably open to all clansmen who
In it, for the most part, new pro-
The other was called the Dal,

 

paid tribute.
posals originated.
and appears to have been open only to heads of

septs ; possibly to heads of fines also. Dal means
a tribe or division of a race, but it had also
the special meaning of an assembly representing
and acting for the tribe. It was a sort of local
second chamber, in which bills passed in the first
had to be ratified before they became legally

binding. Each clan had also a further assembly
56

 

-—

LEGISLATIVE ASSEMBLIES. 57

called a Tocomra. This was the assembly in which
the king or chief or tanist was elected. So far as
I can discover it consisted of the same persons as
the Dal; but it was summoned by the Bruigh-fer,
or Biadhtach (pronounced Beetagh), and met in his
house. This house was not the private property of
this officer, but was considered somewhat as a public
hall belonging to the clan, and used as occasion
required for clan purposes. The Bruigh-fer, or
Biadhtach, was its occupant and keeper and a clan
official appointed and empowered to discharge
various duties of high importance. Besides sum-
moning the assembly just mentioned, he was bound
to entertain the king, bishop, bard, judge, and some
other public functionaries of the clan who were
privileged to claim entertainment for themselves
and a number of attendants fixed in each case by
the law. He was also bound to entertain when
required, on behalf of the clan, friendly visitors, if for
any reason the king or chief could not conveniently
do so; and he was under certain legal obligations to
all belated travellers who passed by the way. In
fact he may be called a public hospitaler, and this
is almost the literal signification of the word
Biadhtach. To enable him to comply with these
extensive requirements, he was allowed about five
hundred acres of free land, besides various personal
privileges; and he was, by virtue of his office,
a magistrate empowered to administer justice in
certain cases. There were many special provisions
in the law for the protection of himself and his

 
 

 

 

 

 

58 THE BREHON LAWS.

official property, for he and his house were rightly
regarded as an important public institution. He
was fancifully supposed to have five doors to his
house, facing in different directions, always a pot of
meat boiling, and cattle and pigs on the premises
fat enough for killing.

In later centuries ballybetagh, so named from this
officer, came to mean among the English in Ireland
a sort of rough measure of land equal to about five
hundred acres.

| rt Jl iF 21
1 \> & A EI Rt 2h TD Yo rr SoD ) 4

———

CHAPTER V.
CLASSIFICATION OF SOCIETY.

SECTION I.
INTRODUCTORY.

ERSONAL rights of the
political and social order
were in ancient Ireland
arranged upon a graduated
scale of status, and society
was divided into a great
number of classes, or grades, quite
distinct in many respects according to
the position they occupied on this
scale. One of the Gaelic commentators
of the Middle Ages says, among other
things, “ The world was at an equality
until the Senchus Mor was written.”

That part of his statement may be disregarded.
59

 

 
 

 

 

 

60 THE BREHON LAWS.

At all events, I go on the assumption that it is
incorrect ; nor do I deem it necessary to state
my reasons. For our present purpose, however,
ancient Irish society may conveniently be divided
into six general classes—(1) the kings of various
grades; (2) the professional classes; (3) the flaiths,
who constituted a sort of official nobility; (4)
freemen possessing property; (5) freemen possess-
ing none (or very little); and (6) the non-free
classes. But although quite distinct, these classes
were not utterly exclusive castes such as we read
of in Eastern countries. It was possible for per-
sons to rise (or sink, as the case might be) from
one class to another. Rank and office meant nearly
the same thing; or perhaps it would be more
correct to say that wealth, rank, office, power and
responsibility were considered as co-ordinate ingre-
dients of status, and therefore always vested in the
same persons proportionately according to their
respective positions from the king downwards.
Progress from one rank to another was no doubt
effected in a variety of ways, as by duly qualifying
for a learned profession, by displaying conspicuous
valour, conspicuous skill in some department, the
performance of some signal service to the com-
munity, and the possession of wealth. The first men-
tioned qualifications were personal and of imme-
diate effect; this latter one was proprietorial and
not always immediate. Its frank recognition shows
that our ancestors were of a far more practical turn
of mind than they now generally get credit for.

 

 

CLASSIFICATION OF SOCIETY. 61

Their complex political, social, and military system
was avowedly based on the possession of wealth to
even a greater extent than the system founded at
Rome by Servius Tullius. The effect of wealth in
this respect was arranged and calculated frankly
upon fixed rules, and not left uncertain and indefi-
nite as is now generally the case. Such a system
at least furnished an incentive to thrift and industry.
Every clansman was eligible, provided he possessed
sufficient property, and had not forfeited his right by
crime, to become an Aire (pronounced Arra); if he
owned the qualifying property of a Flaith, and his
family had owned that property for three generations,
he might become a Flaith ; and a Flaith was always
eligible for the highest office in the state. On the
other hand, loss of wealth below a given amount in-
volved loss of the status to which that amount corre-
sponded. The Irish system had this advantage over
the Roman system, that when persons of an inferior
grade had not sufficient property individually to
qualify for the full rights of citizenship, as the rights
of suing, of being jurors, witnesses, sureties, &c., a
number of them might combine, form a guild or
partnership, take a piece of land (presumably waste
land), and this joint property, after they had culti-
vated it for ten years and fenced it off, would give a
qualification for one of them to become an Aire, with
all rights of citizenship and power to act for the
partnership without external assistance. A similar
right of forming partnerships was given to artisans
and others who lived by handicrafts and such forms

 

 

 
 

 

 

 

62 THE BREHON LAWS.

of industry ; and having combined, they could choose
from among themselves a person to become an aire,
act for them, and enjoy full rights of citizenship on
their behalf. These partnerships, or guilds, were a
very important economic feature in ancient Ireland.
Each rank in the ascending scale brought to the man
who had reached it an expansion of liberty, an
accession of rights and privileges, and a corre-
sponding increase of liabilities. Also the fines
recoverable in case of injury depended upon rank;
and rank depended largely upon wealth.

There are indications that the different classes
were distinguished by the colours of their dress ; but
there is no trace of any one having been punished for
having violated this rule, and I think we shall not
be far wrong in concluding that the rule strictly
applied only to public occasions, that it was enforced
rather by pride than by enactment, and that its
extension to private life was due not so much to
either of these causes as to convenience.

Let us now consider the various classes in the
order named.

 

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SECTION II.

THE KINGS.
7A ESAR says
NOV} that in Gaul
: some of the
states were ruled by
senates, with no indi-
vidual holding the office
of head of the state. But
in nearly every case he
appears to have found aspirants to that position,
the sons or descendants of deposed kings; and
if in any case he found neither a king nor an
aspirant, the fact may have been due to some
accidental cause, and without inquiring sufficiently
he may have assumed what he as a Roman would
expect. At all events, such a state of things does
not appear to have at any time existed in Ireland or
in any part of it. The Irish always had a man, not

an assembly, at the head of the state, and the system
63

 

 

 
 

Er  ——

mmm“

  
 

So a — ——

 

 

 

   

Le
Je
- ———

64 THE BREHON LAWS.

of electing a Tanist while the holder of the oiiive
was living, in addition to its making for peace on the
demise of the crown, made an interregnum of more
rare occurrence than in countries which had not
provided a Tanist in advance. Ireland has on a fw
occasions been ruled by two monarchs jointly; a

for a few years after the death of Malachy the
Second, in the eleventh century, it was ruled by two
judges who were not kings. But these were excep-
tional occurrences, and beyond them kingly rule was

ite uniform. :

pir word Cing occurs in the Gaelic manuscripts
as the equivalent of Rig; but Rig (pronounced Ra
is the term generally employed. It is cognate wit

the Latin Reg-s = Rex. It did not designate pre-
cisely the same class of official as the word king now
does. Primarily, and above all things, the rig was
the head and representative of his race and clan, the
members of which were rather his kindred whose
interests it was his duty to serve than subjects to be
ruled ; and the word 77g being considered as a genetic
term, there was no inconsistency in several ranks
or classes of rigs flourishing at the same time ead
forming a sort of hierarchy, the members of whic

were mutually dependent on each other. Our
ancestors aimed, in theory at least, at interde-

nce in all departments.

pede lowest A regulus, or sub-king was the
Rig-Tuatha, a king of one tuath, or district, the
people of which formed one organic state. As
already observed, these tuaths were very numerous,

 

 

 

 

CLASSIFICATION OF SOCIETY. 65

but sometimes two or three of them that were
nearly related had but one king. And where there
were separate rulers, the term 72g was by no means
rigorously adhered to. Various other descriptive
terms were employed; but the word 77g is simple
and convenient for our purpose.

The next in rank was the Rig-Mor-Tuatha. He
was a ruler of a number of united tuaths, each of
which might have a rig-tuatha of its own, subject in
Some respects to the Rig-Mor-Tuatha,

The next class of king was called the Rig-Cuicidh,
a word implying that he had five rig-mor-tuathas
under him, each of whom in turn might have three,
four, or more rig-tuaths under him. This was the
rank of the provincial king.

So long as the Ard-Rig resided at Tara he may be
considered, by reason of his exceptional privileges, to
have formed a separate rank of royalty, or rather jts
head ; but after the abandonment of Tara, since the
Ard-Rig was rarely able to enforce his rights, he
may be considered as belonging to the class of the
provincial kings.

The king of each tuath owed all
to the Rig-Mor-Tuatha ; the latter owed allegiance
and tribute to the Rig-Cuicidh ; and the Rig-Cuicidh
owed allegiance and tribute to the Ard-Rig. The
special branch of law affecting the allegiance in each
case, the amount of the tribute, the amount to be
returned by the recipient of the tribute, and other
constitutional matters, was contained in the Psalter
of Tara as drawn up under the direction of King

6

egiance and tribute

   
  
   
    
  
       
     
     
   
 
  
      
  
     
    
      
      
       
     
     
     
      
        
      
     
   
   
 

 

 

 

66 THE BREHON LAWS.

Cormac, and also in the ancient Book of Rights (if
this be a different work); and much on the same
subjects will be found in a later Book of Rights which
still exists and has been translated by O'Donovan.
The prerogatives, privileges, duties, and liabilities of
the various kings within their own territories are
fully laid down in the course of the general law ;
and when the clan system was in an efficient con-
dition, so many forces acted in aid of the law, and a
neglect of official duty affected so many persons
that, in ordinary times of peace, such neglect must
have been rare. The king was not in any sense the
maker of the law, but its officer, and so limited and
hemmed round in his office, and so dependent on his
clan, that it was easier and safer for him to conform
to the intention of the law and promote the welfare
of his people than to become either negligent or
despotic.

The office of Rig, of whatever rank, was always
elective, as was the office of king anciently among
the Saxons. But the choice was restricted by custom
in the case of the Ard-Rig and provincial kings to a
narrow circle of the flaith class called the Riogh-
dhamhma or Damma Rig (=Materia Principum), the
members of which were required to undergo a very
careful training, mental and physical. It was there-
fore as a rule confined to the family in possession.
So long as there was an eligible member of that
family, the kingship may be said to have been practi-
cally hereditary in that family, but not in any par-
ticular member of it. An eldest son did not succeed

 

rr et ra ar His rum ele a en et RIT Peers i
” > LTE 1

CLASSIFICATION OF SOCIETY. 67

merely because his father had been king, if there
was an uncle, nephew, brother, cousin, or other
member of the Damna Rig better fit for the position ;
and the Tanist was usually such a relative, and not
a son. The same rules applied to the election of
sub-kings, but being in rank not so far removed from
the flaiths the distinctions were not so marked, and
if the family in possession failed, the flaith best
qualified was eligible. The law on the subject is
expressed in the following words: * Every head
defends its members if it be a goodly head, of
good deeds, of good morals, exempt, affluent, and
capable. The body of every head is his tribe, for
there is no body without a head. The head of
every tribe, according to the people, should be
the man of the tribe who is most experienced,
the most noble, the most wealthy, the most wise,
the most learned, the most truly popular, the most
powerful to oppose, the most steadfast to sue for
profits and to be sued for losses.” No person not
of age, stupid, blind, deaf, deformed, or otherwise
defective in mind or body, or for any reason whatso-
ever unfit to discharge the duties of the public
position, or unfit worthily to represent the manhood

~ of the community, could be chosen for king or could

hold the kingship; even a blemish on the face was a
disqualification. Here were requirements enough
positive and negative, which not every man could
satisfy, The method of choosing the king was not
fully one of merit, nor fully elective, nor fully heredi-
tary, but a combination of all three: and on the

ate,
Ar Sap ii

oy ak

 
 

 

 

 

68 THE BREHON LAWS.

whole the office resembled as much that of president
of a republic as it did that of a modern king.

The Ard-Rig was not elected by the people at
large, but by the sub-kings and flaiths of all Ireland,
the same men who constituted the Feis of Tara.
The provincial kings were elected by the flaiths and
aires of their respective provinces. The king of a
tuath was elected by the flaiths, aires, and probably
all heads of families in the tuath. The immediate
position to which the person was elected in each case
was usually that of Tanaiste or Tanist (=Second),
the king being living. The Tanist was a successor
or heir-presumptive elected before his time. He
sometimes acted as a sort of vice-president while the
king lived. As soon as he in his turn became king,
a new tanist was elected, so that there was rarely a
direct election to the office of king.

The king was, of course, by virtue of his office,
head of the State in general, whether in arms or in
peace. He was the fountain of honour and of
justice, and one of his duties was to appoint a brehon
to administer law in his district. He had himself,
in ordinary times, some magisterial jurisdiction.
King Cormac, for example, is spoken of as a
“righteous judge,” and all kings are spoken of as
hearing cases and pronouncing judgments. The
nature or extent of this jurisdiction is not clearly
stated, but I think it had to do mainly with criminal
law, especially treason and the kindred crimes. If
from any cause there was in his district no brehon,
or the brehon was incapacitated, the king himself

 

 

en SR I om TY RT NE EA RR RT RR i A a.
ne ” Hp by v hogs: TR Te) BE gid TT

CLASSIFICATION OF SOCIETY. 69

was bound to act as judge in cases calling for imme-
diate settlement.

Wealth is mentioned among the qualifications for
the kingly office, but in addition to his private wealth
a considerable amount of land was set apart for the
use of every holder of the office, what was deemed
sufficient to support the dignity and bear the ex-
penses connected with it. On this land there was
always a dun. A provincial king usually had several
mensals of this nature with a dun on each. “ The

residence of a king is always a dun, and there is no
dun without a king.”

 
 

 

 

SECTION III

PROFESSIONAL MEN.

Sub-Section 1.—Preliminary.

ROFESSIONAL men next

demand our attention, and

of these especially the

Brehons. The laws were
administered in Ireland by

brehons, so called while so

engaged. It is not clear that there was
in early times, as there was in later, a
distinct order of men so engaged and
not otherwise—judges and nothing else,
and there is some reason for thinking
that this was an after-growth. In the
older manuscripts the words druid,
bard, and brehon appear to be applied to the same

persons interchangeably and as if synonymous.
70

 

 

 

CLASSIFICATION OF SOCIETY. 71

The terms are, however, not synonymous, and
never were, even when applied to the same per-
son. One person being a very learned man might
be all three; and probably this was so sometimes,
and was always looked for in pre-Christian times.
But, of course, its continuance was neither neces-
sary nor possible. In some of the manuscripts it
is said that legal jurisdiction was vested in the
bards, the “just bards” are spoken of as custodians
of the law, and the old law itself is called by a
name which may be translated ‘ Bardic Law.”
Further, a man who administered the law judicially,
whether bard or druid or neither, is called a
Breitheam or judge; genitive Brestheamhuin, pro-
nounced Brehon (another instance of the adapta-
tion to English of the genitive of a Gaelic word).
Here we have three apparently different classes of
men connected with the law in some way; but in
what that connection consisted, and what were their
mutual relations, or rather their actual distinctions,
is not clearly stated.

-

 

a AR iA i.
 

 

 

 

 

Sub-Section 2.—The Druids.

\# RUIDS next claim con-

3 sideration. One modern

writer tells us that the

: Druids were ‘magicians

S and nothing more.” Ma-

" gicians, yes; “and nothing

more’ must be rejected.

The popular view of what

they were is more nearly accurate than this. The
druids were much more. They were above all
things the priests of such religion as existed; and
in that character were quite as highly venerated
and as influential in Ireland as Caesar found them
in Gaul. Their religion, if their many strange
and conflicting views and practices may be con-
sidered as one system and called a religion, was,
to our minds, degraded and degrading, and their
ceremonies may appear to us silly or worse; we
may think Crom Cruach very unworthy of worship ;

2

 

RE Fe ere rT As On EEA DT TN

CLASSIFICATION OF SOCIETY. 73

but what does all this matter if that religion
was dear to the people as the essence of a spiritual
life and the prime requisite for attaining eternal
happiness and glory, and if it yielded to its
adherents any of the consolations which religion
affords and for which the human heart yearns? It
cannot be doubted that in Ireland, as in Gaul, the
most learned, the most sage, and the most virtuous
men of the nation were druids or priests of that
religion. Their superior learning enabled them to
become more than priests; magicians if you will,
but certainly philosophers, astronomers, judges,
bards, literary men, musicians, physicians, seers or
diviners of future events, and many other things,
and may have given them a choice, almost a
monopoly, of all the offices which required learning.
Their magic consisted mainly in their superior know-
ledge in times of general simplicity; and I think
they deserve to be called a learned priesthood. In
those circumstances most of the brehons, perhaps
nea‘ly all, were druids; but all druids were not
brehons, for the office of brehon was but one of a
choice of accessory offices which their learning
opened to the druids. This seems to account
sufficiently for the connection of the druids with
the law, and for the apparent opinion of the writers
of old that the terms druid and brehon might be
used interchangeably.

It is impossible now to determine whether at
any time the office of brehon was restricted to the
druids as an exclusive legal priesthood. Probably

-—

 
    
    
      
       
     
    
     
    
   
   

 

 

    
     
    
   
   
    
     
    
   
   
   

 

    
    
   

    
     
    

RS TE

HRERE

aru he

CEES

 

RPE
AA SA OT AAAIN l, FTGU N y AN  AU B

 

pe AIR vo. rr TI Sp ————
——— Se ———————————— pr pb oi 11. NT a

74 THE BREHON LAWS.

there never was a positive restriction, but only the
practical one involved in the requirement of learn-
ing, which few laymen could then satisfy. But
the administration of the law not being the special
function of the druids as such, but only a sort of
secondary string to their bow, they may be supposed
to have bestowed more attention upon whatever
their special function was than upon law. The
law remained in the Bearla Feini, the old classical
Gaelic in which it had been originally composed,
Jand constituted a large and important part of the
Filidecht or higher academic course through which
both druids and bards should pass, and in which
they should attain a certain standard of proficiency
before being admitted to their respective professions.
As that old language gradually became antiquated
the laws became less accessible and less intelligible
to others than those learned men; and yet the
school knowledge of it, which had sufficed for them
and was little more than an accomplishment, did not
always enable them to deal satisfactorily with the
legal difficulties of everyday life. It is easy to conceive
that in such circumstances the law may sometimes
have failed in its primary object of bringing justice
Jhome to the people. An evident want arose. The
combined effect of the negligence of those two classes
of men and the growing importance of law must
have made it clear that the administration of justice
ought not to be secondary to anything, but deserved
the special and exclusive study of a distinct profes-
sion. To this profession laymen applied themselves

a

 

CLASSIFICATION OF SOCIETY. 75

in increasing numbers as the druids withdrew, until

the administration of the law had got almost wholly V

into non-sacerdotal hands. Not being occupied with
religion or with any other profession, nor hampered
with the trivial formalitics which the sacerdotal
mind has always been so prone to create and
magnify, these men could breathe a freer air, enter
more sympathetically into the views and feelings of
both parties to a suit, and arrive at a decision more
satisfactory to both, than is as a rule possible to
men who, though in the world, are best when they
are not of it.

In Rome also the pagan priests were the earliest
judges and custodians of the law. They greatly
hampered its justice and its efficiency by the inven-
tion of useless technicalities, until at length, in
451 B.C., the Romans resolved to reduce their laws
into a written and fixed form, and called upon the
priests to produce the laws for that purpose; when,
lo, it was found that the priests, after all, really had
no substantive laws to produce, that they had com-
pletely lost what it had been their business and their
pretence to guard, and had guarded nothing but
their own technical inventions, mainly concerned
with mere procedure (or its prevention), and mainly
detrimental to the free flow of justice. Hence the
Romans in drawing up their Twelve Tables were
obliged to resort to laymen of common-sense, and
even to consult neighbouring nations as to the very
rudiments of law.

  
       
      
   
 
 

A

\ ii

Z : C TT 2

Sub-Section 3.—The Bards.

2) OW with regard to the Files or
Bards. They did not, like the
druids, become extinct on the

~ extirpation of paganism, but con-
tinued to flourish and to form

an important class down to.

modern times. They were anciently much

more than the present popular conception

of them implies, for they were the his-

torians, genealogists, teachers, and literary

men of the nation, some of them also being
druids and some judges; but as regards the

bards of Christian times, after the monks

; had taken learning and teaching under their
special care, the present conception of the bards
is fairly accurate, and therefore their connection
with law is not at first sight obvious. Little or
no such connection continued to exist, and the

presence of the bards in battle and their thrilling
76

 

CLASSIFICATION OF SOCIETY. 77

writings relative thereto remind one more of the
war correspondents of our own time than of
lawyers. Anciently some of them were judges
in addition to being bards, as we have seen in
the case of Dubhthach; but these instances were
few even then, and not at all sufficient to explain
the intimate connection between the bards and the
older law. The secret of that connection lies else-
where. Their chief connection with law was not
in the character of judges, but in their proper,
character of bards. In this their true character
there was then a use for them amounting almost
to necessity. Accustomed as we are to writing,
printing, and other modes of preserving expressions
of thought, we are liable to forget that the laws we
are considering originated when those arts were
unknown, when in northern climates men preserved
their learning in their heads instead of on their
shelves, and communicated it by their tongues
instead of by ink and paper. Verse always has
been, and still is, easily committed to memory and
retained there; and the more harmonious it is, the
more effective and reliable for this purpose. To
give this quality to things of value, as law, history,
and genealogy, not to speak of pure literature, to
which this quality was then natural, was in such a
time as important a service as a bard could render
to his nation. It imprinted those things, not on
paper, but on brains; fixed them in heads where
otherwise they would not abide, and rendered them
capable of being transmitted from person to person,

 
 

 

 

78 THE BREHON LAWS.

from clan to clan, from generation to generation,
from times far beyond the reach of history until
well into historic times. This use of poetry was
clearly very important, and hence the originals of
almost all our very early manuscripts, on law as
well as on other subjects, were in verse. It was
Jthe duty of the bards to reduce the laws into
rhythmical form, and they retained that function
in their hands for some time after the actual neces-
sity for it had ceased to exist. Nothing but a sense
of duty could induce a body of learned men to take
such wonderful trouble with a subject so unattrac-
tive and unpromising. This fully accounts for the
connection of the bards with our ancient law and
explains the sense in which they were its custodians;
and it also accounts for the abnormal development
of the bardic profession in Ireland, and for the extra-
ordinary amount of archaic Gaelic literature preserved.
The combined effect of metre and rhyme was to
render tradition at once easy and reliable. To take
the Senchus Mor for example, though now arranged
prose-like on the paper, portions of the text are in
regular verse ; not merely in metre like blank verse,
but in thyme. The editors say that whether this is
due to the fact that two of the compilers of the
Senchus Mor were poets, or to the fact that the
pre-existing laws of Ireland were mostly in rhyme,
or partly to both these causes, is an open question.
Perhaps so. I think most students of the subject
will for themselves consider the question as closed,
and feel quite satisfied that the ancient laws of

 

CLASSIFICATION OF SOCIETY. 79

Ireland were mostly in rhyme, or in an alliterative
assonance having all the properties of rhyme for
ar and memory, from necessity before the art of
writing was known, and from the unexhausted force
of a long-established usage after that art had become
known. The art of writing became known to some
extent in Ireland about the first Christian century,
or perhaps a little earlier; its practice was en-
couraged and extended under King Cormac, in the
third century, and from his time downwards; but
it was not until the introduction of Christianity in
the fifth century that writing became general
During this period, at all events, the time-honoured
custom of making and retaining the laws in rhyme
undoubtedly held its ground; so that not alone did
the compilers of the Senchus Mor find the laws in
rhyme, but they found the old usage still of quite
sufficient force to require from themselves a sem-
blance of reducing into rhyme any new laws then
made, or modifications of the old. Rhymed laws
were still the ideal aimed at. Accordingly there
is reason to believe that the whole text of the
Senchus Mor, written in the fifth century, was in
rhyme, and in the introduction, written at a later
date, is included Dubhthach’s fine poem as the most
suitable introduction. This was probably the only
introduction in the first instance, the work being
then metrical and rhymed throughout. Wherever
in the text the rhyme is now absent or broken the
reader may conclude that there the various tran-
scribers have been carrying on the operations I have

 

Ry A . A . ‘ *
SR IR woe: ee —

i a ——

SA AON om 31
 

80 THE BREHON LAWS. iv 7 Gomi) |

endeavoured to explain. Finding it necessary to
substitute new for obsolete words, and to translate
some passages, and no longer a practical reason for
reducing these emendations into rhyme, that cere-
mony was omitted, and thus while the law was
simplified the verse was spoiled. The commentaries
were not composed by bards at all, and so far as
they are original they are not rhymed ; but in them
are frequently quoted fragments of traditional law
for the purpose of driving home their conclusions, ;
and such fragments are nearly all in rhymed metre. Sub-Section 4.—The Brehons.
The ancient cultivation of memory is one of the EGINNING st the poling where
arts that have fallen into disrepute. It was carried, a
: ‘ : oN 7 all three qualities were
in other countries as well as in Ireland, to a degree = 3
‘ ‘ : a) 5) possessed and all three
of perfection now hardly credible. Nor were metre WS : :
. : tac ¢ : functions discharged by one
and alliteration, as subsidiary to it, peculiar to :
: . man, the functions had expanded
Ireland or to the Irish laws. The perfection Scere :
: ¢ ‘ and become differentiated until they
attained in these was peculiar, and rhyme was : .
‘ : : : 9 formed three separate professions,
peculiar. To the absence of this bardic perfection f tag :
: . ys : ollowed by three distinct classes of men—Druids,
the poverty of other nations in archaic literature is B : :
: . : ards, and Brehons—this last being the newest
due: to its presence our wealth in that respect is :
‘ . class in the order of development. So long as
due. For other nations the remote past is a blank : : ‘
se at : : this development proceeded, the legal profession
for us it lives, mainly through the skill of the bards. rect] fio chose to-stnd
The bards were liberally provided for by their con- Yay Dersetly open io every one who chose tostilly
y y the law. A druid, or a bard, or a man who was

femporaries: we may enjoy their labour without neither, was perfectly free on qualifying himself to

having to pay for it become a brehon. It is now impossible to fix the
date at which this development was complete, and
the brehons stood recognised as a professional class
apart from druids and bards. It was probably |
complete in the first century of the Christian era,

7 81

a

ERR Se er MAT

Ce sn

eo

 

ee

ea cv

 
 

 

 

 

 

 

 

82 THE BREHON LAWS.

certainly while Ireland was still wholly pagan; and
there can be no doubt that it was a distinct advan-
tage to the people and to the nation.

Later on a further change occurred (for it can
hardly be called a development), namely, the legal
profession, in common with most professions, arts

nd callings, became to a large extent hereditary,

not by force of law, but by force of custom, and in
obedience to a general tendency of the times. There
never was a law in Ireland actually making any
profession or calling hereditary, or imposing any
restriction whatever on the natural right to learn
and practise what one pleased. The tendency was
spontaneous, or due to some general cause. In our
view it was a backward tendency. But that proves
nothing. The same may be said of many move-
ments far more modern. Our desire is to see, sO
far as we can, our ancestors as they really were,
not to make them fit into theories of what they
should have been.

Whatever may have been the prevailing force in
making callings become hereditary, no doubt it was
materially assisted by the custom of rewarding
distinguished merit, and the performance of public
duties, with gifts of free land. This is a species of
reward not unknown in modern times; but it was
obviously more convenient in ancient times when
there was little or no money with which to reward
men. Men occupying official positions, from the
king downwards, were provided with free lands.
Many of those positions were attainable only by

 

CLASSIFICATION OF SOCIETY. 83

careful training and marked ability of the kind
required. Bards, brehons, and other public officers,
men distinguished in the healing and other arts,
and in the handicrafts most important for the well-
being and security of the community, were similarly
provided for. A man having once acquired land in
this way would have a strong motive for transmitting
his profession to his children, since it was only by
doing so he could transmit the land to them; in
addition to which, his own was the particular branch
of knowledge which he could transmit, and they"
learn with least trouble and least expense. Here
was a two-fold motive for making both the profes-
sion and the land attached to it hereditary.

In the case of the brehon’s office this powerful
cause did not operate alone. There were attached
to the office manuscripts, in those early times of
great value as legal documents, and perhaps still
more precious privately as family heirlooms, the
preservation of which, after his death, was an object
of the most intense solicitude to every brehon
worthy of the name. It was but human that a
brehon should desire to entrust to his own offspring
a charge so sacred, and but human that they, for
his sake and for its own intrinsic value, should
bestow more care upon such a trust than could be
expected from strangers. In respect of the preser-
vation of documents, and perhaps in other respects ¥
also, we of later times are much indebted to the
hereditary custom, however that custom may in
practice have militated against efficiency.

 
 

 

 

 

 

 

 

84 THE BREHON LAWS.

Still, although these causes must have acted
powerfully, the office of brehon may, in obedience
to the general tendency of the time, have become
hereditary in cases where they did not exist.
There were at all times non-official brehons, who
were not attached to any clan and who held no land
as a reward, but lived independently by their profes-
sion, and yet in these cases also the profession became
hereditary.

Nor does the fact of having become hereditary
appear to have led to the degradation and abuse
which might be expected from it in our time, nor
to have rendered the office of brehon more easily
accessible than before. The essential standard of
knowledge was in no degree lowered. The prepara-
tory course of study continued to extend to twenty
years. And of course the moral and other require-
ments were in no degree relaxed. Success as a
brehon waited upon ability alone, and failure was
attended by so many risks that the profession offered
no attraction for unqualified persons. The brehons,
like the old Saxon judges, but unlike modern judges,
were always liable to damages, disgrace, and other

grave punishments if their judgments were illegal or
unjust.

The law says, “ No person is qualified to plead a
cause in the high court unless he is skilled in every
department of legal science.” There were several
classes of advocates or pleaders, corresponding, per-
haps, to Queen’s Counsel and Barristers of the
present day. There were, besides these, professional

 

CLASSIFICATION OF SOCIETY. 8s

lawyers of an inferior class somewhat analogous to
solicitors. It has been stated that one uniform
course of study was required, no matter what branch
of law a man intended to follow; that having gone
through that course he might become a brehon, an
ollamh, an advocate, or a law-agent, according to
his personal predilection, ability, and prospects of
practice. In my opinion, this is correct only pro
tanto. ‘The course may have begun with the duties
of the law-agent, proceeding upward in succeeding
years until at the end of the brehon’s term it in-
cluded all branches of law, and it may have been
the same so far as the other gentlemen pursued it ; but
the brehon alone pursued it exhaustively, and
devoted twenty years of his life to that task. There
were, however, various distinctions between brehons
and advocates, and among the brehons themselves,
which are so difficult to follow that modern writers
are not at all agreed about them. In a society
wholly different from ours in its elements and con-
struction those distinctions must have been made
on principles different from any now operating. It
does not follow that they were not proper distinc-
tions. Our embarrassment is not necessarily due
to defect in those laws, but to our ignorance of them,
to our want of some missing link, perhaps many
missing links, in their consequential chain.

Each king, and each chief who was sufficiently
powerful, maintained a brehon, who was in a sense
the brehon of the territory. But the law did not
require this if there was an unofficial brehon in the

 

 
 

 

Vv

86 THE BREHON LAWS.

district. The brehonship was rather a profession
than a state department. The judicial institutions
were not strictly permanent with a regular order
of succession maintained systematically as men
dropped off, and wielding power given and sustained
by the state, as we now see. When an official
brehon had died or ceased to act, unless there were
cases pending, or somebody sought his office with
the land that might have attached to it, there was
no immediate reason for appointing a successor ; and
with regard to non-official brehons, when they were
removed by death or otherwise they can hardly be
said to have successors at all, or if so said it was
Nature supplied them in her own good time. The
scope of a brehon’s jurisdiction is not laid down in
the law, simply because no brehon had exclusive
jurisdiction anywhere, whether he was provided with
free land or not, whether his office had become here-
ditary or not. The jurisdiction of official and of non-
official brehon alike was generally determined by
the suitors. A defendant should consent to have
the case raised against him tried by some brehon,
or else judgment would go against him by default.
With this limitation the jurisdiction was purely con-
sensual ; the parties were free to settle their case
in private or to submit it to any brehon they pleased.
Of the brehons within reach, if more than one,
suitors displayed a preference for one beyond the
rest, and probably as a rule their choice was deter-
mined by his superior aptitude in unravelling knotty
problems and giving decisions consonant with justice.

 

 

 

 

CLASSIFICATION OF SOCIETY. 87

Thus the brehon’s position resembled that of an
eminent Roman jurisprudens, whose opinion was
eagerly sought and paid for by people in legal diffi-
culties. He heard the case, gave it the necessary
consideration, and pronounced a decision in accor-
dance with law and justice. This decision, though
called a judgment, and eminently entitled to that
name, was not precisely what the word judgment
means with us. It was rather a declaration of law
and justice as applied to the facts before him, rather
an award founded in each particular case on a sub-
mission to arbitration. There was no public officer
whose duty is was to enforce the judgment when
given. The successful party was left to execute it
himself. In doing this he was assisted by the in-
herent equity of the particular judgment itself, by
the force of an immemorial law universally obeyed,
by public opinion informed by the generally pre-
valent love of justice, by the defendant’s knowledge
that delay, evasion, or resistance would be futile,
would disgrace him and increase the penalty, and,
above all, by that self-adjusting network of duties
and obligations, involved in, and enforced by, the
clan system. These combined forces went far to
render executive officers of the law, as sheriffs,
bailiffs, and police, unnecessary. They were prac-
tically irresistible, for they could go the length
of outlawing a man and rendering his life and all
he possessed worthless to him if he dared to with-
stand the execution of what a brehon had declared
to be the demands of law and justice. They were

 
3 , ; TE
- ad ¥ St ora EER Le ne ee TY

 

 

 

 

88 THE BREHON LAWS.

quite as effectual as is what we now call the arm of
the law, notwithstanding John Austin’s theory, that
there can be no law except it be the command of a
sovereign.

There were certain cases which a brehon provided
with free land should hear and determine without
payment. Beyond these cases, the official brehon
and every other who tried a case were entitled to

/be paid by the unsuccessful litigant certain fees,
which were fixed by the law according to the nature
of the cases, the trouble they entailed, and, in civil
cases, the amount of property involved. The amount
of the fee was a matter of calculation, according to
certain well-known rules, and it was always included
in the total amount to be paid under the judgment
by the unsuccessful party. In criminal cases one-
twelfth of the beaten party’s honour-price was the
fee to be paid to the brehon. If the person charged
was found guilty he should pay this in addition to
any other fine imposed: if the accuser failed to
sustain his charge he had, if so sentenced, to pay
the judge in addition to compensating the accused,
and there was no occasion as now for a second trial.

When one brehon had adjudicated on a matter
submitted to him, there could be no appeal to
another brehon of the same rank ; but there might
be an appeal to a higher court, provided the
appellant gave security. The grounds of appeal
most frequently noticed are * sudden judgments,”
meaning probably those given without due con-
sideration. If the facts of a case had undergone

 

CLASSIFICATION OF SOCIETY. 89

a material change after trial and judgment, as if
the defendant in a criminal case had been tried and
fined for assault, and after the judgment the person
assaulted had died, a new trial might be had. In
giving judgment in this second trial the judge would,
of course, have regard to what was done under the
first judgment.

Sub-Section 5.—The Ollambhs.

CERTAIN writer boldly tells

his readers that there were three

class of judges, the Ollamh (pro-

nounced Ullav) being the highest

. or chief judge. Most other

) authorities on the subject say that

N= the brehons were judges, the

ollamhs professors or teachers of law. The latter
view is correct subject to the following obser-
vations. Every brehon was an ollamh, inasmuch
as he was obliged to obtain the degree of ollamh
before he could become a brehon. Hence a man
might practise as a brehon and teach law in his
own house as an ollamh; and one who had dis-
tinguished himself in both these respects might be
regarded as, in a sense, a chief judge. But the use
of that designation is misleading. Both ollamhs
and brehons might as well be called bards on the
ground that both were obliged to take a degree in
poetry. A loose application tends to involve those

ho Ko! Py Rg NG EI Ba Ee TR Sr RR rl Desa yo
ea os St eon cts ’ .

 

 
 

 

 

 

 

will
: Eh es 4 BY Fai

ro ————— ——

90 THE BREHON LAWS.

terms in the confusion from which we have just
taken the trouble to extricate them. Ollamh prac-
tically meant a doctor, professor, or teacher of any
_ branch of the Filidecht taught in the higher schools.
It meant a possessor of knowledge whose profession
it was to impart that knowledge. The right to the
distinction was acquired by a course of study ex-
tending over twelve years’ * hard work,” followed
by a public examination; and the distinction was
formally conferred by the king or chief of the dis-
trict ; after which the ollamh ranked next to the
king or chief in the order of precedence, acquired a
number of valuable privileges, was respected by the
community, and highly favoured by the law. Every
king or chief who could afford it selected one dis-
tinguished ollamh of each branch of knowledge, and
maintained this staff of specialists at his court in
order to be able to deal with all matters affecting
his interests and those of his people. These men
were very generously provided for, indeed extrava-
gantly one would think. Other ollamhs made their
living by teaching independently.

 

Sub-Section 6.—Furors.

EFORE passing quite away from
the legal [system, a class of
men, though not pro-
fessional, connected with an

important branch of the law may be
noticed. They were drawn from
the lay community in each cinel or
tuath, and to twelve of them, as to a sort of jury,
certain matters in dispute requiring knowledge
other than legal were submitted, as, for instance,
the manner in which land should be newly appor-
tioned under the Irish system of gavelkind. The
law determined the proportions, provided the quality
of the land was uniform and other circumstances
equal. As this would rarely happen in practice,
these twelve men determined the actual proportions.
They also arranged in the early part of each year
how the common lands of each sept should be used
that year. What the relations of those men to the

gI

 

 
 

 

 

 

92 THE BREHON LAWS.

clan were, what the qualification for the office, how
the office descended, &c., are left open questions;
and this is perhaps the best thing to do in the
present neglected condition of the Brehon Laws.
Still I should not be surprised if it were found on
Inquiry that it was not an office at all, but a power
inherent in a certain status, and that every flaith-fine,
or paterfamilias, was entitled to exercise it unless he
had in some way forfeited his title.

A pu a ee E & Siie o

 

BC

SECTION IV.

THE FLAITHS.

LAITH may be pronounced Flah. The

£2) k

O08 AVE Flaiths corresponded in some respects
of ) EAN \ » to modern nobles, and like them
Yq al ] originated in an official aristocracy.

"1k" Theoretically they were public officers

j of their respective clans, each being

"at once the ruler and representative of a sept,

were elected on the same principle as the

kings, required similar qualifications accord-
ing to rank, and were provided proportionately with
free lands to enable them to support the dignity and
perform the duties of the office. They also, like
the kings, were allowed to hold at the same time
all other property which they might have had or
might subsequently inherit or otherwise acquire;
and their position gave them some facilities of
requisition which other men did not possess. Their

official land was in law indivisible; an apparent
93

 

RR iB EE E=——_—

Ee a

i AT

a, RS RE a

 
94 THE BREHON LAWS.

restriction which in practice became decidedly
advantageous to them as a class, as we shall
see.

The law gave the right of succession to the most
worthy member of the fine of the actual flaith, sub-
ject to the right of the clan to determine by election
what member of the fine was in fact the most worthy.
Hence the flaith’s successor might not be his son,
though he had sons, but might be a brother, nephew,
cousin, or other member of the fine ; and while the
flaith’s private property was on his death divisible
among the members of his fine like that of any other
individual, his official property with all the per-
manent structures thereon descended undivided to
his successor, in addition to any share of the private
property which might fall to that same person as a
member of the fine. In course of time the heredi-
tary principle encroached upon and choked the
elective, the latter fell into desuetude, and the
number of flaiths ceased to correspond to the
number of septs. From the office and the land
attached to it having been held successively by
several succeeding generations of the same family,
the flaith gradually learned to regard the land as
his own private property, and the people gradually
acquiesced ; and I find it laid down by a modern
writer as the distinguishing mark of a flaith, that
he paid no rent, and that a man who paid no rent
was a flaith though he owned but a single acre.
This writer completely lost sight of the fact that
the flaith was properly an official, and the land he

 

ra sl gprs toga ager san a I,”

CLASSIFICATION OF_ SOCIETY. 95

held official land, and not his private property at all.
The system under which he lived, and of which he
formed a part, laid upon him certain duties for which
the lands and revenues assigned him were a pro-
vision and a reward, and it was only through the
decay and collapse of that system that he could
venture to call those lands and revenues his own.
The nature of his duties can most conveniently be
explained when discussing the next succeeding class
of society towards whom most of them were due and
owing ; and there also it will become very obvious
that there was no such inadequate provision made
for a flaith as a single acre would have been. It
will suffice to mention here that a very high private-
property qualification should have been possessed by
the family for three successive generations before one
could become a flaith at all; and then the official
property was given in addition to that. In fact, the
flaiths were rather too well provided for, and were
so favourably circumstanced that ultimately they
almost supplanted the clan as owners of every-
thing.

As the sea attracts all waters, as power and wealth
attract to themselves more power and more wealth,
the flaith class tended to become great at the ex-
pense of the people beneath them. They were
constantly taking liberties with, and extending their
claims over, land to which they had no just title;
and the law under which official property descended
contributed to the same result. The idea of private
property in land was developing and gathering

 
 

_.

96 THE BREHON LAWS.

strength, and land was generally becoming settled
under it. The title of every holder, once temporary,
was hardening into ownership, and the old owner-
ship of the clan was vanishing, becoming in ordinary
cases little more than a superior jurisdiction the
exercise of which was rarely invoked. During the
time of transition I think the flaith class encroached
upon the rights not alone of those below them but
of those above them also; that it was chiefly their
greed, pride, and disloyalty which led to the break-
up of the Irish Monarchy; and that it was for many
centuries in their power to restore that monarchy,
and with it an independent nationality, had they
been sufficiently patriotic.

The flaiths, by virtue of their office, had legal
jurisdiction in all matters coming under Urradhus
law, or law locally modified. There were various
grades or ranks among the flaiths as among modern
nobles, but determined by the number of clansmen
who paid them tribute; and the territorial limits of
a flaith’s jurisdiction was wide or narrow as his rank
was high or low. When the legal system was in
proper working order, plaints involving Cain law,
that is, the law contained in the Senchus Mar and
administered by the brehons, were required to be
lodged at the residence of the Aire-ard before being
submitted to the brehons.

A great many varieties of aires are mentioned in
the laws; but generally the aire (pronounced arra)
appears to have been considered as the type of the
full citizen in possession of full legal rights. It was

CLASSIFICATION OF SOCIETY. 97

a term not strictly applied, rather a measure of status
which different classes might attain than the designa-
tion of any particular class. The flaiths and those
approaching that rank were aires; and I think every
head of a fine was in status an aire though not so
called. The aire most frequently spoken of and the
aire-desa were recent accessions to the flaith class
from the Céile class, belonging by birth and descent
to the latter, but possessing sufficient property quali-
fication for the former; and, so far as there was
progress, may be considered as in a state of tran-
sition. The aire-desa was the lowest of the flaith
class. Part of his qualification was to have ten
free clansmen paying tribute to him. The numbers
paying tribute to the different grades of flaiths
ranged from ten up to forty, the flaith’s rank,
honour-price, &c., ranging proportionately. The
bo-aire was a man whose wealth consisted mainly
in cattle. He was not a flaith.

 

 

 
 

No RN ToT To on i) WY
on @k: LT AD\ Nam v¢E

fi al PANY J

NY BPs
DJ) SEA

SECTION V.
FREEMEN OWNING PROPERTY.

Sub-Section 1.—Preliminary.

has: N pursuance of our plan we now proceed
FS to consider the free clansmen who held
Fy property. Property, for the most part,
#3 meant land, the cattle fed upon land, and
the crops grown upon land. Our an-
cestors all lived in the country and mainly

by industries connected with land. They

had numerous villages, the earliest of
which are indicated by the still existing
raths; but they had few towns so large

" as to form distinct communities with life

and interest different from those of the
country. Our oldest maritime cities are

of Danish origin. Hence the Brehon Laws are
in the main applicable only to country life, and

contain few rules specially applicable to town com-
98

 

CLASSIFICATION OF SOCIETY. 99

munities. The vast majority of freemen owning
property were farmers, called Céiles, and for sim-
plicity of description we will take this class as the
standard.

The contemporary institutions of any given country
are always so interwoven that it is difficult to discuss
them separately, and impossible to give a complete
account of one without giving as part of it some
account of others connected with it. This is em-
phatically true of a country where society is
organised on the system of clan, sept, and fine. That
system is as soil in which all other institutions, like
trees, have their roots. I have already had to antici-
pate myself in some respects. In order not to do so
to a confusing extent, and in order to turn from hence
on subsequent matters all the light we can, it will
be necessary to deal, however briefly, with the clan
system before treating specially of the Céiles, and

to deal with the land system while discussing the
Céiles.

 
 

PAL De A
Le )

Dif Sh — 2 a )
i ho
GAD i Q
1h NL CT TR iid]

7A \ ih ‘6 0
\ / A

TAL y

oi

Tmt
0D Ni

Sub-Section 2.—The Clan System.

KNOWLEDGE of the real nature

of the clan or tribal system would

be a master-key to much con-

nected with ancient Ireland that

is now mysterious, and would re-

% move many stumbling-blocks, if

“%No# not all. Possibly the lost books,

and lost portions of books, would have furnished this
key and given us glimpses of life of which without
them we can never dream. They would, at the very
least, have illuminated some obscure passages in the
existing remains which are now subjects of doubt and
liable to misinterpretation. But without them full
knowledge of this most interesting subject is lost to
us, and if it be recoverable at all can only be
so by the expenditure of much labour of many
minds. For although the existing remains are
in many parts extremely familiar with social and
domestic economy, providing even for the legal
enforcement of some duties which with us are of
merely moral obligation, still the information given,

100

 

 

CLASSIFICATION OF ‘SOCIETY.’ '-''"“ io1°"

clear enough no doubt for those for whom it was
intended, who knew its objects as self-evident facts
and were themselves in the current of actual life, is
in many respects not clear to us who grope in the
dry channel through which that current passed.
On certain points no information at all is given; and
although great trouble is taken to explain other
points, the writers, so to speak, do not begin at the
beginning, but start on an assumed basis of know-
ledge which we no longer possess. We seek in vain
for the why and the wherefore of things which
apparently were so well known to the writers and
their contemporaries that they did not need to be
stated; and though much is said round and round
a subject, the fundamental facts are evasive. From
the time the system began to break up the prolonged
agony of the nation has prevented the production of
a writer capable of rescuing its fading features from
oblivion. We are therefore obliged to pass over the
subject very lightly and with uncertain tread, though
it is really the most interesting branch, not alone
of the law, but of the whole social and political
economy. A few facts only appear to be pretty
conclusively ascertained.

Mr. Seebohm, a diligent searcher after the truths
of antiquity so far as regards England, comes to
the conclusion that the tribal system was almost,
perhaps wholly, universal —that is to say, that
every nation has had its tribal period. He says, “It
is confined to no race, to no continent, and to
no quarter of the globe. Almost every people in

 
CC yoztt. "th ..'THE BREHON LAWS.

historic or prehistoric times has passed or is passing
through its stages.” This is so; but while in con-
tinental countries, owing to international friction
and other external influences, tribes generally
suffered  disintregation and dissolution, and
ultimately disappeared, in Ireland, owing mainly
to its remoteness, insularity, and freedom from
those influences, the tribal system, while becoming
Hibernicised in some respects, perfected and
strengthened itself, and attained a highly artistic
degree of development such as it probably never
reached on any continent; and it was made, and
long continued to be, the basis of right, duty,
property, law, and civilisation itself.

Tuath, Cinel, and Clann, were the words used
interchangeably to denote what we now call in-
differently a clan or tribe. It resembled the Gens
of ancient Rome in that all the members of it
claimed descent from a remote fine, and from a
common ancestor as head of that fine, and were
therefore kinsfolk, were entitled severally to various
rights dependent on the degree of relationship and
other facts, and formed collectively a state, political
and proprietorial, with a distinct municipal indi-
viduality and life, with a legislature of its own and
an army in gremio; but in these two latter respects
slightly subject to, and forming a member of, a
superior state consisting of a federation of similar
communities. Each clan was composed of a number
of septs, and each sept was composed of a number
of fines. Kinship was the web and bond of society

 

 

 

CLASSIFICATION OF SOCIETY. 103

throughout the whole clan; and all lesser rights
whatsoever were subject to those of the clan.
Theoretically it was a true kinship of blood, but
in practice it may have been to some extent one
of obsorption or adoption. Strangers settling in
the district, conducting themselves well, and inter-
marrying with the clan, were after a few generations
indistinguishable from it. A chief or a flaith also
occasionally wished to confer on a stranger the
dignity and advantages of clanship— practically
meaning citizenship—and when he had obtained
the sanction of the clan assemblies, the stranger
was adopted in the presence of the assembled clan
by public proclamation. In the course of time the
name Tuath came to be applied to the district
occupied by a clan, and Cinel (pronounced Kinnel)
was then the word used to denote the clan itself.
Fine (pronounced Finna) was also sometimes used
in the broad sense of clan, and this was not strictly
incorrect since every clan originated in a small fine;
but the word fine properly meant one of a number of
sub-organisms of which the clan consisted. It was
a miniature clan, and in fact the germ of a clan and
the real social and legal unit. It was considerably
more comprehensive than our word family. It has
been compared with the Roman familia, but it was
more comprehensive than even that. When complete
it consisted of the Flaith-fine (also called Ceann-fine),
and sixteen other male members, old members not
ceasing to belong to it until sufficient new members
had been born or adopted into it, upon which event

 
 

 

IE EEN

CS — A

 

104 THE BREHON LAWS.

happening the old were in rotation thrust out to the
sept, and perhaps began to form new fines. Women,
children, and servants, did not enter into this com-
putation. The flaith-fine, or paterfamilias, was the
head and most important member of the group, in
some sense its guardian and protector, and was the
only member in full possession and free exercise of
all the rights of citizenship. All the members had
certain distinct and well-recognised rights, and, if of
full age, were sus juris and mutually liable to and for
each other; but so long as they remained in the fine,
the immediate exercise of some of their rights was
vested in the flaith-fine, who should act for them or
in whose name they should act. “ No person who
is under protection is qualified to sue.”

There are various conflicting theories as to the
persons of whom and the manner in which this
organism was composed, and even as to whether
it was in fact ever composed or ever existed except
as a legal fiction; and no explanation of it or con-
jecture about it is free from difficulty. Having
regard, however, to the frequent mention of it, and
of the “seventeen men” of whom it consisted, by
various legal and other writers at times far apart
and in various connections, it is quite impossible
to believe that it was fictitious; but in practice it
may not often have attained or long retained that
perfect organisation which the law contemplated ;
and the law itself may have contemplated different
things at different times. Whether the members of
it became members on their birth, or on attaining

21

7

- ap pr sc. eee or Ae emt hr a ste +A par LE do ae emma npn
ea se ee a S  AP TN"

CLASSIFICATION OF SOCIETY. 105

manhood and acquiring property ; whether they
included or represented all within the fifth degree
of relationship, or all within the seventeenth degree,
are matters in dispute. Without presuming to settle
them, let us construct a provisional fine for the
purpose of conveying some idea of what it was
like. When complete it consisted of “ seventeen
men” who were always classified in the following
manner :—

1. The Geilfine consisted of the flaith-fine and his
four sons or other nearest male relatives, most of
whose rights were vested in him, who on his death
were entitled to the largest share of his property,
and would succeed to the largest portion of his
responsibilities.

2. The Deirbhfine consisted of the four male
members next to the foregoing in degree of relation-
ship to the flaith-fine, upon whom, contingently, a
smaller share of his property and responsibilities
devolved.

3. The Iarfine consisted of the four males whose
degree of relationship was still farther removed, and
upon whom, contingently, still less property and
responsibility devolved.

4. The Innfine consisted of four males the furthest
removed from the flaith-fine, upon whom, contin-
gently, the smallest portion of his property and
responsibility devolved.

On the birth of a new male member in the first
of these groups (or, according to a more probable
theory, on his becoming a man and owner of pro-

 
I
ob THE BREHON LAWS.

pes ths eldest member of that group was crushed
Si ine Seoont group, the eldest member of the
P was crushed out to th i
eldest member of th i Ot
e third was crushed ou
t to th
fore hg the eldest member of the fourth, if Ae
€d, was crushed out of th
and became an ordinar J a
an or y member of the sept, or clan
Hi ng Sout rights or responsibilities in connec.
18 former flaith-fine. Thus th
of the groups were cast ke os memben
off like the coats of an onj

ion

nos all at once, but gradually, the groups Tn
SSmsiiag complete all the time, and never exceeding

members each. And as the
suffered a loss of rj re oa i
; ghts, but gained in freed

action and freedom from liabiliti Cong
1abilities, and the th-

fine ceased to represent them, act for them ot

responsible for them. The members of the fine also

oyed a mutual responsibility t

any = certain cases to enter into suretiship for

Sit x er, were liable to compensate for crimes

Son Hs hy any one of them if the criminal failed
» and in general the law held th

a solidarity amen feces
g them. A member wh

so i 0 became a

Shining) Yeu of course, primarily liable for his own

Ea il a also appear that a person other-

0 become a member in a certaj

ain event

fotlsned that right, with all the advantages attached

£0 Th y crime. My own opinion is that the members

Sh : Ja Yes ol full-grown men living on divisions

which had been originall
y one; yet that
the group included only persons within the Hitt: or

0 each other, were

CLASSIFICATION OF SOCIETY. 107

sixth degree of kindred, and did not extend to the
seventeenth, and that the organisation was a natural
outcome of the ordinary sentiment of family affec-
tion, perhaps somewhat intensified, but at all events
systematised and enforced by law.

Various other fines are mentioned, and the word
fine is used in a number of combinations; but the
organism provisionally outlined is the only one of
the name of real importance; and the text, after
stating much about the seventeen men, adds, “It is
then family relations cease.” Presumably it was
then the rights of inheritance and the dangers of
liability also ceased. Where in the system one
should look for the exact counterpart of the modern
family is not clear; nor is it clearly known whether
the number of women, their presence or absence, at
all affected the constitution of the fine. The original
purpose and main object of the whole system are, for
lack of true knowledge, matters of much conjecture.
It is probable that the system continued perfect only
so long as the Celtic race remained pure and pre-
dominant, and that it became disorganised in the
course of the thirteenth century.

The Sept was an intermediate organism between
the fine and the clan. It consisted of a number of
fines, as the clan consisted of a number of sepis. It
was one of the divisions of the clan assigned a
specific part of the territory, and over it and this
district a flaith was supposed to preside. No rule is
stated, and I think none existed, as to the number of
persons or of fines that might be in a sept. The right

 
108 THE BREHON LAWS.

of the sept to undisturbed possession of its assigned
portion of the territory was greater than that of the
fine, was subject only to that of the clan, and was
very rarely interfered with.

The rules of kinship by which the clan was formed
were the same rules by which status was determined ;
and this status in turn determined what a man’s
rights and obligations were, and largely supplied the
place of contract and of laws affecting the disposi-
tion and devolution of property. The clan system
aimed at creating and arranging definite rights and
‘liabilities for every member of the clan at his birth,
' instead of leaving individuals to arrange these
matters in their own ways. Kinship with the clan
was the first qualification for the kingship, as for
every minor office; and the king was the officer of
the clan, and the type of its manhood, not its despot.
Whatever its constitution, the clan when formed was
a complete organic and legal entity or corporation,
half social, half political, was proprietor of every-
thing and supreme everywhere within its territory.
Within historical times the clan owned the land
—part of the land directly and immediately, the
remainder ultimately. In earlier times it is very
probable that the clan owned all the land and every
other kind of property absolutely. It is very pro-
bable that at first neither individual property in
land nor even the property of the fine in it was
recognised, but only that of the clan, and that these
smaller rights of property were at first temporary
usufructs, which subsequently became permanent

A gm ES Nn BS TaN
Ee —— -n. BNL on a ir hts ig seme

 

 

 

CLASSIFICATION OF SOCIETY. 109

encroachments on the rights of the clan. At no
time did the land belong either to the state in the
broad sense or to the individual absolutely. Each
clan was a distinct organism in itself, and the land
was its property—its absolute property at first, till
parts of it were encroached upon by the growth of
private rights, but its ultimate property so long as
the clan existed in its integrity. The clan was the
all-important thing. After the clan in degree of
importance came the sept, where one existed, and
then the fine. The individual was left little to do
but to fill the position assigned him and conform to
the system. Among ordinary people the flaith-fine
was the most important; but even his duties and
liabilities were so clearly laid down as part of the
system itself that he does not seem to have been left
a wide discretion. This insignificance of the indi-
vidual seems to us calculated to stifle the best
qualities of man and to prevent all progress; and
the whole system seems to be one of disintegration
rather than of cohesion, and therefore adverse to the
growth and continued existence of a true state. Its
influence is so all-pervading in public as well as in
private life that it amounts to a different system of
civilisation from ours. The average young man from
Oxford or Cambridge, or even from Dublin Uni-
versity, with a mind full of fancy theories, may say
lightly that it is the absence of civilisation. It is
the absence of his civilisation, but not necessarily
of all. There existed a spiritual bond, purer and
more potent if wisely utilised than the modern one

 
 

IIO THE BREHON LAWS.

of a common nationality, the creature of power.
And, however the fact is to be explained, the finest
qualities of our race have been exhibited under the
clan system. They may not have been due to it,
but it did not prevent them. Having regard to the
number of its inhabitants at the time, Ireland pro-
duced more distinguished men under the clan system
than it has since done. This is a fact which no
fancy theories can displace. It proves that, re-
stricted though the clan system appears to us, it in
fact afforded sufficient margin for a person to dis-
tinguish himself. A large measure of individual
capacity was not alone attainable, but attained.
The bravest and most skilful warriors, the most
zealous and successful missionaries, poets, musi-
cians, and literary men in astonishing numbers and
of astonishing power, taste, and skill, even some
artists whose works have scarcely ever been sur-
passed, and above all a virtuous and happy people,
grew up and flourished under the shadow, or the
light—whichever it was—of the clan system. All
this could not have been the absence of civilisation,
but really was a true civilisation different from ours.
Our modern notions are therefore an unreliable
standard by which to test or judge the clan system.
It is entitled, like every other system, to be judged
by its results. So judged it has produced much
which we are proud to inherit and might be proud
to produce. It is quite certain, too, that in those
far-off times the clan, with the rights it gave and
maintained, formed the greatest bulwark of the poor

 

 

CLASSIFICATION OF SOCIETY. III

and weak; and this explains to some extent the
grateful tenacity with which the poor long clung to
it. If it restricted men’s natural right to make what
bargains they pleased, the restriction applied most
to the strong and wealthy; and if it arranged people’s
affairs for them to a large extent, the service was
obviously most useful to those who, from any cause,
were feeble. In this way it effectually prevented

‘that violent antagonism of classes which is at once

the danger and the disgrace of modern civilisation.

Sub-Section 3.—The Céiles and the Land Laws.

i TUATH, cinel, or clan occupied

a given district, delimited by

natural boundaries, as mountains

and rivers, or by arbitrary bound-

aries first determined by the for-

WX RA i tunes of war or otherwise. This

= whole district belonged, originally

and ultimately, to the clan, as a corporation or
community, and it was divided in the following
manner for the benefit of that community :—Part
was allotted to the king or chieftain, part to the
flaiths and other public officers, part to the Céiles
or free clansmen, for their respective homesteads,
part called the Cumhal Senorba was placed under
the control of the king or chieftain for the main-
tenance of the poor, old, and incapable members
of the clan, and part called the Fearan Fine,

 
J

 

 

I12 THE BREHON LAWS.

or tribe's quarter, was retained as the common
land of the whole clan, which every member of
the clan was free and equally entitled, sub modo,
to use. None of this last was held as private
property, except for one year, at the end of
which it would become common again. There
was also a portion of land, the extent of which
was diminishing with the progress of ages, which
occupied an intermediate position between the
private land and the common land in this, that,
on the death of a holder, all the land of this class
held by his sept was divided anew. The land, as
regards quality, generally ranged in the order set
out, beginning with the king's best, which was
usually that longest in cultivation, and ending with
the common waste. The land held in common,
however, was not all bad land or waste; some of
it was cultivated and some meadowed. Land
holders may be divided into three general classes,
namely ; first, all who held land officially, including
the king, the professional men, and the flaiths;
second, the Céiles, or ordinary free clansmen, who
held land (as one may say) by birthright, who were
the bone and muscle of the community, paid fixed
tributes for the maintenance of the state, and formed
its army in time of war; third, the non-free people,
some of whom held land under contracts.

It is said by one recent writer that the Céiles were
freemen who placed themselves under the protec-
tion of a flaith; and another likens them to the
Roman Clientes, which is substantially the same

BE Re a

CLASSIFICATION OF SOCIETY. II3

thing. I believe this to be a direct inversion of
what they were. They were the ordinary free
clansmen, who, as such, held land by as good a
title as then existed, by as good a title as that
of the flaith himself. Their rights, to their proper
extent, originated in the law like his, and were as
fully secured by the law as his. Instead of placing
themselves under the protection of a flaith in the
sense suggested, they placed, or at all events had
the right to place, a flaith of their own choosing
and of their own kindred over them to represent
them and act for them as occasion required, and
to protect, not appropriate, their rights. The two
views may practically amount to the same thing if
the period viewed is that of the clan’s decay; but
one is offensive and repugnant to an efficient clan
system, while the other harmonises with that system
and is not offensive.

Another modern writer says that the power of
disposing of one’s own several property was un-
limited. He does not state his authority; nor
what he means by property ; nor whether he means
property in land or property in chattels. The power
of disposing of property in chattels has in all ages
and countries been freer than the power of dis-
posing of land. Property in ancient Ireland appears
to have been divided into, not real and personal,
but separable and inseparable. The inseparable
included all lands and a great deal of chattels, and
the separable the remainder of the chattels; and
although this division may not have been made

9

 

ania ES SE
oo A y a
y i sr ee
cy sri or es .

 
114 THE BREHON LAWS.

specially with reference to the right of disposal,

it is pretty safe to assume that that right coincided

with it. In many parts of the law, in both text

and commentary, there is clear evidence that the

individual had not an absolute and unfettered right

of entering into important contracts of any kind

without the concurrence of others. That being so

he could not have an absolute right to sell, which

is one of the most important forms of contract at

the same time that it is in general an exercise of
the right of personal ownership. If by absolute
ownership is meant unlimited and perpetual power
of use and disposal, then no such thing as absolute
ownership of land existed; and the person called
owner was but part owner, part agent, and part
trustee for life, with right of enjoyment. The fine
or sept occupied the position of principal and cestus
que trust. With the concurrence of the fine or sept,
the individual could confer an almost absolute title.
Without this concurrence he could not. Though
the céiles owned, in a sense, the land about their
homesteads, and no doubt called it their own, they
certainly had not an absolute right either during
life or at death to dispose of it to a person outside
the clan. Tenure depended on, and was subject to,
the tribal status not of the immediate holder alone,
but of other members of the fine, who had in the
property vested rights of a character and extent
defined by the law. Neither the land nor the tenure
of it belonged exclusively to the individual, but
partly to the fine, contingently to the sept—a wider

CLASSIFICATION OF SOCIETY. 115

circle ; and though all these had waived or forfeited
their rights, or had died, the holder did not thereby
acquire a right of absolute disposal, for the para-
mount rights of the clan itself intervened. And
apart from these considerations, and its general
repugnancy to the clan organisation, a right of
absolute disposal is expressly negatived by distinct
passages in the law. In the Corus Bescna we
read, No person should grant land except such as
he himself has purchased, unless by the common
consent of the tribe, and that he leaves his share
of the common lands to revert to the common
possession of the tribe after him.” That is a
perfectly clear statement. Again we read, “It is
one of the duties of the tribe to support every tribes-
man, and the tribe does this when in its proper
condition. The proper duties of one towards his
tribe are, that when he has not bought he should not sell;
that he does not wound; nor desire to wound or
betray.” From these two passages it is quite clear
that the sale of inherited land was not absolutely
free. It by no means follows that the sale of
purchased land was wholly free from restriction.
Little land was purchased, and clearly the sale of
it was freer than the sale of inherited land. Even
on the disposal of chattels, such as cattle, there
were some restrictions. An owner about to sell
them should inform the flaith or chief of his tuath
of his intention; and the chief or flaith or any
member of the tuath who required the thing about
to be sold had a right of pre-emption or first offer.

 

 
116 THE BREHON LAWS.

The ownership of the clan, at first real and positive
enough, was becoming vague, indefinite, and scarcely
conscious or operative except when the need or the
interest of the clan or of a member of the clan was
shown to call for its exercise. This most frequently
existed and could most easily be shown in connec-
tion with land, the most valuable of all property;
but it might also be occasionally shown in a
sufficiently acute form if an owner of cattle drove
them away and sold them to strangers, while the
lands of the clan were understocked. And among
small farmers who were often joined for purposes
of ploughing, to allow one of such partners to sell
his draft beasts at a particular time when his own
work was done but not that of his partner, would
be to allow injustice; and the laws preferred
prevention to punishment.

In connection with this question of disposal, it
may not be amiss to point out in passing that in
many countries in ancient times property in land
was transferred only in a court of law, and that
in England the alienation of land was not free until
two centuries after the Norman Conquest.

The land held by the céiles as private property,
and on which they resided, was subject to an annual
ciss (=tribute), rather in the nature of revenue for
clan purposes than of rent, and to smaller payments
resembling rates. All tributes were paid in kind,
and wealthy people had to pay in reflections also—
which, of course, was a species of payment in kind.
Money was little known or used. There is no

 

Ace some sgn An

CLASSIFICATION OF SOCIETY. 117

mention of it in the Senchus Mor. It is mentioned
a couple of times in the commentaries on other
law tracts. Articles of gold, silver, and copper are
spoken of ; but not money in the text. An article
called a sicail is spoken of in the commentary.
Although it was of a fixed value, I think from its
having been used only by ladies that it was con-
sidered rather an ornament than a coin. Ordinary
céiles paid in horses, cattle, sheep, goats, pigs, and
other animals, alive or dead; wheat, barley, malt,
flax, onions, dye-plants, firkins of butter, meal, wool,
honey, and other products of the land, with, in
most cases, “a handful of candles eight fists in
length.” These candles were partially peeled
rushes dipped in fat. Bees and honey are so
frequently mentioned in the laws that the editors
remark that from the Brehon Laws alone a code
on the subject of bees might easily be gathered.
A curious code it would be too. An owner of bees
was obliged to distribute every third year a portion
of his honey among his neighbours, because the
bees had gathered the honey off the neighbours’
lands. There is even a special tract on ‘Bee
Judgments.” The importance of bees was largely
due to the fact that sugar was unknown. Honey
was probably the only sweetening material in use.
It was used also in the manufacture of mead; and
beeswax was used in the manufacture of candles
chiefly those employed at royal entertainments and
as altar lights. In such times bees with their
honey and wax constituted a valuable property.

 

 
118 THE BREHON LAWS.

The ancient laws of Wales also contain many
rules relating to bees and honey, far more than
the present importance of these things would
justify.

Craftsmen and others who could make useful or
ornamental articles, and who at the same time held
some land, paid for it by whatever they could make,
as machinery, agricultural and household implements,
tools of various kinds, furniture, articles of clothing,
bedding, linen, swords, shields, musical instruments,
ornaments of various kinds for the person and for
the home; in short, whatever the skill of one could
produce and the fancy of another desire. Manu-
factured articles being then of greater value than
now, and land being cheaper, those articles would
pay for more land. Some persons also held land,
as in England and on the Continent, by services—
services against wolves, pirates, and other enemies;
but this species of tenure does not appear to have
been either extensive or continual. There was no
such thing as tenure by ordinary military service. It
was at once the right and the duty of every free
clansman to render this, whether he held land or
not; and a person who, in the absence of sickness or
other valid excuse, failed to render military service
when required suffered a reduction of status—a
diminution of rights and powers. Cottiers holding
small plots of land immediately from the flaith often
paid for it in manual labour.

In respect of the quantities of the things paid in
kind, nice calculations must have been difficult,

- ~

Lk} PE I a A YR po

CLASSIFICATION OF SOCIETY. IIQ

but the laws distinguish three degrees. The first
and lowest was the ciss fixed by law as payable
by every clansman who held land. In the English
version of the Ancient Laws of Ireland this word is
translated “rent.” This is due to the modern
importance of rent acting on the minds of the
translators. Rent is neither a correct translation
of the word nor a correct description of the thing.
The correct translation of ciss is tribute; and the
ciss was not rent, but tribute. It constituted the
ordinary revenue for public purposes; and it was
levied on land as being at once the principal class
of property and the natural source of support for
the state. The second species of payment resembled
rent more closely, being a stipulated payment for
land to which a man had no title arising from clan
status or from the law. The third was called the
ciss minscis, or wearisome tribute, and it was rent in
reality. It was paid under agreement by a person
who did not belong to the clan, that is, either by
an outsider or a non-free person residing in the
territory.

The measures by which the actual quantities in
each case were ascertained were the cumhal (pro-
nounced cooal) and the sed (pronounced shed). These
terms are of constant recurrence throughout the
laws wherever measurable quantities are in question.
Cumbhal means, literally, a bond-maid or female slave;
but in the laws it is never used in any other sense
than as a measure of quantity, or rather of value,
perhaps what was originally supposed to equal the

 

 
I20 THE BREHON LAWS.

value of such a slave. As applied to land (fir
cumhal), it meant the usufruct for one year of
about twenty acres, less or more, according as the
land was good or bad. For land was not always
measured by its actual superficial extent, but by
the number of cows it was capable of feeding. This
is still quite a usual mode of measuring land and of
calculating its worth. Also if a mill or other useful
or profitable structure stood on the land, less of that
land would amount to a cumhal than if there were
no such structure. In short, cumhal was a measure
of value, not of extent. As applied to other things
than land, cumhal meant the value of three cows.
Translators appear to hesitate at the word sed,
probably on account of the number of senses in
which it is used. It is rendered, “a jewel, a cow,
a thing of value.” It, however, does not mean any
particular species of property, but a certain standard
of value, irrespective of species ; and in the Senchus
Mor five seds equal three cows. Of course the
knowledge of these equivalents hardly helps us at
all in determining the present money value of
either.

The free clansmen had, in addition to their private
lands, the right to turn out cattle and swine to graze
on the Fearan Fine or common land, the number of
beasts that each person might so turn out being fixed
in a general way by the law and specifically deter-
mined by the jury already mentioned. This use
was not free, however. The rent usually paid for it
was one animal yearly for every seven fed in this way.

 

 

CLASSIFICATION OF SOCIETY. I2I

A céile who required more land than he possessed
could obtain it from the chief for one year, or, with
the consent of the tribe, permanently, out of the
Fearan Fine or any waste land that could be spared.
For this the céile paid tribute of the second class
mentioned above for ten years, after which the land
was subject only to tribute of the first class. The
land having in the meantime become more valuable,
it is possible that the actual amount of the tribute
remained the same.

Of the smaller payments to which landholders
were subject, some were certain, others contingent.
One of the certain payments was that made by all
for the support of the poor, the aged, orphans, and
the like belonging to the clan, in addition to the
Cumhal Senorba, or Old Age Inheritance, which
stood dedicated to their use. The immediate re-
latives of a criminal were contingently liable to pay
compensation for his misdeeds ; and the sept, and
even the whole clan, were liable in the contingency
of the nearer relatives failing. There was also a
somewhat similar liability in respect of certain
contracts, if entered into with the consent of the
relatives or of the clan.

All the tributes mentioned were paid to the flaith,
not as landlord but as a public officer, not for his
own use, except so far as the absence of money and
other circumstances rendered his use necessary, but
to be spent in the interests of the clan. Neither the
land nor the tribute issuing out of it belonged to the
flaith. He had no power whatever to evict a clans-

 

 

 

 

 
122 THE BREHON LAWS.

man, whether the tribute was paid or not. He might
evict an outsider, or a non-free person, to whom he
had let land by agreement, if the rent agreed upon
was not paid, or for other sufficient cause. But the
free clansman’s tenure was not the result of any
agreement, and was not from the flaith at all, but
was a right accruing to him at his birth; and if he
was in default with the tribute the utmost the flaith
could do against him was to distrain his cattle or
other goods for the amount due. In the case of a
number of debts due by the same person, and sued
for at the same time, arrears of tribute had to be
paid first; but if a céile died owing arrears of tribute,
the amount of those arrears could not be recovered
from the céile’s heirs. “Every dead man kills his
liabilities. It results from the neglect of the flaith
that there is no liability upon the heirs of the céile,
unless they themselves have committed default after
the death of their father.”

The collection and expenditure of tribute was the
weakest point in the whole Irish system, as it was
in that of Rome. The Roman system of govern-
ment was probably as perfect for the time as is any
system of modern Europe, with the exception of
this one flaw—the taxes were farmed out to under-
takers to collect, instead of being collected by the
State. The Irish system provided the flaith for the
collection of the tributes, but left them when col-
lected in the hands of the collector. The flaith was
at once state receiver and chief executive officer of
his district. What did he do with all this rent in

CLASSIFICATION OF SOCIETY. 123

kind which was being continually heaped upon him ?
The system theoretically provided many useful things
for him to do with it; but the temptation to abuse
his position gained as that system lost in controlling
power. He was obliged to pay some tribute to the
king or chief above him. In time of war he was
bound to provide a fixed number of men and horses,
together with food for them. He was bound to
entertain the king and certain high officials with
their respective retinues on certain periodic visits.
He was bound to make suitable provision for the
public officers of his own small territory. He was
bound, with the concurrence of the local assemblies,
to keep roads, bridges, and ferries in repair and to
make new ones where necessary; to provide pro-
tection against storms and floods ; to maintain the
public mill of the district, the public fishing-net,
and other public institutions which varied with the
nature of the district. It was his duty to supply,
where needful, the farmers and cottiers with live
stock for their lands, chiefly young cattle, according
to their various wants, the quality of the land they
held, and other circumstances, SO that they might,
by feeding and using these animals in their respective
ways, support themselves and pay the tribute out
of the profits. One farmer would, from taste or
suitability of circumstances, make a specialty of
breeding one particular class of stock, another a
different class; and the flaith took up the tributes
from the different men at different seasons of the
year, thus making the supply keep pace with the

 
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124 THE BREHON LAWS.

demand, always having enough on hands to satisfy
all requirements, and letting out to one what he had
received from another. In order that the supply
should not fail and that the sept should not suffer,
the law required every clansman who had a super-
fluity of stock to dispose of to apprise the flaith of
his district before selling them, and the flaith was
empowered to enforce this law if necessary. The
flaith was also bound to provide bulls and stallions
for the use of the sept. These were very useful
functions, and they by no means exhausted the
duties which by law the flaith was bound to dis-
charge, and probably did discharge (through ser-
vants, of course), so long as the local assemblies
exercised their powers of guidance and control. The
tributes being in kind, too, it really was hard to
make a better use of them than that indicated.
But the system was a bad one, bound to break
down as soon as the check of a local assembly was
removed. Perhaps the flaith exacted nearly as much
tribute from the people in a time of peace as in a
time of war, and perhaps after exacting tribute he
left public works undone, or left those who had paid
for them to do them as well; and with so much
property of various kinds in his hands and coming
into them, and a feeble assembly or none to demand
it or an account of it from him, the temptation to
regard it all as his own imposed a strain on the
virtue of the flaith, impelling him at once to oppress
those beneath him and to shirk his own duty to
those above him and to the State, The state

 

CLASSIFICATION OF SOCIETY. 125

receiver became a receiver for himself; the execu-
tive officer did not trouble himself to execute much
beyond what was to his own advantage.

Some landholders of adequate means raised suffi-
cient stock for their own use, and had no occasion to
purchase or hire stock ; or they purchased what they
wanted in the ordinary way, from the flaith or from
somebody else, and had no account to render. All
the Céiles were classified as Saer and Daer, which
terms are translated as free and base respectively.
We are told that the difference was like that which
prevailed, and to some extent still prevails, in Eng-
land between freeholders and copyholders. Beyond
this vague comparison, those who make it do not
attempt to explain the distinction in the case of those
who did not hire stock ; and if the distinction existed
among such céiles—as it appears to have done—I
have failed to discover in what it consisted. Of this
I am very sure, that the difference was not the same
as that between English freeholders and copyholders,
that the conditions of the one country rendered the
relations of the other wholly inapplicable, and that
the references made to those tenures do not help us
in the least. Possibly they are as often made to
excuse the writer from explaining as to assist readers
to understand. In my opinion, the tenure of all who
did not hire stock was a perfectly free tenure, and in
their case the terms saer and daer had reference to
their comparative wealth and status, and not to the
nature of their tenure.

The transactions of the flaith in cattle, however,

 
 

126 THE BREHON LAWS.

appear to have consisted in practice mainly in letting
out cattle on what may be called a hire-purchase
system, which itself was of two kinds; and it is in
the difference between these two kinds that, so far
as regards the céiles who hired stock, the real differ-
ence between saer and daer consisted. The trans-
lators describe this difference, in half-English, as
saer-stock tenure and daer-stock tenure. One of our
modern writers says that the difference between the
saer-stock and the daer-stock tenant was, that the
latter paid Biathad (pronounced Becha), a word
signifying Food-Tribute, or a payment made in any
eatable material. This is a mistake. Nominally,
indeed, certain persons were bound to pay certain
amounts of food-tribute, but in practice either or
both paid it whenever it happened to be the most
convenient form of payment. It was in the quantity
and the other terms that the difference consisted.
And with regard to both these terms, fenure being a
word used in English law only with reference to land
or something issuing out of land, it can hardly be a
correct translation at all, since what the flaith let
out to the céiles was not land but cattle. In what
is called saer-stock tenure the flaith gave the stock
without requiring any security, and without any
bargain whatever, but subject to the general law
which was known to both parties. My own impres-
sion is that the flaith was bound to do this, and that
the person to whom he so gave stock was a clansman
entitled to get stock in this way, and was not a
tenant at all. However, let that pass. The flaith

CLASSIFICATION OF SOCIETY. 127

gave the stock, and for it the law entitled him to an
annual return for seven years of one-third the value
of the stock given. This payment being duly made, at
the end eof seven years the stock became the absolute
property of the céile, and he had no more to pay for
them. This was a substantial return. Though not
so heavy as modern rent, especially in view of its
short duration, it was heavier than the gross amount
of tributes paid by the céiles who did not hire stock.
The céile might, if he liked, not begin to pay the
instalments until the end of the third year, but he
was bound to pay up then for those three years.

Daer-stock tenure, among those who hired cattle,
was somewhat similar; but the tenant had to give
security for the stock, to render a larger return than the
saer-stock tenant did, and if he was a free clansman
entitled to take saer-stock the fact of his taking daer-
stock seriously affected his status and that of his
fine, rendered him incompetent to give evidence in a
court of justice in opposition to the evidence of a
flaith, and diminished or extinguished his right, and
the right of his fine, to recover eric or other fine in
the event of injury done to him or them. These
were such grave consequences that a free clansman
could not take daer-stock without the consent of his
fine, and it was only the pressure of poverty would
induce him to take daer-stock at all. War generally
reduced large numbers to this necessity. It is
probable that the law originally contemplated the
taking of daer-stock only by men who were not true
clansmen.

 
128 THE BREHON LAWS.

The rights and duties of both parties in these
transactions are so fully and minutely laid down in
the laws that there was little occasion for specific
contracts, and probably business was done as smoothly
without them as with them. There was more need
of specific contract in base tenure than in the other,
since, although it was provided for by the law, it
originated not in a birthright like the other tenure,
but in an agreement express or implied. Neither of
the tenures was liable to capricious determination
by either party. But for just and sufficient cause,
and subject to fair conditions, either party might
bring the arrangement to an end. It is said that
the daer-céile as well as the saer-céile was able, for
just cause, to have the contract set aside; but it is
not clear how he could do this except with the
voluntary consent of the flaith, first, because the
flaith held security, and secondly, because the daer-
stock tenant was incompetent to give evidence
against a flaith.

If a céile who had taken stock absconded without
paying the value, and left no property behind him
but the land, unless the fine paid for the cattle the
flaith was entitled to take and hold so much of the
land as would compensate him. The remainder
went to the fine of the absconding debtor, subject to
any debts due by him.

In the laws a daer-man or daer-person is mentioned
as distinct from a daer-stock tenant, and the full
eric fine of a daer-man” is frequently spoken of.
What exactly this person was I cannot ascertain.

Sub-Section 4.—Devolution of Property.

25 NITY of ownership in the clan, so

: long as it existed and so far as it

extended, prevented the devolution

of property to individuals in the

same sense as in English law. Even

to a late period a considerable

portion of land was not inheritable by individuals,

but remained unchangeably the property of the

clan as an immortal corporation. To this land,

therefore, no rules of devolution applied. Orba,

or lands of inheritance, descended in three different
ways :—

1. According to the rules of gavelkind. 1 place this
first, not because it was the most important in
historical times, but because it was the oldest, was
once general, and certainly was the most unlike
anything we are now acquainted with. Land held
by a man outside his home farm, and which occupied
an intermediate position between his private land
and the common land of the clan, descended accor-
ding to the Irish system of gavelkind, that is, on
the holder's death not only the particular land

10 129

 
    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foi

130 THE BREHON LAWS.

which had been thus held by him, but all the land of
the same class belonging to his sept, was divided
anew amongst the adult males of the sept. It was
an unsettled system. Still it must be admitted that
it gave some start in life, however crude, to young
men who might otherwise have got none. On such
a division of land, the amount of it that each person
was entitled to receive was fixed in general theory
by the law, subject to adjustment in each particular
case by a court of twelve men who took differences
of quality and other relevant facts into consideration.
Their decisions do not appear to have been ques-
tioned. If they ever were questioned, no doubt an
appeal lay to the brehons. Under this peculiar
custom of descent women appear to have. been ex-
cluded. The amount of land subject to the custom con-
stantly diminished, the custom receding, as it were,
from good land and extending to land little cultivated.
I think the land subject to this custom must have
been unfenced, but it is not so stated. It was that
portion of the land of the sept over which an indi-
vidual right of private property had not yet attained
maturity, the interest of each holder not being
ownership nor quite a life interest. A large propor-
tion of the good land of Ireland must have been
rescued from this custom a century or two before
the birth of Christ, if it be true as stated that large
quantities of corn were grown and exported in those
centuries to Britain, Gaul, and Spain, a thing hardly
possible if the land had remained unfenced and sub-
ject to this unsettled species of gavelkind. At the

 

   

CLASSIFICATION OF SOCIETY. I3I

time of Czsar’s arrival in Britain the land there was
wholly unfenced, except the mounds and fallen
timber that encircled the fortresses and clustering
hamlets. There was no division into fields, the land
being distinguished only as cleared and uncleared in
respect of forest, and the people subsisting mainly on
meat and milk. But Ireland was more advanced at
that time, and (or perhaps because) it was more
accessible to and more frequented by merchants
from the then enlightened nations of the world, the
state of Northern Europe being such that merchants
could not cross overland in safety. Some of the
good land of Ireland was fenced at a very early date,
and the law affecting fences and mearings is old and
and yet elaborate. The nature of the fence affected
the liability for trespass upon land; hence in dealing
with that subject the law describes the fences. There
were ditch-and-mound fences, wall fences, stake
fences woven with rods and having a blackthorn
crest on the top; and some others.

2. As private property. In this case, on the death
of the father of a family each member of his Geilfine
—usually meaning each son not already provided for
—was entitled to an equal share of the land and of
the cattle fed upon it; but one of the sons, in
addition to his equal share, inherited all the houses
and offices constituting the homestead, the valuable
fixtures which usually stood upon the same land, and
the household, farming and manufacturing imple-
ments. Whether this favoured son was the eldest or
the youngest is one of the disputed points in connec-

 

 
 

 

 

   

132 THE BREHON LAWS.

tion with that obscure subject the organisation of
the fine. The preponderance of opinion at present
seems to be in favour of the eldest son, and this is
probably correct as applied to the Middle Ages ; but
I incline to the belief that earlier it was the youngest
son who was so favoured. However this may be, as
a counterpoise and consideration for the special
inheritance, the law held him responsible, as
succeeding flaith-fine and stem of the family, for the
guardianship of his sisters until their marriage and
of any other dependent members of his fine, obliged
him to act as plaintiff and defendant as became
necessary in all suits at law concerning them or their
property ; and if he was of proper grade bound him
to entertain the king, bishop, bards, brehons, and
others with their respective retinues. In the fore-
going circumstances all the land went to the sons,
and daughters had either to depend on the husbands
they got or to be provided for out of the movable
property. On the occasion of almost every marriage
there was a collection, called a Tinol, made among
the relatives and given to the bride. But this can
hardly have been a very substantial amount, and it
probably corresponded to modern wedding presents.
If daughters were more numerous than sons, and
could not be provided for out of the movable
property without gross inequality, one or more of
their husbands might be admitted to an equal share
of the land, and then questions of status would arise
as to which of them this should be. If there were
no sons, the land, anciently, went to the nearest

 

    

CLASSIFICATION OF SOCIETY. I33

male members of the fine in the order already
described, subject to a provision being made out of
it for the daughters. The exclusion of daughters
from inheritance seems to us very unfair; but it was
no more so then in Ireland than it was many
centuries later under the Normans in England. The
chief reason for it in the latter case was, that the
land was held by military service, which women
were incapable of rendering. The Irish got rid of
the anomaly long before the introduction of Christi-
anity, through the exertions, it is said, of Brig
Ambui. She is described by some as a lady judge.
There were no lady judges. She was the wife of a
judge, made use of her position to acquire an excep-
tional knowledge of law, gave advice to women
regarding the taking possession of land which they
claimed, and her advice was so skilful that she suc-
ceeded in winning, not alone their particular cases
for her clients, but legal equality for her sex in
general. She was probably assisted by two facts,
namely, that military tenures in the Norman sense
did not exist in Ireland, and that Irish women were
in those times free and liable to bear arms. How-
ever it came about, in the Middle Ages in Ireland, if
there were no sons the property was divided equally
among the daughters. With regard to the further
descent of land thus given to daughters, the text
says, “As to a mother’s land, her sons shall divide it
from the days of her public testament. But the half
of it shall revert to the tribe of the original owner of
the land ; the other half according to true judgments
the seed of her flesh divide.”

 

 
134 THE BREHON LAWS.

3. According to the rules of tanmistry. In order to
secure to kings, chiefs, flaiths, and other public
officers who acted on behalf of the community, their
ancient affluence permanent and undiminished, with
all its attendant advantages, the law held the lands
assigned them for their public services to be indi-
visible. The land held by each descended to his
successor, as the property of a corporation does in
English law. The successor was usually a near
relative, but not necessarily so. Thus while the
lands held by ordinary people underwent repeated
subdivision as they descended, and the rights and
privileges which landed property conferred were
similarly subdivided, constantly tending downwards
to small patches, few rights, and little power, a
position of permanent and disproportionate wealth
with its attendant power was secured to the people
of rank ; and what was apparently a restriction, and
was originally intended as such, became in operation
a class privilege. And although the flaiths had
practically appropriated the official lands to their
own families, so far from desiring to free those lands
from this rule of descent, they maintained the rule
and even extended it to all the lands they could in
any way acquire.

 

Sub-Section 5.—The Elizabethan Atrocities wn their
Relation to Land.

2 . ETURNING to the subject of tenure;
9)
Qo &

0) in describing the céiles I have endea-
IX A? voured to give a general outline of
Oo, the element in which they lived,
| R= namely, the law affecting pro-
(l N perty in land. That law was as
II AT/ unlike the system called Feudalism
( as any that ever existed; so unlike,
NEA indeed, that it has been called, and truly
called, the very antithesis of feudalism.
This being so, it is strange and confusing to
find Irish scholars of the present day writing and
speaking of Irish feudalism, and representing the
ghastly struggle of Queen Elizabeth’s reign as one
between Irish feudalism and English anti-feudalism ;
the real fact being that there has never been such a
thing as Irish feudalism. The feudal system of
land tenure prevailed for several centuries over
England, Scotland, and a large portion of the conti-

nent of Europe, and it is still distinctly traceable in
135

i

 
136 THE BREHON LAWS.

the laws of those countries; so much so that a
thorough knowledge of real property law at the
present day cannot be acquired until one has first
made himself acquainted with the leading features of
the feudal system. Those features do not exist in
the system I have just outlined. Feudalism never
prevailed in Ireland, never existed there, and the
system that did prevail was as unlike feudalism as
could well be devised. The relation between the
flaith and the céile was not one of tenure at all in
the proper meaning of that word. The nature of
that relation is wholly misconceived by any one who
looks for tenure in it. A tenure did exist, as we
shall see ; but it existed between the flaith and the
non-free people, not between the flaith and the
clansmen. The land belonged neither to the king
nor to a lord, but to the clan, including high and
low. What the flaith held, what the céile held, and
what neither held, belonged alike to the clan. And
even when a clansman sought and obtained more
land than his status entitled him to, and a relation
resembling tenure arose respecting this land, that
relation was not with the flaith, except as the official
through whose instrumentality it was contracted,
but with the clan of which the céile and the flaith
were alike members. The feudal principle of
primogeniture was not recognised by the law in
regard to either rank or property. Instead of it, and
in contrast with it, the law provided for election to
every office, with the addition that the most worthy
should be elected, and provided that property should

 

 

 

CLASSIFICATION OF SOCIETY. 137

descend to those who had the strongest natural
claim, in shares which were in effect proportioned to
the strength of that claim. It is surely a strange
mistake to call such a system feudalism. As
Professor O’Curry says, ‘Feudal land laws never
prevailed in any form in ancient Erinn.”

One element resembling feudalism ran through
the whole Irish system from the king to the
humblest person who paid tribute. This was the
custom according to which when any one, high or
low, paid tribute he was always given something in
return by the person to whom he had just made the
payment. Precisely the same rule was observed on
the payment of tribute by the chief of a tuath to a
provincial king, and on the payment of tribute by the
provincial king to the Ard-Rig. The thing given in
return was usually something of little value, but the
acceptance of it is interpreted by writers of the
present day, arguing from the heriot of English
copyhold tenure, to have been the acceptance of a
position of vassalage. Personally, I believe this to
be a purely gratuitous assumption based upon a false
analogy. This single ceremony, even if it were
shown to have had any relation to land, cannot
neutralise every other fact connected with the hold-
ing of land. It is at least as likely to have been a
recognition of allegiance as a yoke of tenure. What
its real meaning was, since it cannot yet be deter-
mined with certainty, had better be left in honest
doubt until through further research certainty
is reached. In the light of our present defective

 
 

138 THE BREHON LAWS.

knowledge, the custom appears inconsistent with
the clan organisation, and yet it seems to have
prevailed when that organisation was in vigour;
and it certainly was entirely native and not derived
from the feudalism of England or the Continent.
It is true that the Irish system was undergoing a
change amounting to decay, and was drifting in the
direction of feudalism at the time that feudalism
was dying out in England. Various causes, political,
social, and economic, contributed to this. First of
all, the radical defect in the system itself in regard
to the collection and disbursement of the tributes.
Then of historical causes, chiefly contact and friction
with non-Celtic elements, beginning with the wars
with the Danes, which deranged the mechanism and
disturbed the smooth operation of the Gaelic system.
Before the country had recovered from the disorder
thus occasioned, the Anglo-Normans arrived, pre-
vented recovery, and contributed to the progress of
decay in the following, among other ways. While
as a rule adopting the Brehon Laws, so far as their
personal interests were served by doing so—adopting
the advantages without the correlative restraints and
responsibilities — those settlers introduced to the
districts grabbed by them a few of the rules of
feudalism and some of the feudal spirit. Em-
boldened by the force of this example, and by
avarice, some of the flaiths who were the Gaelic
neighbours of those settlers, and who had long been
treating as their own property that which was
originally official, at times of disorder and conse-

 

 

 

CLASSIFICATION OF SOCIETY. 130

quent relaxation of the Gaelic discipline, extended
their pretensions, began to assert their personal
individuality over that of the community, to regard
themselves as lords in the feudal sense, to treat the
tributes paid to them, and even the lands out of
which those tributes issued, as in some sense their
own, and to treat as tenants men who had hitherto
been their fellow clansmen. The presence of two rival
races in the land, and the consequent frequency of
war, afforded occasions sufficiently numerous for the
progress of this constitutional gangrene. Favoured
by these circumstances, and prompted by self-
interest, Gaelic flaith and Norman settler alike
developed a strong personality, acquired undue
prominence as military leaders, prevented the
regular meetings of the local assemblies, marred and
paralysed them when they did meet, rendered the
formation of effective public opinion impossible in
any way, and reduced the former clansmen or their
descendants to the position of mere retainers.
True progress there could be none, and as nations
seldom stand still there was a retrograde movement.
The old temporary tributes here and there degenera-
ted into permanent rents; the old tenure of cattle
into a tenure of the land upon which the cattle were
fed ; clan rights became more and more vague, the
personal rights of people of rank more and more
accentuated, the personal rights of humble people
less so. The situation became altogether favourable
for the introduction of feudalism, but it was never
introduced ; for the evolution of a native feudalism,

 
 

140 THE BREHON LAWS.

but it was never evolved. For, after all, this retro-
gression was comparatively late and trifling, and as
a fact it never found its way into the laws at all, but
was constantly localised and counteracted by the
laws as a disease. It was quite alien to the laws;
and, so far as it did extend, represented not Irish
laws but the violation of them. Those laws con-
tinued to be the laws of the whole country except
the Pale until the beginning of the seventeenth
century ; and long after their formal abolition under
James the First, the people clung to them—as well
they might—as tenaciously as they could; and the
peasantry down to the present day have, in the face
of stern laws, clung to the old Gaelic idea that the
land belongs to the people, an idea wholly irrecon-
cilable with feudalism.

The change in the land laws was one of the most
important legal changes made by the English in
Ireland. Without touching upon the question
whether it was or was not necessary, it certainly
could have been effected either without injustice
to anybody or with very cruel injustice to the mass
of the people. The latter was the method pursued.
The Anglo-Norman settlers from the very beginning
recognised and respected the rights conferred by
tribal status. Indeed, it was impossible to do other-
wise in a country where all rights were so conferred.
To do otherwise would have been universal robbery,
and this they were neither able nor inclined to carry
out. But English rulers, from the Tudor period
downwards, refused to recognise any such rights

 

CLASSIFICATION OF SOCIETY. I41

in the people, and, when it suited their purpose,
conferred upon chiefs and flaiths rights which the
clan system never gave them. Though a man was
in the actual possession of land descended to him
in strict accordance with immemorial custom, if he
was unable to show a record, or a contract on parch-
ment duly sealed and delivered, he was treated as a
mere tenant at will or a trespasser, and his land was
given to an Englishman who had neither tribal nor
any other right whatsoever. The Irish in general
had, of course, no such muniments of title to show.
They held their lands as their ancestors had held
them, by right of birth in the clan. This meant
to the English mind no right at all. Its assertion
was rather an outrage. The general absence of
contract was made a pretext for general confisca-
tion. This, so far as relates to land law, was the
real nature of the struggle that was in progress
during the Tudor period, was atrociously pursued
under Elizabeth, formally legalised under James the
First, confirmed and rendered irrevocable by the
Cromwellian and Williamite wars. It was not a
struggle with feudalism, but a general confiscation
of the property of Irishmen (carried out without any
attempt to avoid needless injustice), and the natural
resistance which that confiscation provoked.

 
tan

i hs Co TY GH § aD
AIC) ECR {hd
2 — Zh =O NA GN PA

BS crrorvh

SECTION VI.

FREEMEN OWNING NO PROPERTY.

i class to be considered is that composed
i ; of persons who were free but had little
i i or no property, and consequently little
AWE). or no power. Strictly speaking the col-
lateral branches of most families, and
persons thrust out of their fines by the
operation of the law, and having no
property, would fall within this descrip-
tion ; but the persons I wish more par-
ticularly to gather within this convenient
group, in order to separate them from those above
them and from those below, were simply men who
had become poor as the result of ordinary adverse
circumstances, or of war, or of fines imposed for
offences, or of want of industry. Their numbers
fluctuated from various causes. They had rights
by birth as members of their respective clans; but

142

“2
RD
i

SU
Jp N further pursuance of our plan the next

 

CLASSIFICATION OF SOCIETY. 143

their want of property rendered and kept many of
those rights in abeyance, unavailable, ineffectual.
This was the only primary difference between them
and their fellow clansmen who had property ; but
in effect it was productive of many important
differences ; so much so that in reality there
was more in common between those people and
the non-free than there was between them and
propertied freemen, and many of them, abandoning
all hope of recovering lost ground, deliberately threw
up their clan status and their claims which poverty
rendered practically worthless, and joined one or
other of the non-free classes. Until they had done
this, however, they were entitled to take part in
the military muster of the clan, and had a number
of other rights which any acquisition of property
might enable them to realise, but which without
property were empty. For example, they were
entitled to feed stock on the Fearan Fine; but
so long as they had no stock the right was quite
useless.

 
I TARE Snes sre

rE

SECTION VII.

THE NON-FREE.

Sub-Section 1.—Preliminary.

\ INALLY, with regard to the last

great division, the non-free. One

is sorry to find that there were in

Ireland in ancient times, as there

have been in other countries in

times ancient and modern, people who

were not free, some of whom were not
regarded as members of the clan (that is,

not regarded as citizens), and had no birthright
in any portion of the property of the clan. This
was so in Christian as well as in pagan times.
There were fluctuations both in the numbers who
were not free and in the severity of their condition ;
and there is much reason for thinking that that
condition hardly ever reached the degree of extreme

abjectness.
144

CLASSIFICATION OF SOCIETY. I45

The origin of servitude in Ireland is lost in the
mist of pre-historic ages. We are dependent on
conjecture, the most probable being that the
Milesians reduced to a condition of sufferance and
servitude some portion of the Firbolg, Cruithni,
and other races that had preceded them. But the
distinction between bond and free did not long
correspond with racial distinction, because on the
one hand many persons of the earlier races subse-
quently rose to rank and power and became scarcely
distinguishable from the rest of the community ;
while on the other hand many persons of undoubted
Milesian race sank, either in punishment of their
personal crimes or as a result of war or other
misfortune, to the very lowest rank of the non-free.
Again, a distinction must be observed between
individuals in bondage all over the country and
Firbolg communities which occupied separate dis-
tricts in some parts of the country until the Middle
Ages. These latter cannot be classed as non-free.
They were long treated as an inferior race, defective
in status and in political rights and power; their
language and their manners in so far as they differed
from those of the dominant race were considered, as
usual in such cases, marks of inferiority; and they
probably paid higher tributes than other people did.
But they often proved themselves sturdy people, and
in course of time the distinctions mentioned came
to signify no more than the local characteristics at
present observable in different parishes.

‘Without admitting that servitude in any form or

II

 
146 THE BREHON LAWS.

degree can be justified, or suggesting that any
number of wrongs can make a right, one is free
to observe that it is very hard to entirely eradicate
from any social system, and especially from one sO
interwoven and complex as that of ancient Ireland,
a social condition which has taken deep root in it
and become part of it. Its continuance or discon-
tinuance does not always rest with the free choice
of individuals: that choice may be overruled by
national requirements or what are deemed to be
such. There being no prisons or convict settlements
in Ireland, except where the natural prison afforded
by a small island was available, reduction to a
species of slavery, permanent or temporary, was
considered a reasonable punishment of criminals
guilty of capital offences but whose lives had been
spared, and of other criminals who could not or
would not satisfy the fines imposed upon them.
Slavery in such cases differed very little from trans-
portation or penal servitude. The taking of persons
as hostages, too, for various purposes in civil matters
was quite an ordinary proceeding in Ireland as in
other European countries in ancient times. When
any of these persons were forfeited the law entitled
the holder to keep them in servitude, permanently
or until they were redeemed or his claim satisfied
by their labour or otherwise according to its extent.
Cowards who deserted their clan in the day of trial
on the field of battle, or got wounded in the back
(while running away), lost their status however high
or low it might have been, and virtually lost with

 

 

 

CLASSIFICATION OF SOCIETY. 147

it their freedom. And, unfortunately, war oftentimes
in its consequences reduced the brave as well to
slavery. It always at once increased the number of
slaves and furnished a pretext for holding them. The
wars with the Danes had this two-fold effect. Sires
and trial came, however, and were neither prevented
nor surmounted by the holding of slaves in increas-
ing numbers. It is said that they were more
numerous in the twelfth century than ever before
notwithstanding the condemnation of the Chuch,
In England also in the same century slaves WETS
very numerous, notwithstanding a similar con-
demnation. Slavery continued to exist in England
to some extent down to the end of the sixteenth
century, when it died a natural death; in Scotland
down to the end of the eighteenth century, when
it was abolished, in 1799, by the Act 39 Gevae the
Third, chapter 56; and in America, tke land of the
free, slavery existed until our own time.
In Ireland there were several grades in the non-
free state, as in all classes of the free state ; but there
are three principal non-free classes distinguished in

the laws, namely, the Bothachs, th i
’ ’ ’ e Sen-
and the Fuidhirs. tn

 
Sub-Section 2.—Bothachs and Sen-Cleithes.

I 2 HE word Bothach being

“entit connected with bothan,

a cabin, it is inferred that the

RC ¥ people called by this name were

“Mua cottiers. Sen-Cleithe means old

Stake, or old adherent, and the people so called
were the poor adherents and dependants of the
flaiths, such as servants, herds, horse-boys, cart-
boys, dog and hawk-boys, &c. Various writers
describe both these classes as prisoners of war or
their descendants. For my own part I believe that
these two classes consisted wholly of persons born
in the territory. Their very names indicate as
much; so also does the class of business in which
they were employed ; and they were considered as
in some sense members of the clan in whose territory
they resided, which could hardly have been SO had
they been prisoners of war. But their connection
with the clan did not go to the extent of giving them
any birthright in the property of the clan; and I do
not think they were entitled to arms or to take any
part in the military muster. They had the right to

148

 

CLASSIFICATION OF SOCIETY. 149

live in the territory as best they could by working
for any flaith or any other person who paid them
best. They were not restricted as to whom they
should serve within the territory; but they were not
free to leave the territory except with permission, and
in practice they usually served the flaith. They had
no political or clan rights, could neither sue nor
appear as witnesses, and were not free in the matter
of entering into contracts. They could appear in a
court of justice only in the name of the flaith or other
person to whom they belonged, or whom they served,
or by obtaining from an aire of the tuath to which
they belonged permission to sue in his name. In
this respect it was these people, not the céiles, who
resembled the clientes of ancient Rome. They were
capable of acquiring land by contract, and when they
had done so they corresponded to the English villeins
of the Middle Ages. With industry and economy
they might become wealthy, and with the acquisition
of wealth a certain progress was allowed upwards
towards liberty and an easier lot. The distinction
of saer and daer was recognised in their condition ;
but it is not clear in what that distinction consisted,
unless the former represented legal status, which
wealth was the ordinary means of procuring. When-
ever any of them did by contract become land-holders
and wealthy they also acquired some social and
political rights, and could not be removed from their
lands without just cause and compensation for un-
exhausted improvements. The main difference
between such men and the free clansmen was,

 
I50 THE BREHON LAWS.

that while the clansmen’s possession of land
acquired by contract would in the course of ten
years ripen into ownership, and cattle they had
hired from the flaith and paid for would after
seven years become their own, the non-free men
had no such general law continually operating in
their favour to this extent, but were kept to the
terms of their contract because that was throughout
their only title. A freeman sometimes paid a pretty
heavy tribute for such land in the beginning; but in
doing so he was gradually throwing off a burden from
which he knew he would soon be entirely free. A
non-free man paid a still heavier tribute, which was
a rent in reality; and yet his burden continued
undiminished, ever wearisome. And in every case
of conflict the claim of the non-free man should
give way to that of the clan or of a fully enfranchised
member of the clan. The benefit of the principle of
partnership was extended to these two classes also,
enabling a number of them to put their small means
together, take a piece of mountain side or other poor
land and stock it on the system now called rundale,
and by means of this property to acquire rights and
the protection of the law. If five families had each
become so wealthy as to own one hundred head of
cattle, and had then formed a partnership or guild
resembling the fine of the freemen, and appointed a
chief or flaith-fine, they were entitled at once and
thenceforth to be recognised as a portion of the clan;
and then, but not till then, all the rules of kinship
applied to them as to the free people. Until they

 

 

 

 

CLASSIFICATION OF SOCIETY. 151

had emancipated themselves by individual or joint
wealth, or in some other way, they appear to have
lived very much on the sufferance of the clan. The
majority of them remained poor and had little
occasion Of inclination for testing the scope Or
existence of their rights. It is probable that the
condition of even these was not on the whole
worse than that of modern agricultural labourers.
Their position was one of rightlessness rather than
slavery; they were tolerated rather than bound.

Sub-Section 3.—The Fuidhrs.

., UIDHIR was a name applied to all

? who did not belong to 2 clan,

whether born in the territory or

not. This was the lowest of the

three classes of the non-free people. This

class also was sub-divided into saer and

daer, the daer fuidhars being the class

most closely resembling slaves. Even this lowest
condition was not utterly hopeless; progress and
promotion were possible, and indeed were 1n con-
stant operation. But on the other hand the ranks
of the fuidhirs continued to be recruited from various
sources. It was here prisoners of war were to be
found. The pagan Irish were wont to go on warlike
expeditions to Britain and Gaul, and on their return
to bring home, along with other booty, some of the

 
152 THE BREHON LAWS.

natives whom they reduced to slavery in Ireland. It
was in this way Saint Patrick was brought to Ireland,
and it was as a daer fuidhir he lived in Ireland in his
youth. Centuries after Saint Patrick’s time the Irish
used to send to English ports and purchase children
as merchandise from their English parents, who sold
them freely. These children were brought up as
fuidhirs in Ireland. And, as already mentioned, the
ranks of the fuidhirs afforded a general refuge for con-
victs, fugitives from justice from other clans, tramps,
outcasts, and unfortunate persons of all sorts. A
freeman could remain in his own tuath and become
a daer fuidhir if all his property when given up was
insufficient to pay his debts—a species of bankruptcy
plus capitis diminutio. No fuidhir, saer or daer, was
entitled to bear arms, or to recover eric for the murder
of a member of his family, or to inherit property if
by any chance he found himself in a position in which
he would otherwise inherit. The law recognised the
fuidhirs in some respects, however, in certain matters
not fit to be stated here. The lowest of them were
regarded as intelligent persons, as human beings, not
mere chattels. :
Fuidhirs and the non-free of all classes resided for
the most part on the flaith’s land; for, apart from
the satisfaction of specific claims, the flaiths alone,
as a class, had the general right of keeping non-free
persons on their lands. This exclusive right originated
in the legal theory that they were public officers,
bound among other things to perform certain public
works requiring unskilled labour of a coarse kind,

 

 

 

‘CLASSIFICATION OF SOCIETY. 153

and they were allowed to keep non-free people for
the performance of these works for the benefit of the
community, as with convict labour of the present
day. In practice they mostly employed the fuidhirs
in works for their personal benefit. They were free
to give patches of land to the saer fuidhirs either on
their official lands or on their private property. In
practice they gave them patches on the common or
waste land also, exacted rent for it as though it were
private, and in this way appropriated that land. “The
land so given was usually the poorest, most inacces-
sible, and most difficult to utilise. The saer fuidhirs
might, however, if they had the means, bargain with
the flaith for good land and hold it for the term of
one year, and during that term they could not be dis-
turbed. For this land they paid him high rent,
because he could charge them as much as he
pleased, a thing he could not do with the clans-
men. The daer fuidhirs, so long as they remained
such, could hold no land whatever for any term, and
no contract made with them had any binding effect.
They worked for the flaith, and by means of their
cheap labour he was able to cultivate his land, and
some of the common land of the clan if it suited him.
Both classes of fuidhirs helped the flaith to encroach
on the property of the clan. Hence he had an interest
in increasing the numbers of fuidhirs, and with their
increase his dependence on the clan in some respects
diminished. The moral and material interests of the
iree clansmen leant the other way. They disliked the
presence and still more the increase of fuidhirs. The

 
154 THE BREHON LAWS.

policy of the law, too, was distinctly and uniformly
adverse to slavery and to the introduction and keeping
of fuidhirs, and it imposed some checks on the
practice. For the performance of servile labour
for the benefit of the community it allowed rather
than entitled chiefs and flaiths having control of
districts to keep a limited number of fuidhirs in
proportion to the size of their respective districts.
This particular restriction as to number does not
appear to have been operative. The law, however,
held the chief or flaith responsible to his clan and
to his king for all legal liabilities arising from the
acts of fuidhirs. It made his rank and privileges
depend on the number of céiles in his district. It
bound him to be ready when required to bring a
certain number of armed men into the field of
battle, and as the fuidhirs were neither bound nor
entitled to take part in military operations at all,
this demand could be satisfied only by free clansmen.
For all these reasons, however the flaith might
desire to increase the number of fuidhirs for his
personal advantage, he could do so directly at the
expense of the céiles only to a limited extent. In
other ways also the law discouraged the introduction
of fuidhirs ; and when they had been introduced it
favoured and facilitated the well-being and emanci-
pation of such of them as were not criminal. There-
fore all families did not remain permanently in this
kind of servitude but gradually rose from a lower
to a higher degree according to a certain scale of
progress, unless they committed some crime which

_

 

- a ————————
ute

ny —————_ pare

BE aa A a.

5 I
CLASSIFICATION OF SOCIETY. 55

would arrest that progress and cast i : jaws
again. This progress was arranged accor ing :
the time a fuidhir family had resided in the fo 2
and its thrift as evidenced by the amount i 3
acquired, subject to the effect of snd he) io
a flaith might not keep any bargain > a
fuidhir, if as a fact he let land to him an : i } deep
the bargain, a status began to be acquire ihe
third generation the foun Te je
ial connection with the clan ar
fe so that they could not be driven away sesh
for a crime. As time went on, if the progress ho
maintained, the rights of their descendants Inieat
and expanded, they gradually intermarried wi: ite
clan and became indistinguishable from it, an
igi forgotten.
i hin as the flaiths assumed the Shite
of lords, all poor people, whether originally oor
not, gravitated towards the condition of the Wk 2
fuidhirs ; and under Queen Elizabeth the i : iy
of the Irish people were indiscriminately re es fo
almost the same level. So they and their descendan

remained for almost three centuries.

 
CHAPTER VI.
THE LAW OF DISTRAINING.
SECTION I.

INTRODUCTORY.

ET us now consider briefly the law

of distress, that is the seizing of

property for the satisfaction of debt.

In its time it was substantially the

~ most extensive and important

) part of the whole Brehon Code

—[ and in its operation affected the

whole of it, being incidental to

all litigation. That strange fact

makes it interesting to us. It

has besides some intrinsic points of interest. But
the whole subject will not detain us at length pro-

portioned to its ancient importance.
156

THE LAW OF DISTRAINING. 157

There had always been local customs regulating
distress, but, as might be expected, neither were they
all alike nor any one of them consistently observed
even in the district to which it nominally belonged.
The consequence was irregularity leading to injus-
tice and sometimes to violence. The matter being
so very important, a national convention was sum-
moned and held, about a hundred years before the
birth of Christ, on the hill of Uisneach, near the
present town of Moate, in Westmeath, was attended
by representative men from every province, and
there a uniform system of distress drawn up and
proposed by Sean (Shan), son of Aighe, a Connaught-
man, was adopted for the whole country. This
continued in force for nearly seventeen hundred
years, and is the system now about to be briefly out-
lined.

 

 

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SECTION II.

DEFINITION AND SCOPE.

v\ THGABHAIL is the word trans-

* lated distress. It means the re-

sumption or recovery of either

property or right of which one

has been deprived. What was

\: meant for a definition in the

“ Gaelic is translated thus—¢ It

is called Athgabhail, because

through it advantage is obtained after disadvantage,

property after the absence of property, possession

after non-possession, truth after untruth, legality

after illegality, justice after injustice, lawful posses-

sion after unlawful possession, right after wrong,

order after disorder. Athgabhail is a general name

for every security by which one recovers his right.

Athgabhail is that which renders good to the good,

which renders evil to the evil, which takes the guilty
for his guilt.”

158

 

THE LAW OF DISTRAINING. I50

Whatever the law commanded or prohibited, the
command or prohibition, if not obeyed, was enforced
by means of distress. It was a remedy of almost
universal application. It was available for the
recovery both of tributes ‘and of ordinary debts,
thus corresponding to both distress and the final
execution of a writ of fiers facias in English law;
but it was equally applicable, and as freely used,
for the recovery of all sorts of mulcts, forfeitures,
penalties, and fines, and for the satisfaction of every
species of liability. And since the Brehons reduced
all liabilities of whatsoever original nature to material
value to be recovered by distress, the modern dis-
tinction between civil and criminal liability did not
exist, and distress was applicable to every action and
to every charge. Further, it was not alone the mode
of executing a judgment, but also a mode of insti-
tuting an action. Hence the disproportionate im-
portance of this subject and the enormous amount
of space occupied by it in the Brehon Laws; and
hence in the part of the Senchus Mor dealing
specially with it nearly all other branches of law are
mentioned incidentally.

Whoever had any claim or complaint against
another, either summoned that other or, by dis-
training, obliged that other to summon him before a
brehon, who decided which party was in fault, and
assessed the amount that person should pay to the
other. There was no sheriff or other public officer
to execute the distress and realise the amount
assessed ; the plaintiff, creditor, or person who had

 

 

 

rt lh OI 5 SB A HA -

 

 

 

 
160 THE BREHON LAWS.

gained the suit was obliged to do it himself; but in
doing so he was bound to take with him a law agent
in the character of a notary, together with witnesses,
as a guarantee that the requirements of the law
should be duly observed on both sides. He also
took with him such assistants as the occasion
suggested. A person distraining in this way does
not appear to have been any weaker or less success-
ful than is the sheriff in our time. “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.” This provision made the defendant
the party most interested in effecting a speedy
settlement.

gL RTL TIT TTR
jes

SECTION III.

DISTRAINT BY FASTING.

ENERALLY a person
before proceeding to distrain
was bound to give certain
notices. ‘A notice of five
days is to be served on a
debtor of the inferior grade,
and then distress is to be taken

from him.” “ A notice of ten days upon the debtor
of chieftain grade.” If the defendant was a chieftain,
a flaith, a brehon, a bard, or a bishop, the plaintiff
was obliged fo fast upon him in addition. ¢ Notice
precedes every distress in the case of the inferior
grades, except it be by persons of distinction or upon
persons of distinction ; fasting precedes distress in
their case.” The Troscead, or fasting upon one,
consisted in going to his house and waiting at his
12 161

 

 

 

 

mn I ¢
4 hl

a i canta ls
A

 

 

 

 

 
162 THE BREHON LAWS.

door a certain time without food. The text says,
«t He who refuses to cede what should be accorded to
fasting, the judgment on him according to the
Feini is that he pay double the thing for which he
was fasted upon.” This was a strong measure. And
the commentary says, “If the plaintiff has fasted
without receiving a pledge, he gets double the debt
and double food.” Again the text says, “ He who
fasts notwithstanding the offer of what should be
accorded to him forfeits his legal right according to
the decision of the Feini.” Clearly the law did not
suffer the mode of distress by fasting to be trifled
with in any way. If the plaintiff, having duly fasted,
did not within a certain time receive the satisfaction
of his claim, or a pledge therefor, he forthwith dis-
trained the goods as in the case of an ordinary
defendant, and distrained double the amount that would
have satisfied him in the first instance. Sir Henry
Maine thought that fasting was regarded with a
superstitious awe. I rather think the law, without
superstition at all, was calculated to inspire a good
deal of awe, and that the distinguished defendant,
if he possibly could, paid the debt or gave a pledge
in order to get the faster, as a dangerous nuisance,
away from his door.

Distress by way of fasting, now so strange to us
because so long obsolete, was clearly designed in the
interests of honesty and of the poor as against the
mighty. How or why it assumed this particular
form is not known, and shall probably never be
known. It was not peculiar to Ireland, however.

 

THE LAW OF DISTRAINING. 163

A system precisely similar has existed in India from
time immemorial, and exists in some parts of that
country at the present day. It is called “sitting
dhurna.” ‘There are also other points of resemblance
between the native laws of India and the Irish laws.
India and Ireland are too far apart in space, time,
and historical connection for these resemblances
to be more than coincidences due to similarity of
occasion, or to some common cause acting on the
minds of men, or to chance.

f
sm ——

Ne RN

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M—————————

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Na NA Co Arb A ao i Ss AS ES A RN iu

# “ “ 4 I SETI AP ll AL
. - hay pos HA SN Bi ” i» - - aN

 

 

 

 
SECTION IV.

GENERAL PROCEDURE.

kinds, ¢ Distress with Time,” and

amr! >A E

Re AR Ed Ale) « Immediate Distress.” In ¢ dis-
PIS
WV

oY = tress with time,” the thing seized
YR, was subject to an anad, that is,

il a respite, or stay, which was a
period varying in duration according to fixed rules.
““ The stay of every distress with time is the delay in
pound of every immediate distress which has no stay
at all.” The debtor or defendant, on giving a pledge
or security to the plaintiff, received back the thing
distrained, and retained it in his own possession
during this period. Also if the defendant or debtor
desired to test on any ground in a court of law the
validity of the claim or the legality of the distress, he
- was allowed a certain time for this purpose, provided
he gave security. The security was usually in the

nature of a pledge, and might be any article of value
164

 

 

 

THE LAW OF DISTRAINING. 165

which he could spare at the time without inconveni-
ence, or it might be a member of his family. A person
so given was treated as a hostage, not as a servant
or slave. He was treated as his rank entitled him
to be treated. If in the event he was forfeited, the
plaintiff would acquire a vested interest in him to the
extent of his claim, and might then take that much
out of him by reducing him to slavery or in any
other way he thought he could best effect his object.
If the pledge offered was adequate as a security, the
plaintiff was bound to accept it, whether it was likely
to be useful to him or not ; for the law did not con-
template his making a profit out of it. If then the
defendant did not bring the disputed point to a trial
within the time allowed, as he had undertaken to do,
the pledge became forfeited in satisfaction of the
original claim.

The peculiarity of * immediate distress ”” was, that
during the fixed period of the stay the thing distrained
was not allowed to remain in the debtor’s possession,
but in that of the creditor, or in a Forus or pound of
the district. This immediate distress was made, or
might be made, if the plaintiff belonged to a higher
rank than the defendant, and in some other circum-
stances ; and the distrainor might bring to his own
pound goods to the value of his own honour-price.

In the case of “ distress with time,” if the debt was
not paid at the end of the time, and in the case of
“ immediate distress,” if the debt was not paid at
once, the distrainor took away the things seized to
his own residence or to pound according to circum-

 

Gi asta: J a ¥
EA A RS ed i -
ee — An ———" A oe A SH ——, . " ‘ er . -

sn NB

 

 

 

 

 
166 THE BREHON LAWS.

stances, and served on the defendant a very explicit
notice. ¢‘ Three things are to be announced at the
residence of the defendant—the debt for which it
ithe distress] was taken, the pound into which it was
put, and the law agent in whose presence it was
taken.” In other words, the defendant was put in
possession of every material fact, in order that if so
disposed he might take the proper steps to secure
his interests. Treating of a negligent owner who at
such a time omitted to take any steps, the text says,
“To be asleep avails no one;” the commentary
says, “ Sloth takes away his welfare ; ” and an old
proverb says, “He is like a cow’s tail, always
behind.”

The distress remained in pound a certain time fixed
by law according to its nature; and if it consisted
of cattle, as it usually did, the expenses of care and
keep accrued against it and was payable out of it for
this time ; but if any profit or advantage was derived
from the thing distrained, as the work of horses or
oxen or the milk of cows, this was set off against
the expenses. During the time in pound, which
was called a dithim, the owner of the property seized
might redeem it on paying the original debt, plus the
net cost incurred up to the time of redemption.
The plaintiff might, without risk, if he wished, allow
three days of grace in addition to the legal dithim.
At the end of the dithim, or days of grace if allowed,
the property, if not redeemed, began to be forfeited to
the plaintiff. It was not forfeited all at once even
then, but progressively at the rate of three seds per

 

 

 

THE LAW OF DISTRAINING. 167

day until the amount of the debt or fine or whatever
the principal sum was, with costs, was realised. If
the value of the thing distrained exactly equalled the
liabilities, the plaintiff took all and the matter was
at an end. If there was a surplus, it belonged to
the original owner ; if a deficit, a further distress
might be made. The plaintiff would naturally be
disposed to seize too much rather than too little;
but the law discountenanced his harassing the de-
fendant in this respect, and inflicted a heavy penalty
on any one who distrained unjustly, illegally, or with
needless oppression. A heavy penalty was also
incurred by any one who distrained where no debt
was due. These penalties were all fines, of course,
and the amount was doubled when the offence was
committed with guilty knowledge.

There were seven public pounds in the territory of
every clan. Of these the one most frequented was that
situated in the most secure place near the centre of
the territory, because in it the things detained were
safest from external thieves who could not be easily
brought to book. The laws contain elaborate rules
for the regulation of all classes of things in pound,
for liability in connection with accidents occurring to
cattle there, or having a disease going there, or taking
a disease in pound, and countless other possibilities ;
and also special rules for every species of conduct
that might be indulged in by either of the parties,
and prescribing the proper course to pursue if the
distress had been carried out in any essential not in
accordance with the law. One specimen sentence

Se ea ARE RA

ii a ]
SEB AT EG Nl

 

——————

 

 

 

 

 

 
 

168 THE BREHON LAWS.

from the text will sufficiently indicate the scrupulous
care of the law. ‘ Every necessity is blameless;
every improvement is lawful; every inadvertency
is venial ; every wilful neglect is wrong.”

There were times at which debtors were entitled
to certain exemptions from distress. On the death
of the Ard-Rig of Erinn, and in Christian times on
the death of the successor of Saint Patrick, every
debtor jin Ireland who needed and claimed it was
entitled to a year’s exemption. On the death of the
king of a province there was exemption within that
province for three months. On the death of a rig-
tuatha there was one month’s exemption within that
tuath. But of course it did not follow that debtors
always took advantage of these periods of exemption.
They were meant only as temporary relief from hard
pressure, given to persons who claimed it bond fide.
Debtors applied to at a time of exemption, who
accepted notice, allowed themselves to be fasted
upon, or otherwise acknowledged or acquiesced in
the process going against them, and who were able
to pay, were not allowed at the last moment to avail
of the privilege of exemption, for that would be
unfair. Every person on whose death such a period
of grace would occur had during life the power of
giving protection against distress, and so temporarily
suspending the law, for the same length of time.

As regards the nature of the things distrained,
they were cattle for the most part, because they
could be driven and had not to be carried ; but
cattle failing, any other farm produce was resorted

 

 

 

 

THE LAW OF DISTRAINING. 169

to, or any kind of property whatever. There was
an order, well and generally known, in which different
kinds of cattle should be taken in distress. Young
cattle that were not giving milk or otherwise essential
for the comfort of the family were liable, so far as
they existed, to be distrained before those that were
specially useful. In villages where smiths, carpenters,
shield-makers, and other mechanics lived, not by
land, but by their trades, the materials upon which
they worked or any other property found in their
possession might be distrained, but not their tools
or anything essential to the practice of their trades.
If a debtor or offender fled, leaving no property
behind him, the property of his fine might be seized
as though it were his own for the amount of the
debt or fine, and the members of the fine were left to
settle with the delinquent. People of the Bothach
and Sen-Cleithe classes having no property that could
be seized might be taken themselves in distress, and
were bound to pay the debt or fine by their labour.
While doing this their position towards the plaintiff
resembled that of the daer fuidhir towards the flaith.
When for crime or anything else fuidhirs became a
distrainor’s object, he did not in the first instance
distrain them, because the flaith was responsible.
The law did not forbid him to chastise them, even
to death; but of course religious and moral con-
siderations and public opinion restrained him ; and
on the whole it was the better and more usual
course to fetter them, and so deprive the flaith of
their services. The flaith might then either satisfy

 

 

 

 

 
 

170 THE BREHON LAWS.

the demand of the distrainor and enjoy his fuidhirs,
or surrender the fuidhirs to the distrainor in the
manner of the noxal surrender at Rome. A fuidhir
so surrendered had very likely to work harder for
his new master than for his old; but probably he was
better fed to enable him to do this. Though the
rules relating to the distraint and surrender of
human beings are numerous, and no doubt were
sufficient in practice for those who applied them,
they do not always convey the desired amount of
information to us of a different age.

 

SECTION V.
CAPACITY.

i N general, no one could levy a distress but

© a person on whom a distress could be
levied. He should have a lis and a macha

(= a fold and a farmyard) in the territory.

Hence none of the non-free classes could

distrain, except possibly such few of them

as had acquired wealth and advanced a

good way up the social scale. A stranger

coming to levy a distress could not do so,

under Urradhus Law, without bringing a

~ #  pative of the territory with him as surety,
provided he could get one without fee. If he could
get no native to become responsible for him without
payment, and was unable or unwilling to pay, the
law gave him other means of attaining his object,
but not of so speedy a character. Those other
means varied somewhat, the lodging of a substantial

171

 

 

Ea uri tas ” i Gd hn wR a "
RE AAS 5 TNR

 

 

 
 

 

 

 

172 THE BREHON LAWS.

security being a common requirement. If a stranger
failed to bring a surety in a case in which he was
bound to bring one, or failed to lodge a security
where he was allowed to do so, and attempted to
distrain like a member of the clan, as by the cheap
mode of fasting, not alone might he be evaded, but
he was nonsuited and fined as an interloper. Under
Cain Law, however, a stranger could distrain directly
without either a native surety or a security, provided
he had a lis and a macha in his own native territory.
And if in such a case in making his distress the
stranger was evaded, the person evading him was
fined; because the latter was in his own country where
he had every facility for maintaining his rights, if he
had rights. If instead of paying or giving a pledge,
as the circumstances required, he attempted to baffle
the stranger, the law stepped in for the protection
of the stranger; and if in the result the stranger
was able substantially to sustain his claim, it
followed that the evasion of him was unjust and
fraudulent, and it was punished as such.

Some modern exponents of the Brehon Laws tell
us that only flaith-fines or heads of families could be
sureties. Now this is another mistaken view. Not
only were all the seventeen men of the fine eligible
to become sureties, but they were bound in certain
cases to become sureties for one another, and were
liable as sureties even in cases where they had not
expressly undertaken the responsibility. They were
competent also to become sureties for other members
of their own clan, but in this respect the flasth-fine’s

 

THE LAW OF DISTRAINING. 173

powers were more extensive than theirs; and he
could become a surety for a person outside the
clan, which they could not. Kings, chiefs, brehons,
officers of court, and others filling public positions
were ineligible as sureties. The non-free were, of
course, wholly ineligible.

 

 

 
 

 

Ee Ty
} AS om Nr ®
: pelo ii Ta ® p
=

SECTION VI.
MINUTIZE.

UCH is a general outline of the law
of distress. There were many rules
regarding the legality of certain dis-
tresses, the effect of exemption in
different cases, and other differences,
and curious and elaborate provisions

for the execution of distress in the case of almost
every animal and thing then held as property ; and
further numerous differences arose from the numerous
classes of suitors and defendants, and the modifications
of honour-price and consequently of liability caused
by the progress of either or both parties in the scale
of status, the arrest of that progress, and a great
many other causes. The fines, distresses, stays,
and all the processes of action were specifically
adjusted to all these variations. There is hardly

a way in which a wrong could be inflicted in country
174

THE LAW OF DISTRAINING. 175

life against which a special provision is not made,
hardly a thing relating to property or its use or abuse
for which a special rule is not given. These minute
rules are far too numerous and intricate for discussion
here. The same may be said of every branch of the
Brehon Laws. Even so friendly a critic as Dr.
Joyce has said it in his chapter on the subject,
where he contrasts unfavourably the minute spe-
cialism of the Brehon Laws with the adoption of
broad principles of general application. He does not
tell us, however, in what ancient laws the material
for this contrast can be found, in what ancient laws
broad principles have been actually adopted. It
is hard to find even in modern laws. He leaves
his readers to infer that the characteristic he con-
demns is more observable in the Irish than in other
ancient laws, and that the adoption of broad prin-
ciples is easy and was easy to the brehons. Neither
of these assumptions would as a general rule be
correct. The tendency, however vain, to deal with
particular cases, to relieve where the shoe pinches,
is observable in all laws, past and present, even
in countries having legislatures at hand to enact,
amend, or abolish; and as regards the liberty a
judge should take in interpreting law, most modern
judges uniformly and consistently shrink from laying
down broad principles or extending any rule beyond
the requirements of the case before them. Dr.
Joyce's criticism, therefore, while applicable to the
Brehon Laws, is also of far wider application than
Dr. Joyce's readers are led to suppose. It may be

 

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i a RS EA a i
do I nl - pie Ma

 

 
 

176 THE BREHON LAWS.

observed, too, that for us this proneness to deal with
particular cases and minute circumstances is not
wholly a defect, since to it we owe our knowledge
of many facts revealing to us the habits of the
people.

 

 

CHAPTER VII.
CRIMINAL LAW.

SECTION I.

THE BOOK OF AICILL.

5%; HE Senchus Mor is the

greatest work on Irish

Law in general, civil and

criminal. As it deals with

the whole subject, the civil law

occupies much more space than the criminal.

Various branches of law are treated specially in

separate treatises. ‘The most important of these is

the Book of Aicill. It is taken up mainly, but not

exclusively, with what we now call criminal law, and

may be regarded as the Irish criminal code; and it

is this work that will mainly be referred to in explain-

ing that code. It also contains some useful state-
I3 177

 

mH SA
x a th

 

 

 

 
SE EL TT —— es — . — -
CE — I oc
—— aT

y

 

 

178 THE BREHON LAWS.

ments of law relating to partnership, borrowing and
lending, and other transactions of civil life.

The whole of the Book of Aicill is composed of the
opinions or placita of two eminent men, illustrious
in law and in other respects: The first was King
Cormac mac Airt, otherwise called Cormac ua Cuinn;
the second was Cennfaeladh the Learned. Cormac
was one of the most deservedly celebrated of the
monarchs of ancient Erinn. He was Ard-Rig from
A.D. 227 until 266 (according to others from 218 until
260). He was, as his names signify, the son of Art
and the grandson of Conn of the Hundred Battles,
both monarchs of Erinn, and he was the father of
Cairbré who may be said to have succeeded him, the
very short reign of Eochaidh alone intervening. He
was also the father of Grainne, celebrated in the
Fenian poetry of Oisin and his contemporaries.
In youth he was violent enough, perhaps un-
scrupulous in pursuit of power; but his subse-
quent life proved that his ambition rose from the
solid basis of ability to rule men; and to this
extent, as also by the use he made of power when
acquired, he justified himself. He was a great
reformer of the national institutions of his time,
civil and military, including the Feis of Tara; and
most of the traces of its former greatness now existing
at Tara are attributed to his time. Consistently
with his reforming spirit, he was a great patron of
literature, art, and industry, the first of whose
patronage we have undoubted evidence. He either
wrote himself or procured the writing of several

 

CRIMINAL LAW. 179

works on law, history, and other important subjects.
Some of these works on subjects other than law were
still extant so late as the seventeenth century, but
appear to have been since destroyed or lost. Among
the useful things for which the country was indebted
to Cormac was the introduction of the water-mill.
He had the first mill erected on a small stream on
the slope of Tara. He was a man in many respects
far in advance of his time. Though living long before
Saint Patrick’s arrival, and king of a pagan nation,
there is reason for thinking that he was a believer in
Christianity before his death. He at all events
ceased to believe in the pagan gods.

¢ Crom Cruach and his sub-gods twelve,”
Said Cormac, ‘‘ are but craven treene:
The axe that made them, haft and helve,
Had worthier of our worship been.

<¢ But He who made the tree to grow,
And hid in earth the iron stone,
And made the man with mind to know
The axe’s use, is God alone.

¢ Spread not the beds of Brugh for me
When restless death-bed’s use is done,
But bury me at Rosnaree,
And face me to the rising sun.

¢ For all the kings that lie in Brugh
Put trust in gods of wood and stone ;
And twas at Ross that I first knew
One, Unseen, who is God alone.”

According to one Gaelic authority Cormac was the
author of the text of the Book of Aicill throughout,

 

 

 

 
180 THE BREHON LAWS.

and Cennfaeladh afterwards modified and commented
on the whole of it, besides adding some of the case
law which had grown up in the interval. And I am
inclined to think that this view is correct. However,
the introduction to the Book of Aicill gives a different
account, and naturally it is that usually accepted.
It begins thus :—* The place of this book is Aicill,
close to Tara, and its time is the time of Coirpri
Lifechair (Carbre of the Liffey), the son of Cormac,
and its author is Cormac, and the cause of its having
been composed was the blinding of the eye of Cormac
by Aengus Gabhuaidech.” Owing to the loss of his
eye, Cormac became incapable under the Irish law
of retaining the sovereignty, “because it is a pro-
hibited thing for one with a blemish to be king at
Tara.” The sovereignty was transferred to his son,
after a temporary usurper had been got rid of, and
Cormac retired to Aicill, now called Skreen, near
Tara. It is stated that in difficult cases he was con-
sulted by his son the young king. However this may
be, a great deal of the Book of Aicill is written as if
in answer to questions submitted, and the answer in
each case begins with the words, ‘“ My son, that thou
mayest know.”

It was on account of this injury to his eye that
Cormac expelled the Deisi from the district in Meath
still from them called Deece, and drove them to
Munster where they settled and gave their name to
a district there also.

Having told where, when, on what occasion, and
by whom, the book was first written, the introduction

 

CRIMINAL LAW. 181

proceeds :—* These were the place and time of it as
far as regards Cormac. But as regards Cennfaeladh,
its place is Daire Lurain (now Derryloran, in Tyrone),
and its time was the time of Domhnall, son of Aedh,
son of Ainmiré; and its author was Cennfaeladh, son
of Oilell, and the cause of its being composed was
that part of his brain was taken out of his [Cenn-
faeladh’s] head after it had been split in the battle of
Magh Rath.” The Domhnall (Donal) in whose
reign this occurred was monarch of Ireland and
fought the battle of Magh Rath (now Anglicised
Moira) in AD. 634 (?642) against Congal Claen,
king of Uladh.

The foregoing statements are remarkably clear and
explicit. They represent the Book of Aicill as the
production of two authors, one writing in the third
century, the other in the seventh. Notwithstanding
this, Sir Henry Maine, the standard authority on
ancient law, in his learned discoveries of * village
communities ”” where they never existed, represents
Cennfaeladh as assisting Cormac! Worse still, I
find an Irish author saying gravely that Cormac
was just the man to appreciate Cennfaeladh’s
services! Granted that Cormac was highly en-
dowed, still the power of appreciating services
rendered more than three hundred years after his
own death can hardlybe conceded even to Cormac mac
Airt ; and if he had such power, any express recog-
nition of Cennfaeladh’s services would then have
been rather premature.

We are told that Cennfaeladh (Kenfaela) was a

 

 

 

 
182 THE BREHON LAWS.

soldier, not a lawyer. I would rather describe him
as a soldier and a lawyer, and much besides. Having
been wounded in the battle of Moira, the commentary
goes on to say of him, “And Cennfaeladh was
brought to the house of Bricin of Tuam Drecain
(now Toomregan, in Cavan) at the meeting of the
three streets, between the houses of three ollamhs.
And there were three schools in the town, a school
of literature, a school of law, and a school of poetry.
And whatever he used to hear rehearsed in the three
schools every day, he had by heart every night ; and
he put a fine thread of poetry about them, and wrote
them on slates and tablets, and transcribed them
into a paper book.” This was the way in which
Cennfaeladh spent his time while recovering from
his severe wound; and there is a characteristic
explanation given of his wonderful memory, namely,
that the brain of forgetfulness had been taken out of
his head by the sword by which he had been wounded.
Throughout the Ancient Laws occasional touches of
fancy like this are met with, thrown in apparently
by way of ornament, and possibly as an assistance
to young students in learning these laws. Saint
Bricin kept a school at Tuam Drecain; and Cenn-
faeladh appears to have done part of his work there
and part at Derryloran.

Commentaries written by lawyers of later times
run through the Book of Aicill as through the Sen-
chus Mor. According to these, the part of the Book
of Aicill in which occur the introductory words,
“My son, that thou mayest know,” and the part

 

CRIMINAL LAW. 183

called “ the exemptions,” are all the work of Cormac,
and the remainder of the book is the work of Cenn-
faeladh. Cennfaeladh re-wrote the whole work, and
in doing so he probably modernised it to some extent
in effect and in form of expression, and harmonised it
with the requirements of Christianity after the ex-
ample of the Senchus Mor. One may say in our
present language that Cennfaeladh brought out a

new and revised edition of King Cormac’s work.

 

 

 

 

 
SECTION II.
THE LAW THEREIN LAID LOWN.

x: T is commonly said that no distinction ex-

~ isted in the Irish laws between civil and
criminal liability. A distinction did exist,

but it was not the same as that in English
jurisprudence. The common punishment

of all sorts of crimes and all sorts of civil

wrongs was indeed a fine, varying in

amount according to the nature of the

act, to be levied on the property of the

offender like a civil debt. All proceedings,

whether for a crime, a tort, or a breach of
contract, were identical in origin and prosecuted by
the same persons and generally in the same manner.
The State did not prosecute, but left individuals to
prosecute in criminal as well as to sue in civil cases.
The law did not set up crime as a species of liability

distinct from civil wrong. Still there were important
184

 

 

 

 

CRIMINAL LAW. 185

points in which criminal differed from civil liability.
It differed first in the moral nature of the act by
which it was incurred; and this was a legal differ-
ence so far as the law enforced it. There is here a
confusing of law with morality, which some English
legal authorities are at such pains to keep asunder
or in antagonism. Theirs is trouble ill-bestowed,
and vainly, because its object is unnatural. Until
human nature itself is changed law and morality
will, in spite of lawyers’ theories, be in fact and be
generally considered closely related. And it can
hardly be denied that wilful civil wrong is oftentimes
the medium of base moral crime. Another difference,
sometimes of importance, was, that, in civil cases
the defendant frequently had the right of choosing
the judge. This arose from any one of certain
causes. For example, if the plaintiff distrained as
the first step in an action, as he might do when his
claim was for a liquidated amount, the defendant
was driven to the necessity of either submitting to
the distress or taking the case before a brehon.
Criminal cases, the amount obtainable not being
liquidated, had to be submitted to a brehon in the
first instance, and hence the person against whom
a crime had as a fact been committed chose the
brehon. Then the subsequent effects upon status
and legal competence were entirely different.
Persons against whom crimes had been committed,
or if they had been killed their immediate relatives,
were left to sue out redress, just as in civil cases,
by summoning the offender to appear before a

 

 

 

 

 
186 THE BREHON LAWS.

brehon, who heard the case and assessed, according
to the principles of law and justice, the amount of
fine that should be paid as compensation; and then,
if the defendant did not pay immediately, by levying
a distress on his goods. There were no prisons,
except in communities to which small islands or
other natural prisons belonged, and there were
hardly any public servants who could correctly be
called police or detectives. The people were their
own police, and their activity in that character was
spurred and sharpened by the knowledge that a sept
had to pay for a secret crime committed in the part
of the territory assigned to it, unless it were shown
that the crime had been committed by an outsider.
This liability of the sept continued so long as the
criminal lived, whether his crime was one against
person or gainst property. But on his death
happening, whether as punishment for the crime or
from natural causes, a difference arose. If the crime
was purely personal, the liability of the sept was at
an end, for * the crime dies with the criminal ;”’ but
if it had caused damage or loss of property, the sept
still remained liable for this net loss. Every clan
and every clansman had a direct monetary interest
in the suppression and prevention of crime. The
higher motives by which Irishmen were undoubtedly
actuated were, however, far more effectual. The
whole public feeling of the community was entirely
in support of the law—a signal proof of its suitability.
Evasion of law and concealment of lawbreakers,
which alien laws afterwards made so popular in

 

CRIMINAL LAW. 187

Ireland, were then little known. Both in popular
estimation and in fact the honour and the interests
of all, of community and individual, were involved in
the maintenance of the law. Law supported by
public opinion, powerful because so inspired, power-
ful because unanimous, was difficult to evade or
resist, though there were no men in livery to enforce
it. It so strongly armed an injured person, and so
utterly paralysed an offender, that an escape from
justice was hardly possible. The only way in which
it was possible was by running away, leaving all
one’s property behind him, and sinking into slavery
in a strange place; and this in effect was a severe
punishment rather than an escape. So long as an
offender had property, the motive for flight was not
so strong as it is with a criminal of the present day ;
for the brehons do not appear to have taken on them-
selves to pronounce the death sentence at all, but
only the amount of compensation. In some cases
of a criminal caught in the act, the person against
whom he was offending had a right to fetter him and
detain him wherever he pleased until judgment was
pronounced and satisfied.

If a criminal did abscond without paying the
penalty of his crimes, any property he left behind
him was applied to the payment of it pro tanto. If
not fully satisfied, the liability for the remainder fell
first upon the criminal’s immediate relatives who
were entitled to inherit his property. If not satisfied
by them, it extended throughout the fine and the sept
even to the clan if necessary. The only way in

 

fir

 

 

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fn.

 
188 THE BREHON LAWS.

which the immediate relatives, being able to pay,
could escape liability was by giving up the offender
to the injured family. The right to recover and the
liabilty to pay were alike based on the rules of kin-
ship explained in connection with the clan system.
The names of the fines are retained untranslated,
for reasons already mentioned. They were eivic or
eric, reparation ; einachlan, honour-price (not strictly
a fine); dire, fine; coirpdire, body-fine; smacht,
usually a fine of five seds ; and airer, a fine amount-
ing to one-seventh of the honour-price. Eric is
defined as the fine for separating body from soul,
that is for killing, whether murder or manslaughter.
But of course the amount of it was not the same in
these cases; for one of the most important distinc-
tions made by the law in crimes was the presence or
absence of intention. A man who happened by pure
accident to kill another who was about his lawful
business did not go wholly unpunished, as such a
one does here at the present time. Having destroyed
human life and inflicted an irreparable injury on
a family, he had to pay eric to the family of the
deceased, and so alleviate suffering by sharing it.
But one who committed wilful murder with malice
aforethought had to pay at least a double fine. As
an English lawyer would express it, the eric for
murder was double that for manslaughter. So the
translators tell us, and they are supported by the
commentary which says, ‘ The double of honour-
price is due to each and every person for the crime
of secret murder.” Still it is conceivable that the

 

CRIMINAL LAW. 189

word diabalta might be as correctly translated two-
fold ; for there were really two fines imposed, in
some cases three, and they were not always equal
in amount as the word double implies, since they
started from different bases and the amount of each
was affected by a different status and a somewhat
different combination of circumstances. I find it
laid down in one place that there were three fines
imposed on a murderer, (1) his own honour-price ; (2)
seven cumhals for the homicide itself; (3) twice
seven cumbhals if malice was proved. I do not know
of what rank this is said; but the actual amounts
were affected by the different ranks, as well as by the
facts and peculiar circumstances of each particular
case, and each of the parts of the fine was in every
case the subject of a separate and independent
calculation.

Some loosely written passages in the commen-
taries have been interpreted, I think incorrectly, as
meaning that the amount of fine which a murderer
had to pay in order to avoid the liability of being
put to death was his own honour-price. This would
mean that the eric of the slain would always be
equal to the honour-price of the murderer ; a thing
which, so far from being the rule, could hardly ever
occur in practice. It could occur only when the
slayer and his victim belonged to precisely the same
rank and there were no circumstances to either
extenuate or aggravate the guilt. As these essential
conditions could scarcely ever be satisfied, the
amount of simple eric could scarcely ever tally

 

 

 

 

 

ORAS oi pl A is
spend i

WA

a hm

0 RO HE A AN hs

 

 
IQ0 THE BREHON LAWS.

with the murderer's honour-price. But still less
could the double and triple eric mentioned so tally
Eric and honour-price were, both in theory and In
fact, wholly different things. Eric was strictly a
fine regarded from the point of view of the party
who had to pay it ; but its amount was determined
not by his status but by that of the victim. Honour-
price was the assessed value of status; and, as
applied to fines, the status in this case salt be
that of the criminal.

The eric (=reparation) was given, as its name im-
ports, to the relatives of the person slain, in the
proportion in which they were entitled to inherit his
property, that being also in accordance with the
degree of relationship, and usually with the degree
in which those persons were really sufferers. In the
Middle Ages all the parts of the fine were called
comprehensively eric, and were so distributed.
While Ireland had a monarch of her own he was
entitled to one-third of the honour-price of every
murderer in Ireland. If he was a ‘king with
opposition,” that is one whose title was disputed, he
was entitled to only half this amount.

The same law that arranged the different ranks of
society, and fixed their respective rights, privileges
and liabilities, affixed also to each rank, from 1
to plebeian, a measure of value called honour-price.
By crime, and by breach of contract, this honour-
price was forfeited, wholly or partially according to
the magnitude of the wrong, to the person injured
with or without fines of other denomination diced,

 

CRIMINAL LAW. 101

ing to circumstances. By the taking of human life
in any way, and by a few other capital crimes, the
whole of the honour-price was forfeited, and if not
paid and accepted in satisfaction the injured person
or family had a right to put the criminal to death.
Even should the criminal be allowed to live, if no
satisfaction was rendered his tribal status was com-
pletely gone. In the case of certain peculiarly vile
crimes, which need not be further specified here,
the criminal was expelled from the clan and from
the territory, even though the fine had been re-
covered. A habitual criminal might also be ex-
pelled, and by expelling him, and lodging a security
against his future misdeeds, his relatives could free
themselves from responsibility. A person so €x-
pelled became an outlaw, with no status or right
whatever, no legal capacity, and no protection from
the law, and any one who gave him food or shelter
became liable for his crimes. There was little
danger of any one succouring him, for in general
public feeling was as much against him as the law,
and he was forced to go into a strange place, where
he could only sink into the lowest rank of fuidhirs.
If he still haunted the territory of the clan, and
continued his crimes there, he was proclaimed in
the public assembly of the clan. After this any
one might kill him as a wild beast or a mad dog.
Crimes less than capital, as lying, perjury, fraud,
and in the case of a judge a false judgment, if com-
mitted three times deprived the offender of half his
honour-price, if committed any more deprived him

 

 

 

ly
go Ho

 

 
 

192 THE BREHON LAWS.

of the whole of it. Accomplices in crime, and
those who aided and abetted crime, were dealt with
almost as severely as the actual criminal. In no
case was the fine imposed on a criminal the full
measure of the punishment. Besides the general
odium, there resulted a loss of status with its legal
consequences of disqualification for holding public
office, for suing, for being a witness, a surety, a
juror, and incapacity to inherit land. How long
this condition lasted is not stated ; but it was not
permanent.

The amount of a fine, under whatever name it
came, was not determined by abstract principles of
general application, but in each case by the facts
proper to that case. The maintenance of the law
and of private rights were indeed principles affecting
the ultimate decision; but the chief factors in
determining the amount of penalty for any given
crime were, (1) the damage done; (2) the status of
the injured person; (3) the status of the criminal;
(4) the accompanying circumstances. The result
was that like punishments did not always follow
like crimes. The rules of law on the subject were
necessarily very numerous and complicated, owing
to the great number of classes into which society
was divided and the consequent variations in status
and honour-price ; and although when the facts
were clearly ascertained the proper amount of a
fine may be said to have been a matter of calcula-
tion, yet it was a calculation which required con-
siderable technical skill, as did also the ascertain-

 

CRIMINAL LAW. 193

ment of the facts. A fine for a breach of contract
was generally more simple, as it would depend
largely on the terms of the contract broken.

In adjusting punishment to rank, account was
taken also of professional character. The clergy,
for instance, were far more severely punished than
the laity—a fact showing, if it were necessary, that
Saint Patrick did not abuse his influence when the
laws were being drawn up. When a lay criminal
had paid the eric or other fine imposed upon him,
he rested under a stigma and loss of status for some
time; but after this probationary period he recovered
his honour-price. A convicted clergyman could
never recover his honour-price, could never regain
his former status; and from the state of his sur-
roundings he was scarcely free to do anything else
but retire from the world and do penance.

Rank did not always affect the amount of fine in
the same way. A man of high rank was always
fined more than a man of low rank in a like case.
An offence against property committed upon a poor
clansman who could ill afford it, was punished more
severely than a similar offence upon a wealthy
person. An assault or other personal outrage upon
a person of rank was more severely punished than a
similar offence upon an ordinary person.

Fines, like other payments, were all paid in kind.
When the offence was one against property, and
the fine was small, it was usually arra, that is
generic, a quantity of property of the same kind as
that stolen or damaged. For damage done to bees,

14

 

 

a

 

a ; eR a ”
A BAS LS SLE AGH MIAN AA 80 RS - ~~

 

 

 
 

EHON LAWS.
104 THE BR

for example, the fine would be so many kishes (hives).
In the case of property not so conveniently divided
as bees, the quantities were usually measured in
seds or in screpalls. A screpall was 2th of the
value of a cow. A large fine was anarra, not
generic, not consisting of the same substances as
those stolen or injured. It was usually adjudged to
be paid in three different substances, as one-third in
horned cattle, one-third in horses, one-third in silver.
If in corn it would be one-third in wheat, one-third
in oats, and one-third in barley. In fixing the kinds
the brehon should have regard to the actual nature
of the defendant’s property. A judgment obtained
by a plaintiff for the payment to him of a fine ids
particular kind of property which the defendant dig
not possess was called a “blind nut, because it
was ineffectual; and if it had been obtained un-
fairly or for any sinister purpose it debarred the
plaintiff from seeking a different judgment. When
the liability was of a civil nature, but arose 1n the
absence of any express agreement between the
parties, the judgment was a general one, and the
defendant was allowed to pay the fine in whatever
material he could most conveniently spare. The
plaintiff had to be satisfied, because the law con-
sidered that if he had desired to secure for
himself on a foreseen event a fine of a particular
description, he ought to have made a bargain to
hos son offence committed against himself, as
distinguished from one against his property, the

CRIMINAL LAW. 195

plaintiff obtained a general judgment which he was
entitled to realise out of any property belonging to
the defendant that he pleased. If the defendant
preferred to pay in any particular kind, he should
offer it promptly. The judgments ran—so many
screpalls for a white wound, so many for a red
wound, so many for a lump blow, so many for a
wound which left a mark on the face, so many for
one which left no mark. These amounts, however,
were only fixed by the law for the brehon’s guidance,
and subject to increase or diminution by him accord-
ing as negligence on the one side, contributary
negligence on the other, provocation, self-defence,
accident, or any other modifying element appeared
in the case. Subject to such modifications, minute
regulations are laid down for a vast number of
conditions, occupations, and circumstances, and the
various offences connected with them. Of crimes
directly against the person, the more serious have
been noticed in connection with eric and honour-
price. All fines were what we should consider
heavy, fines for crimes against the person especially
so. A fine of two cows was very heavy for a lump
blow, that is, a blow which raised a lump but did
not draw blood. And the same was the fine inflicted
for shaving a man against his will. I think it meant
shaving his head. This was an ignominious form of
punishment in England under Alfred, and it may
have been so in Ireland as well, and therefore if
done without authority of law it would be particu-
larly outrageous. It must also have been peculiarly

 

 

 

Bn

 

- i i
Te a ———

 

 

 
196 THE BREHON LAWS.

aggravating among a people like the Irish who took
pride in their long hair. They knew how to punish
it at all events. But it must be remembered that
the amount of a fine was affected by the status of
the criminal as well as by that of the person he had
outraged, and the heavy fines stated in the text
applied only to aires or persons of full status who,
as such, were wealthy. It is also fair to point out
that the punishments of ancient laws were generally
severe, some of them much more so than those of
the Irish laws. Take a specimen from the dooms
of Alfred, the model English king:—‘“He who
curseth his father or mother, let him perish by
death.”

If one wounded a man who was the sole support
of a family, he was fined for the actual injury, he
had to pay for the medical and surgical attendance,
and he had to pay a substitute to carry on the
injured person’s business. Fines are laid down for
injury resulting in the loss of limbs, eyes, and all
members; and the amount was affected by, among
other things, the use the person was accustomed
to make of the limb before its injury. One who
knocked the nail off the finger of a harper was fined
more than if he had inflicted a similar injury upon
any other person. Another element sometimes
presenting itself in calculating the amount of fine
to be paid for a crime was, that the accused might
have been provoked by some antecedent crime of
the accuser. If this was shown, and the previous
offence was one of which the law took cognizance,

:
KR
B
J
P| 3
;

Sr

. Ste

CRIMINAL LAW. 197

the judge was allowed to apply the principle of set-
off, as were the judges of England according to the
Laws of Henry the First.

Fines are carefully laid down for cattle-stealing
the laceration or injury of living cattle by dogs oo
otherwise, and trespass upon land. This latter was
divided into man-trespass and beast-trespass. The
forms of man-trespass most frequently dealt with
were felling trees on another person’s land and
taking them away, and cutting turf, rushes, &c.
on another person’s land. The form of Ay
trespass most severely dealt with was that of pigs,
because they not alone eat and trample upon a crop
but root it out of the earth. For the trespass of a
large pig in a growing crop the fine was a sack of
corn. For the trespass of a middle-sized pig, half
a sack. For the trespass of a sucking-pig, two
mans, a mam being all the corn it is possible to
raise between the two hands. Other matters of
frequent occurrence in the laws are the bites and
other forms of damage done by dogs; meddling
with another person’s bees; bees stinging strangers
and blinding or killing them ; bees stinging the
various kinds of cattle and driving them furious;
dangers connected with the felling of timber, the
building of houses, the works of smiths, weavers
threshers, millers, kiln owners, &c. If an les
coming uninvited about such works was accidentally
struck, he should put up with his injury. A person
on lawful business so struck should be fully compen-
sated ; unless he had been warned, either expressly

AAA AE ih ASTIN hl Rin 3s ts Eg. Ri 4 Sie in v1

 

 

 

 

 
198 THE BREHON LAWS.

or by the noise of the work, and had disregarded the
warning. Rules are also laid down for cases of
fellow-workmen hurting one another. There are
rules regarding the management of horses at a fair,
and liability arising from damage done by them ; also
regarding damage done by vicious horses. Many
rules relate to ferries, there having been more water
in the country formerly than now, and fewer bridges.
There are rules regarding the mistakes and mal-
practices of doctors. It appears that, unless under
special agreement, a doctor could recover his fee
only on the patient getting well. In a dangerous
case in which an operation, as the amputation of
a limb, became necessary, a doctor should take an
indemnity against liability for the fatal termination
of his operation. If he was not a duly qualified
doctor he should give notice of that fact to the
patient and his family. If one suffered, from crime
or accident, an injury at first apparently slight, and
got judgment for a small amount, and afterwards,
without fault of the doctor, the injury “ came
against” the patient seriously, or became fatal,
the person to blame was liable to a second trial,
but in this regard would be had to the amount
recovered under the previous judgment.

In short, here as elsewhere, the brehons endeavour
to deal with all cases and all varieties of circum-
stances. They lay down special rules for every
relation of life known in their time and every detail
of social and domestic economy, and some rules
relating to conditions so obsolete that their nature
can now only be conjectured.

 

 

ee eee
AT a

SECTION III

CAPITAL PUNISHMENT.

2 HE fact that the Irish

took compensation for

murder instead of putting the

murderer to .death, has been

stupidly laid hold of by some

English authors and journalists as a national
reproach, which, with characteristic courtesy, instead
of overlooking as a thing of the dead past, they
delight to utilise. It would be foreign to my present
undertaking to discuss the abstract question, whether
it is better on the one hand when one man has been
killed to kill another and make no reparation to the
sufferers by the first death, or on the other hand, to
make reparation out of the murderer’s property and
spare his life. The latter course is prima facie the
more humane, and either side of the question is
quite arguable. It is with the superior critics I am

for the moment concerned. Those gentlemen with
199

 

 

 

 
200 THE BREHON LAWS.

their readiness to criticise must be assumed to
know, and with that delicacy of conscience by
which they profess to be moved might be expected
to state, that the law of making reparation for
murder, be it good or bad, so far from being
peculiarly Irish, was formerly almost universal. It
was practised by, amongst others, their own an-
cestors—that is, if it be possible to determine who
were the ancestors of a hybrid people. It was
practised by the ancient Greeks, and in later times
by the Lombards, Gauls, Franks, Swedes, Danes,
Germans, and Saxons, the only difference being that
while the laws of those nations imposed fixed and
rigid fines for the murder of specified persons, the
Irish laws always allowed fines to be reduced or
increased by mitigating or aggravating circum-
stances. The Anglo-Saxons called the price or
value set upon a man his wergild, the same as the
German wchrgeld, the amount of which depended
mainly upon rank and the amount of property
possessed, and the nature of which does not seem
to have at all differed from the Irish honour-price.
The wergild is met with all through the old English
laws. But one had better be specific. It is met
with in the laws of Ine, of Alfred, of Edward the
Elder, of Zthelstan, and of Edmund, who appears
to have encroached upon it. He did not extinguish
it, however, for it appears in the laws of Ethelred,
of Cnut, of Edward the Confessor, and of William
the Conqueror; in the latter case the mode of its
distribution being laid down, the largest portion

CRIMINAL LAW. 20I

being given to the widow of the man slain, and the
remainder divided among his nearest surviving
relatives. In the code or compilation called the
Laws of Henry the First, the wergild appears as a
clearly recognised part of the existing law, and the
amount of it is specified for parricide and all the
graver crimes committed by or against the various
classes from king to peasant ; and the only variation
of the fixed amounts that appears to have been
allowed was, that they might be increased if the
crimes had been committed on holy days, as Sunday,
Ascension Day, Lady Day, All Saints’ Day, &c.
These are historical facts recorded on authority
which Englishmen would be the last in the world
to question. Any one may read them, and it is an
Englishman’s duty to know and remember them
when he feels tempted to make himself ridiculous
by thanking God that he is not like the rest of men,
and assuming sanctimonious airs, to which nobody
but himself thinks he is entitled. It may be said
that they are very ancient facts. So are the Brehon
Laws. It was possible to compound a felony in
England until the power to do so was abolished in
1819 by the now meaningless looking statute, 59
George the Third, chapter 46. That is not very
ancient. Until 7 and 8 George the Fourth, chapter
28, was passed, a man who, fled from trial, forfeited
all his goods and chattels, even though as the result of
the trial he was acquitted. That is not very ancient,
Until 54 George the Third, chapter 146, the dead
bodies of victims of the law were not sacred. Of

 

 

 

 
 

202 THE BREHON LAWS.

course it will be argued, and with truth, that many
things are possible under the law long after they
have ceased to be practised ; and, you know, every
conceivable excuse must be urged when the English
character is assailed. Excuses exist only for English
consumption. It never at any time was possible
to say of the courts of the brehons as Hallam says
of the courts of the Tudors, that they were little
better than caverns of murderers.” And if we turn
to what was actually practised in England in times
still more modern, what do we find? We find that
a prisoner was not allowed before his trial to know
anything of the case against him, was not even told
the name of his accuser, was given no reasonable
opportunity for preparing his defence, while the
State paid for preparing the case against him; and
if found guilty—as well he might be in such cir-
cumstances, though innocent—the sentence might
be death, or breaking of limbs, or stretching on the
wheel, or cutting out of his tongue, or gouging out
of his eyes, or clipping of his ears, or a combination
of several of these. I should be sorry to suggest
that there is a decent Englishman living to-day who
would not shudder and blush at the long catalogue
of unfortunate human beings who, under every one
of the four Georges, were after every assizes put to
death or subjected to the other grim barbarities
mentioned, in many cases for offences for which a
flogging or a month’s imprisonment is now deemed
sufficient punishment. Those punishments were so
many fragments of the savage law of vengeance,

 

CRIMINAL LAW. 203

carried out, not by the sufferer or his friends, nor in
their interest, but by the State, and as likely as not
carried out on the wrong persons. They are recalled
in no spirit of antipathy to the Saxon, for though a
Gael of the purest blood I entertain none; nor are
they recalled to make him ashamed of his ancestors,
for we all have enough to do to keep our own lives
pure ; but they are recalled as common knowledge
which it is his special duty to possess, and the
possession of which should moderate his conceit to
becoming limits, since it shows that, after all, he is
not so much superior to the rest of men, and that
in this very matter in which he presumes so much,
we have at least as good ground for pride. No
doubt it is very good of him to desire that his
ancestors should be spoken of only with charity.
We quite agree—because they need it. For ours
all we desire is justice. His reproach amounts in
substance to this, that our ancestors were more
humane than his, and have not so much innocent
blood on their heads. But for his modesty no doubt
he would add, in further proof of our national de-
pravity, that our ancestors never had any witches to
burn, and never made the schoolmaster, as such, a
criminal. It would be to his advantage to remem-
ber, what he cannot prevent the world at large from
knowing, that his present perfection in this par-
ticular, as in many others of which he boasts, has
not been evolved from his own inner essence, but is
due to external influences acting on him, sometimes
acting very much against his will. There is ample

 

 

 

 
 

204 THE BREHON LAWS.

space in this world even for Saxon mediocrity in
borrowed Norman plumes; but it must not disregard
the fitness of things and presume to lecture where it
can more profitably learn.

Still, having resented cant, one is free to say that
possibly the principle of reparation would have given
place to the death penalty as in England, or (more
likely) would have been made an accompaniment of
the death penalty as in France, had Ireland been
ruled as those countries were by a competent central
government. For centuries its nominal government
was incompetent and external.

At a very early period in Ireland, as elsewhere,
the acceptance of eric may have been optional.
The family whose member had been murdered
might not seek eric, or might reject it if offered,
and proceed to revenge. Also, if a murderer unable
to pay eric was surrendered by his relatives to the
family of his victim, the latter might kill him if they
pleased if nobody intervened to save his life by
paying the eric. I believe the Brehon Laws do not
expressly forbid persons suffering actual personal
outrage to chastise a criminal caught redhanded ;
and there is even a passage translated in these
words: “A person who came to inflict a wound
on the body may be safely killed when unknown
and without a name, and when there was no power
to arrest him at the time of committing the trespass.”
The English law in force this day contains a pre-
cisely similar tacit allowance, even to the extent of
taking life. Then it must be remembered that we

 

CRIMINAL LAW. 205

possess not the whole Brehon Laws as the people
understood them, but only the parts written for the
guidances of judges and lawyers in the trial and
treatment of offences brought before them, that
much of human life never came before them, and
that some abstract considerations which occur to us
many centuries after date either did not occur to
them at all or did not clamour for settlement.

It is quite possible for the law of reparation and
lex talionis, or law of personal vengeance, to exist side
by side in the same country as alternative modes of
redress. Indeed, they appear to have so existed in
many countries. Eric itself may be regarded as a
species of retaliation as we use that word; but it
was a distinct improvement on the strict falio of
the Roman Law—S7 quis membrum fregit, ni cum eo
placit, talio esto. In pagan Ireland, as far as I have
been able to gather, a wilful murderer was regarded
as lost soul and body, and possibly even though eric
had been obtained his life might or might not be
taken at the will of the prosecutor. It is pointed
out with special care in the commentaries of the
Senchus Mor that the change effected by Saint
Patrick was, to let the murderer be put to death as
before if no eric could be obtained, but fo send his soul
to heaven ; and it adds, * for retaliation prevailed in
Ireland before Patrick, and Patrick brought forgive-
ness with him.” ‘At this day we keep between
forgiveness and retaliation, for as at present no one
has the power of obtaining heaven, as Patrick had at
that day, so no one is put to death for his intentional

 

 

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TERT + AAT

Mn

fai

Cg pl PAA A lt 1

Bp Te AE ML

TRS on cb LN RRR ATTN

——

 

,

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206 THE BREHON LAWS.

crimes as long as eric-fine is obtained ; and wherever
eric-fine is not obtained he is put to death for his
intentional crimes, and placed on the sea for his
ignorant crimes and unlawful obstructions.” It
might be inferred from some strong expressions in
Dubhthach’s poems that eric had been abolished
and the death penalty substituted, as where he says,
“ Let every one die who kills a human being ;” and
again, ¢ Every living person who inflicts death shall
suffer death.” Since, however, the immediately
succeeding generations of lawyers did not at all
understand that eric had been abolished, it in fact
was not abolished, and it would be idle for us to
understand its abolition.

There is great diversity of opinion among modern
writers who have noticed the Brehon Laws as to the
frequency or infrequency of capital punishment in
ancient Ireland. One says the death penalty was
the standing rule, and the payment of eric the excep-
tion ; while another says that eric was nearly always
paid in order to spare human life, and that therefore
the death penalty was rarely inflicted, except for high
crimes against the king or the state institutions, or
the disturbance of a public assembly. I rather
incline to agree with the latter view ; first, because
of several passages in the law to the effect that no
one is to be put to death as long as eric is obtained,
that an assailant is not to be killed if he is known or
can be arrested, and so on; and secondly, because I
have not found in the law any rules subject to which
the death penalty should be carried out. Hanging

 

CRIMINAL LAW. 207

is mentioned as having been carried out in political
but not in private cases. If capital punishment was
at all frequent, those laws, with their proneness to
detail, would certainly contain some such rules.
One of the punishments mentioned incidentally was
that of placing a man on the open sea, on some small
punt or wicker basket presumably. This was rather
exposing a man to death than putting him to death.
I cannot but think that some of the kindly Gael
would be on the look-out for an unfortunate man so
exposed, and, deeming his punishment sufficient, as
soon as the coast was clear would come to his relief.
There is ample evidence of various kinds that the
whole public feeling of Ireland was opposed to
capital punishment ; and still more was it opposed to
the taking the law into one’s own hands without the
decision of a court. Such a popular sentiment was
not law, of course, and never found a place in the
law; but during and to the extent of its prevalence
it was as good as law for all who obeyed it; and,
whatever their motive, in a country where the execu-
tion of the law rested with the people themselves, if
they did not execute it the law was so far superseded.
There was no public executioner; and among a
people who so respected the judgment of a brehon
the want of a direct death sentence must have
enfeebled the ordinary man going to imbrue his
hands in his neighbour’s blood, even though that
neighbour was a murderer. For these reasons I
conclude that, except for treason to the king and the
state institutions, our forefathers rarely put criminals
to death.

 

 

 
 

——ee

SNS ——
1 Taba p I IrRno p 7

QV) If SID De (aR,
RH iP (TARY ply Wis EEL NL ll ‘E Th 7

oy A x

SECTION IV.

THE MAIGHIN DIGONA.

AIGHIN DIGONA was
the name of a precinct of

around the dwelling-house of
every clansman, within which
the owner and his family and
property were inviolable. It
was sometimes a cleared space
the boundary of which was marked by trees or bushes ;
but whether thus perceptible to the eye or not did
not affect its reality. The English saying that every
Englishman’s house is his castle, is an illustration
of the spirit that prompted the maighin digona. The
sanctuary varied in extent with the owner’s rank.
In the case of a bo-aive it extended as far as he,
while sitting at his house, could cast a cnairsech.
This is differently described as a spear and as a sledge-

208

 

CRIMINAL LAW. 209

hammer. It was probably neither, but bore some
resemblance to both. It consisted of a head of iron
fastened on a wooden handle “ twelve fists ”’ in length.
The hand was commonly used as a standard of
measure, being considered four inches across the
palm at the roots of the fingers, six inches across at
the thumb with the thumb extended. On the end
of the wooden handle was a bocin (bokkeen) or horn
fixed crosswise, just as the Irish peasants are to this
day accustomed to fix bokkeens on the handles of the
tools they use. One throw of this instrument deter-
mined the extent of the bo-aire’s sanctuary, twice
this for the aire-desa, and so on, the distance being
doubled for each successive grade in the ascending
scale. Four throws and three score (i.e. sixty-four
throws) was the extent of the Rig-Tuatha’s sanctuary.
This is said to have equalled a thousand paces. In
some districts the sanctuaries of chiefs were measured
by the sound of a bell or the crow of a cock. A
provincial king might, if he pleased, assert sanctuary
over the whole extent of the plain on which his dun
stood. The bards and brehons appear to have had
the same extent of sanctuary as the rig-tuatha. In
Christian times bishops appear to have had the same
extent of sanctuary; whence, perhaps, it may be
inferred that in pagan times the arch-druids were
similarly favoured. An ollamh’s wand carried round
and over a fugitive anywhere protected him as did
the maighin digona.

The owner of a maighin digona was empowered to
extend its protection to a stranger flying from the

15

 

 

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CLA El A et WR SH

oa

«

 
 

ETRE." Le WE LF
FE

210 THE BREHON LAWS.

hue-and-cry ; but no stranger could effectually avail
of it without the owner's consent. If this consent
was obtained, the effect of the extension was to save
the stranger from the violent hands of his pursuers.

They could not pursue or meddle with him further,

but were obliged to resort to the legal methods of
bringing him to justice. They could summon him
before a brehon, and against this the sanctuary did
not protect him at all. If they violated the protec-
tion by continuing the pursuit and abusing the fugi-
tive, they incurred liability to the owner of the
maighin digona.

The owner of a sanctuary was bound not to allow
a fugitive to escape. ‘He who lets a criminal
escape is himself a culprit.” He might avert
violence, but not defeat justice. When asserting
his sanctuary he was bound to give the pursuer a
guarantee that he would not allow the fugitive to
escape; and if no actual guarantee was given the
law presumed a guarantee, and held the owner of
the sanctuary responsible for the original offence if
he allowed the prisoner to escape.

 

 

 

CHAPTER VIII.

LEGES MINORES.

SECTION 1.

MARRIAGE.

    
 
 

OGICALLY the subject of Marriage
should have been discussed in con-
nection with the account of the
clan system. But not being essen-
tial to that account, its introduc-
tion there would have further
confused a subject already suffi-
ciently obscure.

Under the clan system one
wl ; would expect to find the marri-

aws very important and clearly laid down; yet

notwithstanding the domestic familiarity of the Tews,
the information given on the marriage relation Is
surprisingly scanty, and of a disappointing character

211

 

 

 

 
212 THE BREHON LAWS.

too. The ancient Celtic family was not constructed
like the modern Christian family, and it retained its
form for some time after the people had become
Christian. What precisely that form was, and what
the principle of construction, being matters involved
in our lack of knowledge of the clan system, are now
subjects of more or less wild conjecture. My own
impression is that in reference to the small private
circle which we should call the family, it is not so
much knowledge of the thing itself we lack as know-
ledge of the manner in which the clan organisation
produced such a condition of things that the law was
rarely invoked in matters which are of frequent
occurrence in modern litigation.

So far as the laws show, the marriage relation was
extremely loose, and divorce was as easy, and could
be obtained on as slight grounds, as is now the case
in some of the States of the American Union. It
appears to have been obtained more easily by the
wife than by the husband. When obtained on her
petition, she took away with her all the property she
had brought her husband, all her husband had settled
upon her on their marriage, and in addition so much
of her husband’s property as her industry appeared
to have entitled her to. This latter would be little
or nothing if she had been an idle woman, a con-
siderable amount if she had been a good housewife
and producer of wealth. It was estimated in various
ways according to circumstances. Supposing there
was a quantity of flax or wool on the premises, if this
remained in the raw state until the woman obtained

 

LEGES MINORES. 213

her divorce she could take away none of it unless
she was able to establish a claim in some other way,
which she might do up to the value of one-eighth of
the raw material. If by her industry she had it “in
locks,” she was entitled to take away one sixth of it;
if combed, one-third; and so on; the assumption
being that she had made these improvements. In
making these calculations various matters of set-off
arose with which we need not trouble ourselves here.
The law seems to contemplate a woman being
divorced from her husband and marrying him again,
and even doing this more than once. Possibly
divorce is a redundant translation, that the marriage
was not considered completely dissolved, and that
separation would be more nearly correct.

According to these laws a man might purchase a
wife ; from which it would follow that what a man
might buy he might also sell. The English laws of
Aithelbirht and of Ine distinctly provide for the
buying of a wife. The Irish laws have much more
to say about the abduction than about the purchase
of wives. The laws recognised three relations
between men and women. In the first of these
stood ““a first lawful wife ;”’ in the second a first
lawful adaltrach-woman ;” in the third ‘‘ an adalt-
rach-woman of abduction.” All were legal relations,
and could not be dissolved except by the will of both
parties or by legal process. These relations are not
defined ; but I believe that the first was the only
one that had a religious sanction, and that the
second and third were merely civil relations, the

 

 

 

 
 

214 THE BREHON LAWS.

third being distinctly stuprous and of itself scarcely
conferring any right.

Apparently the law on marriage and the dissolu-
tion of marriage was wholly pagan, and never
underwent any modification in Christian times;
perhaps because it was little resorted to except by
the wealthy, and they had sufficient influence to keep
it unaltered. Besides, it is impossible to know how
we may err in attempting to apply laws to a form of
society which we do not understand. I am con-
vinced that the law on this subject must not be
taken as presenting a true picture of ancient Irish
life, not because the picture is an unfavourable one,
but because outside the laws there is overwhelming
evidence that this legal picture is unjust, that
singular purity characterised the Irish in the past as
in the present, and that women occupied in ancient
times a position as honourable as they occupy now.
It is one of the many cases in which the law is more
concerned with the few who invoke it than with the
many who never invoke it during their lives.
Probably all the value that should be attached to
the law on this subject is that it marks the extreme
limit of libertinism.

 

 

 

SECTION II.

FOSTERAGE.

  
  
 

Ni. OSTERAGE was such an important
feature of Irish social life that,
although only a custom, elaborate
rules relating to it were laid down
in the laws; and we cannot omit
noticing the subject, however briefly.

Fosterage was the custom of placing
children during their minority in charge

of other members of the clan. It was
usually restricted to members of the fine, which has
been described and which chiefly consisted of persons
within the fifth degree of kindred ; but there was no
strict rule on this point. It was practised by all
classes, but especially by the wealthy, by chiefs and
leading men. It is not clear what, besides the force
of habit, was the motive for it; but its practice,
whether designed for that end or not, helped materi-

215

 

un

ak a ites
————— To

 

 
   

 
  
 
   
 
 

  

216 THE BREHON LAWS.

ally to strengthen the natural ties of kinship and
sympathy which bound the chief and clan or the
flaith and sept together. Quite apart from law, the
relations arising from fosterage were in popular
estimation the most sacred of the whole social
system, and a stronger affection oftentimes sprang
up between persons standing in those relations than
that between immediate relatives by birth.

There were various kinds of fosterage, and minute
rules are laid down for all, especially with reference
to the mode of treating the children in fosterage
according to the position they were intended to fill
in after life, the amount payable by the different
classes for the different kinds of fosterage, the rela-
tions between the child and its foster parents both
during the fosterage and after, and various other
matters. Foster parents were bound under heavy
penalties to teach their foster children or have them
taught, whether boys or girls, the branches of know-
ledge, business, trades, or exercises suited to their
rank. During the fosterage the foster father was
liable for injuries and offences committed by the
foster child, and entitled to compensation for any
injury done to the foster child.

A peculiar variety, called literary fosterage, was
practised by ollamhs. Ollamhs taught pupils of the
ordinary sort in the ordinary way, for payment or
for nothing according to circumstances; but they
also took a limited number of pupils into a particu-
lar kind of fosterage combined with pupilage,
adopted them into their families, and so thoroughly

 

LEGES MINORES. 217

imbued them with the spirit of the profession they
were about to enter that the original family ties of
those pupils became as if they had never existed.

As a rule a child was not sent to fosterage until it
was one year old. ‘ There are three periods at
which fosterage ends: death, crime, and selection.”
Selection meant marriage; and the legal age of
selection was reached by girls at the end of fourteen
years, and by boys at the end of seventeen years.
Foster parents who had properly discharged their
duties were entitled in old age to be supported by
their foster children, if they were in need and had no
children of their own.

The law of fosterage seems to search out, ransack,
and provide for every domestic possibility. It is
perfectly amazing to find so many rules relating to
domestic economy, and to contrast the modern
absence of rule on such matters. Let me give an
illustration. Expounding the cain law of fosterage
some worthy ollamh writes in this fashion—¢ What
are their victuals? Leite=stirabout is given to
them all; but the flavouring (literally dip) which
goes into it is different; namely, salt butter for the
sons of the inferior grades, fresh butter for the sons
of chieftains, honey for the sons of kings. The food
of each continues the same respectively until the
end of one year, or three years [according to the
kind of fosterage]. Stirabout made of oatmeal on
butter-milk or water is given to the sons of the
Feini grades, and a bare sufficiency of it merely,
and salt butter for flavouring. Stirabout made on

    
    

 

     

     

 

 

 

 

        
      
 
      
   
 
  

 
 
 

 
  

cp

TR EA hs A vi

—

 

 

   
 

 

218 THE BREHON LAWS.

new milk is given to the sons of the chieftain grades,
and fresh butter for flavouring, and a full sufficiency
of it is given to them; and this stirabout is made
of barley-meal. Stirabout made on new milk is
given to the sons of kings, and it is made of
wheaten meal, and honey for flavouring.” This
passage will convey an idea of the small matters
of which the law took cognizance. Skene, the
author of Celtic Scotland, says that the word “ stir-
about ”’ is unknown out of Ireland, and quoting this
passage he substitutes the word porridge.”

 

 

 
   
 

SECTION III.

CONTRACTS AND WILLS.

{Q)ONTRACTS
ne” between indi-
viduals do not
assume great impor-
tance among a people
organised in clans until
clan responsibility has
S— begun to give place to

the responsibility of individuals. The provisions
of the clan system, coupled with the simple country
life of our ancestors, left little occasion for contracts
either of the commercial sort or under seal among
them; and the same system so fully provided for
the devolution of their property after their death
that there was hardly any occasion for wills. In
transferring property in goods, barter, which was far
more extensively employed than true sale, was in
general more conclusive and gave rise to fewer

219

Qo.
0
os
-—t

 
 

     
 
 

 

 

  

     
   

 
   

 

 

   

220

   

THE BREHON LAWS.

questions for legal decision. Contracts relating to
land were not numerous. They could in general be
made only with the concurrence of the sept and in
the presence of a flaith of high rank called the
Aire-forgaill. Some written contracts relating to
land have been preserved, perhaps from the four-
teenth century; but while other writings of ap-
parently less private importance are carefully dated,
these are without date. It is at first sight strange
that written contracts and wills were so little used
among a people so addicted to writing on other
subjects. The explanation is, that the clan system

rendered them unnecessary. They were exceptional

and foreign to that system, and while it continued
in effective operation the amount of property affected
by contracts and wills was probably not great.
Nevertheless, some rules relating to wills are laid
down in the Corus Bescna ; and the Senchus Mor
contains a good deal about contracts, from which
it is clear that warranty on the sale of goods was
well understood and frequently given and taken;
and the importance of a valuable consideration, not
generally recognised in English law until the last
century, was perfectly well known in Ireland.
Anything done without valuable consideration is
described as done “for God’s sake,” and imposed
a very slight if any legal obligation on the other
party to it. From the expression frequently used
that ‘Nothing is due without deserving it,” we
must infer that a valuable consideration was
essential to the binding of a contract of any kind.

 

LEGES MINORES. 221

It also appears that to form a contract perfect
and legally binding a witness was necessary, that
this witness should in general be of the tribe of the
party on whom the performance of the contract lay,
that his status was an important legal element, and
that by acting as witness he incurred the liabilities
of a surety.

Many rules are given as to the times within which
in different circumstances sales might be set aside.
A contract of two sane adults, with knowledge and
warranty, might, on fraud being discovered, be dis-
solved in twenty-four hours. Without knowledge
and without warranty it might be dissolved for ten
days after the fraud was discovered. In both cases
the ‘knowledge ” is that of the buyer. The law
seems more concerned about the state of the buyer’s
mind at the time of the purchase than about that
of the seller.

Ratification of contracts made by persons under
subjection and therefore not fully entitled to contract
was also well understood. One is held to adopt
what he does not repudiate after knowledge, having
power.”

From a passage I have quoted it would appear
that, as in English law until recently, a married
woman was merged in her husband while he lived,
and could not be bound by any contract made by
her. This, however, is subject to some qualifica-
tion, for it is clear from other passages that a
woman could contract, in the presence of her
husband, to the amount of her own honour-price.

            
         
      
      
       
       
         
   
 

 

 

VO pid abi
 

 

 

        

 

  

 

222 THE BREHON LAWS.

Few married women had either taste or occasion
for asserting what are now called women’s rights.

A boy was deemed to have no sense until he was
seven years old, only half sense from seven to the
end of his fifteenth year. Even after this period
he had strictly no power to contract so long as
he remained a member of his father’s household ;
but if he did make a contract with his father’s
knowledge it was binding on the father unless
promptly repudiated. If once ratified by the father
it was treated as his contract.

Monks on becoming such lost the capacity of
contracting; but a monk who became abbot, or
was appointed to manage the temporal affairs of
his community, was allowed to contract on behalf
of the community.

The non-free had very meagre powers of contract-
ing, and the lowest grade of them had none at all.

 

 

 

    
  

— eee

eo CP e——ar rr
YY) Vr

  
   

   

rh et =

   
  

     

 

SECTION IV.

ARTISANS.

in these ancient laws relating
specially to artisans. The ordi-
nary law applied to them as to
other people, and they were not
sufficiently numerous to call for
special treatment. We are told
that their social status was determined by the
rank of those for whom they worked. If this was
so, its effect in practice probably was to make the
position of artisan to a chief an object of ambition
in each particular craft and the reward of superior
skill in that craft; and if the artisan continued to
progress, his status would rise pari passu with his
skill—a very just arrangement. Workers in gold
and others who practised what might be called fine
arts, the results of which were required only by the

223

 

  

i
i
4
i]
$
He
{
|

   
   
   
    
 
 
 
 
 
 
 

  

 
    
   
    
   
 
 
 
 
 
 
  
 
 
 
 
  
  
 
 
 
 
 
 
  
 
  
 
 
 
 
 
    

 

224 THE BREHON LAWS.

wealthy, must under the same arrangement have
stood high in the social scale. Smiths, too, were
always held in high esteem. Some of the more
important artisans were supplied with free lands for
their support ; others were paid wages, which appear
to have been fixed, in theory at least, by the law.
We have already noticed the power of artisans to
form guilds or partnerships in virtue of which they
could acquire political and social rights; and we
have also noticed some liabilities connected with
their trades, in the chapter on crime.

It was customary with artificers, on completing a
work and delivering it to the employer, to pronounce
a blessing on it. So strong was the feeling on this
subject, that a workman who refused to give the
blessing was fined. It would seem that the first
who saw a work newly finished by another was also
expected to bless the work. This was extreme
sensibility ; but as the blessing was general the
shock caused by its omission was great. When I
first came to London I was shocked on meeting
persons asking alms without adding the words, “ for
God’s sake,” and taking alms without uttering a
prayer in return; for neither is ever omitted in
Ireland.

 

  
 
 
 
 
  

      
 
 
 
 
  
 

 

tS PERLE IRS
NSS lig
ONT
\ / p

SECTION V.

OATHS.

  
  

.
Sia

a2 HERE does not appear
to have been at any
time in ancient Ireland one
fixed form of oath or manner
f: of swearing in legal proceed-
ings. The Brehon Laws do not tell us much
of how our pagan fathers swore. There is no doubt
at all that they did swear; and, if writings not of
a legal character are to be trusted, they swore on
solemn occasions by the sun, moon, wind, and other
elements, the dew, the crops, and the countenances
of men. Ugaine Moar, before his death in A.M. 4606,
: exacted oaths, by all the elements visible and
invisible, from the men of Erinn in general that
they would never contend for the sovereignty of
Erinn with his children or his race ”’ (Four Masters).
In Christian times a similar variety of oaths pre-
16 225

 

FAI

 

I 5

SRNL Sal
hits

A ln

 

  
    
    
    
  
 

 

 

THE BREHON LAWS.

vailed, all differing in legal value. The oath of
highest value was that taken on the Gospels ; but an
oath taken on a relic, on 2 shrine or reliquary, or
on a bishop’s crosier, was also deemed very solemn
and binding. Again, the value of the oath differed
according to the place in which it was taken.
Sometimes it was taken in the house of the person
swearing, sometimes at the grave of those dearest to
him, sometimes in a court of justice, sometimes in a
church before the altar. That at the grave was
probably of pagan origin. In some cases the oath
was not a simple oath, but a triple one; the person
swore first standing, then sitting, and then lying, as

he spent his life.

¢ The king exce
his mere word, decide aga
except those of the two orders 0
ing who are of equal rank with him.”
generally so in monarchies.

226

Is all in testimony, for he can, by
inst every class of persons,
f religion and learn-
This is still

 

   

CHAPTER IX.

  
 

NATIVE, NOT ROMAN.

E \ ST . . .
; A Tp n iy in the State Papers by an English
{A 1al in i
b J reign that, b Sealy wg aes
; nechas is
i the sivill law; ” and one
ly repeated even to the i
5s hat the statement is, however
fang S a than Incorrect, might easily be
oowr | y Soe through both the Civil
e Irish law seriati

. . In.
7 ojem bi treatise, without being Wh oe
iantis 8 78 gi purpose, will render this
Pine : . ere are no two syst
RY wai I have any knowledge which 1 :
Sons _some points in common. It wo Hd gi
os ge tds if men devising rules for the Dl
ed uman conduct, and for determinin i
a ghts and obligations, did not happen “de

same expedient occasionally. Their Fb

227

 
    
   
  
 
  
   
  
   
  
  
 
 
 
 
 
 
  
  
   
  
  
  
  
  
 
  
  
  
 
  
   
   
 

~ a

—

nr TT et CAT

228 THE BREHON LAWS.

so proves their common humanity. To prove the
alleged derivation much more is required. But the
fact is, that in the Brehon Laws such coincidences
with Roman Law are really fewer than might be
expected without derivation at all. The coincidences
with Hindoo Law are actually more numerous; yet
no one suggests that the Brehon Laws are derived
from the Hindoo.
Some rules of church law, itself based on the later
Roman Law, were introduced obviously by the
Christian clergy, and affected mainly themselves
and their interests. They are fewer and less im-
portant than might have been expected, owing to
the Celtic organisation which the Church early
assumed, and for many centuries retained. There
is also the supposed resemblance which the collec-
tion of laws called the Senchus Mor bears to the
Roman collections called the Digest and the Pan-
dects. To press this as a proof of derivation would
be absurd, for there is really no more in it than in
the resemblance in distant perspective between two
trees in a forest. The laws were collected as they
existed; and if when collected they happened to
resemble some other collection, there was nothing
to wonder at, the laws could not help it, and it does

not prove their derivation from that other. Analogies

are very tempting, but often misleading; and such a

superficial analogy as this would be a very unsafe
guide. If the Brehon Laws had been at all derived
from Roman Law, the resemblances would have been
far more numerous, intimate, and vital, the whole

 

NATIVE, NOT ROMAN. 229

juridi

2 “ onl sragunamoinld probably have been different
Ba ti th hv itself some of the Roman technical
od yo been adopted, as in all countries
thst dig y copied from Roman Law. None of
a 2 2nd in the Irish manuscripts.
ron of A laws are as old as the Roman
Sone ir ether they are good or bad, credit-
BOP br oth sts our race, they are essentially
Soman hy and characteristically Irish. Sir
Rema rer A a the literal truth when
as tae 1 (or Civil) Law is hardly
Be ad that +10 Ti a Sgurds coclesiastical

it iri :

is Logs Gastoing to suggest whether they would
derived from Riven hs hes : a
s : , 1t may be interesti

pe a on in ie Irish laws were in several a
DE et an the Roman. The Irish flaith-
fay nove 34a time had power of life and death
i ers of his household, as the Roman
rept es had in early times
RaSh WI « ee to the treatment of strangers: at
iy ore ny a an alien was an enemy, who
Bn ed, whose property was res nullius
any © ox might seize, and who had no locus
Bo a pl), Dla
5 itled to sympat 1
o pasty is not be taken from him, hem os
Des is he Sh 2 gon of law, but he was allowed
choose. judge. “ Whenever a person comes

ea to prosecute a cause, he shall have a

CAR

 
230 THE BREHON LAWS.

choice of the Brehons of Erinn ; and when he shall
have come across the boundary of a province, he
shall have his choice of the brehons in the pro-
vince.” We have already seen that unjust evasion
of a stranger was punished as fraud.

There was much resemblance between the Irish
laws and those of ancient Britain, so far as the
latter can be discerned through the native Welsh
laws, between which and the Irish there is a good
deal in common. All British laws were modified
under Roman sway, which Ireland escaped. Of
course the laws of the Gaels of Scotland were
originally our laws transferred to Scotland. They,
however, underwent considerable change, for feudal-
ism was vigorously forced upon Scotland in the
Middle Ages.)

CHAPTER X.

CONCLUSION.

Hibernice : Th Lusi
( : The Conclusion Begins Down Here.)

2.7" HE Danes were the
first wreckers of

purely Gaelic institutions in
Ireland. Though their power

; was broken at Clontarf, so
also, in the death of Brian and his son, was
destroyed the rising hope of an immediate and
thoroughly national restoration of Celtic institutions
and forms which had been interrupted. The inter-
ruption becoming permanent, the spell of attachment
was broken, and some of those institutions and forms
became definitely extinct. Instead of a speed
return of vigorous national life, there was a state i
doubtful oscillation between relapse and conva-
lescence. Recovery was not complete when the

n
231

 

 
 

 

 

 

 

i
i
5
§
cf
g

ii

i
|
i
i
!
i

232 THE BREHON LAWS.

Anglo-Normans came and put an eternal period to

its progress. The Celtic system was indeed main-

tained over the greater part of the country; but

only in its shattered and incomplete condition, and

only with a view to the interests of isolated and

rival communities or rival individuals ; never

universally or with a view to the interests of the

nation as a whole, and never with the old unques-

tioned power and full reverential obedience. The

Anglo-Irish, wherever they were sprinkled through-
out the country, except the Pale, did in the main
adopt Irish laws, language, dress, and customs; and
such of them as attained sufficient power became
Irish chiefs, and appointed their own brehons in the
Irish way. But the nation considered as a political
unit had lost the essential organism and attributes
of a state, and the statesmanship of England was
directed to the prevention of re-organisation and the
fomenting of disorder. In obedience to this states-
manship a so-called parliament, consisting mainly of
self-elected English officials, was held in Kilkenny
in 1367, and an Act was passed, written not in Irish,
nor even in English, but in Norman-French, brand-
ing the Irish as enemies, and penalising the adoption
of their dress, manners, language, and laws.
Various other measures conceived in a like spirit
followed. They were not immediately successful in
their direct object; but they were too successful in
sowing discord among people who wanted only to be
let alone, and they armed and created an opportunity
for miscreant adventurers hungry for a morsel of

 

    

CONCLUSION. 233

prey. This latter was the main object of those
measures. The trade of fomenting disorder throve
apace. It was the only trade that did. The Gaelic
race, with its peculiar institutions, national and
domestic, was kept disorganised until disorganisation
became its normal condition. It was not so much
that civilisation was undergoing a change as that it
was being strangled. There were two nations in the
land, animated not by a desire to evolve a better
condition of things, but by a mutual desire to thwart
each other at every hand’s turn. Neither was able
to establish a central government of its own of suf-
ficient potency to enforce its own views. Each was
able and willing to prevent the other from doing it.
It is doubtful that either correctly understood the
true remedy of the evil they jointly created; and
certain that they would not have adopted the true
remedy if they had understood it. All over the
country, except the Pale, the Brehon Laws, like sun
through storm, prevailed in some way ; for other law
there was none.

The so-called parliaments held before the reign of
Henry the Eighth were organised mainly by hungry
adventurers and in their interest, and consisted of
themselves, their friends and connections in office,
and knights of the Pale. Hardly any Gaelic Irish-
men attended them, and many were unaware of
their existence. During the reigns of Henry the
Eighth, Edward the Sixth, and Mary, a semblance
of English institutions gradually grew upon the
country, not by reason of their superiority, but

  

 

 

Ln La AB Nl > or fi
 

 

 

  

 

 

i —————

w Lt RE SSA

234 THE BREHON LAWS.

partly with the hope that their adoption would, as a
concession to English prejudice, contribute some-
what to peace, and partly owing to the enforced
decay of all that was native. I need not tell how,
in Elizabeth’s bloody reign, the hope was blasted,
the work of destruction carried on by fire and sword,
craft and poison, and Teutonic institutions set up on
the ruins. The great transformation was completed
under James the First, and confirmed and rendered
irrevocable under Charles the First, Cromwell, and
William the Third. Such old brehons and ollamhs
as may have been then living sank into obscurity
and into the grave without successors. Night had
fallen on the Gael, and Justice as a living presence
had been banished from among them.

In the third, fourth, and probably all future
volumes of the Brehon Laws the student will find
elaborate introductions written by the editors, no
doubt in good faith, for his guidance. From the
same volumes he will miss the simpler and safer
Gaelic guidance of O'Donovan and O’Curry. He
will soon realise that he has passed into the hands
of men of Teutonic instinct, training, and sympathies,
and under alien, if not unfriendly guidance. Should
he be so much in earnest about his subject that his
guides do not succeed in disgusting him with it, as
they are apt to do, he will begin to realise that it
would have been just as well for his progress and for
their reputation if those elaborate introductions had
never been written. When he has begun to relish
and digest the Brehon Laws in spite of the introduc-

      
   
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
  
     

CONCLUSION. 235

tions, his success in acquiring a knowledge of them
is assured, and the rate of his further progress will
correspond with the rate at which he frees himself
from their guidance.

As a classic poet may be translated in such a way
as to make him look ridiculous, so it is conceivable
that of two presentations of these laws equally true
in substance one may be positively unfair. Without
being intentionally unfair, those introductions are
distinctly so in effect. Originating in a Teutonic
mind, they are based on the initial assumption that
the Teuton alone of all mankind is capable of devising
and attaining perfection in legal and political institu-
tions, and that the Irish Celt is incapable of either
devising them or adopting them when devised by
others. The notion is so grotesque as not to be
worth contradicting. But why has its expression
been given a place in our national documents? It is
clearly the offspring of mental bias, however acquired
or however unconscious. The sum paid to this un-
Irish editor was, I fear, too small; yet it was prob-
ably quite as much as his Irish predecessors had been
paid, and so long as he did take it one cannot help
thinking that he might have been a little more polite
towards a nation good enough to pay it.

Of many passages in which the Teutonic type is
set up as the standard of perfection and anything
differing from it stamped as barbarous, one sentence
taken at random will be quite enough as a specimen.
“An act is criminal in the correct use of the word
when it is regarded as an offence against the State.”

eR A PEL

    
 
 

 

 

236 THE BREHON LAWS.

Observe the word “correct” What does it mean
here ? It means “ English.” Or, expanded, it means
¢ In accordance with the present English theory of
crime, in which I have been instructed.” The editor
seems quite oblivious of the fact that if he had been
instructed in a different system his “ correct” would
have a different meaning, that if he had been in-
structed solely in English law of a past age his
« correct ” would have a different meaning. Which of
these meanings, then, would be truly correct? I
think none of them. In such matters there is no
such thing as perfect abstract correctness universal
and eternal. The most correct in one set of circum-
stances might be the most incorrect in another. To
set up any one system, however good, as the only
correct system for all mankind in all ages, is not
alone incorrect, but is absurd arrogance. Our
ancestors happened to think, as some of ourselves
think, that a wrongful act, knowingly and wilfully
committed against another person, contained in itself
all the essentials of a crime, irrespective of the
manner in which the State regarded it. Of course
this alien editor would object that thisis confounding
the moral view with the legal, a thing abhorrent to
an English lawyer. A brehon would ask in astonish-
ment, What harm if they are confounded ? If the
moral view is enforced by law it becomes the legal
view as well, and there is harmony instead of un-
natural antagonism.

An exponent of Gaelic law who can, without seeing
the impropriety, write of English law as our ancient

CONCLUSION. 237

’

law,” as Mr. Richey does, appears to me to stand
self-condemned. It is a confession, if it be not a
boast, that he must not be regarded as a native
exponent. Deliberately taking up the position, not
of a friendly editor, but of a foreign and more or less
adverse critic, he scrutinises his subject from aloft or
from without. To him these are at best ancient
laws, and at that only Irish ancient laws. To us
they are much more. They are OUR ANCIENT LAWS
emphatically. Nations, like individuals, have their
heirlooms, which they do not like to see disrespect-
fully used. If a Scotch advocate were stupid enough
to commit in a treatise on Scotch law such a blunder
as that just pointed out he would be completely dis-
credited. It is only for Irish laws this treatment is
considered good enough.

The matters in which the foreign mind ot the
editor manifests itself are mostly small, taken singly,
but scattered over a volume or two, positively in
statements and negatively in omissions, they produce

‘a lasting effect. Even defect of knowledge which

hundreds of living Irish men and women could have
supplied is to be met with; as where a note of in-
terrogation is inserted after the word dilesc, a form
of duileasg, the name of a sea-plant well known
under both its English and its Irish names all round
the coast, and to be seen on the stalls of market
women. The editor apparently did not condescend
to ask information from such people.

To acquire perfect knowledge of a difficult subject,
as to acquire skill in a difficult art, one needs the

 
 

 

 

238 THE BREHON LAWS.

inspiration and guidance of some degree of affection,
or at least tolerant sympathy. Unless he takes the
ideas to himself, and warms them in his own breast,
they are like stricken roses which never open, and
he inevitably misses or misunderstands some portion
of them. To be able to present in the English
language a true picture of the Gaelic laws, one
requires much more than philological knowledge,
literary skill, and a keen legal perception. He
obviously requires to imbibe the Gaelic spirit to some
extent if it is not naturally his. Why not? Other-
wise “it is the lark and not the nightingale.” He
requires a heart attuned to the Gaelic pulse, a mind
capable of understanding, for the time at least, the
Gaelic mode of reasoning: and this necessity is
rendered not less imperative but more so by the fact
that the Gaelic pulse now beats low and has done so
for some time past. It does beat still, and may even
yet beat strongly once more; for it is the native
pulse of many who now know it not. Still * There is
many a man of the race of Conn in beautiful Erinn
of the smooth grass,” and many more elsewhere.
No one can expound those laws unless he under-
stands them, and to understand them one must
treat them respectfully, somewhat as one would
treat flowers he had found preserved amongst the
leaves of a deceased friend’s book, or the cerements
of a mummy. They will not yield their sweetness to
him if he tosses them disdainfully as with a pitch-
fork. It is a privilege to be allowed to meddle with
them, and ought not to be done as though it were an

 

CONCLUSION. 239

irksome task grudgingly performed. The editor of
whom I complain has not squandered any affection
on these laws. What one does not respect he does
not warm in his bosom. One does not imbibe a spirit
he despises.

I am quite aware that opinions such as mine have
to contend, and often to contend in vain, against
the universal disposition, unusually Leiloped in the
Teutonic temperament, to spurn the suggestion that
any people have peculiarities which outsiders cannot
understand as well as themselves. This disposition
is fortified by the acknowledged importance of seeing
ourselves as others see us. The vision of others
may be true, while our own may be partial. The
opinions of an unfriendly critic may be sound, so far
as he understands the subject. My contention is
that the principle of seeing ourselves as others Fo
us may be carried too far on one side, that so far as
it is good it is universally applicable, that Teutonic
peoples do not pay us for telling how we see them
that there is much in human life and manners which
outsiders never can by any means perceive, and not
perceiving never can understand or describe, and
that the translation of our own laws at oe own
expense was an occasion when the Gaelic view was
unquestionably the view that ought to have been
presented above all others.

No one presumes to claim that either the laws or
the brehons were perfect. They would indeed have
been wonderful, and out of place in this world, had
they been perfect. It is very easy to point out

 
 

 

 

 

240 THE BREHON LAWS.

imperfections in both. The laws were in many
respects painfully restrictive, in many crude and
seriously defective according to our conceptions.
But why should we expect the Brehon Laws, any
more than other leges barbarorum with which they
may be classed, to suit modern conceptions or to be
adaptable to the complex texture of the modern
world ? They were never intended for that. If
they suited ancient cor:ceptions they fulfilled the
object of their institution. That they did this to as
large an extent as any other laws, past or present,
is sufficiently established by the enormous length of
time during which they continued in force, and in
force, remember, by the will of the people. In con-
sidering them it should be borne in mind throughout,
but especially when any startling feature is met
with, that it is not with modern laws they ought to
be compared, but with those of their own time.
This test they bear well, so far as it can be applied ;
and from such a comparison we have no occasion to
shrink. But the fact is that few modern nations
possess material sufficiently old for instituting this
comparison, and what they do possess of ancient
date is mainly concerned with crimes. To be sure,
the Irish laws ought to have been gradually adapted
to the changed conditions of the people. But then
they would have lost in the process that archaic
character in which their chief interest now lies.
Even now, tried by our modern consciences and
searched by our modern lights, they afford sufficient
evidence that all perfection is not modern. Side by

 

CONCLUSION. 241

side wi

dig gi and equally archaic with it, are
Sone P 5s which modern legislators might
or in in The desire just now so
preslens oun courts of arbitration and concilia-
igh i ow Bran! tribute that could be paid

ancestors, as shown i
Cael Shesaster of the brehon’s ri
By comps ot and impartial reader of these laws
PI mls oF their merits far outnumber their
ees cy were animated by a spirit of
i esire to secure fair dealing, especially
Lm 4) es that security, and that they
Pore a Ai itable as an attempt to harmonise
Co ng sig i", These must always be important
Sites Ly ; and that they should be attained in
Eig coy In its own way is the important
fg doa mann of their attainment. The
Ay It A sss toe ey
: uniform anywhere.

Eos Smarhably Just character of a Brolin
Las fas een attributed to the fact that for cen-
je hey were not meddled with by rulers or
hile, 1 Frigh moulded to a large extent by the
pee Ts whe Qeapd a neutral position. This, if
} Je cours: , adds to the merit of the brehons when
J Is Jpuinded that throughout the whole
ea nglish law what is judge-made can nearly
rays be traced by its execrable character. y
2 - Flo every respect the Brehon Laws bear
Soper n very well with English laws not so old
nglish laws from the time of Alfred, and perhaps

17

 
 

 

a
a”

 

 

BREHON LAWS.
242 THE

i day, have been con-
t. down to the present day, een CO
en disfigured by hardships and disabilities
ins A upon people on account of their Sligo o
ne want of religion, and by ghastly, absur : i
nerally vain efforts to force people's Sons 5
of course there is not a trace of these a
be found in the Irish laws. Our pnosstonh ea e
elves, had faith in reason and good examp fain
he thumbscrew. They thought that pend, i
i to criminal acts, an
ht to be applied only ;
i consciences of harmless people ought to be le
ons odious system of torture eo the or, 0
i i by which evidence
n in the Middle Ages, > W
a or boiled, according to taste, out of unwilling

’

i in
persons perfectly innocent ; this was never Hoon A
i in the Pale.
nd, except possibly 1n i
he about it in the Brehon Laws. Beg
ar short of an excuse when their own Eo a
utation is concerned, have no better to oy
i ractice of the ordeal than that it was wi oe)
Sr this poor excuse, however, is not vali Th
oe though Ireland is, a thing never pra
was not universal. :
io with more direct regard to the eens in
llamhs, any modern reader will be at once os
: ith the want of scientific arrangement in het
ork and with the manner in which They ope 2
pe i iddle, so to speak,
ubiect, in the middle, !
De Anti as we should desire. Languag
a

 

 

CONCLUSION. 243

apparently simple is found to be most difficult and
disappointing for want of the primary foundations
and proper definitions. Initial facts and principles
are assumed, not explained. We constantly feel
that only a part of the law is revealed to us, the
writer assuming that we know the rest. Nowhere
is an attempt made to grapple with any branch of
law and give a complete exposition of it throughout.
It is easy to point out defects like these, because they
lie on the surface, and are the first a reader
encounters. They are serious obstacles, and may
disgust him ; but they do not affect the law itself.
They are but its shell, a rough shell, which must
be cracked before the kernel can be reached. To
murmur against the brehons for these defects would
be about as reasonable as to murmur against them
for not having delivered judgments into phonographs.
This is the nineteenth century, not the tenth. The
brehons did not live in a scientific age. Are not the
very defects of their work interesting, if not instruc-
tive, to us? Should our little difficulties prevent
our appreciating the enormous difficulties they had
to surmount? Though most of the matter we have
been considering was written more than a thousand
years ago, much of it is marked by a clearness of
expression which modern Acts of Parliament do not
always attain. The connection of the brehons and
ollamhs with the law was too long and intimate to
allow of our entirely withholding either praise or
blame from them as the laws may seem to merit.
But before blaming we should be very sure that we

 

 
 

 

 

 

 

REHON LAWS.
244 THE B

understand. We should remember that with our
best efforts we can never acquire more than a
partial knowledge of these men and their laws. We
can never successfully free ourselves from our ova
surroundings, and cast ourselves back into 4 eir
world, or revive its conditions around ourselves.
The brehons and ollamhs knew, far better than ve
can ever realise, what an inadequate picture gf
themselves and their laws these writings wou
present if a time should come when no other pane
remained, nor living voice to tell the gh e
this, wherein it is full, wherein it wholly : >
That time has come, and to 1t and our imperie
vision much that is distorted or unintelligible may
-v justly be attributed. :
YT oon of legal history, Roman and Engh,
will turn from exasperating auspices and fantas ie
ceremonial, and all the cruel delay and je
which these were the guilty occasion, and wi Sve
credit to the brehons for their manly good Se 2
not inventing artificial meshes for their own 8 oy
the feet of those who sought justice at harps i
That a man had moral right on his side 3 a
matter a pin’s point to the old-fashioned jus gor ot
Rome and of London if their fantastic technica 1 jot
had not been complied with. In no instance In be
Brehon Laws have I met with an outrage Sogn
justice for the sake of mere form, a thing ite
common under the Formal system at Rome, ous
common in England until a few years 880; oa
possible even now, as in the case of Kendall ve

Hamilton.

CONCLUSION. 245

The brehons of the Gaelic decadence, owing
mainly to political causes, have left us little whereby
to gauge their capacity. For this it would ill
become us to blame them. It is a mistake to
suppose that to transmit judgments to posterity to
criticise is at any time the highest duty of a judge.
If in the disorder of their times they managed still
to make just laws prevail amongst their contem-
poraries against the law of the strong hand, they
performed their whole duty, and a difficult one it
must have been. Through no fault of theirs their
rulings, once executing themselves proprio vigore,
were no longer universally obeyed. Their sphere of
influence was shrinking, and with it virility of
thought. We, however, cannot be indifferent to the
fact that if they had neither the ability nor the
opportunity to add to or develop the laws, they had
at least the judgment and grace to preserve them.
It is easy to be wise after events, and to point out in
what respects things might have been better had
they been managed differently. It is easy, but not
brave, to censure those who cannot return to explain.
Not even the wise men of the nineteenth century
can penetrate far into the future, nor do they always
understand the hidden springs of their own conduct
or the drift of their own acts; and in their most
pretentious efforts they may be merely spoiling some
possibilities of the future. Since the days of the
brehons man’s powers and purposes have increased
and multiplied tenfold. We shall not be deemed
unworthy members of society if, with our enlarged

A GRE Sr A NA St A ON, R05 OE A AT AO 01 a

 
 

 

 

 

246 THE BREHON LAWS.

facilities, we deserve as well of our own age as the
brehons did of theirs.

Law at best is not the most fascinating of sub-
jects. Very handsome things have been said of it,
and justly; but they have been said mostly by
lawyers. It is, among other things, the bulwark of
the righteous, the shield of the weak, the noble
science of discovering in circumstances of great
complexity what is just, and making the ibalance
play on its pivot with strict impartiality. It may
also be considered as a very vulgar business, mainly
connected with, and sometimes debased to the pro-
motion of, what is sordid and criminal. Whichever
view be taken, the importance of the law of a country
cannot :be disputed. There are many important
things connected with ancient Ireland yet to be
learned ; few more so than that which we have been
considering. A nation’s law is an irrebuttable wit-
ness to its character, a mirror that cannot be dis-
claimed. We should in justice remember that it is
in general an unfavourable witness, an unflattering
mirror. It reflects cases, disputes, quarrels, and
lends undue importance to the comparatively few
members of the population who figure in them, while
almost wholly ignoring all the sweetness and good-
ness of human life and the vast numbers who pass
through life without a legal dispute at all. It takes
little notice of duties faithfully discharged, but is

endlessly garrulous about obligations broken. It
provides against offences which are rarely com-
mitted, and disregards the good acts with which

CONCLUSION. 247

the hours are studded. In a vast flock, which it
apparently sees not, it spies with cily eye the
distempered kid. It is so little concerned with
quiet folk who all their lives do right and justice
that if left to legal reading one might do the
did not exist; so much concerned with wrong ie
wrong-doers that if left to legal reading one might
judge the world very uncharitably indeed. These
remarks in the abstract apply neither more nor less
to Irish than to other laws. But in the case of other
laws that are now read, the effect on the reader’s
mind is usually counteracted by other miscellaneous
literature of the nation to which the laws belon
while it is likely that many who will read this little
treatise on Irish laws will not be fortified with much
miscellaneous reading in reference to ancient Ireland
Persons for whom the quiet voices of ancient pRicE
and harmony are wholly still, and to whom the best
types of our race are wholly unknown, will here make
acquaintance with ancient disputes and with the
aspects of men in contest. These, unrelieved, will
linger in the memory, and these alone the mention
of ancient Ireland will recall. In truth, they formed
little of the real ancient Ireland, and I now feel
guilty of having in some measure contributed to
their posthumous importance.

Having read some of those ancient laws, and made
some notes as I proceeded, the thought occurred to
me that, although the subject is dry and harsh as
all laws are, and although it is stale and obsolete
which other laws are not, still there might be scme

 
   

 

 
 

 

 

 

 

 

   

 

 

248 THE BREHON LAWS.

who would take sufficient interest in the subject to
read my notes if reduced to order. On comparing
the notes and setting them together, as so many
fragments of a broken vessel, I found that consider-
ably more than half of them were utterly useless for
my purpose, belonging apparently to vessels of which
I had no conception, and quite irreconcilable as parts
of one structure. All the fragments were doubtless
genuine, if one only knew their respective times and
districts. In the vast expanse of time over which
those laws extend many varieties of law and practice
must necessarily have arisen from local, temporary,
and accidental causes. To follow all these and treat
them adequately would demand several volumes.
Hence many fragments, in themselves interesting,
had to be sacrificed, and some whole branches of
substantive law, as the law of taking possession of
land, and the very important law of suretiship, had
to be either wholly admitted or compressed into a
few obscure sentences of a sub-section. The rest I
do not pretend to have treated as they deserve to be
treated by an Irishman and a lawyer; and though
availing of the assistance of those who have gone
before me, even of some with whose views I herein
expressly disagree, I may possibly have gone astray
myself on some points. Other writers retaining
fragments which I reject, may, with perfect fidelity
to truth, have educed, or may yet educe, legal
structures and conceptions of Brehon Law incon-
sistent with mine. I claim no more than to present
the laws as I understand them, well aware that even

 

 

CONCLUSION. 249

in my own conception of them there are points
difficult to reconcile and explain. I am also quite
aware of my silence on several legal matters on
which information is very desirable. The laws
themselves are silent on these matters, and the
importance we attach to them may be due to our
own surroundings. If any one should open this little
book with great expectations he will close it with
disappointment correspondingly great. I have neither
treated the whole subject descriptively, nor entered
into an exhaustive criticism of any part of it. To
do either satisfactorily within this compass were
quite impossible. It is not every man can put a
gallon of liquid into a pint bottle. My aim is to
interest the general reader, to put within the reach
of all who desire some knowledge of those laws a
convenient synopsis of their leading features, with
some corrections of current errors, and above all to
induce some student better equipped than I to under-
take a thorough examination of those laws and treat
the world to a work really worthy of the subject and
calculated to take the wind completely out of my
small sail. To succeed in any one of these respects
would be not to have worked in vain ; success in the
last mentioned is the summit of my ambition.

END.

 
UNWIN BROTHERS,
CHILWORTH AND LONDON.

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