BREHON LAW Notes

BREHON LAW Notes BACKGROUND

Brehon laws (pronounced bree-hun), or Gaelic Laws, are the ancient laws of Ireland dating back to the iron Age. The word brehon comes from the old Irish word, breithim (pron. bry thum), meaning judge. The laws, passed down orally for centuries, were administered by Brehons; successors to Celtic druids and similar to a judge, although there were more of an arbitrator. Their job was to interpret and preserve the law rather than expanding it. They were civil laws concerned with the payment of compensation for harm done and the regulation of property, inheritance and contracts. There had never been state-administered punishment for crimes.

Medieval Ireland was a hierarchical society with social status carefully defined. Rights and duties regarding your property depended on your social status.

These laws survived until the 17th century when they were replaced by English common laws.

The brehons studied for twenty years; memorizing and applying the laws to settle disputes. These laws were originally written in the form of poetry making them easier to memorize. They were liable for damages if their rulings were incorrect, illegal or unjust.

“…..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. Hence they were good; ……….they were obeyed and regarded as priceless treasures, not submitted to as an irksome yoke”. (1). (Laurence Ginnell, The Brehon Laws, A Legal Handbook) Some brehons were attached to clans and were allotted a portion of land for their support, while others lived independently. They were recognized as a professional class apart from druids and bards.

In ancient Ireland, Brehons would take part in an event every three years on Samhain known as Feis Teamhrach (Festival of Tara) at the Hill of Tara. The assembly was a national event whose purpose was to resolve any regional disputes regarding title to rank, property and privilege. They would be settled by the lawmakers, the Brehons, and all decisions would be entered in the official records.

There could be no appeal to another Brehon if you were unhappy with their judgement but there might be an appeal to a higher court if the appellant gave security. The ranking of a brithem was based on their skill, and on whether they knew all three components of law: traditional law, poetry, and later, canon law.

canon law: rules and laws made by the church

Brehons stated what fines or restitution was due, but the community affected would see that the sentence was carried out and justice was done.
It’s a common belief that Brehon law enacted the first piece of copyright legislation in relation to written text in world legal history. It involved a bitter dispute around 561 AD between Columba (later St. Columcille) and Finian of Movilla over a manuscript called “St Jerome’s Psalter”. Columba, a pupil of Finnian, copied the manuscript intending on keeping it for himself. Finnian disputed his right to keep it. The question was about the ownership of the copy. Did it belong to Columba because he copied it or Finnian because he owned it? King Diarmit macCerbaill decided “To every cow belongs her calf, therefore to every book belongs its copy.”4. (Wikipedia.com, Leabhar nGenealach)

Columba disagreed with the King’s ruling against him and is said to have instigated a rebellion of the O”Neill clan against the King. The battle of Cúl Dreimhe claimed to have caused around 3,000 casualties.

As a monk who had taken up arms, his punishment was that he was exiled/chose to leave Ireland for Iona, Scotland. His sentence said he had to win as many souls to Christianity as had been lost in the battle. The Book of Kells was started at the monastery in Iona and was taken to Kells after being raided by Vikings.

One of the main responsibilities of a Brehon was to record genealogies. One of the most notable were the Clan Mac Fhirbisigh who produced the Leabar na nGenealch. (book of genealogies) (link in sources, also available at the Family History Library, Salt Lake)

The contents of the Leabhar na nGenealch include:
Medieval Irish genealogies compiled 1645-1666.
v. 1. Pre-Gaels, early Gaels, northern and southern Uí Néill, Connacht –
v. 2. Oreil, Gaelic Scotland, Leinster, east Ulster, Munster, saints –
v. 3. Kings, Vikings, Normans, topographical poems, shorter book of genealogies –
v. 4. General volume (concordance, indexes, addenda and corrigenda) –
v. 5. Personal name index.

Other Brehon families noted for recording genealogies were the ÓCléirighs. Michael Ó Cleirigh/O’Clery is the author of the Annals of the Four Masters, which the most extensive compilation of the ancient annals of Ireland.

Michael O’Clery, a native of Donegal, a trained antiquary and poet, had the idea to collect all the ancient vellum books of local annals throughout the country and write a new kind of allencompassing “Annals of the Kingdom of Ireland”. Only one of the original annals survives.

“The “Annals” were written in archaic language and were difficult to understand even then. They detail the reigns, deaths, genealogies, etc. of the high kings of Ireland, the provincial kings, chiefs, and heads of distinguished families, men of science, historians, poets, etc., with dates given as accurately as possible.

They record the deaths and succession of saints, abbots, bishops, and ecclesiastical dignitaries. They tell of the foundation and occasionally the overthrow of countless churches, castles, abbeys, convents, and religious institutions.

They give meager details of battles, murders, tribal wars, wars with the foreigners, battles with
Norsemen, Normans, and English, and political changes.” 4 (Wikipedia)

According to the website http://ua_tuathal.tripod.com/genealogy1.html, Brehon law survives in the names we bear. All names of Gaelic or Irish origin are defined by Brehon law. The prefixes Mac, Mc, O, Ua, Ui, or the surname itself, every person of Irish descent owes their name to dozens of generations of ancestors whose role in Gaelic society was defined by law, and recorded by lawgivers, the Druids and then the Brehons, who were the same persons entrusted with keeping genealogical records.
Surnames usually have a distinct meaning, maybe related to a location, a profession, or common ancestor.
The ancient Irish were among the earliest civilizations to value genealogy. “Those of the lowest rank among a great tribe traced and retained the whole line of their descent with the same care which in other nations was peculiar to the rich and great “, noted John O’Donovan in Miscellany of the Celtic Society, “for, it was from his own genealogy each man of the tribe, poor as well as rich, held the charter of his civil state, his right of property in the cantred in which he was born, the soil of which was occupied by one family or clan, and in which no one lawfully possessed any portion of the soil if he was not of the same race as the chief.”
cantred – a subdivision of a county in the Anglo-Norman Lordship of Ireland between the 13-15th centuries
VIKINGS and NORMANS
The Vikings raided monasteries and towns, taking artifacts and undoubtedly destroying books and manuscripts, but they didn’t really change the laws of the country.

The Normans, however, came with the blessing of both Henry II and Pope Adrian, to make the country part of England and the Catholic Church the religion. Outside the Pale, which was part of the east coast that included Dublin and areas to the north and south, brehon law was still in practice. The Normans actually decided to follow brehon rather than English laws while they assimilated into Irish culture. The saying that they were more Irish than the Irish themselves was causing problems.

This behavior didn’t sit well with the English crown and the Statutes of Kilkenny were enacted in 1366 (remaining in effect until 1983). The statutes contained 35 acts written to “reinforce the division between the native Irish and the descendants of the original English colonists”.6 exploringcelticciv.web.unc.edu
Among the Acts, some of the rules were:
No alliance by marriage, fostering of children or any other relationships be made between the English and Irish
No Englishman can give or sell, in time of peace or war, horses or armor or any kind of aid to the Irish under punishment as a traitor to the Crown
Every Englishman had to use the English language, be named by an English name and not follow the naming patterns of the Irish.
Every Englishman had to use the custom, fashion, mode of riding apparel according to his estate and if any Irishman working on their estate used the Irish language, the Englishman could be taken to jail until the offense was rectified.

THE LAW
Jo Kerrigan, an Irish researcher living in Cork, received two degrees from UCC (University College Cork) and then studied medieval history at Oxford. Her specialties are in ancient crafts and folklore and her current focus is “how everyday life was lived long ago.” She has written a book titled “Brehon Laws, The Ancient Wisdom of Ireland” that I used for some of the following information.

Manuscripts and books had long been hidden from the British so they wouldn’t be destroyed. When the penal laws were changed in the late 18/early 19th centuries these documents slowly started resurfacing, allowing scholars to start deciphering. There were problems though; first, the items may not have been in the best condition when found; possibly buried in bogs or hidden in places susceptible to mold and decay. Second, these items were written in Archaic Irish (3-4 AD), Old Irish (6C), Middle Irish (10C), Early Modern/Classical Irish (14C) and Modern Irish. By this time the Irish language had been outlawed for so long that many people could no longer read or speak the modern version, never mind the older ones. Still, many have been translated and it’s felt that there could still be more out there hidden away.

Jo states “While other countries of ancient Europe swirled in confusion, Ireland held steady and calm, possessor of a unique legal system……..Every single person of Irish descent should be immensely proud of them.”

Tradition states that the laws were first collected into one body by Ollamh Fodhla, a judge, between 700-1000 BC. These laws were already “old” by this time; he merely collected them. Ancient Europe, including Ireland, had schools where students were trained essentially to become druids. But Kings and nobles also sent their children to these schools because the education was at such a high level.

As communities developed they established systems of justice and fairness; there was no body dictating laws to them. An important group of texts, Senchas Mór, (pron. Shankus) dates back to the 8th century providing a background to the Brehon legal system and the Introduction offers an explanation for the compilation of the law texts, and also how the druids became jurists.
According to the text, St. Patrick requested that a collection of all pagan laws in Ireland be made in 438 A.D. Laegaire, then king of Ireland, formed a committee, with himself and St. Patrick as members, to revise these laws. The result was a new legal code from which, according to the text, everything that clashed with Christianity was removed.

Dr Noelle Higgins, Lecturer, School of Law and Government, Dublin City University, Ireland, wrote a paper on Brehon Laws and states that society was divided into different levels according to class or rank, and a person’s legal capacity was linked to their societal rank. The measure of a person’s status was known as his “honor price” translated to “the price of his face”.

The honor price played a part in what kind of punishment would be imposed on someone – a serious offense against a person of high rank brought a greater punishment than to one of a lower rank. Any evidence given by a high-ranking person carried more weight than from a lower ranking person.

Brehon law prohibited a person from entering into a legal contract for an amount which exceeded his honor price and he could not get surety for a greater amount either.

Surety – a promise by one party to assume responsibility for the debt of a borrower if the borrower defaults.

Jurists were highly regarded but were also surrounded by a shroud of myth and magic. The jurist wore a torque and according to legend, if they spoke an untruth, it would tighten around his neck and strangle him. Indeed, it is stated in Senchus Mór that blotches would appear on a jurist’s cheek if he deviated from the truth.

The jurists advised the king on all legal matters and the king only passed judgement on legal issues after advice from his legal advisor.

There was no court system or police force or prison system. There was no public administration of justice. Judgements were left in the hands of the ordinary people to enforce, although, sometimes a lord or another dignitary might be asked to help enforce a judgment, such as a payment of a fine.

Brehon law was based on a fine / compensation system. For every wrong committed, the guilty party was required to pay a certain amount in recompense, depending on the injured party’s rank.

There was no real division between criminal and civil law as regards punishment; both types of wrongs required that compensation be paid.

The laws seemed to be divided into dealing with people, animals and the land.
DEATH
Capital punishment wasn’t part of brehon law; even for kinship slayings. A fixed penalty of 21 milch cows for every freeman was payable to his kin group. An eric could also be added based on the honor price of the victim’s kin. eric – fine based on the honor price of the victim

The offender’s kinsmen were expected to make sure that restitution was made; if not they could hold him until it was, sell him into slavery or kill him, based on the wished of the victim’s family. The circumstances of the killing were considered; for example if it was self defense or accidental.

INJURIES
Early Irish law recognized that an injury could be intentional or unintentional, and each required compensation of some kind. Fines were based on the location of the wound, severity and in some cases the type.

According to Jo Kerrigan’s research, there were 6 different categories of damage to teeth with the loss of a molar or front tooth allowing for a greater punishment. Seven types of bone breakings are listed, and wounds to the “twelve doors of the soul” that included pressure points like the adam’s apple and navel. A permanent wound, especially to the face causing disfigurement, could expose the victim to ridicule at a time when dignity and honor were extremely important. A king with a visible blemish or permanent injury couldn’t remain king.

The victim would be cared for by their family and a doctor, and then, after nine days, the payment was decided by a physician. The injurer either paid a fine, or if the victim died, would face a murder charge.

If the victim recovered, but his wound was still there, it would be measured to determine the fine by how many grains of a certain plant fit into the wound. The higher the status of the victim, the smaller the grains used to measure it would be. If the wound didn’t heal and caused a physical blemish, more payments would be given.

MEDICINE
According to the Annals of the Four Masters, although physicians were “herbal physicians” , they studied at regulated medical schools that were governed by the hereditary physician families, with the first know physician living around 860AD.

Physicians were accountable for their actions (medical malpractice was part of the laws) and were responsible for their patient’s care. Sick maintenance was part of this care and physicians were held responsible for the recovery of their patients.

MENTAL HEALTH (history-ireland.blogspot.com)
There were laws that considered mental health and disability. Heavy fines were imposed on anyone mocking the disabled.

The Brehon laws distinguish between a person who is mentally retarded, deranged or violently insane. (language of the day) The main concern of these laws was to make sure that these individuals not be exploited: one text states that “the rights of the insane precede all other rights”. Hence a contract with a person of unsound mind is invalid, and anyone who incites a “retarded person” to commit a crime must himself pay the fine.

SATIRE / INSULT
In early Irish society it was believed that a poet had the ability to cause injury, and even death, through satire and therefore, satirization was a serious offense with high penalties attached to it. If you shouted at someone in a public place causing other people to laugh at the other person, it could bring a substantial fine.

However, satire was sometimes used as pressure to enforce a judgment. For example, if a fine went unpaid, it was legitimate for the wronged party to satirize the wrongdoer. The wrongdoer then either had to pay that was owed, or make a pledge to do so, to save his honor.

HOSPITALITY
It was a strong tradition, even to this day in rural areas, to provide food and shelter to those asking for it. In brehon times if you closed your door to another, you could be made to pay compensation to the person you refused and be deprived of your own honor price.

DAMAGE TO PROPERTY
If you were a guest in someone’s house and broke furniture, etc. this was seen as an attack on the householder’s dignity and honor. Full restitution was expected plus a fine.

Causing damage to a mill or drying kiln interfered with the work of the community to create or supply food and was treated as a serious offense.

THEFT / DISTRAINT
Illegally taking animals was a common occurrence. Restitution plus a fine was required. If the fine wasn’t paid after a judgement, the injured party had the right to formally seize the property of the wrongdoer in a procedure called a distraint. The plaintiff had to give formal notice to the defendant that he intended to seize his property. Once Upon the defendant received notice he could pay the fine, or arrange a surety, or make a pledge to the effect that it would be paid. If he failed to do any of these things the plaintiff could legally seize his property – normally animals, especially cattle, equal to the value of the amount due.

A professional law agent would be present when the property was seized to ensure that the seizure was legitimate.

Distraint – the act of seizing of someone’s property in order to obtain payment of money seized in the satisfaction of a claim

DISTURBANCE
If you caused a disturbance at a fair, or assembly it was considered a heinous crime. These were places where nobles from other kingdoms were present and issues involving all were discussed. The person causing the disturbance was fined as were the visitors.

Sporting matches at these events couldn’t be interrupted in any way by yelling, throwing items or launching spears into the field without serious consequences.

ANIMALS AND THE LAW
According to the Book of Aicill, “the wounds of beasts are as the wounds of human beings.” It was taken into account whether the injury was dome on purpose or by accident with different fines for both. If you took another’s animals because that person owed you something it was your responsibility to take care of the animals until the dispute was formally settled.

Book of Aicill- book relating to criminal law, included in the Senchus Mór

Each breed of dog had its own value assigned to it. Dogs were important in the community because they guarded houses, flocks and herds from danger. A watch dog was the most valuable. The levels of dogs included hunting dogs, herd dogs and small pet dogs which were actually very important in ancient Ireland. For example, having a dog next to a woman in labor was believed to keep evil spirits away and provide comfort and reassurance to the woman.

Cats were also important; they kept away the large amount of rats and mice which were a threat to stored grains and other foods. There’s a cave in Kilkenny said to be home of the Mouse Lord who vanquished all warriors it met and a cave in Roscommon believed to guard an entrance to the Otherworld.

Household cats had their own set of laws with their own honor price and the requirement of sick maintenance if they were injured or ill.

Bees were really important and most household would have had hives. The honey bee was protected by their own set of laws. If your bees went into neighboring fields and gathered nectar, the consequences were considered. Each of the surrounding neighbors received a share of the honey and if new swarms formed, the same principle applied.

If you were stung by a bee for no reason and were on a public road, you were entitled to a claim of “a meal of honey” from the owner of the bee.

LAWS – THE LAND
Land was important in ancient Ireland concerning the ownership of it and the care of it. Besides the fact that land for food and livestock was essential to the community, it held a spiritual significance.

Land was valued based on if it was covered with bogs, was rocky or a meadow. Also considered was whether it had a mill, cooling pond for cattle, mountains, a river, etc.

Roads held a value too depending on where they went; if they led to a chief’s house or a river, the sea, or the mountains they were valued accordingly. A person might have to pay a “convenience” toll to use the road, increasing its value.

According to the Book of Aicill, “On taking lawful possession” dealt with the taking of land. The Irish had no judicial system, they never formed town communities and submission to the laws was voluntary.

If a man wanted to claim land as his own, he had to make his opponent agree to arbitration by a Brehon.

The claimant gave notice to the occupant that he intended to enter and claim the land. He repeated his claim after 10 days. If he received no answer or was refused, he and his witnesses, leading two horses by the bridle, would cross into the land and remain at the border for one day and one night. He left at this point but on the sixth and tenth day he would repeat his notice.

If he still heard nothing from the occupant, or the occupant refused his claim, he would enter the land again with four horses and two witnesses, advancing 1/3 of the way into the property. If the occupier still refused the claimant would withdraw and for two more days give notice that he intended to make his final entry.

He came back with eight horses and four witnesses (some had to be the rank of chieftain) and advanced to the center of the land, taking possession unless the occupier agreed to arbitration.

The multiple notices were done to give the occupier time to consider what he wanted to do. The claimant was betting on a favorable outcome if arbitration happened.

If the claimant lost arbitration he was then considered an trespasser and was made to pay fines according to damages assessed, taking into account whether the land had a full, half or no fence on it.

There were several laws dealing with damages to crops and meadows; it was the owner’s responsibility to keep cattle off new fields in spring. The damage for cattle trespassing on cornland was 3 sacks of grain. If a person deliberately trespassed the fine was 2 cows if the land had a full fence. There were detailed rules for marking the barriers of your land with wood fences or stone walls.

Water was important and dealt with in the section “Right of Water”. King Cormac Mac Art introduced water mills in the 3rd century. Because this was an entirely new concept, the Brehons looked to other laws and crafted what we know of as “judge-made law”. One of the first laws was that “Every co-tenant is bound to permit the other co-tenant to conduct water drawn across the border.”

Another part of the Book of Aicill, deals with his heirs when he died and how land passes down after the occupier’s death and is titled “The succession to land”.

Ownership of undivided lands belonged to the tribe and each person’s rights were only temporary. If land was allowed separate ownership, it didn’t get passed to his heirs. Owners were considered managers of a household; not owners as we know today.

The household included his descendants living there at the time of his death and others who weren’t his descendants. When he died his property descended to the household members as joint tenants with the oldest male becoming the head. No head of household could make changes to his land (loss) that would be a detriment to the next four generations of his descendants. If at some point there were no inheritors left, the land became the property of the whole tribe.

Trees were extremely important in ancient Ireland because they were used for building, craftwork and for fuel. But they also recognized their importance to the environment. The ogham alphabet was linked to individual trees with each letter representing a specific species.

Brehons imposed heavy fines for the destruction of trees, with the amounts based on the type of tree. For example, the most prized trees were oak, holly, hazel, yew, ash, pine and apple. It was believed that trees were doorways to the otherworld; the roots of the tree go down into realm of the sidhe of the mound, while the tree branches reached to the skies above.

Fines for damages became even harsher or heavier if the tree was tampered with during a time of growth rather than a time of dormancy.

(ironically today only 11% of the island is covered in trees; the lowest in Europe)

FOSTERAGE

Fosterage, the placing of children with other members of the tribe during their early years, was very common in ancient Ireland. It was either done “for affection” where foster parents didn’t receive any kind of payment to take care of the child, or “for payment” which was determined by the rank of the parties entering into the fosterage contract.

Food, clothing and education was strictly regulated by law. Fosterage ended when the children reached marriageable age, which was 14 for girls and 17 for boys.

The foster father was liable for any wrongs committed by his foster child or injuries they received while in his care. Foster children were expected to care for their father in his old age if his natural children couldn’t do so. (daughters were expected to do less than sons)

Fosterage happened in all social classes but was more common among wealthy nobles and landholders, sometimes in an effort to strengthen bonds with their allies.

WOMEN
Brehon laws existed before the Celts originating at a time when the Earth Mother or goddess Danu were important figures.

In ancient Ireland women were valued for their ability to have children and their importance to the balance in daily life. They could rule kingdoms, wage war and decide the future for themselves and their kin. Until the arrival of the Celts. That society was strongly male-oriented, but mild in comparison to the arrival of Christianity and its views of women.

Even before the Celts and Christians a woman’s status still depended to an extent on her family and what they could offer as dowry, etc. But they were educated, could become druids and had a fair amount of independence.

Women could inherit land but it couldn’t pass out of control of the family. It could be bequeathed to her upon marriage; when she died a large portion of it returned to her family and her children. If there was family land, she would inherit if she had no brothers. If her father acquired land on his own during his lifetime he could leave it to her. She could keep it or dispose of it as she wished.

Trial marriages were common; the occasion was marked by the couple holding hands through a standing stone with a hole in it at a major gathering such as a fair or assembly. If a year later everything was good with the couple they would legally marry. If not, they would separate with no consequences. A child born during this year would stay with the woman’s family in the event of a separation.

There weren’t any illegitimate children; every child was accepted as part of a family. A son born to a woman other than the official wife could inherit his father’s estate. A child born of rape was the responsibility of the offender’s family.

Marriage had different “levels” also. There was a marriage of equals where both contributed equally in the form of land and/or possessions. Both had equal say in the acquiring of and disposing of goods and land. Brehons preferred this type of union because it made things easier legally.

The next level was the marriage of the woman’s property – meaning she had more property and wealth than her husband. The woman decided what to buy, if and when to sell, how the household would be run with the husband having little to no say. If he tried to sell property or anything else that he wasn’t allowed to he would face a heavy fine.

A marriage of a man’s portion was the reverse; and maybe the most common arrangement, if not today, certainly in the not so distant past.

In any of the arrangements the men had to pay a bride-price to the wife’s family. This payment continued for 25 years and after a set time the payments were made to the woman rather than her family. Is she divorced she could take this money with her.

If a forced abduction happened, the man had to pay very high fines and couldn’t benefit in any way from the woman’s property. In Victorian times the woman was considered “ruined” if this happened and would be forced to marry her captor. Under brehon law the woman could return to her family with full pride and status; the offender’s reputation was ruined; not hers.

Polygamy wasn’t unheard of and children from the second wife had equal rights to inherit as the children of the first wife, but the second wife had no rights.

Brehon laws were based on common sense solutions to everyday problems and an integral part of the community and its people.

Brehon Law ended with the Proclamation of King James I in 1603, when the Irish people came under the King’s protection. The country was subsequently divided into counties and English law was administered throughout the country.