Brehon law Introductions.

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Introduction to the Brehon Law

by Alix Morgan Mac an tSaoir

The Irish law tracts known as Fenechas (the law of the Feine or Freemen), commonly known as the Brehon Law are probably the oldest known European laws. These laws, which were originally composed in poetic verse and memorized by the Filid, were written down in later ages and preserved for us in several books of law including the Senchus Mor, the Book of Acaill, and the Uraiccecht Becc. Linguistic evidence indicates that much of the law has its foundation as far back as the common Celtic Period (c. 1000 BCE). It is said that the Brehon Law was ordered codified in 438CE by Laighaire, High King of Ireland. This work was done by three kings, three Brehons and three Christian missionaries, and is contained in the Senchus Mor. These early Irish law texts originate in the 7th and 8th centuries CE and come down to us in mostly corrupt forms from manuscripts written in the 14th-16th centuries. We have been able to glean much about early law from tales, myths and histories. It is to be noted and expected that any in set of laws so reconstructed there are inconsistencies, later additions, and "christianization" of concepts. In spite of such corruption and the many blanks that the old tales leave us, what has come down to us is an astonishing collection of laws that are extremely unified and which confirm and complement each other.

It is to be noted that many of the customs codified in the laws show much older influences which are thought to have affinity to the Indo-Europeans systems that can be paralleled to systems traced to India. There are commonalities between Brahmins and Druids and it is thought by some that both India and Ireland, on the fringes of the Indo-European world, have preserved traditions which were more archaic and pure.

To understand the Brehon law further, one must begin to understand the culture of the people from which the law grew. These are laws of a pastoral people whose economics were based on a self-sufficient mixed farming economy where wealth was measured in ownership of cattle and regulated by family and tribal relationships . Coinage was unknown and barter was the prevailing economic standard. The law was based on the interactions of people and their foundation was largely the power of the customs of these people which grew into a more codified body of law. It is significant that these laws were considered even by our enemies to be based on sound principles of justice and later invaders adopted these principles which then governed Ireland into the seventeenth century.

The scope of the law as we find it today is very broad and encompasses almost every area of life and human relationships. The law texts show us a picture of a society which in contrast to our largely individualistic society of today was based on tribal and familial relationships. The law texts deal with people in terms of their role in their tribe and family and the obligations of the individual are usually generalized into family obligations, thus contracts are not solely between individuals but are between family units. The role of outsiders is restricted and the kinship roles are broadened.

Society was hierarchical and there was defined distinction in class. The obligations and rights of every strata of the society were clearly set down. The law was based on family and kinship groups who were held responsible for the actions of the individual with their midst. The stability of the law and the society was therefore strengthened by the necessity of the individual to be a part of the family or the tribe. A family or tribe that is going to pay the price for the actions of any individual will find it necessary to police the actions of the individuals in their midst. A person who was outlawed or exiled from their family or tribe had essentially no rights that were recognized under the law and no recourse, so one's tribal and family connection determined and sustained one's economic status, social status and even one's very existence.

Though the hierarchical and non-egalitarian status of the society is firmly established in early Irish law, the law is fair and humane. The rights of innocent dependents of guilty parties is clearly delineated. Guarantees of fair presentation of evidence including barring of witnesses who stand to gain from the outcome is clearly laid down. Provisions for protection of weaker and infirm members of the community are included as well as protections for clients from dishonest or violent lords. There are safeguards in place to protect the insane and protections for the elderly, the ill and destitute. Criminals, non observers of the law and non-productive members of society are, however, given short shrift.

Tradition, history and myth tell us that the interpretation and enforcement of the law was the job of a specialized group of well trained Druids called the Brithem or Brehon. The training of the Brehons was long and arduous. The memorization of long tracts of law was essential and the mastery of the intricacy of a complex law tradition was mandatory. Brehons were reciters of the law and Brehons were held personally responsible for damages if they gave false interpretation or recited the law incorrectly. There is some indication that early reciters of the law were considered to have some sort of Divine gift that enabled them to give true judgment. Only after the law was recited by the Brehon could the King or Queen make the judgement. Then as now Truth and Justice were the code of the Celtic people.

English sources of later periods (The Chronicle of Ireland 1584-1608 by Sir James Perrot-ed. Wood, Dublin 1933) note the hearing of law-cases on the hilltops by Brehons and the law texts we are discussing clearly delineate a place in law proceedings for the chief poet (int ollam filid) and a side court which includes historians "because the court relies upon the traditional lore (senchas) and clarification of historians (senchaid)."

The basics of native Irish law handed down from the ancients was practiced in Ireland until the Elizabethan times by law schools that preserved and taught the law and by legal families who were learned in the law. The Flight of the Earls in 1607 effectively meant the end of the law schools and legal families which had kept the law alive. Though there may have been some remnants that were extant into the 17th century, by the 18th century all of these law schools and families were extinct, because the old legal families were unwilling to transfer to English law, though there is evidence that some legal families worked for the new regime. In documents dated 1591 and 1602 there is mention made of a brehowne named Patrick MacEgan who given license to "prosecute and punish by all means malefactors, rebels, vagabonds..."

Resources used:
* A Guide to Early Irish Law by Fergus Kelly
* The Celts by Nora Chadwick
* Constitution of the Clannada na Gadelica
* The Brehon Law by L. MacDonald (Dalriada Celtic Heritage Trust)
* Gaelic Celtic Culture:Law by Iain MacAnTsaoir

prepared by Alix Morgan Mac an tSaoir

©1998, 1999, Clannada na Gadelica, all rights reserved.

www.clannada.org/brehon_intro.php

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Section One - Part One: Introduction To Brehon Law

by Iain Mac an tSaoir

I. Introduction.

There is an amazing volume of ancient law that is part of the corpus of Irish literature. These are commonly called Brehon Laws. The word "brehon" is an anglizised word whose proper cultural nomenclature is the Irish breitheamh (DIL, Focloir Scoile). The word breitheamh is related to the word breith which means "judgement" (DIL, Focloir Scoile).

When most people think of the Brehon Law, they think of the Senchus Mor. The Senchus Mor is a body of law that is sometimes called 'Patricks Law'. All and all, the Senchus Morr is but one body of laws, and as a body mainly deals with 'contract law'. Other tracts of law cover a wide range of things, including laws regarding persons, doctoring, bee-keeping and many other things.

Brehon Law is actually a common term for the law tracts which are called Fenechas. This literally means the Law of the Freemen. Traditionally, the Brehon Law was held to have been codified in 438CE by order of Laighaire, High King of Ireland. This work was done by three kings, three Brehons and three Christian missionaries. The earliest written law tracts date only from late 6th through the 8th century AD. The majority of the texts that are still available however, date from the 14th to the 16th century. That does not mean that the written laws do not reflect more ancient ideas, for they do. Linguistic evidence indicates that much of the law has its foundation as far back as the time of the proto-Celts (c. 1000 BCE).

By and large, the written laws are very similar to what existed before the coming of Christianity. It can also be argued that the judicial procedures did not change at all.

The various bodies of law, commonly known as the Brehon Law are probably, the oldest known European laws. These laws were originally composed in poetic verse and memorized by the recitors of those laws, who were called Brithem (brih-them/v).

Suggested reading:

Early Irish and Welsh Kinship, Charles-Edwards
Guide To Early Irish Law, Kelly
Cattlelords and Clansmen, Nerys Patterson
Lawyers and Laymen : Studies in the History of Law, Charles-Edwards
Brehons, Serjeants and Attorneys, Hogan

Sources:

Guide To Early Irish Law, Fergus Kelly
Early Irish and Welsh Kinship, Charles-Edwards
Cattlelords and Clansmen, Nerys Patterson
Lawyers and Laymen : Studies in the History of Law, Charles-Edwards
Brehons, Serjeants and Attorneys, Hogan.
Clannada na Gadelica, 'Introduction To Brehon Law', Ailig Mac an tSaoir

prepared by Iain Mac an tSaoir

©1998, 1999 Clannada na Gadelica, all rights reserved.

www.clannada.org/brehon_s1intro.php

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Section One - Part Two: Kinship and Tuaths

by Iain Mac an tSaoir

Just as the center of Gaelic culture is the hearth, the Law is based on kinship. Kinship is, in fact, the very foundation of the Brehon Law. The law texts are quite clear about the addressment of the kingroup. The term used to denote the kinship group or fine, which as a unit was comprised of derbfine or "true kin". A fine consisted of those who were descendent through an agnatic line from a common great-grandfather. The head of the fine was the ágae fine or cennfine. This person was most likely chosen by election, based on their wealth, rank, knowledge and ability as a leader.

While in most instances, the descent was traced through the male line, there were instances when the female line was focused on in the old laws. Amongst these times were the woman's traditional right of return to her kin. In addition, the maternal kin were required to take part in a blood-feud if the child of one of its daughters was killed. While mentioning this, it needs to be stated that blood-feuds were not the first line of settlement of matters. Nor were the Brehon Laws based on penal statutes. Punishments were a matter of compensation. As with several types of offenses, blood-feuds were sanctioned in this case if the fine [e/raic or 'body fine'] for the killing was not paid by e/raic of the slain child. In addition, it was their duty to insure that a child's fosterage was properly fulfilled.

The fine maintained an incredible number of legal rights over its members; Including having a say in who the sexual partners of its members were, something that applied to males and females alike. It was a system whose cornerstone was responsibility. Each fine maintained a holding of land that belonged to the whole kingroup. This land was called fintiu. Every competent adult male had some responsibility in the matters of the land. Yet, the fintiu could only be sold by the consent of the whole fine,, and even then, only if they fulfilled certain criterion. The idea would seem to be that nothing could be done that would jeopardize the kingroup.

Even while individual members of the dearbfine were restrained from doing things that would cause ill to befall the kingroup, the fine was responsible and liable for offences committed by its members. While, as stated earlier, penal measures (jails) were not the norm in Brehon law, there were times when people and possessions could be distrained. The law provided for the distraint of a kinsman if they could not fulfill their obligations. Higher ranking kinsmen could find themselves under distraint for the acts of their other kinsmen, in fact, such distrainst could touch several people in a fine. There was, however, recourse for those who had fallen victim to another's defaulting on their legal obligations. In these cases, the kindred could reclaim the losses incurred from such distraints, from the original offender. The law also made provision so that the offender could be cast out of the fine should they not meet their responsibilities. This act was one where in the offender was stripped of all their legal rights. As one so cast out, they were an outsider wherever they went, and most of the time, had no protections at all, being at the mercy of fate.

Usually however, people were very much protected, both in their own fine, the tuatha wherein their fine resided, and in whatever other tuaths with which their tuath had treaties. However, if one of the kin were to be killed (except in a blood-feud), their other kinsmen each received a part of the e/raic (body-fine). As discussed above regarding the slaying of a child, so was their the expectation that the survivors of a murdered person would press a blood-feud against someone who failed to pay the e/raic.

The act of slaying a member of one's kin [fingal], was considered to be particularly anathma. One who murdered one of their kin was forfeit their share of the fintiu. Even when this was the case, as a member of the fine, they were still liable to pay for offences made by others of their kin.

Having established the basics of the fine as a legal entity, we can next address the tuath. A tuath was a regional body which existed as a tribal body. At one time there were as many as 150 tuaths in Ireland. Each of these tuaths were peopled by as many as six fine. Much of the corpus of Irish law addresses the tuath.

Recommended Reading:

Early Irish and Welsh Kinship, Charles-Edwards

Sources:

Guide To Early Irish Law, Fergus Kelly
Early Irish and Welsh Kinship, Charles-Edwards
Cattlelords and Clansmen, Nerys Patterson
Clannada na Gadelica, 'Introduction To Brehon Law', Ailig Mac an tSaoir

prepared by Iain Mac an tSaoir

©1998, 1999 Clannada na Gadelica, all rights reserved.

www.clannada.org/brehon_s1kin.php

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Section One - Part Three: Selection of the Kings

by Iain Mac an tSaoir

Who knows exactly at what point the selection of kings began, or what proceedures were used to select the first king. We can be fairly certain that the person's ability, coupled with their charisma were major factors. In the societies which descended from the Indo-Europeans, the position of the King held, as this whole article has to date shown, a position which by its nature was sacred.

Through the mating with the Mare, the King was coupled to the Goddess of Sovereignty of the land. Through the sacrifice the cosmos was renewed. Through the division of the sacrifice into three parts, each representing a segment of the society, and the King consuming of the three parts, he belonged to all three segments. The whole of the people became represented in him. (1)

What needs to be addressed is the selection process of the kings in Gaelic culture. This is a topic that is rarely if ever addressed from a factual point of view. Usually the focus is on the potential meanings of the metaphorical language found in lore. While we can with some confidence speculate that the lore is addressing possible initiatory elements in the ascent to kinghood (2), what is being addressed here are the actual selection processes of the king himself.

The scene that Cambrensis described took place in the 11th century, and shows the rites through which the king ascended to governance. There are quite a few Irish law tracts from before that time which describe the process for selecting kings. While things may have changed slighty through the centuries, we know from these law tracts exact details of the procedure. According to Fergus Kelly, things were pretty much the same at the fall of Gaelic civil order in the seventeenth century, as it was in the 8th century (3). One such tract is called C/oic Conairi Fuigill, which interpreted means "The Five Paths Of Judgement". This law tract states that a pretender to kingship must be a son of a king (mac flatha) and the grandson of a king. This tract is detailed enough to tell us that if a man's father had been a king, but his grandfather had not, then he was only a "middle ranking king" (flaith med/onac).(4) This wasn't primogenitor exactly, it was more that the list of candidates came from families of enough standing and experience in leading as chieftain. It was from the list of candidates from certain families that the chieftain was selected.

C/oic Conairi Fuigill also confirms what has been found in many other places about the condition of the pretender. In the eyes of the law he must be beyond reproach (innraic), nor could he be guilty of theft, nor could he have any physical blemish.(5) According to this tract, there were even minimum requirements for property owned (ni bi r/i r/i cen fola). To the new king's own property, new land was added. These lands came from gelfines. This makes sense when one considers the laws regarding the requirements of the King's Brugiadh and other things. He had to be able to fulfill his title. This included taking care of those who functioned as royal officials.(6)

SOURCES

1. Death War and Sacrifice, Bruce Lincoln
2. The lore is repleat with examples of metaphorical language regarding kings and kings to be. A frequent theme is the "kissing of the Hag". In this there is repulsion felt by many pretenders to the kingship. But one overcomes the repulsion of sovereingty, kisses the hag, after which she turns into a beautiful woman.
3. A Guide To Early Irish Law, Fergus Kelly, Dundalgan Press Ltd., 1988,ISBN 0790-4657 & 0-901282-95-2.
4. "C/oic Conairi Fuigill, Die funf Wege zum Urteil, ein altirischer Rechstext", Thurneyson, Berlin, 1925
5. Ibid
6. Ibid

www.clannada.org/brehon_s1kin.php

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Judicial Procedure in Ancient Gaelic Court Part 1 (Civil Court)

by Liathame DunBar

Step One: Aidbriud (assertion)

* The Plaintiff (victim or kin of victim) would contract with an advocate to publicly imply the wrongdoing of another against the plaintiff. (it is apparent to represent oneself was thought unwise)

Step Two: Path of Pursuit

* The Plaintiffs advocate must choose one of the five paths along which to plead his case. They are:

1. Fir – Truth (cases involving property , allegiance or perjury)
2. Dliged – Entitlement (enforces contractual rights)
3. Cert – Justice (to balance unfair contracts)
4. Téchtae – Propriety (affects servile dependence or very old issues)
5. Coirn-athchomairc – Proper Inquiry (a catch all when none of the above apply)

* Note: If an advocate chooses the wrong path or changes paths during pleading he would be fined the value of one milk cow.

Step Three: Árach (Pledges and Sureties)

* The Plaintiff would offer a pledge or surety dependent on which path the case is being pursued to indicate their commitment to the proceedings and the impending judgement. The proper pledges are:>

1. Fir – firgille or truth pledge valued at one milk cow (smacht)
2. Dliged – naidm or enforcing surety by binding. Valued at the principals Honour Price
3. Cert – smachtgille or penalty pledge. Valued at 1/7th of one milk cow.
4. Téchtae – rath or paying surety. rath surety is like bail value is determined by the case involved. If a principal defaults the amount of the rath is distrained from him.
5. Coirn-athchomairc – aitire or hostage surety. When an individual places him/herself between two parties as surety. If the principal defaults, the one who has placed themselves as surety willingly goes into bondage until the debt is settled or they are ransomed at the body price of a freeman, seven cumals or twenty-one milk cows.

* An equal pledge or surety would be expected from the defendant. Once this is done and assuming neither party defaults, the case may proceed.

Step Four : Tacrae (Pleading)

* Each advocate pleads his case according to the path the Plaintiffs advocate chose. Evidence is given and witnesses are called to testify.

Step Five: Frecrae (Counter Pleading)

* Each advocate rebuts his counterparts pleading. Witnesses may be cross-examined.

Step Six: Breth (Judgement)

* After considering the testimony and evidence the Judges are required to consult any dignitaries that may be present. The judges formulate the actual judgement and they must support it by stating the source of confirmation.

1. Roscad or Legal Verse
2. Fásach Maxim or Triad
3. Cosmailius or Analogy
4. Aicned Natural Law

* If a judge mistakenly states the wrong type of resource he is fined for a false judgement gúbreth

Step Seven: Forus (Announcement)

* Public announcement of the judgement and the foundation of said judgement (forus)

Step Eight: Forbae (Conclusion)

* Distraint must begin within three days or be forfeit

Sources:

1. A Guide to Early Irish Law, Fergus Kelly, Dundalgan Press Ltd., ISBN 0790-4657 & 0-901282-95-2

2. Foundations of Modern Law, Dale McKenny

3. Britannica Online

prepared by Liathame DunBar

©1998 Clannada na Gadelica, all rights reserved.

www.clannada.org/brehon_part1.php

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