THE BREHON LAWS
Although treatises on law are not literature in the true sense of the
word, yet those of Ireland are too numerous and valuable not to claim
at least some short notice. When it was determined by the Government,
in 1852, to appoint a Royal Commission to publish the Ancient Laws and
Institutions of Ireland, those great native scholars O'Donovan and
O'Curry (the only men who had arisen since the death of Mac Firbis
who were competent to undertake the task) set about transcribing such
volumes of the Irish law code as had escaped the vicissitudes of time,
and before they died--which they did, unhappily, not long after they
had begun this work--O'Donovan had transcribed 2,491 pages of text,
of which he had accomplished a preliminary translation in twelve
manuscript volumes, while his fellow labourer O'Curry had transcribed
2,906 pages more, and had accomplished a tentative translation of them
which filled thirteen volumes. Four large volumes of these laws have
been already published, and two more have been these very many years in
preparation, but have not as yet seen the light.
The first two of the published volumes[1] contain the Seanchus Mór
[Shanăχus more], which includes a preface to the text, in which we
are told how and where it was put together and purified, and the law
of Athgabhail or Distress. The second volume contains the law of
hostage-sureties, of fosterage, of Saer-stock tenure and Daer-stock
tenure, and the law of social connexions. The third volume contains
the so-called Book of Acaill, which is chiefly concerned with the law
relating to torts and injuries. It professes to be a compilation of
the dicta and opinions of King Cormac mac Art, who lived in the third
century, and of Cennfaeladh, who lived in the seventh.[2] The fourth
volume of the Brehon law consists of isolated law-tracts such as that
on "Taking possession," that containing judgments on co-tenancy, right
of water, divisions of land, and the celebrated _Crith Gabhlach_ which
treats of social ranks and organisation.
The text itself of the Seanchus Mór, which is comprised in the first
two published volumes, is comparatively brief, but what swells it to
such a size is the great amount of commentary in small print written
upon the brief text, and the great amount of additional annotations
upon this commentary itself. Whatever may have been the date of the
original laws, the bulk of the text is much later, for it consists of
the commentaries added by repeated generations of early Irish lawyers
piled up as it were one upon the other.
Most of the Brehon law tracts derive their titles not from individuals
who promulgated them, but either from the subjects treated of or else
from some particular locality connected with the composition of the
work. They are essentially digests rather than codes, compilations,
in fact, of learned lawyers. The essential idea of modern law is
entirely absent from them, if by law is understood a command given
by some one possessing authority to do or to forbear doing, under
pains and penalties. There appears to be, in fact, no sanction laid
down in the Brehon law against those who violated its maxims, nor
did the State provide any such. This was in truth the great inherent
weakness of Irish jurisprudence, and it was one inseparable from a
tribal organisation, which lacked the controlling hand of a strong
central government, and in which the idea of the State as distinguished
from the tribe had scarcely emerged. If a litigant chose to disregard
the brehon's ruling there was no machinery of the law set in motion
to force him to accept it. The only executive authority in ancient
Ireland which lay behind the decision of the judge was the traditional
obedience and good sense of the people, and it does not appear that,
with the full force of public opinion behind them, the brehons had
any trouble in getting their decisions accepted by the common people.
Not that this was any part of their duty. On the contrary, their
business was over so soon as they had pronounced their decision, and
given judgment between the contending parties. If one of these parties
refused to abide by this decision, it was no affair of the brehon's, it
was the concern of the public, and the public appear to have seen to it
that the brehon's decision was always carried out. This seems to have
been indeed the very essence of democratic government with no executive
authority behind it but the will of the people, and it appears to have
trained a law-abiding and intelligent public, for the Elizabethan
statesman, Sir John Davies, confesses frankly in his admirable essay on
the true causes why Ireland was never subdued, that "there is no nation
or people under the sunne that doth love equall and indifferent justice
better than the Irish; or will rest better satisfied with the execution
thereof although it be against themselves, so that they may have the
protection and benefit of the law, when uppon just cause they do desire
it."
The Irish appear to have had professional advocates, a court of
appeal, and regular methods of procedure for carrying the case before
it, and if, a brehon could be shown to have delivered a false or
unjust judgment he himself was liable to damages. The brehonship was
not elective; it seems indeed in later times to have been almost
hereditary, but the brehon had to pass through a long and tedious
course before he was permitted to practise; he was obliged to be
"qualified in every department of legal science," says the text; and
the Brehon law was remarkable for its copiousness, furnishing, as Sir
Samuel Ferguson remarks, "a striking example of the length to which
moral and metaphysical refinements may be carried under rude social
conditions." As a makeweight against the privileges which are always
the concomitant of riches, the penalties for misdeeds and omissions of
all kinds were carefully graduated in the interests of the poor, and
crime or breach of contract might reduce a man from the highest to the
lowest grade.
There is little intimation in the laws as to their own origin. Like the
Common Law of England, to which they bear a certain resemblance, they
appear to have been in great part handed down from time immemorial,
probably without undergoing any substantial change. It is curious
to observe how some of the typical test-cases carry us back as far
as the second century. Thus the very first paragraph in the Law of
Distress--one of the most important institutions among the Irish,
for Distress was the procedure by which most civil claims were made
good--runs thus:[3]
"Three white cows were taken by Asal from Mogh, son of Nuada, by an
immediate seizure. And they lay down a night at Lerta on the Boyne.
They escaped from him and they left their calves, and their white
milk flowed upon the ground. He went in pursuit of them, and seized
six milch cows at the house at daybreak. Pledges were given for them
afterwards by Cairpre Gnathchoir for the seizure, for the distress,
for the acknowledgment, for triple acknowledgment, for acknowledgment
by one chief, for double acknowledgment."
But these things are supposed to have happened in the days of Conn
of the Hundred Battles, yet the case remained a leading one till the
sixteenth century.
The Brehon laws probably embody a large share of primitive Aryan
custom. Thus it is curious to meet the Indian practice of sitting
"dharna" or fasting on a debtor in full force amongst the Irish as one
of the legal forms by which a creditor should proceed to recover his
debt.[4] "Notice," says the text of the Irish law,
"precedes every distress in the case of inferior grades, except it be
by persons of distinction or upon persons of distinction; _fasting_
precedes distress in their case. He who does not give a pledge to
fasting is an evader of all. He who disregards all things shall not
be paid by God or man. He who refuses to cede what should be accorded
to fasting, the judgment upon him according to the Feini [brehon] is
that he pay double the thing for which he was fasted upon, [but] he
who fasts notwithstanding the offer of what should be accorded to him,
forfeits his legal right to anything according to the decision of the
Feini."
There were, according to Irish history, four periods at which special
laws were enacted by legislative authority, first during the reign of
Cormac mac Art in the third century, secondly when St. Patrick came,
thirdly by Cormac mac Culinan the king-bishop of Cashel, who died in
903, and lastly by Brian Boru about a century later. But the great mass
of the Brehon Code appears to have been traditionary, or to have grown
with the slow growth of custom. None of the Brehon Law books so far as
they have as yet been given to the public, shows any attempt to grapple
with the nature of law in the abstract, or to deal with the general
fundamental principles which underlie the conception of jurisprudence.
A great number of the cases, too, which are raised for discussion
in the law-books, appear to be rather possible than real, rather
problematical cases proposed by a teacher to his students to be argued
upon according to general principles, than as actual serious subjects
for legal discussion. This is particularly the case with a great part
of the Book of Acaill.
The part of the Brehon Law called the Seanchus Mór was redacted in the
year 438, according to the Four Masters, "the age of Christ 438, the
tenth year of Laeghaire, the Seanchus and Feineachus of Ireland were
purified and written." Here is how the book itself treats of its own
origin:
"The Seanchus of the men of Erin--what has preserved it? The joint
memory of two seniors; the tradition from one ear to another; the
composition of poets; the addition from the law of the letter;
strength from the law of nature; for these are the three rocks by
which the judgments of the world are supported."
The commentary says that the Seanchus was preserved by Ross, a doctor
of the Béarla Feini or Legal dialect, by Dubhthach [Duffach], a doctor
of literature, and by Fergus, a doctor of poetry.
"Whoever the poet was that connected it by a thread of poetry
before Patrick, it lived until it was exhibited to Patrick. The
preserving shrine is the poetry, and the Seanchus is what is preserved
therein."[5]
Dubhthach exhibited to Patrick--
"The judgments and all the poetry of Erin, and every law which
prevailed among the men of Erin through the law of nature and the law
of the seers, and in the judgments of the island of Erin and in the
poets.... 'The judgments of true nature,' it tells us, 'which the Holy
Ghost had spoken through the mouths of the brehons and just poets of
the men of Erin from the first occupation of this 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 consensus of the believers, was confirmed
in the laws of the brehons by Patrick and by the ecclesiastics and the
chieftains of Erin; for the law of nature had been quite right, except
the faith and its obligations, and the harmony of the church and the
people--and this is the Seanchus Mór."
M. d'Arbois de Jubainville,[6] however, has shown that the Seanchus Mór
is really made up of treatises belonging to different periods, of which
that upon Immediate Seizure is the oldest. While some of the other
treatises must be of much later date, this tract, he has proved, cannot
in its present form be later than the close of the sixth century,
because it contains no trace of the right of succession accorded to
women by an Irish council of about the year 600, while at the same time
it cannot be anterior to the introduction of Christianity, because
it contains mention of altar furniture amongst things seizable,
and contains two Latin words, _altoir_ (altar) and _cîs_ (cinsus =
census).[7] This, however, does not wholly discredit the tradition
that St. Patrick had a hand in the final redaction of at least a part
of the Seanchus Mór, for altars were certainly known in Ireland before
Patrick, and the insertion of the clause about altar furniture may even
have been due to the apostle himself. How far certain parts of the law
may have reached back into antiquity and become stereotyped by custom
before they became stereotyped by writing there is no means of saying.
But, as M. d'Arbois de Jubainville has pointed out, the Seanchus Mór
is closely related to the Cycle of Conor and Cuchulain, as the various
allusions to King Conor, and to his arch-brehon Sencha, and to Morann
the Judge, and to Ailill, and to the custom of the Heroes' Bit, show,
while the cycle of Finn and Ossian is passed over.
There are many allusions to the Seanchus Mór in Cormac's Glossary,
always referring to the glossed text, which must have been in existence
before the year 900.[8] Again the text of the Seanchus Mór relies
upon _judgments_ delivered by ancient brehons such as Sencha, in the
time of King Conor mac Nessa, but there is no allusion in its _text_
to books or treatises. The gloss, on the other hand, is full of such
allusions, and it is evident that in early times the names of the
Irish Law Books were legion. Fourteen different books of civil law are
alluded to by name in the glosses on the Seanchus, and Cormac in his
Glossary gives quotations from five such books. It is remarkable that
only one of the five quoted by Cormac is among the fourteen mentioned
in the glosses on the Seanchus Mór, and this alone goes to show the
number of books upon law which were in use amongst the ancient Irish,
most of which have long since perished.
[1] Published in 1865 and 1869.
[2] For him see above p. 412.
[3] This passage was already so old in the time of Cormac mac
Cuilennáin or Culinan, who died in 907, that it required a gloss, for
Cormac in his Glossary refers to the gloss on the passage.
[4] See p. 229 for a case of fasting on a person.
[5] Vol. i. p. 31.
[6] "Cours de Littérature celtique," tome vii. "Études sur le droit
Celtique," II. partie, chap. 2.
[7] Modern _cíos_, "rent." "Census," according to M d'Arbois de
Jubainville, was pronounced "kêsus," and had a variant _cinsus_ in Low
Latin pronounced "cîsus," whence Irish _cîs_ and German _Zins_.
[8] _See_ under the words Athgabail, Flaith, Ferb, Ness, as Jubainville
has pointed out.