Early Irish law refers to the statutes that governed everyday life and politics in Early Medieval Ireland. They were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence in the 13th century, and survived into Early Modern Ireland in parallel with English law over the majority of the island until the 17th century.[1] "Early Irish Law" was often, although not universally, referred to within the law texts as "Fenechas", the law of the Feni, or the freemen of Gaelic Ireland mixed with Christian influence and juristic innovation. These secular laws existed in parallel, and occasionally in conflict, with Canon law throughout the early Christian period.
The laws were a civil rather than a criminal code, concerned with the payment of compensation for harm done and the regulation of property, inheritance and contracts; the concept of state-administered punishment for crime was foreign to Ireland's early jurists. They show Ireland in the early medieval period to have been a hierarchical society, taking great care to define social status, and the rights and duties that went with it, according to property, and the relationships between lords and their clients and serfs.
The secular legal texts of Ireland were edited by D.A. Binchy in his six-volume Corpus Iuris Hibernici. The oldest surviving law tracts date to the 8th century.
No single theory as to the origin of early Irish law is universally accepted. Early Irish law consisted of the accumulated decisions of the Brehons, or judges, guided entirely by an oral tradition. Some of these laws were recorded in text form by Christian clerics. The early theory to be recorded is contained in the Pseudo-Historical Prologue to the Senchas Már. According to that text, after a difficult case involving St. Patrick, the Saint supervised the mixing of native Irish law and the law of the church. A representative of every group came and recited the law related to that group and they were written down and collected into the Senchas Már, excepting that any law which conflicted with the law of the church was replaced. The story also tells how the law transitioned from the keeping of the poets, whose speech was "dark" and incomprehensible, to the keeping of each group who had an interest in it. The story is extremely dubious as, not only is it written many centuries after the events it depicts, but it also incorrectly dates the collection of the Senchas Már to the time of St. Patrick while scholars have been able to determine that it was collected during the eighth century, at least three centuries after the time of St. Patrick.[2] Some of the ideas in the tale may be correct, and it has been suggested by modern historians the Irish jurists were an offshoot from the poetic class which would have previously preserved the laws.
For some time, especially through the work of D. A. Binchy, the laws were held to be conservative and useful primarily for reconstructing the laws and customs of the Proto-Indo-Europeans just as linguists had reconstructed the Proto-Indo-European language. For instance, historians have seen comparisons between Irish and Indian customs of fasting as a method of shaming a wrongdoer, in order to recover a debt or to demand the righting of a wrong.[3] Other legal institutions prominent in early Irish law but foreign to most contemporary legal systems, such as the use of sureties, have been considered as survivals from earlier periods.[4] More recently historians have come to doubt such attributions. While few historians would argue that all Irish law comes from church influence, they are today much more wary as to what material is a survival and what has changed. A past may still be suggested for a certain legal concept based on Irish legal terms' being cognate with terms in other Celtic languages, although that information does not prove that the practice described by the legal term has not changed.[5]
Today the legal system is agreed to be some mixture of earlier law influenced by the church as well as adaptation through methods of reasoning which the Irish jurists would have sanctioned. It is not, however, agreed as to just how large a role each of these aspects may have played in the creation of the legal texts, but rather it represents an important scope for debate.[6] There is, however, one area where scholars have found material that is clearly old. A number of legal terms have been shown to have originated in the period before the Celtic Languages split up because they are preserved in both Old Irish and in the Welsh legal texts. On the other hand, this is not regarded as unquestionable evidence that the practices described by such terms are unchanged or even have their origins in the same period as do the terms.[5]
Another important aspect when considering the origins is that the early Irish law texts are not always consistent. Early Irish law is, like the Old Irish language, remarkably standard across an Island with no central authority. However, close examination has revealed some variations. Among these one can especially point to variations both in style and content between two of the major legal schools, as they are known; those which produced the Bretha Nemed and Senchas Már respectively.[7]
Cáin Adomnáin, a Christian Law, promulgated by the Synod of Birr in 697, sought to raise the status of woman of that era, although the actual effect is unknown.[8] Regardless, although Irish society under the Brehon Laws was male-dominated, women had greater freedom, independence and rights to property than in other European societies of the time. Men and women held their property separately. The marriage laws were very complex. For example, there were scores of ways of combining households and properties and then dividing the property and its increase when disputes arose. Later, under the church laws, rules relating to marriage changed. For example, in this later era, a woman could not pass her property onto her children. Divorce was provided for on a number of grounds (e.g. impotence or homosexuality on the husband's part), after which property was divided according to what contribution each spouse had made to the household. A husband was legally permitted to hit his wife to "correct" her, but if the blow left a mark she was entitled to the equivalent of her bride-price in compensation and could, if she wished, divorce him. Property of a household could not be disposed of without the consent of both spouses. However, under church law, women were still largely subject to their fathers or husbands and were not normally permitted to act as witnesses, their testimony being considered "biased and dishonest".[9]
While scholars have discovered a fair amount on the way in which Irish Kingship worked, relatively little is actually related by the early Irish laws. In particular, very little material survives regarding succession practices which have been reconstructed as the system of Tanistry; a section of the Senchas Már tract on status was apparently devoted to succession, although little survives. Most early material on succession was collected by Domnal O'Davoren in the 16th century[10] Another seemingly important omission is that the laws never mention the High King of Ireland centered at Tara.[11] Likewise, the laws only once mention the practice of individuals being ineligible for kingship if they are blemished (a practice which is evidenced more widely elsewhere, especially in Irish mythology). However, that mention is only incidental to a regulation on the compensation for bee stings when the legal tract Bechbretha relates the story of Congal Cáech who was deposed on account of being blinded by a bee.[12]
A fair amount of the material on kings relates to their position within the Irish laws of status, which see, of which the king is ranked at the top, parallel with the Bishops and the highest level of poets. Three levels of kings are referred to in the status tracts, such as Críth Gablach: rí benn, (the king of peaks) who is identified elsewhere as the rí túaithe (king of a [single] túath), who is below the rí buiden (the king of bands) who is identified with the rí túath (king of [multiple] túaths) or ruiri (overking), who in turn is below the rí bunaid cach cinn (the ultimate king of every individual) who is known also as the rí ruirech (king of overkings) and rí cóicid (king of a province).[13]
To a certain degree, kings acted as agents of the law. However, while other kings in Europe were able to promulgate law, such as Alfred the Great and his Doom book, the Irish had very little authority to do so. They could collaborate on law authored by the church; Cáin Adomnáin has the names of many kings attached to it who would apparently have acted to enact/enforce the law. Additionally, a king could issue a temporary law in times of emergency. But kings could not, by their own authority, issue permanent law codes.[14] Kings would also act as judges, although the extent of their power compared to that of professional jurists has been debated. One law tract, Gubretha Caratniad, describes a brithem giving advice to a king (in this case, advice which seems flawed but which is actually correct) who then gives it as judgment in a case. It is unclear, therefore, how much kings would have been able to make judgments by themselves and how much they would have had to follow the advice of a professional. It is clear, however, that a king would have had to give judgment in accordance with the laws. However, the kings do not appear to have stood as judges in all cases, and in some cases the professional jurists would take that role.[15]
One subject which the laws did cover is how the king fit within the rest of the legal system. The king was not supposed to be above the law. In fact, some stipulations applied specifically to the king. However, as the king was the most powerful individual, and the one with the highest honor in an area, it was difficult to enforce the law against him. Although it might have been possible to proceed against the king as against any other, the laws also had an innovative solution to this quandary. Instead of enforcing against the king directly, a dependent of the king known as an aithech fortha (substitute churl) would be enforced against instead, and the king would be responsible for repaying the substitute churl.[16] The laws also specified certain cases in which a king would lose his honor price. These would include doing the work of a commoner, moving around without a retinue, and showing cowardice in battle; again, though, it is unclear how often such stipulations were followed.[17]
Finally, the laws commented on how the king was to arrange his life and holdings and how many individuals should be in his retinue. In particular, Críth Gablach gives a highly schematized and unrealistic account of how the king spends his week: Sunday is for drinking ale, Monday is for judging, Tuesday is for playing fidchell, Wednesday is for watching hounds hunt, Thursday is for sexual union, Friday is for racing horses, and Saturday is for judging (a different word from Monday, but the distinction is unclear).[18]
According to the introduction to the Senchas Már the world had numerous problems before the creation of that text. Among those problems was that everyone was in a state of equality. Unequal status was of great import to early Irish society and it is recorded in many places in the early Irish laws.
The Irish law texts describe a highly segmented world, in which each person would have a set status that would determine what legal tasks they could undertake and what recompense they were to receive when a crime was committed against them. Críth Gablach and Uraicecht Becc are two of the main texts focusing on lay landholders, the latter of which also briefly covers the status of skilled individuals and of clerics.[19] Other texts describe other groups, such as Uraicecht na Ríar which focuses on the status of poets.
Much would depend upon one's status and each rank was assigned an honor that was quantified in an honor-price to be paid to them if their honor was violated by certain crimes. The types of food one received as a guest in another's house or while being taken care of due to an injury would vary based on status. Lower honor-prices could limit one's ability to act as sureties and as witnesses. Those of higher status could "over-swear" the oaths of those of lower status.[20]
In part the seven Ecclesiastical grades originate outside of Ireland although their position in Ireland has been shaped by local thinking. They are given in Uraicecht Becc as liachtor (lector), aistreóir (doorkeeper), exarcistid (exorcist), subdeochain (sub-deacon), deochain (deacon), sacart (priest), and escop (bishop)[21] although Bretha Déin Chécht puts the lector in a third position. These grades are subsumed into the Irish law of status, but it is unclear to what degree the conformed to all of the various status stipulations. It may be noted however that, according to Críth Gablach, the seven grades of the church are the basis for the theoretical seven lay and poetic grades (see below). At the same time it is clear that the number seven is an insular invention, in the Eastern Church there were normally five or six grades (sometimes more), and the Western Church typically had eight or nine grades.[22]
Although the various groups were theoretically on par with each other, the church apparently had supremacy. Críth Gablach states "Who is nobler, the king or the bishop? The bishop is nobler, for the king rises up before him on account of the Faith; moreover the bishop raises his knee before the king."[23] This relative ranking is reflected elsewhere. In addition, according to Críth Gablach the ranking of the lay grades was modeled after the ecclesiastical grades in that there should be seven grades, a number rarely met perfectly.
Irish law recognized a number of grades of people from unfree up to king which were ranked within the status tracts. Little space was given to the unfree, which is reflective of the lack of dependence upon slaves as opposed to other societies, such as Ancient Rome. However, slaves were mentioned in the laws, both male and female, and the term for a female slave, cumal, became a broader currency term. As unfree, a slave could not be a legal agent either for himself or in the case of another[24] In addition to the wholly unfree, there are a few individuals who are semi-free. The senchléithe (hereditary serf) was bound to the work the land of his master, whereas the fuidir had no independent status nor land of his own, but could at least leave as he might desire.[25]
Others might not be of full status based on their age or origins. The status of children would be based upon that of their parents and could not act independently of them. The rights of sons would increase with age, but they would not fully increase until after the death of the father. A young son who is just out on his own was known as a fer midboth (a man of middle huts), apparently someone who would occupy a hut upon the land of his father. These persons would be semi-independent but would not have the full honor-price of a free man until they reached 20.[26] Even after a certain age a "Son of a Living Father" would be expected to be dutiful to his father and could only set up an independent household with the permission of his father.[27] In addition, those from outside of a túath would normally have a low status as status was based not only on property but also on familial connections.[28]
There are two main ranks of commoners, the ócaire (lit. young lord) and bóaire (cow lord), although Binchy takes the ócaire to be a recent offshoot of the latter who would have less property but still be a freeman. In addition are the bóaire febsa (a bóaire of quality who had an honor-price of 5 séts). The highest commoner was the mruigfer (land man). Either of the last, according, Binchy, may be the "normal bóaire who appears within the law texts.[29] The three ranks of commoners, at least according to the status tract, vary in the type of clientship they would undertake as well as the property which they would hold, although it is unclear how such would work in practice. The commoners would apparently have to cooperate in farming as they would not have enough property to own a whole plough-share or all the rights in a mill.
Above these are a series of lords who apparently would have had clients of their own – the primary factor in lordship, as well as more property and a higher honor-price. According to Críth Gablach, each grade of lord increase by 5 séts for each rank, and would also increase in the number of clients. In addition, when they travel they would be expected to maintain a retinue with them. A lord would not only have greater ability, but also would need to take greater steps to preserve their honor, lest they lose their lordship. The order of lords varies, but in Críth Gablach it is as follows: aire déso (lord of vassals), aire ard (high lord), aire tuíseo (lord of precedence), and the aire forgill (lord of superior testimony).
After the normal lords are the tánaise ríg, who was supposed to be the heir to the throne. He had higher property qualifications that the aire forgill, but his prime claim to higher status was that he would one day be the king. The individuals with highest status described in the laws are the kings. The basic king would have an honor price of seven cumals, and the higher kings would have yet a higher status. As the individual with highest status, the king especially was expect to be careful in keeping his honor, and cowardice as demonstrated in flight from battle, as well as taking up manual labor might make him lose his honor-price.[30]
These grades are generally equated with the seven grades of clerics, although there is some discrepancy as to how the grades line up, with various texts doing it in different ways and selecting only certain lay grades and ignoring others.
The ranking of lay grades has been seen by many scholars as rather schematic and not reflecting realities on the ground. Some of the texts give considerable detail on diet, tools owned, number of livestock and even the size of a house which a person of a given status would have. Modern scholars have generally assumed that such details would rarely match exactly what someone of a given rank would have. In addition, Críth Gablach contains the fee a client would pay to a lord according to rank from the lowest free man through the noble ranks even though none of the nobles would be another's client.[31]
Paralleling the status of the lay grades are the grades of the filid (poets). Each poetic rank corresponds to a particular lay (and ecclesiastical) rank, from Bóaire to king. In Uraicecht na Ríar these are given as fochloc, macfuirmid, dos, cano, clí, ánruth, and ollam.[32] These are given the same status as and the same honor prices as the lay grades, and hence have effectively the same rights. The qualifications for each grade is where the difference occurs. The qualifications fit into three categories, the status of the poet's parent or grandparent, their skill and their training. Particular number of compositions are give for each rank, with the ollam having 350.
In addition to the seven main ranks, there are variously named ranks below these which seem to be names for unskilled poets, the taman, drisiuc, and oblaires. Their honor prices are no more than a pittance, and their poetry is apparently painful to hear.[33]
Other professions could give status based on the profession and the skill, but no professions besides poets could have a status as high as the bishop, king, or highest poet. For instance in one text the jurist or brithem had three ranks, and the highest was given an honor price only half way up the other scales. The ranking of a brithem was based on his skill and whether he knew all three components of law (here: traditional law, poetry, and canon law), or fewer. A craftsman who worked with wood could have similar honor-prices but these were based on his craftsmanship. However, a physician and a blacksmith among other ranks would have an even lower honor-price, less than half of what the brithem could achieve and the honor-price apparently did not vary based on his skill. Other professionals, such as the maker of chariots or engravers had still lower honor-prices (less than that of a bóaire). Finally a few professions receive only meagre ranks, as with the lowest poets, and the authors may be actively making fun of some of the professions, such as comb makers.[34]
Status in early Ireland was not entirely rigid and it was possible for a family to raise their status; if for three consecutive generations the grandfather, and the father, and the son had the property qualifications of a lord, or the poetic qualifications of a higher level poet, etc. then the member of the third generation would become a lord, etc. On the other hand the son/grandson of a lord or a poet, etc., who did not have the proper qualifications would not have that status. However, the grandson of a person with a certain status could have that status themselves, assuming they had the proper qualifications, even if their father did not.
This created an interesting in-between stage. A commoner who had the property qualifications but not the parentage to become a lord is variously referred to as a flaith aithig, (a commoner lord), a fer fothlai (a man of withdrawal), or an aire iter da airig (an aire [here with a broader meaning than lord] between two [types of] aires). According at least to Críth Gablach, these individuals would have higher status than a commoner but lower than that of a full lord.[35] In the case of poets, a poet with skill qualifications but who did not have proper training is referred to as a bard. (However, it has been suggested that poets who were not allied with the church were given this rank for that reason).[36]
In addition, there were ways in which, under extraordinary circumstance, an individual could achieve higher status without having parents with such qualifications. If one chose to become a briugu (hospitaller), one would have twice the normal property qualifications of a lord of whatever grade (and this can extend, in theory, up to the qualifications of a king). Further, a briugu had to have his house open to any guests, which included feeding them no matter how large the group – he would lose his status if he ever refused a guest.[37] Because of that stipulation, the position of briugu was potentially ruinous, and this outcome is portrayed in a number of tales such as in Togail Bruidne Da Derga and Scela Mucce Meic Datho. A commoner might also ascend to the status of a lord if he is a aire échta (lord of violence). Such a person helped individuals to avenge deaths committed in another túath for a limited time after the cessation of hostilities, although the details are unclear.[38] A poet who had the skill and training of a rank, but not the proper familial qualifications, would receive half the honor price that his skill and training would otherwise earn him.[39]
A member of the property-owning classes could advance himself by becoming a "free client" of a more powerful lord, somewhat akin to the Roman system of clientship. The lord would make his client a grant of property (sometimes land, but more usually livestock) for a fixed period of time. The client would owe service to his lord, and at the end of the grant period would return the grant with interest. Any increase beyond the agreed interest was his to keep. This allowed for a certain degree of social mobility as an astute free client could increase his wealth until he could afford to have clients of his own, thus becoming a lord in his own right.
A poorer man could become a "base client" by selling a share in his honour-price, making his lord entitled to part of any compensation due him. The lord would make him a smaller grant of land or livestock, for which the client would pay rent in produce and manual labour. A man could be a base client to several lords simultaneously.
On account of the structure of early Irish society, all law was essentially civil and offenders had to answer only to the victim or the victim's representative. This is important to point out as in case of serious injury it is in stark contrast to most modern legal systems.
Although early Irish law recognized a distinction between intentional and unintentional injury, any type of injury was still normally unlawful and requiring compensation. The main exception is injuries received when the victim has gone into a place where injury is likely. In all other cases an injurer would be responsible for paying a fine. The legal text Bretha Déin Chécht "The Judgments of Dían Cécht" goes into considerable detail in describing the fines based on the location of the wound, the severity, and in some cases the type.[40]
According to that text, the payment would be decided after a period of nine days by a physician. Prior to that time, the victim would be looked over by his family and a physician. It is suggested that effects of the wound would be clear to a physician at that point if not before. First, either the victim would have died if such was likely, or it would be clear that the patient would be in danger; if the first was the case the injurer would have to face the punishment for murder and in the second he would have to pay a heavy fine known as crólige báis, "blood-lying of death."[41] If the victim had recovered but his wound was still present it would be measured and a fine had to be paid for it. Bretha Déin Chécht describes that the wound would be measured according to how many grains of a certain plant would fit into the wound. The higher status one was, the smaller the grain used. Thus, there are nine grains mentioned in the text, from a grain of wheat to a bean.[42] If wound would not heal, and thus the physical blemish might be a problem for the victim's honor, further payments would be necessary.[43]
Early Irish law saw certain locations, known as the "twelve doors of the soul" were considered particularly severe. It has been suggested that this is because the potential for such wounds to turn deadly, although the law texts do not suggest any reason. In such cases the physician would be entitled to a greater share of the fine – one half. Similarly, if the wound is one of "the seven principal bone-breakings," or if it causes constant vomiting or bloody urine the physician would also receive a greater fee.[43]
If it seemed that the patient would recover but still needed to be nursed, than the injurer would be responsible for his nursing. This was known as sick maintenance, rendering variously crólige, folog n-othrusa, folog, or othrus in different texts. Bretha Crólige goes into great detail about this process, describing how the injurer would be responsible for finding a suitable location and moving the victim. Then the injurer would have to pay also for the food which the victim and a retinue – which could be considerable depending on the victim's rank – was entitled to.[44] The injurer was also responsible for providing someone to fulfill the victim's duties while he is sick. He also had to pay a fine for the missed opportunity for procreation if appropriate.[45]
Bretha Crólige also goes into the importance of keeping a proper environment for the victim during his sick-maintenances. Largely this means that anything that might cause loud noise was prohibited in the vicinity. This would have included fights by men as well as by dogs, the playing of games and even the disciplining of children.[46]
However, it is also clear from the law tracts that the practice of Sick Maintenance was being discarded. Thus, while Críth Gablach mentions some of what each individual is entitled to while being nursed according to his rank, it also mentions that the practice was no longer in use and instead an additional fine was used which would encompass the same provisions that the injurer would have to pay for if sick maintenance was used.[47] Bretha Crólige does not mention anything about the practice being obsolete. However, it does mention that certain types of person could not be maintained because of the difficulty in doing so. Thus it was very hard to provision those of the highest rank and obviously impossible to find a substitute to do their work. Certain professionals could similarly be difficult. On the other hand, a number of persons could cause difficulty to the people maintaining the victim. Such troublesome individuals included the insane and women likely to cause trouble for those nursing them.[48]
Early Ireland has the distinction of being one of the first areas to shun capital punishment. While a murderer might be killed for his/her crime, this was the option of last resort. Instead the murderer typically had to pay two fines. One is the fixed éraic or cró, that is either a "body fine" or a "wergild", and the other is the Log nEnech, an honor price which varied according to the status of the victim. Should the murderer be unable to pay by himself, his family would normally be responsible for paying any amount which the murderer could not pay. Should the family be either unable or unwilling to pay, the victim's family would take custody of the murderer. At this point, the victim's family had three options; the first two were to either await payment or to sell the murderer into slavery. A third possibility was that they would kill the murderer, but even then the monetary possibilities may have discouraged capital punishment in some cases. In certain cases, though, where the killer and victim were relatives, capital punishment could not be carried out as it would make the executioner commit fingal or "kin-slaying". In a second situation the murderer could also be killed. That is, if the murderer was at large and the fines had not been paid, the victim's family was apparently responsible to launch a blood feud.[49] It is, of course, unclear how often capital punishment was carried out in situations where it would be licit without any records other than the legal tracts. However, it is clear that that punishment could be avoided in most cases.
The origin of this particular legal provision is as unclear as the rest of Irish law. However, the so called "Pseudo-Historical Prologue to the Senchas Már", a late introduction to the main collection of Irish law, makes a claim on how this came about. It declares that prior to the coming of St. Patrick, Irish law demanded capital punishment in all cases of murder. However, Christianity was supposed to preach forgiveness. The two fines are apparently a compromise so that the murderer is both punished and forgiven.[50] However, it is at least dubious whether or not this is a valid historical account, given the lateness of the story (originating hundreds of years after Patrick's time).
Early Irish law recognized a number of degrees of agnatic kinship, based on common male ancestor. The closest kin group which is defined gelfine (bright-kin), the descendants of a common grandfather (including the grandfather's relationships to his descendants and his children), which is followed by the derbfine (certain-kin), the descendants of a common great grandfather, the iarfine (after-kin), the descendants of a common great great grandfather, and the indfine (end-kin), all of which contain the old Irish word for kin or family, fine.[51] The derbfine is, by far, the kin-group which is most commonly mentioned.[52]
One member of the kin-group would be its leader, known either as ágae fine (pillar of the family) or cenn fine (head [literally] of the family). He would apparently be a senior member selected from the kin-group based on various qualifications. One of his main responsibilities was to take responsibility for members of the kin-group, acting as a surety for some of the actions of members, making sure debts are paid (including for murder), although if the member could not be made to pay, the fee would normally be paid generally by members of the kin. He would also be responsible for unmarried women after the death of their fathers.[53]
As mentioned above, the actions of a member could result in a fine having to be paid by other kin. However, in certain cases the kin-group could refuse liabilities, although in some cases only after they been proclaimed as a non-member, which might occur if the member did not carry out his responsibilities to the kin. One particularly heinous crime in early Irish law was fingal (kin-slaying), because it was against a group which should have some right to trust. The killer would have to give up their kin-land, but would still be liable to pay the fines incurred by other members of the kin.[54] An undutiful son might also be excluded from certain kin rights as well, especially as sons of a living father generally did not have significant rights of legal actions except as permitted by the father.[55]
Early Ireland practiced partitive inheritance whereby each of the sons would receive equal portions, and any grandsons whose father predeceased their grandfather would equally split their father's portion. Early Irish law typically did not distinguish between "legitimate" and "illegitimate" children, so any recognized, even those of concubines, would receive a portion. On the other hand, disobedient sons were automatically excluded. In addition, adopted children could receive a portion of kin land although this status as an inheritor and the amount they would inherit would have to be explicitly stipulated.[56] When the Normans entered Ireland and saw this practice they named it Gavelkind on account of its apparent[57] similarity to Saxon inheritance in Kent
The divisions of land is somewhat obscure. One maxim suggests that the youngest son divided the land into equal parts. The eldest chose first, followed by the second and so on until the youngest received the remaining land. This was intended so that the division of land would be made equally. Other laws suggested that the eldest son would have automatically claims to the buildings. However, there are some hints that this only happened if a younger son challenged a division; the normal practice would have been that the eldest son both divided and chose first but had to divide equally.[58] More rarely, a father might divide the land for his sons in his lifetime.[59]
While a daughter with brothers would not normally receive a portion of the inheritance in land, she would inherit movable property. However, should there be no sons, some of the law tracts allow the daughter to inherit a limited portion. However, unless her husband was a foreigner to the túath and had no land of his own, the land would not descend to her sons, but instead return to the other members of her agnatic kin group. However, there was apparently pressure for a woman with land to marry a relative to keep the land within the kin group.[60]
Finally, if a man died without children of either gender, the property would be distributed between his next nearest kin, first the descendants of his father, and if there were no such descendants, then it would be between the descendants of his grandfather, and so on. Any extra land which daughters could not inherit because of female inheritance limits, would also go to the wider kin.[61] The head of a kin group was entitled to extra property since he would be liable for debts which a kinsman could not pay.[62]
The potential for inheritance by even distant kin meant that, in Early Irish law, those kin all had some sort of right in the land. Land which had been inherited was known as finntiu (kin-land). Certain rights of use of land by the owners kin seem to have existed. Moreover, it was possible that land could be redistributed if a certain branch of the family had few descendants and hence larger shares in the land per person. In such a case even some more distant cousins could acquire the land, although they would have benefited less than closer kin.[63] Apparently because of these potential claims it could apparently be difficult to alienate kin-land. However, even when selling land which an individual had acquired separately from inheritance, a portion would go to his kin.[64]
Ireland had no regular central authority capable of making new law and hence the Brehon laws were entirely in the hands of the jurists. As such some early scholars felt that the legal system was essentially unchanging and archaic.[65] However, more recently scholars have noticed that some methods of change were laid out within the Brehon laws. In particular, Cóic Conara Fugill mentions 5 bases upon which a judge must base his judgment and at least three offer some room for change: fásach legal maxim, cosmailius (legal analogy), and aicned (natural law) (the other two are roscad, a type of legal verse which jurists were trained to create and hence marked a statement made by someone who knows the law[66] and teistimin (scriptural testimony)). However, it has not yet been studied in detail how exactly these three innovative methods were used.[67]
The Use and application of maxims is clearly a location where the principles of Irish law could be recorded. Any number of maxims may be found within the Early Irish Laws and perhaps the reason why we are unable to derive a coherent theory of law from them is because there are a great many different topics. Some do seem to represent a legal theory, such as the maxim in Bechbretha that "no-one is obliged to give something to another for nothing" and that in Bretha Crólige that "the misdeed of the guilty should not affect the innocent". These maxims do say more than one might think since legal systems often have problems balancing the interests of all.[68] The majority of maxims, however, treat with more specific problems. The main problem, however, with our understanding of maxims is that while one law text tells us that they were used as a basis of judgment we know little else about them; we do not even know how exactly maxims could be used for judgment. A further complication is that we know very little about the origin of maxims (or even what the jurists thought was the origin) and similarly we do not know whether jurists were introducing new maxims regularly or whether all maxims were supposed to be from time immemorial.
Early Irish law mentions in a number of places recht aicned or natural law. This is a concept apparently borrowed from, or at least akin with, European legal theory, and reflects a type of law which is universal and may be determined by reason and observation of natural action. Neil McLeod has identified with concepts that law must accord with fír (truth) and dliged (right or entitlement), two further terms which also occur frequently although they are never strictly defined in Irish law. Similarly, the term córus (law in accordance with proper order) is used in some places and even in the titles of certain texts. The laws tell stories of how truth could apparently cure a person and falsehood could cause blisters. These were two very real concepts to the jurists and the value of a given judgment with respect to them was apparently ascertainable. McLeod has also suggested that most of the specific laws mentioned have passed the test of time and thus their truth has been confirmed, while other provisions are justified in other ways because they are younger and have not been tested over time.[69]
The early Irish laws are devoid of a state centered enforcement mechanism and at least some of the judges were outside the state apparatus. This did not mean that the laws were ineffective, rather the methods of enforcement of legal procedures worked in such a way to fit with the conditions of society.
Sureties were the prime enforcers in early Irish law. They were not government officials but rather sureties were normally appointed when a contract or other legal relationship. Berad Airechta, the law tract which deals most with sureties, offers formulaic speeches which the contractors may have said in order to appoint sureties and to make the sureties swear to perform their duties properly. In addition to sureties appointed for specific contracts, relatives might be expected to act as sureties in cases which they were not specifically bound. However, there is also evidence that most sureties would either be relatives or lords of the contractor.[70]
Three types of sureties appear in Irish law. The naidm (and in earlier texts macc) refers to a surety who is expected to enforce payment from the contractor. Apparently, in standard contracts two naidmain (plural of naidm) were appointed by each party. The word naidm, however, might also refer to the "binding" of a contract. If the contractor whom he is appointed for defaults it is the naidm's responsibility to attempt to make the contractor pay. If however he does not act or does not put in sufficient effort he loses his honour price. In attempting to extract payment, the naidm had a wide range of powers. He might distrain the contractors property, imprison or even violently attack the contractor. Apparently, as with witnessing, someone could not be a naidm to a contract worth more than his honor-price.[71]
The ráth is generally referred to as a "paying surety". Should the contractor default it ráth's responsibility to pay the debt from his own property. He would then be able to attempt to extract the money from the contract. Assumedly, the ráth would only pay if the naidm had been unable to make the debtor pay. Since acting as a ráth could mean financial loss that might not be repaid, the law tracts apparently see the position as dangerous and as one of three "dark things of the world".[72] However, it is clear also that the ráth, like the other sureties, would be paid a fee when they were hired which would potentially make up for the risk undertaken. Again, a person was not able to act as a ráth in contracts worth more than his honor-price although it was possible that one might act as a ráth for only part of a contract, in which case they would be responsible for payment only up to their honor-price.[73]
Finally, the aitire is a surety who would become a hostage in the case of a default. Once the hostage was in captivity, the debtor had ten days to pay the debt in order to have the hostage released. If the hostage was not released by then the expenses to the debtor could become exorbitant. The aitire would have to pay his own ransom by paying his body-price which would be expensive and the debtor would have to pay twice that fee plus the surety's honor-price. The aitire could enforce the debt to him by himself.[74]
Brehon law was produced in the vernacular language by a group of professional jurists. The exact relationship of those jurists to the church is subject to considerable debate. However, it is clear that Brehon law at times were at odds with and at times influenced by the Irish Canon Law.
A number of law tracts which originated from the church were written in Old Irish. The most famous of these is Cáin Adomnáin. This law was apparently created in 697 under the influence of Adomnán and was ratified by a number of ecclesiasts and Kings whose names were included in the text. The idea of the law was apparently to supplement the punishments of Brehon law for crimes against women, children, and clerics. In some ways it follows the ideas embodied in Brehon law although there are differences. For instance in its use of capital punishment which is generally avoided in Brehon law.[75]
More contradictions exists with Latin Canon Law such as in the Collectio canonum Hibernensis (Irish Collection of Canons) than with Vernacular Church law. Brehon law allows polygyny (albeit while citing the authority of the Old Testament) and divorce among other actions which canon law expressly forbid.[76]
At the same time it is clear that the two legal systems have borrowed from each other. Much Latin terminology has entered into Old Irish and into the legal system, such as a type of witness teist from Latin testis. The Collectio Canonum Hibernensis also borrows terms found in Brehon law such as rata from Old Irish rath, a type of surety. The latter also suggests more substantive borrowing from Brehon Law into Canon Law.
There are a number of places where it is clear that law was borrowed in one direction or another. Large sections on the Church have been translated wholesale from the Collectio Canonum Hibernensis into a section of the Law tract Bretha Nemed.[77] Other overlaps have been suggested, in many cases where biblical references seem to appear in the Brehon law.[78] of course, it is not always clear in cases where both cite the same rule which came up with the rule originally. In addition to substantive law, other legal aspects may be seen in both, such as the propensity towards the use of analogy.[78]
The above similarities have led scholars to ask what relationship did Brehons have with clerics. Some scholars, known as anti-nativists, have suggested that the Brehons were nothing more than clerics who had training in secular law. In addition to the similarities and evidence of borrowing from Canon law and the Bible, scholars who hold this position ask how any non Clerics could have been sufficiently literate at this period to create the texts. Other scholars, known as nativists, have asked how the differences could arise if the authors of Canon and Secular law were indeed the same.[79]
Scholars have found over 100 distinct texts which we know about, with their survival ranging from complete texts, through various degrees of partial preservation, and in some cases only as a name in a list and even, in one case, a tract that scholars have decided must have existed. Almost all of the secular legal texts existing in various manuscripts have been printed in D.A. Binchy's six volume Corpus Iuris Hibernici and a few texts which were left out of that work made it into another book intended as a companion to the Corpus Iuris Hibernici.[80]
A number of the legal texts may be categorized together on account of related authorship. The largest such grouping in the Senchas Már a collection of at least 47 separate tracts which were compiled into a single group sometime in the eighth century although the individual tracts vary in date. It may also be mentioned that the tracts are almost certainly written by a variety of authors, although there have been suggestions that certain authors wrote more than one of the included tracts.[81] The collection was apparently made somewhere in the north midlands.[82] The Senchas Már tracts have been subjected to the greatest amount of glossing and commentary in later manuscripts. Moreover, one of the few examples of Old Irish glossing has been given to the various texts of Senchas Már. These glosses were apparently made in Munster.[83]
The text has been arranged into three thirds—three was apparently a number of particular importance to the Irish, a number of laws were grouped into threes which were called triads, a practice common also among the Welsh. One scholars has recently suggested that there were a number of groups of six including one single tract, generally from the first third, two contiguous tracts generally in the second third, and three contiguous tracts from the third third. Each group of six is theorized to be related to each other in various ways.[84] The prologue ascribes the authorship of the book to a committee of nine appointed by St Patrick to revise the laws. It was composed of three kings, three bishops, and three professors of literature, poetry, and law. Chief among the latter was Dubthach. It became his duty to give an historical retrospect, and in doing so he exhibited "all the judgments of true nature which the Holy Ghost had spoken from the first occupation of this island down to the reception of the faith. 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 Patrick and by the ecclesiastics and chieftains of Ireland. This is the Senchus Mor." [85]
A few specific texts may be usefully mentioned here. The Pseudo-Historical Prologue was not an original part of the Senchas Már, but was actually a later addition which attempted to give a historical background. It should be noted that there is also an original introduction distinct from this text. The Pseudo-Historical Prologue was concerned with the changes in the Brehon law which it suggested occurred at the coming of Christianity. In effect, Saint Patrick is supposed to have blessed the mouth of the Chief Ollam of Ireland, Dubhthach moccu Lughair who then gave judgment on a particular case regarding the killing of Saint Odran an assistant and charioteer to Saint Patrick and then continued to recite the rest of the law leaving unaltered those laws which were acceptable to God and altering those which were not. This case is also given as the reason why Brehon law did not favor capital punishment; while the murderer of Patrick's assistant was killed and immediately sent to heaven because he was forgiven by Patrick, future murderers were to be pardoned as Patrick would not be around to assure their forgiveness and ascent to heaven. There is, however, no reason to think that the events described actually occurred although they do offer important insight in how the Brehons thought about their own law.[86]
Literally the four paths of distraint, a process by which one was allowed under certain circumstances to seize goods owed by another. However, in Brehon law one does not immediately own the property, rather animals are taken to an intermediary land to wait in case the original owner will pay the debt. As time passes, the animals are slowly forfeited. This tract deals primarily with four types of distraint, divided based on the waiting period. The waiting period apparently varies based on the circumstance although no one has yet determined what exactly those circumstances are. Other material present includes information of other aspects of legal procedure and a long section where the author asks and then answers multiple times, why the tract is called Cethairslicht Athgabálae.[87]
These two texts, "The Regulation of Noble Fief" and "Regulation of Base Clientship", deal with the structure of lord client relations. These two tracts regulate the circumstances of entering into clientship as well as setting forth what goods and services were given by the lord in return for what goods and services the client would give.[88]
This tract, the "Law of Couples", deals with not only regulations for marriage but for other unions as will. It lists tens types of coupling including three types of formal marriage, five unions where there are sexual relations but no sharing of property or cohabitating, union by rape and union by two who are mentally incompetent. The text then goes on to deal with common property as well as how it is divided upon divorce.[89] Broken link.
The vaguely named tract Córus Bésgnai (or Córus Béscnai) has been translated as both "The Ordering of Discipline" or "The Regulation of Proper Behavior".[90] This is a tract which describes the relationship between the Church and the people as a contract; the people have to donate tithes and first fruits and the like, while the church must provide services such as baptism and make sure that its members must be honest, devout, and qualified.[91] This is also a text which has been used both to try to show the influence of the church on Brehon law and to also to point to certain aspects which canon lawyers would disapprove of.
At the beginning of the second third of the Senchas Már is collection of "Heptads" or collections of seven related rules (although in some cases there are more than seven). This tract actually has no single theme, rather it is useful for what it can say about various aspects of Brehon law. The tract includes sixty five heptads, although more appear elsewhere in the Senchas Már.[92]
"Bee-Judgments" and "Kinship of Conducted Water" are two tracts which some scholars believe to have been written by the same author.[93] These two tracts both present legal information about relatively new animal and technological introductions to Irish law from elsewhere in Europe, Bees and Watermills. Hence they show the Brehons adapting to new legal challenges. In particular, this is one area where it is possible to see legal analogy in action.[94]
Sections on Sick-Maintenance, "Judgments of Blood-Lyings and Judgments of Dían Cécht are three contiguous tracts in the third third of the Senchas Már. The first two deal with the practice of sick-maintenance (see above) and the third deals with payments for injuries. Unfortunately Slicht Othrusa only survives as a fragment. These tracts give us most of our knowledge on the law regarding injury, while a few other tracts exist which cover specific situations.[95]
In addition to the school which produced the Senchas Már, scholars have detected a few other legal schools which produced texts. The next most fully formed is the Nemed or Bretha Nemed school, named after two of the texts which it produced. This school, which has been referred to as "poetico-legal" apparently was located in Munster, based on references which the authors make to the King of Munster and to two monasteries within Munster.[96]
These two texts, the "First Judgment of Privileged Ones" and the "Final Judgment of Privileged Ones" are the later scribal names of two texts written primarily in the obscure roscad style of poetry. The first describes the roles and status of the church, poets and various other professionals. The final primarily with the status and duties of poets although it contains other material as well.[97] The first is also one of the few early texts which scholars have assigned an author, namely three brothers hua Búirecháin who are a bishop, a poet, and a judge.[98]
The Uraicecht Becc ("Small primer") is a text on status which has the greatest breadth in coverage, including not only commoners, kings, churchmen and poets, but also a variety of other professional groups, including judges. However, it does not go into as much detail for each group and level as do other status tracts.[99]
A number of other texts exist which have not been grouped together as coming from either the same author or from the same school. This is not to say, however, that no affiliation existed for the authors of other texts, only that scholars have not been able to find them. A few important texts may be mentioned.
Literally "Shearing of the Court", Fergus Kelly has suggested that this might mean more loosely "court summary" or "synopsis of court procedure."[100] The text deals with a number of topics for judicial procedure, but most importantly on the role of the various types of sureties. Perhaps even more interesting, it covers the ways in which sureties would be appointed to do their duties and hence it is informative on the way contracts were created.[101]
"Branched Purchase" is the title of what is perhaps the most well-known tract on status and certainly the most accessible, as a modern printed edition (though not a translation) has been published by the Dublin Institute for Advanced Studies.[102] The text goes into details on the grades of commoners and nobility: what property should they own, how large should their house be, how should their clientship be arranged. The text however present a schema which would not have been used in actuality. For instance, included is the clientship information for even the highest nobility who would not have acted as clients. The text also presents a certain amount of interesting information on the duties of king.
In addition to the main text, there is a poem which immediately follows it in the manuscript, but there has been some debate as to whether this is actually a part of the tract.[103]
"On the Binding of Contracts" is a two part text which deals with when contracts are binding and when they are not. The first section deals with general rules regarding when contracts are binding, including an analogy to the fact that Adam's trade of an apple for access to the Garden of Eden was valid even though it was an uneven contract because Adam knew it was such. The second half deals with cases in which a contract may be over turned. The tract is also interesting because it is a collection of material from varying dates and places and as such much more uneven in content than other tracts.[104]
The "Primer of Stipulations" is a text on the status of poets. It includes information on compensation based on status, but it also includes information about the poetic craft such as the number of type of positions one must have to be a certain grade. It also describes the difference between a fili and a bard.[105]
While most of the legal tracts were composed during the seventh an eighth centuries, there were some independent tracts as well as a significant amount of glossing and commentary which began often within a century of when some of the tracts were composed.
The most voluminous legal material written after the eighth century takes the form of notes upon that earlier material. There have been numerous questions about the degree to which such glossators understood material which they were working upon.[106] However, it is also possible that in some cases jurists used the earlier material for a legitimate method of explaining the ways in which the law had come to work. This material takes two main forms: glossing between the lines of a text, and mini texts which begin with a quote from earlier legal material.
The 16th Century jurist Domnall O'Davoren created a glossary in which he quoted from many other sources. In many cases it is only text which includes certain quotes as well as information about certain whole law tracts. Its primary focus, however, is to list and define certain words, particularly legal terms, and as such has provided significant help in understanding the oldest laws.[107]
While the majority of legal texts were written before the ninth century, a few were written later. "The Distribution of Cró and Dibad" is a Middle Irish text which deals with extracting fines from a killer and dividing a dead man's property.[108] Additionally, the legal text Cóic Conara Fugill(the Five Paths of Judgment) was originally written during the earliest period but received a number of subsequent recensions afterward. The text deals with how a court case should proceed based on the substance of the intended argument. It is not clear, however, what distinctions are made in this text.[109]
Early Irish Law is almost completely lacking in case law. What exists are a few brief references in a number of texts, both legal and non-legal, which reference the laws in action. For instance Bechbretha mentions the case of a king who lost his throne because he was blinded by a bee.[110] Additionally, the Latin Life of St. Columba refers to the case of a man who killed another and the subsequent punishment which he was supposed to endure.[111]
Following the Norman invasion [from 1171], areas under Anglo-Norman control were subject to English law. One of the first changes came with the Synod of Cashel in 1172, which required single marriages to partners that were not closely related, and exempted clergy from paying their share of a family's eraic payments.
Henry II, who created the Lordship of Ireland, was also by chance a legal reformer within his empire, and started to centralize the administration of justice and abolish local customary laws. Strongbow was assigned large parts of Leinster in 1170 under the Brehon law by his new father-in-law Dermot McMurrough that were then regranted by Henry. Landowners such as the Earl of Kildare could claim a continuous title that just predated the Lordship itself.
In the centuries that followed, a cultural and military "Gaelic revival" eventually came to cover the larger portion of the island. The majority of Norman barons eventually adopted Irish culture and language, married in with the native Irish, and adopted Irish legal custom. By the 15th century, in the areas outside of the English controlled Pale around Dublin, and some notable areas of joint tradition in northern and eastern Munster, Brehon law became the de facto legal writ.
Nevertheless, the Brehon Laws could never be adopted on an official basis by the English-controlled government of the Lordship of Ireland, although some modernized concepts have been readopted in the laws of the Republic of Ireland. The imposition of the Statutes of Kilkenny in 1367 and the policy of Surrender and regrant effectively outlawed Brehon Law. In one exceptional case, vestigial rights have been recognised in recent Irish case law, in reference to the survival of Brehon law-governed customary local fishery rights in Tyrconnell, but these also amounted to an easement under Common Law.
The Tudor conquest of Ireland in the mid-16th century, ending in the Nine Years' War (1594–1603), caused Tanistry and Gavelkind, two cornerstones of the Brehon Laws, to be specifically outlawed in 1600. The extension of English law into Ulster became possible and led in part to the Flight of the Earls in 1607.
Elements of Brehon law operated in dwindling remnants in the Gaeltacht in the west of Ireland and in the Scottish Isles, notable on the isle of Lewis. On Lewis, the chiefs of the Morrison clan (earlier, Clann mhic Amhlaigh (Macaulays) of Uig in Lewis, and Sliochd a' Bhreitheimh, later Morrison) continued to hold office as hereditary brieves (Scots for bretheamh or brehon) or judges of the MacLeod clan of Lewis into the seventeenth century.
The last Morrison to exercise the office was put down with Letter of Fire and Sword in about 1619 It is probable that it was last operative in Lewis by about 1595 or so. See the later history of Clan Morrison.
The Brehon laws play a large role in the Sister Fidelma series of historical (7th c AD) crime books by Peter Tremayne, and in those of Cora Harrison's Mara, Brehon (investigating judge) of the Burren (early 16th c AD). They are also the underlying principles seen in such Irish saga as Táin Bó Flidhais and Táin Bó Cuailnge