CHAPTER XLII 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[Pg 584] Seanchus Mór [Shan?χus 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[Pg 585] 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[Pg 586] 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[Pg 587] 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.[Pg 588] 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."

[Pg 589]

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 c?s (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[Pg 590] 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.
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[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 "c?sus," whence Irish c?s and German Zins.

[8] See under the words Athgabail, Flaith, Ferb, Ness, as Jubainville has pointed out.