Brehon Law: A legal handbook

[Murphy]

SECTION III.

CONTRACTS AND WILLS

From The Brehon Laws by Laurence Ginnell, 1894

CONTRACTS between individuals do not assume great importance among a people organised in clans until clan responsibility has begun to give place to the responsibility of individuals. The provisions of the clan system, coupled with the simple country life of our ancestors, left little occasion for contracts either of the commercial sort or under seal among them; and the same system so fully provided for the devolution of their property after their death that there was hardly any occasion for wills. In transferring property in goods, barter, which was far more extensively employed than true sale, was in general more conclusive and gave rise to fewer questions for legal decision. Contracts relating to land were not numerous. They could in general be made only with the concurrence of the sept and in the presence of a flaith of high rank called the Aire-forgaill. Some written contracts relating to land have been preserved, perhaps from the fourteenth century; but while other writings of apparently less private importance are carefully dated, these are without date.

It is at first sight strange that written contracts and wills were so little used among a people so addicted to writing on other subjects. The explanation is, that the clan system rendered them unnecessary. They were exceptional and foreign to that system, and while it continued in effective operation the amount of property affected by contracts and wills was probably not great. Nevertheless, some rules relating to wills are laid down in the Corus Bescna; and the Senchus Mor contains a good deal about contracts, from which it is clear that warranty on the sale of goods was well understood and frequently given and taken; and the importance of a valuable consideration, not generally recognised in English law until the last century, was perfectly well known in Ireland. Anything done without valuable consideration is described as done "for God's sake," and imposed a very slight if any legal obligation on the other party to it. From the expression frequently used that "Nothing is due without deserving it," we must infer that a valuable consideration was essential to the binding of a contract of any kind.

It also appears that to form a contract perfect and legally binding a witness was necessary, that this witness should in general be of the tribe of the party on whom the performance of the contract lay, that his status was an important legal element, and that by acting as witness he incurred the liabilities of a surety.

Many rules are given as to the times within which in different circumstances sales might be set aside. A contract of two sane adults, with knowledge and warranty, might, on fraud being discovered, be dissolved in twenty-four hours. Without knowledge and without warranty it might be dissolved for ten days after the fraud was discovered. In both cases the "knowledge" is that of the buyer. The law seems more concerned about the state of the buyer's mind at the time of the purchase than about that of the seller.

Ratification of contracts made by persons under subjection and therefore not fully entitled to contract was also well understood. "One is held to adopt what he does not repudiate after knowledge, having power."
From a passage I have quoted it would appear that, as in English law until recently, a married woman was merged in her husband while he lived, and could not be bound by any contract made by her. This, however, is subject to some qualification, for it is clear from other passages that a woman could contract, in the presence of her husband, to the amount of her own honour-price.

Few married women had either taste or occasion for asserting what are now called women's rights.

A boy was deemed to have no sense until he was seven years old, only half sense from seven to the end of his fifteenth year. Even after this period he had strictly no power to contract so long as he remained a member of his father's household; but if he did make a contract with his father's knowledge it was binding on the father unless promptly repudiated. If once ratified by the father it was treated as his contract.

Monks on becoming such lost the capacity of contracting; but a monk who became abbot, or was appointed to manage the temporal affairs of his community, was allowed to contract on behalf of the community.

The non-free had very meagre powers of contracting, and the lowest grade of them had none at all.

[Murphy]

SECTION IV.

ARTISANS

From The Brehon Laws by Laurence Ginnell, 1894

ONE does not expect to find much in these ancient laws relating specially to artisans. The ordinary law applied to them as to other people, and they were not sufficiently numerous to call for special treatment. We are told that their social status was determined by the rank of those for whom they worked. If this was so, its effect in practice probably was to make the position of artisan to a chief an object of ambition in each particular craft and the reward of superior skill in that craft; and if the artisan continued to progress, his status would rise pari passu with his skill—a very just arrangement. Workers in gold and others who practised what might be called fine arts, the results of which were required only by the wealthy, must under the same arrangement have stood high in the social scale. Smiths, too, were always held in high esteem. Some of the more important artisans were supplied with free lands for their support; others were paid wages, which appear to have been fixed, in theory at least, by the law. We have already noticed the power of artisans to form guilds or partnerships in virtue of which they could acquire political and social rights; and we have also noticed some liabilities connected with their trades, in the chapter on crime.

It was customary with artificers, on completing a work and delivering it to the employer, to pronounce a blessing on it. So strong was the feeling on this subject, that a workman who refused to give the blessing was fined. It would seem that the first who saw a work newly finished by another was also expected to bless the work. This was extreme sensibility; but as the blessing was general the shock caused by its omission was great. When I first came to London I was shocked on meeting persons asking alms without adding the words, "for God's sake," and taking alms without uttering a prayer in return; for neither is ever omitted in Ireland.

[Murphy]

SECTION V.

OATHS

From The Brehon Laws by Laurence Ginnell, 1894

THERE does not appear to have been at any time in ancient Ireland one fixed form of oath or manner of swearing in legal proceedings. The Brehon Laws do not tell us much of how our pagan fathers swore. There is no doubt at all that they did swear; and, if writings not of a legal character are to be trusted, they swore on solemn occasions by the sun, moon, wind, and other elements, the dew, the crops, and the countenances of men. Ugaine Mor, before his death in a.m. 4606, "exacted oaths, by all the elements visible and invisible, from the men of Erinn in general that they would never contend for the sovereignty of Erinn with his children or his race" (Four Masters). In Christian times a similar variety of oaths prevailed, all differing in legal value. The oath of highest value was that taken on the Gospels; but an oath taken on a relic, on a shrine or reliquary, or on a bishop's crosier, was also deemed very solemn and binding. Again, the value of the oath differed according to the place in which it was taken. Sometimes it was taken in the house of the person swearing, sometimes at the grave of those dearest to him, sometimes in a court of justice, sometimes in a church before the altar. That at the grave was probably of pagan origin. In some cases the oath was not a simple oath, but a triple one; the person swore first standing, then sitting, and then lying, as he spent his life.

"The king excells all in testimony, for he can, by his mere word, decide against every class of persons, except those of the two orders of religion and learning who are of equal rank with him." This is still generally so in monarchies.

[Murphy]

CHAPTER IX.

NATIVE, NOT ROMAN

From The Brehon Laws by Laurence Ginnell, 1894

IT is said in the State Papers by an English official in Ireland in Queen Elizabeth's reign that, "this Feinechas is none other than the sivill law;" and the saying is occasionally repeated even to the present time. That the statement is, however, none other than incorrect, might easily be shown by going through both the Civil Law and the Irish law seriatim. The present little treatise, without being at all designed for that purpose, will render this sufficiently obvious. There are no two systems of law of which I have any knowledge which do not contain some points in common. It would be strange indeed if men devising rules for the extensive field of human conduct, and for determining all sorts of rights and obligations, did not happen to hit upon the same expedient occasionally. Their doing so proves their common humanity. To prove the alleged derivation much more is required. But the fact is, that in the Brehon Laws such coincidences with Roman Law are really fewer than might be expected without derivation at all. The coincidences with Hindoo Law are actually more numerous; yet no one suggests that the Brehon Laws are derived from the Hindoo.

Some rules of church law, itself based on the later Roman Law, were introduced obviously by the Christian clergy, and affected mainly themselves and their interests. They are fewer and less important than might have been expected, owing to the Celtic organisation which the Church early assumed, and for many centuries retained. There is also the supposed resemblance which the collection of laws called the Senchus Mor bears to the Roman collections called the Digest and the Pandects.

To press this as a proof of derivation would be absurd, for there is really no more in it than in the resemblance in distant perspective between two trees in a forest. The laws were collected as they existed; and if when collected they happened to resemble some other collection, there was nothing to wonder at, the laws could not help it, and it does not prove their derivation from that other. Analogies are very tempting, but often misleading; and such a superficial analogy as this would be a very unsafe guide. If the Brehon Laws had been at all derived from Roman Law, the resemblances would have been far more numerous, intimate, and vital, the whole juridical structure would probably have been different, and with the law itself some of the Roman technical terms would have been adopted, as in all countries that have really copied from Roman Law. None of those terms are found in the Irish manuscripts. Many of the Irish laws are as old as the Roman Law itself. Whether they are good or bad, creditable or otherwise to our race, they are essentially, substantially, and characteristically Irish. Sir Samuel Ferguson expressed the literal truth when he wrote that "The Roman (or Civil) Law is hardly traceable in them, except as regards ecclesiastical affairs, and that sub modo only."

Without desiring to suggest whether they would or would not have been better if they had been derived from Roman Law, it may be interesting to point out that the Irish laws were in several respects more humane than the Roman. The Irish flaith-fine never at any time had power of life and death over the members of his household, as the Roman paterfamilias unquestionably had in early times. Then with regard to the treatment of strangers: at Rome, for a long time, an alien was an enemy, who might be ill used, whose property was res nullius which any Roman might seize, and who had no locus standi whatever before a legal tribunal. In Ireland a stranger was a person entitled to sympathy, his property could not be taken from him, and not alone was he heard in a court of law, but he was allowed to choose his judge. "Whenever a person comes over the sea to prosecute a cause, he shall have a choice of the Brehons of Erinn; and when he shall have come across the boundary of a province, he shall have his choice of the brehons in the province." We have already seen that unjust evasion of a stranger was punished as fraud.

There was much resemblance between the Irish laws and those of ancient Britain, so far as the latter can be discerned through the native Welsh laws, between which and the Irish there is a good deal in common. All British laws were modified under Roman sway, which Ireland escaped. Of course the laws of the Gaels of Scotland were originally our laws transferred to Scotland. They, however, underwent considerable change, for feudalism was vigorously forced upon Scotland in the Middle Ages.

[Murphy]

CHAPTER X.

CONCLUSION

(Hibernice: The Conclusion Begins Down Here.)

From The Brehon Laws by Laurence Ginnell, 1894

THE Danes were the first wreckers of purely Gaelic institutions in Ireland. Though their power was broken at Clontarf, so also, in the death of Brian and his son, was destroyed the rising hope of an immediate and thoroughly national restoration of Celtic institutions and forms which had been interrupted. The interruption becoming permanent, the spell of attachment was broken, and some of those institutions and forms became definitely extinct. Instead of a speedy return of vigorous national life, there was a state of doubtful oscillation between relapse and convalescence. Recovery was not complete when the Anglo-Normans came and put an eternal period to its progress.

The Celtic system was indeed maintained over the greater part of the country; but only in its shattered and incomplete condition, and only with a view to the interests of isolated and rival communities or rival individuals; never universally or with a view to the interests of the nation as a whole, and never with the old unquestioned power and full reverential obedience. The Anglo-Irish, wherever they were sprinkled throughout the country, except the Pale, did in the main adopt Irish laws, language, dress, and customs; and such of them as attained sufficient power became Irish chiefs, and appointed their own brehons in the Irish way. But the nation considered as a political unit had lost the essential organism and attributes of a state, and the statesmanship of England was directed to the prevention of re-organisation and the fomenting of disorder. In obedience to this statesmanship a so-called parliament, consisting mainly of self-elected English officials, was held in Kilkenny in 1367, and an Act was passed, written not in Irish, nor even in English, but in Norman-French, branding the Irish as enemies, and penalising the adoption of their dress, manners, language, and laws. Various other measures conceived in a like spirit followed. They were not immediately successful in their direct object; but they were too successful in sowing discord among people who wanted only to be let alone, and they armed and created an opportunity for miscreant adventurers hungry for a morsel of prey. This latter was the main object of those measures. The trade of fomenting disorder throve apace. It was the only trade that did.

Source: The Brehon Laws: A legal handbook

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