Brehon Law: A legal handbook

[Murphy]

SECTION II.

THE KINGS

From The Brehon Laws by Laurence Ginnell, 1894

CAESAR says that in Gaul some of the states were ruled by senates, with no individual holding the office of head of the state. But in nearly every case he appears to have found aspirants to that position, the sons or descendants of deposed kings; and if in any case he found neither a king nor an aspirant, the fact may have been due to some accidental cause, and without inquiring sufficiently he may have assumed what he as a Roman would expect. At all events, such a state of things does not appear to have at any time existed in Ireland or in any part of it. The Irish always had a man, not an assembly, at the head of the state, and the system of electing a Tanist while the holder of the office was living, in addition to its making for peace on the demise of the crown, made an interregnum of more rare occurrence than in countries which had not provided a Tanist in advance. Ireland has on a few occasions been ruled by two monarchs jointly; and for a few years after the death of Malachy the Second, in the eleventh century, it was ruled by two judges who were not kings. But these were exceptional occurrences, and beyond them kingly rule was quite uniform.

The word Cing occurs in the Gaelic manuscripts as the equivalent of Rig; but Rig (pronounced Reeh) is the term generally employed. It is cognate with the Latin Reg-s = Rex. It did not designate precisely the same class of official as the word king now does. Primarily, and above all things, the rig was the head and representative of his race and clan, the members of which were rather his kindred whose interests it was his duty to serve than subjects to be ruled; and the word rig being considered as a generic term, there was no inconsistency in several ranks or classes of rigs flourishing at the same time and forming a sort of hierarchy, the members of which were mutually dependent on each other. Our ancestors aimed, in theory at least, at interdependence in all departments.

The lowest oirrig, regulus, or sub-king was the Rig-Tuatha, a king of one tuath, or district, the people of which formed one organic state. As already observed, these tuaths were very numerous, but sometimes two or three of them that were nearly related had but one king. And where there were separate rulers, the term rig was by no means rigorously adhered to. Various other descriptive terms were employed; but the word rig is simple and convenient for our purpose.

The next in rank was the Rig-Mor-Tuatha. He was a ruler of a number of united tuaths, each of which might have a rig-tuatha of its own, subject in some respects to the Rig-Mor-Tuatha.

The next class of king was called the Rig-Cuicidh, a word implying that he had five rig-mor-tuathas under him, each of whom in turn might have three, four, or more rig-tuaths under him. This was the rank of the provincial king.

So long as the Ard-Rig resided at Tara he may be considered, by reason of his exceptional privileges, to have formed a separate rank of royalty, or rather its head; but after the abandonment of Tara, since the Ard-Rig was rarely able to enforce his rights, he may be considered as belonging to the class of the provincial kings.

The king of each tuath owed allegiance and tribute to the Rig-Mor-Tuatha; the latter owed allegiance and tribute to the Rig-Cuicidh; and the Rig-Cuicidh owed allegiance and tribute to the Ard-Rig. The special branch of law affecting the allegiance in each case, the amount of the tribute, the amount to be returned by the recipient of the tribute, and other constitutional matters, was contained in the Psalter of Tara as drawn up under the direction of King Cormac, and also in the ancient Book of Rights (if this be a different work); and much on the same subjects will be found in a later Book of Rights which still exists and has been translated by O'Donovan. The prerogatives, privileges, duties, and liabilities of the various kings within their own territories are fully laid down in the course of the general law; and when the clan system was in an efficient condition, so many forces acted in aid of the law, and a neglect of official duty affected so many persons that, in ordinary times of peace, such neglect must have been rare. The king was not in any sense the maker of the law, but its officer, and so limited and hemmed round in his office, and so dependent on his clan, that it was easier and safer for him to conform to the intention of the law and promote the welfare of his people than to become either negligent or despotic.

The office of Rig, of whatever rank, was always elective, as was the office of king anciently among the Saxons. But the choice was restricted by custom in the case of the Ard-Rig and provincial kings to a narrow circle of the flaith class called the Riogh-dhamhna or Damna Rig (=Materia Principum), the members of which were required to undergo a very careful training, mental and physical. It was therefore as a rule confined to the family in possession.

So long as there was an eligible member of that family, the kingship may be said to have been practically hereditary in that family, but not in any particular member of it. An eldest son did not succeed merely because his father had been king, if there was an uncle, nephew, brother, cousin, or other member of the Damna Rig better fit for the position; and the Tanist was usually such a relative, and not a son. The same rules applied to the election of sub-kings, but being in rank not so far removed from the flaiths the distinctions were not so marked, and if the family in possession failed, the flaith best qualified was eligible. The law on the subject is expressed in the following words: "Every head defends its members if it be a goodly head, of good deeds, of good morals, exempt, affluent, and capable. The body of every head is his tribe, for there is no body without a head. The head of every tribe, according to the people, should be the man of the tribe who is most experienced, the most noble, the most wealthy, the most wise, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and to be sued for losses."

No person not of age, stupid, blind, deaf, deformed, or otherwise defective in mind or body, or for any reason whatsoever unfit to discharge the duties of the public position, or unfit worthily to represent the manhood of the community, could be chosen for king or could hold the kingship; even a blemish on the face was a disqualification. Here were requirements enough, positive and negative, which not every man could satisfy. The method of choosing the king was not fully one of merit, nor fully elective, nor fully hereditary, but a combination of all three: and on the whole the office resembled as much that of president of a republic as it did that of a modern king.

The Ard-Rig was not elected by the people at large, but by the sub-kings and flaiths of all Ireland, the same men who constituted the Feis of Tara. The provincial kings were elected by the flaiths and aires of their respective provinces. The king of a tuath was elected by the flaiths, aires, and probably all heads of families in the tuath. The immediate position to which the person was elected in each case was usually that of Tanaiste or Tanist (=Second), the king being living. The Tanist was a successor or heir-presumptive elected before his time. He sometimes acted as a sort of vice-president while the king lived. As soon as he in his turn became king, a new tanist was elected, so that there was rarely a direct election to the office of king.

The king was, of course, by virtue of his office, head of the State in general, whether in arms or in peace. He was the fountain of honour and of justice, and one of his duties was to appoint a brehon to administer law in his district. He had himself, in ordinary times, some magisterial jurisdiction. King Cormac, for example, is spoken of as a "righteous judge," and all kings are spoken of as hearing cases and pronouncing judgments. The nature or extent of this jurisdiction is not clearly stated, but I think it had to do mainly with criminal law, especially treason and the kindred crimes. If from any cause there was in his district no brehon, or the brehon was incapacitated, the king himself was bound to act as judge in cases calling for immediate settlement.

Wealth is mentioned among the qualifications for the kingly office, but in addition to his private wealth a considerable amount of land was set apart for the use of every holder of the office, what was deemed sufficient to support the dignity and bear the expenses connected with it. On this land there was always a dun. A provincial king usually had several mensals of this nature with a dun on each. "The residence of a king is always a dun, and there is no dun without a king."

[Murphy]

SECTION III.

PROFESSIONAL MEN

From The Brehon Laws by Laurence Ginnell, 1894

Sub-Section I.—Preliminary.

PROFESSIONAL men next demand our attention, and of these especially the Brehons. The laws were administered in Ireland by brehons, so called while so engaged. It is not clear that there was in early times, as there was in later, a distinct order of men so engaged and not otherwise—judges and nothing else, and there is some reason for thinking that this was an after-growth. In the older manuscripts the words druid, bard, and brehon appear to be applied to the same persons interchangeably and as if synonymous.

The terms are, however, not synonymous, and never were, even when applied to the same person. One person being a very learned man might be all three; and probably this was so sometimes, and was always looked for in pre-Christian times. But, of course, its continuance was neither necessary nor possible. In some of the manuscripts it is said that legal jurisdiction was vested in the bards, the "just bards" are spoken of as custodians of the law, and the old law itself is called by a name which may be translated "Bardic Law." Further, a man who administered the law judicially, whether bard or druid or neither, is called a Breitheam or judge; genitive Breitheamhuin, pronounced Brehon (another instance of the adaptation to English of the genitive of a Gaelic word). Here we have three apparently different classes of men connected with the law in some way; but in what that connection consisted, and what were their mutual relations, or rather their actual distinctions, is not clearly stated.

[Murphy]

Sub-Section 2.—The Druids

From The Brehon Laws by Laurence Ginnell, 1894

DRUIDS next claim consideration. One modern writer tells us that the Druids were "magicians and nothing more." Magicians, yes; "and nothing more" must be rejected. The popular view of what
they were is more nearly accurate than this. The druids were much more. They were above all things the priests of such religion as existed; and in that character were quite as highly venerated and as influential in Ireland as Caesar found them in Gaul. Their religion, if their many strange and conflicting views and practices may be considered as one system and called a religion, was, to our minds, degraded and degrading, and their ceremonies may appear to us silly or worse; we may think Crom Cruach very unworthy of worship; but what does all this matter if that religion was dear to the people as the essence of a spiritual life and the prime requisite for attaining eternal happiness and glory, and if it yielded to its adherents any of the consolations which religion affords and for which the human heart yearns?

It cannot be doubted that in Ireland, as in Gaul, the most learned, the most sage, and the most virtuous men of the nation were druids or priests of that religion. Their superior learning enabled them to become more than priests; magicians if you will, but certainly philosophers, astronomers, judges, bards, literary men, musicians, physicians, seers or diviners of future events, and many other things, and may have given them a choice, almost a monopoly, of all the offices which required learning. Their magic consisted mainly in their superior knowledge in times of general simplicity; and I think they deserve to be called a learned priesthood. In those circumstances most of the brehons, perhaps nearly all, were druids; but all druids were not brehons, for the office of brehon was but one of a choice of accessory offices which their learning opened to the druids. This seems to account sufficiently for the connection of the druids with the law, and for the apparent opinion of the writers of old that the terms druid and brehon might be used interchangeably.

It is impossible now to determine whether at any time the office of brehon was restricted to the druids as an exclusive legal priesthood. Probably there never was a positive restriction, but only the practical one involved in the requirement of learning, which few laymen could then satisfy. But the administration of the law not being the special function of the druids as such, but only a sort of secondary string to their bow, they may be supposed to have bestowed more attention upon whatever their special function was than upon law. The law remained in the Bearla Feini, the old classical Gaelic in which it had been originally composed, and constituted a large and important part of the Filidecht or higher academic course through which both druids and bards should pass, and in which they should attain a certain standard of proficiency before being admitted to their respective professions. As that old language gradually became antiquated the laws became less accessible and less intelligible to others than those learned men; and yet the school knowledge of it, which had sufficed for them and was little more than an accomplishment, did not always enable them to deal satisfactorily with the legal difficulties of everyday life. It is easy to conceive that in such circumstances the law may sometimes have failed in its primary object of bringing justice home to the people. An evident want arose.

The combined effect of the negligence of those two classes of men and the growing importance of law must have made it clear that the administration of justice ought not to be secondary to anything, but deserved the special and exclusive study of a distinct profession. To this profession laymen applied themselves in increasing numbers as the druids withdrew, until the administration of the law had got almost wholly into non-sacerdotal hands. Not being occupied with religion or with any other profession, nor hampered with the trivial formalities which the sacerdotal mind has always been so prone to create and magnify, these men could breathe a freer air, enter more sympathetically into the views and feelings of both parties to a suit, and arrive at a decision more satisfactory to both, than is as a rule possible to men who, though in the world, are best when they are not of it.

In Rome also the pagan priests were the earliest judges and custodians of the law. They greatly hampered its justice and its efficiency by the invention of useless technicalities, until at length, in 451 B.C., the Romans resolved to reduce their laws into a written and fixed form, and called upon the priests to produce the laws for that purpose; when, lo, it was found that the priests, after all, really had no substantive laws to produce, that they had completely lost what it had been their business and their pretence to guard, and had guarded nothing but their own technical inventions, mainly concerned with mere procedure (or its prevention), and mainly detrimental to the free flow of justice. Hence the Romans in drawing up their Twelve Tables were obliged to resort to laymen of common-sense, and even to consult neighbouring nations as to the very rudiments of law.

[Murphy]

Sub-Section 3.—The Bards

From The Brehon Laws by Laurence Ginnell, 1894

NOW with regard to the Files or Bards. They did not, like the druids, become extinct on the extirpation of paganism, but continued to flourish and to form an important class down to modern times. They were anciently much more than the present popular conception of them implies, for they were the historians, genealogists, teachers, and literary men of the nation, some of them also being druids and some judges; but as regards the bards of Christian times, after the monks had taken learning and teaching under their special care, the present conception of the bards is fairly accurate, and therefore their connection with law is not at first sight obvious. Little or no such connection continued to exist, and the presence of the bards in battle and their thrilling writings relative thereto remind one more of the war correspondents of our own time than of lawyers.

Anciently some of them were judges in addition to being bards, as we have seen in the case of Dubhthach; but these instances were few even then, and not at all sufficient to explain the intimate connection between the bards and the older law. The secret of that connection lies elsewhere. Their chief connection with law was not in the character of judges, but in their proper character of bards. In this their true character there was then a use for them amounting almost to necessity. Accustomed as we are to writing, printing, and other modes of preserving expressions of thought, we are liable to forget that the laws we are considering originated when those arts were unknown, when in northern climates men preserved their learning in their heads instead of on their shelves, and communicated it by their tongues instead of by ink and paper.

Verse always has been, and still is, easily committed to memory and retained there; and the more harmonious it is, the more effective and reliable for this purpose. To give this quality to things of value, as law, history, and genealogy, not to speak of pure literature, to which this quality was then natural, was in such a time as important a service as a bard could render to his nation. It imprinted those things, not on paper, but on brains; fixed them in heads where otherwise they would not abide, and rendered them capable of being transmitted from person to person, from clan to clan, from generation to generation, from times far beyond the reach of history until well into historic times. This use of poetry was clearly very important, and hence the originals of almost all our very early manuscripts, on law as well as on other subjects, were in verse. It was the duty of the bards to reduce the laws into rhythmical form, and they retained that function in their hands for some time after the actual necessity for it had ceased to exist. Nothing but a sense of duty could induce a body of learned men to take such wonderful trouble with a subject so unattractive and unpromising. This fully accounts for the connection of the bards with our ancient law and explains the sense in which they were its custodians; and it also accounts for the abnormal development of the bardic profession in Ireland, and for the extraordinary amount of archaic Gaelic literature preserved. The combined effect of metre and rhyme was to render tradition at once easy and reliable.

To take the Senchus Mor for example, though now arranged prose-like on the paper, portions of the text are in regular verse; not merely in metre like blank verse, but in rhyme. The editors say that whether this is due to the fact that two of the compilers of the Senchus Mor were poets, or to the fact that the pre-existing laws of Ireland were mostly in rhyme, or partly to both these causes, is an open question. Perhaps so. I think most students of the subject will for themselves consider the question as closed, and feel quite satisfied that the ancient laws of Ireland were mostly in rhyme, or in an alliterative assonance having all the properties of rhyme for ar and memory, from necessity before the art of writing was known, and from the unexhausted force of a long-established usage after that art had become known. The art of writing became known to some extent in Ireland about the first Christian century, or perhaps a little earlier; its practice was encouraged and extended under King Cormac, in the third century, and from his time downwards; but it was not until the introduction of Christianity in the fifth century that writing became general.

During this period, at all events, the time-honoured custom of making and retaining the laws in rhyme undoubtedly held its ground; so that not alone did the compilers of the Senchus Mor find the laws in rhyme, but they found the old usage still of quite sufficient force to require from themselves a semblance of reducing into rhyme any new laws then made, or modifications of the old. Rhymed laws were still the ideal aimed at. Accordingly there is reason to believe that the whole text of the Senchus Mor, written in the fifth century, was in rhyme, and in the introduction, written at a later date, is included Dubhthach's fine poem as the most suitable introduction. This was probably the only introduction in the first instance, the work being then metrical and rhymed throughout. Wherever in the text the rhyme is now absent or broken the reader may conclude that there the various transcribers have been carrying on the operations I have endeavoured to explain.

Finding it necessary to substitute new for obsolete words, and to translate some passages, and no longer a practical reason for reducing these emendations into rhyme, that ceremony was omitted, and thus while the law was simplified the verse was spoiled. The commentaries were not composed by bards at all, and so far as they are original they are not rhymed; but in them are frequently quoted fragments of traditional law for the purpose of driving home their conclusions, and such fragments are nearly all in rhymed metre. The ancient cultivation of memory is one of the arts that have fallen into disrepute. It was carried, in other countries as well as in Ireland, to a degree of perfection now hardly credible. Nor were metre and alliteration, as subsidiary to it, peculiar to Ireland or to the Irish laws. The perfection attained in these was peculiar, and rhyme was peculiar. To the absence of this bardic perfection the poverty of other nations in archaic literature is due: to its presence our wealth in that respect is due. For other nations the remote past is a blank: for us it lives, mainly through the skill of the bards. The bards were liberally provided for by their contemporaries: we may enjoy their labour without having to pay for it.

[Murphy]

Sub-Section 4.—The Brehons

From The Brehon Laws by Laurence Ginnell, 1894

BEGINNING at the point where all three qualities were possessed and all three functions discharged by one man, the functions had expanded and become differentiated until they formed three separate professions, followed by three distinct classes of men—Druids, Bards, and Brehons—this last being the newest class in the order of development. So long as this development proceeded, the legal profession was perfectly open to every one who chose to study the law. A druid, or a bard, or a man who was neither, was perfectly free on qualifying himself to become a brehon.

It is now impossible to fix the date at which this development was complete, and the brehons stood recognised as a professional class apart from druids and bards. It was probably complete in the first century of the Christian era, certainly while Ireland was still wholly pagan; and there can be no doubt that it was a distinct advantage to the people and to the nation.

Later on a further change occurred (for it can hardly be called a development), namely, the legal profession, in common with most professions, arts and callings, became to a large extent hereditary, not by force of law, but by force of custom, and in obedience to a general tendency of the times. There never was a law in Ireland actually making any profession or calling hereditary, or imposing any restriction whatever on the natural right to learn and practise what one pleased. The tendency was spontaneous, or due to some general cause. In our view it was a backward tendency. But that proves nothing. The same may be said of many movements far more modern. Our desire is to see, so far as we can, our ancestors as they really were, not to make them fit into theories of what they should have been.

Whatever may have been the prevailing force in making callings become hereditary, no doubt it was materially assisted by the custom of rewarding distinguished merit, and the performance of public duties, with gifts of free land. This is a species of reward not unknown in modern times; but it was obviously more convenient in ancient times when there was little or no money with which to reward men. Men occupying official positions, from the king downwards, were provided with free lands. Many of those positions were attainable only by careful training and marked ability of the kind required. Bards, brehons, and other public officers, men distinguished in the healing and other arts, and in the handicrafts most important for the well-being and security of the community, were similarly provided for.

A man having once acquired land in this way would have a strong motive for transmitting his profession to his children, since it was only by doing so he could transmit the land to them; in addition to which, his own was the particular branch of knowledge which he could transmit, and they learn with least trouble and least expense. Here was a two-fold motive for making both the profession and the land attached to it hereditary.

In the case of the brehon's office this powerful cause did not operate alone. There were attached to the office manuscripts, in those early times of great value as legal documents, and perhaps still more precious privately as family heirlooms, the preservation of which, after his death, was an object of the most intense solicitude to every brehon worthy of the name. It was but human that a brehon should desire to entrust to his own offspring a charge so sacred, and but human that they, for his sake and for its own intrinsic value, should bestow more care upon such a trust than could be expected from strangers. In respect of the preservation of documents, and perhaps in other respects also, we of later times are much indebted to the hereditary custom, however that custom may in practice have militated against efficiency.

Still, although these causes must have acted powerfully, the office of brehon may, in obedience to the general tendency of the time, have become hereditary in cases where they did not exist. There were at all times non-official brehons, who were not attached to any clan and who held no land as a reward, but lived independently by their profession, and yet in these cases also the profession became hereditary.

Nor does the fact of having become hereditary appear to have led to the degradation and abuse which might be expected from it in our time, nor to have rendered the office of brehon more easily accessible than before. The essential standard of knowledge was in no degree lowered. The preparatory course of study continued to extend to twenty years. And of course the moral and other requirements were in no degree relaxed. Success as a brehon waited upon ability alone, and failure was attended by so many risks that the profession offered no attraction for unqualified persons. The brehons, like the old Saxon judges, but unlike modern judges, were always liable to damages, disgrace, and other grave punishments if their judgments were illegal or unjust.

The law says, "No person is qualified to plead a cause in the high court unless he is skilled in every department of legal science." There were several classes of advocates or pleaders, corresponding, perhaps, to Queen's Counsel and Barristers of the present day. There were, besides these, professional lawyers of an inferior class somewhat analogous to solicitors. It has been stated that one uniform course of study was required, no matter what branch of law a man intended to follow; that having gone through that course he might become a brehon, an ollamh, an advocate, or a law-agent, according to his personal predilection, ability, and prospects of practice. In my opinion, this is correct only pro tanto.

The course may have begun with the duties of the law-agent, proceeding upward in succeeding years until at the end of the brehon's term it included all branches of law, and it may have been the same so far as the other gentlemen pursued it; but the brehon alone pursued it exhaustively, and devoted twenty years of his life to that task. There were, however, various distinctions between brehons and advocates, and among the brehons themselves, which are so difficult to follow that modern writers are not at all agreed about them. In a society wholly different from ours in its elements and construction those distinctions must have been made on principles different from any now operating. It does not follow that they were not proper distinctions. Our embarrassment is not necessarily due to defect in those laws, but to our ignorance of them, to our want of some missing link, perhaps many missing links, in their consequential chain.

Each king, and each chief who was sufficiently powerful, maintained a brehon, who was in a sense the brehon of the territory. But the law did not require this if there was an unofficial brehon in the district. The brehonship was rather a profession than a state department. The judicial institutions were not strictly permanent with a regular order of succession maintained systematically as men dropped off, and wielding power given and sustained by the state, as we now see. When an official brehon had died or ceased to act, unless there were cases pending, or somebody sought his office with the land that might have attached to it, there was no immediate reason for appointing a successor; and with regard to non-official brehons, when they were removed by death or otherwise they can hardly be said to have successors at all, or if so said it was Nature supplied them in her own good time. The scope of a brehon's jurisdiction is not laid down in the law, simply because no brehon had exclusive jurisdiction anywhere, whether he was provided with free land or not, whether his office had become hereditary or not. The jurisdiction of official and of non-official brehon alike was generally determined by the suitors. A defendant should consent to have the case raised against him tried by some brehon, or else judgment would go against him by default. With this limitation the jurisdiction was purely consensual; the parties were free to settle their case in private or to submit it to any brehon they pleased. Of the brehons within reach, if more than one, suitors displayed a preference for one beyond the rest, and probably as a rule their choice was determined by his superior aptitude in unravelling knotty problems and giving decisions consonant with justice.

Thus the brehon's position resembled that of an eminent Roman jurisprudens, whose opinion was eagerly sought and paid for by people in legal difficulties. He heard the case, gave it the necessary consideration, and pronounced a decision in accordance with law and justice. This decision, though called a judgment, and eminently entitled to that name, was not precisely what the word judgment means with us. It was rather a declaration of law and justice as applied to the facts before him, rather an award founded in each particular case on a submission to arbitration.

There was no public officer whose duty is was to enforce the judgment when given. The successful party was left to execute it himself. In doing this he was assisted by the inherent equity of the particular judgment itself, by the force of an immemorial law universally obeyed, by public opinion informed by the generally prevalent love of justice, by the defendant's knowledge that delay, evasion, or resistance would be futile, would disgrace him and increase the penalty, and, above all, by that self-adjusting network of duties and obligations, involved in, and enforced by, the clan system. These combined forces went far to render executive officers of the law, as sheriffs, bailiffs, and police, unnecessary. They were practically irresistible, for they could go the length of outlawing a man and rendering his life and all he possessed worthless to him if he dared to withstand the execution of what a brehon had declared to be the demands of law and justice. They were quite as effectual as is what we now call the arm of the law, notwithstanding John Austin's theory, that there can be no law except it be the command of a sovereign.

There were certain cases which a brehon provided with free land should hear and determine without payment. Beyond these cases, the official brehon and every other who tried a case were entitled to be paid by the unsuccessful litigant certain fees, which were fixed by the law according to the nature of the cases, the trouble they entailed, and, in civil cases, the amount of property involved. The amount of the fee was a matter of calculation, according to certain well-known rules, and it was always included in the total amount to be paid under the judgment by the unsuccessful party. In criminal cases one-twelfth of the beaten party's honour-price was the fee to be paid to the brehon. If the person charged was found guilty he should pay this in addition to any other fine imposed: if the accuser failed to sustain his charge he had, if so sentenced, to pay the judge in addition to compensating the accused, and there was no occasion as now for a second trial.

When one brehon had adjudicated on a matter submitted to him, there could be no appeal to another brehon of the same rank; but there might be an appeal to a higher court, provided the appellant gave security. The grounds of appeal most frequently noticed are "sudden judgments," meaning probably those given without due consideration. If the facts of a case had undergone a material change after trial and judgment, as if the defendant in a criminal case had been tried and fined for assault, and after the judgment the person assaulted had died, a new trial might be had. In giving judgment in this second trial the judge would, of course, have regard to what was done under the first judgment.

[Murphy]

Sub-Section 5.—The Ollamhs

From The Brehon Laws by Laurence Ginnell, 1894

A CERTAIN writer boldly tells his readers that there were three class of judges, the Ollamh (pronounced Ullav) being the highest or chief judge. Most other authorities on the subject say that the brehons were judges, the ollamhs professors or teachers of law. The latter view is correct subject to the following observations. Every brehon was an ollamh, inasmuch as he was obliged to obtain the degree of ollamh before he could become a brehon. Hence a man might practise as a brehon and teach law in his own house as an ollamh; and one who had distinguished himself in both these respects might be regarded as, in a sense, a chief judge. But the use of that designation is misleading. Both ollamhs and brehons might as well be called bards on the ground that both were obliged to take a degree in poetry. A loose application tends to involve those terms in the confusion from which we have just taken the trouble to extricate them. Ollamh practically meant a doctor, professor, or teacher of any branch of the Filidecht taught in the higher schools. It meant a possessor of knowledge whose profession it was to impart that knowledge. The right to the distinction was acquired by a course of study extending over twelve years' "hard work," followed by a public examination; and the distinction was formally conferred by the king or chief of the district; after which the ollamh ranked next to the king or chief in the order of precedence, acquired a number of valuable privileges, was respected by the community, and highly favoured by the law. Every king or chief who could afford it selected one distinguished ollamh of each branch of knowledge, and maintained this staff of specialists at his court in order to be able to deal with all matters affecting his interests and those of his people. These men were very generously provided for, indeed extravagantly one would think. Other ollamhs made their living by teaching independently.

[Murphy]

Sub-Section 6.—Jurors

From The Brehon Laws by Laurence Ginnell, 1894

BEFORE passing quite away from the legal system, a class of men, though not professional, connected with an important branch of the law may be noticed. They were drawn from the lay community in each cinel or tuath, and to twelve of them, as to a sort of jury, certain matters in dispute requiring knowledge other than legal were submitted, as, for instance, the manner in which land should be newly apportioned under the Irish system of gavelkind. The law determined the proportions, provided the quality of the land was uniform and other circumstances equal. As this would rarely happen in practice, these twelve men determined the actual proportions. They also arranged in the early part of each year how the common lands of each sept should be used that year. What the relations of those men to the clan were, what the qualification for the office, how the office descended, &c, are left open questions; and this is perhaps the best thing to do in the present neglected condition of the Brehon Laws. Still I should not be surprised if it were found on inquiry that it was not an office at all, but a power inherent in a certain status, and that every flaith-fine, or paterfamilias, was entitled to exercise it unless he had in some way forfeited his title.

[Murphy]

SECTION IV.

THE FLAITHS

From The Brehon Laws by Laurence Ginnell, 1894

FLAITH may be pronounced Flah. The Flaiths corresponded in some respects to modern nobles, and like them originated in an official aristocracy. Theoretically they were public officers of their respective clans, each being at once the ruler and representative of a sept, were elected on the same principle as the kings, required similar qualifications according to rank, and were provided proportionately with free lands to enable them to support the dignity and perform the duties of the office.

They also, like the kings, were allowed to hold at the same time all other property which they might have had or might subsequently inherit or otherwise acquire; and their position gave them some facilities of requisition which other men did not possess. Their official land was in law indivisible; an apparent restriction which in practice became decidedly advantageous to them as a class, as we shall see.

The law gave the right of succession to the most worthy member of the fine of the actual flaith, subject to the right of the clan to determine by election what member of the fine was in fact the most worthy. Hence the flaith's successor might not be his son, though he had sons, but might be a brother, nephew, cousin, or other member of the fine; and while the flaith's private property was on his death divisible among the members of his fine like that of any other individual, his official property with all the permanent structures thereon descended undivided to his successor, in addition to any share of the private property which might fall to that same person as a member of the fine. In course of time the hereditary principle encroached upon and choked the elective, the latter fell into desuetude, and the number of flaiths ceased to correspond to the number of septs. From the office and the land attached to it having been held successively by several succeeding generations of the same family, the flaith gradually learned to regard the land as his own private property, and the people gradually acquiesced; and I find it laid down by a modern writer as the distinguishing mark of a flaith, that he paid no rent, and that a man who paid no rent was a flaith though he owned but a single acre.

This writer completely lost sight of the fact that the flaith was properly an official, and the land he held official land, and not his private property at all. The system under which he lived, and of which he formed a part, laid upon him certain duties for which the lands and revenues assigned him were a provision and a reward, and it was only through the decay and collapse of that system that he could venture to call those lands and revenues his own. The nature of his duties can most conveniently be explained when discussing the next succeeding class of society towards whom most of them were due and owing; and there also it will become very obvious that there was no such inadequate provision made for a flaith as a single acre would have been. It will suffice to mention here that a very high private-property qualification should have been possessed by the family for three successive generations before one could become a flaith at all; and then the official property was given in addition to that. In fact, the flaiths were rather too well provided for, and were so favourably circumstanced that ultimately they almost supplanted the clan as owners of everything.

As the sea attracts all waters, as power and wealth attract to themselves more power and more wealth, the flaith class tended to become great at the expense of the people beneath them. They were constantly taking liberties with, and extending their claims over, land to which they had no just title; and the law under which official property descended contributed to the same result. The idea of private property in land was developing and gathering strength, and land was generally becoming settled under it.

The title of every holder, once temporary, was hardening into ownership, and the old ownership of the clan was vanishing, becoming in ordinary cases little more than a superior jurisdiction the exercise of which was rarely invoked. During the time of transition I think the flaith class encroached upon the rights not alone of those below them but of those above them also; that it was chiefly their greed, pride, and disloyalty which led to the breakup of the Irish Monarchy; and that it was for many centuries in their power to restore that monarchy, and with it an independent nationality, had they been sufficiently patriotic.

The flaiths, by virtue of their office, had legal jurisdiction in all matters coming under Urradhus law, or law locally modified. There were various grades or ranks among the flaiths as among modern nobles, but determined by the number of clansmen who paid them tribute; and the territorial limits of a flaith's jurisdiction was wide or narrow as his rank was high or low. When the legal system was in proper working order, plaints involving Cain law, that is, the law contained in the Senchus Mor and administered by the brehons, were required to be lodged at the residence of the Aire-ard before being submitted to the brehons.

A great many varieties of aires are mentioned in the laws; but generally the aire (pronounced arra) appears to have been considered as the type of the full citizen in possession of full legal rights. It was a term not strictly applied, rather a measure of status which different classes might attain than the designation of any particular class. The flaiths and those approaching that rank were aires; and I think every head of a fine was in status an aire though not so called. The aire most frequently spoken of and the aire-desa were recent accessions to the flaith class from the céile class, belonging by birth and descent to the latter, but possessing sufficient property qualification for the former; and, so far as there was progress, may be considered as in a state of transition. The aire-desa was the lowest of the flaith class. Part of his qualification was to have ten free clansmen paying tribute to him. The numbers paying tribute to the different grades of flaiths ranged from ten up to forty, the flaith's rank, honour-price, &c, ranging proportionately. The bo-aire was a man whose wealth consisted mainly in cattle. He was not a flaith.

[Murphy]

SECTION V.

FREEMEN OWNING PROPERTY

From The Brehon Laws by Laurence Ginnell, 1894

Sub-Section I.—Preliminary.

IN pursuance of our plan we now proceed to consider the free clansmen who held property. Property, for the most part, meant land, the cattle fed upon land, and the crops grown upon land. Our ancestors all lived in the country and mainly by industries connected with land. They had numerous villages, the earliest of which are indicated by the still existing raths; but they had few towns so large: as to form distinct communities with life and interest different from those of the country. Our oldest maritime cities are of Danish origin. Hence the Brehon Laws are in the main applicable only to country life, and contain few rules specially applicable to town communities. The vast majority of freemen owning property were farmers, called céiles, and for simplicity of description we will take this class as the standard.

The contemporary institutions of any given country are always so interwoven that it is difficult to discuss them separately, and impossible to give a complete account of one without giving as part of it some account of others connected with it. This is emphatically true of a country where society is organised on the system of clan, sept, and fine. That system is as soil in which all other institutions, like trees, have their roots. I have already had to anticipate myself in some respects. In order not to do so to a confusing extent, and in order to turn from hence on subsequent matters all the light we can, it will be necessary to deal, however briefly, with the clan system before treating specially of the céiles, and to deal with the land system while discussing the Céiles.

[Murphy]

Sub-Section 2.—The Clan System

From The Brehon Laws by Laurence Ginnell, 1894

AKNOWLEDGE of the real nature of the clan or tribal system would be a master-key to much connected with ancient Ireland that is now mysterious, and would remove many stumbling-blocks, if not all. Possibly the lost books, and lost portions of books, would have furnished this key and given us glimpses of life of which without them we can never dream. They would, at the very least, have illuminated some obscure passages in the existing remains which are now subjects of doubt and liable to misinterpretation. But without them full knowledge of this most interesting subject is lost to us, and if it be recoverable at all can only be so by the expenditure of much labour of many minds.

For although the existing remains are in many parts extremely familiar with social and domestic economy, providing even for the legal enforcement of some duties which with us are of merely moral obligation, still the information given, clear enough no doubt for those for whom it was intended, who knew its objects as self-evident facts and were themselves in the current of actual life, is in many respects not clear to us who grope in the dry channel through which that current passed. On certain points no information at all is given; and although great trouble is taken to explain other points, the writers, so to speak, do not begin at the beginning, but start on an assumed basis of knowledge which we no longer possess. We seek in vain for the why and the wherefore of things which apparently were so well known to the writers and their contemporaries that they did not need to be stated; and though much is said round and round a subject, the fundamental facts are evasive. From the time the system began to break up the prolonged agony of the nation has prevented the production of a writer capable of rescuing its fading features from oblivion. We are therefore obliged to pass over the subject very lightly and with uncertain tread, though it is really the most interesting branch, not alone of the law, but of the whole social and political economy. A few facts only appear to be pretty conclusively ascertained.

Mr. Seebohm, a diligent searcher after the truths of antiquity so far as regards England, comes to the conclusion that the tribal system was almost, perhaps wholly, universal—that is to say, that every nation has had its tribal period. He says, "It is confined to no race, to no continent, and to no quarter of the globe. Almost every people in historic or prehistoric times has passed or is passing through its stages." This is so; but while in continental countries, owing to international friction and other external influences, tribes generally suffered disintregation and dissolution, and ultimately disappeared, in Ireland, owing mainly to its remoteness, insularity, and freedom from those influences, the tribal system, while becoming Hibernicised in some respects, perfected and strengthened itself, and attained a highly artistic degree of development such as it probably never reached on any continent; and it was made, and long continued to be, the basis of right, duty, property, law, and civilisation itself.

Tuath, Cinel, and Clann, were the words used interchangeably to denote what we now call indifferently a clan or tribe. It resembled the Gens of ancient Rome in that all the members of it claimed descent from a remote fine, and from a common ancestor as head of that fine, and were therefore kinsfolk, were entitled severally to various rights dependent on the degree of relationship and other facts, and formed collectively a state, political and proprietorial, with a distinct municipal individuality and life, with a legislature of its own and an army in gremio; but in these two latter respects slightly subject to, and forming a member of, a superior state consisting of a federation of similar communities. Each clan was composed of a number of septs, and each sept was composed of a number of fines. Kinship was the web and bond of society throughout the whole clan; and all lesser rights whatsoever were subject to those of the clan. Theoretically it was a true kinship of blood, but in practice it may have been to some extent one of obsorption or adoption. Strangers settling in the district, conducting themselves well, and intermarrying with the clan, were after a few generations indistinguishable from it. A chief or a flaith also occasionally wished to confer on a stranger the dignity and advantages of clanship—practically meaning citizenship—and when he had obtained the sanction of the clan assemblies, the stranger was adopted in the presence of the assembled clan by public proclamation.

In the course of time the name Tuath came to be applied to the district occupied by a clan, and Cinel (pronounced Kinnel) was then the word used to denote the clan itself. Fine (pronounced Finna) was also sometimes used in the broad sense of clan, and this was not strictly incorrect since every clan originated in a small fine; but the word fine properly meant one of a number of sub-organisms of which the clan consisted. It was a miniature clan, and in fact the germ of a clan and the real social and legal unit. It was considerably more comprehensive than our word family. It has been compared with the Roman familia, but it was more comprehensive than even that. When complete it consisted of the Flaith-fine (also called Ceann-fine), and sixteen other male members, old members not ceasing to belong to it until sufficient new members had been born or adopted into it, upon which event happening the old were in rotation thrust out to the sept, and perhaps began to form new fines. Women, children, and servants, did not enter into this computation. The flaith-fine, or paterfamilias, was the head and most important member of the group, in some sense its guardian and protector, and was the only member in full possession and free exercise of all the rights of citizenship. All the members had certain distinct and well-recognised rights, and, if of full age, were sui juris and mutually liable to and for each other; but so long as they remained in the fine, the immediate exercise of some of their rights was vested in the flaith-fine, who should act for them or in whose name they should act. "No person who is under protection is qualified to sue."

There are various conflicting theories as to the persons of whom and the manner in which this organism was composed, and even as to whether it was in fact ever composed or ever existed except as a legal fiction; and no explanation of it or conjecture about it is free from difficulty. Having regard, however, to the frequent mention of it, and of the "seventeen men" of whom it consisted, by various legal and other writers at times far apart and in various connections, it is quite impossible to believe that it was fictitious; but in practice it may not often have attained or long retained that perfect organisation which the law contemplated; and the law itself may have contemplated different things at different times. Whether the members of it became members on their birth, or on attaining manhood and acquiring property; whether they included or represented all within the fifth degree of relationship, or all within the seventeenth degree, are matters in dispute. Without presuming to settle them, let us construct a provisional fine for the purpose of conveying some idea of what it was like. When complete it consisted of "seventeen men" who were always classified in the following manner:—

1. The Geilfine consisted of the flaith-fine and his four sons or other nearest male relatives, most of whose rights were vested in him, who on his death were entitled to the largest share of his property, and would succeed to the largest portion of his responsibilities.

2. The Deirbhfine consisted of the four male members next to the foregoing in degree of relationship to the flaith-fine, upon whom, contingently, a smaller share of his property and responsibilities devolved.

3. The Iarfine consisted of the four males whose degree of relationship was still farther removed, and upon whom, contingently, still less property and responsibility devolved.

4. The Innfine consisted of four males the furthest removed from the flaith-fine, upon whom, contingently, the smallest portion of his property and responsibility devolved.

On the birth of a new male member in the first of these groups (or, according to a more probable theory, on his becoming a man and owner of property), the eldest member of that group was crushed out to the second group, the eldest member of the second group was crushed out to the third, the eldest member of the third was crushed out to the fourth, and the eldest member of the fourth, if he had not died, was crushed out of the fine altogether, and became an ordinary member of the sept, or clan, with no special rights or responsibilities in connection with his former flaith-fine. Thus the members of the groups were cast off like the coats of an onion, not all at once, but gradually, the groups themselves remaining complete all the time, and never exceeding four members each. And as they were cast off they suffered a loss of rights, but gained in freedom of action and freedom from liabilities, and the fiaith-fine ceased to represent them, act for them, or be responsible for them. The members of the fine also owed a mutual responsibility to each other, were bound in certain cases to enter into suretiship for each other, were liable to compensate for crimes committed by any one of them if the criminal failed to do so; and in general the law held that there was a solidarity among them. A member who became a criminal was, of course, primarily liable for his own crimes. It would also appear that a person otherwise entitled to become a member in a certain event, forfeited that right, with all the advantages attached to it, by crime. My own opinion is that the members of the fine were all full-grown men living on divisions of a farm which had been originally one; yet that the group included only persons within the fifth or sixth degree of kindred, and did not extend to the seventeenth, and that the organisation was a natural outcome of the ordinary sentiment of family affection, perhaps somewhat intensified, but at all events systematised and enforced by law.

Various other fines are mentioned, and the word fine is used in a number of combinations; but the organism provisionally outlined is the only one of the name of real importance; and the text, after stating much about the seventeen men, adds, "It is then family relations cease." Presumably it was then the rights of inheritance and the dangers of liability also ceased. Where in the system one should look for the exact counterpart of the modern family is not clear; nor is it clearly known whether the number of women, their presence or absence, at all affected the constitution of the fine. The original purpose and main object of the whole system are, for lack of true knowledge, matters of much conjecture. It is probable that the system continued perfect only so long as the Celtic race remained pure and predominant, and that it became disorganised in the course of the thirteenth century.