The Definitional Problem with Brehon Law

 

by Vincent Salafia

Celtic Legal Poem

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The poem below was found at the end of an ancient Irish legal, entitled Crith Gablach, dated around the seventh century. In many ways it speaks for itself, and the primary purpose of this essay is to perform a simple act of conveyance. It rests here, shrouded in the original mystique of its birth and the reader may come to his or her own conclusions as to meaning and importance. The reader is reminded that the real veil covering these words is not the passage of time, or some ancient indeology, but rather our own 'learning' and suumption. The observations that follow are not a line by line dissection but rather an expression of simple appreciation. However, the simple miracle of it's very existence today must be placed beside the tragic story of it's arrival here, where most of you will be reading it for the first time. The poem, and it's story raise a number of questions that reach out of the past and fasten themselves on our very assumptions of all it is to be Irish and indeed human.

                An Early Legal Poem.         Translated by D.A. Binchy

                1.  Ma be ri rofesser,             If thou be a king thou shouldst know
                2.  recht flatho,                     the prerogative of a ruler,
                3.  fothuth iar miad,              refection according to rank,
                4.  mesbada slog                   contentions of hostings,
                5.  sabaid cuirmthige,           sticks quarrels in an alehouse
                6.  cuir mescae;                     contracts made in drunkenness;
                7.  mess tire,                          valuations of lands,
                8.  tomus forrag,                  measurement by poles;
                9.  foberta diri,                     augmentations of a penalty,
                10. dithle mesraid;                larceny of tree-fruit;
                11. mormain mrugrechto:    the great substance of land-law:
                12. mrogad coicrich.             marking out fresh boundaries.
                13. cor cualne,                      planting of stakes,
                14. corus rinde,                     the law as to points of stakes,
                15. ranh eter comorbu,         partition among coheirs,
                16. comaithig do garmaim   summoning of neighbors,
                17. gaill comlainn,                stone pillars of contest
                18. caithigthi astado.            fighters who fasten title.
                19. anagraitto rig,                from a king;
                20. righ comairge;                the extent of protection;
                21. corus co sesser                right of the fine up to the sixth man
                22. :setaib seilb.                    in movables and land.
                23. Slan cach comaithches   Valid is every neighbor-law
                24. cuirther gallaib,              that is contracted by pledges
                25. gelltar smachtaib miach.and secured by fines consisting of sacks.
                26. Mo laugu                        Greater or smaller
                27. log ndire.                        is the value of penalties.
                28. Dire n-aurbai                 The penalty for breaching a boundary fence:
                29. o dartaid co dairt           from a bull-calf to a heifer-calf,
                30. dochum colpthaige         from that to a yearling beast,
                31. co coic seotu cingith.      up to five seoit it extends.
                32. Cia annsom fidbeime     What are the most oppressive cases of tree-cutting
                33. fiachaib bacth?               for which fools are mulcted?
                34. Briugid caille,                 The hospitallers of the forest,
                35. coll eidnech.                    the ivied hazel.
                36. Esnill bes dithernam       A danger from which there is no escape
                37. dire fidnemid nair.          is the penalty for felling the sacred tree.
                38. Ni bie fidnemid               Thou shalt not cut a sacred tree
                39. fiachaib secht n-airech,  and escape with the fines for the seven noble trees
                40. ara teora bu                   on account of the fine of three cows
                41. inna bunbeim bis.           that is fixed for cutting its stem.
                42. Biit alaili secht                There are others, seven
                43. setlaib losae.                   atoned for in seoit due for undergrowth.
                44. Laumur ar dochondaib   Let me venture for [the benefit] of the immature
                45. dildi cailli:                       to state the immune things of the forest:
                46. cairi fulocht benar,         a single cauldron's cooking-wood that is cut,
                47. bas chnoe foisce              a handful of ripe nuts
                48. frisna laim i saith soi.      to which one stretches not his hand in satiety.
                49. Slanem de                       Freest of it all
                50. dithgus dithli.                  is the right of removal.
                51. Dire ndaro,                     The penalty for the oak,
                52. dire a gabal mar,            the penalty for lobbing its larger limbs
                53. mess beobethad;             with its life-sustaining mast;
                54. bunbem n-ibair               the stem-cutting of the yew;
                55. inonn cumbe cuilinn,      the same penalty for cutting the holly tree.
                56. Annsom de                      Most oppressive of it all
                57. dire secht n-aithlech       is the penalty of the seven commoners of the forest
                58. asa mbi bo:                     for each of which there is a cow as payment:
                59. bunbeim beithe,              the stem cutting of the birch,
                60. baegal fernae,                the peril of the alder,
                61. fube sailech;                   the undermining of the willow.
                62. sluind airriu aithgein      Declare restitution for them.
                63. anog sciath                     the maiming of the whitethorn
                64. sceo draigin;                   and of the blackthorn;
                65. dringid co fedo forball,   it restitution extends to the undergrowth of the wood,
                66. forball ratho,                  the undergrowth of fern,
                67. raited, aine,                    of bog-myrtle, of reeds,
                68. acht a ndilse do flaithib. save that these are free to lords.
                69. Fothlac, tothlae,             Stealthy penetration, stealthy intrusion,
                70. tan, an,                           driving to and fro,
                71. aircsiu, arach                  looking on idly, tethering
                72. attrab, follscud,              squatting, burning,
                73. fuillechtae iadad;            blocking tracks;
                74. airlem en,                        overleaping by birds,
                75. oss, eisrechtae,                deer and pet animals,
                76. airlim con,                       overleaping by dogs,
                77. caithchi bech,                  trespass by bees;
                78. biit i trenaib dire              in thirds are payable in penalties
                79. ton-accomoing tairgille;  which the preliminary pledge comprehends;
                80. taurrana, tairsce,            driving forward, traversing,
                81. taulberna tar rout,          sudden breeches across the road,
                82. ruriud tar selba.              stampeding across holdings.
                83. samsil trachta.                similarly over strands.
                84. Tomus airchinne             Measurement of the fore-end
                85. co n-aurchur flescaich,   with a cast by a stripling,
                86. forsciu mrugrechto,        supervising the observance of land law,
                87. mrogad cocrich,              marking out fresh boundaries,
                88. caithche tigradus,            final responsibility for trespass.
                89. Tairgget smachta            Let fines be forthcoming
                90. iar cintaib coicthi           on the fifth day after the offenses
                91. a coir comaithech.          according to the law of neighbors.
                92. Cid ag con-ranna fri et? What single ox shares liability with the drove?
                93. Cid airlimm n-oenoirec   What overleaping by a single piglet shares liability with the herds?
                94. Cis tana di-chiallatar       What are the drivings carried out negligently
                95. dona segar tigrathus?      for which final responsibility is not enforced?
                96. Cis tuarrana foichlithi?   What are the concealed drivings forward?
                97. forsna soi fogeltath?       On which grazing-expense does not fall?
                98. Cis formenn dichmaire    What are the unauthorized stalkings
                99. do-sliat dilsi?                    which deserve immunity?
                100. Cis dithle di threbaib     What are the larcenies from houses
                101. nad tuillet dire?              which do not entail a penalty?

                                                                            Celtic Legal Poem

INTRODUCTION

The corpus of ancient Irish law, known as the Brehon laws, have never been read by modern people, despite the fact that they were rediscovered a century and a half ago. It represents all that remains of an immensely complex and progressive legal system that functioned in Ireland for a period of at least 1,000 years, until it's annihilation in the mid-seventeenth century. This signified the complete conquest of Ireland by England. Finally, there is a movement underway to bring the laws out of the shadows. While many have been lost forever, the publication of the Corpus Iuris Hibernici, in 1978, by Professor D.A. Binchy, collected the contents of the all the vellum legal manuscripts (dating from seventh to twelfth centuries) still in existence.

The CELT Project (Corpus of Electronic Texts), underway at University College Cork, Ireland, is in the process of scanning, indexing and making the laws available on the internet for complete dissemination and translation. It is a monumental task. The laws are written, with their accompanying glosses and commentaries, in Old, Middle and Early Modern Irish. The corpus contains upwards of two million words, with only a handful of qualified scholars to do the work of translation. The biggest problem, however, seems to be funding, with the Irish Government and people largely unaware or unconcerned with the plight of the laws and CELT struggling to find funding to even compensate one scholar. This exercise is an attempt to put the issue in perspective and fathom why.

For centuries, scholars have discredited the Brehon laws as bad law and bad literature, a seemingly unwanted reminder of both Golden and Dark Ages, unbearable in either instance. Since their rediscovery and partial publication around the turn of the century, many have indeed praised them. Yet, no one wanted to 'own' them, with each literary, legal, historic, political or religious camp formulating reasons as to why they do not belong in their domain. Thus, they fell through the cracks. The last ten years have been witness to revived interest in the laws. Yet, the problem of definition remains, more controversial than ever. If they are law, why are they not studied and practiced as such. If literature, why don't they appear in any literary collections or degree programs? If politically relevant, why is it that the founders of the Republic of Ireland in 1921 did not reclaim them, instead of reaffirming the English common law system? Today, they are tossed around Irish parliamentary debate as legendary precedent for proposed legislation, without even knowing what they say. What is the legal effect of this? Is it somehow a final unofficial recognition of the true common law heritage of Ireland. If so, why doesn't the Irish government allocate money to their translation and publication, and officially reincorporate them in some form?

 

 

CHAPTER 1. POETIC JUSTICE

 

Celtic Legal Poem

 

The Legal Poem

Most of the laws survive in poetic form, a logical extension of the oral tradition wherein they originated. This essay is centered in an archaic legal poem, found at the end of an ancient Irish legal tract called Crith Gablach, dated around the seventh century. The subject of the tract concerns status, and class. Crith Gablach gives a detailed description of the several social ranks and organizations of the Irish tribes. The poem that follows, however, seems unrelated and deals with laws of neighboring landowners, and gives an overall listing of important areas of law. It opens with the line, "If thou be a king thou shouldst know," which gives htem impression that many of the laws contained are of a national or universal nature, as opposed to local custom or practice. Written in Old Gaelic, the first translation was published in 1879, in Volume Four of the monumental "Ancient Laws and Institutes of Ireland ("ALI"). It also appears that the present version represents, in fact, a portion of a larger text. Sadly, it survives in only one manuscript, dated from the sixteenth century in which most of the archaic forms and orthography have been ironed out. Yet, enough archaic language remains to place it no later than the seventh century.

This poem is unique, for many reasons. First, in it's roughly one hundred lines it contains references to a variety of areas of substantive Brehon law. Second, it poses an interesting problem of definition because of the poetic form of law. Third, it utters an inspiring vision of man's place in nature, without even trying to be beautiful. Literary scholars conclude it is not 'literature' in the true sense because of it's simple rhyme scheme and archaic metre, and ultimately because it was not written with the intent to be 'literature'. Legal scholars don't recognize it as a legal text since it was written in poetic form and seemingly because it is Brehon law. If one leaves preconceptions behind for moment, however, it reappears as a true literary and legislative treasure, a legal poem evoking an impressionistic vision of everyday Celtic experience, filled with grace, nobility and reverence of nature, evoking a vision of beauty and justice that seems sorely missing today. So too it shows itself to be a legal landmark because of the human, conversational manner of conveying legal principle espoused, with it's descriptive listings of rights and duties. This combination of literature and law raise it to an even higher form of written word than simple law or poetry.

                                                                            Celtic Legal Poem

THE BIRTH OF IRISH LAW

A Definitional Problem

Brehon Law Defined

The term Brehon Law is the popular name given to the body of indigenous law of Ireland and Scotland before the conquest. It is named after the primary practitioners of the law in Ireland, the Brehons, or 'brithemuin' who were akin to judges or jurists, but in practice more akin to a mediator. Brehons continued the druidic tradition after the druids fell from garce. Imagine a legal system which respected individuals first, and property second; a system that revered the sanctity of contract and wherein the environment was of paramount importance; women had equal property rights to men and could divorce; where one owed a duty of hospitality and protection to strangers. Imagine also a legal system of self-help that needed no court or police force to enforce it, since it was respected so by its citizens. These were some of the principles and attributes of Brehon Law, existing in Ireland from the Celtic settlement, before Christ, up until the seventeenth century and the reign of Queen Elizabeth.

Pre-Celtic Settlement

While Irish history is a story of successive settlements and invasions, no other culture had such a profound effect as that of the Celts. Very little remains of the prehistoric peoples that preceded their arrival and every succeeding group, even the Anglo Saxons, to a large extent, was assimilated, serving to color, rather than undermine the Celtic tradition. Fact and fiction merge in trying to put a face on the pre-Celtic peoples

The Celts

The Celts are the people who spoke and still speak languages of Indo-European origin, though it is argued that the Celtic race itself no longer exists. With the recession of the Ice Age, Europe grew temperate, and gradually became populated. Indo-European warriors pushed westward across the steppes of Eurasia, into Bohemia, through what is now the Czech Republic and the Hungary. They flourished as an identifiable culture beginning around 700 BC. Celtic influences reached England around sixth century BC, characterized by techniques of ironworking with the resulting improved weapons and agricultural implements which gave greater efficiency to warfare and land use, making the settlers far superior to the indigenous peoples, of whom little is known. Between the third and first century BC they came to Ireland, where they settled and flourished. From 43-85 AD the Romans invaded Britain, which remained occupied for 360 years. However, as the Celtic nature of the Britons was displaced, it flourished in Ireland, where the Romans never conquered.

Bardic Schools

Out of the Celtic tradition developed a singularly important aspect of Irish life, the bardic school, that was to have a direct impact on daily life in Ireland for about 1,500 years. "The studies of the students in the bardic schools were chiefly: history, law, language, genealogy and literature. The history was that of Ireland, the law was that of Ireland, namely the Brehon Law system; the literature was that of Ireland - and through the medium of the native language were all subjects taught.

The time their foundation is unknown, for the bardic order existed in prehistoric times and their position in society is well established in the earliest tradition. [Professor Bergin, 'Bardic Poetry' Ivernian Journal, April-June, 1913, v, 19. They were thus pre-Christain. I pagan days, Druid and poet were perhaps one. Even after they were Christianized, the some vestiges of the of Druid cult survived in them, as the pagan sensibility did, until modern times. When the schools did at last become Christian, they did not become monastic; and they are not to be confused with the famous monkish schools. The Bardic Schools were lay, officered by laymen; and existed side by side with the great schools of the clerics.

The bardic schools, as a separate institution to ecclesiastical schools, lasted until the smashing of the Irish intelligentsia in the seventeenth century. From these schools, the poets, the historians, the Brehons, doctors, and other professional people graduated. The education in these 'lay' schools ran parallel to education in the monastic or ecclesiastical schools. Ireland, unlike most of her neighbors, such as England, therefore had an educational tradition outside the church.

In a largely oral tradition, the poets composed verse for laws, genealogy, calendars of saints and even for history; since students more easily memorized poetry than prose.

Sources describe the school building as being an ordinary house or hut - the central figure, the chief 'File' (poet), the head Ollamh (professor), was indeed the school: where he went, the school went. Usually the poet was attached to one of the local kings.

The Golden Age

Irish Brehon Law was an independent indigenous system of advanced jurisprudence that had fully matured by the eighth century. The law of the Irish Celts derived from a complex set of customs and practices, handed down orally from generation to generation. In the fifth century they were written down for the first time, in great manuscripts that were used by the Brehons and Ollamhs of the ancient bardic and law schools.

The Brehon Laws, as we find them today, may be attributed to the Irish Golden Age. "The fierce and restless quality which had made the pagan Irish the terror of Europe, seems to have emptied itself into the love of learning and the love of God: and it is the peculiar distinction of Irish medieval scholarship and the salvation of literature in Europe that the one in no way conflicted with the other." [52] While the first part may well be true, there was, in the long run, a conflict between love of God and learning. The advanced nature of the relationship and the well preserved evidence and accounts of that relationship are peculiar to Ireland. This land was for centuries the intellectual capital of Europe and saved many of her greatest literary and artistic treasures from the fires of the marauders. It is Ironic, that later, when the marauders finally threatened Ireland, that her treasures were hidden abroad in Europe, where a great many remain unclaimed, along with the ones that survived even in Ireland. (see Untilled Fields of Irish History, Ellis)

                                                                            Celtic Legal Poem

THE SLOW DEATH OF IRISH LAW

The Bull of Pope Adrian IV

While the Anglo-Norman invasion marks the first outright attack on Irish law, the groundwork for this act was laid fifteen years earlier, in 1155, with the Bull of Pope Adrian IV Empowering Henry II to Conquer Ireland. This was a decreee, made by the only English Pope, instructing Henry to take posession of Ireland. The bull was given under the pretense of Christianizing Ireland, and initiating reform. However, Ireland was already Christian, and church reforms were already underway. According to Lord Littlejohn, in his History of Henry II, "Upon the whole, therefore, this bull, like many before and many since, was the mere effect of a league between the papal and regal powers, to abet and assist each other's usurpations; nor is it easy to say whether more disturbance to the world, and more iniquity, have arisen from their acting conjointly, or from the opposition which the former has made to the latter! In this instance the best, or indeed the sole excuse for the proceedings of either, was the savage state of the Irish, to whom it might be beneficial to be conquered, and broken thereby to the salutary discipline of civil order and good laws."

The Anglo Norman Invasion

The Anglo-Norman (or Cambro-Norman) Invasion of Ireland led by Strongbow, in 1170, marked the first violent assault on Irish law. By taking over parts of Ireland, including the area around the port of Dublin, suddenly there were two competing legal systems, manifest in the battle for territory.

As the Normans extended their influence, English law slowly became more important in Ireland. In 1171 King Henry II is said to have held a Council near Waterford, "where the laws of England were by all freely received and confirmed," but it is more likely that the English laws were only gradually accepted during the course of the following century. By 1300 English law applied in most of Ireland, and some 30 years later the policy of leaving the native Irish to be governed by Brehon law was reversed.[The Avalon Project at Yale]

The Windsor Treaty

The Windsor Treaty of 1175, negotiated by Saint Laurence O'Toole, between Rory O'Connor, the last High King of Ireland and Henry II of England, was a momentary reprieve, recognizing the legitimacy of the native law and order, yet dividing the island in two, as it has remained in various forms ever since. It lasted for two years, until the arrival of Henry's son,

The Statute of Kilkenny

This reversal of English Policy culminated with the Statute of Kilkenny in 1367, which was a violent condemnation of the Irish and their laws. The statute was also the obvious predesessor of the Penal Laws.

Marcher Law

The Statute is also interesting in that it forbade March/Marcher Law, another lost form of legislation that was the legal basis for the Welsh Marcher Lords, and gave them almost unlimited power.

By this time, however, the Irish were beginning to regroup, with the object of repelling the Norman invaders. Consequently, the influence of English law went into gradual decline. By 1500 English law extended only to the area around Dublin known as the Pale. The rest of Ireland had returned to Brehon law.

Military Conquest

Although the British tried to eradicate the Laws, first by force, then by fiction. The Irish, although aided by the Spanish at the Battle of Kinsale, in 1601, suffered decisive military loss to the British. Political and military might opened the door for the English hegemony in Ireland, but the it was the English common law system, displacing the Brehon Laws, which converted Ireland into a permanent colony. This was accomplished in great part by Sir John Davies, Attorney General of Ireland from 1606-19, the man who ironically spoke the words:

There is no nation of people under the sun that doth love equal and
indifferent justice better than the Irish, and will rest better satisfied with the
execution thereof, although it be against themselves, so as they may have the
protection and benefit of the law, when, upon just cause they do desire it.

Legal Conquest

The military victory of 1601 enabled English jurists and administrators to accomplish a variety of reforms that encompassed defeat and breakup, not only of political forms of organization and landholding, but also the Catholic religion and those elements of the social polity that adhered to it. This marked the crest of the wave of one of the most systematic, prolonged and crippling acts of 'ethnic cleansing' ever visited upon a modern people. Davis invoked the 'powers of conquest' to justify the eradication of the native Irish laws, treating them as little more than a barbarous and lewd custom. For many years after the England gained a foothold in Ireland, the conqueror made it a criminal offense if found in possession of a document written in the Irish language. All sorts of devices, therefore, were resorted to for the purpose of concealing them, but most were discovere, burned or destroyed.

The Rule of Recognition

One of the legal justifications for the subjugation of the native Irish law was a principle called the Rule of Recognition. The question of the recognition of the law of another people first arose in The Case of Tanistry (1608), where the validity of the Irish (Brehon) customary law of inheritance was raised. (Ireland did not adhere to primogeniture) The Case of Tanistry, 80 Eng. Rep. 516, 520 (K.B. 1608) The court ruled that the indigenous laws of a country survive British rule, "if they are reasonable, certain, of immemorial usage and compatible with crown sovereignty." The custom did not survive the test. It is interesting to note that the English experimented with native policy in Scotland and Ireland contemporaneously with their colonization of America. The Rule was refined in Calvin's Case, wherein Lord Coke ruled that the laws of a conquered Christian nation survive, but those of an "infidel" nation do not. Again, Ireland failed the test. (Calvin's Case, 77 Eng. Rep. 377, 398) It wasn't until the case of Omichund v. Barker, that this Rule came into disrepute. Here the chief justice rejected Coke's view as being contrary to scripture, common sense and humanity. (Omichund v. Barker, 125 Eng. Rep. 1310, 1312 (Ch. 1744)

The Proclamation of James I

The authority of the Brehon Laws continued until the power of the Irish chieftains was broken at the close of the reign of Queen Elizabeth, and all the Irish were received into the King's immediate protection by the Proclamation of James I in 1603. This Proclamation, followed by the complete division of into counties and the administration of the English laws throughout the entire country, terminated at once the necessity for and the authority of the ancient Irish laws. The wars of Cromwell, the policy pursued by King Charles II, at the Restoration, and the results of the Revolution of 1688, prevented any revival of the Irish laws: and before the end of the seventeenth century the whole race of Brehons and Ollamhs of the Irish laws appears to become extinct. [32]

Penal Laws

Although the penal laws of Ireland were passed by a Protestant Parliament and aimed at depriving Catholics of their faith, such laws were not the outcome of religious motives only. They often came from a desire to possess the lands of the Irish, from impatience at their long resistance, from the contempt of a ruling for a subject race.

                                                                            Celtic Legal Poem

SUBSTANTIVE BREHON LAW

Translated Texts

What we know, from the fragmentary portion of original texts that have been translated, the substantive law is broad and dense. Every facet of life, from names to beekeeping, from practice of medicine down to the very blades of grass they walked on were regulated. The accessible texts are roughly divided as follows:          

Status and Rank

Four tracts have survived detailing the various ranks and grades of the aristocracy, with their property-qualifications and entitlements, and their legal rights *on of them being Crith Gablach);          

Professional GroupsSeveral tracts on the duties of judges, poets, and other 'privileged persons', and (lost) regulations concerning other craftsmen;          

Categories of Persons Law texts on the subjects of marriage and fosterage, kin-groups and their relationships, clientship and the relations of lord and client, maintenance of elderly people, and provisions concerning the mentally ill;          

Personal Injuries Although there is an abundance of scattered material on the subject, there is in fact no continuous tract on corporal injuries. There are however several tracts on sick-maintenance, with other regulations concerning accidental injuries and injuries suffered in the playing of sports;          

Theft and Other Offenses Theft and liability in the case of accessories and relatives of the 'criminal', arson and a now lost react on the subject of poetical satire; the concept of sept liability for a crime of one of their members was a very effective deterrent and enforcement mechanism, in lieu of a police force;          

Land Law Tracts on land and it's classification, joint husbandry and cooperation of neighbors; laws concerning watercourses and fishing estuaries, 'Bee-Judgements', 'Tree-Judgments', and 'Sea- Judgments', (i.e. the regulation of flotsam and jetsam), and various regulations concerning cats, dogs, deer and deer-trapping;          

Contract Law By comparison with Anglo-Saxon law, the Irish texts preserve a great deal of information on this subject, which has been collects and analyzed in a recent monograph. (McCleod, 1996) The sanctity of contract is spoken of as a supreme and spiritual doctrine, which could be said to have been the glue that held the world together;          

Pledges,Sureties, Loans and Deposits This includes the regulation of contracts and agreements between neighboring kingdoms. Saint Lorcan Ua Tuathail, to whom site is dedicated, was given as a youth by his father Murtagh, as surety, to Dermott McMurrough, to ensure the loyalty of the chieftain to the then King of Leinster.          

Distraint and Legal Entry Tracts on the alternative legal procedures available to victims in order to enforce a legal claim. The texts on distraint are particularly interesting, since they provide a detailed description of a procedure which had all but disappeared already by the time of the Twelve Tables (c.450 BC), the oldest surviving documents of Roman Law;          

Legal Procedure Tracts on the regulation of court procedures, the classification of evidence, and appeal of judgments. Some procedures are particularly interesting, including the concept of 'fasting on someone', sitting outside their house for a given period, thereby putting them on notice of a dispute. This has been compared to law and practice in India (evidence of the Indo-European language theory) and used in modern day hunger-strike practice by Irish Political Prisoners.
[Early Medieval Ireland 400-1200 Daibhi O Croinin. Longman, NY 1995]

National and Territorial Law


One of the difficult issues in analyzing the laws is deciding what was national and what was locally decided. This is very similar to the concept of federal versus state law in America. Daibhi O Croinin addresses this issue:

Binchy and others have chastised early lawyers for propagating a 'fiction of uniformity' in their presentation of the laws by showing a wilful disregard for the evidence of their own experience, preferring instead to conceal its constant changes under the veneer of pseudo-archaism. (Binchy 1938 p. 128; cf Binchy 1941, p.2.) The charge raises another closely related question with regard to the laws: the difficulty of establishing what is divergent interpretation on part of the lawyers, and what is contemporary regional variation. But the criticism - though justified to a certain extent - nevertheless glosses over an important fact: law tracts of different authorship and provenance, and doubtless also of different regions, all use the same Old Irish technical terms (see Thurneysen 1930 pp 353-408 (p. 379), where he gives a list of terms (aidbsen, aire coisrig, aire fine, ansruth, muire, muiredach) which all apparently have the same meaning and sem to represent regional variations of one legal concept.) and treat of the same institutions and customs, even they do not always handle them in the same way.

In other words, Irish law is, as we remarked above, 'territorial law'. This is bourne out in the terminology; the texts refer to bescnu inse Erenn ('the practice of law of the island of Ireland'). In other words there is no 'nationality' in the law, and no distinction made between the laws of the Ulstermen and those of the Leinstermen, nor between any other provincial or political jurisdiction. It is perhaps possible that there was such a regional or ethnic association in the earliest period, since the oldest Irish law is termed Fenechas, i.e. the law of the Feni - the same word as Fianna, the warrior band later associated with the activities of Finn mac Cumhaill and hence the Leinster origin, like Finn himself. But by the time the laws were committed to writing, the term Fenechas is usually taken to represent the customary law of all Ireland in the archaic and pre-literate period; but the names of all other the provinces and peoples occur without any indication that their law differed in any significant way. (Charles Edwards points out that it can also mean ordinary Irish law as opposed to enacted law (cain) or book-law (lebair), i.e. canon law or related ecclesiastical regulations; see Charles Edwards 1980 p. 146n. 14).

When Fenechas is quoted in later texts it seems to be thought of as oral law rather than written text, and preserves archaisms of language and style that are redolent of a time when the law was couched in mnemonic prose or primitive verse to facilitate its memorization in the brehon law schools. 'Furthermore, the early laws appear to think of the secular brithem as a man who carried on an un-bookish trade.' (Edwards, p. 146) Whatever the merits of the argument that Irish law was, from an early date, imbued with much of the spirit of canon law...it is entirely reasonable, nonetheless, to believe that there were brehon lawyers in the period down to the fifth century and beyond who practised their trade in the time-worn manner of their ancestors. Saint Patrick, after all, reports how he had to arrange safe passage for himself and his entourage with 'those who gave judgment' (illi qui iudicabant). (White, 1905 p.251 (Confession 53) When and how was this law first committed to writing, and who were the men who carried out the task? Why did they write in Old Irish rather than in Latin? What was the motivation for the undertaking, and how did the people involved ensure uniformity in their work. These and other questions have been hotly debated in recent years, as we said above, and though the earlier views of scholars such as Binchy have in some crucial aspects been modified, in many cases it must be said (appropriately enough) that the 'jury is still out'. [119-120]

Kings

One of the issues it turned on was the institution of kingship. While some tracts talk of a strong national king, and the division of the island into five provinces, it is fairly evident that by the historical period, marked with the earliest texts, that Ireland was divided into about 150 'tuaths', somewhat reminiscent of Maciavelli's Italy in 'The Prince'. Tommy Makem, the traditional Irish musician, has been quoted as as saying there is evidence that the Brehon Laws in fact formed the foundation of the Magna Carta. There may be some truth to this, since the Brehon Laws certainly were ancient at the time of this early Anglo-Saxon document. If we look at the Magna Carta as a basic limitation on the Kings executive power to legislate and directly affect the judiciary, then the precedent was certainly present in the Brehon Laws. Ireland employed many mechanisms to keep the national and to an extent local law, out of reach of the political leaders. Finally, if we note the singnators to the Magna Carta, were often Irish landowners, such as descendants of Marcher Lords who invaded Ireland, the it is not such a great leap of logic at all.


Hospitality and Neighbor Law

 

Criminal Law

Irish law treated all felonies and misdemeanors as civil offenses (or torts, to use modern terminology), i.e., wrongs for which the law prescribed compensation in the form of damages. There was no concept of criminal law, and therefore none of the objects of modern criminal law, such as punishment and retribution, deterrence of would-be wrongdoers or reform of wrongdoers. There is no evidence that the early Irish thought in those terms, and therefore the liability men incurred by wrongdoing was strictly a damage liability, not a punishment or penal liability. There were no crimes against society as such, (with the exception of the betrayal of the tuath to an enemy), only injuries done by individuals to other individuals.

One of the targets for the assassination of Irish law by Anglo-Saxons was the pecuniary fine which was imposed sometimes on the individual author of a homicide, sometimes on his tribe, the Eric fine. (similar to the Wehr Geld of the Germans). It represented as evidence of the slight value attached by these races to human life. Here (it is said) is a mere money compensation for killing an enemy. But this is a misapprehension of the amount of the punishment inflicted. If we had learned that a man who tools the life of another was deprived of the whole of his land we should, I suppose, have been of opinion that the punishment was at all events not trivial. But one of the new ideas which we owe to the ancient Irish law, the Brehon law, is an adequate conception which we for the first time gain of the importance to mankind of moveable property. Capitale, cattle, capital, a long descended term, was the imperatively required implement for the cultivation of land, at a time when land was plentiful and perhaps common and undivided. The necessity imposed on the family or tribe of a man who had taken a life of paying a portion of this jealously guarded subject of ownership to another of the ancient groups was not a slight but an exceedingly heavy penalty. (Yale. The Avalon Project)

Copyright Law

There are reports that Brehon Law contains the first copyright law in the western world. Colmcille in Tirconnell, supposedly copied the gospel book of the holy Finian, and without permission. This caused a war, resulting in his banishment from Ireland, he did. The judgement remains--"To every cow its calf, and to every book its copy."

 

Enforcement

The ancient law contrasts with modern legal positivism, which is the prevailing system of the civilized world. The essential idea of modern law is entirely absent from them, if by law we mean a command given by some one possessing authority to do or to forbear doing, under pains and penalties. There appears to be, in fact, no sanction laid down in the Brehon law against those who violated its maxims, nor did the State provide any such. This was in fact the great inherent weakness in Irish jurisprudence; one inseparable from tribal organization, which lacked the controlling hand of a strong central government. If the litigant chose to disregard the Brehons judgment there was no machinery of the law set in motion to enforce him to accept it.

The only executive authority in ancient Ireland, which lay behind the decision of the judge, was the traditional obedience and the good sense of the people. The public appears to have seen to it that the decision of the Brehon was 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.

                                                                            Celtic Legal Poem

PRIMARY TEXTS

The Great Tradition

The Senchus/Senchas Mor (Great Tradition) represents one of the oldest and one of the most important portions of the ancient laws of Ireland, which have been preserved. It exhibits the remarkable modification that these laws of Pagan origin underwent, in the fifth century, on the conversion of the Irish to Christianity. This modification is often ascribed to the influence of St. Patrick. The Senchus Mor would appear to have maintained its authority amongst the native Irish until the beginning of the seventeenth century, or for a period of 1,200 years.

 

Saint Patrick

Patrick arrived in Ireland approximately 432 AD, and the Senchuis supposed to have been completed nine years later. Legend has it he gathered together all the poets and chieftains and druids from around the country and recorded all of the laws and customs, a revolutionary idea for Ireland where previously none had been written. According to the Senchus, Patrick requested the men of Erin to come to one place to hold conference with him. When they came to the conference, the Gospel of Christ was preached to them, and the story goes that when the men of Erin heard all the power of Patrick since his arrival in Erin; and when they saw King Laeghaire with his Druids overcome by the great signs and miracles wrought in their presence they bowed down in obedience to the will of God and Patrick. The Senchus itself records the meeting:

It was then Dubhthach was ordered to exhibit the judgments and all the poetry of Erin, and every law which prevailed amongst 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. Now the judgments of true nature 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, was 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 consciences of the believers, was confirmed in the laws of the Brehons by Patrick...for the law of nature had been quite right, except the faith, and its obligations, and the harmony of the church and people. And this is the Senchus.

Affirmation of Irish Law

Saint Patrick succeeded so completely in his conversion of Ireland because he destroyed no ancient custom that was not essentially pagan. Irish society remained essentially unchanged except that priests took the place of druids. The Druids became Filid or Brehon. "Brehon Law has a democratic sanction throughout. The mind of the average man stood at the back of it, serving so well to cure the wrong- doer through his mind." Most of the Brehon Laws derive their names not from the individuals who promulgated them, but either from the subjects treated 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 Senchus Mor embodies community, even tribal values of ancient origin, which both contrast and compare with modern law and jurisprudence.

 

The Commission published "Ancient Laws and Institutes of Ireland", in five volumes. Volumes I and II, published in 1865 and 1869 respectively, contain the Senchus Mor and the Law of 'Athgabhail' or Distress. Volume II also contains: the Law of Hostage-Securities of Fosterage of Saer Stock tenure and Daer Stock Tenure and The Law of Social Connexions. Volume III, published in 1873 contains the so-called Book of Acaill, concerning the law of torts and injuries, forms a compilation of the dicta and opinions of King Cormac Mac Art, who lived in the third century, and of Ceannfaeladh, who lived in the seventh century. Volume IV, published in 1879 consists of isolated law-tracts such as that on "Taking Possession," and containing judgments on co-tenancy, right of water, divisions of land, and Crith Gabhlach along with the archaic legal poem. The fifth and final volume, published in 1901, contains five tracts, "Small Primer" evidently intended as a kind of manual and probably used in the old schools. There are also "Heptads," "Triads and two other legal tracts, "Judgments on Pledge Interests" and "On the removal of Covenants."


Unlocking the Secret Language

Some idea of the difficulty of this undertaking may be had when one realizes that the text appeared in Old Irish, a dialect which had become obsolete centuries before, and that the best Irish dictionaries then in existence did not enable one to understand the language, which was in fact entirely unintelligible to one who knew only modern Irish. The deliberately obscure and extremely technical language contributed to the problem of translation. This problem may have been compounded by the fact that the Irish literati were reputed to have a secret language of their own, called Berla na Feini or Berla na Filid. Even in the fifth century the "law" language, called the Berla Feini, was already archaic and shows just how old the Brehon system was at that time."

 

The Legal Tracts

Besides the substantive laws found in great books such as the Senchus Mor, various other legal tracts were written. Chieftains commissioned them to proclaim the wisdom and just nature of the chieftain himself and some modern scholars have asserted that they may be seen as a form of propaganda. [64] Now, it seems, scholars dispute this. Others, written by the Church, seemed to reflect a similar ideological agenda. Some were comprehensive of local law, while others mentioned some of the laws that existed, and some proposed. The question of whether people practiced all the laws remains a source of dispute. The dichotomy between practice and ideology, common in the Gaels, led to their eventual downfall. Crith Gabhlach, one of the finest examples of these legal tracts, dates from around the Sixth Century.

Volume IV of ALI includes miscellaneous tracts, such as, On Taking Lawful Possession, The succession to Land, Judgments of Co-Tenancy, Bee Judgments, Right of Water, Divisions of Land. The tract which retains its Irish title of Crith Gabhlach, from which Binchy separated the poem in this paper, gives a detailed description of the several social ranks and organizations of Irish tribes.*** [Pen.230] Most of the extant texts seem to have been composed in writing somewhere between 650 and 750 AD [70] But even within a tract that is itself dateable to the Eighth Century, old passages frequently lurk side by side with later bits; for example this poem we read, at the end of Crith Gablach. Today, at the close of the twentieth century, we still find a vast amount of the laws without translation, never having been read by modern people. The culmination of gloss, obscure language, destruction of texts, and the passage of time and the entrenchment of English common law leave our legal and literary Holy Grail as distant and obscure as ever.


                                                                            Celtic Legal Poem

 

PRACTITIONERS OF THE LAWS

The Druids [33]

The Senchus 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. [34]

The early Celtic laws were administered by the Druids. They formed, in early Christian times, an itinerant fraternity, and they had very great influence, on account of their prestige, and the universal dread of their satire. [35] It is only when Christianity became established that the men of native learning abandoned the designation of Druid, closely associated with heathen belief and practice, and afterwards became known as Filid. [36] Saint Patrick's success in Christianizing Ireland may be directly linked to his adaptation of Irish laws by retaining most of the Celtic traditions and laws, thus serving as a monumental affirmation of their legitimacy. The Senchus itself describes how he gathered together all the poets, chieftains and druids from around the country and recording all of the laws and customs, a revolutionary idea for Ireland where previously none had been written down. [37]

The relationship of the poet to the law created some difficulties, as expressed here in the Senchus Mor:

From the time that Amergin Glungel passed the first sentence in Erin, the judicature belonged to the poets alone, until the time of contention which took place at Emhain Macha between...two sages...obscure, indeed was the language that the poet spoke in that disputation and it was not plain to the chieftains what judgment they had passed. "These men," said the chieftains, "have their judgments and their knowledge to themselves. We do not in the first place, understand what they say." And one of the Chieftains commented further, "All shall partake in it (the law) from this day forth, but the part of it which is fit for these poets shall not be taken from them, each shall have his share of it.

Many sources show that druids did trust the law to written records. In the noble words of the Senchus Mor, their responsibilities consisted of "...the joint memory of the ancients, the transmission form one ear to another, the chanting of the poets." They administered all the spiritual, intellectual, ritual life of the people; inheritors and interpreters of the old laws and genealogies. They sat at the king's right hand and the king could not speak until the druid had spoken first. [39]


The verses studied in the Druidic schools constituted sacred hymns, composed before the introduction of writing, and like the Vedas in ancient India, were preserved by oral tradition, as commission to writing would have constituted profanity. [40] We learn, also, from Caesar that instruction in the Druidic schools, "took the form of learning by heart a great number of verses, because it was unlawful to commit to writing. This instruction filled no less than twenty years." [41] Caesar concluded from this that the Druids feared lest their monopoly of learning be infringed by the common people, or that the memories of the students be weakened by trusting too much to written notes. [42]

 

Out of the Druidic system grew up in Christian times the Order of Filid or Professors of Secular Learning. [43] If the Filid and the Brithemuin (Brehons) represented the true successors of the Druids, the study their function as regards the law seems before dealing with the function of the Filid or of the Brithem, who was the Fili who specialized in law. [44] No definite dividing line between the Filid and the Druids appeared in the beginning. Poetry, undoubtedly a necessary part of the training of the Fili and the Druid, formed the most convenient method of learning the knowledge, unwritten in books. Although the coming of Christianity placed a ban on Druidism, the Druidical character of men of learning did not quite disappear, and the Druidical system of education and the privileges of the Druidical order remained. [45]


The Filid (Poets)

The Filid, up to the first century of the Christian era, had not only the custody of the laws, but also the exclusive right of expounding them to the people, and pronouncing judgments in both criminal and civil. [47] At one point there were seven order of Filid, known as Fochloc, Mac Fuirmid, Doss, Cano, Cli, Anruth and Ollam. ***[46] Even when the king himself undertook to adjudicate, the Fili was his official 'assessor,' and that the royal judge was guided by his advice in the administration of justice. [48] The Filid would, naturally, be very jealous of their great power and privilege in this respect and, in order to exclude others from any share in the administration of the law. They preserved the archaic legal formula with the greatest secrecy and tenacity. [49] Not until the reign of Conor Mac Nessa, in the first century of our era, did they resolve to deprive the poets of this exclusive privilege, and to throw open the office of Brehon to all who duly qualified themselves by acquiring the learning necessary to enable to discharge its duties. [50] That the Filid had a long and strenuous course of training is evidenced from the classes of text composed and transmitted by them, without even mentioning the legal works:

         1. Sagas or romances,
         2. Historical narratives and poems,
         3. Topographical matter, especially in the Dind Senchas)
         4. Genealogies, regal lists and similar historical records,
         5. Official poetry, panegyrics, obituary eulogies
         6. Texts relating to customary duties and prerogatives
         7. Satire
         8. Lyrical and miscellaneous poetry
         9. Didactic, gnomic and proverbial literature
         10. Charms, incantations, and other magical texts
         11. Grammatical treatises, glossaries, works on metre; and
         12. Translations and adaptations from foreign literatures. [48]

The relationship between the poet and the law seems peculiar to Ireland but other tribal cultures exhibit this sort of organization. Celtic countries such as France, Wales and Scotland had the same. Further, comparisons have been made to Hindu and other systems. This may be attributable to the Indo-European origins of the Celts. Ireland, like India, lies on the periphery of the Indo-European world, and it might therefore be supposed that the ancient institutions of both countries would have preserved traditions more archaic than those closer to the center. This may be seen for example, in certain features common to the Druids and the Brahmins. [51] The law recurrently appears to have formed a sacred rite of religious sorts. The 'receptacles' of the knowledge and wisdom of the tribe administered the law, which formed essentially the collective customs of a people.


The Brehons

The Brehon became the newest class in the order of development, so far as the law was concerned. The Brehons, early in the Christian era, became recognized as a professional class. The Brehon seems different from a judge. He appears as a specialist, who knew, preserved and to some extent, developed the law. It was to him that the disputes and difficulties were referred, and his decisions or opinions were usually accepted as binding. [54] The decision of the Brehon, though called a judgment, differed from what the word 'judgment' means with us. The Brehon rather declared what the law stated, as applied to the facts brought before him, and it seems more an award founded, in each particular case, on a submission to arbitration. The Brehon stood, therefore, more in the position of an arbitrator, and resembled to a great extent the 'juris prudentes' of the Roman law. [55] He also taught the law to his pupils, and his interpretations and commentaries became handed down from generation to generation. The ancient laws of Ireland, less accurately referred to and known as the Brehon Laws, formed the textbooks of the ancient law schools and they created the only law records. [56]

 

The Celtic Act of Truth

Various myths describe the Celtic Act of Truth, which arose from the belief in the supernatural power of true utterance. This extended to social intercourse and there must have been strong feelings of honorable conduct and the 'fitness of things'.[57] When the Brehons deviated from the truth of nature, their appeared blotches on their cheeks, as first of all on the right cheek of Sen Mac Aige, whenever he pronounced a false judgment, but they disappeared again when he passed a true judgment. Sencha Mac Col Cuin was not want to pass judgment, until he pondered upon it in his breast the night before. When Fachtna, his son, had passed a false judgment, if in time of fruit, all of the fruit in the territory in which it happened fell off in one night, ...if in the time of milk, the cows refused their calves; but if he passed a true judgment, the fruit was perfect on the trees. [58]

 

The link between law and nature, considered absolute, finds reflection in the legal poem herein studied, particularly in the description of "a danger from which there is no escape," for the felling of a sacred tree, in lines 36-37. Even ones motion, whilst traversing the forest, is preordained in lines 69-83. Still, it seems to be recognized that there is a natural immunity, or law of necessity, that allows one to cut wood for the cooking fire, line 45-46, and satiate the need for nourishment with fruits of the forest, line 47.

 

From the laws, also, we would gather that a Brehon remained punishable for his neglect, whether such neglect occurred through malice or inadvertence. [59] The laws forbade the Brehon from committing seven prohibited acts. Five are stated in the ALI, namely, to give his judgment, (1) without legality, (2) without precedent (3) without security to abide by it (4) on an assertion of oath, and (5) on half pleading. [60] Additionally, there were seven Brehons who could not adjudicate, of which the ALI mentions four: A Brehon, (1) of whom falsehood is known, (2) who does not dare give a pledge in defense of his judgment, (3) without foundation of knowledge, and (4) who passes judgment on half-pleading, without hearing both sides. [61]

 

Fine Fiery Fellows

As long as Ireland remained Celtic and tribal, split up into several score of petty kingdoms, wandering Brehons and Filid kept alive fragments of the Druidic heritage. But when the English took over the country in the sixteenth century, like the Romans before, they wanted nothing to do with any tribal society. They wanted settled agricultural communities, likely to pay their rents on time. Landlords like Sir Walter Raleigh saw their most bitter enemies in the Brehons and the poets; "fine fiery fellows with great rages when their tempers are roused." They dealt with them as savagely as the Romans dealt with the Druids in ancient Britain and Gaul. [62]

 

The Filid and the Brehons survived in Ireland until the time of Queen Elizabeth I. Elizabeth succeeded her half sister Mary in 1558 AD. She aimed to completely subjugate Ireland and reduce it to uniformity with England in religion, speech, and custom. She considered the Brehons, along with the Irish poets, lewd, unreasonable, and barbarian. Thus, the Brehons, the poets, and the ancient laws they proclaimed, disappeared from Ireland and the English common law took its place. She proclaimed the end of Gaelic order upon succeeding her sister. [63]


  Celtic Legal Poem       

REDISCOVERY OF BREHON LAW

An uaisle b’fhearr chun fáin mar leaghadar 81 The nobles languish in a foreign land
Is uachtar láimhe ag fáslaigh shaibhre, 82 While the jumped-up rich get the upper hand,
Ag fealladh le fonn is foghail gan féachaint 83 In betrayal ardent, in plunder greedy
D’fheannadh na lobhar is an lom dá léirscrios. 84 Flaying the sick, despoiling the needy.
Is dochrach dubhach mar dhíogha gach daoirse 85 It is blackly baneful and sticks in the craw
Doilbhe dúr i ndúbhcheilt dlíthe 86 That, in darkest despair over the absence of law,
An fann gan feidhm ná faghaidh ó éinne 87 There’s nothing from no one for the purposeless weak
Ach clampar doimhin is luí chum léirscrios, 88 But a depredacious future that is hopelessly bleak,
Falsacht fear dlí is fachtnaí ardnirt, 89 The knavery of lawyers, tyranny on high
Cam is calaois faillí is fabhar, 90 Injustice, fraud and neglect apply
Scamall an dlí agus fíordhath fannchirt, 91 The law is clouded, the scales awry,
Dalladh le bríb, le fee is le falsacht. 92 With all the pull that bribes can buy.

Cuirt an Mheán Oíche—The Midnight Court le/by Brian Merriman,(1780).
Edited and Translated into English by Noel Fahey.

Edward Lhwyd

About the year 1700, , the eminent Welsh scholar, made a tour through Ireland, and he there obtained in various parts of the country about 20 or 30 old parchment manuscripts, among them some of the most important existing manuscripts of ancient Brehon Laws as well as the manuscript of Crith Gablach, which contains the archaic legal poem discussed this paper. These manuscripts subsequently became part of the Chandos collection, and later they came into the hands of Sir John Seabright, a Scotsman.

Colonel Vallency

About the year 1778 Colonel Vallency, an Englishman traveled under authority of the Government to superintend some works in Cork. He had previously spent years in India, and distinguished himself as an Oriental scholar. Being struck with the similarity between certain words in Irish and Hindustani, he began to study the Irish Language, in which he soon became very proficient. In 1782 he obtained permission from Sir John to examine the manuscripts in his possession. In 1783 he wrote to Edmond Burke to plead for their restoration to Irish custody. Burke fortunately prevailed on Sir John, in August of that year, to present the manuscripts to the library of Trinity College, Dublin.

O'Curry and O'Donovan

The manuscripts remained at Trinity for nearly seventy years, unnoticed and almost forgotten. Finally, in 1852, the government appointed a Royal Commission to superintend the translation and transcription of these manuscripts, as well as other ancient Irish manuscripts in the possession of the Royal Irish Academy, the British Museum, and the Bodleian Library at Oxford. Two eminent scholars, O'Donovan and O'Curry, set about the task, but died before their work was complete.

 

D.A. Binchy

D.A. Binchy has been called 'the doyen of Irish legal historians. It is he who originally translated and presented the poem above, along with Crith Gablach. Moreover, it is

 

Modern Literary Criticsm

One modern commentator, Carney, quipps: We have a great mass of verse in Irish, which could hardly be called poetry. The 'Book of Invasions' and 'The Book of Rights,' to mention only two examples, consist of tedious collections of poems accompanied by prose summaries. These poems are not without merit as examples of metrical skill, but they are not poetry. [66]

The fallacy of this view speaks for itself: "These poems...are not poetry." Other modern commentators, describing what they call the 'Paradox of Medieval Law', voice concern about the applicability of early Irish (and Welsh law). They call the tracts "warts on the face of barbarian legislation," suggesting that the majority of early medieval law books were not intended to be used, in our sense at least, in formal procedure. They feel codes were too selective in topics they chose to cover and written in Latin to boot. They argue that much of what they said proved demonstrably inaccurate - either wildly archaic or linguistically absurd. However, they do see a value of the books, primarily in their existence as royally sponsored law books designed to enhance the image and the functions of the king who had ordered them to be written. However, they state that, as a reflection of a barbarian society and custom, they were at best indirect; but, as evidence of the ambitions and priorities of kings and their publicists, they were unparalleled. [67]

 

Another writer, Douglas Hyde (who wrote the description Brehon Law in the 1911 Catholic Encyclopedia) states, "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." What importance then do they hold? What value? Overly critical analysis has effectively purged then from both Irish literary and legal history. The possibility that the combination of the two, found in them, may well be greater than the sum of the individual parts seems to have been disregarded.

Kenney, another commentator, however, seems to have given them greater credit. Yet, one feels that he does not respect them as true law or true literature either, but more as sociological curiosities:

 

This literature presents to us not only the thought and life of the society from which it immediately sprang, but also, because of the fact that a considerable portion of it consists of evidently well-preserved traditions of an older age, extraordinarily interesting reflections from primitive, pre-Christian, pre-Roman stages in the development of European culture.


                                                                            Celtic Legal Poem

EARLY GAELIC NATURE POETRY COMPARED

Only a fool would fail
To praise God in His might,
When the tiny mindless birds
Praise Him in their flight.


(Anonymous Gaelic poem, translated by Brendan Kennelly)

Fools

"To seek out and watch and love nature, in its tiniest phenomena as in its grandest, was given to no people so early and so fully as the Celt."

The dysfunction innate in the scholarly dismissal of these legal documents as sub-literature is exemplified by a brief comparison between the poem that forms the subject of this essay and popularly heralded early Gaelic nature poetry. Early Irish nature poems have been praised and translated often. The unique cleanliness of line has been commented on; "The tang and clarity of a pristine world, full of woods and water and birdsong seems to be present in the tang of the words." In its precision and suggestiveness, this art has been compared with the art of the Japanese haiku, and the comparison is a good one. "Basho's frog, plopping into its pool, in seventeenth century Japan, makes no more durable or exact music than Belfast's blackbird clearing its throat over the loch almost a thousand years earlier."

 

Below are two examples of early Irish poetry. The voice is strikingly similar to that of our archaic legal poem, in precision of language, tone, subject matter, although the rhyme scheme is admittedly more complex.


The Blackbird of Belfast Lough [72]

Int en bac The small bird
ro leic feit let a chirp
do rind guip from its beak:
glanbuide; I heard
fo-ceird faid, woodnotes, whin-
os Loch Laig gold, sudden.
lon do chraib The Lagan
chrannmuige! blackbird!



Equally clear, reverent and delicate, are the lines beginning, without a formal title:

 
Scel lem duib: Here's a song -
dordaid dam, stag's give tongue
snigid gaim, winter snows
ro-faith sam; summer goes
   

gaeth ard uar,

High cold blow
isel grian, sun is low
gair a rith, brief his day
ruirthech rian; seas give spray
   

roruad rath,

Fern clumps redden
ro-cleth cruth, shapes are hidden
ro-gab gnath wildgeese raise
gingrann guth; wonted cries.
   

ro-gab uacht

Cold now girds
etti en, wings of birds
aigre re: icey time -
e mo scel. that's my rhyme.


Seamus Heany said of this poem that, "I can think of only a few poets in English that give us the sharp tooth of winter anywhere as incisively as that." In nature poetry, he feels, the Gaelic muse may vie with that of any other nation. Indeed, these poems occupy a unique position in the literature of the world. [76] The 'archaic legal poem' of this paper, reveals that the laws deal with man's interaction with nature as comprehensively as they do man's interaction with other men. Long verses classify the various grades of tree and the penalties for crimes, such as negligently driving through the forest. "Larceny of the fruit-tree," "the maiming of the [W]hitethorn," "the peril of the [A]lder" obviously constitute crimes against man, as much as they are crimes against nature, as if the trees were human themselves, or even greater than merely human. Love lies, not only at the heart of these words of law, but on the very face of them, in sharp contrast to the cold Anglo-Roman "Thou Shalt Not..." form of law. This humble humanity, deep reverence of the world around us and our connection to it, in the ancient language of these laws, raises them above the modern definition of law, through the realm of literature, and into a place long forgotten and sorely lacking in these new, dark ages.

"It is a characteristic of [the nature poems] that in none of them do we get an elaborate or sustained description of any scene or scenery, but rather a succession of pictures and images, which the poet, like an impressionist, calls up before us by light and skillful touches." [78] To some, the long lists of crimes and penalties in the legal poems are monotonous and repetitious, but are they not as beautiful, in their own succession of images. Are they not infinitely more powerful in that they were recognized as the true song of a collective soul, the dreams and judgments of a lost world, sung in its strongest voice, not simply poetry, but legal prayer? Each line conjures a complete image, stirring ancient sensibilities, which dwell deep in us all, as Haiku-like and precise in literary terms as any nature poem we have seen. For example, lines 69 to 77:

 
69. Fothlac, tothlae Stealthy penetration, stealthy intrusion,
70. tan, an,  driving to and fro,
71. aircsiu, arach  looking on idly, tethering
72. attrab, follscud,  squatting, burning,
73. fuillechtae iadad;  blocking tracks;
74. airlem en, overleaping by birds,
75. oss, eisrechtae,   deer and pet animals,
76. airlim con,    overleaping by dogs,
77. caithchi bech, trespass by bees;

               

Leave the intent of the author aside for a moment and simply let the images fly across the mind. The beauty of the written law is precise, conjuring up images as mystical and stark as any Gaelic poem, especially in Gaelic form. The only major outward difference between the legal poems, that have been scorned, and the poetry praised, is the metre. This archaic legal poem exhibits archaic metre, without rhyme or exact measure of syllables, in short verses, each of which as a general rule contains two fully stressed words, the last stressed word of each verse making alliteration with the first stressed word of the following verse. [82] Ironically, while allegedly primitive, the Eighteenth Century saw this Amharain metre become universal and the dominant stress accent became once more the dominant feature of Irish verse. [83]


Gaelic Metre

The early native Irish type of poetical metre expressed itself in short, heavily alliterated lines with a strong stress accent. This continued in use well into the Christian period and is found, noticeably, in the law tracts. Dan Direch, the later characteristic metre of the Filid, opposed the old form, since it based itself on a strict counting of syllables quite regardless of the accent. [80] It existed from the Seventh Century until the break-up of the Bardic schools in the Seventeenth Century.

The Dan Direch' metre appears modeled on the Latin hymns of the early Church. [81] Yet, as noted, as remarkable as were its literary progeny, Dan Direch lost favor with modern scholars and poets, in favor of the ancient style of Amhrain metre that was evident in the literature of the law tracts. But instead of being appreciated finally as literature, the laws were again stigmatized as nonliterature, despite sharing the popular metre. The numerous reasons for this stigma are such that this paper can hardly begin to address, or fathom them.

 

 Celtic Legal Poem

THE BREHON LAWS TODAY

Selective Incorporation

As mentioned above, the last of ALI was published in 1901. Despite existing as the common law of Ireland for two entire millennia, and finally being partly translated and published in Ancient Law of Ireland Volumes (19---19), the Brehon Laws were ignored in the early 1920s, when Saorstát Éireann and the legislative structure of Government was altered. They were again ignored in Bunreacht na hÉireann, in 1937. While listed in handbooks of justices around the country for years afterwards, they were never used as legal precedent. They warranted more than a passing mention in legal history elective courses in modern Irish Law Schools. Yet, recently, they have been repeatedly raised in Irish legislative debate, imparting a legal precedent on issues such as adoption, negligence,

One does find mention of the ancient laws, in the first paragraph of the Houses of the Oireachtas, The Irish Houses of Pariament, of a proclamation entitled, The Irish Parliamentary Tradition:

Ireland has a tradition of parliamentary government whose roots predate the written history of the country. The legends and annals of ancient times give numerous examples of elective chieftainries and kingships and describe how Irish society was organized along lines that could reasonably be regarded as 'democratic' today. The legal system of the time - the Brehon Laws - were clearly grounded on commonsense, practical arrangements that facilitated people living together in a cooperative way.

 

Self Description

The description of Irish history and early Irish people contained on the official Republic of Ireland website at History, Prehistory - Department of Foreign Affairs, exhibits a rather simplistic view of both:

The Celtic culture of the La Tene civilisation - named after a Celtic site in Switzerland - reached Ireland around the 2nd century BC. Celtic Ireland was not unified politically, only by culture and language. The country was divided into about 150 miniature kingdoms, each called a tuath. A minor king ruled a tuath, subject to a more powerful king who ruled a group of tuatha, who was in turn subject to one of the five provincial kings. This political situation was very fluid, with constant shifts in power among the most important contenders.Celtic Ireland had a simple agrarian economy. No coins were used and the unit of exchange was the cow. People lived on individual farms and there were no towns. Society was rigidly stratified into classes and was regulated by the Brehon Laws, an elaborate code of legislation based largely on the concepts of the tuath as the political unit and the fine, or extended family, as the social unit.

One comes away with the idea that the people lived very simply, and that many of todays issues were not present then. One also gets the feeling that the purpose and foundation of the laws was to regulate the classes, and there is little or no effort on the site to explain the history, or contents of the the laws.

 

Dunphy v. Bryan

In 1963 a judge in County Kilkenny District Court, heard the case of Dunphy versus Bryan. [82] One of three pet lambs, which were customarily fed in defendant's yard, escaped into a public highway and collided with a motor car, driven without negligence. In an action based on alleged negligence and breach of duty, it was held that the owner of the motor car was not entitled to recover damages against the owner of the lamb. The judge, in his opinion stated:

At one stage I thought that it might be in point to consider whether any guidance on these matters should be afforded by the Brehon laws, which were operative in this country for so any centuries. There is appropriate material in An Senchus Mor, Vol. IV, and in a work known as Duala, compiled by Cormac MacArt and others, to which I had not access, but to which reference is made in the handbook... For various reasons those early laws have been so long inoperative that it would be wrong to throw them into the scale against the common law, even if I were not bound by higher authority to follow the common law. It is to be hoped, however, that they will be carefully studied when we embark upon law reform. [83]

Modern Parliamentary Debate

Ms. Mary Hanafin, T.D. (Dublin) in (Dail Debate 3-12-98) grandly stated that "Brehon law did not recognize the concept of negligence. A modern day Fionn MacCumhaill running through the woods would be more likely to sue the local authority for twigs sticking in his feet rather than picking them up with his toes. The law of negligence is out of control and needs to be corralled before we are completely fleeced."

 

Sadly, the Irish people have already been fleeced for far too long. Judging from her knowledge of Brehon Law, the fleecing continues. 'Brehon law' has become an effective catch phrase, batted about like a puc, for those who cannot possibly know what the laws say, since the great body has not even been reliably translated. Her statement would appear to be an a gross misstatement of the ancient law, as evidenced even in this short poem above.

                93. Cid airlimm n-oenoirec   What overleaping by a single piglet shares liability with the herds?
                94. Cis tana di-chiallatar       What are the drivings carried out negligently
                95. dona segar tigrathus?      for which final responsibility is not enforced?
                96. Cis tuarrana foichlithi?   What are the concealed drivings forward?

 

A legislator with a greater handle on the laws is Mr. Kett, in Seanad (Senate) Debate on November 5, 1997, discussing spending on the needs of the handicapped Equality of Disability. the report of the Commission on the Status of People with Disabilities:

 

Down the centuries there have always been people labelled as having disabilities. In pre-Christian Ireland, the 5th century Brehon Laws identified the following categories: idiots, fools, dotards, persons without sense and madmen. These groups were exempt from certain punishments and exploitation and it was the business of the communities in which they lived to look after them and ensure their needs were met.

Another speaker, Mr. Glynn in Seanad Debate of March 13, 1998:

 

I strongly support (the Adoption Bill). We have a historic tradition of adopting children and while modern law only dates back to the Adoption Act, 1952, our tradition of taking responsibility for abandoned or orphaned children, or sharing in the upbringing of children, where the family resources are already fully stretched, goes back to the Red Branch Knights and the Fianna.

The natural parents have the primary right to raise their children, but with rights come obligations. Where people are found to be unwilling or unable to provide social and moral care and guidance to their children, the State should not be fearful of transferring these rights and obligations to suitable volunteers or adoptive parents. These thoughts do not refer to families in poor economic circumstances to the exclusion of others. Dysfunctional families can be found at any address and as readily among the affluent as anywhere else.

While these ideas may be radical now, I have no doubt they will soon be seen as the next step in the development of our social structures; a step forward into our Brehon past. The Adoption (No. 2) Bill, 1996, is a worthwhile and progressive development of our current statutes. It raises little new thinking but confirms conventional wisdom and, as such, is of significant value.

Yet, as much as the laws seem to inspire a noble past for certain members, they are just as quickly used to ridicule. Mr. Rabbitte, during the course of attack on Mr. O'Donohue, who was apparently going back a little far in explanation of his action, quipped: "The Minister would go back to the Brehon laws if he was allowed." The implication here of course is that the laws are ancient history, in more ways than one.

One wonders where these distinguished Irish speakers have gained their expertise, since Brehon law is not prominent in any Irish primary, secondary or law school. And, as noted, neither are they prominent on the Irish Web Site. The use of them here in parliamentary debate raises a host of interesting questions, primarily dealing with the issue of precedent. They are spoken of in conjunction with Fionn and the Knights of the Red Branch, as if the laws themselves were on par with these mythical heroes, never in fact applying to real people at all. The selective incorporation into debate and official dialogue and publication shows that nobody has sat back and really thought about the core issues of defining, once and for all, what they mean to us as a people and a nation. While the Law Reform Commission would seem an obvious vehicle for such a reexamination, there is no sign of it actually occurring.

 

Celtic Legal Poem

The 'Struggles' for Honor

The Brehon Law Society in New York uses them as a nationalistic namesake, collecting money for NorAid and conducting political activities, such as supporting the historic visa application for Jerry Adams. If the republican nationalists regain the balance of power in the North, will they adhere to Brehon Law principles? Do these laws offer an opportunity for a solution to the problems in the North by requiring that the Irish Republicans obey their tenets, and practice the neighbor and hospitality law principles contained therein? Could these laws form the basis of a platform, requiring and reassuring that all parties to the 'struggle' conduct themselves with honor, that ancient and seemingly long forgotten principle that lies at their core? In the end, isn't that what the struggle is for?

Real Solutions for Real Problems

With the arrival of 'Post-Catholic' Ireland, as it has now been termed, manifest in the legislation such as legalization of abortion and family planning, the marriage of church and state that had occurred in Bunreacht na hEireann (Constitution of Ireland), is now itself facing divorce. The recent flood of scandal, including priests with children, sexual molestation, and generations of unmarried mothers forced into indentured servitude and unmarked graves, have brought the Irish people to finally question everything, openly. Bad law has corrupted good people. Ireland is now faced with this monumental identity crisis as she faces all the pressing legal issues, common to all modern states, as well as armed conflict in the North. None of these issues can be entirely separated, all stemming from a common source, the rule of law. Faced with the effects of bad law, the natural conclusion is that good law will have the reverse effect of improving the quality of life, and preventing tragedy. Scholars from abroad come to Ireland to talk about how they are inspired by the Brehon laws, focusing on topics such as 'restorative justice (or victim's rights), and use them in formulating legislation abroad. Yet, the Irish Law Reform Commission, the first major effort at reform in decades, seems to completely ignore the vast legal heritage right there under it's nose. This heritage amounts to a DNA map of the very soul of it's citizens, a people who are rapidly switching from the age old survival mode, into a mood of celebration, that they have and will overcome.

 

Burren Law School 2000

The first modern public study of Brehon Law occurred five years ago in a remote corner of the West of Ireland. The weekend long conference called 'The Burren Law School was hosted by The Burren College of Art. Speakers consisted of historians and members of the legal profession, for the most part. Little notice was taken by the public, it seemed. Yet, only a few years later, in Spring 2000 there will be a Brehon Law School weekend conference with speakers including; ex-Senator George Mitchell, (who may actually be viewed as playing the role of Brehon in the current peace process); President of Ireland, Mary McAleese; Johnny Cochoran, the famous American litigaor; The President of the Incorporated Law Society of Ireland (The Irish Bar); Louise Arbor, Chief Prosecutor of the War Crimes Tribunal; and Tony Benn, Member of the British Parliament. They will walk the ancient pathways of the Brehons in the early morning, and talk till late at night about the ancient mysteries as well as present calamities. This collection of speakers indicates the relevancy of the Brehon Laws, and their possible application to the problems of today.

A Tiger, Like Any Other Tiger

While there are no valid excuses, there are many explanations for the current obscurity of the Brehon laws; the difficulty in their translation, the tribal and archaic nature of many of the laws, the scarcity of manuscripts. Ultimately, it may be attributed to the successful campaign of the English government to completely erase these laws from Irish consciousness and where they were not erased, to convince the Irish that these were without legal, literary or social value. Scholars have written some scholarly works, which were read by other scholars, yet the Brehon Laws have not re-entered the Irish legal, political, or educational systems, nor the Irish consciousness as a whole. These laws are a vital part of our heritage and their story cries out to be told, in primary and secondary schools, in law schools and universities and on the tongues of a the children of the so-called Celtic Tiger. Without these laws, it is just a tiger, like any other. Still the questions and issues are moot until we have read the laws themselves. Then people will be free to finally answer these questions for themselves.

CONCLUSION

Until Binchy published the great corpus of the ancient law existing on vellum manuscript, they lay in scattered collections unpublished, and without translation, more than a century after its rediscovery. To this day, there has been little effort on the part of the Irish government, its people or its literati to change this. Perhaps it's time everybody got to read them, since it appears the Irish people have already been fleeced for far too long.

A reexamination of the Brehon Laws would do a lot more than clarify liability for domestic farm animals. There are many lessons to be learned from these laws. The very fact that they functioned as a self-help system, resorting to a Brehon only as a last resort speaks of a society that not only knows the law but enforces it and obeys it. If Ireland does not want to find itself as litigious as America, it should consider changing it. The more the people are taught to go straight to court with a problem, the less responsible they become as individuals.

 

Naturally, many of the laws may not applicable in modern society. On the other hand, their basic premise may hold the key to future law. A model that needs no police force, and no central political authority, is the exact concept that is needed to formulate a set of rules for global network governance, or an Internet code of conduct that everyone can agree on. Most of all though, it is strange that the Irish people would have nothing to learn from a system of law that governed them for two entire millennia. The true history of laws rewrites Irish history, itself so badly rewritten by those who sought to destroy it. What cannot be incorporated into the current laws of Ireland could be a valuable addition to the syllabi of higher education as great literature. Yet all of this discussion is moot until we decide they are in fact worth translating and reading.


Celtic Legal Poem


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© Vincent Salafia
Copyright 1999