More Brehon Law

It’s hard not to become a ditzy, Enya-addled Celtophile bemoaning a misty utopian past. The practical, pagan justice of these laws has great charm, if you can overlook period ugliness like slavery laws. (Did you know that it was once custom for the English to sell their children to the Irish for slaves? The great slave mart was at Bristol, and there was some speculation that Heathcliff in _Wuthering Heights_ was an escaped slave. Or perhaps I made that bit up.)

For there is no nation of people under the sunne that doth love equall and indifferent [i.e. impartial] justice better then the Irish; or will rest better satisfied with the execution thereof, although it bee against themselves so as they may have the protection and benefit of the law, when uppon just cause they do desire it.

—Sir John Davies, (British) Attorney-General of Ireland under James I, 17th century. (Quotation via Brian Walsh.)

Personal injury law is one of Ireland’s chief industries and entertainments. Drunks stumble on the pavement and sue the local corporation for thousands. A kid trips in the playground and the parents score a college fund at tax-payers’ expense. Our fat-cat class is not corporate CEOs but top barristers, who grow rich and pompous on fees from tax-funded public tribunals. (Meanwhile, their junior colleagues earn almost nothing for the first five to ten years. This effectively restricts the profession to the kids of the Dublin middle class, who can scrape by in one of the most expensive cities in Europe by living with their parents until the big briefings come through.)

The thirst for compensation is deep in our culture. It’s not at the sueing-MacDonalds-for-spilling-hot-coffee-in-your-lap-while-driving level, but it’s close. If you burn your finger at a neighbour’s barbecue, some wit will shout “Compo! Compo!” I hadn’t realised this obsession went deeper than a state-of-the-art culture of complaint until I started reading the Brehon Laws.

Ireland had an extraordinarily sophisticated canon of ancient law, the oldest in Europe and among the oldest in the world. From the first century AD on it was passed down orally in verse by the bards. In 431, the High King and St. Patrick called a committee of nine learned men, including themselves, to collect and codify existing laws. They worked for three years, removing anything not in keeping with Christianity, and wrote them down in archaic Irish on vellum manuscripts. This was the Senchus Mór, the first written compilation of the Brehon Code.

The Brehon Code forms a great body of civil, military, and criminal law. It regulates the various ranks of society, from the king down to the slave, and enumerates their several rights and privileges. There are minute rules for the management of property, for the several industries–building, brewing, mills, water-courses, fishing-weirs, bees and honey–for distress or seizure of goods, for tithes, trespass, and evidence. The relations of landlord and tenant, the fees of professional men–doctors, judges, teachers, builders, artificers–the mutual duties of father and son, of foster-parents and foster-children, of master and servant, are all carefully regulated. In that portion corresponding to what is now known as criminal law, the various offences are minutely distinguished–murder, manslaughter, assaults, wounding, thefts, and all sorts of wilful damage ; and accidental injuries from flails, sledgehammers, machines, and weapons of all kinds ; and the amount of compensation is laid down in detail for almost every possible variety of injury.

By the ninth century, the code was more or less complete. It is an intellectual wonder; comprehensive, ingenious and enlightened. It survived intact and in use (through abolished by statute by Edward II in 1367) until it was finally outlawed for good by Elizabeth I, who planted Ireland with English settlers.

Brehons were a lawyer/judge class, equal in stature to bards and chiefs. There was a long and defined course of study to master the complex body of law, and interpretation was at their discretion. They were the appointed wise men, and in very early times were considered almost as mystics or shamans. They needed to be wise: Brehons themselves were liable to pay compensation for wrong judgments. I’d like to see, say, Rehnquist fork out his retirement fund for giving the 2000 election to Bush.

Brehon law sat on top an intricate social structure of families, clans and tribes. There was no institutional policing or incarceration system, so laws were enforced by sanctions and boycotts (“Boycott” is an Irish term for an Irish practice, named for a particularly cruel rackrenting estate manager in the famine era who was driven out when an entire town in Wexford refused to do business with him.) Social sanctions are very effective in a small, homogenous society: we could have had shunning championships with the Amish.

Compensation for all kinds of losses from property to injury was covered by the Brehon laws. There was a set amount for murder, manslaughter and accidental death. The compensation for losing a limb was a related fraction of that for death, but combined amounts for several limbs could not exceed the compensation for a death. Damages were less for injuries to parts of the body normally covered by a garment. There were other punishments too: in the case of involuntary manslaughter, the convicted defendant might be pushed out to sea on a boat with no rudder or oars. If he was lucky enough to wash up on shore, he became the property of the person who owned the closest stretch of land unless a fine was paid on his behalf.

Sometimes defendants refused to pay the adjudicated compensation. Several remedies were defined, including much-feared satire. “The selfish man, who thinks only of his cows and his fields, and not of his fellow human beings, may be insulted without risking a blush fine.” A professional satirist would write verses that would follow your family for as long as people cared to remember. Few could withstand the threat of such a slagging. My favourite remedy, though, is the Procedure by Fasting, described here by PJ Joyce:

Procedure by Fasting

In some cases before distress [seizing of property] was resorted to, a curious custom came into play -the plaintiff “fasted on” the defendant. It was done in this way. The plaintiff, having served due notice, went to the house of the defendant, and, sitting before the door, remained there without food ; and as long as he remained, the defendant was also obliged to fast. It may be inferred that the debtor generally yielded before the fast was ended, i.e. either paid the debt or gave a pledge that he would settle the case. This fasting process – which exists still in India – was regarded with a sort of superstitious awe ; and it was considered outrageously disgraceful for a defendant not to submit to it. It is pretty evident that the man who refused to abide by the custom, not only incurred personal danger, but lost all character, and was subject to something like what we now call a universal boycott, which in those days no man could bear. He had in fact to fly and become a sort of outlaw.

The Irish were taken, in particular, with aphoristic judgments and wordplay, and many of these were written down.

When Cormac mac Art, the rightful heir to the throne of Ireland, was a boy, he lived at Tara in disguise; for the throne was held by the usurper Mac Con, so that Cormac dared not reveal his identity. There was at this time living near Tara a female brewy, named Bennaid, whose sheep trespassed on the royal domain, and ate up the queen’s valuable crop of glaisín [glasheen] or woadplants for dyeing. The queen instituted proceedings for damages; and the question came up for decision before the king, who, after hearing the evidence, decided that the sheep should be forfeit in payment for the glaisin. “Not so,” exclaimed the boy Cormac, who was present, and who could not restrain his judicial instincts: “the cropping of the sheep should be sufficient for the cropping of the glaisin – the wool for the woad – for both will grow again.”
“That is a true judgement,” exclaimed all : ” and he who has pronounced it is surely the son of a king “-for kings were supposed to possess a kind of inspiration in giving their decisions. And so they discovered who Cormac was, and in a short time placed him on the throne, after deposing the usurper.

Women’s rights that were enshrined by Brehon Law were later lost for centuries. In Brehon Law, rights and responsibilities were taken equally seriously–imagine that! Humane responsibilities were codified between master and student, landlord and tenant, husband and wife, parent and child. Children, for example had the legal responsibilty to wash an aging father’s head once a month.

It’s hard not to become a ditzy, Enya-addled Celtophile bemoaning a misty utopian past. The practical, pagan justice of these laws has great charm, if you can overlook period ugliness like slavery laws. (Did you know that it was once custom for the English to sell their children to the Irish for slaves? The great slave mart was at Bristol, and there was some speculation that Heathcliff in _Wuthering Heights_ was an escaped slave. Or perhaps I made that bit up.)

We were a most civilised people on our own terms once. A people becomes childlike under colonial rule, and has to grow up all over again at independence. I am sorry for the loss endured in between, and grateful we have the written remnants of a fine old culture.

Brian Walsh’s web introduction to PG Joyce’s _A Smaller Social History of Ancient Ireland_ (1908)
The Brehon Laws” by L McDonald in _Dalriada_ magazine.
Brehon Laws“, by Loretta Wilson for The Irish Society
Traditional Irish Laws by Mary Dowling Daley, Appletree Press.

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