The Brehon Laws: A Legal Handbook

Laurence Ginnell

Description

An exploration of the early Irish laws that defined everyday life in Medieval Ireland, as well as analysis of their history, influences, and development prior to the supplantation of English common law.

First published in 1894, The Brehon Laws is Laurence Ginnell’s handbook for the history of the Irish legal system. Opening with the history of Saxon law and detailing the first written legal recordings, Ginnell enthusiastically informs the reader about the survival of Brehon law from the seventh century through to the seventeenth century when English common law took favour.

The chapters featured in this volume include:

- Ancient Law

- Existing Remains Of Irish Law

- The Senchus Mōr

- Legislative Assemblies

- Classification of Society

- The Law of Distraining

- Criminal Law

- Native, Not Roman

Providing insight into Gaelic society and the evolution of law and culture, this guidebook is the ideal read for those with an interest in the history of the legal system. This edition features a specially-commissioned biography of the author.

Chapter I. Ancient Law, Chapter II. Existing Remains Of Irish Law, Chapter III. The Senchus Mōr, Chapter IV. Legislative Assemblies, Chapter V. Classification of Society, Chapter VI. The Law of Distraining, Chapter VII. Criminal Law, Chapter VIII. Leges Minores, Chapter IX. Native, Not Roman

Sujets

• Legal History
• Droit et juridique
• Law

Informations

• Publié par: Read Books Ltd.
• Date de parution: 14 juin 2011
• Nombre de lectures: 0
• EAN13: 9781446549407
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

THE BREHON LAWS
A LEGAL HANDBOOK
BY
LAURENCE GINNELL
OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW
W HEN it became known some time ago that I had undertaken to lecture on the Brehon Laws before the Irish Literary Society, London, one friend congratulated me on the fine subject I had taken in hand, and another on the same day asked me why in the world had I chosen such an uninteresting subject. To these two friends, and the classes they typify, I respectfully dedicate this little volume.
L. G.
CONTENTS.

C HAPTER I.-
A NCIENT L AW
C HAPTER II.-
E XISTING REMAINS OF I RISH L AW
C HAPTER III.-
T HE S ENCHUS M R
C HAPTER IV.-
L EGISLATIVE A SSEMBLIES
Section 1.
Introductory
2.
The Feis of Tara
3.
Tailltenn and Uisneach
4.
The Aenach
5.
The Tribal Assemblies
C HAPTER V.-
C LASSIFICATION OF S OCIETY
Section 1.
Introductory
2.
Kings
3.
Professional Men
Sub-Section 1. Preliminary
2. The Druids
3. The Bards
4. The Brehons
5. The Ollamhs
6. Jurors
Section 4. The Flaiths
5. Freemen Owning Property
Sub-Section 1. Preliminary
2. The Clan System
3. The C iles and the Land Laws
4. Devolution of Property
5. The Elizabethan Atrocities
Section 6. Freemen owning no Property
7. The Non-Free
Sub-Section 1. Preliminary
2. Bothachs and Sen-Cleithes
3. The Fuidhirs
C HAPTER VI.-
T HE L AW OF D ISTRAINING
Section 1.
Introductory
2.
Definition and Scope
3.
Distraint by Fasting
4.
General Procedure
5.
Capacity
6.
Minuti
C HAPTER VII.-
C RIMINAL L AW
Section 1.
The Book of Aicill
2.
The Law Therein Laid Down
3.
Capital Punishment
4.
The Maighin Digona
C HAPTER VIII.-
L EGES M INORES
Section 1.
Marriage
2.
Fosterage
3.
Contracts and Wills
4.
Artisans
5.
Oaths
C HAPTER IX.-
N ATIVE, NOT R OMAN
C HAPTER X.-
C ONCLUSION
THE BREHON LAWS.

CHAPTER I.
ANCIENT LAW .
As in law and all other branches of learning some knowledge of one system is useful in the study of any other system, so also one cannot well appreciate the relative proportions and importance of what belongs to one nation without taking some account of the condition in the same respect at the same period of neighbouring nations with which a comparison may be instituted. For this reason I think our present subject should be introduced by a preliminary notice of the condition of law in early times in neighbouring nations with which we are liable to be compared. We can, however, scarcely do more than glance at one such nation; and remembering where we are, and the circumstances of our country, the English nation seems the most appropriate for our purpose.
The first collection of Saxon laws into writing was made under thelbirht, king of Kent, after Saint Augustine had converted him to Christianity and baptised him. This occurred about the beginning of the seventh century, Saint Augustine having arrived in Kent in A . D . 597. thelbirht s was a collection of the most meagre scraps, such as only extreme poverty in this respect could make any people consider worth collecting or preserving. After that time collections of laws continued to be made occasionally in Kent and the various little kingdoms into which England was then divided; but none of them reached respectable dimensions until that of Alfred the Great, towards the end of the ninth century. Alfred is said to have been educated in Ireland. His is the earliest collection the English nation can show of any real value. Besides those given under Alfred s own name, it is probable that he may also be credited with the so-called Dooms of Ine.
It is believed that none of the originals of the early English laws, or works relating to law, were written in the language of the English people, that the originals in Saxon times were always in Latin, and those of Norman times in Latin or Norman-French, and that the copies of the Saxon Dooms now extant are transcripts from the translations made for vulgar use. The originals of Acts of Parliament continued to be written in Norman-French down to the beginning of the sixteenth century, and the records in legal proceedings down to the middle of the eighteenth century. The brand of native inferiority, first impressed upon the people, continued thus long impressed upon the laws the people were bound to obey. Even in this year of grace, 1894, the royal assent is given to Acts of Parliament in words which neither the Queen nor her subjects understand, and which never were used by any generation of Englishmen.
Bearing in mind these few facts regarding the early condition and historical development of English law, we come in a proper mood to consider the most archaic system of law and jurisprudence of Western Europe, of which many records now exist, namely, what are now generally known as the Brehon Laws. This is not their real name. Irish Laws, or Gaelic Laws, would be a better name for English speakers to use; but the thing meant has always been known to Gaelic speakers as Feineachus. A general term for all law, without special reference to that of Ireland, was Recht. But the law of the Gaels was Feineachus. It included C in Law, being that which was enacted or solemnly sanctioned by national assemblies, was of universal obligation, and could be administered only by professional judges; and it also included Urradhus Law, which was law relating to local matters, modified by local assemblies and by local customs, and which might be administered by the Flaiths who were not professional lawyers.
Inquirers into the native antiquities of Western Europe naturally turn to C sar to learn what was the state of things he found existing in Gaul; and if that could be ascertained with certainty, we might reasonably assume that the state of things in Ireland at that and at a later period was not very different. But although it was very good of C sar to write so much as he did, his mind was far too much occupied with C sar to be troubled recording many facts relating to mere barbarous life, or with adequately checking those recorded. C sar and other Roman writers give it to be understood that the Gauls on some occasions sacrificed human beings to their gods; and some modern writers calmly assume, as a matter beyond question, that the Gauls sacrificed human beings in hecatombs, and that the Druids presided over these horrible butcheries. The innate absurdity of such assumptions might have prevented their expression were it not that the ghastly and sensational grows upon and takes possession of the mind that conceives it, until from excessive fulness the temptation to communicate it becomes irresistible. When communicated, it strikes the hearer or reader more forcibly and effectually than truth, modest and sober, can ever hope to do. Remembering what gross and scandalous falsehoods are sometimes deliberately told of our own contemporaries, even by people of respectable and sanctimonious exterior, I cannot admit that there is any truth in those stories of the Gauls and their Druids who are unable to return with their explanation. It is probable that either C sar was misinformed or some ceremony, observed by the Gauls in putting criminals to death, was misinterpreted to him or by him. At all events, there is no reason at all to think that human sacrifice ever was practised in Ireland.
Owing to the isolated geographical position of Ireland, references to it by Roman and other ancient writers are comparatively few and of a vague and general character; but fortunately a very full study of Gaelic Ireland can be made from native sources without consulting other authorities except for corroboration. Many leading facts of Irish history have been quite satisfactorily ascertained to the extent of three hundred years before C sar s time. It would, however, be difficult to lay down a connected and consequential narrative until about A . D . 250, in the reign of King Cormac. This was the time at which some of the laws we are about to consider were reduced to their present form, though they had existed in some other form long before. Those laws, as well as the laws comprised in the greater collection made two centuries later, had probably existed, as laws, a thousand years before Cormac s time. Almost all the Brehon Laws had actually reached their full proportions and maturity about the time that Alfred was reducing to order the scraps of elementary law he found existing amongst his people. It is with the remains of the laws that then existed in Ireland-boulders from the dun-that we are mainly concerned. Needless to say, they were not written in a foreign tongue. No foreign mind conceived them. No foreign hand enforced them. They were made by those who, one would think, ought to make them: the Irish. They were made for the benefit of those for whose benefit they ought to have been made: the Irish. Hence they were good; if not perfect in the abstract, yet good in the sense that they were obeyed and regarded as priceless treasures, not submitted to as an irksome yoke. And the presence or absence of popular sympathy with law I take to be a true test of the quality of that law and the very touchstone of good government. Originating in the customs of early settlers in times beyond the reach of history, these laws grew in volume and in perfection down to the time mentioned; after which, though continually applied, though copied, re-copied, and commented upon, little of substantial value was added to them. They prevailed over the whole country until the arrival of the Anglo-Normans, and they prevailed over the whole country except the Pale until the beginning of the seventeenth century. In such a great length of time they must have undergone more or less change; but the political condition of the country during all that time being wholly adverse to true development, the actual changes may be taken to have been the very least possible. In proportion as they lost in ut