The Brehon Laws

Part Two
Part one introduced the reader to the ancient legal system of Ireland known as
the Brehon laws. This system lasted until the seventeenth century and we saw how
they were considered by all, even the later English settlers, as being very
just. In part two I would like to consider one particular aspect of the Brehon
laws in more detail - that of Penal law. As we might expect, the criminal
justice system was complex and highly organised, with every conceivable form of
crime being considered, together with its appropriate punishment, usually in the
form of compensation.
There are three notable features of this legal system that differ from that of
today. Firstly, nearly all legal cases were private proceedings, brought by one
party against another. The 'State' in the modern sense only existed in a very
rudimentary way. Even the larger Courts of Justice that began to shift law
enforcement into the public arena still only operated on a local scale.
Secondly, the Brehons formed part of a very influential class of people, not
simply because of their knowledge of the intricacies of the legal system, but
because they were considered to be acting on behalf of a divine power that
governed their judgements. The Irish word 'breth', meaning a judgement, comes
from the verb 'ber', meaning to bear. The Irish law phrase for giving judgement,
'to bear a breth', points to a supposed inspiration that the Brehon obtains from
visions and the like. We may remember that the hero Finn mac Cumhal, when faced
with a problem, had only to place his thumb behind his tooth and the wisdom of
the right decision to make would present itself to him. Moreover, it was
believed that if the brehons delivered a false judgement, blotches would appear
on their cheeks. The great Brehon Morann, son of Carbery Cinnchait (1st century
CE) wore a collar round his neck which tightened whenever he gave a false
judgement, but expanded again when he gave a true one.
The third main difference between the ancient and modern legal systems was the
importance of 'honour price'. A person's honour price, in other words the amount
that had to be paid by an offender in the case of injury, was fixed according to
the victim's rank in the Celtic caste system. From a modern perspective, this
would seem to perpetuate social inequality. Yet, from historical accounts it
appears that the Brehon laws were held in high esteem by all. We have no way of
knowing how the system really operated in practise, and to what extent
corruption or abuse of power existed. One thing is certain, we cannot see
through the eyes of our ancestors and we must therefore be wary of making
twentieth century moral judgements on an ancient institution that lasted for
centuries.
What we know of the ancient laws comes from two main sources, the 'classical'
commentaries of Roman scholars, and the Irish literary documents written after
the fifth century. Despite the time scale difference, these two sources do seem
to compare well. The most important of the Irish legal treatises is the Senchus
Mor. It is recorded that it was composed by a commission called by King Loegaire
and on which St. Patrick sat. The next in importance is the Book of Acaill. The
anonymous author says that it dates from the third century, although it
certainly was not written down as early as this. This ancient text cannot be
understood without the glossary, which was written down in the ninth or tenth
century.

As stated earlier, Celtic law consisted primarily of private proceedings at the

local level, rather than public prosecutions. Hubert states that: "Celtic law is
based on arbitration, compensation and seizure." From the most ancient times the
'law of retaliation' prevailed. This gave a person who had been injured or
dishonoured in any way the right to take direct revenge on the offender.
'Cursing stones' are to be found all over Ireland and may originate from the
times when the law of retaliation was still held to. Wood Martin records that on
the island of Iniskea there was a cursing stone at the mouth of a holy well.
Anyone who wanted satisfaction on a wrong-doer had to go to the stone, turn it
round three times and pray that his enemies might not prosper, or get length of
life, and that their means would melt away like snow before the sun.
The problem with this law was that it did not promote peace and harmony in the
tuath. Gradually this gave way to the 'law of compensation'. An injured party
could bring their case before a local brehon and sue the offender for damages.
For injury or death, the most common was the eric fine. 'Fine' here is the Irish
word meaning family, since the responsibility for payment fell on all the family
members. If the offender did not respond, or refused to pay the fine set by the
brehon, the creditor had the right to seize his cattle and other goods and sell
them to pay the debt. Another practise widely employed was that of fasting
outside the house of the guilty person, who was also obliged to fast. (This is
also practised in India). This custom was held in a kind of superstitious awe
and it was considered disgraceful not to submit. In the case of murder, if all
else had failed, the victim's family had the right to lawfully kill their
aggressor. However, no death penalty was ever pronounced by a brehon in a court
of law.
The amount due for the fine was determined by two main factors - the 'body
price' of the injury, (this depended on its severity), and the honour price of
the person injured, which was determined by rank, but only applied to the 'free'
classes. In the 'Ancient Laws of Ireland' the murder of a freeman was
compensated as follows: the 'dire' or body price was seven female slaves. To
this was added the 'enechlann' or 'log eneich' (honour price) which was graded
according to rank. The honour price for the death of a king of a tuath was seven
female slaves or twenty one cows. According to the Senchus Mor, the honour price
of a provincial king was twenty one slave women or 63 cows. That of a high king
was twenty eight slave women or 83 cows.
So how did the ancient brehons arrive at their judgements? What processes did
they employ to help them determine truth from falsehood? I mentioned in my last
article the power of myth, tradition and precedent that gave the system
authority and credibility in all situations. The impartiality of the brehon
class was clearly illustrated in the first judgement in Ireland given by
Amairgin. He declared that the sons of Mil should leave the island in peace for
three days and sail out again past the length of nine waves. All agreed this was
a fair judgement. Such examples as this from the mythological sagas served to
provide guidance for the brehons in all matters.
One mythological personage who was renowned for his fair and true judgements was
King Cormac. One story of his childhood relates how he was taken into fosterage
at Tara, where Mac Con had delivered a judgement on a woman whose sheep had
eaten the queen's crop of woad. Mac Con said the queen should have the sheep.
Cormac, however, said she should only get the shearing of the sheep, for both
would grow again. Perhaps the most famous of Cormac's adventures is the legend
of his journey to the Otherworld lands of Manannan mac Lir, where he was given
the 'Cup of Truth'. If three lies were told under it, it would break, but three

truths would restore it again. The idea of the 'cup of truth' is also met with
in the Fenian sagas, and illustrates an ordeal that was practised in ancient
times for determining truth from falsehood. The accused was presented with two
cups, from which he would have to choose one to drink from. One contained a
poison which tasted sweet to begin with, but would quickly bring pain and even
death. It was believed that the Gods would intervene to ensure that the person
chose the right cup according to their innocence or guilt. In the legend of 'The
Hospitality of Cuanna's House' a great thirst comes over Finn, and Caoilte must
get him a drink from one of two wells:
"Caoilte went out then, and he brought the full of the copper vessel to Finn,
and Finn took a drink from it, and there was the taste of honey on it while he
was drinking, and the taste of gall on it after, so that fierce windy pains and
signs of death came on him, and his appearance changed, that he would hardly be
known. And Caoilte made greater complaints than he did before on account of the
way he was, till the man at the door bade him to go out and to bring him a drink
from the other well. So Caoilte did that, and brought in the full of the iron
vessel. And Finn never went through such great hardship in any battle as he did
drinking that draught, from the bitterness of it; but no sooner did he drink it
than his own colour and appearance came back to him and he was as well as
before..."
The fourteenth century 'Book of Ballymote' lists twelve kinds of ordeals used to
determine whether an accused person is innocent or guilty. 'Morann's collar'
that was mentioned earlier was placed on the neck of the witness, and would
tighten if he told a lie. The 'Three Dark Stones' was carried out thus: A bucket
was filled with charcoal and three stones were buried in it - one black, one
white, and one speckled. If the person pulled out the white stone they were
innocent, if they pulled out the black one they were guilty, and curiously
enough, if they pulled out the speckled one they were considered 'half guilty'.
Another ordeal was 'Waiting at an Altar'. The person had to go around an altar
nine times and then drink water which a Druid had uttered incantations over. If
they were guilty, some sign on the body would appear, such as a blemish of some
kind. A similar custom is recorded by Wood Martin. Near Castle Kirk, not far
from Lough Corrib in Ireland, there is an oval-shaped flagstone called St.
Fechin's Stone. Whoever was accused or suspected of a crime was "dared to the
Leac-na-Fechin" to undergo the ordeal of turning the flag, with rites and
incantations. There was said to be a guardian of the stone.Another ordeal noted
in the Book of Ballymote was the 'Cauldron of Truth' which consisted of a vessel
of silver and gold, in which water was boiled. If the accused could put his hand
in without getting burned he was deemed to be innocent. (This and other ordeals
sound like medieval 'witch trials, so we need to be cautious).
Courts of Justice for settling legal cases and local affairs were often held on
hills in the open air. In each court, in addition to the brehon there were
'dalaighe' and 'dai', professional lawyers who conducted the cases for their
clients. There were strict rules regarding the giving of evidence. Two witnesses
were needed. A man was allowed to give evidence against his wife, and the wife
could do the same, but a daughter could not give evidence against her father.
Any freeman could give evidence against a non-freeman, but not the other way
round. The non free classes had to enter into contracts, usually with a nobleman
who would then act on their behalf. A young man could give evidence in court as
soon as he began to grow a beard. A king's word was good against all people,
except for three classes which were deemed to be of equal rank - these were a
bishop, (probably druid in pre-Christian times), a doctor of learning (ollamh)

and a pilgrim.
In popular folklore certain strange shaped rocks are known as "Druid seats" or
"Brehon Chairs", said to have been used when they were giving law judgements.
The most famous law giver of ancient Ireland, Ollamh Fodhla, who lived over
3,000 years ago, is said to have had one such chair. However, from what we know
of the administration of justice, it seems unlikely that these great rocks were
ever used for such a purpose.
Finally, we come to punishments. As we have already noted, the law of
compensation in the form of the eric fine was the most common way of providing
justice to the victims of crime. The death penalty was never pronounced by a
brehon in a court of law, but kings had the right to put people to death for
certain crimes. One example would be the lighting of a fire before the sacred
Beltaine fire had been lit at Tara. Another situation where the death penalty
would be invoked was for causing a disturbance at a sacred festival. The most
common methods were to hang or drown the offender. Another punishment that was
carried out frequently was blinding, again, though, this was not by the
judgements of brehons. It would most likely be the ancient law of retaliation
being invoked, "an eye for an eye".
When we start to look at the Brehon laws and their complexity, we begin to
realise just how advanced they were for their day. No doubt there were some
faults and abuses, for no system is perfect. We must remember that we are only
perhaps seeing a 'snap shot' , a small part of the structure from which we are
trying to form a picture of the whole. This has been no easy task for scholars
of Celtic Studies, since as I mentioned previously many of the law tracts were
written in an archaic form of Irish, which only the learned professionals of the
day could understand. Personally, though, I find the ancient laws fascinating
and would recommend further study to anyone interested in the subject.

References:
'The Hospitality of Cuanna's House' in Lady Gregory: Gods and Fighting Men.
1904.
Wood Martin, W.G: Traces of the Elder Faiths of Ireland. 1902.
Hubert, Henri: The History of the Celtic People. Republished 1992.
Joyce, P.W: Social History of Ancient Ireland. 1908

Copyright: 1994 Lorraine MacDonald

[First published in Dalriada magazine]