By John Biggins
Before the arrival of the Anglo-Normans in Ireland, a sophisticated legal system had already existed for centuries. These intricate laws had been committed to writing mostly between the seventh and eighth centuries by Christianised learned classes who wove rich tapestries of law, poetry, myth, religion, history and tradition generally (senchas). We know much about these laws because, somewhat miraculously, a large bulk of them survived in manuscript copies from the later medieval and early modern periods, compiled and guarded by hereditary legal families. Various technical terms were used by the Irish themselves to describe these laws, including fénechas (‘laws of the freemen’ or ‘traditional law’). They later became known as the ‘Brehon laws’, a corrupted transliteration of the early Irish word for judge (brithem). So, while not how the Irish originally described them, the term ‘Brehon laws’ is now a commonly used shorthand outside specialist academic circles.
NOT ISSUED BY A CENTRAL ROYAL AUTHORITY
In the main, the Brehon laws were not issued by a central royal authority, though Irish kings did engage in some forms of law-making. For the most part, the laws were transmitted and administered by castes of clerics, judges (brithemain) and poets (filed). This legal system was originally designed for an early medieval hierarchical society. To the modern eye, some of its contents look distinctly unsavoury. For instance, certain lower-class people in society were bound to a noble lord and had very limited legal capacity. Nonetheless, the Brehon laws were pragmatic and humane in many other respects. They extolled justice, truth (fír), right and entitlement (cert). They contained remarkably intricate frameworks governing neighbourhood relations (comaithchesa) and contracts (cor), as well as restitution (aithgein) and the payment of fines (díre) when offences were committed. A prime example of the restorative philosophy of early Irish law was the penalty of ‘sick maintenance’ (othrus), whereby a person who was wrongfully and seriously injured had rights to convalescence, organised and paid for by the offender. Elaborate procedures for personal pledging (gell), the use of guarantors and property distraint (athgabál) were designed to resolve disputes at the community level. While it is unclear whether these sometimes-arcane rules were consistently observed, the Brehon laws nevertheless served as the legal beacons of Gaelic Ireland.
STUBBORNLY RESILIENT
The Anglo-Normans and later English administrators found that the native legal system proved stubbornly resilient. In regions still administered by the Gaelic nobility, the Brehon laws initially continued to hold sway. Elsewhere, Brehon law and common law competed and intermixed, particularly in border areas (marches) but also in the heartlands of the colonised settlements, fanned by a Gaelic revival in the fourteenth and fifteenth centuries. The Statutes of Kilkenny (1366) reiterated a long-standing official alarm at these trends. At other times, however, the authorities were prepared to adopt elements of the Brehon laws on pragmatic grounds to maintain political order, such as the principle of a kin’s (or chieftain’s) liability for the offences of their members, known as ‘kincogish’ (cin comocuis). Even as late as the sixteenth century, reports were coming in that aspects of the Brehon laws were alive and well in places that should, in principle, have been bastions of common law.
The death knell of the Brehon laws was sounded during the Tudor (re)conquest, which saw surrender and regrant of Gaelic lands under English feudalism, plantations of new settlers and religious upheaval. Though there had been earlier efforts to do so, the general Irish population were more definitively brought under the common law by way of a 1605 proclamation. Legal reform was further served by judgements and resolutions in the early seventeenth century that purported to nullify key aspects of Gaelic Irish land and succession laws. Even so, the Brehon laws were pleaded in certain courts well into the seventeenth century. The logic of legal imperialism was then turned on its head in the Penal Laws of the eighteenth century, with the objective of undermining Catholic landholdings. A version of the Gaelic land custom known as ‘gavelkind’ (gabhaltas-cinne, ‘family settlement’) was resurrected under the Penal Laws in order to force the subdivision of Catholic land inheritances amongst all surviving sons (or daughters if there were no sons). If, however, the eldest son was a Protestant, or converted to Protestantism, he could fully inherit the land under the common law.
BREHON LAW COMMISSION
Ghosts of the Brehon laws also loomed large in the nineteenth century. In 1852 a proposal was made by two high-profile academics and antiquarians, Charles Graves and James Henthorn-Todd, to translate the Brehon laws into English. In seeking the British government’s financial backing, Graves and Todd urged that the Brehon laws ‘may be found to have important bearings upon the existing condition of society in Ireland’. This spawned the Commission for Publishing the Ancient Laws and Institutes of Ireland (the ‘Brehon Law Commission’), mainly comprising members of the Anglo-Irish élite. The Commission produced five volumes of edited texts and translations, as well as a glossary, between 1865 and 1901. The project was, however, beset by delays and acrimony. Two fine scholars, John O’Donovan and Eugene O’Curry, were initially appointed as editors, but these harried and underpaid pioneers found themselves in uncharted waters. They died before translation and editorial work was completed. Against that backdrop, the Brehon Law Commission volumes were beset by technical inaccuracies, though they did reveal the general thrust of the laws.
This was also a period of land agitation, when the gulf between ‘official’ law on the one hand and traditional land customs on the other was starkly revealed. Some reputable commentators concluded that the Brehon laws were still haunting the British administration in Ireland, a narrative which influenced land reform legislation in the late nineteenth century. When introducing land legislation in 1870, British Prime Minister William Gladstone surmised that ‘the old Irish ideas were never supplanted except by the rude hand of violence’. Elsewhere, a romanticised view of the Brehon laws was championed by nationalist and socialist intelligentsia. In Erin’s Hope, first published in 1897, James Connolly suggested that collective clan land ownership in pre-conquest Ireland was ‘socialistic’. This sketch was somewhat overblown, given that private property was attainable in early Ireland, which was also hierarchical. Still, Connolly’s depiction was politically salient. A romanticised view of the Brehon laws persevered into the early twentieth century. This was evident, for instance, in the writings of Darrell Figgis, a literary and political figure who harboured idealised notions of a ‘Gaelic State’.
DÁIL COURTS
Perhaps the moment in which the Brehon laws came closest to a formal resurrection was in the ‘Dáil Courts’, a parallel republican courts system formalised by a June 1920 decree of the First Dáil, aimed at undermining British legal authority in Ireland. The Dáil Courts were in a similar tradition to earlier subversive modes of dispute resolution, such as courts established by the Land League in the late nineteenth century to adjudicate on tenancy disputes. While they continued to apply the common law, one of the more notable features of the Dáil Courts was that the Brehon laws (and other non-English laws) could also be cited in legal arguments, although this new departure proved to be somewhat academic. A Dáil Court judge, Cahir Davitt, later recalled that ‘little advantage was taken’ of the possibility to use the Brehon laws in the Dáil Courts. Doubtless there were a number of practical reasons for this, not least that the lawyers and legally qualified judges in the Dáil Courts had been educated in the common law tradition. Moreover, there would not have been a detailed familiarity with the Brehon laws, and it is not clear that the Brehon Law Commission translations were in wide circulation. Nevertheless, a Dáil Court judge, James Creed Meredith, later confirmed that he had applied Brehon law in a case involving the recovery of expenses for a woman who had been sexually seduced and had subsequently given birth. Here Judge Meredith had refused to entertain an English common law principle that men were not liable to support their children born outside wedlock. Instead, he applied Brehon law principles, which left the perpetrator liable in those situations. Judge Meredith, writing later, reported that this approach was uniformly applied in the Dáil Courts afterwards. The late Mary Kotsonouris suggested that some orders made by the local Dáil Parish Courts could also be perceived as an ‘atavistic throwback’ to principles of restorative justice under the Brehon laws. In one instance, a Parish Court reportedly ordered a man to sow cabbages in his own garden to replace those eaten by his pig in a neighbour’s garden.
Ultimately, the Dáil Courts became casualties of the Anglo-Irish Treaty of 1921, British pressure and the Civil War. They were abolished by the provisional government in 1922 and their business was wound down thereafter, thus bringing this short-lived legal experiment to an end. A key dimension of legal transition under the Treaty and the 1922 Constitution of Saorstát Éireann was that pre-independence laws would be carried forward until or unless repealed. The inherited (British) court infrastructure also carried on pending the establishment of a new courts system. In 1923 a Judiciary Committee was charged with devising a ‘code for Courts in Ireland’. One of the committee members was Hugh Kennedy, the first attorney general of Saorstát Éireann and, later, chief justice.
Interestingly, Kennedy made enquiries of the prominent nationalist Eoin MacNeill, an expert in early Irish law and a minister in the new Saorstát Executive Council (cabinet), regarding the functions of judges and lawyers under the Brehon laws. Indeed, Kennedy may have been hoping for a more radical legal overhaul, but any whiffs of a potential comeback for the Brehon laws were fleeting. Under its terms of reference, the Judiciary Committee concentrated on the machinery of a new courts system and did not venture into broader law reform. Kennedy then spent some time pressing for changes to legal attire. He advocated colourful judicial robes thought to have adorned early Irish judges, also featuring a headdress modelled on those worn by Venetian doges. By 1926 Kennedy had mostly lost this campaign, though the headdress was adopted by some judges of local district courts.
FISHERIES
Developments in the academic sphere saw the Irish Manuscripts Commission founded in 1928 and the Dublin Institute for Advanced Studies in 1940. While neither was solely concerned with the early Irish laws, they would have a significant bearing on the topic in years to come. Before being confined to the academy, however, the Brehon laws were unexpectedly pressed back into service. In a complex series of fisheries litigation, running from the late 1920s to the late 1940s, the early Irish laws were weaponised in title disputes between private fisheries and local fishermen in the north and west of Ireland. In simplified terms, part of the fishermen’s argument was that public (or common) rights to fish were prevalent under the Brehon laws and so, prior to English colonisation of certain areas, it was legally impossible for private fisheries in tidal waters to have been created before a particular cut-off date under common law. Expert evidence was given by leading lights, including Eoin MacNeill and D.A. Binchy, an early Irish scholar and diplomat.
In a 1933 judgement relating to the River Erne, a majority of the supreme court, including then Chief Justice Hugh Kennedy, accepted the portrait of public fishing rights under the Brehon laws and found the title of the fishery company to be defective. This remarkable outcome was, however, diluted in subsequent cases, which saw Binchy alter his opinion following additional study of the early Irish law tracts. In a 1948 judgement concerning the River Foyle, the president of the high court, George Gavan Duffy, sidestepped the conflicting Brehon law evidence and concluded that ‘the study of Irish law, seriously undertaken only in recent times, is still in its infancy and the conclusions of the most experienced scholars are tentative … the law texts cannot be used as a solid basis for any conclusion at all until they are edited and examined’. This work was already under way in the academy and substantially advanced over later decades. A high point was the publication of Binchy’s magisterial Corpus iuris Hibernici in 1978, compiling and re-editing a vast bulk of the early Irish law texts.
Still, it seems reasonable to ponder Gavan Duffy’s observation in the Foyle case, especially during the current centenary period. It raises the question of why there had not been a concerted government initiative to comprehensively review the Brehon laws promptly after the foundation of Saorstát Éireann—a ‘Brehon Law Commission II’, perhaps. The puzzle is deepened by the fact that many of the great scholars of early Irish law at home and abroad were then active. Indeed, one of them (Eoin MacNeill) was in the government in the early 1920s. Fully resuscitating laws designed for a different time and social context was obviously out of the question. Even so, aspects of the early Irish laws might have usefully inspired modest law reform, as Judge Meredith’s humane approach in the Dáil Courts had demonstrated.
John Biggins is a barrister, lecturer and researcher in legal history and public administration.
Further reading
F. Kelly, A guide to early Irish law (Dublin, 2009).
M. Kotsonouris, ‘Revolutionary justice—the Dáil Éireann Courts’, History Ireland 2 (3) (1994), 32–6.
H. Laird, Commemoration (Cork, 2018).
T.P. O’Neill, ‘Fish, historians and the law—the Foyle Fishery case’, History Ireland 17 (6) (2009).