BREHON
LAWS - The Brehon laws were responsible for regulating a large part of social
life even in ways that would fall outside the legal system of today. The laws
set out codes of behaviour that all members of a blood family had to adhere to.
Within Celtic society there existed a clearly defined system of rank or caste
(which was transient) - serfs/ peasants; freemen/craftsmen; warriors; nobles;
kings and priesthood. The
Brehons, or judges, were of the Druid priesthood caste. If they made ill-judgements
they were expected to forfeit their fee and pay damage costs. Codes of behaviour
and levels of responsibility were laid down in the laws for each caste. The higher
ranks had the most restrictions placed on them.
STATUS
- This was largely determined by the ownership of cattle (there was no concept
of land ownership in early Celtic society). Leases of livestock were granted to
the tribe by the nobility in return for loyalty.
HONOUR
PRICE - A strange mutual dependence existed between nobles and their clients.
The status of a nobleman depended on the number of clients he leased cattle to.
The client, however, gave up any status in law except through his creditor. Hence,
creditors gave legal protection to their clients (known as their 'honour price').
Honour prices were central to the operation of the Brehon laws, and clients would
seek out creditors with the highest status, to gain the highest honour price.
TUATH
- Beyond a family member's particular tuath, or tribal land, they could not normally
be guaranteed legal protection, unless formerly agreed between tuatha.
KINGSHIP
- The king was the key element of the social structure. He was responsible for
harmony between the tribe and the land, and also for the prosperity of the tribe.
He had to be generous; if he was niggardly he would suffer the poet's satire (a
formidable weapon in Celtic society) and have his kingship taken from him. The
king was responsible for the redistribution of wealth in his kingdom, by means
of banquets and donating gifts.
FAIRS,
FESTIVALS AND BANQUETS - These were important occasions which brought together
all strata of society. Participation in the festivities was compulsory! (Not to
enjoy the life you had been given was an insult). Guests were seated according
to rank. The "champion's portion" was awarded to the warrior who showed the greatest
courage. To hold a good banquet was to gain much prestige. It was important to
invite the 'aes dana' (people of the arts - bards, musicians, etc. ) Songs were
sung, legends retold, and clan genealogies recited. Also, at festivals, settlements
and judgements of legal cases were made, and handfasting contracts signed. However,
no enmity must exist, no debt must be collected and no weapon must be lifted.
A
way of life that survived for centuries in these isles is rapidly being lost before
a torrent of mass consumerism, and an individualistic society, where 'dog eat
dog' is the rule, and where the power of the State is so great that it shapes
your very thoughts and life-style. We Would like to think there is an alternative
to all this, that the old values of clan and family can still be followed. We
have much to learn from our Celtic ancestors, and keeping alive our culture and
social customs is one very important aspect of this. THE BREHON LAWS (legal structure)
In
a previous article I looked at the role of the family unit in Celtic society and
the importance of the kinship group in providing a link between the individual
and the tribe. In this article I would like to introduce the reader to the legal
structure within which the Celtic kinship group operated - the ancient law of
the Brehons.
Ireland
is extremely unique and privileged to have preserved as part of her heritage a
large body of ancient law tracts, known collectively as 'Fenechas', the law of
the Feine (Freemen), or more commonly, the Brehon Law. These laws are probably
the oldest in Europe; they were in origin the laws of a pastoral people whose
status was measured in the ownership of cattle, and whose legal fines were assessed
in units of 'sets' (one set was half the value of a milk cow). This ancient legal
system was very comprehensive in both its range and technicality even before the
ninth century; there were few areas of life that could not be encompassed in some
way into the great body of the law. The laws were originally composed in poetical
verse and handed down by the Filid. In later times they were written down and
several important law books have been preserved and translated, among them the
Senchus Mor, the Book of Acaill, and the Uraiccecht Becc (Small Primer). It must
be stated, however, that some of the translations are open to debate, for the
original manuscripts were written in an archaic language which could easily have
been misinterpreted. The scholars who were working on these manuscripts were aware
of this fact, but sadly did not have the opportunity to finish their task before
their deaths.
The
Brehon Laws were considered by all to be based on sound principles of justice,
so much so that the English settlers of 'The Pale' adopted the Irish laws themselves.
The Brehon Laws governed Ireland for centuries, until they were finally abolished
in the seventeenth century.
The
foundation of the Brehon law rested to a large extent on the power of custom,
or customary law, the popular acceptability of the law as being founded on 'tradition'.
With no central governing authority, no organised institutions of crime prevention,
the most powerful deterrent was the threat of sanctions, and the consequent loss
of status within the community. In principle, an individual's rights and status
existed only within the boundaries of his or her tuath, in accordance with the
laws of 'derbhfhine' (four generations of descent from a common ancestor). Loss
of face within your own tuath was considered by all to be a disgraceful state
of affairs; to allow such a situation to continue was even worse, and so the victim
would seek to obtain a settlement of compensation from the transgressor as soon
as possible, to restore order and balance within the tuath.
The
interpretation and nforcement of the law was vested in the hands of a specialist
group of the Druidh caste known as Brithem, or Brehons. The Brehons underwent
a lengthy training, which involved large amounts of traditional knowledge being
committed to memory. The legal rules were very complicated, with many intricacies.
The Brehons themselves were liable for damages if they gave a false judgement.
Moreover, the laws were preserved in an archaic form of Irish known as 'berla
Feine'. This was not a language in common use, which made the law tracts generally
inaccessible to the layman. Hence the Brithem class were a very influential group,
but the power that they wielded did not rest solely on the matter of legal language.
Other aspects of life in tribal /clan societies should be borne in mind when discussing
ancient Celtic institutions, aspects of life that are no longer present in modern
society, but which were of enormous significance to our ancestors. One example
of this is the extent to which the Brehons were held in awe by the people. They
were believed to possess a divine power which helped them to make true judgements.
This divine power also kept watch over them and meted out punishments for falsity.
The ancient Irish held the principles of Truth and Justice in high esteem.
To
fully appreciate the power of the Brehons, we must understand that their role
in the community was much wider in scope than solely as law givers. They were
also responsible for the execution of all public religious rituals and ceremonies.
'The Law' was not distinguished from the religious and magical aspects of life.
Assemblies for the giving of law judgements were held during the sacred festival
times and were conducted in a formalised, itualised manner in accordance with
ancient tradition. These early courts of law were usually held in open places,
especially on hills and at the burial site of kings. There are many such law hills
to be found all over Scotland also. On Arran we have Cnoc na Comhairlie, the Consultation
Hill, near Whiting Bay, Cnoc a' Chrochaidh, the Hill of Hanging (pointing perhaps
to some rather gruesome punishments) at Sliddery, and Cnoc na Ceille, the Hill
of Meeting at Dougarie. The assemblies held in such places were the very linchpin
of the Celtic tradition, for they: "represent both a return to the original unity
and the re-creation of order". (Rees, Celtic Heritage). At these assemblies the
foundations of the tradition were re-laid, involving the re-enactment of its mythological
origins. The sacred power of myth was brought to bear upon matters of judgement.
Disputes over land use were settled according to the mythological divisions of
Ireland; sick maintenance was assessed according to an alleged 'Judgement of iancecht',
the God of Medicine. All manner of judgements, fines, satires and punishments
were to be found in the myths and legends. The wise king or Brehon had only to
search for parallels, which he would then often embody into his own judgement
in the form of a proverb - the Irish loved this kind of word play and were very
skilled at it. From this we can see that the power of myth, tradition and precedent
were combined together to be woven into the fabric of the legal system, giving
it authority, credibility and sanctity in all situations.
There
is one more important aspect of the ancient Celtic legal system that I would like
to discuss in this introductory article. This concerns the status of the class
known as the 'nemed'. The meaning of this Celtic word would seem to be a description
for something holy or sacred; it is also used as a noun to denote a place of sanctuary.
In Irish law it had an additional meaning in that it signified all persons of
free status. It was specifically the franchise of the 'nemed' that allowed a person
participation in the public religious rites. It is important to note that the
franchise of the 'nemed' did not depend on birth. Certain kinds of craftspeople
attained the 'nemed' by virtue of their vocation, among them being builders of
houses, ships and mills, wood carvers, chariot makers, turners, leatherworkers,
fishermen, metal workers and smiths, and harpers (incidentally, harpers were the
only class of musicians who held the status of 'nemed').
There
were two classes of Nemeds - soernemeds (higher) and doernemeds (lower). The doernemeds
included the 'filid', the professional learning class and in ancient times the
Druidh. The doernemeds were workers of the specific crafts upon which the nemed
was granted. In later times, with the advent of Christianity, the distinctions
became rather more blurred, with the Druid class becoming relegated to the lower
nemed. Curiously enough, the filid retained the higher nemed. We can perhaps conclude
from this that the Church recognised a threat to the new religion from the Druidh,
but not from the filid who merely recorded it.
Presented
by Nancy A. MacCorkill, F.S.A. Scot
Clans Gunn, MacLeod of Lewis, and Keith
(Marshall)
Ancient Material from Carmichael and Mrs. H. Skimming founder Dalriada
Society Material from Carmichael
Nancy MacCorkill's own writings
"All
Rights Reserved Nov 1997/98,99,2000,2001, 2002 and 2003 N. MacCorkill"
THE
AES DANA, PEOPLE OF MANY ARTS
The History of
Dalriada -- The Beginning
The
heritage of what we now call the Scottish people have their roots set firmly in
the history of Dalriada, particularly the people of the Western Isles and Highlands
- The Gaidheal. It is for this reason that this the Trust carries the name of
Dalriada. Dalriada was the name of the people who came here from Ireland and whom
the Romans called the Scots. The earliest knowledge we have of them comes from
when they were still in Ireland. At that time there were four septs or main families
of the Erainn stock, who were considered to be a section of the original inhabitants
of Eire
These
four septs were named the Muscraige, Corco Duibne, Corco Baiscind and Dal Riata,
who came from three sons of Conaire Mor called Cairpre Musc, Cairpre Baschain
and Cairpre Riata. These four septs of the Erainn migrated from Breg in the north
of Ireland to Munster in the south. No reason is given as to why they traveled
south, although it is probable that their own family lands could no longer contain
them.
On
arriving in Munster the Erainn allied themselves with a people known as the Eoganachta,
to wage war against another people of Munster known as the Erna Mumaim and in
doing so they managed to obtain land to live on. At some point later a famine
in Munster forced the Dal Riata sept of the Erainn to move back north into the
ancient territory of the Ulaid, later to become known as Ulster. One of the other
Erainn septs, the Corco Duibne, claimed the Munster land they left.
When
the Dal Riata arrived in Ulaid they found two other peoples there. The Dal Fiatach
who were also known as the Ulaid and the Dal nAraide also known as the Cruithne.
Cruithne is also the name applied to the ancient Picts of Scotland. The Dal Fiatach
and the Dal nAraide were constantly warring with one another over the rulership
of their territory with the Kingship falling into the hands of which ever one
was the most powerful at the time. The portion of Dal Riata that remained in Ireland
allied themselves to the Dal nAraide, helping to make them more powerful, while
Cairpre Riata led the rest of his people across the water to the land of the Picts.
We
know little of the events that took place when Cairpre Riata landed with his people
except for the fact that the Kingship of Dal Riata stayed in Ireland. This remained
the case until Fergus mor Mac Erc, King of Dal Riata, arrived with more of his
people bringing his Kingship with him and in doing so shifting the emphasis of
Dal Riata from Ireland to Scotland. Historians place great importance on the arrival
of Fergus mor Mac Erc as being the starting point of the history of Dal Riata
in Scotland. However, by this time Dal Riata was already well established and
it is reported that Fergus arrived to exercise his authority over his Scottish
subjects by force of arms if necessary.
Fergus
was accepted as King by the Scottish Dal Riata and when he died the Kingship was
passed on to his son Domangart. From there the Kingship was passed on to Domangart's
two sons, firstly Comgall, who like his father appears to have ruled during peaceful
times. Gabran took up the Kingship after Comgall and his reign seems to have been
fraught with battles with the Picts. By this time there were four distinct sections
of the Dal Riata.
The
Cenel Gabrain, whose leaders were most frequently the Kings of Dal Riata, coming
from the Royal line of Fergus mor Mac Erc; the Cenel Loairn, the Cenel nOengusa
and the Cenel Comgall.
These
four main peoples now occupied all of Argyll, Kintyre and the Inner Hebrides.
After Gabran the Kingship went to his nephew Conall. It is Conall who is reputed
to have given Colum Cille the island of Iona, in agreement with the King of the
Picts, Brude MacMealchon. Colum Cille was not in fact a Dal Riata but from the
Royal line of the Ui Niells who had made his way to Scotland in exile.
The
next King to rule over Dal Riata was Aedan, son of Gabran, succeeding his uncle
Conall. Aedan was the first King of Dal Riata to be consecrated on Iona by Colum
Cille, although it is reported that Colum Cille was rather reluctant to carry
out the inauguration. Up until that point and for a while after a large majority
of the people of Dal Riata were pagan. It was Aedan who then encouraged Colum
Cille to his court and asked him to attend the convention of Drum Cett with him.
This convention was held to consider the position of the Irish Dal Riata in relation
to Aed mac Aimrech, King of the northern Ui Niells on the one hand and to Aedan,
King of the Dal Riata on the other. The convention decided that any taxes levied
on the Irish Dal Riata belonged to the Scottish Dal Riata and that the Irish Dal
Riata fleet should also remain with them, otherwise, from that point the Irish
Dal Riata became a separate entity, although the two were still allied.
It
is Aedan mac Gabran who is credited with being the greatest King of Dal Riata.
Through intermarriage with the Picts he carried on the work of his father to establish
the ultimate nucleus of Scotland. Although there were still troubles along the
way, this situation carried on right through until the time of Kenneth acAlpin
who was recognised as King of all Scotland. Kenneth was Pictish on his mother's
side and carried the Royal line of Gabran from his father Alpin and as such was
acceptable to both sides. From that point the customs of the Picts were amalgamated
with those of Dal Riata with the King's seat moving to the old Pictish palace
of Scone, where it remained.
Presented
for your enjoyment,
Nancy A. MacCorkill, F.S.A. Scot USA
Author, Poet,
Historiian of the Ancient Clans of Scotland
Constant Researcher
Brehon,
Bards and Druids
Every Druid
is a Bard, but not every Bard is a Druid.
The reason I say this is because
a Bard's training lasted 7 years, a Vates, 12 years while a Druid continued on
in their studies for 20 years.
Each druid would their own specialty but
they've all attended a college where they've undergone at least 12 years of extensive
training which includes all the disciplines before branching out in their specialty
such as Brehon (law) or Cainte (magic) or Fili (Bardic training). While a Ollamh
Cainte would know more of the ways of magic than a Ollamh Brehon, a Brehon would
still know magic as a Cainte would still know law.
After Christianity
began to take hold in Britain and Ireland, the Druids found themselves being phased
out (remember that in Britain, the Romans had already seriously damaged the Druids).
The Brehons were the longest lasting branch of the Druidic teachings, lasting
until the early 1600s when the Brehon Law in Ireland was replaced with English
Common Law.
I
recently read a very interesting theory about the role of Druids in Celtic society.
Sean B. Dunham in an article Caesar's perception of Gallic social structures
puts forth the theory that we may have the role of the Druid all wrong. Whereas
the modern view of them is that of priests, that in actuality they had the tripartite
duties of priests, philosophers and judges. The ancient world didn't have the
separation of church and state that we do now. Instead of being a mysterious magician
priests, they actually were an oligarchical elite with both judicial and religious
duties.
If
so, it appears that Caesar had a much clearer picture of the Druids and the Celts
than many have given him credit for. He understood the importance of the Druids
which quite possibly accounts for his very harsh treatment of them. They held
the history, the law, the wisdom, the religion of their society. Once this was
removed, much of what made them Celts also eventually vanished.
source: Celtic chiefdom, Celtic State, New Directions in Archaeology, Edited
by Bettina Arnold and D. Blair Gibson, Cambridge University Press, 1996
Brehon
Law Basics
We
should start with a quick look at the basics of the law. The basic regional unit
was the tuath and this seems to also be the basic legal unit since Irish Law distinguishes
between the deorad (outsider) and the aurrad (person of legal standing within
the tuath). Basically stated, the outsider has no legal rights within the tuath
and can be killed, maimed or treated in any manner without these acts being considered
as legal offences IF there is no treaty between the tribe the outsider came from
and the one where he is about to be maimed, killed, or treated badly. He would
have legal standing only if there was a treaty between the two tribes.
The second basic of Irish law was rank. Simply said, the higher your rank, the
more legal standing you'd have. "An offence against a person of higher rank
entails a greater penalty than the same offence against that of a person of lower
rank. Similarily, the oath of a person of higher rank automatically outweighs
that of a person of lower rank." (Kelly, 1998 p. 7)
Another basic
element of the legal system was kinship. The kin group referred to most often
in the law texts is the derbfine (true kin) which consists of all descendants
through the male line from a common great grandfather. This group has considerable
legal rights over its individual members. Each kin group has its own kin land
(fintiu) and each legally competent male had some responsibility over this land.
It could only be sold with the consent of the kin and if a man has sucessfully
fulfilled his obligations toward his kin, he can annul contracts of other members
of the derbfine if he feels they are detrimental to the kin group.
Customary
Laws
Ancient
Irish law wasn't produced by a process resembling today's legislation, rather
it grew around the dicta and judgments of the most famous Brehons. There are only
four periods in the entire history of Ireland when special laws are said to have
been enacted by anything resembling such legislative authority: first during the
reign of Cormac Mac Airt in the 3rd century, second, when St. Patrick came; third
by Cormac Mac Culinan, the King-Bishop of Cashel who died in 908, and lastly by
Brian Boru about a century later. But the great mass of the Brehon code appears
to have been traditional or have grown with the slow growth of custom. The very
first paragraph of the Law of Distress takes us back to a case which happened
in the reign of Conn of the Hundred Battles in the second century, and this passage
was already so antique by the close of the ninth century that it required a gloss,
for Cormac Mac Culinan alludes in his glossary to the gloss upon this passage.
There are many allusions in this glossary in the Seanchus Mor, always referring
to the glossed text which must consequently have been in existence before the
year 900. The text of the of the Seanchus Mor relies upon the judgments of famous
Brehons such as Sencha in the first century, but there is no allusion in its text
to any books or treatises. The gloss, however, is full of such allusions. Fourteen
different books of civil law are alluded to in it. Cormac in his glossary alludes
to five. Only one of the five alluded to by Cormac is among the fourteen mentioned
in the gloss. This shows that the number of books upon law must have been legion
in old times. They perished, unfortunately, with so much of the rest of Irish
literature, under the horrors of the English invasion and the penal laws when
an Irish manuscript was the source of great danger to the possessor of such.
Complexity of the laws
Ancient
Ireland under the Brehon laws functioned as a society that knew the law and obeyed
the law resorting to a Brehon only as a last resort unlike our modern litigious
society. The universal remedy for a wrong done was payment of compensation. That
payment was based on honor price of the victim, their kin and the nature and seriousness
of the wrong. Broken down to its basic form, its really simple.
The law
of the Celts grew from a complex set of customs and practices handed down for
millenia. They seem complicated to us at first because we are looking at them
from an 20th century mindset which has known nothing other than a Roman based
legal system.
Influences
on Celtic Law
The
Brehon Laws and the Laws of Hywell Dda stem from a time before the concept of
the "Irish" or "Welsh", instead they derived from a complex
set of customs and practices that were handed down from generation to generation
of what then were the Celtic tribes.
The Brehon Laws were written down
first, from the 5th - 8th centuries, whereas the Law of Hywell Dda was first written
down much later and already shows outside influences which must be stripped away
to find the Celtic root of the laws. An example of such influence is found in
a series of laws regarding the rights and duties of members of a royal court,
starting with the heir apparent, the Edling. The legal term, "Edling",
is derived from the Anglo Saxon "aetheling" in contrast to the original
Welsh "gwrthrychiad".
Of course even the Brehon Laws were not
without their outside influences, in their case that of the Church. For example,
the Cain Lanamna text gives detailed descriptions for divorce proceedings
with no mention of condemnation. However, the author of Heptad 51 quotes Mark
10.9, "what no God has joined, let no man put asunder'.
Points
of similarity - Brehon and Welsh Law
The
laws of Hywel Dda were taken down later and had already been corrupted by Anglo
Saxon influences. The laws are separated into three parts, predominantly, the
Laws of Court, the Laws of the Country, and the Justices' Test Book..
In the Laws of the Court, we see the strongest differences to Brehon Law. Its
here that the Anglo Saxon Laws have the strongest influence.
It is in
the Laws of the Country that we find ourselves back on solid Celtic Law ground.
They include the Laws of Women (mainly marriage and divorce), the validity of
oaths, injury to animals, surety, land law (inheriting, acquiring and reclaiming,
sharing, Women and the land), laws on aliens and family law. All of those laws
are very similar to the comparable Irish regulations and variations usually appear
only at the level of detail.
The last part deals with legal procedures
and punishments for offenses against life, health or property. It contains regulations
in regards to homicide, theft, fire, the value of animals, value of trees, houses
and equipment, the value of humans and contains regulations on joint ploughing
and corn damage. Again, these regulations parallel the Irish Laws in respective
areas and this helps us to find common ground and evidence of the 'common Celtic'
legal elements.
