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Page:Catholic Encyclopedia, volume 2.djvu/835

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BREHON


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BREHON


for crimes against the person were particularly heavy; two cows, for instance, was the fine for a blow which raised a lump but did not draw the blood. The pun- ishments awarded by the Brehons were of a most humane character. There is no trace of torture or of ordeal in ancient Irish law.

From the earliest times in which the English in- vaders made the acquaintance of the Brehon law system they denounced it \\-ith the most unsparing invective. But all the Norman chiefs who ruled over Irish tribal lands governed their territories by it in preference to Engli.sh law, and in Elizabeth's reign the great Shane O'Neill pointed out with bitter irony that if his Irisli laws were so barbarous as the queen's ministers alleged, it was passing strange that three hundred families had migrated from the English pale and the beneficent operations of English law to take refuge in his dominions. As early as 13C7 an English Statute of Kilkenny denounced Brehon law as " wicked and damnable". "Lewd" and "unreasonable" are the epithets applied to it by Sir John Davies. "In many things repugning quite both to God's law and man's" is how the poet Edmund Spenser charac- terized it.

The student, however, who views these laws dis- passionately to-day, and merely from a juridical point of view, will find in them, to use the words of the great English jurist Sir Henry Maine, "a very re- markable body of archaic law unusually pure from its origin. It is, in fact, a body of law that reflects for us early Aryan custom in its purity, almost per- fectly untainted or uninfluenced by that Roman law which overran so much of the rest of Europe. It is true that Brehon law does bear certain resemblances to Roman law, but they are of the slightest, and not even so strong as its resemblance to the Hindoo codes. It has in truth certain relations to all known bodies of Aryan law from the Tiber to the Ganges, some to the Roman laws of earliest times, some to the Scan- dinavian, some to the Slavonic, and some partic- ularly strong ones to the Hindoo laws, and quite enough to old Germanic law of all kinds "to render valueless", to use the words of Sir Henry Maine, "the comparison which the English observers so constantly institute with the laws of England". "Much of it", says Maine, "is (now) worthless save for historical purposes, but on some points it really does come close to the most ad\anced legal doctrines of our day". "There is a singularly clo.se approach", he remarks in another place, "to modern doctrines on the subject of contributory negligence, and I have found it possible to extract from the quaint texts of the ' Book of Acaill ' some e.xtremely sensible rulings on the difficult subject of the measure of damages, for which it would be in vain to study the writings of Lord Coke though these last are relatively of much later date". But he points out how heavily the Brehon Law pays in other respects for this striking anticipation of the modern legal spirit by its too frequent air of fancifulness and unreality and in- dulgence of imagination. In the "Book of Acaill", for instance, whicli, as mentioned before, is chiefly concerned with the law of torts, we find four long pages concerned solely with the injuries received from dogs in dog-fights — Ireland was famous for its hounds, and dog-fights figure more than once in old Irish literature — .setting forth in the most elaborate way all the qualifications of the governing rule re- quired in the case of owners, in the case of spectators, in the case of the "impartial interpo.ser", in the case of the "half-interposcr", that is the man who tries to separate the dogs with a bias in favour of one of them, in the case of an accidental onlooker, in the case of a youth under age, and in the case of an idiot. The Brehons, in fact, appear to have never hesitated about inventing or imagining facts upon which to base their theoretical judgments. They endeavour


to deal with all eases and all varieties of circum- stances, and they have special rules for almost every relation of life and every detail of the social economy. A great number of the cases which come under dis- cussion in the law books appear to be rather prob- lematical than real, cases propounded by a teacher to his pupils to be argued on according to general principles, rather than actual subject for legal dis- cussion.

Origin and Gradual Growth. — Ancient Irish law was not produced by a process resembling legis- lation, but grew up gradually round the dicta and judgments of the most famous Brehons. These Bre- hons may very well ha\'e been in old times the Irish equivalents of the Gaulish Druids. There were only four periods in the entire history of Ireland when special laws were said to have been enacted by leg- islative authority: first during the reign of that Cormac Mac Airt already mentioned, in the third century; second, when St. Patrick came; third, by Cormac mac Culinan, the King-Bishop of Cashel, who died in 90S; and lastly by Brian Boru, about a century later. But the great mass of the ISrehon code ap- pears to have been traditional or to 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 Bat- tles in the second century, and this passage was already so antique at the close of the ninth century that it required a gloss, for Cormac mac Culinan (who died in 908) alludes in his glossary to the gloss upon this passage. There are many allusions in this glos- sary to the Scanchus Mdr, always referring to the glossed text, which must consequently have been in existence before the year 900. The text of the Senn- chus Mdr relies upon the judgments of famous Bre- hons 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. Cor- mac in his glossary alludes to five. Only one of the five alluded to by Cormac is among the fourteen men- tioned in the Seanchus Mdr. This shows that the number of books upon law must in old times have been legion. They perished, with so much of the rest of Irish literature, under the horrors of the English invasion and the penal laws, when an Irish MS. was a source of danger to the possessor.

The essential idea of modern law is entirely ab-sent from the Brehons, if by law is meant a command, given by some one possessing authority, to do or to forbear doing a certain thing under pains and penal- ties. There is no sanction laid down in the Brehon laws against those who violated them, nor did the State provide any such sanction. This was the great inherent weakness of Irish jurisprudence, that it lacked the controlling hand of a strong central gov- ernment to enforce its decisions. It is a weakness inseparable from a tribal organization in which the idea of the State, which had begun to emerge under the early Irish kings, had beeen repressed. When a Brehon had heard a case and delivered his judgment, there was no machinery of law set in motion to force the litigant to accept it. The only executive autliority in ancient Ireland which lay behind the decision of the judge was the traditional obedience and good sense of the people, and it does not appear that this was ever found wanting. The Brehons never appear to have had any trouble in getting their decisions accepted by the common people. The public appear to have seen to it that the Brehon 's decision was always carried out. This was indeed the very essence of democratic government, with no executive au- thority behind it but the will of the people. There can be no doubt whatever that the system trained an intelligent and law-abiding public. Even Sir John Uavies, the Elizabethan jurist, confesses "there