BREHON I.AW-. 



KREHON LAWS. 



HI 



namely, division in his councils, strained interpretation of the laws in 

 Us court, dearth, barrenness of oatUe or lack of milk, a blight of fruit, 

 and a blight of seed sown in the ground : these are at lighted candles 



. v; - ::. :..:-. HBMst lit . f - -. r\ kkM " 



The number seven would seem to have bean held in much the same 

 i as UM mystic number three. There are, for instance, " seven 

 of persons whose anger is net to be resented ; namely, bards, 

 " toners, drunken persons, druids, and kings in 

 There are again " three deaths not to be 

 UM death of a fat hog, the death of a thief, and the death 

 of a proud prince : three things again which advance the subject; to be 

 tender to a good wife, to serve a good prince, and to be obedient to a 

 good governor." In this last example the same idea is repeated in 

 urder to complete the triad. What virtue can have been supposed to 

 reside in these peculiar forms of expression it is hard to conceive. The 

 only assignable rmsnn for their use seems to be that they were thus 

 more easily committed to memory. The system however does not 

 appear to have been used to any such extent in Ireland as in Wales ; 

 triads, in fact, form the bulk of Howell Dhu's laws, and those of the 

 most arbitrary and absurd description. 



But to proceed with the more practical and intelligible portion of 

 thnss collections, the laws defining specific crimes and their punish- 

 ments. It is said that previous to the reign of Felimy Reochtair, 'or 

 the Lawgiver, the lac taUonit prevailed in Ireland, and that he altered 

 that code for a system of retribution by mulct about A.D. 164. Parri- 

 cide, rape, and murder, under certain circumstances, still remained 

 punishable by death ; but whether in consequence of this reform in 

 the old law, or by immemorial custom, all other offences were thence- 

 forth provided against in the brehon law by definite fines. The retri- 

 bution thus exacted was denominated audan (or trie, terms applicable 

 also to rents, prices, and value in general. This system of erics has 

 been justly censured by all English writers on the history of Ireland. 

 But in this, as in most other instances, the censurcrs of the Irish have 

 exaggerated the evil by considering it as peculiar to that people. So far 

 however from being confined to the Irish, this mode of retribution by 

 eric has been practised at one time or other by almost all the nations of 

 Europe. The Greeks, the Romans, the old Germans, the Franks, the 

 Saxons, the Welsh, all punished our present capital offences by a fine. 

 The only difference lies in the word to express it, point (poena), mulcta, 

 wtngiU, swnioofe, tarkaad, and trie being synonymous terms in their 

 respective languages. In England at the time of the Conquest, every man 

 had his value ; in Wales, even to the time of its incorporation with 

 England, not only had every man his own value in gross, but the parti- 

 cular value of all his members severally laid down by law, as six oxen 

 and ton Aillmgn for the two hands, a like sum for the two eyes, half that 

 sum for one of either pair, so much for the ears, lips, nostrils, &c., and 

 these again varied with the rank of the maimed individual. It is not 

 then to be considered either unexampled or monstrous to find an Irish 

 chieftain requesting of the lord deputy to fix his sheriff's eric, that he 

 might know what he should have to pay, in case of that officer coming 

 by his death at the hands of any of his people. The amount of these 

 erics, the different persons liable for their payment and entitled to 

 their receipt, the proportions of these claims and liabilities, the adjust- 

 ment of value and the living money by which the various proportions 

 of the mulct were paid, these and the further punishment of the 

 offender in each case required a very minute and complicated system 

 of enactments. That the old Irish were acquainted with coined 

 is asserted by numerous authorities; that they used large 

 i of the precious metals as a medium of value is unquestion- 

 but as none save chiefs and lords of territories were required to 

 pay tribute in metal, the dealings of the mass of the people were 

 calculated for the standard of living money as closely as the nature of 

 the medium would permit. Cattle were accordingly classified ; and no 

 doubt it would raise a smile on the countenance of a modern merchant 

 to be told of calves, yearlings, heifers, strippers, in-calf cows, &c. 

 mpresenling the fractional parts of the standard of currency, but such 

 has been the original pecuniary substitute in every country ; and when 

 we have the learned Selden declaring that " pounds and shillings were 

 not abundant in England in 1004, but paid in truck and cattle," we can 

 oonsider the practice in a less intolerant spirit than those who, writing 

 but a few centuries after the use of coined money had become common 

 among their own countrymen, have represented the barbarism of the 

 Irish in this respect as a thing almost unheard of before. It has been 

 sen that in proportion to the number of cattle possessed by each 



r of the tribe was his share of the common tillage lands. " Thus 

 cattle were not only the standard of value, but the qualification for, 

 and a necessary concomitant of, property. The land was thus by a 

 sort of legal notion an appurtenance of the stock ; so that to say of a 

 person under this system that he possessed a hundred cows, implied 

 not only that his herds amounted to so many head of cattle, but that 

 in addition, and as a necessary appurtenance of his estate in them, he 

 also possessed UM grating of a hundred cows, and the share propor- 

 tioned to a hundred cows in the common tillage lands of his tribe. 

 Every addition to UM number of a man's cattle was therefore a virtual 

 accession of land and produce, and fiet rtnd ; and thus a mulct of 

 cattle fell as heavily on the granary as on the larder or dairy of the 

 ' individual ; for these proportionate partitions of the land took 

 M Ii i 



place at stated periods, 



man's harvest fluctuated with his 



herds as they bora a greater or less ratio to the aggregate of all the cattle 

 of the rest. The division of the ground into portions so uncertain 

 precluded the use of permanent fences on those 'arable common* u-hirh 

 wore probably separated from the pasture by only one exterior i-in-nm- 

 vallation, while each man knew the portion that was to fall to his 

 particular reaping-hook within. The adjustment of these portions 

 must have been a matter of some difficulty ; from an account of a 

 partition of this kind given by Sir Henry Piers, who wrote a history of 

 the county of Westineath in the year 1682, it would appear that the 

 plan usually pursued was this. The land was divided into equal 

 shares, in the proportion, each to the whole, of the herd of the least 

 proprietor to the whole rrtagkt or common stock of all their cattle. 

 These shares were drawn for by lot, in order to give to all an equal 

 chance of getting the worse or better land. He then, it is supposed, 

 whose herds were thrice as numerous as those of the least proprietor, 

 drew three such aliquot parts ; he possessing ten times as many, ten 

 such, and so on, the shares being taken here and there as they turned 

 up, and every man cropping his own portion as he thought fit The 

 system is still remembered in some parts of the country, and a mode of 

 expressing the extent of land among the Munster peasantry is still to 

 say " So much as fallout so many cows." Hence, in all likelihood, the 

 term JiaUy-bor, that is, cow-land, a term which has perplexed many 

 writers, in consequence of the varying extent represented by it at 

 different times and in different districts. It appears therefore that by 

 levying all mulcta for infringements of the law in living money, the 

 Irish brehons took the most effectual mode of making their punish- 

 ments tell on the whole condition and standing of the offender in his 

 tribe, for punishments so inflicted showed themselves, more or less, in 

 every circumstance of his life and fortunes, and affected his landed 

 property in all coses for a whole year at least 



In calculating by the measure, it was necessary again to fix a standard 

 of available aliquot parts. The number three was found most conve- 

 nient, and accordingly the cumfial, a general expression of fixed value, 

 was made to consist of three in-calf cows, and by multiples and frac- 

 tions of this quantity all other proportions of value were usually 

 regulated. Seven cumhalt, or twenty-one cows, was the usual eric for 

 murder on the highway. This will appear, at first sight, a very 

 inadequate retribution : but as it is not quite clear whether the rela- 

 tives of the deceased could not severally recover an eric from the 

 murderer, and as it is an accompaniment of the punishment in thin 

 offence, that the criminal loses all right in the common tillage lands of 

 his tribe, no matter how numerous his herds may be, after satisfying 

 the judgment of the brehon, his punishment may not perhaps have 

 been so much disproportioned as it would otherwise appear. Still the 

 possession of numerous herds might thus purchase the wealthy man a 

 privilege of violence. To guard against this, the liability increased 

 with the rank of the culprit. Taking the liability of the ordinary 

 clansman at one, that of the wealthy boor (txmireayh, pronounced 

 booari, that U, a person rich in cattle,) would be represented by two ; 

 that of the floith, or petty chief, by three and a half ; and so on to the 

 righ or lord of his country, whose liability is raised in the proportion 

 of seven to one. Robbery was punished, in like manner, with this 

 salutary provision, that if the robber could not be discovered, the 

 holder of the stolen goods should pay his eric. The sanctity of mar- 

 riage was strictly guarded : the injured husband had his first redress 

 at the hands of his father-in-law; failing him, he might levy retri- 

 bution on his wife's brothers; failing them again, on her foster- 

 children ; and finally, if she hod no relations, or if none of them 

 were solvent, her tribe at large hod to pay the penalty of her 

 crime. 



Next to these, the fines for trespass appear to have been attended to 

 with peculiar strictness and care. Hitherto we have spoken of lands 

 held in common, whether for pasturage or tillage, where there could be 

 no fences, and consequently little trespass; but, before we enter cm tin- 

 code of trespass-eric, it will be necessary to recur to those lands which wo 

 have denominated the private demesne lands of the tribe in which the 

 Deirbti-fnnf possessed their distinct inheritance. In the present state 

 of the inquiry, it cannot be precisely ascertained how this inheritance 

 was acquired ; but such lands are frequently alluded to in the original 

 laws, and distinctly recognised by Sir James Wore, who admits them 

 to have been freeholds. These lands not being subject to yearly repar- 

 tition, were permanently defined and fenced, and the exclusive pos- 

 session enjoyed by their holders U evinced by the extreme jealousy of 

 the law decreeing their inviolability. Firnt, we have the legal fence 

 defined ; namely, a trench, two feet in width at bottom, three feet in 

 depth, and three feet in width at top, with a ditch raised on one side, 

 of these dimensions and materials, namely, twelve hands of stone-work 

 three feet thick, twelve hands of sod over that, then wooden stakes two 

 feet asunder driven firmly into the sod, laced with wattles, and rising 

 three hands over all. For breaking through a fence so constructed, the 

 legal fine was thus proportioned : for every breach up to the breadth 

 of three stakes, a heifer or young bull ; for every breach above three 

 and under five stakes, a bull full grown ; for every breach over five and 

 under eight ditto, an in-calf cow ; up to twelve ditto, five cows, and so 

 on in progressive increase. That these lands were considerable enough 

 to be extensively wooded, appears also from the penalties against 

 trespass on timber. The classification and comparative valuation i 

 trees in a country which has usually been considered a wilderness of 



