325 



BREHON LAWS. 



BREHON LAWS. 



326 



forests cannot fail to be interesting. Timber was divided into four 

 classes airigh, athair, foghla, and losa timber; and the fines for 

 trespass on each were thus proportioned : airigh timber, namely, oak, 

 ash, hazel, holly, yew, and fir for cutting the trunk, five cows ; for 

 cutting or maiming the limbs, a heifer ; for the branches, a two-year 

 old. Athair timber, namely, alder, willow, hawthorn, quick-beam, 

 birch, and elm for cutting the trunk, a cow ; for the branches, a 

 heifer. Foghla timber, namely, black-thorn, elder, spindle-tree, white 

 hazel, aspen, arbutus for each a heifer. Losa timber, or fire- wood, 

 namely, fern, furze, briar, heath, ivy, broom, dwarf thorn the penalty 

 for destroying [these to be at the discretion of the brehon. Full as 

 the classification here is, it scarcely equals in minuteness that law of 

 Ina, a king of the West Saxons in the tenth century, which estimates 

 the value of a tree by the number of swine its branches could give 

 shelter to. 



But perhaps a more remarkable law is that of the Irish brehon regu- 

 lating the property in bees. Honey and wax must have formed a large 

 portion of the wealth of those days, else the various contingent inte- 

 rests in a species of property so hard to fix as that in a swarm of 

 wandering bees had never been calculated and laid down with such 

 scrupulous nicety. In the first place, the bees themselves are protected 

 by severe enactments against injury of whatever kind. Next, they are 

 to be left free, under heavy penalties, to choose their own place of 

 swarming: "to blind the bees" by casting up dust, or taking any 

 other means to force them to descend and swarm on one's own land, 

 while they are flying out of the lands of another, was an offence for 

 which the punishment was no less than expulsion from the tribe and 

 territory. The bees having voluntarily selected and settled on a tree, 

 it then depended on the rank and privileges of the owner as well of 

 the bees as of the tree they had chosen, what was to be the portion of 

 wax and honey reserved for each, and how long the original owner 

 should continue to receive that share, as the bees in all cases ulti- 

 mately became the property of him upon whose tree they had alighted. 

 The commentators on the old text here complain very bitterly of the 

 clergy, who, it would appear, were particularly fortunate in attracting 

 such wandering swarms to their abbey orchards, where they did not 

 scruple to cover them with sheets, and take other unfair means of 

 securing their stay among them. If the bees, however, were found 

 beyond the sound of a church bell, or the crowing of a cock, in the 

 woods or meadows, the finder was entitled to the whole proceeds, 

 excepting a ninth part, which he had to pay by way of tribute to the 

 chief. If these laws have been rightly translated, the old Irish must 

 have possessed the secret of abstracting the wax and honey without 

 destroying the swarm. In no other collection of laws are the regu- 

 lations regarding this species of property so copious ; in fact, it 

 would require all the space here devoted to this subject to explain 

 the minute and complicated decrees of the brehon law regarding bees 

 alone. 



It is equally impracticable to enter fully into the law of water- 

 courses, the enactments on which are very remarkable, inasmuch as the 

 property of the whole water of a stream vests in him out of whose land 

 it first springs, so that the owner of the fountain could levy tribute 

 even on those bridges which crossed the river between banks belonging 

 to other men, as well as on all houses (save those of the chief, the head 

 villager, and the miller,) whose occupants drew water either from the 

 fountain or the stream. Millers were a class peculiarly favoured in 

 these laws : their mill-races were tax-free ; their mill-wrights, while 

 pursuing their trade, could not be prosecuted for trespass ; and, as 

 above stated, their households were exempt from tribute on all water 

 drawn for their consumption. It is worthy of remark, that by the 

 Jewish law the mill-stone could not be confiscated. 



The law of rivers and sea coasts is also laid down at some length ; 

 but of the law of roads only one section hitherto has been found. This 

 section, however, is well worth notice, as it contains proof of a much 

 more general design in these laws than we might otherwise be disposed 

 to give them credit for. It provides that the space of the cast of a 

 dart shall be left from high-water mark along the sea-shore for the 

 construction of a public coast-road round the whole kingdom. It is 

 said that some traces of such a road are still to be seen upon the Irish 

 coast. Valiancy states that hi his day the country people called it 

 Brian Born I road ; and other writers mention the remains of a great 

 inland causeway somewhat similar to the British Watling Street, 

 crossing the country from Dublin to Limerick, which was probably the 

 effect of a similar provision for inland communication. 



The law of fosterage is more fully stated. Every member of the 

 Dathaig-jlnnf, or gentry of the clan, was bound to send his male 

 children to foster with some family of the In-finn, or commonalty ; 

 f.ir ft was provided that none but fosterers could claim full eric. The 

 jKyaircr, or foster-fee, was a stated sum payable by instalments during 

 the child's minority. While the child was thus under age, the foster- 

 father was bound to pay one-half of his fines, in return for which the 

 young noble or idil-man was ever after bound to protect his new 

 kindred, and in particular to pay all fines incurred by his foster-mother, 

 except in case of adultery, when the liability first fell upon her father 

 and brothers, if alive and solvent. 



The law of tuition provides for three chief branches of education, 

 namely : knowledge of cattle, as being the first and most important in 

 a pastoral community ; next, knowledge of agriculture ; and, finally, of 



navigation; instruction in letters being an indispensable branch of 

 each. These attainments were acquired under tutors hired for the 

 purpose, and paid by the father or foster-father, according to the 

 arrangement of the JEyairer, the foster-father himself being always the 

 youth's instructor in all military and athletic exercises. The tutors 

 alluded to were the ottamhs or bards, who also acted as clerks and 

 notaries under the brehon. The offices of these functionaries, as well 

 as of the physician, were hereditary, but not, as is generally supposed, 

 subject to the law of primogeniture ; the judge, poet, or doctor, being 

 at liberty to select from all of his own name those apprentices whom 

 he might Hi ink most promising in his peculiar profession. The brehon, 

 as a judge, was held personally in great reverence, and was always 

 considered as a neutral in war. 



The law of physic proportioned doctors' fees to the rank of the 

 patient, and the nature of the complaint. If a cure was not effected, 

 the doctor had no pay ; but where the treatment proved successful 

 the recompense was very liberal, as fourteen cumhaU or forty-two cows 

 for the cure of a bishop or provincial king, seven and a half cumhals 

 for that of a lord of a country, three for that of a bovarg, and two for 

 a member of the commonalty. 



It is disputed whether the new series of enactments were sumptuary 

 or merely valuatory. Dr. Ledwich adopts the latter opinion, but the 

 tenor of the translated fragments would seem rather to imply the 

 former. They are said to have been enacted by Mugdories, the daughter 

 of Mogha Muadhad, a king who lived in the 2nd century. By them a 

 certain value is established for various articles of dress and luxury ; as, 

 for example, a mantle wrought with the needle is valued at a steer or 

 heifer. The dress of a petty chieftain's lady is estimated at three 

 cows ; that of a head villager's wife at two ; that of a bard and his 

 wife together at three ; and that of a bishop at six. The bodkin or 

 brooch of any one under the rank of a bovarf was in like manner priced 

 at three heifers ; that of a bovar6 at five ; that of a Flaith or petty- 

 chief at ten ; and that of a king or lord of a country at thirty. Of the 

 same value in each degree was the bridle. The belt was estimated 

 proportionately at about a third ; and in like manner with regard to 

 arms and armour, drinking-cups, &c. &c. 



As to forms of trial, there is nothing preserved which so far throws 

 any light upon this portion of the inquiry, except one very interesting 

 fragment, namely, cases of disputed inheritance of lands were to 

 be judged by twelve voices, one dissentient voice invalidating the 

 verdict. This was the ancient law, and the commentator observes 

 that the hardship of its extreme strictness occasioned its practical 

 repeal. 



Such, so far as has been hitherto collected from the ill-arranged and 

 defective materials, would appear to have been the old system of rude 

 jurisprudence under which the Irish people lived prior to the invasion 

 of the Anglo-Normans in the 12th century. The conquerors brought 

 their own laws with them ; but the progress of the more complicated 

 and formal feudal system of the continent in displacing its primitive 

 originator and rival was necessarily very slow. The brehon law offered 

 many attractions to ambitious individuals desirous of establishing a 

 self-contained despotism in each of their several territories ; and while 

 the particular duties and services done by the new feudal law were 

 rigorously exacted, the general privileges of the English constitution 

 were denied. The subjects of the Anglo-Norman conquerors thus 

 participated in the evils of both systems ; for the protection of judicial 

 trial by the law of England could not be claimed by the serfs of remote 

 districts ; and the power of the conquerors was too arbitrary to permit 

 any operation of the brehon law within their bounds which was not 

 for the sole interest of the lord ; thus, the poor native of the pale was 

 mulcted under both laws and protected by neither. It is not sur- 

 prising, therefore, that the lapse of a Norman noble into mere 

 Irishism, by which he acknowledged the brehon code alone, was 

 anxiously encouraged by his dependents ; and such were the induce- 

 ments of the system itself for turbulent and ambitious spirits, that 

 few of the adventurous nobles who first established themselves in 

 Ireland resisted the temptation. To guard against defection so ruinous 

 to the whole policy of the conquest, many statutes were enacted in the 

 parliaments of both countries. These at first were for the encourage- 

 ment of the English law only, but afterwards it became necessary to 

 take measures of prevention as well as of discouragement. The first 

 positive act against the practice of the brehon law within the pale 

 was passed by the parliament held at Kilkenny by Lionel Duke of 

 Ckrence, in 1362 ; by which the offence is declared high treason. This 

 was followed by the 18th Henry IV. c. i. ii. iii., and the 28th do., c. i., 

 with similar prohibitions and penalties. The prohibition, however, 

 had little effect. The open defection of the great families of De 

 Burgho, Bermingham, and various branches of the Fitzgeralds, in 

 Ulster, Connaught, and Munster, kept the dangerous example con- 

 stantly before the eyes of the nobility on the borders of the pale, and 

 each successive rebellion tended to increase the evil : for if the govern.- 

 ment were successful, the border barons, on whom the maintenance of 

 that advantage afterwards depended, were proportiouably more in- 

 dulged ; and, if the Irish prevailed, their yielding under such com- 

 pulsion was the more excusable. A good example of the anomalous 

 state of society produced by the intermixture of the two systems 

 on the borders of the pale may be adduced from the reports made by 

 various corporate towns of Leinster to the commissioners appointed by 



