And the authors of the Senchus were
Laeghaire, Core, Dairi, the hardy,
Patrick, Benen, Cairnech, the just,
Rossa, Dubhthach, Ferghus, with science,
These were the nine pillars of the Senchus Mor.
The Senchus Mór: The Great Tradition
The Senchus Mor, is the foundation text of the most sophisticated law tradition in Europe of a thousand years ago, excepting only Islamic Spain. The body of law as a whole is often called "Brehon law" but is properly called Fenechus, which means " that which relates to the Feine" the free classes that formed the main body of Irish society.
Its legendary beginning is associated with a conference in the year 438 A.D. involving St. Patrick and Laegaire Mac Neill, High king of Ireland. The King ordered the collection of the old laws and appointed nine learned persons, named above, to revise them.
After three years work they produced a new code, mainly by altering all laws that clashed with Christian doctrine. In this way the new philosophy and the ancient laws of Ireland were harmonised.
It was composed of three kings, three bishops, and three professors of literature, poetry, and law. Chief among the latter was Dubthach. It became his duty to give an historical retrospect, and in doing so he exhibited, "...all the judgments of true nature which the Holy Ghost had spoken from the first occupation of this island down to the reception of the faith. What did not clash with the word of God in the written law and in the New Testament and with the consciences of believers was confirmed in the laws of the brehons by Patrick and by the ecclesiastics and chieftains of Ireland.
This is the Senchus Mor.
The Bearla Feine
The laws were written in the oldest dialect of the Irish language, called Bérla Féini [Bairla-faina], which even at the time was so difficult that persons about to become brehons had to be specially instructed in it.
The learned brehons were fully conscious of the difficulty were often incorrect in their attempts to explain the archaic text.
Everybody is Unequal?
Modern law in Ireland, descended from English Common Law, holds as an important principal that everyone is equal before the law.
Fenechus law, in contrast, holds that everyone is unequal before the law.
This difference has often been used as a reason why Fenechus law is totally unsuitable as a source of reform for modern Ireland, but as we shall see, things are not as clear cut as that.
To see how this works let us look at the beginning of the Senchus.for with these principles we can interpret the rest of the laws.
It begins with the description of the injustice that reigned before the law was reformed, when every individual had equal status before the law.
In it was established the 'dire '-fine of each one
according to his dignity; for the world was at an
equality until the Senchus Mor was established.
The source of injustice, before the Senchus, was that everyone was equal before the law, and therefore those of bad deeds could be rewarded as much as those of only good deeds.
Also the fines for crimes, set the same for all individuals, meant that the same amount would be awarded to a person no matter what their reputation.
the result was described as good to bad and bad to good, or in other words, injustice.
Enechlann The Price of ones Face
To solve this, the Irish invented a concept called Enechlann, literally face-price Usually known as honour price
increased with ones position in society
this honour price was important in the calculation of fines.
Good to Good, Bad to Bad
In the Senchus it was provided, i.e. it is in the Senchus it was fixed or
settled. That good should not be assigned to bad, that a large honor-price should not be given to the person to whom only small honor-price is due ; or a good honor-price to a bad man, i.e. to a man to whom honor-price is not due; or a great 'dire'-fine, to an unimportant person.
"because it is according to his deeds God judges man," why then should it not be according to his deeds that one man should judge another in like manner.
The Judge:: An Breitheamh
The Breitheam were arbiters, they did not represent he state.
The state did not prosecute, instead all cases were taken by individuals the state did not have a monopoly on the administration of justice
person could refuse to go to court,
The death penalty was not permissable in Irish law.
it is often said that the law did not differentiate between civil and criminal cases, and it is true that fines were the result in almost all cases. However, the process was different for crimes against the person as opposed to debts. In a debt the first step was to seize the goods of the accused so defendants were generally free to choose the judge.
In a criminal case the first step was to report to a Breitheam and so the judge was chosen by the plaintiff.
legal term- the seizure of someone’s property in order to obtain payment of money or goods owed.
The Legal Procedure: Distress
Justice was dispensed as fines which were calculated in a complicated fashion and depended on the status of the persons involved
one crime could draw many fines compounded together and also result in a reduction in honour price and therefore status in society.
the fine for murder was double or more than that of accidental manslaughter
for example the murderer was fined his own honour-price, seven cumals for the homicide, and twice seven cumals if malice was proved
Coirpdire the body fine
Enachlann Honour price
lying, perjury, fraud committed three times resulted in loss of half the honour price, and again resulted in total loss of honour price. this would result in effective demotion and loss of the right to hold public office, to sue, to guarantor. this lasted for a set period of time
in all cases the clergy were punished more severely than the laity as they could not rcover their honour price after a set term.
Book of Aicill
The hill of Skreen, near Tara Teamair in Meath
The place of this book is Aicill, close to Tara and its time is the time of Cairbre Lifechair, the son of Cormac, and the author is Cormac, and the cause of its having benn composed was the blinding of the eye of Cormac by Aongus Gabhuaidech.
Each reply begins
My son, that thou mayest know...
But as regards CennFaelad, its place is Daire Luarain and its time was the time of Domnall, son of Aed, son of Ainmire and its author was Cennfaelad, son of Aillil, and the cause of its being composed was that part of his brain was taken out of his head after it was split in the battle of Magh Rath (634).
Verbal contracts are binding
as to the thing for which he has properly given security by word of mouth ; or,
which one gives away, such as the four gifts; or, each party is to abide by the
contract which he made by word of mouth, i.e. a boy with the foster-father, the
kinds of tenants with the chieftains, the wife with the husband. For the world
would be in a state of confusion if verbal contracts were not bind-
But the author of the Poem was Dubhthach Mac ua
Lugair, royal poet of the men of Erin.
The cause of the Senchus having been composed
was this : Patrick came to Erin to baptize and to
disseminate religion among the Gaeidhil, i.e., in the
ninth year of the reign of Theodosius, and in the
fourth year of the reign of Laeghaire, son of Mall,
king of Erin.
But the cause of the Poem having been composed
was as follows : Laeghaire ordered his people to kill
a man of Patrick's people ; and Laeghaire agreed to
give his own award to the person who should kill the
man, that he might discover whether he would grant
forgiveness for it. And Nuada Derg 1 , the son of Mall,
brother of Laeghaire, who was in captivity in the
hands of Laeghaire, heard this, and he said that if he
were released, and got other rewards, he would kill
one of Patrick's people. And the command of Laegh-
aire's cavalry was given him, and he was released from
Family fineTruth, Right and Nature
Offences against the person
Rape, Satire, Refusal of hospitality
Contract Pledge and Surety Law
Distraint of cattle learn where cattle raiding
There are four findings that give the honour price of a commoner to a king. What are they?
, soon after 1400, the Mac an Baird (Ward) family of Uí Maine, whose surname indicates that they were descended from “bards,” the oral court poets of early Ireland, also entered the service of Ua Domnaill of Tír Conaill.
In 1309, Gilla na Náem mac Duinnsléibe Meic Áeducáin was the first to be described as “ollam [professor] of Connacht in law,” a “chief master of jurisprudence.” In all, some forty members of this family were noted in the Irish annals, the overwhelming majority as experts in law. Their most famous school was that of Mac Aeducáin of Ormond in North Tipperary, but another was sited in Dún Daigre (Duniry, County Galway), and the family established separate branches, serving Anglo-Irish lords and Irish chieftains of Connacht, Meath, Longford, and north and south Munster.
Their most famous manuscript, the early-fifteenth-century Leabhar Breac (Speckled Book) of Duniry, shows that their schools were not confined to copying, glossing, and commenting on the law tracts, since much of this book’s contents consists of religious tracts and saints’ lives from the pre-reform church schools of the twelfth century.
forms part of the oldest surviving Irish legal manuscript, written mainly before 1350. This is the first book devoted to a comprehensive and scholarly study of the text, with its many glosses: the manuscript is in the Library of Trinity College, Dublin.
The manuscripts are discussed in detail in the Introduction (pp. 1-50), then comes the text (with variants and glosses), with an English translation of it on facing pages, with extensive notes to the 55 individual bee judgments (pp.51-89). More extensive general notes follow (pp.90-168), then 7 appendixes on special subjects (pp. 169-205) and indexes to Irish words, proper names, and Welsh and Breton words (pp. 206-214).
Among the considerable amount of information that can be extracted from the text and notes are the following.
Colonies are assumed to take 3 years to become large enough to swarm. Swarms, and their tracking and their ownership, were enormously important and gave rise to many of the judgments.
Honey must have been produced in quite large quantities, the largest of the four honey measures being a vessel that a man could raise no further than to his knees. There is much about bees that nest in trees, but the hive as a separate entity appears rarely; there is no clue as to what hives were like, or indeed whether most of the honey came from wild or from hived colonies. Bees were stolen, and penalties for the thief were severe. Stinging by bees must have caused trouble;
it was unlawful for bees to sting anyone who did not molest them and - provided the person did not kill the bee - he had to be recompensed by 'a sufficiency of honey'.
The details encompassed in these surviving laws show that bees and honey played a very important part in Irish life, and probably much earlier also.
Audacht Morann the testament of Morann
Tecosca Cormac the teachings of Cormac
deals with the proper behaviour of Kings and warriors
Trecheng Breth Fene a triad of judgements of the Irish 149 186 are legal in essence.
Briatharthecosc Con Culainn the precept instruction of Cuchulainn advice to Kings
Tecosc Cuscraid instruction to Cuscraid advice to Kings
Senbriathra Fithail the ancient sayings of Fithail
Aibidil Luigne mac Eremoin "the alphabet of Luigne mac Eremoin"
These are the Law texts of Ireland
Na Sechta The Sevens
false judgements of Caratnia examples of incorrect judgements
Crith Gablach branched purchase
Uraicecht Becc Small Primer
MiadSlechta rank sections
deals with rank
regulation of proper behaviour
Dia fis cia is breitheamh
to find out who is a judge for every case, duties of a judge
Urcuilte Bretheman forbidden things of a judge
Uraicecht na Riar
the primer of the stipulations qualifications of the grades of poets.
Bretha Nemed Toisech
clerics poets the first bretha nemed
Bretha Nemed deidenach the last Bretha Nemed
privileges and responsibilities of poets
Bretha Credine the judgements of Credine a mythologicak coppersmith (lost) along with laws on blacksmiths and luchtaine a wright
categories of persons
laws of women and marriage
maccslechta son sections (lost)
laws of inheritance
Cain Iarraith the law of the fosterage fee treatment of foster children
Fodlaib Cineoil Tuaithe
the division of the kin in the tuath about the fine
regulation of the kin group FineBretha Family Law
law of free fief, free clients rights and duties.
law of base clients, rights and duties.
Di Dliguid Raith Somaine la Flaith
fief and profit of the lord laws
Do druthaib meraib dasachtaib,
on idiots, the insane and lunatics.
Do brethaib Gaire judgements of maintenance,
care of the aged,blind, deaf and sick also care of the insane De Druthbrethaib j. relating to idiots.
Bretha Crolige judgements of blood lying
obligations of sick maintenance after illegal injury.
Bretha Dein Cecht judgements of Dian Cecht,
fines for injury and doctors share.
Bretha Etgid judgements of inadvertance,
accidental death or injury no liability
Mellbretha sport judgements
injuries from games
Bretha im gata
judgements about thefts
judgements of arson
judgements of neighbourhood trespass of animals.
Bechbretha Bee judgements
trespass by bees,
Coibnes Uisci Tharidne
The kinship of conducted water, rules of conducting water across neighbours land
to power a mill.
Fidbreta tree judgements (lost)
ownership of fruit and liability for tree cutting.
Conslechta dog sections
Catslechta cat sections
Boslechta cow sections
Osbretha Deer Judgements (lost)
deals with deer caught in a pit
Muirbretha Sea Judgements
judgements of trapping SenBretha relating to nets for trapping pe
sea judgements (lost)
fishing and salvage rights estuarine
Loans and Deposits
Sureties and Hostages
Coic Conara Fugill the five paths of judgement
Corus Fiadnaise regulation of evidence
Cáin are religious edicts, somewhat similar to fatwah.
Cain Domnaig Law of Sunday
Cain Adomnain Law of Innocents
In 697, Adomnán promulgated the Cáin Adomnáin, meaning literally the "Canons" or "Law of Adomnán". The Cáin Adomnáin was promulgated amongst a gathering of Irish, Dal Ríatan and Pictish notables at the Synod of Birr. laws designed to guarantee the safety and immunity of various types of non-combatant in warfare. For this reason it is also known as the "Law of Innocents".
Cain Phatraic Law of Patrick
Cain Dar I offences against cattle
Rith na canann the extant of the laws
in common with wider Latin canon law
Judgement in Irish law is based on truth fir, right dliged and nature aicned.
The poet tis< / /.> //'"<,. l/i.-s stuff. An example nf this kind of poetiral
is given in Cormac's Glossary, in voce Coin Breaiin, where- the blind poet,
Dall, is introduecd as ili-,oivi'ring the name of a certain lap-dot; by poetical
ration. The blind poet came to the estuary of Inbher Bece, near Rancor, and his
attendants finding the bare skull of a small animal upon the strand, asked the
poet, whose skull it was. He desired them to place the extremity of his wand
the skull, which being done, he said :
"The tempestuous waters, the waters of the vortex
" Destroyed Brecan : this is the skull of Brecan's lap-dog,
"And but little of greatness here remains,
" For Brecan and his people were drowned in the vortex."
Comparison with English law
there are traces of a similar social and justice system, in old Saxon law, but a lack of evidence frustrates a full assessment. showsigns also of having not been reformed as thoroughly as Irish law had been by the impact of Christian and other middle eastern philosophies and the involvement of a council rather than a proffessional class of judges
Free and unfree classes etc,
proceedings went by distress as in Ireland,
but the biggest difference seems to have been without the developed class of judges as known in Ireland, where they were a branch of the poets.
Why the comparison?
the reason to compare the histories is important in Ireland because we can see how the law we now have
subsequently grew in very different conditions than that in Ireland. then was transferred to Ireland by the Norman invasion, but in Ireland did not become th law of the majority of the country until the 17th century.
we may compare and see in what things our English derived law is not in accord or is less advanced in effective administration of justice than thelaw of Ireland. that effective justice requires the full participation of the people and this can only be achieved if the law is in accord with the psychology of the people.
To Alfred has often been attributed the institution of trial by jury. He did not institute it. It had no existence in England for more than two hundred years after his time, when it was introduced by the Normans, who themselves had derived it from the Franks. But he is known to have done much for the jurisprudence of his country. He borrowed much from the Brehon Laws of Ireland; and no doubt in his visit to Rome in A.D. 855, he had learned something of the Roman Civil Law.
The Norman Yoke
huge impact of Normans on the development of England
last use of Old English in the 12th century
and he established a military despotism, which for a time was the most oppressive and the most tyrannical in Europe. He confiscated nearly all the land, despoiled and impoverished the previous Anglo-Saxon proprietors, and parcelled out their holdings among his own followers upon a purely military tenure for services rendered and thereafter to be rendered. The principal beneficiaries of the spoil subdivided the land among their own retainers upon a similar military tenure. The Anglo-Saxons, like the Helots of Lacedaemon, were reduced to a state of serfdom or villeinage, as it was called, between which and abject slavery there was but little practical difference. They were fixed to the soil, and could not leave it without the permission of their feudal masters, for whom they were required to toil and till the land. The Feudal System in its most aggravated form was firmly fixed upon England. It was the beginning of an entirely new social system, and necessarily therefore of a new jurisprudence; and from this time, is to be dated the beginning of the Common Law of England.
The Harrowing of the North
was a series of campaigns waged by William the Conqueror in the winter of 1069–1070 to subjugate Northern England, and is part of the Norman conquest of England. It effectively ended the quasi-independence of the region through large-scale destruction that resulted in the relative "pacification" of the local population and the replacement of local Anglo-Danish lords with Normans.
Because of a scorched earth policy, much of the land was laid waste and depopulated, a fact to which Domesday Book, written almost two decades later, readily attests. Sixty per cent of the estates in the north of England are waste devoid of humans are livestock.
Anglo Saxon aristocracy are eliminated one way or another, church is taken over, all land is in the hands of a few hundred Barons.
From the Humber to the Tees, William's men burnt whole villages and slaughtered the inhabitants. Foodstores and livestock were destroyed so that anyone surviving the initial massacre would succumb to starvation over the winter. The land was salted to destroy its productivity for decades forward. The survivors were reduced to cannibalism. Even some who were usually in support of William and the Normans were horrified by his actions.
The King stopped at nothing to hunt his enemies. He cut down many people and destroyed homes and land. Nowhere else had he shown such cruelty. This made a real change.—Orderic Vitalis, 11th century
One quarter of the country was in the hands of 11 men all of whom spoke only French.
The Forest Law
William I He "laid a law upon it, that whoever slew hart or hind should be blinded,"
at the height of this practice in the late 12th and early 13th centuries, fully one-third of the land area of southern England was designated as royal forest; at one stage in the 12th century, all of Essex was afforested, and on his accession Henry II declared all of Huntingdonshire forest
Royal forests usually included large areas of heath, grassland and wetland — anywhere that supported deer and other game. In addition, when an area was initially designated forest, any villages, towns and fields that lay within it were also subject to forest law. This could foster resentment as the local inhabitants were then restricted in the use of land they had previously relied upon for their livelihoods; however, common rights were not extinguished, but merely curtailed
Another political change in England was the formation of Anglo-Norman feudalism. Several features of feudalism are: “vassalage, military groupings, and the fragmentation of authority”. The time after the Conquest was the first public demonstration of the power the king held over the land.
William essentially took back all of the land and redistributed it to his own vassals or, as they came to be known, barons. The barons then divided up their own sections and granted the areas to their own vassals. A “feudal pyramid” can begin to be seen, in which the classes were very defined, and everyone, in the end, was led by the king
The Anglo-Saxons had a system of county courts which seem to have fairly well served the purpose of the administration of justice. William established an aula regia, or royal court, with a chief justiciary, as he was called, to represent the king; and out of this aula regia, in course of time, grew the Courts of King's Bench, Common Pleas, and Exchequer, well known to the later history of English Law. But the system of law administered by the aula reqia and the chief justiciary was crude and uncertain. In fact, there was little worthy of the name of a legal system. The rude usages of Feudalism constituted nearly all the law that there was.
The only law which the Norman barons knew, or for which they cared, was the law of war and the transfer of real estate under the Feudal System, The language of the courts was, and thereafter for several centuries remained the Norman French, a fact which of itself shows how little the Anglo-Saxon population was regarded in the matter of the administration of justice.
This population was generally relegated to the county courts. So far as there was commerce in London and a few other cities, it was left to regulate itself as best it could by the usages and customs of those cities, and by petty tribunals of their own established therein.
the English lamented the loss of their freedom, and sought daily to shake off their subjection.
for instance, a person in England could be arrested was not allowed to know of what they were accused, nor who accused him, was given no help to prepare their defence, the state paid (pays) for their prosecution.
Sentence could be death, breaking of limbs, cutting out of tongue, pressing under weights, stretching on a wheel, putting out of eyes or hanging, drawing and quartering.
all semblance of justice basically disappeared
the assizes of Clarendon
Henry therefore founded various assizes, known respectively as the assize of novel disseisin, of mort d'ancestor, and of darrein presentment. The most popular one became the assize of novel disseisin, which in Law French meant something close to the "assize of recent dispossession". Those who had been recently put out of their lands could recover the beneficial use of them by resort to this assize, which led to a then innovative method of trial. Twelve "sword-girt" knights of the locality were summoned to determine, upon their own knowledge, who was entitled to the property. This innovative method of proceeding, the origin of the civil petit jury at common law, was aimed at the chaos introduced into property rights by crusade and civil war.
Henry's true measure of cleverness, though, is on display in his innovations in criminal justice. Henry appointed "justices in eyre," the counterpart of circuit judges, to travel from town to town. When they arrived, they too called upon "sword-girt knights" to summon twenty four free men from the surrounding areas. These twenty-four free men were the first grand jury. They were called to report under oath any accusations of crime they were aware of in the community. In theory, then as now, the grand jury only brought accusations; it did not find guilt or innocence.
This new assize did away with the old form of trial known as "compurgation" in accusations brought by the grand jury. Under compurgation, an accused person who swore he didn't do the crime, and who found a sufficient number of his neighbours to swear that they believed him, was acquitted. Compurgation was no longer available in charges brought by the grand jury.
The trial available to the defendant remained the traditional trial by ordeal. Nevertheless, Henry did not put much faith in the results of the ordeal. The unfortunate felon who was convicted through the ordeal was, of course, executed. But even if the indicted culprit was acquitted in the ordeal, he was banished. In other words, the proceedings by the grand jury were the actual trial; everyone it accused was punished, and the community rid of the malefactor, one way or another.
recourse to trial by combat was not officially rescinded until 1819.
Dialogue of the Exchequer
Had an influence throught therenaissance on the development of English law
This was also the law prevailing in the Irish towns, such as Galway