Timetable of Legal History logoThe Brehon Code or Codes, or even the Brehron Laws, are the earliest reported Irish laws. Another name for them was Fenechas.

 

Much of the history of the Behron Codes is conjecture and circumstantial reconstruction as in any event, they were originally collected orally and passed on from generation to generation by word of mouth.

Since the demise of the Brehon codes as the English law gradually overwhelmed the island, original documents exists on a variety of places but have never been fully pieced together. Three Irishmen, Duald MacFirbis (1585-1670), Eugene O'Curry (1796-1862) and John O'Donovan (1806-1861) pieced together large segments in different times including the mother of Brehon law, a document called Seanchus Mór (aka Shanahus More), believed to have been published in 438.

In the result, though called a code, the Brehon Code is not so much a code as it is a piecemeal collection of judge-made law which was, from time to time, codified.

One Brehon law example is the ancient copyright case from 561 involving two monks.  The monk Finnen said that another, Colmcille, had copied his illustrated Latin Bible.  The local king sat as a Brehon and considered the facts and applied the common sense of Brehon law and stated:

"To every cow her young cow, that is, her calf, and to every book its transcript. And therefore to Finnen belongeth the book thou hast written, O Colmcille."

The Brehon Laws were thought to have been drafted by or under the patronage of the literate Cormac Mac Art (227-266). The law code became knonwn as Brehon Code or Brehon Laws, the term derived from Brehon, those versed in local and oral customs and laws, and who acted as judges to their peers in legal matters. Pictured bellow is one such outdoor chair made of stone and entitled Brehon Chair at Finvarra, on the coast of Ireland, and upon which sat a Brehon hearing cases and rendering judgment.

The Brehons began to write down their judgments, to the extent that they were literate or had access to persons and material necessary to put these judgments down in writing.

Cormac is credited by some historians (eg. Joyce) as having compiled some of those law books himself.

Cormac Mac Art's work was enhanced by another compendium of Brehon Laws undertaken by a Committee of Nine presided over by St. Patrick, in 438.

It was not until about 700 that they were written down into a code. But this state of affairs makes it impossible to sort out the changes made during the writing-down from the original laws. Further, because it was primarily priests that served as scribes, quite a bit of canon law was integrated into the early written versions which may not have been extant in the earlier oral versions.

Brehon's Chair at FinvarraEven the date is controversial: some authors, such as Kynlee, dating the laws to the "third century BC" whereas others date it to the time of the Irish King Cormac Mac Art; although even this king's existence is a matter of controversy.

Historical legal artifacts point to the Brehon Code as holding influence not only in Ireland but also in Wales.

The Irish Cultural Society writes:

"These ancient Irish laws have come to be called the Brehon Laws from the Irish term Brehon which was applied to the official lawgiver. They were transmitted orally and with extreme accuracy from generation to generation by a special class of professional jurists called Brithem (judge in early Gaelic). These laws are of great antiquity.

 

"While the Brehon administered the law, the aggregate wisdom of nine leading representatives was necessary to originate a law or to abolish it. The nine needed for the making of a law were the chief, poet, historian, landowner, bishop, professor of literature, professor of law, a noble, and a lay vicar.

"The king himself was bound by law to do justice to his meanest subject.

"A king carrying building material to his castle had the same and only the same claim for right of way as the miller carrying material to build his mill; the poorest man in the land could compel payment of a debt from a noble or could levy a distress upon the king himself; the man who stole the needle of a poor embroidery woman was compelled to pay a far higher fine than the man who stole the queen's needle.

"The bishop, king, chief poet, and public hospitaller (person who owned and operated guest houses for no fee) were in the same rank and a like fine or honor price was payable for the killing of any of the four. The Irish law expected most from those who had received the most from God. For example, a member of the clergy might be fined double that of a lay person for the same offense."

According to the Brehon Code:

  • Teachers were revered and were expected to provide "instruction without reservation, correctness without harshness".
  • Women were held on an equal footing as men, and eligible for the highest professions including as warriors, priestesses and judges, such as Bridget Bretha. At marriage, women were partners with their husbands, and not the property of the latter.

Of the softness of the Brehon Code, the Englishman Sir John Davies wrote:

"For whereas by the just and honourable law of England, and by the laws of all other well-governed kingdoms and commonwealths, murder, manslaughter, rape, robbery and theft are punished with death; by the Irish custom, or Brehon law, the highest of these offences was punished only by fine, which they call an erick."

In 1368, the Brehon laws were outlawed by the English occupants of Ireland. The Statute of Kilkenny used these words:

"... no Englishman be governed in the termination of their disputes by ... Brehon law, which reasonably ought not to, be called law, being a bad custom ... and if any do to the contrary, and thereof be attainted, he shall be taken and imprisoned and adjudged as a traitor ..."

Although most of the Statute of Kilkenny was routinely ignored by the Irish, it was by that date that the Brehon Code began to show clear signs of being replaced by the British common law system, a slow process which is now complete.

REFERENCES:

  • Connolly, S. J., The Oxford Companion to Irish History (Oxford: University Press, 2002), pages 60-62 and 320-321.
  • D'Alton, E. A., History of Ireland (Dublin: Gresham Publishing, 1912), pages 20, 28-31 and 60-62.
  • Duhaime, Lloyd, 561: The Copyright War
  • Duhaime, Lloyd, 1367: The Statute of Kilkenny
  • Duhaime, Lloyd, Legal Definition of Brehon
  • Ginnell, L., The Brehon Laws: A Legal Handbook (Colorado: Rothman & Co., 1993)
  • Gwynn, S., The History of Ireland (London: Macmillan and Co., 1924), pages 11, 40-41, 116, 121, 134-135, 193, 214 and 262-265.
  • Hayden, M. and Moonan, G., A Short History of the Irish People (Dublin: Talbot Press Limited, 1921), pages 53, 60-62, 165 and 395.
  • Irish Cultural Society
  • Joyce, P. W., A Concise History of Ireland (London: Longmans, Green and Co., 1905), pages 46-49, 61, 74, 78 and 165-168.
  • Kynell, Kurt, Saxon and Medieval Antecedents of the English Common Law (Wales: Edwin Mellen Press, 2000), page 85.