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Chaosium Digest Volume 20 Number 08
Chaosium Digest Volume 20, Number 8
Date: Monday, July 21, 1997
Number: 3 of 5
Contents:
Irish Brehon Law, Section One (Mike Maxwell) PENDRAGON
Editor's Note:
Mike Maxwell's Irish Brehon Law article is broken into four parts:
I. Irish Law and Society V20.8
II. Offenses V20.9
III. Resolving a Dispute "Out of Court" V20.10
IV. Legal Cases V20.10
--------------------
From: Mike Maxwell <mmaxwell@mbl.edu>
Subject: Irish Brehon Law, Section One
System: Pendragon
========================================================
Section 1, Copyright 1997 Mike Maxwell, mmaxwell@mbl.edu
========================================================
USING OLD IRISH "BREHON" LAW IN PENDRAGON
This is a guide to provide GMs with background material and some
simple rules for playing out old Irish law in Pendragon. I start with
a discussion of salient features of old Irish society, followed by
information on actual offenses and descriptions of the various methods
of resolving legal disputes. These methods include settling cases in
and out of court.
I attempt to stay consistent with _Pagan Shore_, Pendragon's
supplement for adventuring in Ireland. In a few places, however, I
note my disagreement with Pagan Shore's presentation of Irish law.
For the sake of readability, I avoid excessive use of legal terms and
Irish words. When writing Irish words, I denote long vowels by a
slash after the vowel (e.g., "a/").
This guide's format is loosely patterned after Fergus Kelly's
outstanding book "A Guide to Early Irish Law" (1988, Dublin Institute
for Advanced Studies). The presented material draws upon Kelly's book,
as well as Kim McCone's thoughtful _Pagan Past and Christian Present
in Early Irish Literature_ (1991, An Sagart, Kildare). Other sources
include Nerys Patterson's _Cattle-lords and Clansmen: Kinship and Rank
in Early Ireland_ (1991, Garland Publishing, New York), Eoin
MacNeill's _Celtic Ireland_ (1981 revised printing of the 1921
original, Academy Press, Dublin), Donnchadh O/ Corra/in's chapter
entitled "Prehistoric and Early Christian Ireland" in _The Oxford
History of Ireland_ (edited by R.F. Foster, 1989, Oxford University
Press), Gearo/id Mac Niocaill's _Ireland Before the Vikings_ (1972,
Gill and MacMillan, Dublin), and _The Celtic Realms_ by Myles Dillon
and Nora Chadwick (1973 reprinting of 1967 original, Sphere Books,
London).
I. Irish law and society
A. What is "brehon law"?
"Brehon" is the anglicization of the Old Irish brithem, meaning "maker
of judgements"; that is, a judge or arbitrator. Historically, the
brithem was clearly distinguished from the aigne, the professional
lawyer or barrister. In the 16th century, however, the term "brehon"
was used to refer to both the judge and the lawyer. _Pagan Shore_ uses
the Modern Irish "breitheamh", and I adopt this spelling throughout.
"Brehon law" refers collectively to Irish legal customs first written
down in the 7th and 8th centuries and preserved in manuscripts of the
14th to 16th centuries. In Pendragon, the E/rainn, Gaels, and Feudal
Irish employ breitheamhs and abide by their decisions. The Cruithni
are not listed in Pagan Shore's Character Generation section as having
breitheamhs among their ranks. I favor the inclusion of breitheamhs in
Cruithni tribes. Alternatively, a GM may wish to have Cruithni
chieftains subsume the duties of the breitheamh, or have Cruithni
tribes eschew formal cases and rely solely upon "out of court" methods
described in Section III. The Lochlannachs and British follow their
own judicial systems, though they also use "out of court" methods. In
particular, it seems appropriate to have Lochlannachs resort to duels
and to have British litigants appeal to the local lord.
Historically, brehon law was practiced until the Elizabethan Wars,
culminating in the Flight of the Earls in 1607. Thereafter, the lords
that had employed the legal families were banished, dispossessed, or
adopted English law. For the next two centuries, the law texts were
perused primarily by antiquarians. Translation of the texts into
English began in earnest with the appearance of the first volume of
_Ancient Laws of Ireland_ in 1865.
Over 70 legal texts are known to have existed, treating matters as
diverse as the structure of society to criminal offenses to
beekeeping. Most of these texts are translated in the _Ancient Laws of
Ireland_ (1865-1901) Vols. 1-5, although Kelly cautions that these
translations are often inaccurate. D.A. Binchy edited the _Corpus
Iuris Hibernici_ (1978) Vols. 1-6, a collection of the legal material
in the original Irish and Latin.
Roughly half of the law texts belong to the collection known as
Senchus Ma/r ("great tradition"). Traditionally, King Laoghaire mac
Niall summoned a commission to harmonize Irish native law with
Christianity in 438. The commission consisted of three rulers (headed
by Laoghaire), three bishops (headed by Saint Patrick), and three
poets (headed by Dubthach maccu Lugair). In actuality, the Senchus
Ma/r was most likely compiled in northern Brega (in The Pale),
possibly at the monastery of Slane (Sla/ine). Another important group
of texts, apart from the Senchus Ma/r, might have been produced in
Munster, at the monasteries of Cork (Corcach), Emly (Imlech Ibair),
and Cloyne (Clu/ain U/ama).
The law texts were presumably written by Ireland's legal
intelligentsia, which included those who actually practised law, the
judges and lawyers, as well as legal scholars and teachers. Opinions
differ on the social position and motivation of these authors. One
school of thought, represented by D.A. Binchy and Thomas
Charles-Edwards, argues that the authors were professional lay jurists
who preserved traditional law in the face of the encroachment of
Christian ideas and organization. Alternatively, scholars such as
Donnchadh O/ Corra/in, Liam Breatnach, and Kim McCone maintain that
the authors were tied closely to the Church, and integrated native law
with that prescribed in the Bible. In apparent support of this theory,
the law texts use the same spelling, script, punctuation,
abbreviations, and illuminated capitals as monastic writings. These
similarities, however, might reflect similar scholastic training
rather than professional affiliation.
Another question concerns the historical basis of brehon law. Some
have argued that the law texts are glimpses of pre-Christian social
codes, as they contain several customs, such as polygamy and
provisions for female inheritance of property, that are found in other
Indo-European societies. For many of these supposedly primal customs,
however, there are Biblical parallels, often even exact instances in
the Old Testament. This raises the possibility of Biblical influence
on the composition of the law texts. To be sure, the Irish authors
were not simply spouting dogma direct from the Church of Rome, as
secular and Church law differ on several important points. This is
seen with regard to the death penalty. In secular law, the death
penalty is only one alternative when a criminal cannot meet the
payment prescribed as punishment for his crime. In contrast, Church
law advocates execution as the only form of punishment for a wide
range of offenses.
B. Honor price.
A key concept running throughout the law texts is honor price (lo/g
n-enech, "the price of one's face"), given as "eineach" in _Pagan
Shore_. One's honor price is reckoned in calves and heifers for young
or poor men, and in dairy cows and slaves for independent farmers,
lords, and the learned class (aos da/na). Much attention is given to
compensating wronged parties in order to ensure that they do not lose
face. One receives his honor price for any major offense against him
(e.g., murder, satire, serious injury, refusal of hospitality), and a
fractional value for lesser offenses (e.g., minor injury, trespass by
a neighbor's animal, minor damage to property). Furthermore, one's
legal capacity is defined by honor price: honor price limits the
amount of a contract that one can enter into and quantifies the value
of one's oath and evidence. As a side note, a GM may wish to divide
the eineach values on page 54 of _Pagan Shore_ by three in order to
make these values more compatible with the law texts.
C. The tu/ath and the family.
As _Pagan Shore_ illustrates, Dark Age and medieval Ireland was dotted
with numerous tu/aths -- petty kingdoms or tribes. It has been
estimated that between the 5th and 12th centuries, 80 to 150 tu/aths
existed at any given time, each with roughly 3000 people. Each tu/ath
was headed by a "king" (ri/ tu/aithe), called "chieftain" in _Pagan
Shore_. Some kings ruled over several tu/aths; these were "overkings"
(ri/ tu/ath, ruiri). The provincial king (ri/ co/icid, ri/ ruirech) is
the highest king recognized in most law texts. The office of king of
Ireland (ri/ E/renn, ard ri/) figures prominently in the sagas, but
appears only infrequently in the law texts. The concept of a ruler of
all of Ireland (totius Scotiae regnator), however, does date to the
7th century "Life of Saint Columba."
One's legal rights typically do not extend beyond his native tu/ath.
Outsiders (ambue, "non-person") can be killed or injured with
impunity. In Pendragon, Cruithni and E/rainn tribes operate under
this worldview. One's king might make a treaty with another king,
thereby giving one some rights in the other tu/ath. In Pendragon, it
is appropriate to have Gael tribes recognize the legal rights of each
other's tribesmen, and the same goes for the Feudal Irish.
Historically, the learned class (aos da/na) were able to travel
freely, as poets, clergy, and lawyers enjoyed legal rights outside
their tu/aths.
The kin-group (fine) is the basis of Irish society. Indeed, each
tu/ath may be described as a confederation of kin-groups that
acknowledge a single king. Membership in the kin-group is determined
in various ways. A common division is the derbfine ("true kin"), which
includes all descendants through the male line of the same
great-grandfather. It is doubtful that members of a given derbfine
lived in the same dwelling or even on the same piece of land. Rather,
the derbfine was assessed for legal purposes, such as determining
inheritance rights. Relatives lived and worked in smaller divisions of
the family, such as the nuclear family (spouses and their children)
and possibly the gelfine (descendants of a common grandfather).
The kin-group collectively owns land (fintiu, "kin-land"), for which
every adult male has some degree of responsibility. Each heir works
his share of land with his wife (or wives), children, and possibly
servants and slaves. He is expected to individually provide for his
household, but the kin-group retains some economic control over
him. For example, he must first obtain their permission should he
desire to sell his land.
The kin-group is responsible for paying for the crimes and debts of
its members, as well as pursuing offenses against its members. The
head of the kin-group (cenn fine) is selected by his relatives by
virtue of his superior wealth, status, and wisdom. He represents his
kin to the tu/ath, speaking for them publicly at assemblies,
representing dependent kin in courts of law, and generally taking
responsibility for his kin's behavior.
Although the law texts place emphasis on paternal kin, maternal kin
also play a role, especially with regard to the children of a
marriage. The mother's kin can intervene if a child is being
improperly raised. Maternal kin are also entitled to a payment if the
child is illegally killed.
As for the woman's position in old Irish society, the law texts leave
women generally without independent legal capacity. Because my goal is
to present the legal texts as they are, the disparate rights of men
and women will become obvious to the reader. I leave it up to each GM
to interpret this source material. In the interest of gaming (and
modern sensibilities), GMs may wish to elevate the status of women in
society, affording them all rights available to men.
According to the law texts, a woman is under the dominion of a male
legal superior throughout her life: her father as a girl, her husband
as a wife, her sons as a widow, the Church as a nun, and her kin
otherwise. She generally cannot act as a witness in court and cannot
make a valid contract without the permission of her legal superior. In
some instances, though, women have legal capacity. For example, a
sonless man's daughter controls his land upon his death. The land
passes to her sons, or, if she does not marry, to her paternal kin.
Certain forms of marriage empower women with more legal clout than
others. If the marriage is of "joint property", where the husband and
wife bring equal amounts of property into the union, then the wife can
make some contracts independently of her husband (e.g., concerning the
running of the household and farm), and can dissolve a disadvantageous
contract that her husband makes with another. If the husband brings
less property into the marriage, then the wife can dissolve all of his
contracts and presumably retains her limited rights to make contracts.
If the wife brings less property into the marriage then she cannot
make any contracts without her husband's permission. If she is the
first wife, she can only dissolve disadvantageous contracts that her
husband enters. If she is a lower wife or concubine, she can only
dissolve disadvantageous contracts involving food, clothes, cattle, or
sheep.
Children are similarly without legal capacity. A child under 14 years
has no legal responsibility and cannot take independent legal action.
The child's eineach is half of his/her father's or guardian's; it
stays at this level as long as the dependent relationship remains.
The murder or injury of children under 7 years, however, commands the
same payment as that for a clergyman (i.e., 20-29 dairy cows), most
likely reflecting a humanitarian influence from the Church. Young men
between 14 and 20 years can make independent contracts and act as
witnesses. Their eineach is equal to three-quarters of their fathers';
they are entitled to the full amount of eineach for their social class
once they inherit land.
At 14 to 17, a girl is expected to become betrothed to a man or to
God. In the former case, her eineach is half of her husband's. In the
latter, her eineach is that of a nun, which I take to be half of a
monk's. In the law texts, women of skill or status, such as saints,
wrights, and physicians, have honor price based on their dignity and
possessions (i.e., more than half of their male superior's honor
price). Such women are the stuff of PCs, and GMs should assign them
eineach equal to their male counterparts. Furthermore, the mother of a
king, bishop, or ollaibh has the same eineach as her son; other
widowed mothers have eineach equal to half of their sons'.
D. Contracts, pledges, and sureties.
_Pagan Shore_ describes Irish society with the wonderful phrase
"anarchy governed by lawsuits" (page 51). To some extent, this was
true. The law texts stress what is to be done after an offense occurs.
Furthermore, tribes of pre-Norman Ireland generally lacked centralized
mechanisms to formulate laws, to police the populace, to pursue and
judge alleged criminals, or to administer justice. The king's role is
only generally described (i.e., suppress robbers, crush criminals,
prevent lawlessness), although he could issue ordinances in an
emergency such as plague or war.
Despite the veneer of loose government, the law texts extol the virtue
of adherence to the law. How, then, was lawful behavior encouraged and
enforced? Triad 200 answers this question with "the three rocks to
which lawful behavior is tied: monastery, lord, kin." A possible
interpretation of this is that the monastery provides spiritual and
moral guidance to the individual, obligations to one's lord ensure
that the individual remains an industrious member of society, and that
kin exert pressure to meet one's social and economic responsibilities.
Contracts between private parties put these obligations and
responsibilities in tangible terms. Indeed, the law texts view
contracts as vital to the functioning of society. One text says that
"the world is frenzied" during famine, war, and the dissolution of
contracts. Another holds that "law is founded on contracts and legal
recognition." Below, I describe contracts and the attendant
importance of pledges and sureties.
1. Contracts.
In a contract, one party agrees to confer some benefit upon another in
return for a counter-benefit. When making a contract, each party
swears an oath to uphold his end of the bargain, bound by a pledge or
surety (discussed below). Formal witnesses must be present to validate
the contract. Some examples of contracts are:
* Lord-client. The lord advances animals, land and/or equipment to the
client. The lord can also act as surety in the client's contracts, and
the lord is expected to deal justly with the client. In return, base
clients (serfs, betaghs) give the lord food-rent, winter-hospitality,
and services (e.g., manual labor, military). Base clients cannot make
contracts without the lord's permission, and the lord can dissolve
their contracts. Free clients (bo/ aire) give more food-rent than base
clients, as well as ritual homage at assembiles and some services. It
was common for clients, base or free, to serve a local church,
represented by an abbot, rather than a secular lord.
* Co-operative farming: two or more farmers of modest means pool their
resources in order to rig up a complete ploughing outfit (from the
texts, evidently one plough and four oxen) or to graze their livestock
together.
* Fosterage: a legal contract of fixed length, where the parents might
pay a fee to the fosterparents. The fosterparents are obligated to
maintain and educate the child in accordance with the child's social
rank.
* Neighbors: farmers might exchange pledges (e.g., tools or equipment)
to cover damage caused by animals. For example, each farmer gains
three years' immunity from damage caused by his animals. In the fourth
and fifth years, he gives his neighbor an animal. In the sixth year,
the pledged items are returned.
* Marriage: the groom pays a bride-price, and the bride may contribute
less than the groom's share, same as the groom, or more than the
groom.
* Church-laity. An implicit contract exists within each tu/ath, where
the Church must give good "considerations": devout monks, honest and
qualified clergy, services (i.e., baptism, communion, mass, requiem
for dead, preaching). The laity must give offerings, tithes, bequests,
first-fruits and obediance to the Church.
Contracts are typically verbal; indeed, the term for contract is cor
be/l, "putting of lips." Written contracts are rare in secular
affairs, although more common when the Church is involved. One cannot
enter a contract for an amount greater than his eineach; to do so, he
must get permission from his kin. Once the contract is made, each
party has until sunset to cancel; after this, the contract cannot be
rescinded. Due to concealed or unforeseen conditions, however, a
contract can be adjusted in court in order to bring about fairness
(e.g., rescinding the sale of defective silver). In such cases, the
aggrieved party must bring action within 10 days after discovering the
defect in the contract.
Some contracts are automatically invalid. These include contracts made
in fear, duress, ignorance, or drunkeness. Contracts made by minors
(i.e., below 14 years of age), lunatics, slaves, captives, outsiders,
or contracts involving stolen property are invalid as well.
Breaking a contract is breaking one's oath, and often involves the
loss of eineach. If one party suspects the other of breaking the
contract, then the aggrieved party may keep the pledged item (if any,
see below), appeal to the surety (if any, see below), or settle the
case in or out of court (Sections IV and III, respectively).
2. Pledges.
A pledge (gell) is an object of value delivered by its owner to
another for a fixed period. The pledged item is closely tied to its
owner's livelihood: a champion's weapon, an embroideress's needle, or
a king's gold, for example. Pledges are often exchanged when a
contract is made. The pledged items act as material "hostages" that
ensure that each party fulfills the agreed terms. The pledged items
are returned upon the successful conclusion of the contract. If one
party defaults, then the other party may keep the pledged item.
One can give a pledge on behalf of another, except for outsiders,
runaway slaves, those ejected from their kin, or for illegal
purposes. The donor gains interest while his item is in pledge. A
woman can pledge personal items such as clothes and tools, but not
animals or metals without her superior's permission.
3. Sureties.
A surety is an individual who, for a fee, guarantees that a party
involved in a contract will fulfill the terms of the contract. This is
a main mechanism to ensure the enforcement of contracts and loans. One
can act as a surety for an amount up to his eineach; two or more
people can act as joint-sureties.
The party for whom one gives surety is the "principal." The law texts
advocate caution when choosing a principal. One should not act as a
surety for one of too low status, as he might not have sufficient
capital to meet his obligations. On the other hand, one should not act
as a surety for one of too high status, as it may be difficult to
enforce the contract should the principal default.
When the other party suspects that the principal has not fulfilled the
contract, the other party can either attempt to settle out of court
(Section III), take the case to court (Section IV), or inform the
surety. If the surety does not think that the contract has been
broken, then he pledges an item to the other party as a sign that he
and the principal will let the court decide upon the status of the
contract (Section IV). The pledged item is returned to the surety upon
the conclusion of the case. If the surety agrees that the principal is
not fulfilling his obligations, then the surety has certain powers to
uphold the contract, described for the three types of sureties below.
* Paying-surety (ra/th). This surety charges one dairy cow to
guarantee, with his property, that the principal will fulfill the
contract. This kind of surety typically involves an enforcing-surety
as well (see below).
If the surety agrees that the principal is not fulfilling the
contract, then the surety pledges an item to the other party which
buys three days for the principal to pay up. If the principal pays the
owed amount plus one-third within the extra three days, then the
pledged item goes back to the surety and the principal pays the surety
half of the surety's eineach. If, however, the principal does not pay
within the three days, then the other party keeps the pledged item and
takes the owed amount plus one-third from the surety's property. The
principal must then pay the surety double the owed amount plus the
surety's eineach plus any expenses incurred by the surety. The surety
may distrain the principal's property to meet these fines (see Section
III.D on the procedure of distraint).
The surety loses eineach (i.e., eineach is reduced to 10 dairy cows)
if he does not take the above steps to fulfill a broken contract.
* Enforcing-surety (naidm). This surety charges two dairy cows to
stake his honor that the principal will fulfill the contract. Unlike
the paying-surety, the enforcing-surety has no financial liability
toward the other party. If the principal fails to fulfill the
contract, then the enforcing-surety loses eineach (i.e., eineach is
reduced to 10 dairy cows). With his honor at risk, the surety has a
wide range of powers to force a delinquent principal to fulfill the
contract, including the right to distrain the principal's property
(Section III.D) or to imprison or attack the principal. Often, two
enforcing-sureties act on each side of a contract, one to compel the
principal to fulfill the contract, and another to compel the
paying-surety to pay in the event of default.
_Pagan Shore_ includes this kind of surety under the name
"sla/nai/ocht" (page 55). This term is common in Middle and early
Modern Irish documents that refer to a tribesman's legal capacity to
confer protection from attack upon another. In the Old Irish law
texts, this protection is termed sna/dud.
* Hostage-surety (aitire). This surety charges three dairy cows to
guarantee the performance of the principal with his own person. If the
surety agrees that the principal is not fulfilling the contract, then
the surety surrenders himself to the other party for 10 days, during
which time the surety may be bound or chained. If the principal pays
the owed amount plus one-third within the 10 days, then the surety is
freed. The principal additionally pays the surety half of the surety's
eineach. If the principal does not pay within the 10 days, then the
surety becomes a captive (cimbid). The surety must be ransomed, either
by his kin or an outside party. Feudal characters should follow the
ransom values as given in Pendragon. Non-feudal characters have a
ransom of 7 cumals, the body-price (e/raic) of a freeman. The
principal must then pay double the owed amount to the other party. To
the surety, the principal pays the 7 cumals plus the surety's
eineach. The surety can distrain these amounts from the principal.
As with the paying-surety, the hostage-surety loses eineach (i.e.,
eineach is reduced to 10 dairy cows) if he evades his obligations.
The legal texts and annals also speak of hostages (gi/all), which are
different from hostage-sureties. A hostage was usually the son of a
subordinate king or lord that was taken by an overlord to ensure the
father's continued submission. Taking hostages was the mark of kings
(e.g., Niall Nine-Hostages), and the practice was amply used by Julius
Caesar in his Gallic campaigns. If the underlord flouts the authority
of the overlord, then the hostages are forfeited, and they might be
killed, blinded, or ransomed.
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End of Section 1, Copyright 1997 Mike Maxwell, mmaxwell@mbl.edu
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