Sub-Section 4.—The Brehons
From The Brehon Laws by Laurence Ginnell, 1894
EGINNING at the point where all three qualities were possessed and all three functions discharged by one man, the functions had expanded and become differentiated until they formed three separate professions, followed by three distinct classes of men—Druids, Bards, and Brehons—this last being the newest class in the order of development. So long as this development proceeded, the legal profession was perfectly open to every one who chose to study the law. A druid, or a bard, or a man who was neither, was perfectly free on qualifying himself to become a brehon. It is now impossible to fix the date at which this development was complete, and the brehons stood recognised as a professional class apart from druids and bards. It was probably complete in the first century of the Christian era, certainly while Ireland was still wholly pagan; and there can be no doubt that it was a distinct advantage to the people and to the nation.
Later on a further change occurred (for it can hardly be called a development), namely, the legal profession, in common with most professions, arts and callings, became to a large extent hereditary, not by force of law, but by force of custom, and in obedience to a general tendency of the times. There never was a law in Ireland actually making any profession or calling hereditary, or imposing any restriction whatever on the natural right to learn and practise what one pleased. The tendency was spontaneous, or due to some general cause. In our view it was a backward tendency. But that proves nothing. The same may be said of many movements far more modern. Our desire is to see, so far as we can, our ancestors as they really were, not to make them fit into theories of what they should have been.
Whatever may have been the prevailing force in making callings become hereditary, no doubt it was materially assisted by the custom of rewarding distinguished merit, and the performance of public duties, with gifts of free land. This is a species of reward not unknown in modern times; but it was obviously more convenient in ancient times when there was little or no money with which to reward men. Men occupying official positions, from the king downwards, were provided with free lands. Many of those positions were attainable only by careful training and marked ability of the kind required. Bards, brehons, and other public officers, men distinguished in the healing and other arts, and in the handicrafts most important for the well-being and security of the community, were similarly provided for. A man having once acquired land in this way would have a strong motive for transmitting his profession to his children, since it was only by doing so he could transmit the land to them; in addition to which, his own was the particular branch of knowledge which he could transmit, and they learn with least trouble and least expense. Here was a two-fold motive for making both the profession and the land attached to it hereditary.
In the case of the brehon's office this powerful cause did not operate alone. There were attached to the office manuscripts, in those early times of great value as legal documents, and perhaps still more precious privately as family heirlooms, the preservation of which, after his death, was an object of the most intense solicitude to every brehon worthy of the name. It was but human that a brehon should desire to entrust to his own offspring a charge so sacred, and but human that they, for his sake and for its own intrinsic value, should bestow more care upon such a trust than could be expected from strangers. In respect of the preservation of documents, and perhaps in other respects also, we of later times are much indebted to the hereditary custom, however that custom may in practice have militated against efficiency.
Still, although these causes must have acted powerfully, the office of brehon may, in obedience to the general tendency of the time, have become hereditary in cases where they did not exist. There were at all times non-official brehons, who were not attached to any clan and who held no land as a reward, but lived independently by their profession, and yet in these cases also the profession became hereditary.
Nor does the fact of having become hereditary appear to have led to the degradation and abuse which might be expected from it in our time, nor to have rendered the office of brehon more easily accessible than before. The essential standard of knowledge was in no degree lowered. The preparatory course of study continued to extend to twenty years. And of course the moral and other requirements were in no degree relaxed. Success as a brehon waited upon ability alone, and failure was attended by so many risks that the profession offered no attraction for unqualified persons. The brehons, like the old Saxon judges, but unlike modern judges, were always liable to damages, disgrace, and other grave punishments if their judgments were illegal or unjust.
The law says, "No person is qualified to plead a cause in the high court unless he is skilled in every department of legal science." There were several classes of advocates or pleaders, corresponding, perhaps, to Queen's Counsel and Barristers of the present day. There were, besides these, professional lawyers of an inferior class somewhat analogous to solicitors. It has been stated that one uniform course of study was required, no matter what branch of law a man intended to follow; that having gone through that course he might become a brehon, an ollamh, an advocate, or a law-agent, according to his personal predilection, ability, and prospects of practice. In my opinion, this is correct only pro tanto. The course may have begun with the duties of the law-agent, proceeding upward in succeeding years until at the end of the brehon's term it included all branches of law, and it may have been the same so far as the other gentlemen pursued it; but the brehon alone pursued it exhaustively, and devoted twenty years of his life to that task. There were, however, various distinctions between brehons and advocates, and among the brehons themselves, which are so difficult to follow that modern writers are not at all agreed about them. In a society wholly different from ours in its elements and construction those distinctions must have been made on principles different from any now operating. It does not follow that they were not proper distinctions. Our embarrassment is not necessarily due to defect in those laws, but to our ignorance of them, to our want of some missing link, perhaps many missing links, in their consequential chain.
Each king, and each chief who was sufficiently powerful, maintained a brehon, who was in a sense the brehon of the territory. But the law did not require this if there was an unofficial brehon in the district. The brehonship was rather a profession than a state department. The judicial institutions were not strictly permanent with a regular order of succession maintained systematically as men dropped off, and wielding power given and sustained by the state, as we now see. When an official brehon had died or ceased to act, unless there were cases pending, or somebody sought his office with the land that might have attached to it, there was no immediate reason for appointing a successor; and with regard to non-official brehons, when they were removed by death or otherwise they can hardly be said to have successors at all, or if so said it was Nature supplied them in her own good time. The scope of a brehon's jurisdiction is not laid down in the law, simply because no brehon had exclusive jurisdiction anywhere, whether he was provided with free land or not, whether his office had become hereditary or not. The jurisdiction of official and of non-official brehon alike was generally determined by the suitors. A defendant should consent to have the case raised against him tried by some brehon, or else judgment would go against him by default. With this limitation the jurisdiction was purely consensual; the parties were free to settle their case in private or to submit it to any brehon they pleased. Of the brehons within reach, if more than one, suitors displayed a preference for one beyond the rest, and probably as a rule their choice was determined by his superior aptitude in unravelling knotty problems and giving decisions consonant with justice.
Thus the brehon's position resembled that of an eminent Roman jurisprudens, whose opinion was eagerly sought and paid for by people in legal difficulties. He heard the case, gave it the necessary consideration, and pronounced a decision in accordance with law and justice. This decision, though called a judgment, and eminently entitled to that name, was not precisely what the word judgment means with us. It was rather a declaration of law and justice as applied to the facts before him, rather an award founded in each particular case on a submission to arbitration. There was no public officer whose duty is was to enforce the judgment when given. The successful party was left to execute it himself. In doing this he was assisted by the inherent equity of the particular judgment itself, by the force of an immemorial law universally obeyed, by public opinion informed by the generally prevalent love of justice, by the defendant's knowledge that delay, evasion, or resistance would be futile, would disgrace him and increase the penalty, and, above all, by that self-adjusting network of duties and obligations, involved in, and enforced by, the clan system. These combined forces went far to render executive officers of the law, as sheriffs, bailiffs, and police, unnecessary. They were practically irresistible, for they could go the length of outlawing a man and rendering his life and all he possessed worthless to him if he dared to withstand the execution of what a brehon had declared to be the demands of law and justice. They were quite as effectual as is what we now call the arm of the law, notwithstanding John Austin's theory, that there can be no law except it be the command of a sovereign.
There were certain cases which a brehon provided with free land should hear and determine without payment. Beyond these cases, the official brehon and every other who tried a case were entitled to be paid by the unsuccessful litigant certain fees, which were fixed by the law according to the nature of the cases, the trouble they entailed, and, in civil cases, the amount of property involved. The amount of the fee was a matter of calculation, according to certain well-known rules, and it was always included in the total amount to be paid under the judgment by the unsuccessful party. In criminal cases one-twelfth of the beaten party's honour-price was the fee to be paid to the brehon. If the person charged was found guilty he should pay this in addition to any other fine imposed: if the accuser failed to sustain his charge he had, if so sentenced, to pay the judge in addition to compensating the accused, and there was no occasion as now for a second trial.
When one brehon had adjudicated on a matter submitted to him, there could be no appeal to another brehon of the same rank; but there might be an appeal to a higher court, provided the appellant gave security. The grounds of appeal most frequently noticed are "sudden judgments," meaning probably those given without due consideration. If the facts of a case had undergone a material change after trial and judgment, as if the defendant in a criminal case had been tried and fined for assault, and after the judgment the person assaulted had died, a new trial might be had. In giving judgment in this second trial the judge would, of course, have regard to what was done under the first judgment.