Irish ways and Irish laws

This year marks the 850th anniversary of the Norman invasion of Ireland. James Meighan considers the Brehon legal system that was in place before the invasion and discusses its common law replacement.

In 1167, Diarmait Mac Murchada sought the English King Henry II’s help against the High King of Ireland, Ruaidhrí Ua Conchobhair, who had deposed Mac Murchada as king of Leinster in 1167.

On 1 May 1169, Mac Murchada, assisted by Norman mercenaries, launched an invasion to regain his throne at Wexford. The Second Earl of Pembroke, Richard de Clare (Strongbow), who had been promised to succeed Mac Murchada as king of Leinster, landed in Ireland in August 1170.

De Clare assisted Mac Murchada in the task of taking control in Ireland, until Mac Murchada’s death in May 1171. In October that year, Henry II landed with a large army and consolidated Norman control of Ireland.

The Norman conquest of England had occurred in 1066, which saw the Duke of Normandy, the future King William (the Conqueror), defeat the House of Wessex to take control of England. It would be 113 years before King Henry II (the first Angevin king) would invade Ireland.

Four green fields

Before the Norman invasion of Ireland, the Irish operated a unique legal system, sophisticated by contemporary standards, and quite unique from other legal systems in operation in Europe during the period.

The Brehon legal system, as it was known, was operated by the ruling tribes or chiefs. The word ‘Brehon’ derived from the old Irish word brithemain, meaning judge or jurist, and was based upon custom.

The legal system was administrated by judges known as Brehons. The origin of the system is unclear. However, it is evident from the early manuscripts and language used in texts during the period that a version of the Brehon system was in place in Celtic times.

Experts in early Irish legal history argue that many of the essentials of the early Irish legal system go back at least as far as the ‘Common Celtic period’ (circa 1000 BC). The Brehons were the descendants of the fili (member of an elite class of poets in Ireland), who were the poets or historians of the druids.

The system of law was developed from customs that were passed down orally from one generation to the next. There was a formalisation of the laws in the seventh century, when details of the laws were first reduced to writing.

The Brehon system was progressive, in that a number of law schools were established where jurists were trained in Brehon law and learned the rules and legal principles of the Brehon legal system. The system divided Ireland into approximately 50 different local jurisdictions or túath.

While the Brehons exercised judicial functions, in the exercise of those functions, they were more like arbitrators than judges. The sources of law of the Brehon system was legislation (legal rules and principles, canon law and certain ordinances of kings) and case law.

While the principle of stare decisis was not rigidly adhered to, the Brehons did regularly hear similar cases, which led to a loose adherence to the principle of precedents.

The Brehon system was progressive, in that it recognised divorce, certain limited protections for the environment, and equal rights between the genders. The criminal jurisdiction called for restitution rather than punishment – for example, homicide and bodily injury were punishable by means of a fine, all of which were determined by a standard scale.

The legal system did not afford all the entitlement to access to the law – it was based on the class system in operation at the time.

The system placed restrictions on parties entering into contracts. If a party could not meet their potential obligations under a particular contract, either as a party or a surety, that person was prohibited from entering such a contract.

The class system also played a role in the punishment for breach of the rules. If an offence was committed upon a person of high rank, the punishment would be far more severe than an offence committed on a lower-ranking person.

The law of evidence in operation under the Brehon system automatically favoured persons of higher rank – such a person's evidence on oath outweighed the evidence of a lower-ranking person.

One major distinction between the Brehon system and that of the common law was on the area of enforcement. The Brehon system was largely self-enforcing – there was no police system in existence to enforce the judgments or rulings of the Brehons.

While, in the main, no enforcement apparatus was required, there were situations where adherence was not complied with. In these situations, enforcement was handled by the ordinary people and, if required, occasionally a lord might be asked to assist.

Irrespective of the nature of the wrong – civil or criminal – as there was no penal system in place, the judgments of the Brehons ordered the payment of compensation. If the defendant failed to comply with the judgment, the successful plaintiff could seize the property of the wrongdoer (known as ‘distraint’).

The plaintiff could undertake a fast or hunger strike outside the house of the defendant (and if the defendant ate during the plaintiff’s fast, he was required to pay double the original judgment amount, known as troscud), or, the most serious of all, the plaintiff could verbally assault the defendant: if compensation went unpaid, the plaintiff could satirise the wrongdoer, which was seen as a challenge to the defendant’s honour.

Tabhair dom do lámh

Setting the stage for the Norman Invasion of Ireland, Pope Adrian IV (the only Englishman to ever serve as pope) issued the Papal Bull Laudabiliter in 1155.

The document supposedly (no copy remains in existence) commissioned King Henry II to intervene in Ireland to assist in the reform of the governance of the Irish church and the Irish system of governance according to the Roman (Latin Rite) ecclesiastical system.

Both Mac Murchada’s request for assistance and Laudabiliter were King Henry II’s justification for the invasion.

At the Council of Curia Regis (or King’s Council) in Waterford in 1171, Henry declared “the laws of England were by all freely received and confirmed”. In 1172, Henry appointed the first Justiciar of Ireland, Hugh de Lacy (chief governor of Ireland).

The Treaty of Windsor was signed in 1175 between Henry and the High King of Ireland, Ruaidhrí Ua Conchobair. The treaty divided Ireland into two sections, one to be controlled by Conchobair and the other by Henry. By 1177, the treaty had broken down, for failure to comply with the treaty by both sides.

In 1204, King John (the king who conceded the Magna Carta) authorised the issue of writs directing that Irish courts apply the common law.

In 1366, the Statute of Kilkenny sought to reconfirm the supremacy of the English parliament over the Irish parliament. Poynings’ Law, as passed in 1494, provided that if the Irish wished to hold parliament, the king’s consent was first required, and that all proposed statutes passed by the Irish parliament be approved by the king.

Only our rivers

The development of the common law in Ireland was a slow process. There were a number of reasons for its slow development; primary among these was the fact that the common law was still bedding down in England.

It wasn’t until after the Norman Conquest of 1066 that it began to take hold in a structured manner. Also, with the passage of time, some of the invaders who had settled in Ireland saw no particular reason to extinguish the Brehon system in favour of common law.

However, the Tudors under Henry VIII sought to replace the Brehon system following his break with the Catholic Church and the dissolution of the monasteries.

The Treaty of Mellifont of 4 April 1603 officially finalised the Tudor conquest of Ireland. And while Laudabiliter commissioned King Henry II to reform the Irish institutions, the Brehon system and common law coexisted for almost 500 years until two seminal cases finally rejected the Brehon system in favour of the common law, specifically Gavelkind (1605) Dav 49 and Tanistry (1607) Dav 28.

The accession of the common law as supreme was completed with the Supreme Court of Judicature Act (Ireland) 1877, which amalgamated the previous separate courts of common law and equity.

Sí bheag, sí mhór

Over the centuries, generations have pinpointed 1169 as the starting point of the English influence in Ireland and the loss of the Irish identity. However, this is not a view that is shared by all.

Historian Goddard Henry Orpen, writing extensively on the period, stated: “There has been a strong tendency among Irish writers to assume that nothing but evil resulted to Ireland from the Norman invasion.

An independent study of the primary sources of the period, however, has led me to think that the results which followed the coming of the Normans were, on the whole, distinctly beneficial to Ireland.”

Orpen argues that one of the most beneficial structures introduced by the English was the common law.

It is interesting to note the recent comments of Mr Justice Gerard Hogan on the future of the common law system in this jurisdiction, post-Brexit. Mr Justice Hogan said that Brexit could tear Ireland away from the common law system. If this did come to pass, we would move closer to the civil law system operating in the majority of states in the European Union.

The primary objective of Laudabiliter was the reform and modernisation of Ireland. The English invaded Ireland in 1169, and the common law English legal structure did not become the justice system in Ireland for 436 years – a considerable delay, even by modern standards!