PROPERTY RIGHTS IN CELTIC IRISH LAW* JOSEPH R. PEDEN Department of History, Baruch College of the City University of New York "The laws which the Irish use are detestable to God and so contrary to all laws that they ought not to be called laws. ." Edward l of England (1277) "Leviathan in swaddling clothes" D. A. Binchy on the lrish TuoN, INTRODUCTION Scientific study of the Irish law tracts had to await the development of Celtic philology. It is impossible at the present time to present This was begun in the early 20th century through a systematic, coherent description of the the interest of the German Celticist Rudolph ancient Irish law of property. The reason Thurneysen, the English linguist Charles is that a considerable portion of the sources Plummer and the Irish historian Eoin Mac- have not been published in modern scien- Neill. These three undertook the first really tific textual editions and translations. The competent study of the difficult Old Irish texts, principal sources used repeatedly by historians and more importantly, they trained and en- in the 19th and early 20th centuries are the couraged younger scholars to pursue the very multi-volumed editions of the old Irish law difficult linguistic, historical and juristic studies tracts edited and translated by Eugene O'Curry which would prepare them for further study of and John O'Donovan and published posthu- the law tracts. mously by other editors between 1864 and 1901. Unfortunately, many historians not specializ- While both these pioneer scholars were compe- ing in the study of the ancient Irish law tracts tent in their understanding of Middle and early have been unaware of the textual inaccuracies Modern Irish, the language of the glosses and of the O'Curry - O'Donovan translations and commentaries, neither was able to cope too have continued to incorporate their older un- successfully with the archaic and very technical scientific work, and that of their editors, into terminology of the Early lrish texts of the law- their own work. For example, one of the most the oldest and most valuable strata for under- commonly cited sources for early Irish history standing Irish legal concepts and principles. is Patrick Joyce's A Social History of Ancient The later editors of the O'Curry. - O'Donovan Ireland, first published in 1906 and republished transcriptions and translation were, with one in 1913 and again as late as 1968. This work exception, almost wholly ignorant of the Irish is notoriously inaccurate; it has no sense of the language, and the result was that their footnotes fact that a chronology of at least 1000 years is were misleading and inaccurate, their intro- being covered during which some changes in ductory essays teemed with misinterpretations, social and legal institutions took place. Joyce's and the printed texts themselves were full of book was used between 1914 - 1918 when the glaring errors.[ll great French historian P. Boissonade was pre- paring his epochal history of social life and This paper was given at a symposium on "The Origins and work in medieval Europe. Thus Boissonade Development of Property Rights" sponsored by the Institute for Humane Studies at the University of San Francisco, speaks of "the soil of Ireland (belonging) to 17-20January, 1973. 184 tribes or clans. .the clans held the land in 82 JOSEPH R. PEDEN common. .no man held individual property philological and historical standards of criti- save his household goods, and each held only cism to the ancient Irish law tracts. the right of usufruct over his strip of tribal My survey of the literature indicaies that domain. in each district of Ireland the free (1) private ownership of property played a population lived communistically in immense crucial and essential role in the legal and social' wooden buildings . they lived and fed in institutions of ancient Irish society; (2) that the common, seated on long benches, and all the Irish law as developed by the professional families of the district slept there upon beds jurists-the brehons-outside the institutions of reeds. .". One can see immediately that the of the State, was able to evolve an extremely writer is using the words "tribe", "clan", sophisticated and flexible legal respqnse to "tribal domain", "district" and "population': changing social and cultural conditions while equivocally, leading to great confusion. Almost preserving principles of equity and the pro- every part of this passage is incorrect or very tection of property rights; (3) that this flexibility misleading.[3] and development can be best seen in the develop- We might ignore Boissonade's errors except ment of the legal capacity and rights of women they are typical of many other secondary and in the role of the Church in assimilating to sources including the Cambridge Economic native Irish institutions and law; (4) that the History, whose editor Eileen Power, incidentally, English invasion, conquest and colonization in translated Boissonade's work into English in Ireland resulted in the gradual imposition of 1927. Worse yet, this translation was reprinted English feudal concepts and common law which as a Harper Torchbook in 1964 and circulates were incompatible with the principles of Irish widely in American colleges, perpetuating law, and resulted in the wholesale destruction errors dating back more than 60 years. of the property rights of the Irish Church and Even when native Irish authors like lawyer the lrish people. Daniel Coghlan attempted to write a systematic description of land law under the ancient law tracts, his work was described by a scholarly Irish law is almost wholly the produet of a reviewer as "inaccurate and unreliable, of little professional class of jurists called brithim or ~alue''.[~1Despite nearly 50 years of persistent brehons. Originally the Druids and later the and rewarding scientific study of the Irish law filid or poets were the keepers of the law, but tracts by professionally competent philologists by historic times jurisprudence was the profes- and jurist-historians, a recent historical work sional specialization of the brehons who often appeared which ignores all that has been pub- were members of hereditary brehonic families lished on the'problem of Iristi land law in the and enjoyed a social and legal status just below ancient law tracts, and in a chapter entitled that of the kings. The brehons survived among "Celtic Communism" repeats all the inaccura- the native lrish until the very end of a free Irish cies of Joyce[Sl society in the early 17th century. They were Under these circumstances, conscious of my particularly marked for persecution, along with own lack of knowledge of the Irish language, the poets and historians, by the English authori- and keenly aware of the shoals that await the ties. The statutes of Kilkenny (1366) specifically historian who is not expert in this highly forbade the English from resorting to the specialized field of study, I have deliberately brehon's law, but they were still being mentioned avoided all reliance upon authorities who are in English documents of the early 17th ceniury.l61 no! themselves trained in Irish language and The absence from the function of law-making history. 1 am not presenting a coherent syste- of the Irish kings may seem startling. But Irish matic review of the lrish law of property; I am kings were not legisiators nor were they normally presenting a review of what the most compe- involved in the adjudication of disputes unless tent Irish scholars of the last half century have requested to do so by the litigants. A king was discovered since they applied modern scientific not a sovereign; he himself could be sued and a PROPERTY RIGHTS IN CELTIC IRISH LAW 83 special brehon was assigned to hear cases to are recognizably Irish in character, they do which the king was a party. He was subject to reflect local, perhaps regional differences; if the law as any other freeman. The Irish polity, the evidence were fuller, several local schools the tuath, was, one distinguished modem scholar might be identified. As of now it appears that put it, "the state in swaddling clothes". It exis- a northern and a southern regional affinity ted only in "embryo". "There was no legis- can be detected. The fact that in later historical lature, no bailiffs or police, no public enforce- times certain families of brehons were associated ment of justice . there was no trace of State- with specific tuatha or regions suggests that local administered justice". Certain mythological variations in specific procedures and penalties kings like Cormac mac Airt were reputed to be were almost inevitable. But from the tenth Iawgivms and judges, but turn out to be euheme- century, the legal fiction arose that the lrish law rized Celtic deities. When the kings appear in the was a unity and all contradictions were to be enforcement of justice, they do so through the explained away by the commentaries. The system of suretyship which was utilized to multiple and competing law systems of the early guarantee the enforcement of contracts and the period were now subjected to homogenization decisions of the brehon's courts. Or they appear to produce what was considered to be a uni- as representatives of the assembly of freemen to form law for the whole island. And this fiction, contract on their behalf with other fuafha or like the equally unhistorical claim that there churchmen. Irish law is essentially brehon's was a single High-King of Ireland-the King law-and the absence of the State in its creation asseeiated with Tara-retained its hold on and development is one of the chief reasons for historians down to the application of modern its importance as an object of our scrutiny.171 textual criticism in the 20th cent~ry.[~l The bulk of the lrish law tracts were com- The conversion of the Irish to Christianity mitted to writing in the late seventh and early begun in the fifth century was bound to affect eighth centuries, and though influenced some- profoundly Irish life and institutions.