salmon spiral The Temple of Danann Main page The Old Religion of Ireland salmon spiral

 
The Brehon Law
by
Michael Ragan
© 1999


Part 1; Origins

Part 2; Law texts

Part 3; Clan and
social classes

Part 4; Women's Rights

Part 5; Professionals

Part 6; Land ownership
and use

Part 7; Property

Part 8; Legal tender

Part 9; Contracts

Part 10; Distraints
and fasting

Part 11; Summation
and appendix

Part 12; Glossary

divider Athgabál (distraint) provided the procedure whereby an individual could enforce a legal claim. It was a simple procedure of legal seizing of the property of another against whom you held claim and was the primary means of law enforcement. In post-Norman times, it became a primary target for English legislation as they battled to replace Irish Brehon Law with English Law and administration of justice by English courts. Laws were quite specific on how distraint could be initiated and conducted. The rules also provided severe penalties for illegal application or conduct of distraint. Since cattle and other livestock seemed to be the property most likely to be distrained, detailed laws specified how they should be kept and maintained. For example, cattle must be kept in a clean and well-fenced pasture. The person holding them is responsible for their maintenance and well-being. The cattle may not be mixed with other kinds of animal. Sick cattle may not be kept with well cattle, etc.
        The details of procedure must be closely followed. First, the plaintiff must give formal notice (this normally included reputable witnesses) of intent to impound property of the defendant. Then there is a delay of from one to five days to give the defendant time to respond. The length of the delay depended on the exact nature of the claimed violation.
       The defendant may end that matter at this point by simply paying whatever fine is due or otherwise filling his obligation. In some cases, obligation could be filled by making a pledge to indicate his willingness to settle the issue. If the defendant fails to take action during the delay period, the plaintiff can then legally distrain the property or cattle. However, distraint must take place in the morning hours with a law advocate in presence. In the case of cattle, they are then driven to a private field and the plaintiff is responsible for their care and maintenance.
  Once the property is impounded, another delay period is called for. The texts do not say just what the period was, but it is likely to have been similar to the first delay; that is one to five days. If the defendant has taken no action by the end of the second delay the final stage of distraint begins. This procedure is called lobad (decay). On the first day, a percentage of the livestock to the value of 5 sets are forfeit. On each subsequent day, livestock up to the value of 3 sets is forfeit until none remains. Once the animal is forfeit, it becomes the property of the plaintiff and the defendant cannot recover it. The defendant can at any time during this period can regain possession of all non-forfeited cattle by either paying or giving pledge for the balance of the amount owed. In this case, he must also pay an additional charge to cover the plaintiff's expenses in feeding the cattle while impounded. This method of restraint remained commonly in practice until at least the 8th century.

Fasting
If the defendant in a legal dispute was a Nemedh, the plaintiff is obviously in a more difficult position. Here the Brehon law provided for a procedure of fasting called troscud against those of high rank to pressure them into conceding. When someone fasted against a Nemedh, the latter must concede to justice (i.e. Admitting responsiblity or agreeing to arbitration) by appointing a surety or giving a pledge. If the defendant eats during the fast without having made any guarantee, he or she must pay twice the original amount owed. If the Nemedh holds against a justified and properly conducted fast, loses entitlement to be paid for offenses against him (or her) and thus loses his legal rights in society. The period of fasting is a somewhat cloudy issue. Some later texts indicate the fast was to be conducted from sunrise to sunset. The place where the complainant sat while fasting is also not clearly identified. Presumably, the fasting location would be in front of the defendant's abode in clear view of passers-by. Thereby calling the attention of the public to his plight.


 
return to Brehon Law

The Library