Corpus of Electronic Texts Edition
The History of Ireland (Author: Geoffrey Keating)

Section 8


John Davies finds fault with the legal system of the country, because, as he thinks, there are three evil customs in it. The first custom of these is that the tanist takes precedence of the son of the lord of the soil. The second custom is the division which was made on, the land between brethren, which the Galls call gavalkind, where a subdivision of the land is made between the kinsmen. The third custom is to take eric for the slaying of man. My answer in this matter is, that there is not a country in the world in which a change is not made in statutes and customs, according as the condition of the, country alters. For, those customs were not sanctioned in the law of the land until the Irish had entered upon war and conflict between every two of their territories, so that they were usually slaying, harrying, and plundering each other: and as it was apparent to the nobles of Ireland, and to their ollavs, the damage which ensued from the disunion among the inhabitants, they deemed it expedient to ordain those three customs.

In the first place, they understood that the tanistry was suitable in order that there should be an efficient captain safeguarding the people of every district in Ireland, by defending their spoils and their goods for them. For, if it


were the son should be there, instead of the father, it might happen, occasionally, for the son to be in his minority, and so that he would not be capable of defending his own territory, and that detriment would result to the country from that circumstance. Neither was it possible to dispense with the second custom obtaining in Ireland at that time, that is to say, to have fraternal partnership in the land. For, the rent of the district would not equal the hire which would fall to the number of troops who would defend it: whereas, when the territory became divided among the associated brethren, the kinsman who had the least share of it would be as ready in its defence, to the best of his ability, as the tribal chief who was over them would be. No more was it possible to avoid having the eric established at this time: for, if any one slew a man then, he would find protection in the territory nearest to him, and since it was not in the power of the friends of him who was slain to exact vengeance or satisfaction from him who did the deed, they would sue his kin for the crime, as punishment on the slayer; and inasmuch as his kin had no privity of the slaying, it would not be lawful to shed their blood; nevertheless, a fine was imposed on them as punishment for him who had committed the crime, and I notice the same custom obtaining among the Galls now, where the kin-cogaish is adopted by them. Indeed, eric and kin-cogaish are alike; for cion and coir (i.e. a crime) are equal, and comghlas and gaol (i.e. kinship) are equal, and what kin-cogaish signifies is to exact a tax or payment in eric or honour-price for the hurt or the loss which anyone causes (though it be slaying or other evil deed), from his


friend, or from his kindred; and I perceive that the Galls keep up that system now, since the kin-cogaish is adopted by them. Wherefore, it is not honest in John Davies to find fault with the native jurisprudence because of it; and, as far as regards the other two customs, there was no way of doing without them in Ireland when they were appointed, and, therefore, the native law of the land, should not be censured on their account. For, though they are not suitable for Ireland now, they were necessary at the time they were established.

Camden says it is a system among the Irish for their nobles to have lawgivers, physicians, antiquaries, poets, and musicians, and for endowments to be bestowed on them, and also their persons, lands, and property to enjoy immunity. Here is what he says, speaking of them:—These princes (he says) have their own lawgivers, whom they call 'brehons', their historians for writing their actions, their physicians, their poets, whom they name 'bards', and their singing men, and land appointed to each one of these, and each of them dwelling on his own land, and, moreover, every one of them of a certain family apart; that is to say, the judges of one special tribe and surname, the antiquaries or historians of another tribe and surname, and so to each one from that out, they bring up their children and their kinsfolk, each one of them in his own art, and there are always successors of themselves in these arts. {Habent hi magnates suos iuridicos, quos vocant Brehonos, suos historicos, qui res gestas describunt, medicos, poetas, quos bardos vocant, et citharaedos, quibus singulis sua praedia assignata sunt, et singuli sunt in unoquoque territorio, et é certis et singulis familiis; scilicet, brehoni unius stirpis et nominis, historici alterius, et sic de coeteris, qui suos liberos sive cognatos in sua qualibet arte erudiunt, et semper successores habent.}’’


From these words of Camden it is clear that the order is good which the Irish had laid down for preserving these arts in Ireland from time to time. For they assigned professional lands to each tribe of them, in order that they might have sustenance for themselves for the cultivation of the arts, that poverty should not turn them away; and, moreover, it is the most proficient individual of one tribe or the other who would obtain the professorship of the prince of the land which he held; and it used to result from that that every one, of them would make his best efforts to be well versed in his own art in hope of obtaining the professorship in preference, to the rest of his tribe: and it is thus it is done beyond the sea now by many who go to obtain (college) chairs in consideration of their learning. It was all the more possible to preserve these arts, as the nobility of Ireland had appointed that the land, the persons and the property of the ollavs should enjoy security and protection; for when the native Irish and the foreigners would be contending with each other, they should not cause trouble or annoyance to the professors, or to the pupils who were with them for instruction, hindering them from cultivating the arts. It is read in Julius Caesar, in the sixth book of his history, that the 'druids' who came from the west of Europe to direct schools in France enjoyed a similar immunity, and I think that it was from Ireland they brought that custom with them.