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An introduction to Brehon law

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I’ve always been fascinated by the story of Anne Boleyn and her designated fiancé, James Butler, son of the Earl of Ormond in Ireland.

If only, I used to think when I was young and romantic, if only she had married handsome young James, (who later had six sons), and gone back to Ireland with him and ruled over his rich and fertile lands in the south east of Ireland. From an early age I was keen to find out as much as possible about the Butlers, and most excited to find out about a battle between James Butler’s father, Piers Rua Butler and one of my Mockler ancestors in County Tipperary.

Piers Rua Butler was a very interesting man, a pragmatist; one who made the most of both cultures: the English customs of his king, Henry VII and the Celtic traditions of his tenants and the landowners nearby. It is reported of him that he even used two laws: English law and the native Brehon law, ‘as, and when it suited him.’ In fact, as well as an English lawyer, Piers Rua employed no less than six Brehon lawyers, all from the same MacEgan legal family.

And so when I came to write the story of the first meeting between Anne Boleyn and James Butler, then a page to the powerful Cardinal Wolsey, I introduced as narrator, Brehon Hugh MacEgan and began the book like this:

‘At the time when the murder of Cardinal Wolsey’s instructor of the wards occurred in the hall of Hampton Court, I had been in the adjoining chamber penning the first draft of the marriage contract between James Butler the son of my employer, and Anne Boleyn, the younger daughter of Thomas Boleyn. It would, of course, be a preliminary, tentative outline. I knew that. The girl’s father would have something to say about it, Cardinal Wolsey would have something to say about it, even the king himself might be involved.’

But the marriage contract under Brehon law, as Hugh would outline it, would have been a very different contract to an English marriage contract of that era. For one thing, Anne Boleyn would have had a perfect right to divorce James and retain her ‘bride price’ if, according to Brehon Law:

‘If the man leaves her for another woman.
If the man is impotent or homosexual.
If he is so fat as to be incapable of intercourse.
If the man relates secrets of the marriage bed in the alehouse’

She would also, if he were the guilty party, have a right to half of his property. And like all women under this law system she could have been a doctor, a lawyer or even a blacksmith!

In fact, the ancient law of Ireland, known as Brehon Law, is sophisticated and complex, the result of many centuries of practice. It was in use in the Gaelic parts of Ireland (the west, north and some of the south) until the 17th century and is the oldest surviving law system in Europe. It is based on a notion of ‘keeping the peace between neighbours’ and so had no harsh or punitive sentences such as hanging or flogging, but a fine had to be paid by the guilty person, or by his clan, to compensate the injured individual. There were no prisons and the involvement of the clan in the payment of large fine would ensure that the offence was not repeated.

Originally these laws were handed down by word of mouth, passed from master to student in oral repetition, but from the seventh century onwards they were written. One of the most important written sources of the Brehon law is the manuscript Egerton 88, now in the British Library copied in the 16th century at the law school of Cahermacnaghten on the Burren, only a few miles from where I live. These law schools educated their pupils from the age of seven years right up to adulthood, to a very high standard, impressing one of Queen Elizabeth’s envoys who remarked that the young pupils spoke Latin as if it were their native tongue.

I found it very interesting in The Cardinal’s Court to introduce a Brehon lawyer and to have a sophisticated and highly educated man like Hugh MacEgan explain the complexities of Brehon law, how the judgements are arrived at and the fines allocated, to the members of Henry VIII’s court. And, of course, when the murder occurs and James Butler, the son of his employer, is accused, then this Brehon lawyer, Hugh MacEgan, makes an interesting and unusual person to unravel the crime and to find the guilty person.

By Cora Harrison

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