Early Irish Law - Decline of The Brehon Laws

Decline of The Brehon Laws

Following the Norman invasion, areas under Anglo-Norman control were subject to English law. One of the first changes came with the Synod of Cashel in 1172, which required single marriages to partners that were not closely related, and exempted clergy from paying their share of a family's eraic payments.

Henry II, who created the Lordship of Ireland, was also by chance a legal reformer within his empire, and started to centralize the administration of justice and abolish local customary laws. Strongbow was assigned large parts of Leinster in 1170 under the Brehon law by his new father-in-law Dermot McMurrough that were then regranted by Henry. Landowners such as the Earl of Kildare could claim a continuous title that just predated the Lordship itself.

In the centuries that followed, a cultural and military "Gaelic revival" eventually came to cover the larger portion of the island. The majority of Norman barons eventually adopted Irish culture and language, married in with the native Irish, and adopted Irish legal custom. By the 15th century, in the areas outside of the English controlled Pale around Dublin, and some notable areas of joint tradition in northern and eastern Munster, Brehon law became the de facto legal writ.

Nevertheless, the Brehon Laws could never be adopted on an official basis by the English-controlled government of the Lordship of Ireland, although some modernized concepts have been readopted in the laws of the Republic of Ireland. The imposition of the Statutes of Kilkenny in 1367 and the policy of Surrender and regrant effectively outlawed Brehon Law. In one exceptional case, vestigial rights have been recognised in recent Irish case law, in reference to the survival of Brehon law-governed customary local fishery rights in Tyrconnell, but these also amounted to an easement under Common Law.

The Tudor conquest of Ireland in the mid-16th century, ending in the Nine Years' War (1594–1603), caused Tanistry and Gavelkind, two cornerstones of the Brehon Laws, to be specifically outlawed in 1600. The extension of English law into Ulster became possible and led in part to the Flight of the Earls in 1607.

Elements of Brehon law operated in dwindling remnants in the Gaeltacht in the west of Ireland and in the Scottish Isles, notable on the isle of Lewis. On Lewis, the chiefs of the Morrison clan (earlier, Clann mhic Amhlaigh (Macaulays) of Uig in Lewis, and Sliochd a' Bhreitheimh, later Morrison) continued to hold office as hereditary brieves (Scots for bretheamh or brehon) or judges of the MacLeod clan of Lewis into the seventeenth century.

"... the location of the Morisons was at Ness,0 in Lewis, where the head of the Clan was Britheamh or Hereditary Judge long before Fifeshire colonists were heard of. It is not likely, as the late Captain Thomas put it, that any of the Brieves ever understood a word of English, and as the Scotch laws were never translated into Gaelic, it seems that the native or Brehon Laws must have been administered in this part of Scotland as late as the 17th century." (Dan Iain Ghobha: The poems of John Morison, cit. – Arch. Scot., Vol. V., p. 366.)::

The last Morrison to exercise the office was put down with Letter of Fire and Sword in about 1619 It is probable that it was last operative in Lewis by about 1595 or so. See the later history of Clan Morrison.