Chaosium Digest Volume 20, Number 10
Date: Monday, July 21, 1997
Number: 5 of 5

Contents:

Irish brehon Law, Sections 3 & 4	(Mike Maxwell)		PENDRAGON

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From: Mike Maxwell <mmaxwell@mbl.edu>
Subject: Irish Brehon Law, Sections 3 & 4
System: Pendragon

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Sections 3 and 4, Copyright 1997 Mike Maxwell, mmaxwell@mbl.edu
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III. Resolving a dispute "out of court"

An individual may wish to settle a dispute by one of several methods
out of court. These methods carry the advantages of quick justice and
the avoidance of legal fees, except in the case of distraint (section
D, below). On the other hand, the guilty party does not lose eineach
by these methods -- loss of eineach for an offense only occurs upon
the public announcement of the decision of a court case.
 
A. Appeal to surety.

When one party suspects the other of not fulfilling a contract, then
the aggrieved party may state his case to the delinquent party's
surety.  The surety must then either act to ensure that the contract
is honored (described in Section I.D.3) or pledge to submit to a legal
case.

B. Diplomacy between families.

A common method of conflict resolution is for the wronged individual
to inform the head of his kin-group of his problem.  The head kinsman
then meets with the head of the culprit's kin, and the two families
set about hammering out a settlement. This meeting may be a relaxed
affair between friendly families, or may turn into a brawl between
antagonistic families. Both families may invite neutral third parties
to act as witnesses, or, in the case of aos da/na observers, to act as
moderators.

C. Appeal to common lord.

When both parties are clients of the same lord, they might call upon
the lord to arrive at a resolution. This practice occured in
pre-Norman as well Norman Ireland, and corresponds to "Low Justice"
mentioned in _Pendragon_. Lords are expected to be just in their
decisions affecting their clients. By "just", I refer to Pendragon's
definition under the Just Trait (page 194, 4th Edition): "Just means
that a character is capable of telling what is right and wrong, and is
desirous of making a judgment on that information.... Arbitrary means
that the character has no concern for what is right or wrong, and uses
other information in his decision making."  Thus, GMs may wish to have
a lord roll against his Just. If he succeeds, then he sticks to the
presented evidence or testimony of his clients. If he fails, then
other information, such as which client is more generous in giving
"gifts", influences his decision.

Once a lord arrives at a ruling, he rolls against Folk Lore (if the
clients are less than 20 eineach) or Courtesy (if the clients are 20
or more eineach) to impart his decision. If he succeeds, he leaves
both parties satisfied that justice has been done, although one will
be disappointed with the ruling. If he fails, then the party ruled
against is visibly disturbed; if he has also failed his Just roll,
then the party ruled against will either bring a charge of injustice
against him or will plot revenge. If he fumbles his Folk Lore/Courtesy
roll, then unruliness breaks out if he has also failed his Just roll;
a strong show of force should keep the gathering under control. If the
lord has also fumbled his Just roll, then the party ruled against
becomes violent.

D. Distraint.

Distraint (athgaba/l, "taking back") is a procedure whereby a private
individual can seek redress for an offense by formally seizing
another's property without recourse to a court of law. Here, I call
the distraining party the "plaintiff" and the accused party the
"defendant." Two procedures exist, depending upon the defendant's
rank.

When the defendant is of low rank (i.e., less than 30 eineach), the
plaintiff first notifies the defendant that he intends to impound his
livestock. The defendant is given three days to either meet the
plaintiff's claim, pledge to meet the claim, or pledge to submit to a
legal case. If the defendant has not done one of these after three
days, then the plaintiff summons a lawayer (aigne) and, in the early
morning of the fourth day, removes livestock equal to the value of the
offense (e.g., value of a contract or plaintiff's eineach). The
plaintiff holds the livestock for another three days, during which
time the defendant can do one of the aforementioned options. While
holding the animals, the plaintiff must properly maintain them. As
each of these three days goes by, the defendant forfeits one-third of
the livestock if he does not pursue one of his options. Forfeited
livestock cannot be recovered, but the defendant can act to save the
remaining portion of livestock. When all is done, the plaintiff's
lawyer receives one-third of the distrained amount as his fee.

When the defendant is of high rank (i.e., eineach is 30 or more), then
the plaintiff conducts a fast outside the defendant's house. _Pagan
Shore_ terms this form of distraint "trochlaigh" ("decay"); the legal
term for distraint with fasting is "troscud."  In this case, the
plaintiff fasts from sundown to sunrise (_Pagan Shore_ puts the fast
until death or settlement). If the defendant eats during the fast,
then he must pay twice the value of the offense. Upon the successful
completion of the fast, the defendant has three days to either meet
the claim, pledge to meet the claim, or pledge to submit to a legal
case. If the plaintiff continues to fast even though the defendant
performs one of these actions, then the plaintiff's claim is
nullified. If the defendant does not do one of his options after three
days, then the plaintiff summons a lawyer and impounds the defendant's
livestock. The defendant's eineach is reduced to 10 dairy cows if he
blocks the plaintiff's attempt at distraint. As in the above form of
distraint, the defendant has three more days to recover his impounded
livestock, and gradually loses one-third for every day of
inactivity. Chieftains and bishops often have a "substitute churl"
that spare them the shame of distraint. In these cases, the plaintiff
fasts against the churl and removes the churl's livestock. The
plaintiff must pay the defendant's eineach if he removes the
defendant's livestock rather than the churl's. As above, the
plaintiff's laywer receives one-third of the distrained amount when
fasting is involved.

Distraint may be postponed due to a death in or an attack upon the
defendant's house. Postponement also occurs when the defendant's house
holds a woman in labor, a gravely ill person, or newly-arrived
guests. A breitheamh decides the length of the postponement. Distraint
cannot be conducted under other circumstances, such as holy days or
when the defendant is moving house. Certain animals cannot be
distrained, including a cow that has just calved, a pig being
fattened, or an animal in need (e.g., a horse needed for racing, oxen
needed for ploughing, or a bull while cows are in heat).

E. Duels.

_Pagan Shore_ gives the method of contests (comhlann) -- from poetry
to combat -- for conflict resolution. Irish law recognized trial by
combat (ro/e), although the Church was hostile to this activity. In a
legal duel, the terms of the contest must be agreed beforehand and
confirmed by sureties on both sides. Additionally, witnesses must be
present at the duel. Duels cannot be fought on church land, in the
fort or green of a chieftain, lord, or poet, or at the time of a
festival or assembly. A combatant automatically loses if he fails to
appear for the duel. Duels, however, can be postponed due to
obligations to attend an assembly, an attack by invaders, the funeral
of one's kin or lord, recovering from illness, or a visit by a
chieftain, bishop, poet. Wounds inflicted in legal duels are not
actionable. Other than the agreed outcome, some duels are decided by
minor setbacks, such as: falling down, being seized by illness once
the duel starts, fleeing without necessity, one's weapon dropping once
the duel starts, one's shield bursting, or pleading for quarter.

IV. Legal cases

Bringing a dispute to court is a final option available under Irish
law. Legal fees typically dig into the amount of the settlement, but a
case in court brings some degree of financial hardship upon the
accused party and causes the guilty party to lose eineach for an
offense.
 
A. Roles.

1. Plaintiff: the aggrieved party that initiates the case.

2. Defendant: the accused party.

3. Lawyer (aigne). Both the plaintiff and defendant must hire a lawyer
in order to plead their cases. At the start of the trial the
plaintiff's lawyer chooses the appropriate "path of judgement"
(discussed below). The lawyer for both the plaintiff and defendant
charge one-third of the amount of the case.

4. Judge (breitheamh). A breitheamh presides over every court
case. His fee is one-tenth of the amount involved in the case, paid by
the plaintiff. Each tu/ath has at least one breitheamh appointed by
the chieftain. This is the breitheamh tu/aithe, who rules upon secular
affairs and advises the chieftain on legal matters. Other breitheamhs
may live within the tu/ath, and they earn livings through teaching or
by acting as "free-lance" arbitrators. Each tu/ath also has a
breitheamh eclaso who oversees cases affecting the Church. This judge
might be separate from the breitheamh tu/aithe, or the same individual
might fill both roles.

In Christian tu/aths, breitheamhs interact closely with the
Church. The question of judges in non-Christian tuaths is a bit
unclear. One is tempted to assign the duties of judge to the druid, as
druids acted as judges in pre-Christian Gaul, according to Strabo and
Julius Caesar. Scant information exists for pre-Christian Ireland.
Saint Patrick, in his "Confessions", wrote of "those who judged among
all the regions", who were apart from kings. It is not clear, however,
whether these judges were druids or early forms of the fili/ or
breitheamh class. The 6th century "First Synod of Saint Patrick" warns
that a "Christian must not make an oath before a druid in the pagan
manner", suggesting a priestly or judicial role for the druid. Later,
the law texts depict the druids as sorcerors who cast spells, concoct
love-potions, and perform battlefield magic. By the mid-7th century,
the Latin "magus" was a consistent equivalent of the Old Irish
"drui/"; druids were also called "incantatores" and "aruspices."

The equation of druids with sorcerors and magi is symptomatic of the
contempt that the early Christian legal authors had for the druid.
This attitude contrasts to the exalted position that the druid enjoys
in the sagas that are set in pre-Christian times. In these stories,
druids are venerable priests, prophets, astrologers, and
teachers. Curiously, the sagas do not indicate that druids acted as
judges, and the Senchus Ma/r holds that the breitheamh class existed
before the coming of Saint Patrick. Kim McCone argues that the Irish
legal authors drew a direct parallel between the mission of Patrick
and that of Jesus. The depiction of druids as exalted priests in
pre-Patrician times corresponds to the priests of Israel who became
the dogmatic Pharisees and Sadducees of the New Testament. The
pre-Patrician breitheamhs and fili/s correspond to the Biblical
prophets that foretold the coming of the Gospel. The Christian view of
Jesus's mission is that he "updated" the law of the Old Testament,
just as Patrick is depicted as harmonizing traditional Irish law with
that of the Bible. Thus, the Church in Rome supplants the Jewish
priesthood as the "true" successor of the laws of Israel, and the
Church in Ireland supplants the druids as the "true" successor of
Irish traditional law. A GM, then, may wish to have the profession of
"breitheamh" exist in non-Christain tu/aths, with the breitheamh being
either separate from or fused with the duties of the druid.

5. Back court. In important cases, a back court supports the
breitheamh. This consists of the king/chieftain, the bishop, and the
chief poet. Whereas the breitheamh formulates the verdict, the back
court promulgates it: the king for secular affairs, the bishop for
ecclesiastical affairs, and the poet for ill-defined poetical affairs.
In addition to his participation in the back court, the king is
expected to be versed in legal affairs, although not as thoroughly as
the breitheamh.

B. Legal procedure.

1. Each legal case begins with the plaintiff or the plaintiff's kin
publicly declaring the offense and the accused party. Both the
plaintiff and the defendant then hire a lawyer and a date for the
hearing is fixed. Ideally, cases are swift. The trial begins three
days after the offense has been declared. The actual trial is to be
two days long, with the judgement being pronounced at the end of the
second day. The fine, if any, is to be paid three days after the
judgement. Cases may be postponed due to a religious festival,
illness, funeral, or attack by invaders.

2. Choosing the "path of judgement." At the start of the trial, the
plaintiff's lawyer must choose a "path of judgement" and must stick to
it throughout the case. Depending upon the path chosen, the plaintiff
and defendant either give pledges or sureties to ensure that they will
abide by the decision of the judge. There are five "paths":

* Truth (Fi/r): for the offenses of perjury and fraud, and for cases
that might be resolved by an ordeal. The plaintiff and defendant each
pledge one dairy cow.

* Entitlement (Dliged): to enforce contractual rights and to restore
broken contracts. The plaintiff and defendant each appoint an
enforcing-surety.

* Justice (Cert): to adjust unfair contracts (i.e., "emptying the too
full" or "filling up the too empty").  The plaintiff and defendant
each pledge one calf.

* Propriety (Te/chtae): for cases involving lord-client contracts and
relationships, and for determining inheritance and rank among
kinsmen. The plaintiff and defendant each appoint a paying-surety.

* Proper enquiry (Coir n-athchomairc): for all other offenses and
matters. The plaintiff and defendant each appoint a hostage-surety.

Once the path has been chosen, the breitheamh must pledge five ounces
of silver to ensure that his judgement will be based on the proper
maxims and will be the truth. If the breitheamh refuses to give his
pledge, then his eineach reduces to 10 dairy cows and he cannot serve
as a breitheamh within the tu/ath any longer. The case is then
referred to the back court.

3. Pleading and counterpleading. The actual trial takes place in
court, either in the breitheamh's house or, for large trials,
outdoors.  Witnesses, sureties, and appropriate dignitaries (e.g., the
back court, historians) attend the proceedings.

Each lawyer states his case, with the plaintiffs going first. The
lawyer may call either litigant as well as witnesses to give
testimony. When giving testimony, one takes an oath of truth, and
one's eineach determines the maximum value of the oath.

Witnesses are of two types, eye-witnesses and "character"
witnesses. Eye-witnesses can swear the maximum value of their eineach.
Character witnesses did not actually see the events or offense in
question, but can support what the litigant or other witnesses say. A
character witness's oath is worth one half of his eineach. Thus, a
preponderance of character witnesses on one side may swing a trial in
favor of that side. Some witnesses are invalid, such as witnesses who
are biased or bribed, as well as women, dependent children, the
senile, and slaves. When facing death, however, the evidence of the
latter types is valid (e.g., woman in danger of death at childbirth, a
sick man facing death, an enslaved criminal on the field of combat or
about to fight a duel).

After each side has pleaded its case, each lawyer is given the
opportunity to rebut the other's case.

4. Judgement. A simple way to arrive at a ruling is to add up the
eineach values of the oaths of the witnesses on each side and see
which side has a higher number. For close cases, however, the GM may
wish to allow for some skill rolls, just as the law texts prescribe
ordeals for close cases.

One option is to only use existing Pendragon skills. For example, when
the two sides differ in oath-values by 5 or less, then the lawyers on
each side make opposed [Orate] rolls, which can be viewed as
incorporating each lawyer's chances of having one or more witnesses
shown to be partial or biased. Success in the trial goes to whichever
side wins the opposed roll. If both lawyers make their [Orate] roll,
then the GM may wish to have the case decided by an ordeal (discussed
below) if the path is Truth, or by lots (discussed below)
otherwise. If a lawyer fumbles his [Orate], then he pays one cow to
the judge for breaking protocol (e.g., abusive or loud speech,
shifting the path of judgement). After the lawyers' [Orate] rolls, the
breitheamh then rolls against [Just].  If he fumbles, then he has broken
some item of protocol and must pay each lawyer one dairy cow. Serious
cases of misjustice by breitheamhs should be left up to the GM, not to
die rolls.

An alternative option is to create a new skill: [Industry-Law]. Here,
the GM might want to widen the margin for what constitutes a "close
case" (e.g., a difference in oath-values of 10 or less between the two
sides). Similar to above, the lawyers make opposed [Law] rolls instead
of [Orate], with the results for success or failure being the same. 
The breitheamh now rolls against [Law] to check for a breach of
protocol.

Lots and ordeals may be used to resolve close cases. Lots were
especially used in cases without witnesses, such as animal trespasses.
Details on casting lots do not survive, though a piece of wood was
evidently used. When casting lots, a GM may have each side roll dice,
with the higher roll winning the case.

In ordeals, the defendant is generally subjected to some form of
violence, such as burning, scalding, immersion, or poisoning.
Tradition credits the introduction of ordeals to Saint Patrick. A GM
might have ordeals reveal the truth as the GM understands it, or have
the defendant roll against [Honor] or [Constitution], whichever is
higher. The latter option opens up the possibility of the meek passing
an ordeal due to a pure heart, as well as the dastardly passing an
ordeal due to a high threshold for pain. Some actual ordeals are:

* Proof of the Cauldron. Water is boiled in a cauldron, and the
defendant picks up an object at the bottom. His hand is examined after
three days; he is innocent if there are no scalding marks.

* The Tongue on a Hot Adze. The defendant licks a red-hot adze of
bronze or lead; he is innocent if his tongue is not burnt.

* Waiting at an Altar. The defendant walks nine times around an altar
and then drinks a non-fatal potion that a druid has cast a spell
upon. The defendant is innocent if he does not get sick.

* Water of Holy Adjudication. Some text from a holy book is soaked in
water, and the defendant drinks the water. The defendant is innocent
if his intestines do not rot.

* Chip of an Old Tree. Three pieces of wood are thrown into water,
with one representing the defendant. Unlike other immersion ordeals,
the defendant is innocent if his chip floats.

* Morann's ring. A relic of Morann, a famous pre-Patrician breitheamh,
this ring is to be placed about the defendant's neck. If the defendant
is guilty, then the ring tightens about his neck, killing him.  Morann
gifted his ring to the kings of Tara; powerful magic ties it to Tara
Hill.

* Truth Stones. At various locations in Ireland are "truth stones" --
stones that bellow or scream in response to the truth. The Lia Fail at
Tara, which screams in the presence of the rightful king, is such a
stone. Other stones bellow when a true answer is spoken on them.
Truth stones have 5d20 Ambient Life Force, 3d20 Divination. The GM
should have the stones reveal truth as he understands it. Because of
the potential power of these stones, the GM might want to have only
the king/chieftain or an ollaibh (i.e., bishop, arch-druid, arch-poet)
request their use in a trial.

5. Promulgation and conclusion. The breitheamh or a dignitary of the
back court (if present) publicly announces the ruling at the end of
the trial. At this point, the guilty party may lose eineach, depending
upon the nature of the offense. The conditions of ruling are expected
to be honored by both parties, as they have either exchanged pledges
or appointed sureties at the start of the trial.

6. Payment/punishment. Payment is to be made three days after the
announcement of the ruling. As mentioned before, if the guilty party
cannot or will not pay the fine, he can be seized and held captive by
the victim or the victim's kin. For serious offenses (e.g., murder,
maiming, satire, or habitual theft), the captive can be killed or
enslaved.  Before either of these fates, the captive may be ransomed
by his kin or non-kin. Kings are urged to make bodyguards out of men
that they have ransomed from captivity, as these men owe their lives
to the king. For lesser offenses, the culprit is held until the
penalty is paid. If the culprit avoids or flees captivity, then he is
a fugitive. He is to be hunted down, and may be legally slain by his
enforcing-surety for the case (if applicable) or by the aggrieved
party's kin.

Even when the culprit can pay, the Church advocates the death penalty
when the crime exceeds the culprit's eineach value. Forms of execution
include hanging, stabbing (by sword, spear, or axe), being chained in
a pit to die of exposure, and setting adrift (especially for serious
crimes committed by women). The pre-Norman annals give examples of
politically motivated mutilations, such as blinding and castration,
but there is no mention of them in the law texts until 1224. Flogging
is a common punishment for slaves and wrongdoing clergy.

7. Recovering lost eineach. The law texts are explicit about when
eineach is to be lost, but are much more silent about how to win it
back. The main way to recover eineach is through praise from others,
preferably in poem. Praise, however, must be heart-felt, as false
praise is equivalent to satire, and the poet might be charged with
unjustified satire. A GM may require the player character to earn a
certain amount of Glory (e.g., 1000) before a poet will feel justified
in composing a praise-poem. A GM may want to have a fili/'s [Compose]
skill equal the amount of eineach that a praise-poem can
restore. Successful [Orate] by the performer restores the eineach; a
fumble brings derision upon the player character.

Penance at a church or hermitage is another option to restore eineach,
especially for clergy. A GM may have the player character roll against
[Pious] after each year of penance. If the roll succeeds, then the
character regains eineach equal to his [Pious] skill.

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End of Sections 3 and 4, Copyright 1997 Mike Maxwell, mmaxwell@mbl.edu
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