Lifelong Education, Collegiality and the Immutability of Procedure: Legal Advocates in Early Ireland

It is understandable that aspiring lawyers today might, at some point, find their education daunting and/or be apprehensive about entering a congested and stratified profession. Similar to other professional callings, qualifying as a lawyer is very much a marathon rather than a sprint and building up a successful practice can take some time to achieve.

Once practicing, lawyers must also daily navigate a welter of professional obligations and standards; including the effective management of client expectations, to determining when it is appropriate to call on more senior colleagues, to keeping abreast of complex rules of Court.

This article highlights the antiquity of these professional challenges, with a focus on early Irish legal advocates (aigneda), i.e. early legal professionals other than judges (brithemain), poets/’seers’ (fili) and clerics. A direct link between the early Irish legal profession and today’s practitioners was broken by the common law colonial experience. Still, aspects of the structure and priorities of today’s profession are eerily similar to those in early Ireland. In sketching this out, it is hoped some solace will be found by aspiring and practicing lawyers – their toil is just the modern expression of professional traditions stretching back to ‘time immemorial’.

Origins of the Early Irish Advocate

A question debated over the years is precisely how, or from where, the early Irish legal profession emerged. It could plausibly have developed out of an older pagan religious (druidic) tradition and/or as an offshoot of the high-status Christianised seer-poets (fili). Poetry heavily imbues many Irish law tracts, some of which also play up the status of the fili at the expense of druids etc. However, that does not preclude a druidic legal heritage (if only in part), particularly given that druids are described performing legal functions in certain early Christian writings [1].

Whatever the true fount of the profession, by the ninth century it appears that legal advocates (aigneda) had emerged alongside a class of judges (brithemain) [2]. While distinct, it is thought likely that the aigneda and the brithemain were exposed to the same training in the law schools [3] (examined further below). There is clearer evidence for this in later times [4]. For instance, the 17th century historian and translator Conall Mag Eochagáin (Conall MacGeoghagan), referring to Irish lawyers of the 16th century, observed: ‘This fenechus or brehon law is none other than the sivil [civil] law, which the brehons had to themselves in an obscure and unknown language, which none could understand except those that studied in the open schools they had, whereof some were judges and others were admitted to plead as barresters‘ [5].

The early medieval profession may have evolved over time. The function of ‘speaking on behalf of’ others with legal grievances was initially the responsibility of a high-ranking community ‘guardian’ (fethem), such as a noble lord (flaith) [6]. An old law tract refers to the aire tuíse (‘lord of precedence’) who ‘leads his fine [kin] to the king and speaks on their behalf’: dofet fini…co rig ocus aroslabra[thar] [7]. The fethem’s role might have been limited to simply announcing and explaining legal problems, rather than necessarily pleading cases [8].

Complex procedures around ‘distraint’ (athgabál) of property for non-fulfilment of obligations could, as time wore on, have generated demand for the services of a more professional law agent [9]. A distinct class of lawyers (the aigneda) emerged and the profession likely became hereditary. The aigneda would ultimately assume a broad range of functions, akin to those performed by lawyers today. Firstly, it is worth considering what their education might have looked like in early Ireland.

Image 1: Depiction of Celtic druids. It is thought the early Irish legal profession may have at least partly sprung from druidism (Image Credit: Brittanica (link))

Liberally Educating the Aigneda

It is apparent that monasteries were key centres of both ecclesiastical and secular legal learning in early Christian Ireland. The Triads of Ireland nod to the monasteries at Cloyne, Cork and Slane in this regard [10]. Legal professionals of this period have been characterised by some as forming part of a ‘single ecclesiastically educated, mandarin class’ [11]. But monasteries do not seem to have enjoyed a monopoly in legal learning.

Given differences of style and emphasis across various law tracts, it is reasonable to suppose that legal learning also took place outside monastic settings [12]. If that was the case, there must have been a cohort of ‘secular’ lawyers who were not clerics. As such, others have preferred to characterise early Irish lawyers as forming part of a ‘complex’ [rather than uniform] aristocracy’ [13].

It is possible the legal curriculum in early Ireland was broadly two-tier in nature. There could have been a focus on grammar and rhetorical learning in the first tier, including fásaige (legal maxims) and roscad (alliterative verse or prose) – a method also shared with poetry. It is likely some biblical training was also completed in the first tier. In the second tier, there may have been a heavier focus on ‘exegesis’, i.e. critically explaining or interpreting religious texts. Lawyers who did not aspire to be clerics need not have graduated to the second tier [14]. Time spent in education could have been up to twenty years [15]. Given life spans at this time, this might really have meant ‘lifelong education’ for some.

Law, poetry, religion, history, mythology and genealogy are weaved together in various law tracts [16]. In the course of their education, aspiring lawyers would thus have been exposed to a multidisciplinary tradition or wisdom (senchas). The precise breadth of this education probably varied across place and time. Similar to today, there is evidence of difference in law school priorities and curricula. Some law tracts, particularly major collections associated with Munster, suggest a stronger emphasis in that region on blended poetry-based learning (filidecht) and the privileges of poets generally [17].

A puzzling feature of the otherwise highly literate early Irish legal tradition is the lack of reliable non-ecclesiastical written records of dispute resolutions, deeds and charters etc. While such artefacts do survive from later periods [18], their relative absence in the early Christian period is a curious lacuna. A possible explanation is simply a loss of records, primarily attributable to the colonial experience [19]. Another explanation is that, in the earlier period, the priority was ‘performing’ law and tying those performances to other elements of a broader senchas [20]. So while the senchas itself became embedded within a textual tradition in the law schools [21], it was still orally performed in early Ireland. Recording every legal interaction in writing may not have been a priority.

In this interpretation, the teaching and practice of law did not depend on a bookish mastery of ‘real world’ case law. Rather, a strong familiarity with timeless principles in the law tracts, including mythological devices and judgments (the ultimate ‘precedents’), may have marked out the more capable lawyers. The use of mythological authorities in legal training is evident from, for instance, the poetic Bretha Nemed (‘Judgments Concerning Privileged Persons’) law tracts of Munster. These frequently invoke a mythological judge, Morann, and his pupil Neire Núallgnáith, both of whom also figure in a separate ‘wisdom text’ on kingly duties, Audacht Morainn (‘Testament of Morann’) [22].

Structure of the Aigne Profession

The most significant collection of law tracts, the Senchas Már (‘Great Tradition’) compiled in or around Armagh in the late 7th-early 8th century, offers a glimpse of the professional structures of the aigneda. While not to be interpreted as a rigid portrait of lawyers across time and place, it implies a collegiate and also stratified profession. The Senchas Már extract dealing with the subject opens with: Cis lir aigni? Ní hansae, a trí: glasaigne 7 aigni airechta 7 aigni frís-n-innle brith (translation: ‘How many [types of] advocate are there? It is not difficult, three: a fettering advocate, and a court advocate and an advocate whom judgment encounters’) [23].

Image 2: Competences etc. of the categories of aigne

The first type, the glasaigne (‘fettering advocate’), seems to have been a hybrid legal operative, perhaps akin to a cross between a local solicitor and a court sheriff/county registrar in modern parlance. On the one hand, he is described as someone who ‘locks in expertise so that his case does not depart from him to a court’ [24]. This might allude to the skill of a glasaigne in settling (or trying to settle) matters at the community level, thereby avoiding referral of a dispute to court in the first place.

On the other hand, the glasaigne is conferred with responsibility for ‘enforcing [on behalf of] a court’, including by distraint (athgabál), e.g. by seizing livestock in order to compel someone to pay a debt, submit to court or recognise a judgment. Also included in the glasaigne job description was: Niadm fri téchta .i. naidm comraicc má as l-aíther in fiach (translation: ‘Enforcing in accordance with legality, that is, enforcing by means of combat if one absconds from [paying] the debt’) [25]. So a glasaigne needed a degree of physical as well as intellectual prowess.

The glasaigne was equivalent in rank to an ordinary freeman. At best, he had a limited role in Court pleading and may have had no role at all. Any right to plead would have been confined to actions involving middle class farmers (bóaire). He was entitled to a third of the amount at issue in every case where he was levying a claim on behalf of a plaintiff, and one sixth in every case where he was engaged on behalf of a defendant [26].

The second type, the aigni airechta (‘court advocate’), appears to have been the closest comparator to a modern day barrister with a general practice, and indeed a general practice solicitor exercising their rights of court audience. This aigne is described as: Aignis lais uile 7 nascaireacht 7 berrad 7 comaidhches 7 cáin láomhnai 7 maccslechtai (translation: ‘He is competent in all of advocacy, and enforcing, and abridgement, and neighbourhood law, and the law of marital union, and the law relating to sons’).

The aigni aireachta was able to represent ‘secular and ecclesiastical commoners, and nobles up to the leader of a túath…’ [27]. It is unclear if this should be interpreted as ‘up to and including‘. Regardless, his client base was broad. In terms of professional fees, the aigni airechta was entitled to one third of the amount at issue when engaged to levy a claim on behalf of a plaintiff and one sixth for acting in court. It is also assumed he was entitled to one sixth when opposing a claim on behalf of a defendant [28].

The third type, the aigni frís-n-innle brith (‘advocate whom judgment encounters’ or ‘whom judgment awaits’), is described as taking over pleading ‘at the brink of judgment’ [29]. This aigne may often have worked alongside the aigni airechta, and for this reason is termed a coingeltaid (‘joint grazer’), i.e. grazing cooperatively with the aigni airechta off both injustice and professional fees! [30] Their relationship is borne out as follows: As-beir fris aigne ad-gair: ‘Aigni dom-air-so co rraib do lethi lim indíu immin les-[s]a (translation: ‘The advocate who pleads says to him: ‘Advocate come to me so that you may be beside me today for this case’) [31].

The aigni frís-n-innle brith was competent in ‘all of law except for immediate judgments and perplexity of judgment’. ‘Immediate judgments’ relate to neighbourhood law, land disputes etc. ‘Perplexity of judgment’ likely related to more complicated cases where proofs were a problem, maybe requiring the performance of a physical ordeal [32]. The aigni frís-n-innle brith could act for leaders of túatha, judges and kings. And cases managed by the aigni frís-n-innle brith took precedence over other hearings at early Irish courts. Their professional fees were one third of the amount at issue where they were pleading on behalf of a plaintiff, and one sixth when pleading on behalf of a defendant. However, when acting with an airi airechta for a plaintiff, both were only entitled to one sixth. In an ultimate expression of collegiality and deference, he only took expenses when acting for a client who was a judge [33].

There is some mystery surrounding the precise role of the aigni frís-n-innle brith. At first glance, his functions resemble that of a ‘senior counsel’ today. Clearly, this was a person of loftier legal training engaged to plead higher value cases involving aristocratic members of the community. An alternative take is that the aigni frís-n-innle brith may have been the personal representative of a high-ranking individual in the community and who moreso intervened in certain cases of interest to their lord or king etc. [34]. This might be similar to acting on behalf of ‘notice parties’ or an amicus curiae (‘friend of the court’) today.

The Immutability of Procedure and Etiquette

Following correct procedures was just as vital to practice in the early Irish legal profession as it is today. An old tract, Cóic Conara Fugill (‘the five paths of judgment’) sheds some light on trial procedures in early Ireland [35]. These ‘paths’ were fír (‘truth’), dliged (‘entitlement’), cert (‘justice’), téchtae (‘propriety’) and coir n-athchomairc (‘proper enquiry’). To ensure adherence to the eventual court judgment, each path was also secured by an exchange of pledges (e.g. exchanged items of value) or appointment of sureties (i.e. some form of third party guarantor) by the parties.

Image 3: The ‘five paths of judgment

The path of ‘truth’ (fír), pleaded in perjury cases, concerned division of property amongst kinsmen, seeking out the property of an extinct kin group, determining headship of a kin group and other difficult cases. This path was secured by a ‘truth pledge’ (fírgille), worth one cow. The path of ‘entitlement’ (dliged) was pleaded when seeking to enforce contractual rights. This was secured by an ‘enforcing’ surety (naidm), i.e. a third party appointed to ensure, including by physical force if necessary, that the principal/s would respect their legal obligation/s. The path of ‘justice’ (cert) was pleaded in actions seeking to adjust unfair contracts. This was secured by a ‘penalty pledge’ (smachtgille), worth one seventh of a cow.

The path of ‘propriety’ (téchtae) was pleaded in legal issues concerning servile and semi-servile dependents in society and, seemingly, to crimes committed long ago (sensmúr cinad – ‘the old embers of an offence’). This path was secured by a ‘paying’ surety (ráth), i.e. a third party appointed to financially guarantee the obligation/s in question. The final path was ‘proper enquiry’ (coir n-athchomairc). It is unclear what specific actions this covered – it may have been residual, where none of the others applied. This was secured by a ‘hostage’ surety (aitire), i.e. a guarantee in the form of a person who could be taken into custody in default of any eventual legal obligation/s [36].

The importance of selecting the right path is underscored in the law tracts. The Senchas Már indicates that, following a preliminary pleading at court, the aigne ‘does not return to the same pleading until [the correct method of] procedure has been determined. There is, moreover, no acceptance [of a case] without determining [the correct method of] procedure, without consulting with a judge, if it be immediately before judgment’ [37]. If an aigne chose the wrong ‘path’, or tried to switch to a different path during pleadings, they were fined (smacht) in the amount of one cow [38]. This was no small penalty in a society where cows were economically and legally exalted.

According to a later version of Cóic Conara Fugill, case management and the pleading process were (or became) quite involved affairs. There seems to have been broadly five stages in the preparation and pleading of a case [39]:

  • 1) Ré ria toga (‘[Establishing] a date before choosing [a procedural path]’);
  • 2) toga ria n-arach (‘choosing [a path] before [the giving of] security’);
  • 3) arach ria tagra (‘security before pleading’);
  • 4) tagra ria fregra (‘pleading before counterpleading’);
  • 5) fregra ria mbreth (‘counterpleading/rejoinder before judgment’).
Image 4: Illustration of a Welsh judge from the Welsh Laws of Hywel Dda, mid-13th century (Image Credit: National Library of Wales, CC0, via Wikimedia Commons). There were certain parallels between early Irish and Welsh law

Skilled advocates are portrayed as those who engage in ‘patient counterpleading’, have a ‘firm case’ and rely upon witnesses. Signs of bad pleading included: opposing a known fact, ‘much abuse’, praising oneself, speaking with an undertone, ‘uncertain proof’, speaking too loudly or two quietly, shifting one’s pleading and angrily pleading [40]. There are intriguing indications too that the length of a pleading and complexity of its performance may have hinged on the social rank of an aigne’s client. One manuscript states: .i. i nanalib….x. focail indtib, a tri do flaith 7 focal ar .xx. it indtib, a secht do eclais (translation: ‘that is, in respect of breaths…the length of three [breaths] for a lord and twenty one words [to be articulated] in them, and seven [breaths] for a church[man] and forty nine words [to be articulated] within them’).

This is also supported by one of the mythological narratives in the Munster law tract Bretha Nemed Toísech, where Morann advises his pupil Neire: Mo nere nuallgnaith…ni bera ai nad urscarttha, arabeir corus nae…ai flatha fod teora nanala ar imtimcellugrud (?) flath filed feine… (translation: ‘My Neire accustomed to proclaiming…may you not judge a lawsuit that you do not “clean out”, that proceeds in accordance with the regulation governing lawsuits…A suit of a lord [it entails] the length of three breaths because of the mutual surrounding of lords, or poets and of the Féni [freemen]…’) [41].

Some concluding thoughts

Given the supervening English common law experience, it is difficult to argue for a direct link between the lawyers of early Ireland and those today. But there are striking similarities at the core of professional practice across the ages. A collegiate, though stratified, legal profession has endured over time. Following correct procedures and the importance of artful pleading are also just as central to the profession now as they were in early Ireland. Hopefully this can offer some comfort to law students and practitioners alike that their tasks are the modern expressions of an antique professional heritage.

Legal education was a markedly different affair. In early Ireland, this seems to have approximated to a rigorous liberal arts-type schooling, encompassing law but also extending well beyond it. Some lawyers today enter the profession after first undertaking education or training in non-legal areas. Others study law at undergraduate level, either as a single subject or in conjunction with one or more non-legal subjects. Some combine law and languages. There is strength in this diversity.

However, the generally limited priority afforded to Irish legal history in law curricula today is regrettable, particularly given the types of parallels drawn out in this article. As has been observed elsewhere, the study and practice of law can be seen ‘as a series of conversations through time. And once this insight is grasped, the distinction between past and present becomes much more fluid in the mind of the scholar and practitioner of law’ [42].

This article may be cited as J. Biggins, ‘Lifelong Education, Collegiality and the Immutability of Procedure: Legal Advocates in Early Ireland‘, The Brehon Lawyer (December 2021)

Sources used for this article

D.A. Binchy, ‘Féchem, Fethem, Aigne’ (1976) 11 Celtica 18

Donnchadh Ó Corráin, ‘What Happened Ireland’s Medieval Manuscripts?’ (2011) 22-23 Peritia 291

Fangzhe Qiu, ‘Law, Law-Books and Tradition in Early Medieval Ireland’ in Culture in the Middle Ages, ed. T. Gobbitt (Brill, 2021)

Fergus Kelly, A Guide to Early Irish Law (Dublin Institute for Advanced Studies, 2009)

Katharine Simms, ‘The Brehons of Later Medieval Ireland’ in Brehons, Sergeants and Attorneys: Studies in the History of the Irish Legal Profession (Irish Academic Press, 1991)

Laurence Ginnell, The Brehon Laws: A Legal Handbook (1894)

Liam Breathnach, ‘Lawyers in Early Ireland’ in Brehons, Sergeants and Attorneys: Studies in the History of the Irish Legal Profession (Irish Academic Press, 1991)

Luke McInerney, ‘A 1640 register of the Thomond Papers at Petworth House’ (2021) 74 Archivium Hibernicum 27

Nerys Patterson, Cattle Lords and Clansmen: The Social Structure of Early Ireland (University of Notre Dame, 1994)

Paul J du Plessis, ‘Legal History: The Point of it All’ (2021) 9 Edinburgh Student Law Review 1

Robin Chapman Stacey, Dark Speech: The Performance of Law in Early Ireland (University of Pennsylvania, 2007)

Endnotes

[1] Chapman Stacey, pp. 54-55

[2] Chapman Stacey, p. 65

[3] Kelly, p. 56

[4] E.g. Simms

[5] Kelly, p. 56-57

[6] Patterson, p. 353

[7] Binchy, p. 22

[8] Patterson, p. 353

[9] Binchy, pp. 25-26

[10] Kelly, p. 242

[11] Chapman Stacey, p. 58 citing Donnchadh Ó Corráin, ‘Nationality and Kingship in Pre-Norman Ireland’ in Nationality and the Pursuit of National Independence, ed. T.W. Moody (Appletree Press, 1978)

[12] Chapman Stacey, p. 59

[13] Chapman Stacey, p. 59

[14] Chapman Stacey, p. 59 citing T.M. Charles-Edwards, ‘The Context and Uses of Literacy in Early Christian Ireland’ in Literacy in Medieval Celtic Studies, ed. H. Pryce (Cambridge, 1998)

[15] Ginnell

[16] Qiu

[17] Chapman Stacey, p. 214

[18] E.g. McInerney

[19] Ó Corráin

[20] Chapman Stacey, pp. 91-93

[21] Qiu

[22] Chapman Stacey, p. 202

[23] Breathnach, p. 11

[24] Breathnach, p. 11

[25] Breathnach, pp. 11-12

[26] Breathnach, pp. 11-12

[27] Breathnach, pp. 11-12

[28] Breathnach, pp. 11-13

[29] Breathnach, pp. 11-12

[30] Chapman Stacey, p. 65

[31] Breathnach, pp/ 11-12

[32] Chapman Stacey, p. 66

[33] Breathnach, pp. 11-12

[34] Chapman Stacey, p. 66

[35] Kelly, p. 191

[36] Kelly, pp. 191-192

[37] Breathnach, pp. 11-12

[38] Kelly, p. 192

[39] Chapman Stacey, pp. 64-65

[40] Kelly, p. 195

[41] Chapman Stacey, pp. 76-77

[42] du Plessis, p. 1