A BRIEF OVERVIEW OF BREHON LAW IN IRISH HISTORY
By Mitchell L. Lathrop
Early Gaelic Feudalism
Brehon Law evolved from and includes many elements of Salic tanistry. It is only in Ireland that vestiges of Gaelic feudalism can still be found. Many thousands of pages have been written about Ireland since its earliest recorded history (the first written records were authored by Poseidonios in about 70 B.C.), however writings about Brehon Law are sketchy at best. The earliest inhabitants of Ireland left relics and artifacts which show well-developed societies during the Neolithic and Bronze Ages, but it is the Celts who left the greatest mark on Ireland and they lived by Brehon Law.
It is not known when the Celts first invaded Ireland, but scholars tend to agree that the Celts conquered Ireland sometime during the second half of the first millennium B.C. The Celts, of course, migrated from continental Europe, probably that part which Caesar mentioned in his writings on his campaigns in Gaul. The Romans had a definite policy of “Romanization” of conquered territories, which accounts for the vast influence the Romans had on the development of cultures which emerged in former Roman territories. The Roman Empire, however, never conquered Ireland. As a consequence many Roman influences which are found in Britain are absent in Ireland. Even though the Roman Empire failed to conquer Scotland, the absence of a natural barrier such as the Irish Sea between what became England and its neighbors to the north permitted Roman and English cultures to ultimately form the basis for Scottish culture notwithstanding its Irish origins. Ireland proceeded to develop following its own culture without the prevalent Roman and later English influences.
Hibernia was the name given to Ireland by the Romans. It probably developed from the Greek Ierne, which in Latin becomes Ériu. The inhabitants would therefore be known as the Érainn. “The race of the Erainn” translates to the Latin gens hiernorum, and from there developed the name Hibernia. Of course, from Ériu comes the modern Irish Éire and, in its Anglicized form, Ireland.
As the power of the Roman Empire began to decline in Britain, the Irish began to attack Britain, ultimately establishing large Irish settlements in Wales. So great was the Irish influence that by the fifth century A.D. the ruling class of Wales spoke principally Irish-Gaelic, as well as the native Welsh.
As the Roman Empire persisted in its attempts to Romanize its conquered lands, the Celts remaining in what was then Gaul increasingly resisted. By 50 B.C. the Gallic Celts, who called themselves Feni, emigrated from Gaul to Ireland. They rapidly dominated the Celts who had inhabited Ireland for generations, who referred to the newcomers as Gaodhail or Gaeil because of the language they spoke. It was called Gaedelg, or when Anglicized, Gaelic. The influence and power of the Gaeil increased steadily, until by the fifth century they dominated Ireland and continued to do so until the arrival of the Normans. With them the Gaeil brought Salic tanistry, which formed the foundation of Brehon Law.
From the dawn of Irish history until the time of King James I of England in the seventeenth century, Gaelic feudalism and Brehon Law formed the basis of societal laws and customs in Ireland. Brehon Law of early Ireland evolved from Salic law, a code of law originated by the Salic Franks of continental Europe. As the Celts migrated from Gaul to Ireland, they brought with them elements of Salic law, the most well-known of which prevented females from inheriting land. Salic law also included the practice of tanistry, a form of land ownership where-under a tract of land reverts to the grantor upon the extinction of the male line of the grantee. It was not until outside pressures forced the Celts into protective groups larger than individual families that the real structure of Gaelic feudalism began to emerge.
The Celts eventually divided into two groups. In the north were the Connachta, or “people of Conn.” Conn was the brother of a mythical human deity named Eóan, the reputed founder of the dynasty which held power in southern Ireland from the fifth to the twelfth centuries. The peoples of the south called themselves Eóghanacht, or “people of Eógan,” which in English becomes Owen. Eógan is reputed patriarch of the dynasty which reigned in Cashel from 400 A.D. and which held power in southern Ireland from the fifth through the twelfth centuries. What is clear is that from the Connachta came the Ui Néill, the most powerful tribe of the Connachta, which claimed the high kingship of Ireland and was the dominant family from the fifth through the tenth centuries. The claim of the Ui Néill to the high kingship was not accepted by the Eóghanachta, who dominated the southern part of Ireland and produced the families of MacCarthy, O’Sullivan, and O’Donoghue, among others.
In 795 A.D. the first of many Viking raids took place. The effect of Viking raids was to force the Irish population into more cohesive, organized groups for the purpose of protection. What ultimately emerged was the framework of the Gaelic feudal state. Many Vikings, however, did not merely raid and leave. Instead they established settlements along the east coast and began to trade. They intermarried with the Irish and established the cities of Arklow, Cork, Dublin, Limerick, Wicklow, Waterford, and Wexford.
Nothing has had an impact in Irish history which equals that of the advent of Christianity. While St. Patrick is generally credited with converting the Irish, he is by no means the only figure responsible. The Church formed the foundation of Irish learning and culture, and produced such figures as St. Brigid, St. Brendan (“the Navigator”), St. Columcille (Columba) and St. Kieran. Each developed monasteries and introduced the episcopal system of ecclesiastical government. There were over 800 monasteries in Ireland by the end of the sixth century. The monasteries were the centers of learning and culture. While the clerics attempted to break down many pre-Christian beliefs and customs, much of Celtic custom and practice remained and the Church maintained a tolerant attitude.
St. Patrick, nevertheless, is the most well-known Irish cleric. Ironically enough, he was British, born around 373 A.D. in the western part of Roman Britain in what is today England, the son of a deacon. He was captured by Irish raiders when he was sixteen and became an Irish slave. After six years in captivity, he escaped to Gaul and studied for the priesthood under Saint Martin of Tours. He never forgot his Irish experience, and returned to Ireland as a bishop. He preached for the balance of his life, dying around 463 A.D. His seat was at Armagh, today the seat of both the Catholic and Protestant archbishops of Ireland.
Gaelic Society and the Foundation of Brehon Law
Pre-Christian Gaelic society was based upon agricultural interests, with the result that few cities developed. The societal group was the fine, which was divided into derbfhine and gelfhine. The derbfhine for legal purposes was one’s family, which consisted of the male descendants of a common great-grandfather. The derbfhine voted on such important issues as the division of inheritance or the election of the leader of the derbihine. The smaller group was the gelfhine, or the male descendants of a common grandfather, although, in Munster, and especially among the Dighanachta, it was often more embracing. Women belonged to their husband’s clan, while female children belonged to their father’s family. Slaves made up a fourth class, from which escape was difficult.
Kings were often not kings in the sense one understands today. Rather, they were the rulers of large family groups and the corresponding territory, and owed allegiance to “high kings,” who in turn dominated larger areas. This interdependence and the absence in most cases of a single, dominant ruler fueled the practice of tanistry.
Early Irish kings had ‘clients’ who agreed to provide the king with certain assistance in the form of men-at-arms, food and lodging. A king would confer on a suitable noble client a lordship, which prior to the abolition of tanistry by England’s King James I carried territorial rights. These fiefdoms were of two types, equivalent to comital and baronial status. The lord of a comital fiefdom (a Count) could in turn create baronial fiefdoms. Unlike the English rule of primogeniture, feudal lordships in Ireland were not conferred on a single individual and his descendants in perpetuity.
Feudal lordships were conferred on the initial grantee for the grantee’s lifetime. Upon the death of the grantee, if no successor had yet been designated, members of his derbfhine would vote to determine which of the grantee’s eligible male descendants was best suited to assume the lordship, subject usually to the veto of the conferring king or comital lord. The conferring king or lord was thereupon entitled to the payment of fees for the transfer of the title and its associated lands and buildings in addition to the annual payments required of the lord. In effect, it was a form of contract which conferred two distinct types of property rights on the grantee: (1) the rights in the property which was appurtenant to the title, and (2) the title itself, which was an incorporeal hereditament of the individual grantee.
The lordships conferred were always subject to the payment of the annual fees, and could only be inherited by a member of the deceased lord’s derbjhine upon the payment of an entry fine to the king or overlord. Upon the extinction of the male line of the original grantee, the title and the property appurtenant to it reverted to the grantor, by whom it could once again be granted or sold. The grantee of property, however, could alienate the property, subject to its reversion to the descendants of the original grantor upon the extinction of the original grantee’s male descendants.
The lower classes of society functioned using similar laws. Over time, however, the process had the effect of forcing nobles downward in society as their descendants increased, and permitted the lower echelons to move upwards. The emergence of a new class of noble under the ecclesiastical authorities further changed the face of Irish society in the Middle Ages. This new class consisted of clerics, lawyers, bards and teachers. As the influence of these groups grew, so too did the influence and power of major families, with the result that Ireland was ultimately divided into four distinct kingdoms, Ulster, Munster, Leinster and Connacht.
English Conquest of Ireland
Following the arrival of ‘Strongbow’* some two years earlier, England’s King Henry II of the Angevin Empire came to Ireland in 1171, acting on the authority for such an invasion given by Pope Adrian IV in 1155. Like most of the English ventures in Ireland, it met with only marginal success. Nevertheless, the Irish agreed to recognize the English crown as overlord of Ireland, while English monarchs agreed to recognize the kings of Munster, Ulaid and Leinster as rulers of their domains while still coveting the rich soil of Ireland for their own. Many Anglo-Normans who initially came to Ireland either to trade or as part of an invading army remained, establishing towns and farming the land. With the passage of time, these new settlers became Norman-Irish and by 1366 were so assimilated into Irish society as to be indistinguishable from the native Irish. Although of English heritage, the Norman-Irish had become more Irish than English.
* Richard de Clare, 2nd Earl of Pembroke, Lord of Leinster, Justiciar of Ireland (1130 – 20 April 1176). Like his father, he was also commonly known by his nickname Strongbow (in French: Arc-Fort). He was a Cambro-Norman lord notable for his leading role in the Norman invasion of Ireland.
The English continued in their drive to Anglicize the Irish. Forced Anglicization of the native Irish, however, was resisted, with the result that in the latter half of the twelfth century, the English gave land grants and titles to Englishmen who would emigrate to Ireland. The English established plantations within an area surrounding Dublin which was eventually circled by an earthen barrier known as the Pale, constructed towards the end of the fifteenth century. Although nominally subject to the overlordship of England, Irish rule was never entirely in the hands of the English. Outside the Pale the Irish kings ruled according to Brehon Law and Gaelic customs. As a practical matter, Irish rule was divided between the “Englishry” and the “Irishry.” The “Englishry” consisted of the domains of the Anglo-Irish lords who held land in fief from the English Crown and the area encompassed by the Pale. The “Irishry” made up the rest of Ireland where the Irish kings ruled. The King’s Deputy ruled the “Englishry” in the name of the Crown. In December, 1494, Sir Edward Poynings, then King’s Deputy, introduced Poynings’ Law, which limited the right of the Irish parliament to meet without royal license and required that all parliamentary business must first be approved by the King’s Deputy and his Council in Ireland as well as by the King and his Council in England.
Poynings’ Law fueled the fires of rebellion, and in 1534 Thomas, Lord of Offaly, son of the ninth Earl of Kildare, head of the FitzGeralds and Lord Deputy of Ireland, offered the overlordship of Ireland to the Pope in place of Henry VIII of England. Henry VIII responded by appointing Sir William Skeffington as Lord Deputy and sent him to Ireland at the head of a well-equipped army. The ninth Earl, Garret Oge FitzGerald, was detained in London, where he died a prisoner. His son's castle at Maynooth was taken by Skeffington and Thomas was captured.
All lands of the FitzGeralds of Kildare were declared forfeit to the English Crown and all male members of the family with the exception of an infant half-brother of Thomas were executed in London in 1537. In 1541 the office of King’s Deputy was abolished and Henry VIII was declared King of Ireland by the (English)Parliament of Ireland. In exchange for submission to Henry VIII, he re-granted the lost property to the rebellious Irish kings. By the date of Henry VIII’s death in 1547 some forty Irish lords had ostensibly submitted to English rule, including the FitzGeralds of Desmond, the MacCarthys of Munster, the O’Connors of Leinster and Connacht, and the O’Neills of Ulster. Henry VIII’s re-grant of many of the lands and titles of the ancient Irish nobility was to create further dissension in future generations. Under English law, titles and lands descended through the rule of primogeniture (to the first-born son), whereas under Irish law the male descendant best suited for the position was chosen. The result was internal feuding within the Irish clans, splitting many into factions which favored the English Crown, opposing those which favored the ancient Irish ways.
It was during the reign of England’s Queen Elizabeth I that many events of extraordinary significance to the Irish took place. Elizabeth I had a personal interest in Ireland. Her mother was reared at Carrick-on-Suir, and she was related by blood to the O’Briens and O’Reillys, some of whom became Protestants. Irish policy during the early years of Elizabeth’s reign was dominated by the Earl of Sussex and Sir Henry Sidney. Both men sought quick solutions to a problem which could only be solved through long-term programs and the expenditure of substantial sums which Elizabeth was unwilling to provide.
Elizabeth’s adherence to Protestantism complicated her relationships with Continental Europe and particularly Spain, which gave assistance to Catholic interests in Ireland. It also served as a rallying point for Catholics in Ireland. In 1579, James Fitz-Maurice FitzGerald of Desmond, who had been in exile on the Continent, returned to Ireland and mounted a rebellion. He was joined by Sir John FitzJames and later by the Earl of Desmond. The Geraldine rebellion, as it was known, was put down with merciless ferocity by Arthur, Lord Grey de Wilton, commanding an English army of 8,000 men.
The lands of the Earl of Desmond were declared forfeit to the Crown and an English settlement of some 20,000 people was established on his lands. The property of the ringleaders of the rebellion was forfeited and the ringleaders were executed, usually by hanging, drawing and quartering.
For a period of time it seemed that Ireland had been pacified. The Irish lords who had not participated in the rebellion were still recognized by the Crown and left largely to their own devices.
In 1588, the English Lord President of Munster, Sir Warham St. Leger, sent a tract to the English Privy Council identifying the kings of Ulster, Munster, Leinster and Connacht, and the feudal lordships which were then in existence. For the most part, the rights and prerogatives of the Irish kings whose territories lay outside the Pale were recognized and honored by the (English) government in Dublin, which prudently saw that centralized rule of all Ireland was impossible. Largest, richest and most politically developed of the Gaelic Kingdoms of Ireland was Munster, which at its height comprised all of what are today the counties of Cork, Kerry and Waterford, as well as parts of Limerick and Tipperary. St. Leger noted in his 1588 tract:
The Earl of Clancar, before Her Majesty created him Earl, was, by inheritance MacCartie Mor, by which, among the Irish, he was accounted the Chiefest in the Province, as descended from them that, before they were subdued to the Crown of England, were the Kings of the greater part thereof; and at the time of his creation and surrender of his former titles, he had, and ever since claimeth under his jurisdiction and dominion, fourteen several countries, besides some of lesser quality. . . . He claimeth in these countries the Giving of the Rod to the Chief Lords at their first entrance, who, by receiving a white wand at his hands, for which they are to pay him a certain duty, are thereby declared from henceforth to be Lords of those countries. He claimeth also that they are to Rise Out with him when he makes war; to maintain for him 27 Gallowglasses, besides to find him for a certain time when he cometh to their countries.
Of particular legal significance is the fact that Donal IX MacCarthy Mór, who died in 1596, never abdicated his position as head of the royal Eóghanacht dynasty or renounced his rights of Jus Majestatis and Jus Honorum. Jus majestatis is the right of the sovereign or the head of a formerly regnant royal family to the authority, titles and recognition of such royal status. Jus honorum is the right of the person possessed of Jus Majestatis to confer honors and distinctions upon others as a Fons Honorum, or “fount of honors.” The Jus Majestatis, once acquired, is transmissible Jure Sanguinis, i.e., by blood relationship, to his descendants forever, and is united to such Orders of Nobility as the sovereign or the head of a formerly regnant royal family may possess or create.
As Sir Bernard Burke noted in 1883, Donal IX MacCarthy Mór “was created 22 June 1565, Baron of Valenta and Earl of Clancare, co. Kerry, on resigning his estates to Queen Elizabeth, from whom he again received the investiture of them . . . [H]e soon resigned his title, which he considered a badge of slavery, and resumed the native distinction of M’Carty More.”
As war with Spain seemed inevitable, issues with respect to the government of Ireland were largely ignored by England. Following the defeat of the Spanish Armada in 1588 at the hands of the Royal Navy and British privateers, much of the Spanish fleet was shipwrecked on the west coast of Ireland. The sheriffs of the O’Briens dutifully hanged many of the hapless Spaniards who washed up on the shores of the coast of Clare. Others, however, were more fortunate. Finding the land to their liking, some Spaniards remained and intermarried with the local Irish. The result was the so-called “black Irish” of today, with their dark, reddish-black hair coupled with the blue or green eyes and light skin characteristic of the original Irish.
The English practice of plantation continued unabated in Ireland. In Ulster, however, Hugh O’Neill, second Earl of Tyrone, continued to resist English efforts to extend English authority into Ulster. In 1595 the death of Turlough O’Neill gave Tyrone the opportunity to claim the Gaelic title of The O’Neill, King of Ulster. He renounced his English title and, together with Red Hugh O’Donnell and Hugh Maguire, raised an army and rebelled against Elizabeth I. He defeated every English army sent to subdue him until 1601. In 1598, Tyrone laid siege to the English fort on the Blackwater River. A large expeditionary force under Sir Henry Bagenal which was sent to relieve the fort was soundly defeated at the Battle of Yellow Ford, and rebellion began to spring up throughout Ireland. Bagenal’s annihilation by Tyrone was the most serious blow that Elizabeth I had suffered during her long reign.
In 1599 Elizabeth appointed her trusted friend Robert Devereux (pictured right), Earl of Essex, to be Royal Governor of Ireland and sent him with a force of 16,000 foot soldiers and 1,500 cavalry to subdue Tyrone and put an end to Irish rebellion. Arriving in Dublin in April, Essex decided to concentrate first on putting down rebellion in Ireland outside of Ulster, saving a confrontation with Tyrone for later. Essex fell in love with Ireland. He moved with his great army through Leinster and Munster, reveling in the adulation of the delighted English settlers, oblivious of the passage of time and the reduction of his army by disease, desertions and the necessity to garrison distant outposts. Of his original 16,000 foot soldiers, fewer than 4,000 remained at the end of the summer. When Essex finally met Tyrone, it was not in battle but alone, on horseback, at a ford in a river, while their respective armies waited on opposite sides. Tyrone proposed a truce until the following May, not to be broken without a fortnight’s warning. Essex agreed.
Encouraged by his victories, Hugh O’Neill sought the aid of King Philip III of Spain. Using his Catholic faith as his principal point, although he was never a particularly pious Catholic, Tyrone won the support of Philip. The King of Spain, who by that time was on his deathbed, dispatched a force to Ireland to help Tyrone.
Elizabeth appointed Charles Blount, Lord Mountjoy, Royal Governor of Ireland. Mountjoy defeated Tyrone and the Spanish at Kinsale in 1601. Thus ended the most formidable resistance to English rule which had taken place up to that point in time.
The defeat of Tyrone made it inevitable that English subjugation of Ireland would proceed at an even greater pace. Societal changes would result in further expropriation of the lands of the Catholic Irish nobles. In England the cry was heard that English common law should be applied to all of Ireland, and the English statutes against Jesuits and other seminary priests enforced in Ireland with the same vigor with which they were enforced in England.
England’s King James I abolished Salic tanistry and with it, much of Gaelic feudalism. Nevertheless, the Irish kingdoms and lordships continued to exist. Religion, however, continued to be used as an excuse for denigrating the status of the native Irish and Anglo-Irish, a majority of whom by this time were solidly Roman Catholic. James I tolerated the practice of the Catholic faith in Ireland, but saw to it that only Protestants were appointed to government office or similar positions of trust and responsibility. Despite the Catholic majority in Ireland, Catholics had become second-class citizens.
Following the execution of Charles I and the commencement of the interregnum of Oliver Cromwell, whatever vestiges of religious tolerance may have existed were gone. The lands of the former Irish aristocracy were confiscated and given to English Protestants. Catholics were deprived of most rights guaranteed to English Protestants and many were slaughtered outright by the merciless and fanatical Cromwell.
In 1691, forces of the English Crown defeated the Irish Catholic army of James II at Aughrim, bringing to an end the contest which had begun in 1690 at the Battle of the Boyne. The subsequent Treaty of Limerick in 1991, which firmly established English rule, permitted most of the Irish aristocracy and military leaders to emigrate to France, where they were warmly received. This emigration, known as the “Flight of the Wild Geese,” was to provide Napoleon with some of his greatest generals. The Flight of the Wild Geese, however, stripped Ireland of much of her leadership and intelligentsia. The forces which remained were no match for the English, with the result that between 1691 and the last half of the nineteenth century, the English ruled Ireland with more-or-less a free hand.
The Irish rebellion of 1867 caused genuine alarm in England. The rebellion, coming as it did on the heels of the great famine of 1845-1849, resulted in the further widespread emigration of Irish citizens abroad, resulting in a continual weakening of Ireland’s work force. England’s response to the rebellion of 1867 was more force. The leaders of the Irish rebellion were imprisoned or executed. The plight of the Roman Catholic majority became even more difficult at the hands of the ruling English.
The Twentieth Century
The advent of the twentieth century brought with it a renewed desire of the Irish to be free of English rule. In 1916, Sinn Fein, backed by the Irish Volunteers, again rebelled against the English. English response was swift, predictable and brutal. At the hands of the Cadets and Auxilliaries of the Royal Irish Constabulary (“Black and Tans” as they were known), who were all veterans of the First World War and recruited in England, rebellious Irish were tortured, imprisoned, or executed. Although the Easter Rising of 1916 was unpopular with a majority of the Irish people at the time, the executions of the leaders of the Rising caused a dramatic shift in public opinion and stiffened the resolve of the Irish to be free.
Under the leadership of Eamon de Valera and the military and guerilla expertise of Michael Collins, the civil war which raged throughout Ireland was brought to a close in 1922. The Irish Free State, consisting of what had been the ancient kingdoms of Munster, Leinster and Connacht, became a reality. Much of Ulster, with its protestant majority, remained in English hands.
In 1937, the Irish Free State officially became the Republic of Ireland. A new constitution, Bunreacht na hÉireann, was drafted which, among other provisions, agreed to recognize property rights, which scholars have interpreted to include such rights as they existed at English common law as well as under the ancient Brehon Law which had begun with the Salic Franks.
The St. Leger tract, long forgotten by many, took on a whole new significance. It was evidence of Irish property rights dating back hundreds of years, and identified the owners of those property rights. Since the constitution of Ireland guaranteed recognition of property rights, the question arose as to the property rights identified in the St. Leger tract.
The real property owned by the royal houses of Munster, Leinster and Connacht had long since been alienated, either through voluntary sale or English decree, to owners who had held the land for generations. Any return to the situation which existed in 1596 was obviously impossible. There was, however, a second component in the property rights preserved by the St. Leger tract: the titles of nobility of the Old Gaelic Order.
For the first option you will require a sheep's paunch. Soak the paunch in strong brine for 3 days, wash well in cold water, scrape well with a small knife washing constantly. It should now resemble clean, pink, creamy skin. Sew up all slits and holes leaving one reasonable opening, scald for 30 seconds in boiling water, cool in cold water, shake dry and now fill to 4/5 with the meat. Sew up the opening leaving a good length of the string for handling. Place into a good size pot, cover well with water, bring to boil, reduce heat, cook for 2 hours at a medium simmer. Do not allow to boil, it may split the paunch and do not cover the pot while cooking. To de-pot the Haggis, tip the pot carefully to run off most of the water, then gently slide the Haggis out onto a deep sided tray. When cooled slightly remove to the serving tray.
St. Leger identified seventeen titles in existence in Ireland at the time he sent his report to Queen Elizabeth I. Among these were the titles held by the royal houses of Munster, Leinster and Connacht, as well as many lesser titles. When the Republic of Ireland came into being, it created the office of Chief Herald of Ireland. The Chief Herald was charged with acting in the name of the government with respect to armorial bearings and genealogical records of Irish families or those subject to the jurisdiction of the Chief Herald. It was to the Chief Herald that the responsibility fell of dealing with the issues surrounding property rights in ancient Irish titles which must be recognized by the government of Ireland under the Constitution of 1937.
The argument advanced was relatively simple and straight-forward. The ancient titles described in the St. Leger tract had two components: (1) the real property associated with the title, and (2) the title itself. Following the Jacobite War of 1690 and the ‘Flight of the Wild Geese’, Ireland’s royal personages fled to the Continent. Significantly, however, none abdicated his royal position or renounced his title. Indeed, most were immediately recognized by Continental governments.
Since Ireland recognized property rights, including those created under Brehon Law, it necessarily had to recognize the property rights which were embodied in the ancient Irish titles, notwithstanding that Ireland does not recognize titles nor does it create any. In 1943, the Chief Herald agreed that the property rights in ancient Irish titles were constitutionally recognized by the Irish government and would be treated as such. A more interesting paradox remains. Presumably the British government must also recognize these Irish titles as a matter of comity, although it has steadfastly refused to do so.
In many cases, the titles described by St. Leger had reverted to the royal house of Munster, because of the extinction of the male line of the original grantee. This reversion is a principal feature of Salic tanistry and Brehon Law. As the feudal lords upon whom such titles depended, the heads of the Irish royal houses were in a position to alienate those titles which had reverted back to them due to the extinction of the male lines of the original grantees. Of course, once a title is granted, or in legal parlance, alienated, the title remains in the male blood line of the grantee until that line becomes extinct, a circumstance much less likely to occur in the twentieth century than in the fifth, or until the conditions of the grant are violated by the title’s holder.
Under Brehon Law, the overlord is entitled to the payment of a fine or passage fee upon each transfer of the title to a new generation. The overlord can also exercise a certain degree of control over the destination of the title, choosing between sons or other male relatives within the derbfhine, in order to vest the title in the successor considered most worthy, either at the request of the father or the determination of the feudal lord. From 1943 until 2003 some of the modern representatives of the Gaelic nobility obtained a ‘courtesy recognition’ from the Irish government. The practice ended in 2003 following the scandal of a false MacCarthy Mór and as a result of concerns that the practice of ‘courtesy recognition’ was unconstitutional.
The current MacCarthy Mór is Liam Trant MacCarthy (Mór) (b. 1957).
Captain Mitchell Lee Lathrop, JAGC, USNR (Ret.), GCLJ, GCMLJ, CD, BS, JD, is admitted to the practice of law in California, New York, the District of Columbia and before the U.S. Supreme Court, as well as the U.S. Courts of Appeals for the Second, Ninth, Tenth, District of Columbia and Federal Circuits. He is a graduate of the United States Naval Acaderny and the University of Southern California Law School.