Part 6 (1/2)

The uncultivable, unreclaimed forest, mountain, and bog-land was common property in the wider sense that there was no several appropriation of it even temporarily by individuals. It was used promiscuously by the clansmen for grazing stock, procuring fuel, pursuing game, or any other advantage yielded by it in its natural state.

Kings and _flaiths_ were great stock-owners, and were allowed to let for short terms portions of their official lands. What they more usually let to clansmen was cattle to graze either on private land or on a specified part of the official land, not measured, but calculated according to the number of beasts it was able to support.

A _flaith_ whose stock for letting ran short hired some from a king and sublet them to his own people. A _feine, aithech_, or _ceile_ (kailyeh), as a farmer was generally called, might hire stock in one of two distinct ways: _saer_-”free”, which was regulated by the law, left his status unimpaired, could not be terminated arbitrarily or unjustly, under which he paid one-third of the value of the stock yearly for seven years, at the end of which time what remained of the stock became his property, and in any dispute relating to which he was competent to sue or defend even though the _flaith_ gave evidence; or _daer_--”bond”, which was matter of bargain and not of law, was subject to onerous conditions and contingencies, including maintenance of kings, _flaiths_, or brehons, with their retinues, on visitations, of disbanded soldiers, etc., under which the stock always remained the property of the _flaith_, regarding which the _ceile_ could not give evidence against that of the _flaith_, which degraded the _ceile_ and his _fine_ and impaired their status; a bargain therefore which could not be entered into without the sanction of the _fine_. This prohibition was rendered operative by the legal provision that in case of default the _flaith_ could not recover from the _fine_ unless their consent had been obtained. The letting of stock, especially of _daer_-stock, increased the _flaith's_ power as a lender over borrowers, subject, however, to the check that his rank and _eineachlann_ depended on the number of independent clansmen in his district.

Though workers in precious metals, as their ornaments show, the ancient Irish did not coin or use money. Sales were by barter. All payments, tribute, rent, fulfilment of contract, fine, damages, wages, or however else arising, were made in kind--horses, cows, store cattle, sheep, pigs, corn, meal, malt, bacon, salt beef, geese, b.u.t.ter, honey, wool, flax, yarn, cloth, dye-plants, leather, manufactured articles of use or ornament, gold, and silver--whatever one party could spare and the other find a use for.

Tributes and rent, being alike paid in kind and to the same person, were easily confused. This tempted the _flaith_, as the system relaxed, to extend his official power in the direction of owners.h.i.+p; but never to the extent of enabling him to evict a clansman. For a crime a clansman might be expelled from clan and territory; but, apart from crime, the idea of eviction from one's homestead was inconceivable. Not even when a _daer-ceile_, or ”unfree peasant”, failed to make the stipulated payments could the _flaith_ do more than sue as for any other debt; and, if successful, he was bound, in seizing, to leave the family food-material and implements necessary for living and recovering.

LAW OF DISTRAINING. _Athgabail_ ([)a]h-gowil) = ”distress”, was the universal legal mode of obtaining anything due, or justice or redress in any matter, whether civil or criminal, contract or tort. Every command or prohibition of the law, if not obeyed, was enforced by _athgabail_. The brehons reduced all liabilities of whatsoever origin to material value to be recovered by this means. Hence its great importance, the vast amount of s.p.a.ce devoted to it in the laws, and the fact that the law of distress deals incidentally with every other branch of law and reveals best the customs, habits, and character of the people. A claimant in a civil case might either summon his debtor before a brehon, get a judgment, and seize the amount adjudged, or, by distraining first at his own risk, force the defendant either to pay or stop the seizure by submitting the matter in dispute to trial before a brehon, whom he then could choose. There was no officer corresponding to a sheriff to distrain and realize the amount adjudged; the person ent.i.tled had to do it himself, accompanied by a law-agent and witnesses, after, in ”distress with time”, elaborate notices at intervals of time sufficient to allow the defendant to consider his position and find means of satisfying the claim if he could. In a proper case his hands were strengthened by very explicit provisions of the law. ”If a man who is sued evades justice, knowing the debt to be due of him, double the debt is payable by him.” In urgent cases ”immediate distress” was allowed. In either case the property seized--usually cattle--was not taken to the plaintiff's home, but put into a pound, and by similar easy stages became his property to the amount of the debt. The costs were paid out of what remained, and any ultimate remainder was returned. On a _fuidir_ (foodyir) = serf or other unfree person resident in the territory incurring liability to a clansman, the latter might proceed against the _flaith_ on whose land the defendant lived, or might seize immediately any property the defendant owned, and if he owned none, might seize him and make him work off the debt in slavery.

Seizure of property of a person of higher rank than the plaintiff had to be preceded by _troscead_ (truscah) = fasting upon him. This consisted in waiting at the door of the defendant's residence without food until the debt was paid or a pledge given. The laws contained no process more strongly enforced than this. A defendant who allowed a plaintiff properly fasting to die of hunger was held by law and by public opinion guilty of murder, and completely lost his _eineachlann_. Both text and commentary declare that whoever refuses to cede a just demand when fasted upon shall pay double that amount.

If the faster, having accepted a pledge, did not in due course receive satisfaction of his claim, he forthwith distrained, taking and keeping double the amount of the debt. The law did not allow those whom it at first respected to trifle with justice.

_Troscead_ is believed to have been of druidical origin, and it retained throughout, even in Christian times, a sort of supernatural significance. Whoever disregarded it became an outcast and incurred risks and dangers too grave to be lightly faced. Besides being a legal process, it was resorted to as a species of elaborate prayer, or curse,--a kind of magic for achieving some difficult purpose. This mysterious character enhanced its value in a legal system deficient in executive power.

NON-CITIZENS. From what precedes it will be understood that there were in ancient Ireland from prehistoric times people not comprised in the clan organization, and therefore not enjoying its rights and advantages or ent.i.tled to any of its land, some of whom were otherwise free within certain areas, while some were serfs and some slaves. Those outsiders are conjectured to have originated in the earlier colonists subdued by the Milesians and reduced to an inferior condition. But the distinction did not wholly follow racial lines.

Persons of pre-Milesian race are known to have risen to eminence, while Milesians are known to have sunk, from crime or other causes, to the lowest rank of the unfree. Here and there a _daer-tuath_ = ”bond community”, of an earlier race held together down to the Middle Ages in districts in which conquest had left them and to which they were restricted. Beyond that restriction, exclusion from the clan and its power, some peculiarities of dialect, dress, and manners, and a tradition of inferiority such as still exists in certain parishes, they were not molested, provided they paid tribute, which may have been heavy.

There were also _bothachs_ = cottiers, and _sen-cleithes_ = old adherents of a _flaith_, accustomed to serve him and obtain benefits from him. If they had resided in the territory for three generations, and been industrious, thrifty, and orderly, on a few of them joining their property together to the number of one hundred head of cattle, they could emanc.i.p.ate themselves by appointing a _flaithfine_ and getting admitted to the clan. Till this was done, they could neither sue nor defend nor inherit, and the _flaith_ was answerable for their conduct.

There being no prisons or convict settlements, any person of whatever race convicted of grave crime, or of cowardice on the field of battle, and unable to pay the fines imposed, captives taken in foreign wars, fugitives from other clans, and tramps, fell into the lowest ranks of the _fuidre_--”serfs.” It was as a captive that Saint Patrick was brought in his youth to Ireland. The law allowed, rather than ent.i.tled, a _flaith_ to keep unfree people for servile occupations and the performance of unskilled labor for the public benefit. In reality they worked for his personal profit, oftentimes at the expense of the clan. They lived on his land, and he was responsible for their conduct. By a.n.a.logy, the distinctions _saer_ and _daer_ were recognized among them, according to origin, character, and means. Where these elements continued to be favorable for three generations, progress upward was made; and ultimately a number of them could club together, appoint a _flaithfine_, and apply to be admitted to the clan.

A _mog_ was a slave in the strict sense, usually purchased as such from abroad, and legally and socially lower than the lowest _fuidir_.

Giraldus Cambrensis, writing towards the close of the twelfth century, tells us that English parents then frequently sold their surplus children and other persons to the Irish as slaves. The Church repeatedly intervened for the release of captives and mitigation of their condition. The whole inst.i.tution of slavery was strongly condemned as un-Christian by the Synod held in Armagh in 1171.

CRIMINAL LAW. Though there are numerous laws relating to crime, to be found chiefly in the _Book of Aicill_, criminal law in the sense of a code of punishment there was none. The law took cognizance of crime and wrong of every description against person, character, and property; and its function was to prevent and restrict crime, and when committed to determine, according to the facts of the case and the respective ranks of the parties, the value of the compensation or reparation that should be made. It treated crime as a mode of incurring liability; ent.i.tled the sufferer, or, if he was murdered, his _fine_, to bring the matter before a brehon, who, on hearing the case, made the complicated calculations and adjustments rendered necessary by the facts proved and by the grades to which the respective parties belonged, arrived at and gave judgment for the amount of the compensation, armed with which judgment, the plaintiff could immediately distrain for that amount the property of the criminal, and, in his default, that of his _fine_. The _fine_ could escape part of its liability by arresting and giving up the convict, or by expelling him and giving substantial security against his future misdeeds.

From the number of elements that entered into the calculation of a fine, it necessarily resulted that like fines by no means followed like crimes. Fines, like all other payments, were adjudged and paid in kind, being, in some cases of the destruction of property, generic--a quant.i.ty of that kind of property. Large fines were usually adjudged to be paid in three species, one-third in each, the plaintiff taking care to inform correctly the brehon of the kinds of property the defendant possessed, because he could seize only that named, and if the defendant did not possess it, the judgment was ”a blind nut.” Crime against the State or community, such as wilful disturbance of an a.s.sembly, was punished severely. These were the only cases to which the law attached a sentence of death or other corporal punishment. For nothing whatsoever between parties did the law recognize any duty of revenge, retaliation, or the infliction of personal punishment, but only the payment of compensation. Personal punishment was regarded as the commission of a second crime on account of a first. There was no duty to do this; but the right to do it was tacitly recognized if a criminal resisted or evaded payment of an adjudged compensation. Criminal were distinguished from civil cases only by the moral element, the sufferer's right in all cases to choose a brehon, the loss of _eineachlann_, partial or whole according to the magnitude of the crime, the elements used in calculating the amount of fine, and the technical terms employed.

_Dire_ (djeereh) was a general name for a fine, and there were specific names for cla.s.ses of fines. _Eric_ = reparation, redemption, was the fine for killing a human being, the amount being affected by the distinction between murder and manslaughter and by other circ.u.mstances; but in no case was a violent death, however innocent, allowed to pa.s.s without reparation being made. A fine was awarded out of the property of the convict or of his _fine_ to the _fine_ of the person slain, in the proportions in which they were ent.i.tled to inherit his property, that being also according to their degrees of kins.h.i.+p and the degrees in which they were really sufferers. This gave every clan and every clansman, in addition to their moral interest, a direct monetary interest in the prevention and suppression of crime. Hence the whole public feeling of the country was entirely in support of the law, the honor and interest of community and individual being involved in its maintenance. The injured person or _fine_, if unable to recover the fine, might, in capital cases, seize and enslave, or even kill, the convict. Probably restrained by the fact that, there being no officers of criminal law, they had to inflict punishment themselves, they sometimes imprisoned a convict in a small island, or sent him adrift on the sea in a _currach_ or boat of hide. Law supported by public opinion, powerful because so inspired, powerful because unanimous, was difficult to evade or resist. It so strongly armed an injured person, and so utterly paralyzed a criminal, that escape from justice was hardly possible. The only way in which it was possible was by flight, leaving all one's property behind, and sinking into slavery in a strange place; and this in effect was a severe punishment rather than an escape.

FOREIGN LAW. The Danes and other Nors.e.m.e.n were the buccaneers of northwestern Europe from the eighth to the eleventh century. They conquered and settled permanently in Neustria, from them called Normandy, and conquered and ruled for a considerable time England and part of Scotland and the Isles. In Ireland they were little more than marauders, having permanent colonies only round the coast; always subject, nominally at least, to the _ard-ri_ or to the local chief; paying him tribute when he was strong, raiding his territory when he was weak, and fomenting recurrent disorder highly prejudicial to law, religion, and civilization. They never made any pretence of extending their laws to Ireland, and their attempt to conquer the country was finally frustrated at Clontarf in 1014.

The Anglo-Norman invaders also seized the seaports. The earlier of them who went inland partially adopted in the second generation the Gaelic language, laws, and customs; as many non-Celtic Lowlanders of Scotland about the same period adopted the Gaelic language, laws, and customs of the Highlanders. Hence they did not make much impression on the Gaelic system, beyond the disintegrating effect of their imperfect adoption of it.

Into the eastern parts of Ireland, however, a fresh stream of English adventurers continued to flow, as aggressive and covetous as their means and prudence permitted; calling so much of the country as they were able to wrench from the Irish ”the English Pale”, which fluctuated in extent with their fortunes; and, when compelled to pay tribute to Irish chiefs, calling it ”black rent”, to indicate how they regarded it. Their greatest difficulty was to counteract the tendency of the earlier colonists to become Hibernicized--a most unwilling tribute to the superiority of the Irish race. They, and still more those in England who supported them, knew nothing of the Irish language, laws, and inst.i.tutions but that they should all be impartially hated, uprooted, and supplanted by English people and everything English as soon as means enabled this to be done. This was the amiable purpose of the pompously-named ”Statute of Kilkenny”, pa.s.sed by about a score of these colonists in 1367. Presuming to speak in the name of Ireland, the statute prohibited the English colonists from becoming Irish in the numerous ways they were accustomed to do, and excluded all Irish priests from preferment in the Church, partly because their superior virtue would by contrast amount to a censure. The purpose was not completely successful even within the Pale. Outside that precinct, the ma.s.s of the Irish were wholly unconscious of the existence of the ”Statute of Kilkenny.” But expressing, as the statute did correctly, the views of fresh adventurers, it became, in arrogance and in the pretension to speak for the whole of Ireland, a model for their future legislation and policy.

Under King Henry VI. of England, Richard, Duke of York, being Lord Deputy, the Parliament of the Pale, a.s.sembled in Dublin, repudiated the authority of the English Parliament in Ireland, established a mint, and a.s.sumed an att.i.tude of almost complete independence. On the other hand, in 1494, under Henry VII., the Parliament of the Pale, a.s.sembled at Drogheda, pa.s.sed Poyning's Act, extending all English laws to Ireland and subjecting all laws pa.s.sed in Ireland to revision by the English Council. This, extended to the whole of Ireland as English power extended, remained in force until 1782. Henry VIII. was the first English sovereign to take practical measures for the pacific and diplomatic conquest of the whole of Ireland and the subst.i.tution of English for Irish inst.i.tutions and methods. His daughter, Queen Elizabeth, continued and completed the conquest; but it was by drenching the country in blood, by more than decimating the Irish people, and by reducing the remnant to something like the condition of the ancient _fuidre_. Her policy prepared the ground for her successor, James I., to exterminate the Irish from large tracts, in which he planted Englishmen and Scotchmen, and to extend all English laws to Ireland and abolish all other laws. James's English attorney-general in Ireland, Sir John Davies, in his work, _A Discoverie of the True Causes, etc._, says:

”For there is no nation of people under the sunne that doth love equall and indifferent [= impartial] justice better than the Irish; or will rest better satisfied with the execution thereof, although it bee against themselves; so as they may have the protection and benefit of the law, when uppon just cause they do desire it.”

The ancient Irish loved their laws and took pride in obeying and enforcing them. The different att.i.tude of the modern Irish towards foreign laws and administration is amply explained by the morally indefensible character of those laws and that administration, to be read in English statutes and ordinances and in the history of English rule in Ireland--a subject too vast and harrowing, and in every sense foreign to what has gone before, to be entered upon here. Though the Parliament of 1782-1800 was little more than a Pale Parliament, in which the ma.s.s of the Irish people had no representation whatever, one of its Acts, to its credit be it said, was an attempt to mitigate the Penal Laws and emanc.i.p.ate the oppressed Gaelic and Catholic population of Ireland. With the partial exception of that brief interval, law in Ireland has, during the last 360 years, meant English laws specially enacted for the destruction of any Irish trade or industry that entered into compet.i.tion with a corresponding English trade or industry. In later times those crude barbarities have been gradually superseded by the more defensible laws now in force in Ireland, all of which can be studied in statutes pa.s.sed by the Parliament, since the Union with Scotland, called British.

REFERENCES:

Pending the desirable work of a more competent Brehon Law Commission and translators, the subject must be studied in the six volumes of _Ancient Laws of Ireland_, produced by the first Commission, from 1865 to 1901, ignoring the long introductions and many of the notes.

Whitley Stokes: Criticism of Atkinson's Glossary (London, 1903); R.

Dareste: Etudes d'histoire de droit (Paris, 1889); d'Arbois de Jubainville and Paul Collinet: Etudes sur le droit celtique, 2 vols.

(Paris, 1895); Joyce: Social History of Ancient Ireland, 2 vols.