Part 47

In the earliest times all learned men, whether specially learned in law or not, appear to have acted as judges. Gradually as literature and learning increased, judgments delivered by men without special legal training fell into disfavour. In the 1st century of the Christian era, when Conchobhar or Conor Mac Nessa was king of Ulster, a crisis was reached, the result of which was that no man was allowed to act as Brehon until he had studied the full law course, which occupied twenty years, and had passed a rigorous public examination. The course of study for Brehon and Ollamh, advocate and law-agent respectively, is carefully laid down in the law itself. The Brehonship was not an office of state like that of the modern judge, but a profession in which success depended upon ability and judgment. The Brehon was an arbitrator, umpire, and expounder of the law, rather than a judge in the modern acceptation. It appears, without being expressly stated, that the facts of a case were investigated and ascertained by laymen, probably by the _Aireachtas_--a local assembly or jury--before submission to a Breton for legal decision. A Brehon whose decision was reversed upon appeal was liable to damages, loss of position and of free lands, if any, disgrace, and a consequent loss of his profession. No Brehon had any fixed territorial jurisdiction. A party initiating proceedings could select any Brehon he pleased, if there were more than one in his district. Every king or chief of sufficient territory retained an official Brehon, who was provided with free land for his maintenance. In ordinary cases the Brehon's fee was said to have been one-twelfth of the amount at stake.

Assemblies, national, provincial and local, were a marked characteristic of ancient Irish life. They all, without exception, discharged some legal functions, legislative or administrative, and even in those in which amusement predominated, the _Cain_ law was publicly rehearsed. Most of the assemblies were annual, some triennial, some lasted only a day or two, others a week and occasionally longer. All originated in pagan funeral or commemorative rites, and continued to be held, even in Christian times, in very ancient cemeteries. They were called by different names--_Feis, Aenach, Aireachtas, Dal, &c._

The Feis of Tara, in Meath, was from its origin seven centuries before Christ down to A.D. 560, mainly national and political, being convened by the Ard-Rig, held at his residence, presided over by him, and consisting of the provincial kings, tanists, flaiths, Brehons, warriors, historians, poets and other distinguished men from the whole of Ireland. It was due to be held every third year for the purpose of "preserving the laws and rules," and it might be called specially on any urgent occasion. After the statesmen had consulted, the laws were proclaimed, with any modifications agreed upon. Then the proceedings became festive, queens and great ladies taking part. The Feis of A.D. 560 was the last regular one held at Tara because the monarch ceased to reside there. One national assembly of an exceptional character was held at Tara in A.D. 697, by a decree of which women were emancipated from liability to military service.

The Aenach held annually at Tailltenn, also in Meath, was a general assembly of the people without restriction of rank, clan or country, and became the most celebrated for athletic sports, games and contests. Yet even here the laws were read aloud, and it is not without significance that the last national assembly held at Tailltenn under King Rhoderic O'Connor in 1168 was a political one.

The _Dal-Criche_ (= territorial assembly), held at Uisneach in Westmeath, was a gathering for political and quasi-legislative purposes. At one assembly there about a century before Christ, a uniform law of distraint for the whole of Ireland was adopted on the motion of Sen, son of Aige. This did not prevent the gatherings at Uisneach from being for ages celebrated for gaiety and amusement.

Each provincial kingdom and each tuath had assemblies of its own. Every _flaith_ and _flaith-fine_ was a member of a local assembly, the clan system conferring the qualification, and there being no other election.

An assembly when convened by the _Bruigh-fer_ for the special purpose of electing a tanist or successor to the king was called a _Tocomra_.

Very careful provision is made for the preparation of the sites of great assemblies, and the preservation of peace and order at them is sanctioned by the severest penalties of the law. The operation of every legal process calculated to occasion friction, such as seizure of property, was suspended during the time the assemblies lasted.

The term _Rig_ (reeh = _rex_, king) was applied to four classes or grades of rulers, the lower grades being grouped, each group being subject to one of their number, and all being subject to, and owing tribute and allegiance to the Ard-Rig (= supreme king of Erinn). The Ard-Rig had an official residence at Tara and the kingdom of Meath for his special use. The provincial king, Rig Cuicidh, also had an official residence and kingdom of his own, together with allegiance and tribute from each Rig-mor-Tuatha in his province, who in his turn received tribute and allegiance from each Rig-Tuatha under subjection to him. The Rig-Tuatha received tribute and allegiance from the flaiths or nobles in his tuath. The tuath was the political unit, and the ruler of it was the lowest to whom the term "king" was applied. For each payment of tribute a king always made some return. Every king was obliged, on his inauguration, to swear that he would govern justly and according to law, to which he remained always subject. The Ard-Rig was selected by the sub-kings and other leading men who legally constituted the Feis of Tara, the sub-kings by those under them in their respective spheres. No person not of full age, imperfectly educated, stupid, blind, deaf, deformed or otherwise defective in mind or body, or for any reason whatsoever unfit to discharge the duties or unworthy to represent the manhood of the nation, could be king, even though he were the eldest son of the preceding king. "It is a forbidden thing for one with a blemish to be king at Tara."

_Tuath, Cinel_ and _Clann_ were synonyms meaning a small tribe or nation descended from a common ancestor. A king and clan being able, subject to certain limitations, to adopt new members or families, or amalgamate with another clan, the theory of common origin was not rigidly adhered to. Kinship with the clan was an essential qualification for holding any office or property. The rules of kinship largely determined status with its correlative rights and obligations, supplied the place of contract and of laws affecting the ownership, disposition and devolution of property, constituting the clan an organic, self-contained entity, a political, social and mutual insurance co-partnership. The solidarity of the clan was its most important and all-pervading characteristic. The entire territory occupied by a clan was the common and absolute property of that clan. Subject to this permanent and fundamental ownership, part of the land was set apart for the maintenance of the king as such. Warriors, statesmen, Brehons, Ollamhs, physicians, poets, and even eminent workers in the more important arts, were, in different degrees, rewarded with free lands for their respective public services. On the death of any person so rewarded, the land in theory reverted to the clan; but if like services continued to be rendered by the son or other successor, and accepted by the clan, the land was not withdrawn. The successors of statesmen, for whom the largest provision was made, became a permanent nobility. Flaith (flah = noble chief) was a term applied to a man of this rank. Rank, with the accompanying privileges, jurisdiction and responsibility, was based upon a qualification of kinship and of property, held by a family for a specified number of generations, together with certain concurrent conditions; and it could be lost by loss of property, crime, cowardice or other disgraceful conduct. The flaiths in every tuath and all ranks of society were organized on the same hierarchical pattern as royalty. A portion of land called the _Cumhal Senorba_ was devoted to the support of widows, orphans and old childless people.

_Fine_ (finna), originally meaning family, came in course of time to be applied to a group of kindred families or to a whole clan. From differences between incidental accounts written in different ages, it appears that the social system underwent some change. For the purpose of conveying some idea, one theory may be taken, according to which the _fine_ was made up of seventeen clansmen, with their families, viz. the _Geilfine_ consisting of the flaith-fine and four others in the same or nearest degree of kinship to the centre, and the _Deirbhfine, Tarfine_ and _Innfine_, each consisting of four heads of families, forming widening concentric circles of kinship to which the rights and liabilities of the _fine_ extended with certainty, but in diminishing degrees.

In course of time a large and increasing proportion of the good land became, under the titles so far described, limited private property. The area of arable land available for the common use of the clansmen was gradually diminished by these encroachments, but was still always substantial. A share of this was the birthright of every law-abiding member of the Feini who needed it. To satisfy this title and give a start in life to some young men who would otherwise have got none, this land was subject to _Gabhailcine_ (= clan-resumption), meaning that the clan resumed the whole area at intervals of a few years for a fresh distribution after some occupants had died, and young men by attaining manhood had become entitled. Hence the Anglo-Irish word _gavelkind_. Anciently this re-distribution extended throughout the clan at the same time. Later it extended only to the land of a _fine_, each _fine_ making its own distribution at its own time and in its own way as determined by the seventeen men above specified. In this distribution men might or might not receive again their former portions. In the latter case compensation was made for unexhausted improvements. This land could not be sold, nor even let except for a season in case of domestic necessity. The Feini who used it had no landlord and no rent to pay for this land, and could not be deprived of it except by the clan for a crime. They were subject only to public tributes and the ordinary obligations of free men. Presumably their homesteads were not on this land and were not subject to _Gabhailcine_. Neither were the unfenced and unappropriated common lands--waste, bog, forest and mountain--which all clansmen were free to use promiscuously at will.

There was hardly any selling and little letting of land in ancient times. Flaiths and other persons holding large areas let to clansmen, who then became _Ceiles_, not land, but the privilege of feeding upon land a number of cattle specified by agreement. Flaiths and Bo-aires also let cattle to a _ceile_ who had none or not enough, and this was the most prevalent practice. There were two distinct methods of letting and hiring--_saer_ (= free) and _daer_ (= base), the conditions being fundamentally different. The conditions of _saer_-tenure were largely settled by the law, were comparatively easy, did not require any security to be given, left the _ceile_ free within the limits of justice to end the connexion, left him competent in case of dispute to give evidence against that of the flaith, and did not impose any liability on the _fine_ of the _ceile_. By continued user of the same land for some years and discharge of the public obligations in respect of it in addition to the _ciss_ or payment as tenant, a _ceile_ became a sub-owner or permanent tenant and could not be evicted. There is no provision in these laws for evicting any one. For the hire of cattle a usual payment was one beast in seven per annum for seven years; after which the cattle that remained became the property of the hirer. A _saer-ceile_ on growing wealthy might become a _bo-aire_. _Daer-tenure_, whether of cattle or of the right to graze cattle upon land, was subject to a _ciss-ninsciss_ (= wearisome tribute), for the payment of which security had to be given. A man not in the enjoyment of full civil rights, if able to find security, could become a _daer-ceile_. A free clansman by becoming a _daer-ceile_ lowered his own status and that of his _fine_, became incompetent to give evidence against that of a flaith, and could not end the connexion until the end of the term except by a large payment. The members of his _fine_ were liable, in the degree of their relationship, to make good out of their own property any default in the payments. Hence this tenure could not be legally entered into by a free clansman without the permission of his fine. _Daer-ceiles_ were also exposed to casual burdens, like that of lodging and feeding soldiers when in their district. All payments were made in kind. When the particular kind was not specified by the law or by agreement, the payments were made according to convenience in horses, cattle, sheep, pigs, wool, butter, bacon, corn, vegetables, yarn, dye-plants, leather, cloth, articles of use or ornament, &c. As the clan system relaxed, and the fine lost its legal power of fixing the amounts of public tributes, which were similarly payable to the _flaith_, and neglected its duty of seeing that those tributes were duly applied, the _flaith_ became able to increase these tributes with little check, to confuse them with rent, to confuse jurisdiction with ownership, and to exalt himself at the expense of his fellow-clansmen. A _flaith_ by arranging that his tenants should make their payments at different periods of the year, secured a constant and copious supply without an inconvenient surplus.

People who did not belong to the clan and were not citizens were in a base condition and incompetent to appear in court in suit or defence except through a freeman. The _Bothach_ (= cottier) and the _Sen-cleithe_ (= old dependent) were people who, though living for successive generations attached to the families of flaiths, did not belong to the clan and had no rights of citizenship. _Fuidhirs_, or manual labourers without property, were the lowest section of the population. Some were born in this condition, some clansmen were depressed into it by crime, consequences of war or other misfortune; and strangers of a low class coming into the territory found their level in it. The _fuidhirs_ also were divided into _saer_ and _daer_; the former being free by industry and thrift to acquire some property, after which five of them could club together to acquire rights corresponding to those of one freeman. The _daer-fuidhirs_ were tramps, fugitives, captives, &c.

Fosterage, the custom of sending children to be reared and educated in the families of fellow-clansmen, was so prevalent, especially among the wealthy classes, and the laws governing it are so elaborate and occupied such a large space, that some mention of it here is inevitable. Beyond mention, there is little to be said, owing to the absence of general principles in an infinity of specific details, mostly domestic and apparently trivial. A child in fosterage was reared and educated suitably for the position it was destined to fill in life. There was fosterage for affection, for payment and for a literary education. Fosterage began when the child was a year old and ended when the marriageable age was reached, unless previously terminated by death or crime. Every fostered person was under an obligation to provide, if necessary, for the old age of foster-parents. The affection arising from this relationship was usually greater, and was regarded as more sacred than that of blood relationship.

The solidarity of clan and _fine_ in their respective spheres, the provisions of the system, the simple rural life, and the prevalence of barter and payments in kind, left comparatively little occasion for contracts between individuals. Consequently the rules relating to contract are not very numerous. They are, however, sufficiently solemn. No contract affecting land was valid unless made with the consent of the _fine_ and in the presence of the _Aire-Forgaill_. Contracts relating to other kinds of property are more numerous. When important or involving a considerable amount, they had to be made in the presence of a _flaith_ or magistrate. The _Aire-Coisring_ presided over most of the contracts of the common people. The parties to a contract should be free citizens, of full age, sound mind, free to contract or not, and under no legal disability. "The world would be in a state of confusion if express contracts were not binding." From the repeated correlative dicta that "nothing is due without deserving," and that a thing done "for God's sake," i.e. gratis, imposed little obligation, it is clear that the importance of valuable consideration was fully recognized. So also was the importance of time. "To be asleep avails no one"; "Sloth takes away a man's welfare." Contracts made by the following persons were invalid: (1) a servant without his master's authority; (2) a monk without authority from his abbot or manager of temporalities; (3) a son subject to his father without the father's authority; (4) an infant, lunatic, or "one who had not the full vigilance of reason"; (5) a wife in relation to her husband's property without his authority. She was free to hold and deal with property of her own and bind it by contract. If a son living with his father entered into a contract with his father's knowledge, the father was held to have ratified the contract unless he promptly repudiated it. "One is held to adopt what he does not repudiate after knowledge, having the power." Contract of sale or barter with warranty could be dissolved for fraud, provided action was taken within a limited time after the fraud had become known. Treaties and occasional very important contracts were made "blood-covenants" and inviolable by drawing a drop of blood from the little finger of each of the contracting parties, blending this with water, and both drinking the mixture out of the same cup. The forms of legal evidence were pledges, documents, witnesses and oaths. In cases of special importance the pledges were human beings, "hostage sureties." These were treated as in their own homes according to the rank to which they belonged, and were discharged on the performance of the contract. If the contract was broken, they became prisoners and might be fettered or made to work as slaves until the obligation was satisfied. Authentic documents were considered good evidence. A witness was in all cases important, and in some essential to the validity of a contract. His status affected the force of the contract as well as the value of his evidence; and the laws appear to imply that by becoming a witness, a man incurred liabilities as a surety. The pre-Christian oath might be by one or more of the elements, powers or phenomena of nature, as the sun, moon, water, night, day, sea, land. The Christian oath might be on a copy of the Gospels, a saint's crozier, relic or other holy thing.

These laws recognized crime, but in the same calm and deliberate way in which they recognized contract and other things seriously affecting the people. Although we find in the poems of Dubhthach, written in the 5th century and prefixed to the _Senchus Mor_, the sentences, "Let every one die who kills a human being," and "Every living person that inflicts death shall suffer death," capital punishment did not prevail in Ireland before or after. The laws uniformly discountenanced revenge, retaliation, the punishment of one crime by another, and permitted capital punishment only in the last resort and in ultimate default of every other form of redress. They contain elaborate provision for dealing with crime, but the standpoint from which it is regarded and treated is essentially different from ours. The state, for all its elaborate structure, did not assume jurisdiction in relation to any crimes except political ones, such as treason or the disturbance of a large assembly. For these it inflicted the severest penalties known to the law--banishment, confiscation of property, death or putting out of eyes. A crime against the person, character or property of an individual or family was regarded as a thing for which reparation should be made, but the individual or family had to seek the reparation by a personal

## action. This differed from a civil action only in the terms employed and

the elements used in calculating the amount of the reparation. The function of a judge in a criminal as in a civil action was to see that the facts, with modifying circumstances, were fully and truly submitted to him, and then by applying the law to these facts to ascertain and declare the amount of compensation that would make a legal adjustment. For this amount the guilty person, and in his default his kindred, became legally debtor, and the injured person or family became entitled to recover the amount like a civil debt by distraint, if not paid voluntarily. There were no police, sheriffs or public prisons. The decisions of the law were executed by the persons concerned, supported by a highly organized and disciplined public opinion springing from honour and interest and inherent in the solidarity of the clan. There is good reason to believe that the system was as effectual in the prevention and punishment of crime and in the redress of wrongs as any other human contrivance has ever been.