CAPITAL PUNISHMENT (2)

From The Brehon Laws by Laurence Ginnell, 1894

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Still, having resented cant, one is free to say that possibly the principle of reparation would have given place to the death penalty as in England, or (more likely) would have been made an accompaniment of the death penalty as in France, had Ireland been ruled as those countries were by a competent central government. For centuries its nominal government was incompetent and external.

At a very early period in Ireland, as elsewhere, the acceptance of eric may have been optional. The family whose member had been murdered might not seek eric, or might reject it if offered, and proceed to revenge. Also, if a murderer unable to pay eric was surrendered by his relatives to the family of his victim, the latter might kill him if they pleased if nobody intervened to save his life by paying the eric. I believe the Brehon Laws do not expressly forbid persons suffering actual personal outrage to chastise a criminal caught redhanded; and there is even a passage translated in these words: "A person who came to inflict a wound on the body may be safely killed when unknown and without a name, and when there was no power to arrest him at the time of committing the trespass." The English law in force this day contains a precisely similar tacit allowance, even to the extent of taking life. Then it must be remembered that we possess not the whole Brehon Laws as the people understood them, but only the parts written for the guidances of judges and lawyers in the trial and treatment of offences brought before them, that much of human life never came before them, and that some abstract considerations which occur to us many centuries after date either did not occur to them at all or did not clamour for settlement.

It is quite possible for the law of reparation and lex talionis, or law of personal vengeance, to exist side by side in the same country as alternative modes of redress. Indeed, they appear to have so existed in many countries. Eric itself may be regarded as a species of retaliation as we use that word; but it was a distinct improvement on the strict talio of the Roman Law—Si quis membrum fregit, ni cum eo placit, talio esto. In pagan Ireland, as far as I have been able to gather, a wilful murderer was regarded as lost soul and body, and possibly even though eric had been obtained his life might or might not be taken at the will of the prosecutor. It is pointed out with special care in the commentaries of the Senchus Mor that the change effected by Saint Patrick was, to let the murderer be put to death as before if no eric could be obtained, but to send his soul to heaven; and it adds, "for retaliation prevailed in Ireland before Patrick, and Patrick brought forgiveness with him." "At this day we keep between forgiveness and retaliation, for as at present no one has the power of obtaining heaven, as Patrick had at that day, so no one is put to death for his intentional crimes as long as eric-fine is obtained; and wherever eric-fine is not obtained he is put to death for his intentional crimes, and placed on the sea for his ignorant crimes and unlawful obstructions." It might be inferred from some strong expressions in Dubhthach's poems that eric had been abolished and the death penalty substituted, as where he says, "Let every one die who kills a human being;" and again, "Every living person who inflicts death shall suffer death." Since, however, the immediately succeeding generations of lawyers did not at all understand that eric had been abolished, it in fact was not abolished, and it would be idle for us to understand its abolition.

There is great diversity of opinion among modern writers who have noticed the Brehon Laws as to the frequency or infrequency of capital punishment in ancient Ireland. One says the death penalty was the standing rule, and the payment of eric the exception; while another says that eric was nearly always paid in order to spare human life, and that therefore the death penalty was rarely inflicted, except for high crimes against the king or the state institutions, or the disturbance of a public assembly. I rather incline to agree with the latter view; first, because of several passages in the law to the effect that no one is to be put to death as long as eric is obtained, that an assailant is not to be killed if he is known or can be arrested, and so on; and secondly, because I have not found in the law any rules subject to which the death penalty should be carried out. Hanging is mentioned as having been carried out in political but not in private cases. If capital punishment was at all frequent, those laws, with their proneness to detail, would certainly contain some such rules. One of the punishments mentioned incidentally was that of placing a man on the open sea, on some small punt or wicker basket presumably. This was rather exposing a man to death than putting him to death.

I cannot but think that some of the kindly Gael would be on the look-out for an unfortunate man so exposed, and, deeming his punishment sufficient, as soon as the coast was clear would come to his relief. There is ample evidence of various kinds that the whole public feeling of Ireland was opposed to capital punishment; and still more was it opposed to the taking the law into one's own hands without the decision of a court. Such a popular sentiment was not law, of course, and never found a place in the law; but during and to the extent of its prevalence it was as good as law for all who obeyed it; and, whatever their motive, in a country where the execution of the law rested with the people themselves, if they did not execute it the law was so far superseded. There was no public executioner; and among a people who so respected the judgment of a brehon the want of a direct death sentence must have enfeebled the ordinary man going to imbrue his hands in his neighbour's blood, even though that neighbour was a murderer. For these reasons I conclude that, except for treason to the king and the state institutions, our forefathers rarely put criminals to death.

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