Criminal Law (3)

Laurence Ginnell

The same law that arranged the different ranks of society, and fixed their respective rights, privileges, and liabilities, affixed also to each rank, from king to plebeian, a measure of value called honour-price. By crime, and by breach of contract, this honour-price was forfeited, wholly or partially according to the magnitude of the wrong, to the person injured, with or without fines of other denomination according to circumstances. By the taking of human life in any way, and by a few other capital crimes, the whole of the honour-price was forfeited, and if not paid and accepted in satisfaction the injured person or family had a right to put the criminal to death. Even should the criminal be allowed to live, if no satisfaction was rendered his tribal status was completely gone. In the case of certain peculiarly vile crimes, which need not be further specified here, the criminal was expelled from the clan and from the territory, even though the fine had been recovered. A habitual criminal might also be expelled, and by expelling him, and lodging a security against his future misdeeds, his relatives could free themselves from responsibility.

A person so expelled became an outlaw, with no status or right whatever, no legal capacity, and no protection from the law, and any one who gave him food or shelter became liable for his crimes. There was little danger of any one succouring him, for in general public feeling was as much against him as the law, and he was forced to go into a strange place, where he could only sink into the lowest rank of fuidhirs. If he still haunted the territory of the clan, and continued his crimes there, he was proclaimed in the public assembly of the clan. After this any one might kill him as a wild beast or a mad dog. Crimes less than capital, as lying, perjury, fraud, and in the case of a judge a false judgment, if committed three times deprived the offender of half his honour-price, if committed any more deprived him of the whole of it. Accomplices in crime, and those who aided and abetted crime, were dealt with almost as severely as the actual criminal. In no case was the fine imposed on a criminal the full measure of the punishment. Besides the general odium, there resulted a loss of status with its legal consequences of disqualification for holding public office, for suing, for being a witness, a surety, a juror, and incapacity to inherit land. How long this condition lasted is not stated; but it was not permanent.

The amount of a fine, under whatever name it came, was not determined by abstract principles of general application, but in each case by the facts proper to that case. The maintenance of the law and of private rights were indeed principles affecting the ultimate decision; but the chief factors in determining the amount of penalty for any given crime were, (1) the damage done; (2) the status of the injured person; (3) the status of the criminal; (4) the accompanying circumstances. The result was that like punishments did not always follow like crimes. The rules of law on the subject were necessarily very numerous and complicated, owing to the great number of classes into which society was divided and the consequent variations in status and honour-price; and although when the facts were clearly ascertained the proper amount of a fine may be said to have been a matter of calculation, yet it was a calculation which required considerable technical skill, as did also the ascertainment of the facts. A fine for a breach of contract was generally more simple, as it would depend largely on the terms of the contract broken.

In adjusting punishment to rank, account was taken also of professional character. The clergy, for instance, were far more severely punished than the laity—a fact showing, if it were necessary, that Saint Patrick did not abuse his influence when the laws were being drawn up. When a lay criminal had paid the eric or other fine imposed upon him, he rested under a stigma and loss of status for some time; but after this probationary period he recovered his honour-price. A convicted clergyman could never recover his honour-price, could never regain his former status; and from the state of his surroundings he was scarcely free to do anything else but retire from the world and do penance.

Rank did not always affect the amount of fine in the same way. A man of high rank was always fined more than a man of low rank in a like case. An offence against property committed upon a poor clansman who could ill afford it, was punished more severely than a similar offence upon a wealthy person. An assault or other personal outrage upon a person of rank was more severely punished than a similar offence upon an ordinary person.

Fines, like other payments, were all paid in kind. When the offence was one against property, and the fine was small, it was usually arra, that is generic, a quantity of property of the same kind as that stolen or damaged. For damage done to bees, for example, the fine would be so many kishes (hives). In the case of property not so conveniently divided as bees, the quantities were usually measured in seds or in screpalls. A screpall was 1/24th of the value of a cow. A large fine was anarra, not generic, not consisting of the same substances as those stolen or injured. It was usually adjudged to be paid in three different substances, as one-third in horned cattle, one-third in horses, one-third in silver. If in corn it would be one-third in wheat, one-third in oats, and one-third in barley. In fixing the kinds the brehon should have regard to the actual nature of the defendant's property. A judgment obtained by a plaintiff for the payment to him of a fine in a particular kind of property which the defendant did not possess was called a "blind nut," because it was ineffectual; and if it had been obtained unfairly or for any sinister purpose it debarred the plaintiff from seeking a different judgment. When the liability was of a civil nature, but arose in the absence of any express agreement between the parties, the judgment was a general one, and the defendant was allowed to pay the fine in whatever material he could most conveniently spare. The plaintiff had to be satisfied, because the law considered that if he had desired to secure for himself on a foreseen event a fine of a particular description, he ought to have made a bargain to that effect.