Celtic Design


General Procedure of Distraining

Laurence Ginnell

Celtic O
RDINARY distress was of two kinds, "Distress with Time," and "Immediate Distress." In "distress with time," the thing seized was subject to an anad, that is, a respite, or stay, which was a period varying in duration according to fixed rules. "The stay of every distress with time is the delay in pound of every immediate distress which has no stay at all." The debtor or defendant, on giving a pledge or security to the plaintiff, received back the thing distrained, and retained it in his own possession during this period. Also if the defendant or debtor desired to test on any ground in a court of law the validity of the claim or the legality of the distress, he was allowed a certain time for this purpose, provided he gave security. The security was usually in the nature of a pledge, and might be any article of value which he could spare at the time without inconvenience, or it might be a member of his family. A person so given was treated as a hostage, not as a servant or slave. He was treated as his rank entitled him to be treated. If in the event he was forfeited, the plaintiff would acquire a vested interest in him to the extent of his claim, and might then take that much out of him by reducing him to slavery or in any other way he thought he could best effect his object. If the pledge offered was adequate as a security, the plaintiff was bound to accept it, whether it was likely to be useful to him or not; for the law did not contemplate his making a profit out of it. If then the defendant did not bring the disputed point to a trial within the time allowed, as he had undertaken to do, the pledge became forfeited in satisfaction of the original claim.

The peculiarity of "immediate distress" was, that during the fixed period of the stay the thing distrained was not allowed to remain in the debtor's possession, but in that of the creditor, or in a Forus or pound of the district. This immediate distress was made, or might be made, if the plaintiff belonged to a higher rank than the defendant, and in some other circumstances; and the distrainor might bring to his own pound goods to the value of his own honour-price.

In the case of "distress with time," if the debt was not paid at the end of the time, and in the case of "immediate distress," if the debt was not paid at once, the distrainor took away the things seized to his own residence or to pound according to circumstances, and served on the defendant a very explicit notice. "Three things are to be announced at the residence of the defendant—the debt for which it [the distress] was taken, the pound into which it was put, and the law agent in whose presence it was taken." In other words, the defendant was put in possession of every material fact, in order that if so disposed he might take the proper steps to secure his interests. Treating of a negligent owner who at such a time omitted to take any steps, the text says, "To be asleep avails no one;" the commentary says, "Sloth takes away his welfare;" and an old proverb says, "He is like a cow's tail, always behind."

The distress remained in pound a certain time fixed by law according to its nature; and if it consisted of cattle, as it usually did, the expenses of care and keep accrued against it and was payable out of it for this time; but if any profit or advantage was derived from the thing distrained, as the work of horses or oxen or the milk of cows, this was set off against the expenses. During the time in pound, which was called a dithim, the owner of the property seized might redeem it on paying the original debt, plus the net cost incurred up to the time of redemption. The plaintiff might, without risk, if he wished, allow three days of grace in addition to the legal dithim. At the end of the dithim, or days of grace if allowed, the property, if not redeemed, began to be forfeited to the plaintiff. It was not forfeited all at once even then, but progressively at the rate of three seds per day until the amount of the debt or fine or whatever the principal sum was, with costs, was realised. If the value of the thing distrained exactly equalled the liabilities, the plaintiff took all and the matter was at an end. If there was a surplus, it belonged to the original owner; if a deficit, a further distress might be made. The plaintiff would naturally be disposed to seize too much rather than too little; but the law discountenanced his harassing the defendant in this respect, and inflicted a heavy penalty on any one who distrained unjustly, illegally, or with needless oppression. A heavy penalty was also incurred by any one who distrained where no debt was due. These penalties were all fines, of course, and the amount was doubled when the offence was committed with guilty knowledge.

There were seven public pounds in the territory of every clan. Of these the one most frequented was that situated in the most secure place near the centre of the territory, because in it the things detained were safest from external thieves who could not be easily brought to book. The laws contain elaborate rules for the regulation of all classes of things in pound, for liability in connection with accidents occurring to cattle there, or having a disease going there, or taking a disease in pound, and countless other possibilities; and also special rules for every species of conduct that might be indulged in by either of the parties, and prescribing the proper course to pursue if the distress had been carried out in any essential not in accordance with the law. One specimen sentence from the text will sufficiently indicate the scrupulous care of the law. "Every necessity is blameless; every improvement is lawful; every inadvertency is venial; every wilful neglect is wrong."

There were times at which debtors were entitled to certain exemptions from distress. On the death of the Ard-Rig of Erinn, and in Christian times on the death of the successor of Saint Patrick, every debtor in Ireland who needed and claimed it was entitled to a year's exemption. On the death of the king of a province there was exemption within that province for three months. On the death of a rig-tuatha there was one month's exemption within that tuath. But of course it did not follow that debtors always took advantage of these periods of exemption. They were meant only as temporary relief from hard pressure, given to persons who claimed it bonâ fide. Debtors applied to at a time of exemption, who accepted notice, allowed themselves to be fasted upon, or otherwise acknowledged or acquiesced in the process going against them, and who were able to pay, were not allowed at the last moment to avail of the privilege of exemption, for that would be unfair. Every person on whose death such a period of grace would occur had during life the power of giving protection against distress, and so temporarily suspending the law, for the same length of time.

As regards the nature of the things distrained, they were cattle for the most part, because they could be driven and had not to be carried; but cattle failing, any other farm produce was resorted to, or any kind of property whatever. There was an order, well and generally known, in which different kinds of cattle should be taken in distress. Young cattle that were not giving milk or otherwise essential for the comfort of the family were liable, so far as they existed, to be distrained before those that were specially useful. In villages where smiths, carpenters, shield-makers, and other mechanics lived, not by land, but by their trades, the materials upon which they worked or any other property found in their possession might be distrained, but not their tools or anything essential to the practice of their trades. If a debtor or offender fled, leaving no property behind him, the property of his fine might be seized as though it were his own for the amount of the debt or fine, and the members of the fine were left to settle with the delinquent. People of the Bothach and Sen-Cleithe classes having no property that could be seized might be taken themselves in distress, and were bound to pay the debt or fine by their labour. While doing this their position towards the plaintiff resembled that of the daer fuidhir towards the flaith.

When for crime or anything else fuidhirs became a distrainor's object, he did not in the first instance distrain them, because the flaith was responsible. The law did not forbid him to chastise them, even to death; but of course religious and moral considerations and public opinion restrained him; and on the whole it was the better and more usual course to fetter them, and so deprive the flaith of their services. The flaith might then either satisfy the demand of the distrainor and enjoy his fuidhirs, or surrender the fuidhirs to the distrainor in the manner of the noxal surrender at Rome. A fuidhir so surrendered had very likely to work harder for his new master than for his old; but probably he was better fed to enable him to do this. Though the rules relating to the distraint and surrender of human beings are numerous, and no doubt were sufficient in practice for those who applied them, they do not always convey the desired amount of information to us of a different age.

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