The Administration of Justice

From A Smaller Social History of Ancient Ireland 1906

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CHAPTER IV....concluded

6. The Administration of Justice.

The Law of Compensation.—In very early times, beyond the reach of history, the law of retaliation prevailed, as in most other countries—"an eye for an eye, a tooth for a tooth"—in other words, every man or every family that was injured might take direct revenge on the offender. But this being found inconsistent with the peace and well-being of the community—especially in cases of homicide, which were frequent enough in those days—gradually gave place to the law of compensation, which applied to every form of injury. In Ireland the process was this:—The injured party sued the offender in proper form, and, if the latter responded, the case was referred to the local brehon, who decided according to law. The penalty always took the form of a fine to be paid by the offender to the person or family injured, and the brehon's fee was usually paid out of this fine.

Procedure by Distress.—If the offender refused to submit the case to the usual tribunal, or if he withheld payment after the case had been decided against him, or if a man refused to pay a just debt of any kind—in any one of these cases the plaintiff or the creditor proceeded by Distress; that is to say, he distrained or seized the cattle or other effects of the defendant. We will suppose the effects to be cattle. There was generally an anad or stay of one or more days on the distress; that is, the plaintiff went through the form of seizing the cattle, but did not remove them. During the stay the cattle remained in the possession of the defendant or debtor, no doubt to give him time to make up his mind as to what course to take, viz. either to pay the debt or to have the case tried before the brehon: but the plaintiff had all the time a claim on them. If the debt was not paid at the end of the lawful stay, the plaintiff, in the presence of certain witnesses, removed the animals and put them in a pound, the expense of feeding and tending being paid out of the value of the cattle. If the debtor persisted in refusing to settle the case, the creditor sold or kept as many of the cattle as paid the debt.

Procedure by Fasting.—In some cases before distress was resorted to, a curious custom came into play:—the plaintiff "fasted on" the defendant. It was done in this way. The plaintiff, having served due notice, went to the house of the defendant, and, sitting before the door, remained there without food; and as long as he remained, the defendant was also obliged to fast. It may be inferred that the debtor generally yielded before the fast was ended, i.e. either paid the debt or gave a pledge that he would settle the case. This fasting process—which exists still in India—was regarded with a sort of superstitious awe; and it was considered outrageously disgraceful for a defendant not to submit to it. It is pretty evident that the man who refused to abide by the custom, not only incurred personal danger, but lost all character, and was subject to something like what we now call a universal boycott, which in those days no man could bear. He had in fact to fly and become a sort of outlaw.

Eric or Compensation Fine.—Homicide or bodily injury of any kind was atoned for by a fine called Eric [errick]. The injured person brought the offender before a brehon, by whom the case was tried and the exact amount of the eric was adjudged. Many modifying circumstances had to be taken into account—the actual injury, the rank of the parties, the intention of the wrong-doer, the provocation, the amount of set-off claims, &c.—so that the settlement called for much legal knowledge, tact, and technical skill on the part of the brehon—quite as much as we expect in a lawyer of the present day.

In case of homicide the family of the victim were entitled to the eric. If the culprit did not pay, or absconded, leaving no property, his finè or family were liable. If he refused to come before a brehon, or if, after trial, the eric fine was not paid by him or his family, then he might be lawfully killed. The eric for bodily injury depended, to some extent, on the "dignity" of the part injured: if it was the forehead, or chin, or any other part of the face, the eric was greater than if the injured part was covered by raiment. Half the eric for homicide was due for the loss of a leg, a hand, an eye, or an ear; but in no case was the collective eric for such injuries to exceed the "body-fine"—i.e. the eric for homicide.

The principle of compensation for murder and for unintentional homicide existed among the Anglo-Saxons, as well as among the ancient Greeks, Franks, and Germans. In the laws of the English king Athelstan, there is laid down a detailed scale of prices to be paid in compensation for killing persons of various ranks of society, from an archbishop or duke down to a churl or farmer; and traces of the custom remained in English law till the early part of the last century.

Modes of Punishment.—There was no such thing as a sentence of death passed by a brehon in a court of law, no matter what the crime was: it was always compensation; and the brehon's business was to determine the amount. Capital punishment was known well enough, however, and practised, outside the courts of law. Kings claimed the right to put persons to death for certain crimes. Thus we are told, in the Tripartite Life of St. Patrick, that neither gold nor silver would bo accepted from him who lighted a fire before the lighting of the festival fire of Tara, but he should be put to death; and the death-penalty was inflicted on anyone who, at a fair-meeting, killed another or raised a serious quarrel. We have seen that if for any cause homicide was not atoned for by eric, then the criminal's life was forfeit.

Various modes of putting criminals to death were in use in ancient Ireland. Sometimes they were hanged. Sometimes the culprit was drowned by being flung into water, either tied up in a sack or with a heavy stone round his neck.

Where the death penalty was not inflicted for a crime, various other modes of punishment were resorted to, though never as the result of a judicial process before a brehon. Blinding as a punishment was very common, not only in Ireland but among many other nations. A very singular punishment was to send the culprit adrift on the open sea in a boat, without sail, oar, or rudder; as, for instance, in case of homicide, if it was unintentional. A person of this kind cast on shore belonged to the owner of the shore until a cumal was paid for his release.

Courts of Justice.—Courts for the trial of legal cases, as well as meetings of representative people to settle local affairs, were often held in the open air—sometimes on green little hills, and sometimes in buildings. There was a gradation of courts, from the lowest—something like our petty sessions—to the highest, the great national assembly—whether at Tara or elsewhere—representing all Ireland. Over each court a member of the chieftain or privileged classes presided: the rank of the president corresponded to the rank of the court; and his legal status, duties, powers, and privileges were very strictly defined. The over-king presided over the National Féis or assembly.

In each court—besides the brehon who sat in judgment—there were one or more professional lawyers, advocates, or pleaders, called, in Cormac's Glossary, dálaighe [dawlee] and dai, who conducted the cases for their clients; and the presiding brehon-judge had to hear the pleadings for both sides before coming to a decision. Whether the court was held in a building or in the open air, there was a platform of some kind on which the pleader stood while addressing the court.

With regard to evidence, various rules were in force, which may be gathered from detached passages in the laws and general literature. In order to prove home a matter of fact in a court of justice, at least two witnesses were required. If a man gave evidence against his wife, the wife was entitled to give evidence in reply; but a man's daughter would not be heard against him in like circumstances. Any freeman might give evidence against a fudir; but the fudir was not permitted to give evidence in reply. A king's evidence was good against all other people, with the three exceptions mentioned at page 23. The period at which a young man could give legal evidence was when he was seventeen years of age, or when he began to grow a beard.

The Irish delighted in judgments delivered in the form of a sententious maxim, or an apt illustration—some illustration bearing a striking resemblance to the case in question. The jurist who decided a case by the aid of such a parallel was recognised as gifted with great judicial wisdom, and his judgment often passed into a proverb. Several judgments of this kind are recorded, of which one is given here. When Cormac mac Art, the rightful heir to the throne of Ireland, was a boy, he lived at Tara in disguise; for the throne was held by the usurper Mac Con, so that Cormac dared not reveal his identity. There was at this time living near Tara a female brewy, named Bennaid, whose sheep trespassed on the royal domain, and ate up the queen's valuable crop of glaisin [glasheen] or woad-plants for dyeing. The queen instituted proceedings for damages; and the question came up for decision before the king, who, after hearing the evidence, decided that the sheep should be forfeit in payment for the glaisin. "Not so," exclaimed the boy Cormac, who was present, and who could not restrain his judicial instincts: "the cropping of the sheep should be sufficient for the cropping of the glaisin—the wool for the woad—for both will grow again." "That is a true judgment," exclaimed all: "and he who has pronounced it is surely the son of a king"—for kings were supposed to possess a kind of inspiration in giving their decisions. And so they discovered who Cormac was, and in a short time placed him on the throne, after deposing the usurper.


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