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':.ae ¿?， º №ſºſ, § §§ kº*>.*?.?§ :：:&& . （…），¿? ¿??¿.*.*.*.*（?, ș#:;; ****** ^*,? §§§§§ 38）;≡ ¿?， º šº ¿¿.*¿¿.;.$$'; };& ??šėſ šķišķſ， ·š，ž）、、。、、。 ș §§ ș， *）?）.*'， �� ::：：：:：: * *,** º: ºf Rº, 3.; $2. ,\ sº :*: & tº ..."??'. * ,º: 2: ..., e- tº *', 3:5 （?） *…; șºſae?）.*? ¿¿.*;ğ）§§ R&&3&&3&& §§ ºšžºſ，- » .ſ. ,ģ >;- 3. ****:3, º ,?，！，: š， * ? ~）; **，，,,， ;*·ț¢& $º „ſº: Ź}}:（2）: {*… & *** &.”§§ gºgº*}^3%;}）; §.„› （;º. ----Ż:33', ,'）.i., ！，§§§§**}:}} ±（√¶√°√≠ ≤š. L.）$¿º § §§§§§§și ºț¢:: - ：jºšº '） **** ****...*..*** ?? * :'， ' …..º ºſº， ** ; § 2.2% * > #2,” º .*¿¿ （ſ. * , , ， , ºš, zº &.* -. *<'. '…' șaer. ¿.*; * :tº ſºy -! ? » 1;*. ;&šºſ?? ¿ §§§ Tºrººz. sº * 3. x ºr *...！• • … * * *** ###~); ? : º！ Ř3$$，???¿ ș”, “... &. ，%}} §§§§§§§ §-, ſºț¢, Lºſ:',''，'$2'）; ; ; ）3° ***; SECTION II. THE FEIS OF TARA. *S.--. §HE most important of Sºe ” all the ancient assem- Öğ blies was the Feis of Tara. It *ś is said by some to have been founded, in the year of the world 3884, by King Ollamh Fodhla, whose name means Sage of Ireland, and whose reign was so propitious that “it was difficult for the stalk to bear its corn in his reign.” Others say the Feis originated in funeral games. The truth probably is, that it originated in funeral games, and was turned to the other purposes by Ollamh Fodhla. At all events, a national assembly was held at Tara from a very early period down to A.D. 560, when the last was held there under King Dermot, son of Fergus. The Feis of Tara was an assembly of the leading 43 44 | THE BREHON LAWS. men of the whole island—kings, tanists, flaiths, warriors, brehons, chief poets, &c.—not a meeting of all classes of society. It was not ambulatory, like the English national assembly of later times, held now in one place, now in another, wherever the king happened to be ; nor was it haphazard like that by which Magna Carta was adopted. Its constitution and its place of meeting were fixed, and its times of meeting fairly regular. It met at Tara every third year, three days before the Ist of November, and it continued in session three days after the 1st of November. Thus its ordinary session lasted for seven days. For some time before it ceased, however, it had been summoned less frequently. There was an important pagan festival observed all over the country on the feast of Belltainé, which was the 1st of May; and at Tara it was the occasion of an assembly lasting for some days. But those assembled on this occasion seem to have been brought together mainly by religious and social motives and the attractions of the royal Court. * Dr. Joyce is of opinion that some of the ancient Irish national assemblies did directly enact laws, but that the Feis of Tara was not one of these ; and he doubts that the Feis was convened to enact laws, and says there is no ancient authority for holding that it was. Other authorities do not agree with Dr. Joyce in this latter view, and I find himself speaking in another place of the summoning of the LEGISLATIVE ASSEMBLIES. 45 Feis on “some urgent occasion.” An assembly which was summoned on an urgent occasion, when there were serious matters to be considered and dealt with, was certainly summoned for some practical purpose, and must have been in some sense the Great Council of the Nation; and if it did not enact laws, it must have deliberated on national affairs with effect, which is a near approach to law-making. In a poem, written in the tenth century, the Feis is spoken of as having been con- vened “to preserve laws and rules.” Edward O’Reilly, the Gaelic scholar, calls the Feis “a parliament.” It may be that neither the Feis of Tara nor the other assemblies were convened for the express purpose of making new laws, or ever professed to make new laws, but only to promulgate, reaffirm, retrench, modify or otherwise affect laws long known but for some temporary or partial or local reason suspended, or to extend to the whole kingdom some advantageous local custom, or to correct or abrogate some vicious custom, or to enforce uniformity among the brehons in case of conflicting judicial interpretation, or to restrain on the ground of some local or temporary hardship the strict enforcement of a law otherwise just. There are countless things like these which a national assembly could do well, and in doing which it would be modifying the law; and although it never called itself a legislative assembly, and never claimed to make laws, we are still quite justified in calling its acts legislative. While many eminent authorities 46 THE BREHON LAWS. hold that the Feis of Tara did these things, Dr. Joyce's view cannot be accepted as final. Among the other duties performed at the Feis was one of some importance even now, but of in- finitely more then, because on it the title to rank, property, and privileges largely depended. This was the comparing and checking of the local pedi- grees with each other, and with the Monarch's Book, or Register, kept at Tara. Analogous duties are now divided between the offices of the Herald and the Registrar-General. King Dermot died in A.D. 563 (or 565), and after his death no Ard-Rig resided at Tara. No separate Ard-Rig was any more appointed with the kingdom of Meath for his mensal. One of the provincial kings usually assumed the office, or at least the title, retaining and residing in his own province. Tara was deserted, and no place for holding a national assembly was ever substituted. To the time from this date onward, the saying applies that there was no central legislative authority acting for the whole island. Once after the reign of Dermot a national assembly, or convention, was held at Tara, but although legislative it can hardly be called the Feis. It was held in the reign of the monarch Loingseach about A.D. 697; and at the instance of Saint Adamnan a law was adopted which, among other things, freed women from liability to military service, and prohibited their presence in battle. After the abandonment of Tara as a royal resi- dence, and the consequent discontinuance of a LEGISLATIVE ASSEMBLIES. 47 national assembly, it can hardly be said that one concrete state, broad and national in basis and con- centrated in executive power, existed in Ireland. As though Tara had been the vivifying sun of true national life, a summons or word of command from any other source never could be and never was frankly recognised as the voice of the Ard-Rig, never could and never did inspire the old generous patriotism, but often inspired bitter jealousy of (as was deemed) a local usurper in the person of the nominal Ard-Rig, a desire to dispute his title if possible, and to set up a rival. Many holders of the office after Dermot's time are marked kings “with opposition ”; and though this opposition was not successful, its existence had a disintegrating effect among the people, and in law actually reduced the king's status and rights in certain cases. True national unity, and with it true national security, was at an end. The nation was divided into a large number of small isolated communities called Tuaths, the territorial extent of which is in many cases represented by the modern baronies. These com- munities had some of the characteristics of states, and fancied themselves such, but were in reality fragments of a nation falling asunder, and were doomed to become political ruins if not re-united. Small nationalities are dear to the Spirit of Freedom, but she loves not the aimless subdivision of a nation that is really one in race and interest. There always had been much independence of action in the several tuaths; and this was well so long as it originated 48 THE BREHON LAWS. in worthy aims, or in wholesome and honest rivalry, and could be subordinated at once to the interests of the tuath, and of the nation by the controlling and assimilating influence of a supreme central authority. But once that authority ceased to exist at Tara it de facto ceased to have any existence; the several tuaths pursued what they deemed their several interests, keen in the assertion of a puny autonomy but blind and indifferent to the common national interest; and the country sank into the condition of England under what is called the Heptarchy, when the petty Saxon kingdoms were so independent that they were almost constantly at war with each other. It is thought that one of the events which had most influence in bringing about the consolidation of England was the reduction of the Church there to a single national Church by Theodore of Tarsus, when Archbishop of Canterbury, in the latter part of seventh century. Before his time, the territorial limits of ecclesiastical jurisdiction had varied and shifted with the varying fortunes of the little kingdoms. He fixed permanently the limits of spiritual jurisdiction, and subjected the Church throughout England to one central authority. Some such service would then have been a boon of in- estimable value to Ireland, even if it had come from foreign lands; for while over-centralisation is un- . doubtedly a great evil, so much of it as is necessary to inspire a common patriotism and prevent the degradation of local rivalry to sordid jealousy is as LEGISLATIVE ASSEMBLIES. 49 undoubtedly a great good. It happened that the Church in Ireland exerted no such influence and afforded no such example, for it had from the be- ginning accommodated itself to the genius of the people to the extent of assuming somewhat of a clannish complexion without the national organism and outward visible bond with which we are now familiar. Each clan aimed at being self-provided, self-contained, and self-existing in every respect, spiritual and temporal. It built small churches, monasteries, and schools; endowed them with lands, stock, and all necessaries, in the same generous manner in which, in previous generations, it had provided for the Druids and other learned men; it dedicated, as a rule, every first-born son to the Church; and it retained to itself the right of suc- cession to all posts, clerical and lay, so long as it possessed qualified persons. Indeed, the require- ment of qualification can hardly have been always very rigorously insisted upon, inasmuch as positions of great importance were in many instances filled for successive generations by members of the same family, as though in a sense hereditary. This latter feature, however, was due to a certain general tendency, which we shall have a more suitable occasion to notice. The clan had its bishop too, or an abbot having episcopal faculties; and so far as territorial jurisdic- tion was known at all his was coterminus with that of the clan. The bond between those pastors seems to have been of a very vague character, the chief 5 50 THE BREHON LAWS. connecting link apparently being the purely spiritual one of a common faith. The successor of Saint Patrick was always Primate, and always held in special reverence over the whole country. The occupant of that position could have done for Ireland what Theodore did for England; but being usually a man of Irish training, and seeing things as he had been accustomed to see them and with Irish eyes, the necessity for organising the Church on the modern principle does not appear to have occurred to him with sufficient force to call forth effective action in its attainment until a later time, just when the nation had become incapable of profiting by the example. N. º y- º yºut gº *% ºf S º |ſº }|| || - º | mºll SECTION III. TAILLTENN AND UISNEACH. RU S""" Sy/A; |NOTHER very celebrated national i § \ § assembly was that held for many & centuries at Tailltenn on the Blackwater in Meath. It was a general assembly of the people— that is to say, not restricted to men of rank and distinction like that at Tara. It was held annually about the beginning of August. It also originated in funeral games, or rites; but its subsequent purposes were even more manifold than those of the assembly at Tara, and they varied from time to time. They always included the social and political ; and, as at all the great assemblies, the laws were always proclaimed anew—that is, read aloud in public that they might not be forgotten, and any changes in them carefully explained to those present. The last of the regular assemblies at Gºś, * * & *A* * & rºss SS::::::: *:... '^ * * * 5I 52 THE BREHON LAWS, Tailltenn was held under King Roderick O'Connor in A.D. II68. The Hill of Uisneach, in Westmeath, was, in pagan times, the site of a national assembly dis- tinctly legislative in character. It was at one such assembly, held there about one hundred years before the birth of Christ, that a uniform law of distress for the whole country was adopted. Uisneach has been the site of many political con- ferences since then, but I have met with no account of an assembly there, purely legislative, since the nation became Christian. SECTION IV. THE AENACH. F local assemblies, the Aenach appears to have been the most <\; generally important. A enach is ; the word now translated fair, and is, in fact, the present y; Irish term for a cattle - fair. But though some such fairs originated in aenachs, they bear very little resem- blance to the original. Fair is no translation of the word, but is one of those things which one would rather have expressed differently. Aenach means, first, an assembly ; second, a hill, from assemblies meeting on hills ; third, a cattle-fair, from such fairs springing up where aenachs once were held. Wherever an aenach was held a fair sprang up, but the latter was purely a consequential and collateral adjunct to the former. The aenach proper was an assembly of all the people of a 53 54 - TIHE BREHON LAWS. district, without distinction of rank, and apparently without distinction of clan. Some were held an- nually, others triennially. Originating, like all the other Irish assemblies, in pagan funeral or commemorative rites, the aenach continued even in Christian times to meet in a cemetery. There is no definite statement that the aenach enacted laws ; but one of the many objects of the assembly was that the laws might be published, and where this was done the effect of the laws may have been in some way modified. The aenach was also taken advantage of for holding a high court of justice for the trial of appeals and cases of special difficulty, a Church synod in Christian times, a place for musical and bardic contests, for the recitation of martial and other poetry and family pedigrees, a weapon-show or sort of military review, feats of arms, horse-racing, athletic sports, and all the games of the time, and, of course, for the distribution of honours and prizes amongst the successful competitors. So far the assembly might be considered the aenach proper. But all these proceedings, and the multitude of people they brought together and detained in one place for a couple of days, rendered a market for refreshments necessary ; and this developed into a market for all kinds of wares and produce and for cattle. Owing to the scarcity of towns and shops in those days, this incidental feature of the aenach was found very convenient; and it grew to such an extent that it ultimately overshadowed the LEGISLATIVE ASSEMBLIES. 55 primary purposes of the aenach, and furnished a practical if not an etymological reason for trans- lating the word into fair. For the commercial purposes of the fair those meetings were frequented by merchants, Irish and foreign, and a brief but vigorous trade was carried on. Aenachs were held in many places throughout the country, and the word still forms part of the names of a number of places, the best known in this respect being Nenagh. But the accident of retaining the name is no indication of the relative importance of the different aenachs held in those places. For they did differ greatly in importance. The aenach of Carman was for a long time one of the most cele- brated in the South of Ireland. Carman was a place near the site of the present town of Wexford, and, I believe, is the Irish name of that town. The last aenach was held there in A.D. 1033, under Donnchadh MacGillaphadraig, Chief of Ossory, who was King of Leinster then. Greek merchants are spoken of as having attended the aenach of Carman for com- mercial purposes. SECTION V. THE TRIBAL ASSEMBLIES. *>< & ACH clan had two local assemblies. SY} of its own for the transaction of its ordinary business, legislative and administrative. These were the authoritative fountains of urradhus law. One was called the Cuirmtig (pronounced Coorthy), and was pro- bably open to all clansmen who paid tribute. In it, for the most part, new pro- posals originated. The other was called the Dal, and appears to have been open only to heads of septs; possibly to heads of fines also. Dal means a tribe or division of a race, but it had also the special meaning of an assembly representing and acting for the tribe. It was a sort of local second chamber, in which bills passed in the first had to be ratified before they became legally binding. Each clan had also a further assembly 56 LEGISLATIVE ASSEMBLIES. 57 called a Tocomra. This was the assembly in which the king or chief or tanist was elected. So far as I can discover it consisted of the same persons as the Dal; but it was summoned by the Bruigh-fer, or Biadhiach (pronounced Beetagh), and met in his house. This house was not the private property of this officer, but was considered somewhat as a public hall belonging to the clan, and used as occasion required for clan purposes. The Bruigh-fer, or Biadhtach, was its occupant and keeper and a clan official appointed and empowered to discharge various duties of high importance. Besides sum- moning the assembly just mentioned, he was bound to entertain the king, bishop, bard, judge, and some other public functionaries of the clan who were privileged to claim entertainment for themselves and a number of attendants fixed in each case by the law. He was also bound to entertain when required, on behalf of the clan, friendly visitors, if for any reason the king or chief could not conveniently do so; and he was under certain legal obligations to all belated travellers who passed by the way. In fact he may be called a public hospitaler, and this is almost the literal signification of the word Biadhtach. To enable him to comply with these extensive requirements, he was allowed about five hundred acres of free land, besides various personal privileges; and he was, by virtue of his office, a magistrate empowered to administer justice in certain cases. There were many special provisions in the law for the protection of himself and his 58 THE BREHON LAWS. official property, for he and his house were rightly regarded as an important public institution. He was fancifully supposed to have five doors to his house, facing in different directions, always a pot of meat boiling, and cattle and pigs on the premises fat enough for killing. In later centuries ballybetagh, so named from this officer, came to mean among the English in Ireland a sort of rough measure of land equal to about five hundred acres. 2. º. <==S-33 ºS), Y, mºs. ... " Nº. Nº. º: Sº y ºf - sº- Le- ſº-ºº: º º º * d º tºº ſº ris, : ~. #: :- ... -- ... º. 5 ºf . ; º º \\\\\ §º Nºi; Spºº º | #| ||} 7~ſ. ſ #. # º r: º ź Q %É; wº- Fºº º º £233m. #Tºš w sº ſº * - sº CHAPTER V. CZA,SS/F/CATVOAV OA' SOCZZ TV. S E C T I O N I. INTRODUCTORY. ERSONAL rights of the /º political and social order Öğ were in ancient Irel and & arranged upon a graduated S scale of status, and society >{{o was divided into a great number of classes, or grades, quite distinct in many respects according to the position they occupied on this scale. One of the Gaelic commentators of the Middle Ages says, among other things, “The world was at an equality until the Senchus Mór was written.” That part of his statement may be disregarded. 59 60 THE BREHON LAWS. At all events, I go on the assumption that it is incorrect ; nor do I deem it necessary to state my reasons. For our present purpose, however, ancient Irish society may conveniently be divided into six general classes—(1) the kings of various grades; (2) the professional classes; (3) the flaiths, who constituted a sort of official nobility; (4) freemen possessing property; (5) freemen possess- ing none (or very little); and (6) the non-free classes. But although quite distinct, these classes were not utterly exclusive castes such as we read of in Eastern countries. It was possible for per- sons to rise (or sink, as the case might be) from one class to another. Rank and office meant nearly the same thing; or perhaps it would be more correct to say that wealth, rank, office, power and responsibility were considered as co-ordinate ingre- dients of status, and therefore always vested in the same persons proportionately according to their respective positions from the king downwards. Progress from one rank to another was no doubt effected in a variety of ways, as by duly qualifying for a learned profession, by displaying conspicuous valour, conspicuous skill in some department, the performance of some signal service to the com- munity, and the possession of wealth. The first men- tioned qualifications were personal and of imme- diate effect; this latter one was proprietorial and not always immediate. Its frank recognition shows that our ancestors were of a far more practical turn of mind than they now generally get credit for. CLASSIFICATION OF SOCIETY. 6I Their complex political, social, and military system was avowedly based on the possession of wealth to even a greater extent than the system founded at Rome by Servius Tullius. The effect of wealth in this respect was arranged and calculated frankly upon fixed rules, and not left uncertain and indefi- nite as is now generally the case. Such a system at least furnished an incentive to thrift and industry. Every clansman was eligible, provided he possessed sufficient property, and had not forfeited his right by crime, to become an Aire (pronounced Arra); if he owned the qualifying property of a Flaith, and his family had owned that property for three generations, he might become a Flaith ; and a Flaith was always eligible for the highest office in the state. On the other hand, loss of wealth below a given amount in- volved loss of the status to which that amount corre- sponded. The Irish system had this advantage over the Roman system, that when persons of an inferior grade had not sufficient property individually to qualify for the full rights of citizenship, as the rights of suing, of being jurors, witnesses, sureties, &c., a number of them might combine, form a guild or partnership, take a piece of land (presumably waste land), and this joint property, after they had culti- vated it for ten years and fenced it off, would give a qualification for one of them to become an Aire, with all rights of citizenship and power to act for the partnership without external assistance. A similar right of forming partnerships was given to artisans and others who lived by handicrafts and such forms 62 THE BREHON LAWS. of industry; and having combined, they could choose from among themselves a person to become an aire, act for them, and enjoy full rights of citizenship on their behalf. These partnerships, or guilds, were a very important economic feature in ancient Ireland. Each rank in the ascending scale brought to the man who had reached it an expansion of liberty, an accession of rights and privileges, and a corre- sponding increase of liabilities. Also the fines recoverable in case of injury depended upon rank; and rank depended largely upon wealth. There are indications that the different classes were distinguished by the colours of their dress; but there is no trace of any one having been punished for having violated this rule, and I think we shall not be far wrong in concluding that the rule strictly applied only to public occasions, that it was enforced rather by pride than by enactment, and that its extension to private life was due not so much to either of these causes as to convenience. Let us now consider the various classes in the order named. % Willº | º § nº º $º %Nº. & W fºsºws º sº §§ SECTION II. THE KINGS. } #s. fº AES A R says Šs. $4% that in Gaul Fºrrrrrrr,” so me of the states were ruled by º senates, with no indi- § vidual holding the office *.N& 2xº~ # of head of the state. But *sº in nearly every case he appears to have found aspirants to that position, the sons or descendants of deposed kings; and if in any case he found neither a king nor an aspirant, the fact may have been due to some accidental cause, and without inquiring sufficiently he may have assumed what he as a Roman would expect. At all events, such a state of things does not appear to have at any time existed in Ireland or in any part of it. The Irish always had a man, not an assembly, at the head of the state, and the system. 63 64 THE BREHON LAWS. of electing a Tanist while the holder of the office was living, in addition to its making for peace on the demise of the crown, made an interregnum of more rare occurrence than in countries which had not provided a Tanist in advance. Ireland has on a few occasions been ruled by two monarchs jointly; and for a few years after the death of Malachy the Second, in the eleventh century, it was ruled by two judges who were not kings. But these were excep- tional occurrences, and beyond them kingly rule was quite uniform. The word Cing occurs in the Gaelic manuscripts as the equivalent of Rig ; but Rig (pronounced Reeh) is the term generally employed. It is cognate with the Latin Reg-s = Rex. It did not designate pre- cisely the same class of official as the word king now does. Primarily, and above all things, the rig was the head and representative of his race and clan, the members of which were rather his kindred whose interests it was his duty to serve than subjects to be ruled ; and the word rāg being considered as a generic term, there was no inconsistency in several ranks or classes of rigs flourishing at the same time and forming a sort of hierarchy, the members of which were mutually dependent on each other. Our ancestors aimed, in theory at least, at interde- pendence in all departments. The lowest oirrig, regulus, or sub-king was the Rig-Tuatha, a king of one tuath, or district, the people of which formed one organic state. As already observed, these tuaths were very numerous, CLASSIFICATION OF SOCIETY. 65 but sometimes two or three of them that were nearly related had but one king. And where there were separate rulers, the term rig was by no means rigorously adhered to. Various other descriptive terms were employed; but the word rig is simple and convenient for our purpose. The next in rank was the Rig-Mör-Tuatha. He was a ruler of a number of united tuaths, each of which might have a rig-tuatha of its own, subject in some respects to the Rig-Mör-Tuatha. The next class of king was called the Rig-Cuicidh, a word implying that he had five rig-mêr-tuathas under him, each of whom in turn might have three, four, or more rig-tuaths under him. This was the rank of the provincial king. So long as the Ard-Rig resided at Tara he may be considered, by reason of his exceptional privileges, to have formed a separate rank of royalty, or rather its head; but after the abandonment of Tara, since the Ard-Rig was rarely able to enforce his rights, he may be considered as belonging to the class of the provincial kings. The king of each tuath owed allegiance and tribute to the Rig-Mör-Tuatha ; the latter owed allegiance and tribute to the Rig-Cuicidh ; and the Rig-Cuicidh owed allegiance and tribute to the Ard-Rig. The special branch of law affecting the allegiance in each case, the amount of the tribute, the amount to be returned by the recipient of the tribute, and other constitutional matters, was contained in the Psalter of Tara as drawn up under the direction of King 6 66 THE BREHON LAWS. Cormac, and also in the ancient Book of Rights (if this be a different work); and much on the same subjects will be found in a later Book of Rights which still exists and has been translated by O’Donovan. The prerogatives, privileges, duties, and liabilities of the various kings within their own territories are fully laid down in the course of the general law; and when the clan system was in an efficient con- dition, so many forces acted in aid of the law, and a neglect of official duty affected so many persons that, in ordinary times of peace, such neglect must have been rare. The king was not in any sense the maker of the law, but its officer, and so limited and hemmed round in his office, and so dependent on his clan, that it was easier and safer for him to conform to the intention of the law and promote the welfare of his people than to become either negligent or despotic. The office of Rig, of whatever rank, was always elective, as was the office of king anciently among the Saxons. But the choice was restricted by custom in the case of the Ard-Rig and provincial kings to a narrow circle of the flaith class called the Riogh- dhamhna or Damna Rig (= Materia Principum), the members of which were required to undergo a very careful training, mental and physical. It was there- fore as a rule confined to the family in possession. So long as there was an eligible member of that family, the kingship may be said to have been practi- cally hereditary in that family, but not in any par- ticular member of it. An eldest son did not succeed CLASSIFICATION OF SOCIETY. 67 merely because his father had been king, if there was an uncle, nephew, brother, cousin, or other member of the Damna Rig better fit for the position; and the Tanist was usually such a relative, and not a son. The same rules applied to the election of sub-kings, but being in rank not so far removed from the flaiths the distinctions were not so marked, and if the family in possession failed, the flaith best qualified was eligible. The law on the subject is expressed in the following words: “Every head defends its members if it be a goodly head, of good deeds, of good morals, exempt, affluent, and capable. The body of every head is his tribe, for there is no body without a head. The head of every tribe, according to the people, should be the man of the tribe who is most experienced, the most noble, the most wealthy, the most wise, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and to be sued for losses.” No person not of age, stupid, blind, deaf, deformed, or otherwise defective in mind or body, or for any reason whatso- ever unfit to discharge the duties of the public position, or unfit worthily to represent the manhood of the community, could be chosen for king or could hold the kingship; even a blemish on the face was a disqualification. Here were requirements enough, positive and negative, which not every man could satisfy. The method of choosing the king was not fully one of merit, nor fully elective, nor fully heredi- tary, but a combination of all three: and on the 68 THE BREHON LAWS. whole the office resembled as much that of president of a republic as it did that of a modern king. The Ard-Rig was not elected by the people at large, but by the sub-kings and flaiths of all Ireland, the same men who constituted the Feis of Tara. The provincial kings were elected by the flaiths and aires of their respective provinces. The king of a tuath was elected by the flaiths, aires, and probably all heads of families in the tuath. The immediate position to which the person was elected in each case was usually that of Tanaiste or Tanist (=Second), the king being living. The Tanist was a successor or heir-presumptive elected before his time. He sometimes acted as a sort of vice-president while the king lived. As soon as he in his turn became king, a new tanist was elected, so that there was rarely a direct election to the office of king. The king was, of course, by virtue of his office, head of the State in general, whether in arms or in peace. He was the fountain of honour and of justice, and one of his duties was to appoint a brehon to administer law in his district. He had himself, in ordinary times, some magisterial jurisdiction. King Cormac, for example, is spoken of as a “righteous judge,” and all kings are spoken of as hearing cases and pronouncing judgments. The nature or extent of this jurisdiction is not clearly stated, but I think it had to do mainly with criminal law, especially treason and the kindred crimes. If from any cause there was in his district no brehon, or the brehon was incapacitated, the king himself CLASSIFICATION OF SOCIETY. 69 was bound to act as judge in cases calling for imme- diate settlement. Wealth is mentioned among the qualifications for the kingly office, but in addition to his private wealth a considerable amount of land was set apart for the use of every holder of the office, what was deemed sufficient to support the dignity and bear the ex- penses connected with it. On this land there was always a dun. A provincial king usually had several mensals of this nature with a dun on each. “The residence of a king is always a dun, and there is no dun without a king.” º §§§º ŽišŠN ſº º: SS t § * Sº §) º º & Sº ow - gº §: - } ł l sº º: s SECTION III. PROFESSIONAL MEN. Sub-Section I.-Preliminary. ROFESSIONAL men next demand our attention, and of these especially the Brehons. The laws were administered in Ireland by brehons, so called while so engaged. It is not clear that there was in early times, as there was in later, a distinct order of men so engaged and not otherwise—judges and nothing else, and there is some reason for thinking that this was an after-growth. In the older manuscripts the words druid, bard, and brehon appear to be applied to the same persons interchangeably and as if synonymous. 7o Af CLASSIFICATION OF SOCIETY. 71 i The terms are, however, not synonymous, and never were, even when applied to the same per- son. One person being a very learned man might be all three ; and probably this was so sometimes, and was always looked for in pre-Christian times. But, of course, its continuance was neither neces- sary nor possible. In some of the manuscripts it is said that legal jurisdiction was vested in the bards, the “just bards" are spoken of as custodians of the law, and the old law itself is called by a name which may be translated “Bardic Law.” Further, a man who administered the law judicially, whether bard or druid or neither, is called a Breitheam or judge; genitive Breitheamhuin, pro- nounced Brehon (another instance of the adapta- tion to English of the genitive of a Gaelic word). Here we have three apparently different classes of men connected with the law in some way; but in what that connection consisted, and what were their mutual relations, or rather their actual distinctions, is not clearly stated. RUIDS next claim con- sideration. One modern writer tells us that the ; Druids were “magicians § and nothing more.” Ma- § gicians, yes; “and nothing more” must be rejected. The popular view of what they were is more nearly accurate than this. The druids were much more. They were above all things the priests of such religion as existed; and in that character were quite as highly venerated and as influential in Ireland as Caesar found them in Gaul. Their religion, if their many strange and conflicting views and practices may be con- sidered as one system and called a religion, was, to our minds, degraded and degrading, and their ceremonies may appear to us silly or worse; we may think Crom Cruach very unworthy of worship; 72 CLASSIFICATION OF SOCIETY. 73 but what does all this matter if that religion was dear to the people as the essence of a spiritual life and the prime requisite for attaining eternal happiness and glory, and if it yielded to its adherents any of the consolations which religion affords and for which the human heart yearns 2 It cannot be doubted that in Ireland, as in Gaul, the most learned, the most sage, and the most virtuous men of the nation were druids or priests of that religion. Their superior learning enabled them to become more than priests; magicians if you will, but certainly philosophers, astronomers, judges, bards, literary men, musicians, physicians, seers or diviners of future events, and many other things, and may have given them a choice, almost a monopoly, of all the offices which required learning. Their magic consisted mainly in their superior know- ledge in times of general simplicity; and I think they deserve to be called a learned priesthood. In those circumstances most of the brehons, perhaps nearly all, were druids; but all druids were not brehons, for the office of brehon was but one of a choice of accessory offices which their learning opened to the druids. This seems to account sufficiently for the connection of the druids with the law, and for the apparent opinion of the writers of old that the terms druid and brehon might be used interchangeably. It is impossible now to determine whether at any time the office of brehon was restricted to the druids as an exclusive legal priesthood. Probably 74 THE BREHON LAWS. there never was a positive restriction, but only the practical one involved in the requirement of learn- ing, which few laymen could then satisfy. (But the administration of the law not being the special function of the druids as such, but only a sort of secondary string to their bow, they may be supposed to have bestowed more attention upon whatever their special function was than upon law. The law remained in the Bearla Feini, the old classical Gaelic in which it had been originally composed, and constituted a large and important part of the Filidecht or higher academic course through which both druids and bards should pass, and in which they should attain a certain standard of proficiency before being admitted to their respective professions. As that old language gradually became antiquated the laws became less accessible and less intelligible to others than those learned men;) and yet the school knowledge of it, which had sufficed for them and was little more than an accomplishment, did not always enable them to deal satisfactorily with the legal difficulties of everyday life. It is easy to conceive that in such circumstances the law may sometimes have failed in its primary object of bringing justice home to the people. An evident want arose. The combined effect of the negligence of those two classes of men and the growing importance of law must have made it clear that the administration of justice ought not to be secondary to anything, but deserved the special and exclusive study of a distinct profes- sion. (To this profession laymen applied themselves CLASSIFICATION OF SOCIETY. 75 in increasing numbers as the druids withdrew, until the administration of the law had got almost wholly into non-sacerdotal hands.) Not being occupied with religion or with any other profession, nor hampered with the trivial formalities which the sacerdotal mind has always been so prone to create and magnify, these men could breathe a freer air, enter more sympathetically into the views and feelings of both parties to a suit, and arrive at a decision more satisfactory to both, than is as a rule possible to men who, though in the world, are best when they are not of it. In Rome also the pagan priests were the earliest judges and custodians of the law. They greatly hampered its justice and its efficiency by the inven- tion of useless technicalities, until at length, in 45I B.C., the Romans resolved to reduce their laws into a written and fixed form, and called upon the priests to produce the laws for that purpose; when, lo, it was found that the priests, after all, really had no substantive laws to produce, that they had com- pletely lost what it had been their business and their pretence to guard, and had guarded nothing but their own technical inventions, mainly concerned with mere procedure (or its prevention), and mainly detrimental to the free flow of justice. Hence the Romans in drawing up their Twelve Tables were obliged to resort to laymen of common-sense, and even to consult neighbouring nations as to the very rudiments of law. º ºwſ: º -a, º, º fººt.º iº º &eºš | * -º W ". ſ ! º (ºil 9. Sub-Section 3.—The Bards. 9 OW with regard to the Files or Bards. They did not, like the druids, become extinct on the extirpation of paganism, but con- *A tinued to flourish and to form an important class down to modern times. They were anciently much more than the present popular conception of them implies, for they were the his- & torians, genealogists, teachers, and literary men of the nation, some of them also being y druids and some judges; but as regards the bards of Christian times, after the monks had taken learning and teaching under their special care, the present conception of the bards is fairly accurate, and therefore their connection with law is not at first sight obvious. Little or no such connection continued to exist, and the presence of the bards in battle and their thrilling 76 CIASSIFICATION OF SOCIETY. 77 writings relative thereto remind one more of the war correspondents of our own time than of lawyers. Anciently some of them were judges in addition to being bards, as we have seen in the case of Dubhthach; but these instances were few even then, and not at all sufficient to explain the intimate connection between the bards and the older law. The secret of that connection lies else- where. Their chief connection with law was not in the character of judges, but in their proper character of bards. In this their true character there was then a use for them amounting almost to necessity. Accustomed as we are to writing, printing, and other modes of preserving expressions of thought, we are liable to forget that the laws we are considering originated when those arts were unknown, when in northern climates men preserved their learning in their heads instead of on their shelves, and communicated it by their tongues instead of by ink and paper. Verse always has been, and still is, easily committed to memory and retained there ; and the more harmonious it is, the more effective and reliable for this purpose. To give this quality to things of value, as law, history, and genealogy, not to speak of pure literature, to which this quality was then natural, was in such a time as important a service as a bard could render to his nation. It imprinted those things, not on paper, but on brains; fixed them in heads where otherwise they would not abide, and rendered them capable of being transmitted from person to person, 78 THE BREHON LAWS. from clan to clan, from generation to generation, from times far beyond the reach of history until well into historic times. This use of poetry was clearly very important, and hence the originals of almost all our very early manuscripts, on law as well as on other subjects, were in verse. It was the duty of the bards to reduce the laws into rhythmical form, and they retained that function in their hands for some time after the actual neces- sity for it had ceased to exist. Nothing but a sense of duty could induce a body of learned men to take such wonderful trouble with a subject so unattrac- tive and unpromising. This fully accounts for the connection of the bards with our ancient law and explains the sense in which they were its custodians; and it also accounts for the abnormal development of the bardic profession in Ireland, and for the extra- ordinary amount of archaic Gaelic literature preserved. The combined effect of metre and rhyme was to render tradition at once easy and reliable. To take the Senchus Mór for example, though now arranged prose-like on the paper, portions of the text are in regular verse; not merely in metre like blank verse, but in rhyme. The editors say that whether this is due to the fact that two of the compilers of the Senchus Mör were poets, or to the fact that the pre-existing laws of Ireland were mostly in rhyme, or partly to both these causes, is an open question. Perhaps so. I think most students of the subject will for themselves consider the question as closed, and feel quite satisfied that the ancient laws of CLASSIFICATION OF SOCIETY. 79 Ireland were mostly in rhyme, or in an alliterative assonance having all the properties of rhyme for ar and memory, from necessity before the art of writing was known, and from the unexhausted force of a long-established usage after that art had become known. The art of writing became known to some extent in Ireland about the first Christian century, or perhaps a little earlier; its practice was en- couraged and extended under King Cormac, in the third century, and from his time downwards; but it was not until the introduction of Christianity in the fifth century that writing became general. During this period, at all events, the time-honoured custom of making and retaining the laws in rhyme undoubtedly held its ground ; so that not alone did the compilers of the Senchus Mör find the laws in rhyme, but they found the old usage still of quite sufficient force to require from themselves a sem- blance of reducing into rhyme any new laws then made, or modifications of the old. Rhymed laws were still the ideal aimed at. Accordingly there is reason to believe that the whole text of the Senchus Mór, written in the fifth century, was in rhyme, and in the introduction, written at a later date, is included Dubhthach's fine poem as the most suitable introduction. This was probably the only introduction in the first instance, the work being then metrical and rhymed throughout. Wherever in the text the rhyme is now absent or broken the reader may conclude that there the various tran- scribers have been carrying on the operations I have 8O THE BREHON LAWS. endeavoured to explain. Finding it necessary to substitute new for obsolete words, and to translate Some passages, and no longer a practical reason for reducing these emendations into rhyme, that cere- mony was omitted, and thus while the law was simplified the verse was spoiled. The commentaries were not composed by bards at all, and so far as they are original they are not rhymed; but in them are frequently quoted fragments of traditional law for the purpose of driving home their conclusions, and such fragments are nearly all in rhymed metre. The ancient cultivation of memory is one of the arts that have fallen into disrepute. It was carried, in other countries as well as in Ireland, to a degree of perfection now hardly credible. Nor were metre and alliteration, as subsidiary to it, peculiar to Ireland or to the Irish laws. The perfection attained in these was peculiar, and rhyme was peculiar. To the absence of this bardic perfection the poverty of other nations in archaic literature is due : to its presence our wealth in that respect is due. For other nations the remote past is a blank: for us it lives, mainly through the skill of the bards. The bards were liberally provided for by their con- temporaries: we may enjoy their labour without having to pay for it. º: < ſ: (@ # # . §§§ º º - Fº º g * * * * > -- º - - º ſ º * * \\ * * : * Vºjſij : ſº ſº tº WA ºf ſº A. º ". *-d flº º d^ ſ - - º º Yºlº º - |A wº §º I wº §ſlº bºº Nº ºmº Š º Nº Tº º, º ſºlº § 3. ſ - D SECTION VI. FREEMEN OWNING NO PROPERTY. ū N further pursuance of our plan the next i class to be considered is that composed of persons who were free but had little or no property, and consequently little or no power. Strictly speaking the col- lateral branches of most families, and persons thrust out of their fines by the operation of , the law, and having no property, would fall within this descrip- tion ; but the persons I wish more par- i& ticularly to gather within this convenient group, in order to separate them from those above them and from those below, were simply men who had become poor as the result of ordinary adverse circumstances, or of war, or of fines imposed for offences, or of want of industry. Their numbers fluctuated from various causes. They had rights by birth as members of their respective clans; but I42 CLASSIFICATION OF SOCIETY. I43 their want of property rendered and kept many of those rights in abeyance, unavailable, ineffectual. This was the only primary difference between them and their fellow clansmen who had property ; but in effect it was productive of many important differences ; so much so that in reality there was more in common between those people and the non-free than there was between them and propertied freemen, and many of them, abandoning all hope of recovering lost ground, deliberately threw up their clan status and their claims which poverty rendered practically worthless, and joined one or other of the non-free classes. Until they had done this, however, they were entitled to take part in the military muster of the clan, and had a number of other rights which any acquisition of property might enable them to realise, but which without property were empty. For example, they were entitled to feed stock on the Fearan Fine ; but so long as they had no stock the right was quite useless. Hºnºlº º ºsº (~ Nilſſ º º §º §ºs º ºut. SECTION VII. T H E N O N - F. R E E . Sub-Section I.-Preliminary. NALLY, with regard to the last & great division, the non-free. One i is sorry to find that there were in Ireland in ancient times, as there have been in other countries in times ancient and modern, people who were not free, some of whom were not regarded as members of the clan (that is, not regarded as citizens), and had no birthright in any portion of the property of the clan. This was so in Christian as well as in pagan times. There were fluctuations both in the numbers who were not free and in the severity of their condition; and there is much reason for thinking that that condition hardly ever reached the degree of extreme abjectness. 144 CLASSIFICATION OF SOCIETY. I45 The origin of servitude in Ireland is lost in the mist of pre-historic ages. We are dependent on conjecture, the most probable being that the Milesians reduced to a condition of sufferance and servitude some portion of the Firbolg, Cruithni, and other races that had preceded them. But the distinction between bond and free did not long correspond with racial distinction, because on the one hand many persons of the earlier races subse- quently rose to rank and power and became scarcely distinguishable from the rest of the community; while on the other hand many persons of undoubted Milesian race sank, either in punishment of their personal crimes or as a result of war or other misfortune, to the very lowest rank of the non-free. Again, a distinction must be observed between individuals in bondage all over the country and Firbolg communities which occupied separate dis- tricts in some parts of the country until the Middle Ages. These latter cannot be classed as non-free. They were long treated as an inferior race, defective in status and in political rights and power; their language and their manners in so far as they differed. from those of the dominant race were considered, as usual in such cases, marks of inferiority; and they probably paid higher tributes than other people did. But they often proved themselves sturdy people, and in course of time the distinctions mentioned came to signify no more than the local characteristics at present observable in different parishes. Without admitting that servitude in any form or II I46 THE BREHON LAWS. degree can be justified, or suggesting that any number of wrongs can make a right, one is free to observe that it is very hard to entirely eradicate from any social system, and especially from one so interwoven and complex as that of ancient Ireland, a social condition which has taken deep root in it and become part of it. Its continuance or discon- tinuance does not always rest with the free choice of individuals: that choice may be overruled by national requirements or what are deemed to be such. There being no prisons or convict settlements in Ireland, except where the natural prison afforded by a small island was available, reduction to a species of slavery, permanent or temporary, was considered a reasonable punishment of criminals guilty of capital offences but whose lives had been spared, and of other criminals who could not or would not satisfy the fines imposed upon them. Slavery in such cases differed very little from trans- portation or penal servitude. The taking of persons as hostages, too, for various purposes in civil matters was quite an ordinary proceeding in Ireland as in other European countries in ancient times. When any of these persons were forfeited the law entitled the holder to keep them in servitude, permanently or until they were redeemed or his claim satisfied by their labour or otherwise according to its extent. Cowards who deserted their clan in the day of trial on the field of battle, or got wounded in the back (while running away), lost their status however high or low it might have been, and virtually lost with CLASSIFICATION OF SOCIETY. I47 it their freedom. And, unfortunately, war oftentimes in its consequences reduced the brave as well to slavery. It always at once increased the number of slaves and furnished a pretext for holding them. The wars with the Danes had this two-fold effect. Stress and trial came, however, and were neither prevented nor surmounted by the holding of slaves in increas- ing numbers. It is said that they were more numerous in the twelfth century than ever before, notwithstanding the condemnation of the Church. In England also in the same century slaves were very numerous, notwithstanding a similar con- demnation. Slavery continued to exist in England to some extent down to the end of the sixteenth century, when it died a natural death; in Scotland down to the end of the eighteenth century, when it was abolished, in 1799, by the Act 39 George the Third, chapter 56; and in America, the land of the free, slavery existed until our own time. In Ireland there were several grades in the non- free state, as in all classes of the free state; but there are three principal non-free classes distinguished in the laws, namely, the Bothachs, the Sen-Cleithes, and the Fuidhirs. Sub-Section 2.-Bothachs and Sen-Cleithes. 2^... : HE word Bothach being * connected with botham, a cabin, it is inferred that the ºff people called by this name were w * cottiers. Sen-Cleithe means Old ' Stake, or old adherent, and the people so called were the poor adherents and dependants of the flaiths, such as servants, herds, horse-boys, cart- boys, dog and hawk-boys, &c. Various writers describe both these classes as prisoners of war or their descendants. For my own part I believe that these two classes consisted wholly of persons born in the territory. Their very names indicate as much ; so also does the class of business in which they were employed; and they were considered as in some sense members of the clan in whose territory they resided, which could hardly have been so had they been prisoners of war. But their connection with the clan did not go to the extent of giving them any birthright in the property of the clan; and I do not think they were entitled to arms or to take any part in the military muster. They had the right to 148 CLASSIFICATION OF SOCIETY. I49 live in the territory as best they could by working for any flaith or any other person who paid them best. They were not restricted as to whom they - should serve within the territory; but they were not free to leave the territory except with permission, and in practice they usually served the flaith. They had no political or clan rights, could neither sue nor appear as witnesses, and were not free in the matter of entering into contracts. They could appear in a court of justice only in the name of the flaith or other person to whom they belonged, or whom they served, or by obtaining from an aire of the tuath to which they belonged permission to sue in his name. In this respect it was these people, not the céiles, who resembled the clientes of ancient Rome. They were capable of acquiring land by contract, and when they had done so they corresponded to the English villeins of the Middle Ages. With industry and economy they might become wealthy, and with the acquisition of wealth a certain progress was allowed upwards towards liberty and an easier lot. The distinction of Saer and daer was recognised in their condition ; but it is not clear in what that distinction consisted, unless the former represented legal status, which wealth was the ordinary means of procuring. When- ever any of them did by contract become land-holders and wealthy they also acquired some social and political rights, and could not be removed from their lands without just cause and compensation for un- exhausted improvements. The main difference between such men and the free clansmen was, I50 THE BREHON LAWS. that while the clansmen's possession of land acquired by contract would in the course of ten years ripen into ownership, and cattle they had hired from the flaith and paid for would after seven years become their own, the non-free men had no such general law continually operating in their favour to this extent, but were kept to the terms of their contract because that was throughout their only title. A freeman sometimes paid a pretty heavy tribute for such land in the beginning; but in doing so he was gradually throwing off a burden from which he knew he would soon be entirely free. A non-free man paid a still heavier tribute, which was a rent in reality; and yet his burden continued undiminished, ever wearisome. And in every case of conflict the claim of the non-free man should give way to that of the clan or of a fully enfranchised member of the clan. The benefit of the principle of partnership was extended to these two classes also, enabling a number of them to put their small means together, take a piece of mountain side or other poor land and stock it on the system now called rundale, and by means of this property to acquire rights and the protection of the law. If five families had each become so wealthy as to own one hundred head of cattle, and had then formed a partnership or guild resembling the fine of the freemen, and appointed a chief or flaith-fine, they were entitled at once and thenceforth to be recognised as a portion of the clan; and then, but not till then, all the rules of kinship applied to them as to the free people. Until they CLASSIFICATION OF SOCIETY. I5I had emancipated themselves by individual or joint wealth, or in some other way, they appear to have lived very much on the sufferance of the clan. The majority of them remained poor and had little occasion or inclination for testing the scope or existence of their rights. It is probable that the condition of even these was not on the whole worse than that of modern agricultural labourers. Their position was one of rightlessness rather than slavery; they were tolerated rather than bound. ** a ** Sub-Section 3.—The Fuidhirs. ". \UIDHIR was a name applied to all § who did not belong to a clan, whether born in the territory or not. This was the lowest of the three classes of the non-free people. This class also was sub-divided into Saer and daer, the daer fuidhirs being the class most closely resembling slaves. Even this lowest condition was not utterly hopeless ; progress and promotion were possible, and indeed were in con- stant operation. But on the other hand the ranks of the fuidhirs continued to be recruited from various sources. It was here prisoners of war were to be found. The pagan Irish were wont to go on warlike expeditions to Britain and Gaul, and on their return to bring home, along with other booty, some of the Í52 THE BREHON LAWs. natives whom they reduced to slavery in Ireland. It was in this way Saint Patrick was brought to Ireland, and it was as a daer fuidhir he lived in Ireland in his youth. Centuries after Saint Patrick's time the Irish used to send to English ports and purchase children as merchandise from their English parents, who sold them freely. These children were brought up as 'fuidhirs in Ireland. And, as already mentioned, the ranks of the fuidhirs afforded a general refuge for con- victs, fugitives from justice from other clans, tramps, Outcasts, and unfortunate persons of all sorts. A freeman could remain in his own tuath and become a daer fuidhir if all his property when given up was insufficient to pay his debts—a species of bankruptcy plus capitis diminutio. No fuidhir, saer or daer, was entitled to bear arms, or to recover eric for the murder of a member of his family, or to inherit property if by any chance he found himself in a position in which he would otherwise inherit. The law recognised the fuidhirs in some respects, however, in certain matters not fit to be stated here. The lowest of them were regarded as intelligent persons, as human beings, not mere chattels. - Fuidhirs and the non-free of all classes resided for the most part on the flaith’s land; for, apart from the satisfaction of specific claims, the flaiths alone, as a class, had the general right of keeping non-free persons on their lands. This exclusive right originated in the legal theory that they were public officers, bound among other things to perform certain public works requiring unskilled labour of a coarse kind, CLASSIFICATION OF SOCIETY. f53 and they were allowed to keep non-free people for the performance of these works for the benefit of the community, as with convict labour of the present day. In practice they mostly employed the fuidhirs in works for their personal benefit. They were free to give patches of land to the saer fuidhirs either on their official lands or on their private property. In practice they gave them patches on the common or waste land also, exacted rent for it as though it were private, and in this way appropriated that land. The land so given was usually the poorest, most inacces- sible, and most difficult to utilise. The saer fuidhirs might, however, if they had the means, bargain with the flaith for good land and hold it for the term of one year, and during that term they could not be dis- turbed. For this land they paid him high rent, because he could charge them as much as he pleased, a thing he could not do with the clans- men. The daer fuidhirs, so long as they remained such, could hold no land whatever for any term, and no contract made with them had any binding effect. They worked for the flaith, and by means of their cheap labour he was able to cultivate his land, and some of the common land of the clan if it suited him. Both classes of fuidhirs helped the flaith to encroach on the property of the clan. Hence he had an interest in increasing the numbers of fuidhirs, and with their increase his dependence on the clan in some respects diminished. The moral and material interests of the free clansmen leant the other way. They disliked the presence and still more the increase of fuidhirs. The I54 THE BREHON LAWS. policy of the law, too, was distinctly and uniformly adverse to slavery and to the introduction and keeping of fuidhirs, and it imposed some checks on the practice. For the performance of servile labour for the benefit of the community it allowed rather than entitled chiefs and flaiths having control of districts to keep a limited number of fuidhirs in proportion to the size of their respective districts. This -particular restriction as to number does not appear to have been operative. The law, however, held the chief or flaith responsible to his clan and to his king for all legal liabilities arising from the acts of fuidhirs. It made his rank and privileges depend on the number of céiles in his district. It bound him to be ready when required to bring a certain number of armed men into the field of battle, and as the fuidhirs were neither bound nor entitled to take part in military operations at all, this demand could be satisfied only by free clansmen. For all these reasons, however the flaith might desire to increase the number of fuidhirs for his personal advantage, he could do so directly at the expense of the céiles only to a limited extent. In other ways also the law discouraged the introduction of fuidhirs ; and when they had been introduced it favoured and facilitated the well-being and emanci- pation of such of them as were not criminal. There- fore all families did not remain permanently in this kind of servitude but gradually rose from a lower to a higher degree according to a certain scale of progress, unless they committed some crime which CLASSIFICATION of society. I55 would arrest that progress and cast them down again. This progress was arranged according to the time a fuidhir family had resided in the territory, and its thrift as evidenced by the amount of wealth acquired, subject to the effect of conduct. Though a flaith might not keep any bargain with a daer fuidhir, if as a fact he let land to him and did keep the bargain, a status began to be acquired. In the third generation the fuidhir family attained some partial connection with the clan and a foothold in the soil, so that they could not be driven away except for a crime. As time went on, if the progress was maintained, the rights of their descendants increased and expanded, they gradually intermarried with the clan and became indistinguishable from it, and their origin was forgotten. In later times as the flaiths assumed the character of lords, all poor people, whether originally free or not, gravitated towards the condition of the ancient fuidhirs; and under Queen Elizabeth the majority of the Irish people were indiscriminately reduced to almost the same level. So they and their descendants remained for almost three centuries. CHAPTER VI. THE ZA W OF DASTRA/AWIZVG. SECTION I. I N T R O D U C T O R Y . * /* TX O * º %) \ i. ET us now consider briefly the law (N9) ) of distress, that is the seizing of / § §º property for the satisfaction of debt. § º In its time it was substantially the g- gº º most extensive and important X\}\; * F_º. º tº º t º Fº º A3, -º- --- * Lºº g wººl tº º º - º *~~ Wºº *::F tº ºf ‘º † º gº tº :* sº & º ºft 22-ſº 㺠ºff | wº º * -- §º Sº |. º ºt º º B º Prº DNA ºf 1. Iº ſºlº º [. º W/ſ29 S *Hººk 2 º : a tº º . * - sº sº. Tº . º º º: º . . . tº ºr -º *Tºº #Tºº Tºtº ſº º º # G & | a.ºf G SECTION IV. THE MAIGHIN DIGONA. around the dwelling-house of every clansman, within which the owner and his family and property were inviolable. It was sometimes a cleared space the boundary of which was marked by trees or bushes; but whether thus perceptible to the eye or not did not affect its reality. The English saying that every Englishman’s house is his castle, is an illustration of the spirit that prompted the maighin digona. The sanctuary varied in extent with the owner's rank. In the case of a bo-aire it extended as far as he, while sitting at his house, could cast a chairsech. This is differently described as a spear and as a sledge- 208 CRIMINAL LAW. 209 hammer. It was probably neither, but bore some resemblance to both. It consisted of a head of iron fastened on a wooden handle “twelve fists” in length. The hand was commonly used as a standard of measure, being considered four inches across the palm at the roots of the fingers, six inches across at the thumb with the thumb extended. On the end of the wooden handle was a bocãh (bokkeen) or horn fixed crosswise, just as the Irish peasants are to this day accustomed to fix bokkeens on the handles of the tools they use. One throw of this instrument deter- mined the extent of the bo-aire's sanctuary, twice this for the aire-desa, and so on, the distance being doubled for each successive grade in the ascending scale. Four throws and three score (i.e. sixty-four throws) was the extent of the Rig-Tuatha's sanctuary. This is said to have equalled a thousand paces. In some districts the sanctuaries of chiefs were measured by the sound of a bell or the crow of a cock. A provincial king might, if he pleased, assert sanctuary over the whole extent of the plain on which his dun stood. The bards and brehons appear to have had the same extent of sanctuary as the rig-tuatha. In Christian times bishops appear to have had the same extent of sanctuary ; whence, perhaps, it may be inferred that in pagan times the arch-druids were similarly favoured. An ollamh's wand carried round and over a fugitive anywhere protected him as did the maighin digona. The owner of a maighin digona was empowered to extend its protection to a stranger flying from the I5 2IO THE BREHON LAWS. hue-and-cry; but no stranger could effectually avail of it without the owner's consent. If this consent was obtained, the effect of the extension was to save the stranger from the violent hands of his pursuers. They could not pursue or meddle with him further, but were obliged to resort to the legal methods of bringing him to justice. They could summon him before a brehon, and against this the sanctuary did not protect him at all. If they violated the protec- tion by continuing the pursuit and abusing the fugi- tive, they incurred liability to the owner of the maighin digona. The owner of a sanctuary was bound not to allow a fugitive to escape. “He who lets a criminal escape is himself a culprit.” He might avert violence, but not defeat justice. When asserting his sanctuary he was bound to give the pursuer a guarantee that he would not allow the fugitive to escape; and if no actual guarantee was given the law presumed a guarantee, and held the owner of the sanctuary responsible for the original offence if he allowed the prisoner to escape. wº ºzºsº ſº tº | sº º º, *Sº * ar t V./ (a. Q Vºžº | §§s º º º, |S d º º iº º - | º ſº | º | º ºth j\ W ſº l º d CHAPTER VIII. J. E. G. E S M Y NO R E S. SECTION I. MARRIAGE. OGICALLY the subject of Marriage should have been discussed in con- nection with the account of the clan system. But not being essen- tial to that account, its introduc- tion there would have further confused a subject already suffi- ciently obscure. Under the clan system one would expect to find the marri- age laws very important and clearly laid down; yet, notwithstanding the domestic familiarity of the laws, the information given on the marriage relation is surprisingly scanty, and of a disappointing character 2II 2I2 THE BREHON LAWS. too. The ancient Celtic family was not constructed like the modern Christian family, and it retained its form for some time after the people had become Christian. What precisely that form was, and what the principle of construction, being matters involved in our lack of knowledge of the clan system, are now subjects of more or less wild conjecture. My own impression is that in reference to the small, private circle which we should call the family, it is not so much knowledge of the thing itself we lack as know- ledge of the manner in which the clan organisation produced such a condition of things that the law was rarely invoked in matters which are of frequent occurrence in modern litigation. So far as the laws show, the marriage relation was extremely loose, and divorce was as easy, and could be obtained on as slight grounds, as is now the case in some of the States of the American Union. It appears to have been obtained more easily by the wife than by the husband. When obtained on her petition, she took away with her all the property she had brought her husband, all her husband had settled upon her on their marriage, and in addition so much of her husband's property as her industry appeared to have entitled her to. This latter would be little or nothing if she had been an idle woman, a con- siderable amount if she had been a good housewife and producer of wealth. It was estimated in various ways according to circumstances. Supposing there was a quantity of flax or wool on the premises, if this remained in the raw state until the woman obtained LEGES MINORES. 2I3 her divorce she could take away none of it unless she was able to establish a claim in some other way, which she might do up to the value of one-eighth of the raw material. If by her industry she had it “in locks,” she was entitled to take away one sixth of it; if combed, one-third ; and so on; the assumption being that she had made these improvements. In making these calculations various matters of set-off arose with which we need not trouble ourselves here. The law seems to contemplate a woman being divorced from her husband and marrying him again, and even doing this more than once. Possibly divorce is a redundant translation, that the marriage was not considered completely dissolved, and that Separation would be more nearly correct. According to these laws a man might purchase a wife; from which it would follow that what a man might buy he might also sell. The English laws of AEthelbirht and of Ine distinctly provide for the buying of a wife. The Irish laws have much more to say about the abduction than about the purchase of wives. The laws recognised three relations between men and women. In the first of these stood “a first lawful wife ; ” in the second “a first lawful adaltrach-woman ; ” in the third “an adalt- rach-woman of abduction.” All were legal relations, and could not be dissolved except by the will of both parties or by legal process. These relations are not defined; but I believe that the first was the only one that had a religious sanction, and that the second and third were merely civil relations, the 2I4. THE BREHON LAWS. third being distinctly stuprous and of itself scarcely conferring any right. Apparently the law on marriage and the dissolu- tion of marriage was wholly pagan, and never underwent any modification in Christian times; perhaps because it was little resorted to except by the wealthy, and they had sufficient influence to keep it unaltered. Besides, it is impossible to know how we may err in attempting to apply laws to a form of society which we do not understand. I am con- vinced that the law on this subject must not be taken as presenting a true picture of ancient Irish life, not because the picture is an unfavourable one, but because outside the laws there is overwhelming evidence that this legal picture is unjust, that singular purity characterised the Irish in the past as in the present, and that women occupied in ancient times a position as honourable as they occupy now. It is one of the many cases in which the law is more concerned with the few who invoke it than with the many who never invoke it during their lives. Probably all the value that should be attached to the law on this subject is that it marks the extreme limit of libertinism. SECTION II. FOSTERAGE. g is §§ OSTERAGE was such an important º feature of Irish social life that, :%ſ".Wº% although only a custom, elaborate Fºº" rules relating to it were laid down * in the laws; and we cannot omit noticing the subject, however briefly. Fosterage was the custom of placing children during their minority in charge of other members of the clan. It was usually restricted to members of the fine, which has been described and which chiefly consisted of persons within the fifth degree of kindred; but there was no strict rule on this point. It was practised by all classes, but especially by the wealthy, by chiefs and leading men. It is not clear what, besides the force of habit, was the motive for it; but its practice, whether designed for that end or not, helped materi- 215 2I6 THE BREHON LAWS. ally to strengthen the natural ties of kinship and sympathy which bound the chief and clan or the flaith and sept together. Quite apart from law, the relations arising from fosterage were in popular estimation the most sacred of the whole social system, and a stronger affection oftentimes sprang up between persons standing in those relations than that between immediate relatives by birth. There were various kinds of fosterage, and minute rules are laid down for all, especially with reference to the mode of treating the children in fosterage according to the position they were intended to fill in after life, the amount payable by the different classes for the different kinds of fosterage, the rela- tions between the child and its foster parents both during the fosterage and after, and various other matters. Foster parents were bound under heavy penalties to teach their foster children or have them taught, whether boys or girls, the branches of know- ledge, business, trades, or exercises suited to their rank. During the fosterage the foster father was liable for injuries and offences committed by the foster child, and entitled to compensation for any injury done to the foster child. A peculiar variety, called literary fosterage, was practised by ollamhs. Ollamhs taught pupils of the ordinary sort in the ordinary way, for payment or for nothing according to circumstances; but they also took a limited number of pupils into a particu- lar kind of fosterage combined with pupilage, adopted them into their families, and so thoroughly LEGES MINORES. 217 imbued them with the spirit of the profession they were about to enter that the original family ties of those pupils became as if they had never existed. As a rule a child was not sent to fosterage until it was one year old. “There are three periods at which fosterage ends: death, crime, and selection.” Selection meant marriage; and the legal age of selection was reached by girls at the end of fourteen years, and by boys at the end of seventeen years. Foster parents who had properly discharged their duties were entitled in old age to be supported by their foster children, if they were in need and had no children of their own, The law of fosterage seems to search out, ransack, and provide for every domestic possibility. It is perfectly amazing to find so many rules relating to domestic economy, and to contrast the modern absence of rule on such matters. Let me give an illustration. Expounding the cáin law of fosterage some worthy ollamh writes in this fashion—“What are their victuals 2 Leite=stirabout is given to them all ; but the flavouring (literally dip) which goes into it is different; namely, salt butter for the sons of the inferior grades, fresh butter for the sons of chieftains, honey for the sons of kings. The food of each continues the same respectively until the end of one year, or three years [according to the kind of fosterage]. Stirabout made of oatmeal on butter-milk or water is given to the sons of the Feini grades, and a bare sufficiency of it merely, and salt butter for flavouring. Stirabout made on 2I8 THE BREHON LAWS. new milk is given to the sons of the chieftain grades, and fresh butter for flavouring, and a full sufficiency of it is given to them; and this stirabout is made of barley-meal. Stirabout made on new milk is given to the sons of kings, and it is made of wheaten meal, and honey for flavouring.” This passage will convey an idea of the small matters of which the law took cognizance. Skene, the author of Celtic Scotland, says that the word “stir- about ’’ is unknown out of Ireland, and quoting this passage he substitutes the word “porridge.” SECTION III. CONTRACTS AND WILLS. ... tº ON TRACTs \\s..... §:4% between indi- •ºrrºr º viduals do not assume great impor- tance among a people organised in clans until clan responsibility has sºr. • begun to give place to the responsibility of individuals. The provisions of the clan system, coupled with the simple country life of our ancestors, left little occasion for contracts either of the commercial sort or under seal among them ; and the same system so fully provided for the devolution of their property after their death that there was hardly any occasion for wills. In transferring property in goods, barter, which was far more extensively employed than true sale, was in general more conclusive and gave rise to fewer 2I9 220 THE BREHON LAWS. questions for legal decision. Contracts relating to land were not numerous. They could in general be made only with the concurrence of the sept and in the presence of a flaith of high rank called the Aire-forgaill. Some written contracts relating to land have been preserved, perhaps from the four- teenth century; but while other writings of ap- parently less private importance are carefully dated, these are without date. It is at first sight strange that written contracts and wills were so little used among a people so addicted to writing on other subjects. The explanation is, that the clan system rendered them unnecessary. They were exceptional and foreign to that system, and while it continued in effective operation the amount of property affected by contracts and wills was probably not great. Nevertheless, some rules relating to wills are laid down in the Corus Besczea ; and the Senchus Mór contains a good deal about contracts, from which it is clear that warranty on the sale of goods was well understood and frequently given and taken ; and the importance of a valuable consideration, not generally recognised in English law until the last century, was perfectly well known in Ireland. Anything done without valuable consideration is described as done “for God's sake,” and imposed a very slight if any legal obligation on the other party to it. From the expression frequently used that “Nothing is due without deserving it,” we must infer that a valuable consideration was essential to the binding of a contract of any kind. LEGES MINORES. 22I It also appears that to form a contract perfect and legally binding a witness was necessary, that this witness should in general be of the tribe of the party on whom the performance of the contract lay, that his status was an important legal element, and that by acting as witness he incurred the liabilities of a surety. Many rules are given as to the times within which in different circumstances sales might be set aside. A contract of two sane adults, with knowledge and warranty, might, on fraud being discovered, be dis- solved in twenty-four hours. Without knowledge and without warranty it might be dissolved for ten days after the fraud was discovered. In both cases the “knowledge” is that of the buyer. The law seems more concerned about the state of the buyer's mind at the time of the purchase than about that of the seller. Ratification of contracts made by persons under subjection and therefore not fully entitled to contract was also well understood. “One is held to adopt what he does not repudiate after knowledge, having power.” From a passage I have quoted it would appear that, as in English law until recently, a married woman was merged in her husband while he lived, and could not be bound by any contract made by her. This, however, is subject to some qualifica- tion, for it is clear from other passages that a woman could contract, in the presence of her husband, to the amount of her own honour-price. 222 THE BREHON LAWS. Few married women had either taste or occasion for asserting what are now called women’s rights. A boy was deemed to have no sense until he was seven years old, only half sense from seven to the end of his fifteenth year. Even after this period he had strictly no power to contract so long as he remained a member of his father's household ; but if he did make a contract with his father's knowledge it was binding on the father unless promptly repudiated. If once ratified by the father it was treated as his contract. Monks on becoming such lost the capacity of contracting; but a monk who became abbot, or was appointed to manage the temporal affairs of his community, was allowed to contract on behalf of the community. The non-free had very meagre powers of contract- ing, and the lowest grade of them had none at all. SECTION IV. ARTISANS. 3. NE does not expect to find much Sº in these ancient laws relating \; specially to artisans. The ordi- nary law applied to them as to other people, and they were not sufficiently numerous to call for special treatment. We are told that their social status was determined by the rank of those for whom they worked. If this was so, its effect in practice probably was to make the position of artisan to a chief an object of ambition in each particular craft and the reward of superior skill in that craft; and if the artisan continued to progress, his status would rise part passu with his skill—a very just arrangement. Workers in gold and others who practised what might be called fine arts, the results of which were required only by the 223 224 THE BREHON LAWS. wealthy, must under the same arrangement have stood high in the social scale. Smiths, too, were always held in high esteem. Some of the more important artisans were supplied with free lands for their support; others were paid wages, which appear to have been fixed, in theory at least, by the law. We have already noticed the power of artisans to form guilds or partnerships in virtue of which they could acquire political and social rights; and we have also noticed some liabilities connected with their trades, in the chapter on crime. It was customary with artificers, on completing a work and delivering it to the employer, to pronounce a blessing on it. So strong was the feeling on this subject, that a workman who refused to give the blessing was fined. It would seem that the first who saw a work newly finished by another was also expected to bless the work. This was extreme sensibility; but as the blessing was general the shock caused by its omission was great. When I first came to London I was shocked on meeting . persons asking alms without adding the words, “for God’s sake,” and taking alms without uttering a prayer in return ; for neither is ever omitted in Ireland. Hºnº Nº||Nº|| illiºt, r "tº >