Pagan Ireland.

by Eleanor Hull

The Administration of Justice

The Duel.

The death of an adversary in a duel was not supposed to be a murder, if the duel was regularly carried out : that is, before witnesses, and with the knowledge and consent of the families and of the tribal chief. The clothes and weapons of the slain man belonged to the survivor, and he had to give no " eric," unless the slain man had been forced into the duel against his will, or had been handled unfairly in the combat. Duels and single combats were a common way of settling both private and public disputes, and were considered honourable if carried on in an open, legal fashion. They were often used as a resource when a debtor would not settle with his creditors, or pay the " eric " demanded of him. In public matters, warriors and chiefs often challenged each other to single combat; and sometimes a battle seems to have been chiefly a series of single combats between well known champions. When famous princes or warriors engaged each other in the course of a battle, the whole army on either side would seem to have stopped fighting to watch the duel. For instance, in the story of the Battle of Magh Rath (Moira) each champion or chief challenges some chief on the other side, while the hosts look on and cheer them forward.

Law of Distress.

But now let us take the case of a man who has not killed his enemy, but has wounded him, or in some way done him an injury maliciously. The man demands an " eric," which is a fixed amount, depending on the extent of the injury, and on the position of the person injured. Supposing the debtor refuses to pay his legal debt, what happens? For there are no police to take him up, and no courts of law to which the injured man may appeal.

It was sometimes a very long business indeed, before such a man could get his rights, and the bulk of the Senchus Mor (the " Great Tradition ") contain- ing the Ancient Laws of Ireland, many of which have come down to us, is occupied with explaining what is to be done in such cases. They had resort to what was called the "Law of Distress," and by a "distress" was meant, not the trouble that was on the creditor, but the goods of the debtor which were owing to him, and the manner in which he was to get them. There are several large volumes of these old laws published, and about half of them is taken up with the Law of Distress, and all the possible ways in which it might be applied, and the difficulties that might arise in carrying it out. A great many of the regulations seem to us very amusing, and almost like a children's game, but they were all seriously carried through, and if the least mistake were made, the creditor forfeited part or all of his compensation.

If the creditor did not exactly know the proper form he called in the aid of the officials, by making an appeal to the Brehons or judges; but it was so perilous to make a mistake, that probably the aid of the Brehon was almost always called in on occasions when the debtor declined to pay the due compensation. In all other cases the creditor and his relations conducted their own business. Let us try to understand something of the Law of Distress, and how it worked.

Distress ' meant the forcible seizing of a man's property, which generally consisted of his cows or live stock, in payment of a debt. In many villages in England and Ireland, there are still to be seen Village- Pounds, i.e., enclosures, into which cattle used to be driven. These Village Pounds take us back to the time when the Law of Distress, or something equivalent to it, was still in force.

Let us imagine a case in which a farmer has done an injury to a neighbour. The neighbour wants his compensation, but the farmer refuses to give it. The aggrieved man knows exactly how many cows and pigs will make up the amount that he is entitled to demand. If he is very angry, or the man who has injured him is rich and quite well able to pay, he may adopt what was called " Seizure without Delay." In that case all he has to do is to send a body of men to surround the farm of the culprit and drive off as many of his cattle as they can seize to the " pound " or to the fields of the man who seeks compensation.

For five days they remain there untouched, but the man to whom they belong is obliged to feed them. If after the five days, he has not come to his senses and still declines to pay, the cattle are gradually forfeited and become the property of the creditor, a few every night, until the right number are in his possession. If there are not sufficient, he makes a fresh raid and seizes more; if there are too many, the rest are sent back. So the matter is ended without the intervention of anyone.

If the creditor is more merciful, or the debtor is poor and has difficulty in raising the proper number of cattle on his own farm or among his friends, the seizure may be made " with Delays." By this method the debtor gets fifteen days' grace, instead of five, and the whole business is conducted in a more leisurely manner. First the injured man makes his formal demand for compensation. Then five nights elapse, during which the debtor may pay his debt, or send to the creditor a pledge (his son, perhaps, or a sufficient number of cattle), to show that he is making exertions to pay it as soon as possible. This pledge is forfeited if he does not keep his promise. After the delay of five nights, if he has done neither of these things, the raid takes place and his cattle are driven off : but they are soon allowed to return; this first seizure is only to warn the debtor that the creditor intends to have his rights.

Five more nights elapse, and again a raid is made if nothing has been done in the meantime. This seizure is more serious; the cattle are driven into the pound or to the estate of the creditor, and kept there, still at the debtor's expense for feeding. A message is sent to tell him where the cattle are, and his last five days of grace take place, after which his property is gradually forfeited, as in the " seizure without delay." The whole thing reminds us of a sort of play warfare, attack, and ruse, and withdrawal and final onslaught; and the method probably arose out of the customs of tribal raids. All the rules had to be very carefully observed, however, in carrying out the Law of Distress. The seizure might be a seizure of one, of three, of five or of ten nights, according to circumstances. If it were of one night, the whole thing was done in three days; if of ten, it took thirty days (i.e., three periods of ten days) to complete the Distress. For a woman the time was six days in all, that is, it was a seizure of two nights remedy.

If a chief or great man injured a poor man, how was the poor man to get compensation? He dare not seize the cattle of his lord or chief, even if he were able to do so; indeed, he was not permitted by law to do so, for the power to " distrain," as the seizure for compensation was called, was only allowed to those who held a position that entitled them to appear at the public assemblies or annual convocations, that is, to the well-to-do middle and upper ranks. Neither a chief nor a peasant could distrain, or in any ordinary way enforce the payment of a debt. What was the poor man, the serf or unfree tenant, to do?

Here seems a case in which justice could only be claimed by pleading in a court of law. No doubt this course was often adopted, but it was probably expensive, necessitating, as it did, the presence of a Brehon or judge, one or more advocates, and witnesses. Moreover, the judicial courts seem to have been held chiefly at the annual " aenach " or triennial " feis," for which the creditor could not always wait. A most curious plan was resorted to, so curious, that if we did not know that exactly the same custom is carried on to this day in India and Persia, we should hardly be able to understand the accounts given of it in the old stories, and in the Senchus M6r. It was called " fasting upon " a debtor, and it consisted in the man to whom the debt was owing, sitting down at the door of his debtor's house and remaining there without eating until his claim was settled. In dealing with a king, a chief, the higher nobles, or a File, "fasting" must always first be tried, even if it were afterwards intended to proceed to " distress." These higher personages were supposed to be sacred, and could not be treated like ordinary men.

Let us think what happened. The creditor, generally a poor man, who could not get help for himself, would sit patiently down at the door and begin to fast. In Persia, a man has been known to begin fasting by sowing barley at the debtor's door and sitting down in the middle of it. He means that he will, if necessary, sit there until the barley is grown up to feed him. The meaning of his sitting at the door, evidently is, that the man in the house is his prisoner; and though he does not seem to have employed force or attempted to injure the debtor in any way, the custom may, perhaps, have arisen out of watching at a door with intent to kill or injure. In India, Brahmins, who are the sacred or priestly class, have been known to sit at the door with poison or a weapon in the hand, threatening death to the inmate if he ventured out. There may have been, in very early times, some idea of the same kind in Ireland, but in the stories nothing of the sort is suggested.

You will say that the creditor suffered more than the debtor, but this was not always, if ever, the case, as the man inside seems to have been obliged in honour to fast too. It was often a struggle which of them would give in first; so long as the debtor could hold out, he was safe from the consequences of his wrong doing. We read of Adamnan and a prince named Irgalach fasting against each other for days, both standing all night immersed in cold water up to the throat. They regularly arranged the plan of procedure between them, so that neither should obtain an advantage over the other; until at last, by a not very creditable device, Adamnan got the better of Irgalach, and forced him to give in. This is probably an imaginary story, but it is founded on a well recognised method of procedure. It was the duty of the debtor to offer food to the man at his door, and to give a pledge that he would either pay his debt or have the matter decided by a Brehon. If he did not do his duty, he was liable to pay double in the end.

As a matter of fact, the debtor would generally have to give way if the other had a just cause. It was very unpleasant to have a man fasting to death at your door; and it was still more unpleasant to feel that the whole tribe sympathised with the man, and looked upon you with detestation, as a person abandoned by God and man. It was universally believed that evil would befall the man who resisted fasting. The Senchus Mor, or Great Tradition, as the old law books are called, solemnly says : " He who does not give a pledge to fasting is an evader of all : he who disregards all things shall not be paid by God or man."

The whole nation believed that some terrible catastrophe would befall such a person. It was this belief in a supernatural power behind their threats, that gave such authority to the " fasting " of the monks. In the story of the fall of Tara the mere ringing of bells and " fasting " of the monks on Tara green, seems to hava brought about the fall of the monarchy. But it was the weight of the displeasure of a whole nation visited on the sovereign who had laid himself open to fasting that brought about the consummation threatened.

The people fell off from a man against whom the monks fasted as from one smitten by the plague. They neither dared nor wished to give him their support. We see this pressure of public opinion even in our own day exercised against one who, even if he may be altogether innocent, has for some reason come under popular displeasure. Men fall off from him by mere force of example, and he becomes a social outcast, shunned by the society in which he formerly moved. This same social ostracism is very strong among primi- tive peoples, who act more often from instinct and example than from reason.

Thus you see that, as a rule, law was executed in Ireland without having recourse to courts of justice, and always without the aid of police. The injured man carried out his own punishments, even in cases wher the Brehon was called in to arbitrate. You will notice, also, that the punishment generally consisted rather in payments from the possessions of the criminal, that in harm or confinement to his person.

It was the business of the Brehon to apply the law to special cases or to amend or modify it as occasion arose. The Brehon Laws are full of instances most of them imaginary, and many of them very far-fetched in which some little variation in a case demanded a separate treatment, or a modification of the law; in many instances the regulations seem to have been so old that the Brehons who wrote them down did not understand their application owing to the changes in society in their own day. In these cases they were ingenious in making all sorts of guesses at the intention of the law which had been handed down to them, but of the meaning of which they were doubtful. These explanations or glosses on the laws fill two or three times the space of the regulations themselves.