The Law of Distraining
Let us now consider briefly the law of distress, that is the seizing of property for the satisfaction of debt. In its time it was substantially the most extensive and important part of the whole Brehon Code and in its operation affected the whole of it, being incidental to all litigation. That strange fact makes it interesting to us. It has besides some intrinsic points of interest. But the whole subject will not detain us at length proportioned to its ancient importance. There had always been local customs regulating distress, but, as might be expected, neither were they all alike nor any one of them consistently observed even in the district to which it nominally belonged. The consequence was irregularity leading to injustice and sometimes to violence. The matter being so very important, a national convention was summoned and held, about a hundred years before the birth of Christ, on the hill of Uisneach, near the present town of Moate, in Westmeath, was attended by representative men from every province, and there a uniform system of distress drawn up and proposed by Sean (Shan), son of Aighe, a Connaught-man, was adopted for the whole country. This continued in force for nearly seventeen hundred years, and is the system now about to be briefly outlined.
Definition and Scope.
Athgabhail is the word translated distress. It means the resumption or recovery of either property or right of which one has been deprived. What was meant for a definition in the Gaelic is translated thus—‘It is called Athgabhail, because through it advantage is obtained after disadvantage, property after the absence of property, possession after non-possession, truth after untruth, legality after illegality, justice after injustice, lawful possession after unlawful possession, right after wrong, order after disorder. Athgabhail is a general name for every security by which one recovers his right. Athgabhail is that which renders good to the good, which renders evil to the evil, which takes the guilty for his guilt.’
Whatever the law commanded or prohibited, the command or prohibition, if not obeyed, was enforced by means of distress. It was a remedy of almost universal application. It was available for the recovery both of tributes and of ordinary debts, thus corresponding to both distress and the final execution of a writ of fieri facias in English law; but it was equally applicable, and as freely used, for the recovery of all sorts of mulcts, forfeitures, penalties, and fines, and for the satisfaction of every species of liability. And since the Brehons reduced all liabilities of whatsoever original nature to material value to be recovered by distress, the modern distinction between civil and criminal liability did not exist, and distress was applicable to every action and to every charge. Further, it was not alone the mode of executing a judgment, but also a mode of instituting an action. Hence the disproportionate importance of this subject and the enormous amount of space occupied by it in the Brehon Laws; and hence in the part of the Senchus Mór dealing specially with it nearly all other branches of law are mentioned incidentally.
Whoever had any claim or complaint against another, either summoned that other or, by distraining, obliged that other to summon him before a brehon, who decided which party was in fault, and assessed the amount that person should pay to the other. There was no sheriff or other public officer to execute the distress and realise the amount assessed; the plaintiff, creditor, or person who had gained the suit was obliged to do it himself; but in doing so he was bound to take with him a law agent in the character of a notary, together with witnesses, as a guarantee that the requirements of the law should be duly observed on both sides. He also took with him such assistants as the occasion suggested. A person distraining in this way does not appear to have been any weaker or less successful than is the sheriff in our time. ‘If a man who is sued evades justice, knowing the debt to be due of him, double the debt is payable by him, and a fine of five seds.’ This provision made the defendant the party most interested in effecting a speedy settlement.
Distraint and Fasting.
Generally a person before proceeding to distrain was bound to give certain notices. ‘A notice of five clays is to be served on a debtor of the inferior grade, and then distress is to be taken from him.’ ‘A notice of ten days upon the debtor of chieftain grade.’ If the defendant was a chieftain, a flaith, a brehon, a bard, or a bishop, the plaintiff was obliged to fast upon him in addition. ‘Notice precedes every distress in the case of the inferior grades, except it be by persons of distinction or upon persons of distinction; fasting precedes distress in their case.’ The Troscead, or fasting upon one, consisted in going to his house and waiting at his door a certain time without food. The text says, ‘He who refuses to cede what should be accorded to fasting, the judgment on him according to the Feini is that he pay double the thing for which he was fasted upon.’ This was a strong measure. And the commentary says, ‘If the plaintiff has fasted without receiving a pledge, he gets double the debt and double food.’ Again the text says, ‘He who fasts notwithstanding the offer of what should be accorded to him forfeits his legal right according to the decision of the Feini.’ Clearly the law did not suffer the mode of distress by fasting to be trifled with in any way. If the plaintiff, having duly fasted, did not within a certain time receive the satisfaction of his claim, or a pledge therefor, he forthwith distrained the goods as in the case of an ordinary defendant, and distrained double the amount that would have satisfied him in the first instance. Sir Henry Maine thought that fasting was regarded with a superstitious awe. I rather think the law, without superstition at all, was calculated to inspire a good deal of awe, and that the distinguished defendant, if he possibly could, paid the debt or gave a pledge in order to get the faster, as a dangerous nuisance, away from his door.
Distress by way of fasting, now so strange to us because so long obsolete, was clearly designed in the interests of honesty and of the poor as against the mighty. How or why it assumed this particular form is not known, and shall probably never be known. It was not peculiar to Ireland, however. A system precisely similar has existed in India from time immemorial, and exists in some parts of that country at the present day. It is called ‘sitting dhurna.’ There are also other points of resemblance between the native laws of India and the Irish laws. India and Ireland are too far apart in space, time, and historical connection for these resemblances to be more than coincidences due to similarity of occasion, or to some common cause acting on the minds of men, or to chance.
Ordinary distress was of two kinds, ‘Distress with Time,’ and ‘Immediate Distress.’ In ‘distress with time,’ the thing seized was subject to an anad, that is, a respite, or stay, which was a period varying in duration according to fixed rules. ‘The stay of every distress with time is the delay in pound of every immediate distress which has no stay at all.’ The debtor or defendant, on giving a pledge or security to the plaintiff, received back the thing distrained, and retained it in his own possession during this period. Also if the defendant or debtor desired to test on any ground in a court of law the validity of the claim or the legality of the distress, he was allowed a certain time for this purpose, provided he gave security. The security was usually in the nature of a pledge, and might be any article of value which he could spare at the time without inconvenience, or it might be a member of his family. A person so given was treated as a hostage, not as a servant or slave. He was treated as his rank entitled him to be treated. If in the event he was forfeited, the plaintiff would acquire a vested interest in him to the extent of his claim, and might then take that much out of him by reducing him to slavery or in any other way he thought he could best effect his object. If the pledge offered was adequate as a security, the plaintiff was bound to accept it, whether it was likely to be useful to him or not; for the law did not contemplate his making a profit out of it. If then the defendant did not bring the disputed point to a trial within the time allowed, as he had undertaken to do, the pledge became forfeited in satisfaction of the original claim.
The peculiarity of ‘immediate distress’ was, that during the fixed period of the stay the thing distrained was not allowed to remain in the debtor’s possession, but in that of the creditor, or in a Forus or pound of the district. This immediate distress was made, or might be made, if the plaintiff belonged to a higher rank than the defendant, and in some other circumstances; and the distrainor might bring to his own pound goods to the value of his own honour-price.
In the case of ‘distress with time,’ if the debt was not paid at the end of the time, and in the case of ‘immediate distress,’ if the debt was not paid at once, the distrainor took away the things seized to his own residence or to pound according to circumstances, and served on the defendant a very explicit notice. ‘Three things are to be announced at the residence of the defendant—the debt for which it [the distress] was taken, the pound into which it was put, and the law agent in whose presence it was taken.’ In other words, the defendant was put in possession of every material fact, in order that if so disposed he might take the proper steps to secure his interests. Treating of a negligent owner who at such a time omitted to take any steps, the text says, ‘To be asleep avails no one;’ the commentary says, ‘Sloth takes away his welfare;’ and an old proverb says, ‘He is like a cow’s tail, always behind.’
The distress remained in pound a certain time fixed by law according to its nature; and if it consisted of cattle, as it usually did, the expenses of care and keep accrued against it and was payable out of it for this time; but if any profit or advantage was derived from the thing distrained, as the work of horses or oxen or the milk of cows, this was set off against the expenses. During the time in pound, which was called a dithim, the owner of the property seized might redeem it on paying the original debt, plus the net cost incurred up to the time of redemption. The plaintiff might, without risk, if he wished, allow three days of grace in addition to the legal dithim. At the end of the dithim, or days of grace if allowed, the property, if not redeemed, began to be forfeited to the plaintiff. It was not forfeited all at once even then, but progressively at the rate of three seds per day until the amount of the debt or fine or whatever the principal sum was, with costs, was realised. If the value of the thing distrained exactly equalled the liabilities, the plaintiff took all and the matter was at an end. If there was a surplus, it belonged to the original owner; if a deficit, a further distress might be made. The plaintiff would naturally be disposed to seize too much rather than too little; but the law discountenanced his harassing the defendant in this respect, and inflicted a heavy penalty on any one who distrained unjustly, illegally, or with needless oppression. A heavy penalty was also incurred by any one who distrained where no debt was due. These penalties were all fines, of course, and the amount was doubled when the offence was committed with guilty knowledge.
There were seven public pounds in the territory of every clan. Of these the one most frequented was that situated in the most secure place near the centre of the territory, because in it the things detained were safest from external thieves who could not be easily brought to book. The laws contain elaborate rules for the regulation of all classes of things in pound, for liability in connection with accidents occurring to cattle there, or having a disease going there, or taking a disease in pound, and countless other possibilities; and also special rules for every species of conduct that might be indulged in by either of the parties, and prescribing the proper course to pursue if the distress had been carried out in any essential not in accordance with the law. One specimen sentence from the text will sufficiently indicate the scrupulous care of the law. ‘Every necessity is blameless; every improvement is lawful; every inadvertency is venial; every wilful neglect is wrong.’
There were times at which debtors were entitled to certain exemptions from distress. On the death of the Ard-Ríg of Erinn, and in Christian times on the death of the successor of Saint Patrick, every debtor in Ireland who needed and claimed it was entitled to a year’s exemption. On the death of the king of a province there was exemption within that province for three months. On the death of a ríg-tuatha there was one month’s exemption within that tuath. But of course it did not follow that debtors always took advantage of these periods of exemption. They were meant only as temporary relief from hard pressure, given to persons who claimed it bonâ fide. Debtors applied to at a time of exemption, who accepted notice, allowed themselves to be fasted upon, or otherwise acknowledged or acquiesced in the process going against them, and who were able to pay, were not allowed at the last moment to avail of the privilege of exemption, for that would be unfair. Every person on whose death such a period of grace would occur had during life the power of giving protection against distress, and so temporarily suspending the law, for the same length of time.
As regards the nature of the things distrained, they were cattle for the most part, because they could be driven and had not to be carried; but cattle failing, any other farm produce was resorted to, or any kind of property whatever. There was an order, well and generally known, in which different kinds of cattle should be taken in distress. Young cattle that were not giving milk or otherwise essential for the comfort of the family were liable, so far as they existed, to be distrained before those that were specially useful. In villages where smiths, carpenters, shield-makers, and other mechanics lived, not by land, but by their trades, the materials upon which they worked or any other property found in their possession might be distrained, but not their tools or anything essential to the practice of their trades. If a debtor or offender fled, leaving no property behind him, the property of his fine might be seized as though it were his own for the amount of the debt or fine, and the members of the fine were left to settle with the delinquent. People of the Bothach and Sen-Cleithe classes having no property that could be seized might be taken themselves in distress, and were bound to pay the debt or fine by their labour. While doing this their position towards the plaintiff resembled that of the daer fuidhir towards the flaith. When for crime or anything else fuidhirs became a distrainor’s object, he did not in the first instance distrain them, because the flaith was responsible. The law did not forbid him to chastise them, even to death; but of course religious and moral considerations and public opinion restrained him; and on the whole it was the better and more usual course to fetter them, and so deprive the flaith of their services. The flaith might then either satisfy the demand of the distrainor and enjoy his fuidhirs, or surrender the fuidhirs to the distrainor in the manner of the noxal surrender at Rome. A fuidhir so surrendered had very likely to work harder for his new master than for his old; but probably he was better fed to enable him to do this. Though the rules relating to the distraint and surrender of human beings are numerous, and no doubt were sufficient in practice for those who applied them, they do not always convey the desired amount of information to us of a different age.
In general, no one could levy a distress but a person on whom a distress could be levied. He should have a lis and a macha (= a fold and a farmyard) in the territory. Hence none of the non-free classes could distrain, except possibly such few of them as had acquired wealth and advanced a good way up the social scale. A stranger: coming to levy a distress could not do so, under Urradhus Law, without bringing a native of the territory with him as surety, provided he could get one without fee. If he could get no native to become responsible for him without payment, and was unable or unwilling to pay, the law gave him other means of attaining his object, but not of so speedy a character. Those other means varied somewhat, the lodging of a substantial security being a common requirement. If a stranger failed to bring a surety in a case in which he was bound to bring one, or failed to lodge a security where he was allowed to do so, and attempted to distrain like a member of the clan, as by the cheap mode of fasting, not alone might he be evaded, but he was nonsuited and fined as an interloper. Under Cáin Law, however, a stranger could distrain directly without either a native surety or a security, provided he had a lis and a macha in his own native territory. And if in such a case in making his distress the stranger was evaded, the person evading him was fined; because the latter was in his own country where he had every facility for maintaining his rights, if he had rights. If instead of paying or giving a pledge, as the circumstances required, he attempted to baffle the stranger, the law stepped in for the protection of the stranger; and if in the result the stranger was able substantially to sustain his claim, it followed that the evasion of him was unjust and fraudulent, and it was punished as such. Some modern exponents of the Brehon Laws tell us that only flaith–fines or heads of families could be sureties. Now this is another mistaken view. Not only were all the seventeen men of the fine eligible to become sureties, but they were bound in certain cases to become sureties for one another, and were liable as sureties even in cases where they had not expressly undertaken the responsibility. They were competent also to become sureties for other members of their own clan, but in this respect the flaith–fine’s powers were more extensive than theirs; and he could become a surety for a person outside the clan, which they could not. Kings, chiefs, brehons, officers of court, and others filling public positions were ineligible as sureties. The non-free were, of course, wholly ineligible.
Such is a general outline of the law of distress. There were many rules regarding the legality of certain distresses, the effect of exemption in different cases, and other differences, and curious and elaborate provisions for the execution of distress in the case of almost every animal and thing then held as property; and further numerous differences arose from the numerous classes of suitors and defendants, and the modifications of honour-price and consequently of liability caused by the progress of either or both parties in the scale of status, the arrest of that progress, and a great many other causes. The fines, distresses, stays, and all the processes of action were specifically adjusted to all these variations. There is hardly a way in which a wrong could be inflicted in country life against which a special provision is not made, hardly a thing relating to property or its use or abuse for which a special rule is not given. These minute rules are far too numerous and intricate for discussion here. The same may be said of every branch of the Brehon Laws. Even so friendly a critic as Dr. Joyce has said it in his chapter on the subject, where he contrasts unfavourably the minute specialism of the Brehon Laws with the adoption of broad principles of general application. He does not tell us, however, in what ancient laws the material for this contrast can be found, in what ancient laws broad principles have been actually adopted. It is hard to find even in modern laws. He leaves his readers to infer that the characteristic he condemns is more observable in the Irish than in other ancient laws, and that the adoption of broad principles is easy and was easy to the brehons. Neither of these assumptions would as a general rule be correct. The tendency, however vain, to deal with particular cases, to relieve where the shoe pinches, is observable in all laws, past and present, even in countries having legislatures at hand to enact, amend, or abolish; and as regards the liberty a judge should take in interpreting law, most modern judges uniformly and consistently shrink from laying down broad principles or extending any rule beyond the requirements of the case before them. Dr. Joyce’s criticism, therefore, while applicable to the Brehon Laws, is also of far wider application than Dr. Joyce’s readers are led to suppose. It may be observed, too, that for us this proneness to deal with particular cases and minute circumstances is not wholly a defect, since to it we owe our knowledge of many facts revealing to us the habits of the people.