Criminal Law

Section I.
The Book of Aicill.

The Senchus Mór is the greatest work on Irish Law in general, civil and criminal. As it deals with the whole subject, the civil law occupies much more space than the criminal. Various branches of law are treated specially in separate treatises. The most important of these is the Book of Aicill. It is taken up mainly, but not exclusively, with what we now call criminal law, and may be regarded as the Irish criminal code; and it is this work that will mainly be referred to in explaining that code. It also contains some useful statements of law relating to partnership, borrowing and lending, and other transactions of civil life.

The whole of the Book of Aicill is composed of the opinions or placita of two eminent men, illustrious in law and in other respects: The first was King Cormac mac Airt, otherwise called Cormac ua Cuinn; the second was Cennfaeladh the Learned. Cormac was one of the most deservedly celebrated of the monarchs of ancient Erinn. He was Ard-Ríg from A.D. 227 until 266 (according to others from 218 until 260). He was, as his names signify, the son of Art and the grandson of Conn of the Hundred Battles, both monarchs of Erinn, and he was the father of Cairbré who may be said to have succeeded him, the very short reign of Eochaidh alone intervening. He was also the father of Grainne, celebrated in the Fenian poetry of Oisín and his contemporaries. In youth he was violent enough, perhaps unscrupulous in pursuit of power; but his subsequent life proved that his ambition rose from the solid basis of ability to rule men; and to this extent, as also by the use he made of power when acquired, he justified himself. He was a great reformer of the national institutions of his time, civil and military, including the Feis of Tara; and most of the traces of its former greatness now existing at Tara are attributed to his time. Consistently with his reforming spirit, he was a great patron of literature, art, and industry, the first of whose patronage we have undoubted evidence. He either wrote himself or procured the writing of several works on law, history, and other important subjects. Some of these works on subjects other than law were still extant so late as the seventeenth century, but appear to have been since destroyed or lost. Among the useful things for which the country was indebted to Cormac was the introduction of the water-mill. He had the first mill erected on a small stream on the slope of Tara. He was a man in many respects far in advance of his time. Though living long before Saint Patrick’s arrival, and king of a pagan nation, there is reason for thinking that he was a believer in Christianity before his death. He at all events ceased to believe in the pagan gods.

‘Crom Cruach and his sub-gods twelve,’
Said Cormac, ‘are but craven treene:
The axe that made them, haft and helve,
Had worthier of our worship been.

‘But He who made the tree to grow,
And hid in earth the iron stone,
And made the man with mind to know
The axe’s use, is God alone.

‘Spread not the beds of Brugh for me
When restless death-bed’s use is done,
But bury me at Rosnaree,
And face me to the rising sun.

‘For all the kings that lie in Brugh
Put trust in gods of wood and stone;
And ’twas at Ross that I first knew
One, Unseen, who is God alone.’

According to one Gaelic authority Cormac was the author of the text of the Book of Aicill throughout, and Cennfaeladh afterwards modified and commented on the whole of it, besides adding some of the case law which had grown up in the interval. And I am inclined to think that this view is correct. However, the introduction to the Book of Aicill gives a different account, and naturally it is that usually accepted. It begins thus:—‘The place of this book is Aicill, close to Tara, and its time is the time of Coirpri Lifechair (Carbre of the Liffey), the son of Cormac, and its author is Cormac, and the cause of its having been composed was the blinding of the eye of Cormac by Aengus Gabhuaidech.’ Owing to the loss of his eye, Cormac became incapable under the Irish law of retaining the sovereignty, ‘because it is a prohibited thing for one with a blemish to be king at Tara.’ The sovereignty was transferred to his son, after a temporary usurper had been got rid of, and Cormac retired to Aicill, now called Skreen, near Tara. It is stated that in difficult cases he was consulted by his son the young king. However this may be, a great deal of the Book of Aicill is written as if in answer to questions submitted, and the answer in each case begins with the words, ‘My son, that thou mayest know.’

It was on account of this injury to his eye that Cormac expelled the Deisi from the district in Meath still from them called Deece, and drove them to Munster where they settled and gave their name to a district there also.

Having told where, when, on what occasion, and by whom, the book was first written, the introduction proceeds:—‘These were the place and time of it as far as regards Cormac. But as regards Cennfaeladh, its place is Daire Lurain (now Derryloran, in Tyrone), and its time was the time of Domhnall, son of Aedh, son of Ainmiré; and its author was Cennfaeladh, son of Oilell, and the cause of its being composed was that part of his brain was taken out of his [Cennfaeladh’s] head after it had been split in the battle of Magh Rath.’ The Domhnall (Donal) in whose reign this occurred was monarch of Ireland and fought the battle of Magh Rath (now Anglicised Moira) in A.D. 634 (? 642) against Congal Claen, king of Uladh.

The foregoing statements are remarkably clear and explicit. They represent the Book of Aicill as the production of two authors, one writing in the third century, the other in the seventh. Notwithstanding this, Sir Henry Maine, the standard authority on ancient law, in his learned discoveries of ‘village communities’ where they never existed, represents Cennfaeladh as assisting Cormac! Worse still, I find an Irish author saying gravely that Cormac was just the man to appreciate Cennfaeladh’s services! Granted that Cormac was highly endowed, still the power of appreciating services rendered more than three hundred years after his own death can hardly be conceded even to Cormac mac Airt; and if he had such power, any express recognition of Cennfaeladh’s services would then have been rather premature.

We are told that Cennfaeladh (Kenfacla) was a soldier, not a lawyer. I would rather describe him as a soldier and a lawyer, and much besides. Having been wounded in the battle of Moira, the commentary goes on to say of him, ‘And Cennfaeladh was brought to the house of Bricin of Tuam Drecain (now Toomregan, in Cavan) at the meeting of the three streets, between the houses of three ollamhs. And there were three schools in the town, a school of literature, a school of law, and a school of poetry. And whatever he used to hear rehearsed in the three schools every day, he had by heart every night; and he put a fine thread of poetry about them, and wrote them on slates and tablets, and transcribed them into a paper book.’ This was the way in which Cennfaeladh spent his time while recovering from his severe wound; and there is a characteristic explanation given of his wonderful memory, namely, that the brain of forgetfulness had been taken out of his head by the sword by which he had been wounded. Throughout the Ancient Laws occasional touches of fancy like this are met with, thrown in apparently by way of ornament, and possibly as an assistance to young students in learning these laws. Saint Bricin kept a school at Tuam Drecain; and Cennfaeladh appears to have done part of his work there and part at Derryloran.

Commentaries written by lawyers of later times run through the Book of Aicill as through the Senchus Mór. According to these, the part of the Book of Aicill in which occur the introductory words, ‘My son, that thou mayest know,’ and the part called ‘the exemptions,’ are all the work of Cormac, and the remainder of the book is the work of Cennfaeladh. Cennfaeladh re-wrote the whole work, and in doing so he probably modernised it to some extent in effect and in form of expression, and harmonised it with the requirements of Christianity after the example of the Senchus Mór. One may say in our present language that Cennfaeladh brought out a new and revised edition of King Cormac’s work.

Section II.
The Law Therein Laid Down.

It is commonly said that no distinction existed in the Irish laws between civil and criminal liability. A distinction did exist, but it was not the same as that in English jurisprudence. The common punishment of all sorts of crimes and all sorts of civil wrongs was indeed a fine, varying in amount according to the nature of the act, to be levied on the property of the offender like a civil debt. All proceedings, whether for a crime, a tort, or a breach of contract, were identical in origin and prosecuted by the same persons and generally in the same manner. The State did not prosecute, but left individuals to prosecute in criminal as well as to sue in civil cases. The law did not set up crime as a species of liability distinct from civil wrong. Still there were important points in which criminal differed from civil liability. It differed first in the moral nature of the act by which it was incurred; and this was a legal difference so far as the law enforced it. There is here a confusing of law with morality, which some English legal authorities are at such pains to keep asunder or in antagonism. Theirs is trouble ill-bestowed, and vainly, because its object is unnatural. Until human nature itself is changed law and morality will, in spite of lawyers’ theories, be in fact and be generally considered closely related. And it can hardly be denied that wilful civil wrong is oftentimes the medium of base moral crime. Another difference, sometimes of importance, was, that, in civil cases the defendant frequently had the right of choosing the judge. This arose from any one of certain causes. For example, if the plaintiff distrained as the first step in an action, as he might do when his claim was for a liquidated amount, the defendant was driven to the necessity of either submitting to the distress or taking the case before a brehon. Criminal cases, the amount obtainable not being liquidated, had to be submitted to a brehon in the first instance, and hence the person against whom a crime had as a fact been committed chose the brehon. Then the subsequent effects upon status and legal competence were entirely different.

Persons against whom crimes had been committed, or if they had been killed their immediate relatives, were left to sue out redress, just as in civil cases, by summoning the offender to appear before a brehon, who heard the case and assessed, according to the principles of law and justice, the amount of fine that should be paid as compensation; and then, if the defendant did not pay immediately, by levying a distress on his goods. There were no prisons, except in communities to which small islands or other natural prisons belonged, and there were hardly any public servants who could correctly be called police or detectives. The people were their own police, and their activity in that character was spurred and sharpened by the knowledge that a sept had to pay for a secret crime committed in the part of the territory assigned to it, unless it were shown that the crime had been committed by an outsider. This liability of the sept continued so long as the criminal lived, whether his crime was one against person or against property. But on his death happening, whether as punishment for the crime or from natural causes, a difference arose. If the crime was purely personal, the liability of the sept was at an end, for ‘the crime dies with the criminal;’ but if it had caused damage or loss of property, the sept still remained liable for this net loss. Every clan and every clansman had a direct monetary interest in the suppression and prevention of crime. The higher motives by which Irishmen were undoubtedly actuated were, however, far more effectual. The whole public feeling of the community was entirely in support of the law—a signal proof of its suitability. Evasion of law and concealment of lawbreakers, which alien laws afterwards made so popular in Ireland, were then little known. Both in popular estimation and in fact the honour and the interests of all, of community and individual, were involved in the maintenance of the law. Law supported by public opinion, powerful because so inspired, powerful because unanimous, was difficult to evade or resist, though there were no men in livery to enforce it. It so strongly armed an injured person, and so utterly paralysed an offender, that an escape from justice was hardly possible. The only way in which it was possible was by running away, leaving all one’s property behind him, and sinking into slavery in a strange place; and this in effect was a severe punishment rather than an escape. So long as an offender had property, the motive for flight was not so strong as it is with a criminal of the present day; for the brehons do not appear to have taken on themselves to pronounce the death sentence at all, but only the amount of compensation. In some cases of a criminal caught in the act, the person against whom he was offending had a right to fetter him and detain him wherever he pleased until judgment was pronounced and satisfied.

If a criminal did abscond without paying the penalty of his crimes, any property he left behind him was applied to the payment of it pro tanto. If not fully satisfied, the liability for the remainder fell first upon the criminal’s immediate relatives who were entitled to inherit his property. If not satisfied by them, it extended throughout the fine and the sept even to the clan if necessary. The only way in which the immediate relatives, being able to pay, could escape liability was by giving up the offender to the injured family. The right to recover and the liability to pay were alike based on the rules of kinship explained in connection with the clan system.

The names of the fines are retained untranslated, for reasons already mentioned. They were eiric or eric, reparation; einachlan, honour-price (not strictly a fine); dire, fine; coirpdire, body-fine; smacht, usually a fine of five seds; and airer, a fine amounting to one-seventh of the honour-price. Eric is defined as the fine for separating body from soul, that is for killing, whether murder or manslaughter. But of course the amount of it was not the same in these cases; for one of the most important distinctions made by the law in crimes was the presence or absence of intention. A man who happened by pure accident to kill another who was about his lawful business did not go wholly unpunished, as such a one does here at the present time. Having destroyed human life and inflicted an irreparable injury on a family, he had to pay eric to the family of the deceased, and so alleviate suffering by sharing it. But one who committed wilful murder with malice aforethought had to pay at least a double fine. As an English lawyer would express it, the eric for murder was double that for manslaughter. So the translators tell us, and they are supported by the commentary which says, ‘The double of honour-price is due to each and every person for the crime of secret murder.’ Still it is conceivable that the word diabalta might be as correctly translated twofold; for there were really two fines imposed, in some cases three, and they were not always equal in amount as the word double implies, since they started from different bases and the amount of each was affected by a different status and a somewhat different combination of circumstances. I find it laid down in one place that there were three fines imposed on a murderer, (1) his own honour-price; (2) seven cumhals for the homicide itself; (3) twice seven cumhals if malice was proved. I do not know of what rank this is said; but the actual amounts were affected by the different ranks, as well as by the facts and peculiar circumstances of each particular case, and each of the parts of the fine was in every case the subject of a separate and independent calculation.

Some loosely written passages in the commentaries have been interpreted, I think incorrectly, as meaning that the amount of fine which a murderer had to pay in order to avoid the liability of being put to death was his own honour-price. This would mean that the eric of the slain would always be equal to the honour-price of the murderer; a thing which, so far from being the rule, could hardly ever occur in practice. It could occur only when the slayer and his victim belonged to precisely the same rank and there were no circumstances to either extenuate or aggravate the guilt. As these essential conditions could scarcely ever be satisfied, the amount of simple eric could scarcely ever tally with the murderer’s honour-price. But still less could the double and triple eric mentioned so tally. Eric and honour-price were, both in theory and in fact, wholly different things. Eric was strictly a fine regarded from the point of view of the party who had to pay it; but its amount was determined not by his status but by that of the victim. Honour-price was the assessed value of status; and, as applied to fines, the status in this case might be that of the criminal.

The eric (= reparation) was given, as its name imports, to the relatives of the person slain, in the proportion in which they were entitled to inherit his property, that being also in accordance with the degree of relationship, and usually with the degree in which those persons were really sufferers. In the Middle Ages all the parts of the fine were called comprehensively eric, and were so distributed. While Ireland had a monarch of her own he was entitled to one-third of the honour-price of every murderer in Ireland. If he was a ‘king with opposition,’ that is one whose title was disputed, he was entitled to only half this amount.

The same law that arranged the different ranks of society, and fixed their respective rights, privileges, and liabilities, affixed also to each rank, from king to plebeian, a measure of value called honour-price. By crime, and by breach of contract, this honour-price was forfeited, wholly or partially according to the magnitude of the wrong, to the person injured, with or without fines of other denomination according to circumstances. By the taking of human life in any way, and by a few other capital crimes, the whole of the honour-price was forfeited, and if not paid and accepted in satisfaction the injured person or family had a right to put the criminal to death. Even should the criminal be allowed to live, if no satisfaction was rendered his tribal status was completely gone. In the case of certain peculiarly vile crimes, which need not be further specified here, the criminal was expelled from the clan and from the territory, even though the fine had been recovered. A habitual criminal might also be expelled, and by expelling him, and lodging a security against his future misdeeds, his relatives could free themselves from responsibility. A person so expelled became an outlaw, with no status or right whatever, no legal capacity, and no protection from the law, and any one who gave him food or shelter became liable for his crimes. There was little danger of any one succouring him, for in general public feeling was as much against him as the law, and he was forced to go into a strange place, where he could only sink into the lowest rank of fuidhirs. If he still haunted the territory of the clan, and continued his crimes there, he was proclaimed in the public assembly of the clan. After this any one might kill him as a wild beast or a mad dog. Crimes less than capital, as lying, perjury, fraud, and in the case of a judge a false judgment, if committed three times deprived the offender of half his honour-price, if committed any more deprived him of the whole of it. Accomplices in crime, and those who aided and abetted crime, were dealt with almost as severely as the actual criminal. In no case was the fine imposed on a criminal the full measure of the punishment. Besides the general odium, there resulted a loss of status with its legal consequences of disqualification for holding public office, for suing, for being a witness, a surety, a juror, and incapacity to inherit land. How long this condition lasted is not stated; but it was not permanent.

The amount of a fine, under whatever name it came, was not determined by abstract principles of general application, but in each case by the facts proper to that case. The maintenance of the law and of private rights were indeed principles affecting the ultimate decision; but the chief factors in determining the amount of penalty for any given crime were, (1) the damage done; (2) the status of the injured person; (3) the status of the criminal; (4) the accompanying circumstances. The result was that like punishments did not always follow like crimes. The rules of law on the subject were necessarily very numerous and complicated, owing to the great number of classes into which society was divided and the consequent variations in status and honour-price; and although when the facts were clearly ascertained the proper amount of a fine may be said to have been a matter of calculation, yet it was a calculation which required considerable technical skill, as did also the ascertainment of the facts. A fine for a breach of contract was generally more simple, as it would depend largely on the terms of the contract broken.

In adjusting punishment to rank, account was taken also of professional character. The clergy, for instance, were far more severely punished than the laity—a fact showing, if it were necessary, that Saint Patrick did not abuse his influence when the laws were being drawn up. When a lay criminal had paid the eric or other fine imposed upon him, he rested under a stigma and loss of status for some time; but after this probationary period he recovered his honour-price. A convicted clergyman could never recover his honour-price, could never regain his former status; and from the state of his surroundings he was scarcely free to do anything else but retire from the world and do penance.

Rank did not always affect the amount of fine in the same way. A man of high rank was always fined more than a man of low rank in a like case. An offence against property committed upon a poor clansman who could ill afford it, was punished more severely than a similar offence upon a wealthy person. An assault or other personal outrage upon a person of rank was more severely punished than a similar offence upon an ordinary person.

Fines, like other payments, were all paid in kind. When the offence was one against property, and the fine was small, it was usually arra, that is generic, a quantity of property of the same kind as that stolen or damaged. For damage done to bees, for example, the fine would be so many kishes (hives). In the case of property not so conveniently divided as bees, the quantities were usually measured in seds or in screpalls. A screpall was 1/24th of the value of a cow. A large fine was anarra, not generic, not consisting of the same substances as those stolen or injured. It was usually adjudged to be paid in three different substances, as one-third in horned cattle, one-third in horses, one-third in silver. If in corn it would be one-third in wheat, one-third in oats, and one-third in barley. In fixing the kinds the brehon should have regard to the actual nature of the defendant’s property. A judgment obtained by a plaintiff for the payment to him of a fine in a particular kind of property which the defendant did not possess was called a ‘blind nut,’ because it was ineffectual; and if it had been obtained unfairly or for any sinister purpose it debarred the plaintiff from seeking a different judgment. When the liability was of a civil nature, but arose in the absence of any express agreement between the parties, the judgment was a general one, and the defendant was allowed to pay the fine in whatever material he could most conveniently spare. The plaintiff had to be satisfied, because the law considered that if he had desired to secure for himself on a foreseen event a fine of a particular description, he ought to have made a bargain to that effect.

For an offence committed against himself, as distinguished from one against his property, the plaintiff obtained a general judgment which he was entitled to realise out of any property belonging to the defendant that he pleased. If the defendant preferred to pay in any particular kind, he should offer it promptly. The judgments ran—so many screpalls for a white wound, so many for a red wound, so many for a lump blow, so many for a wound which left a mark on the face, so many for one which left no mark. These amounts, however, were only fixed by the law for the brehon’s guidance, and subject to increase or diminution by him according as negligence on the one side, contributary negligence on the other, provocation, self-defence, accident, or any other modifying element appeared in the case. Subject to such modifications, minute regulations are laid down for a vast number of conditions, occupations, and circumstances, and the various offences connected with them. Of crimes directly against the person, the more serious have been noticed in connection with eric and honour-price. All fines were what we should consider heavy, fines for crimes against the person especially so. A fine of two cows was very heavy for a lump blow, that is, a blow which raised a lump but did not draw blood. And the same was the fine inflicted for shaving a man against his will. I think it meant shaving his head. This was an ignominious form of punishment in England under Alfred, and it may have been so in Ireland as well, and therefore if done without authority of law it would be particularly outrageous. It must also have been peculiarly aggravating among a people like the Irish who took pride in their long hair. They knew how to punish it at all events. But it must be remembered that the amount of a fine was affected by the status of the criminal as well as by that of the person he had outraged, and the heavy fines stated in the text applied only to aires or persons of full status who, as such, were wealthy. It is also fair to point out that the punishments of ancient laws were generally severe, some of them much more so than those of the Irish laws. Take a specimen from the dooms of Alfred, the model English king:—‘He who curseth his father or mother, let him perish by death.’

If one wounded a man who was the sole support of a family, he was fined for the actual injury, he had to pay for the medical and surgical attendance, and he had to pay a substitute to carry on the injured person’s business. Fines are laid down for injury resulting in the loss of limbs, eyes, and all members; and the amount was affected by, among other things, the use the person was accustomed to make of the limb before its injury. One who knocked the nail off the finger of a harper was fined more than if he had inflicted a similar injury upon any other person. Another element sometimes presenting itself in calculating the amount of fine to be paid for a crime was, that the accused might have been provoked by some antecedent crime of the accuser. If this was shown, and the previous offence was one of which the law took cognizance, the judge was allowed to apply the principle of setoff, as were the judges of England according to the Laws of Henry the First.

Fines are carefully laid down for cattle-stealing, the laceration or injury of living cattle by dogs or otherwise, and trespass upon land. This latter was divided into man-trespass and beast-trespass. The forms of man-trespass most frequently dealt with were felling trees on another person’s land and taking them away, and cutting turf, rushes, &c, on another person’s land. The form of beast-trespass most severely dealt with was that of pigs, because they not alone eat and trample upon a crop but root it out of the earth. For the trespass of a large pig in a growing crop the fine was a sack of corn. For the trespass of a middle-sized pig, half a sack. For the trespass of a sucking-pig, two máms, a mám being all the corn it is possible to raise between the two hands. Other matters of frequent occurrence in the laws are the bites and other forms of damage done by dogs; meddling with another person’s bees; bees stinging strangers and blinding or killing them; bees stinging the various kinds of cattle and driving them furious; dangers connected with the felling of timber, the building of houses, the works of smiths, weavers, threshers, millers, kiln owners, &c. If an idler coming uninvited about such works was accidentally struck, he should put up with his injury. A person on lawful business so struck should be fully compensated; unless he had been warned, either expressly or by the noise of the work, and had disregarded the warning. Rules are also laid down for cases of fellow-workmen hurting one another. There are rules regarding the management of horses at a fair, and liability arising from damage done by them; also regarding damage done by vicious horses. Many rules relate to ferries, there having been more water in the country formerly than now, and fewer bridges. There are rules regarding the mistakes and malpractices of doctors. It appears that, unless under special agreement, a doctor could recover his fee only on the patient getting well. In a dangerous case in which an operation, as the amputation of a limb, became necessary, a doctor should take an indemnity against liability for the fatal termination of his operation. If he was not a duly qualified doctor he should give notice of that fact to the patient and his family. If one suffered, from crime or accident, an injury at first apparently slight, and got judgment for a small amount, and afterwards, without fault of the doctor, the injury ‘came against’ the patient seriously, or became fatal, the person to blame was liable to a second trial, but in this regard would be had to the amount recovered under the previous judgment. In short, here as elsewhere, the brehons endeavour to deal with all cases and all varieties of circumstances. They lay down special rules for every relation of life known in their time and every detail of social and domestic economy, and some rules relating to conditions so obsolete that their nature can now only be conjectured.

Section III.
Capital Punishment.

The fact that the Irish took compensation for murder instead of putting the murderer to death, has been stupidly laid hold of by some English authors and journalists as a national reproach, which, with characteristic courtesy, instead of overlooking as a thing of the dead past, they delight to utilise. It would be foreign to my present undertaking to discuss the abstract question, whether it is better on the one hand when one man has been killed to kill another and make no reparation to the sufferers by the first death, or on the other hand, to make reparation out of the murderer’s property and spare his life. The latter course is prima facie the more humane, and either side of the question is quite arguable. It is with the superior critics I am for the moment concerned. Those gentlemen with their readiness to criticise must be assumed to know, and with that delicacy of conscience by which they profess to be moved might be expected to state, that the law of making reparation for murder, be it good or bad, so far from being peculiarly Irish, was formerly almost universal. It was practised by, amongst others, their own ancestors—that is, if it be possible to determine who were the ancestors of a hybrid people. It was practised by the ancient Greeks, and in later times by the Lombards, Gauls, Franks, Swedes, Danes, Germans, and Saxons, the only difference being that while the laws of those nations imposed fixed and rigid fines for the murder of specified persons, the Irish laws always allowed fines to be reduced or increased by mitigating or aggravating circumstances. The Anglo-Saxons called the price or value set upon a man his wergild, the same as the German wehrgeld, the amount of which depended mainly upon rank and the amount of property possessed, and the nature of which does not seem to have at all differed from the Irish honour-price. The wergild is met with all through the old English laws. But one had better be specific. It is met with in the laws of Ine, of Alfred, of Edward the Elder, of Æthelstan, and of Edmund, who appears to have encroached upon it. He did not extinguish it, however, for it appears in the laws of Ethelred, of Cnut, of Edward the Confessor, and of William the Conqueror; in the latter case the mode of its distribution being laid down, the largest portion being given to the widow of the man slain, and the remainder divided among his nearest surviving relatives. In the code or compilation called the Laws of Henry the First, the wergild appears as a clearly recognised part of the existing law, and the amount of it is specified for parricide and all the graver crimes committed by or against the various classes from king to peasant; and the only variation of the fixed amounts that appears to have been allowed was, that they might be increased if the crimes had been committed on holy days, as Sunday, Ascension Day, Lady Day, All Saints’ Day, &c.

These are historical facts recorded on authority which Englishmen would be the last in the world to question. Any one may read them, and it is an Englishman’s duty to know and remember them when he feels tempted to make himself ridiculous by thanking God that he is not like the rest of men, and assuming sanctimonious airs, to which nobody but himself thinks he is entitled. It may be said that they are very ancient facts. So are the Brehon Laws. It was possible to compound a felony in England until the power to do so was abolished in 1819 by the now meaningless looking statute, 59 George the Third, chapter 46. That is not very ancient. Until 7 and 8 George the Fourth, chapter 28, was passed, a man who fled from trial, forfeited all his goods and chattels, even though as the result of the trial he was acquitted. That is not very ancient. Until 54 George the Third, chapter 146, the dead bodies of victims of the law were not sacred. Of course it will be argued, and with truth, that many things are possible under the law long after they have ceased to be practised; and, you know, every conceivable excuse must be urged when the English character is assailed. Excuses exist only for English consumption. It never at any time was possible to say of the courts of the brehons as Hallam says of the courts of the Tudors, that they were ‘little better than caverns of murderers.’ And if we turn to what was actually practised in England in times still more modern, what do we find? We find that a prisoner was not allowed before his trial to know anything of the case against him, was not even told the name of his accuser, was given no reasonable opportunity for preparing his defence, while the State paid for preparing the case against him; and if found guilty—as well he might be in such circumstances, though innocent—the sentence might be death, or breaking of limbs, or stretching on the wheel, or cutting out of his tongue, or gouging out of his eyes, or clipping of his ears, or a combination of several of these. I should be sorry to suggest that there is a decent Englishman living to-day who would not shudder and blush at the long catalogue of unfortunate human beings who, under every one of the four Georges, were after every assizes put to death or subjected to the other grim barbarities mentioned, in many cases for offences for which a flogging or a month’s imprisonment is now deemed sufficient punishment. Those punishments were so many fragments of the savage law of vengeance, carried out, not by the sufferer or his friends, nor in their interest, but by the State, and as likely as not carried out on the wrong persons. They are recalled in no spirit of antipathy to the Saxon, for though a Gael of the purest blood I entertain none; nor are they recalled to make him ashamed of his ancestors, for we all have enough to do to keep our own lives pure; but they are recalled as common knowledge which it is his special duty to possess, and the possession of which should moderate his conceit to becoming limits, since it shows that, after all, he is not so much superior to the rest of men, and that in this very matter in which he presumes so much, we have at least as good ground for pride. No doubt it is very good of him to desire that his ancestors should be spoken of only with charity. We quite agree—because they need it. For ours all we desire is justice. His reproach amounts in substance to this, that our ancestors were more humane than his, and have not so much innocent blood on their heads. But for his modesty no doubt he would add, in further proof of our national depravity, that our ancestors never had any witches to burn, and never made the schoolmaster, as such, a criminal. It would be to his advantage to remember, what he cannot prevent the world at large from knowing, that his present perfection in this particular, as in many others of which he boasts, has not been evolved from his own inner essence, but is due to external influences acting on him, sometimes acting very much against his will. There is ample space in this world even for Saxon mediocrity in borrowed Norman plumes; but it must not disregard the fitness of things and presume to lecture where it can more profitably learn.

Still, having resented cant, one is free to say that possibly the principle of reparation would have given place to the death penalty as in England, or (more likely) would have been made an accompaniment of the death penalty as in France, had Ireland been ruled as those countries were by a competent central government. For centuries its nominal government was incompetent and external.

At a very early period in Ireland, as elsewhere, the acceptance of eric may have been optional. The family whose member had been murdered might not seek eric, or might reject it if offered, and proceed to revenge. Also, if a murderer unable to pay eric was surrendered by his relatives to the family of his victim, the latter might kill him if they pleased if nobody intervened to save his life by paying the eric. I believe the Brehon Laws do not expressly forbid persons suffering actual personal outrage to chastise a criminal caught redhanded; and there is even a passage translated in these words: ‘A person who came to inflict a wound on the body may be safely killed when unknown and without a name, and when there was no power to arrest him at the time of committing the trespass.’ The English law in force this day contains a precisely similar tacit allowance, even to the extent of taking life. Then it must be remembered that we possess not the whole Brehon Laws as the people understood them, but only the parts written for the guidances of judges and lawyers in the trial and treatment of offences brought before them, that much of human life never came before them, and that some abstract considerations which occur to us many centuries after date either did not occur to them at all or did not clamour for settlement.

It is quite possible for the law of reparation and lex talionis, or law of personal vengeance, to exist side by side in the same country as alternative modes of redress. Indeed, they appear to have so existed in many countries. Eric itself may be regarded as a species of retaliation as we use that word; but it was a distinct improvement on the strict talio of the Roman Law—Si quis membrum fregit, ni cum eo placit, talio esto. In pagan Ireland, as far as I have been able to gather, a wilful murderer was regarded as lost soul and body, and possibly even though eric had been obtained his life might or might not be taken at the will of the prosecutor. It is pointed out with special care in the commentaries of the Senchus Mór that the change effected by Saint Patrick was, to let the murderer be put to death as before if no eric could be obtained, but to send his soul to heaven; and it adds, ‘for retaliation prevailed in Ireland before Patrick, and Patrick brought forgiveness with him.’ ‘At this day we keep between forgiveness and retaliation, for as at present no one has the power of obtaining heaven, as Patrick had at that day, so no one is put to death for his intentional crimes as long as eric-fine is obtained; and wherever eric-fine is not obtained he is put to death for his intentional crimes, and placed on the sea for his ignorant crimes and unlawful obstructions.’ It might be inferred from some strong expressions in Dubhthach’s poems that eric had been abolished and the death penalty substituted, as where he says, ‘Let every one die who kills a human being;’ and again, ‘Every living person who inflicts death shall suffer death.’ Since, however, the immediately succeeding generations of lawyers did not at all understand that eric had been abolished, it in fact was not abolished, and it would be idle for us to understand its abolition.

There is great diversity of opinion among modern writers who have noticed the Brehon Laws as to the frequency or infrequency of capital punishment in ancient Ireland. One says the death penalty was the standing rule, and the payment of eric the exception; while another says that eric was nearly always paid in order to spare human life, and that therefore the death penalty was rarely inflicted, except for high crimes against the king or the state institutions, or the disturbance of a public assembly. I rather incline to agree with the latter view; first, because of several passages in the law to the effect that no one is to be put to death as long as eric is obtained, that an assailant is not to be killed if he is known or can be arrested, and so on; and secondly, because I have not found in the law any rules subject to which the death penalty should be carried out. Hanging is mentioned as having been carried out in political but not in private cases. If capital punishment was at all frequent, those laws, with their proneness to detail, would certainly contain some such rules. One of the punishments mentioned incidentally was that of placing a man on the open sea, on some small punt or wicker basket presumably. This was rather exposing a man to death than putting him to death. I cannot but think that some of the kindly Gael would be on the look-out for an unfortunate man so exposed, and, deeming his punishment sufficient, as soon as the coast was clear would come to his relief. There is ample evidence of various kinds that the whole public feeling of Ireland was opposed to capital punishment; and still more was it opposed to the taking the law into one’s own hands without the decision of a court. Such a popular sentiment was not law, of course, and never found a place in the law; but during and to the extent of its prevalence it was as good as law for all who obeyed it; and, whatever their motive, in a country where the execution of the law rested with the people themselves, if they did not execute it the law was so far superseded. There was no public executioner; and among a people who so respected the judgment of a brehon the want of a direct death sentence must have enfeebled the ordinary man going to imbrue his hands in his neighbour’s blood, even though that neighbour was a murderer. For these reasons I conclude that, except for treason to the king and the state institutions, our forefathers rarely put criminals to death.

Section IV.
The Maighin Digona.

Maighin digona was the name of a precinct of sanctuary secured by the law 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 cnairsech. This is differently described as a spear and as a sledge-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 bocín (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 determined the extent of the bo-aires 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 Ríg-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 ríg-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 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 protection by continuing the pursuit and abusing the fugitive, 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.