Читать книгу The Glories of Ireland - Various - Страница 68

A DISTINCTION. Ireland having been a self-ruled country for a stretch of some two thousand years, then violently brought under subjection to foreign rule, regaining legislative independence for a brief period toward the close of the eighteenth century, then by violence and corruption deprived of that independence and again brought under the same foreign rule, to which it is still subject, the expression "Law in Ireland" comprises the native and the foreign, the laws devised by the Irish Nation for its own governance and the laws imposed upon it from without: two sets, codes, or systems proper to two entirely distinct social structures having no relation and but little resemblance to each other. Whatever may be thought of either as law, the former is Irish in every sense, and vastly the more interesting historically, archaeologically, philologically, and in many other ways; the latter being English law in Ireland, and not truly Irish in any sense.

ORIGIN AND CHARACTER OF IRISH LAW. Seanchus agus Féineachus na hEireann == Hiberniae Antiquitates et Sanctiones Legales—The Ancient Laws and Decisions of the Féini, of Ireland. Sen or sean (pronounced shan) == "old," differs from most Gaelic adjectives in preceding the noun it qualifies. It also tends to coalesce and become a prefix. Seanchus (shanech-us) == "ancient law." Féineachus (fainech-us) == the law of the Féini, who were the Milesian farmers, free members of the clans, the most important class in the ancient Irish community. Their laws were composed in their contemporary language, the Bearla Féini, a distinct form of Gaelic. Several nations of the Aryan race are known to have cast into metre or rhythmical prose their laws and such other knowledge as they desired to communicate, preserve, and transmit, before writing came into use. The Irish went further and, for greater facility in committing to memory and retaining there, put their laws into a kind of rhymed verse, of which they may have been the inventors. By this device, aided by the isolated geographical position of Ireland, the sanctity of age, and the apprehension that any change of word or phrase might change the law itself, these archaic laws, when subsequently committed to writing, were largely preserved from the progressive changes to which all spoken languages are subject, with the result that we have today, embedded in the Gaelic text and commentaries of the Senchus Mór, the Book of Aicill, and other law works, available in English translations made under a Royal Commission appointed by Government in 1852, and published, at intervals extending over forty years, in six volumes of "Ancient Laws and Institutions of Ireland," a mass of archaic words, phrases, law, literature, and information on the habits and manners of the people, not equalled in antiquity, quantity, or authenticity in any other Celtic source. In English they are commonly called Brehon Laws, from the genitive case singular of Brethem = "judge", genitive Brethemain (pronounced brehun), as Erin is an oblique case of Eire, and as Latin words are sometimes adopted in the genitive in modern languages which themselves have no case distinctions. It is not to be inferred from this name that the laws are judge-made. They are rather case law, in parts possibly enacted by some of the various assemblies at which the laws were promulgated or rehearsed, but for the most part simple declarations of law originating in custom and moral justice, and records of judgments based upon "the precedents and commentaries", in the sort of cases common to agricultural communities of the time, many of the provisions being as inapplicable to modern life as modern laws would be to ancient life. A reader is impressed by the extraordinary number and variety of cases with their still more numerous details and circumstances accumulated in the course of long ages, the manner in which the laws are inextricably interwoven with the interlocking clan system, and the absence of scientific arrangement or guiding principle except those of moral justice, clemency, and the good of the community. This defect in arrangement is natural in writings intended, as these were, for the use of judges and professors, experts in the subjects with which they deal, but makes the task of presenting a concise statement of them difficult and uncertain.

SOCIETY LAW. The law and the social system were inseparable parts of a complicated whole, mutually cause and consequence of each other. Tuath, clann, cinel, cine, and fine (pronounced thooah, clong, kinnel, kineh, and fin-yeh) were terms used to denote a tribe or set of relatives, in reality or by adoption, claiming descent from a common ancestor, forming a community occupying and owning a given territory. Tuath in course of time came to be applied indifferently to the people and to their territory. Fine, sometimes designating a whole tribe, more frequently meant a part of it, occupying a distinct portion of the territory, a potential microcosm or nucleus of a clan, having limited autonomy in the conduct of its own immediate affairs. The constitution of this organism, whether as contemplated by the law or in the less perfect actual practice, is alike elusive, and underwent changes. For the purpose of illustration, the fine may be said to consist, theoretically, of the "seventeen men" frequently mentioned throughout the laws, namely, the flaithfine = chief of the fine; the geilfine = his four fullgrown sons or other nearest male relatives; the deirbhfine, tarfine, and innfine, each consisting of four heads of families in wider concentric circles of kinship, say first, second, and third cousins of the flaithfine. The fine was liable, in measure determined by those circles, for contracts, fines, and damages incurred by any of its members so far as his own property was insufficient, and was in the same degree entitled to share advantages of a like kind accruing. Intermarriage within this fine was prohibited. The modern term "sept" is applied sometimes to this group and sometimes to a wider group united under a flaith (flah) = "chief", elected by the flaithfines and provided, for his public services, with free land proportionate to the area of the district and the number of clansmen in it. Clann might mean the whole Irish nation, or an intermediate homogeneous group of fines having for wider purposes a flaith or ri-tuatha = king of one tuath, elected by the flaiths and flaithfines, subject to elaborate qualifications as to person, character, and training, which limited their choice, and provided with a larger portion of free land. This was the lowest chief to whom the title ri, righ (both pr. ree) = rex, or "king", was applied. A group of these kinglets connected by blood or territory or policy, and their flaiths, elected, from a still narrower circle of specially trained men within their own rank, the ri-mor-tuatha—king of the territory so composed, to whose office a still larger area of free land was attached. In turn, kings of this class, with their respective sub-kings and flaiths, elected from among the riogh-dhamhna (ree-uch-dhowna) = materia principum or "king-timber", a royal fine specially educated and trained, a rì-cuighidh (ree coo-ee-hee) supreme over five ri-mor-tuathas—roughly, a fourth of Ireland. These, with their respective principal supporters, elected the ard-ri—"supreme king", of Ireland, who for ages held his court and national assemblies at Tara and enjoyed the kingdom of Meath for his mensal land. Usually the election was not direct to the kingship, but to the position of tanaiste—"second" (in authority), heir-apparent to the kingship. This was also the rule in the learned professions and "noble" arts, which were similarly endowed with free land. The most competent among those specially trained, whether son or outsider, should succeed to the position and land. All such land was legally indivisible and inalienable and descended in its entirety to the successor, who might, or might not, be a relative of the occupant. The beneficiaries were, however, free to retain any land that belonged to them as private individuals.

Membership of the clan was an essential qualification for every position; but occasionally two clans amalgamated, or a small fine, or desirable individual, was co-opted into the clan—in other words, naturalized. The rules of kinship determined eineachlann (ain-yach-long)—"honor value", the assessed value of status, with its correlative rights, obligations, and liabilities in connection with all matters civil and criminal; largely supplied the place of contract; endowed members of the clan with birthrights; and bound them into a compact social, political, and mutual insurance copartnership, self-controlled and self-reliant. Eineachlann rested on the two-fold basis of kinship and property, expanding as a clansman by acquisition of property and effluxion of time progressed upward from one grade to another; diminishing if he sank; vanishing if for crime he was expelled from the clan.

FOSTERAGE. To our minds, one of the most curious customs prevalent among the ancient Irish was that of iarrad, called also altar = "fosterage"—curious in itself and in the fact that in all the abundance of law and literature relating to it no logically valid reason is given why wealthy parents normally put out their children, from one year old to fifteen in the case of a daughter and to seventeen in the case of a son, to be reared in another family, while perhaps receiving and rearing children of other parents sent to them. As modern life does not comprise either the custom or a reason for it, we may assume that fosterage was a consequence of the clan system, and that its practice strengthened the ties of kinship and sympathy. This conjecture is corroborated by the numerous instances in history and in story of fosterage affection proving, when tested, stronger than the natural affection of relatives by birth. What is more, long after the dissolution of the clans, fosterage has continued stealthily in certain districts in which the old race of chiefs and clansmen contrived to cling together to the old sod; and the affection generated by it has been demonstrated, down to the middle of the nineteenth century. The present writer has heard it spoken of lovingly, in half-Irish, by simple old people, whom to question would be cruel and irreverent.

LAND LAW. The entire territory was originally, and always continued to be, the absolute property of the entire clan. Not even the private residence of a clansman, with its maighin digona = little lawn or precinct of sanctuary, within which himself and his family and property were inviolable, could be sold to an outsider. Private ownership, though rather favored in the administration of the law, was prevented from becoming general by the fundamental ownership of the clan and the birthright of every free-born clansman to a sufficiency of the land of his native territory for his subsistence. The land officially held as described was not, until the population became numerous, a serious encroachment upon this right. What remained outside this and the residential patches of private land was classified as cultivable and uncultivable. The former was the common property of the clansmen, but was held and used in severalty for the time being, subject to gabhail-cine (gowal-kinneh)—clan-resumption and redistribution by authority of an assembly of the clan or fine at intervals of from one to three years, according to local customs and circumstances, for the purpose of satisfying the rights of young clansmen and dealing with any land left derelict by death or forfeiture, compensation being paid for any unexhausted improvements. The clansmen, being owners in this limited sense, and the only owners, had no rent to pay. They paid tribute for public purposes, such as the making of roads, to the flaith as a public officer, as they were bound to render, or had the privilege of rendering—according to how they regarded it—military service when required, not to the flaith as a feudal lord, which he was not, but to the clan, of which the flaith was head and representative.

The uncultivable, unreclaimed forest, mountain, and bog-land was common property in the wider sense that there was no several appropriation of it even temporarily by individuals. It was used promiscuously by the clansmen for grazing stock, procuring fuel, pursuing game, or any other advantage yielded by it in its natural state.

Kings and flaiths were great stock-owners, and were allowed to let for short terms portions of their official lands. What they more usually let to clansmen was cattle to graze either on private land or on a specified part of the official land, not measured, but calculated according to the number of beasts it was able to support. A flaith whose stock for letting ran short hired some from a king and sublet them to his own people. A féine, aithech, or ceile (kailyeh), as a farmer was generally called, might hire stock in one of two distinct ways: saer—"free", which was regulated by the law, left his status unimpaired, could not be terminated arbitrarily or unjustly, under which he paid one-third of the value of the stock yearly for seven years, at the end of which time what remained of the stock became his property, and in any dispute relating to which he was competent to sue or defend even though the flaith gave evidence; or daer—"bond", which was matter of bargain and not of law, was subject to onerous conditions and contingencies, including maintenance of kings, flaiths, or brehons, with their retinues, on visitations, of disbanded soldiers, etc., under which the stock always remained the property of the flaith, regarding which the ceile could not give evidence against that of the flaith, which degraded the ceile and his fine and impaired their status; a bargain therefore which could not be entered into without the sanction of the fine. This prohibition was rendered operative by the legal provision that in case of default the flaith could not recover from the fine unless their consent had been obtained. The letting of stock, especially of daer-stock, increased the flaith's power as a lender over borrowers, subject, however, to the check that his rank and eineachlann depended on the number of independent clansmen in his district.

Though workers in precious metals, as their ornaments show, the ancient Irish did not coin or use money. Sales were by barter. All payments, tribute, rent, fulfilment of contract, fine, damages, wages, or however else arising, were made in kind—horses, cows, store cattle, sheep, pigs, corn, meal, malt, bacon, salt beef, geese, butter, honey, wool, flax, yarn, cloth, dye-plants, leather, manufactured articles of use or ornament, gold, and silver—whatever one party could spare and the other find a use for.

Tributes and rent, being alike paid in kind and to the same person, were easily confused. This tempted the flaith, as the system relaxed, to extend his official power in the direction of ownership; but never to the extent of enabling him to evict a clansman. For a crime a clansman might be expelled from clan and territory; but, apart from crime, the idea of eviction from one's homestead was inconceivable. Not even when a daer-ceile, or "unfree peasant", failed to make the stipulated payments could the flaith do more than sue as for any other debt; and, if successful, he was bound, in seizing, to leave the family food-material and implements necessary for living and recovering.

LAW OF DISTRAINING. Athgabail (ăh-gowil) = "distress", was the universal legal mode of obtaining anything due, or justice or redress in any matter, whether civil or criminal, contract or tort. Every command or prohibition of the law, if not obeyed, was enforced by athgabail. The brehons reduced all liabilities of whatsoever origin to material value to be recovered by this means. Hence its great importance, the vast amount of space devoted to it in the laws, and the fact that the law of distress deals incidentally with every other branch of law and reveals best the customs, habits, and character of the people. A claimant in a civil case might either summon his debtor before a brehon, get a judgment, and seize the amount adjudged, or, by distraining first at his own risk, force the defendant either to pay or stop the seizure by submitting the matter in dispute to trial before a brehon, whom he then could choose. There was no officer corresponding to a sheriff to distrain and realize the amount adjudged; the person entitled had to do it himself, accompanied by a law-agent and witnesses, after, in "distress with time", elaborate notices at intervals of time sufficient to allow the defendant to consider his position and find means of satisfying the claim if he could. In a proper case his hands were strengthened by very explicit provisions of the law. "If a man who is sued evades justice, knowing the debt to be due of him, double the debt is payable by him." In urgent cases "immediate distress" was allowed. In either case the property seized—usually cattle—was not taken to the plaintiff's home, but put into a pound, and by similar easy stages became his property to the amount of the debt. The costs were paid out of what remained, and any ultimate remainder was returned. On a fuidir (foodyir) = serf or other unfree person resident in the territory incurring liability to a clansman, the latter might proceed against the flaith on whose land the defendant lived, or might seize immediately any property the defendant owned, and if he owned none, might seize him and make him work off the debt in slavery.