CHAPTER IV.

_TRIBAL CUSTOM OF THE IRISH TRIBES._

I. THE ERIC FINE OF THE BREHON LAWS.

[Sidenote: Goidelic tribal custom differed from Cymric.]

Returning now once more to the examination of tribal custom and the structure of tribal society in the case of tribes belonging to the Celtic group, it might be expected that Cymric customs would be likely most closely to accord with those of the Celtic tribes of Ireland, Brittany, and Gaul. But it must be remembered that the Cymry whose customs are contained in the Codes, whatever their original Continental position may have been, are supposed to have come into Wales from the North, with Cunedda and his sons. The Codes therefore probably represent the customs of the Cymry of ancient Cumbria north of the Solway Frith, rather than those of the Britons, whether Goidels or Cymry, dwelling in South Wales and more or less subject for generations to Roman rule.

If the theory of the emigration from Wales and Cornwall into Brittany, as the consequence of the Saxon invasion, be correct, the Britons who emigrated into Brittany may never have shared the peculiar customs of the immigrants into Wales following upon the conquests of Cunedda and his sons. They may have had more in common with the Goidelic tribes of South Wales than with the Cymric newcomers into Wales.

These considerations may well prepare the way for the recognition of differences as well as resemblances between Cymric and Irish tribal custom.

The system of payments for homicide amongst the ancient tribes of Ireland as described in the Brehon Laws differed widely from that of the Cymric Codes.[62]

In the first place, the Brehon laws describe no scale of galanas or wergeld, directly varying with the social rank of the person killed. Gradations of rank there were indeed, and numerous enough. But there appears to have been only one _coirp-dire_, or body-fine, the same for all ranks, namely seven cumhals or female slaves--the equivalent of twenty-one cows.

[Sidenote: The Brehon _coirp-dire_ of all tribesmen the same: six cumhals and one added.]

And when this _coirp-dire_, or price of the body or life of a man, is further examined, it is found to consist of two parts: (1) one cumhal of compensation (aithgin); (2) the six cumhals of the _coirp-dire_ proper.

In the tract ‘Of every Crime’[63] it is stated:--

If the man who is dead has a son, he takes the cumhal of compensation alone. If not alive, his father is to take it. If not alive, his brother; if he be not alive, the nearest person to him is to take it. And then the coirp-dire is divided:

3 cumhals to the son and the father; 1 cumhal to the brother; 1 cumhal to the son and father (_sic_); 1 to the geilfine from the lowest to the uppermost man;

--so making up the 6 cumhals of the coirp-dire.

And in the ‘Book of Aicill’ (p. 537) are these lines:

Three eric fines are counselled:

(1) There is paid full compensation; (2) And fair honest coirp-dire; (3) And honour-price is paid.

[Sidenote: The _eneclann_ or honour-price varied with rank. The ‘eric’ fine included both.]

Besides this coirp-dire, therefore, was the _eneclann_, honour-price or price of the face, _i.e._ payment for insult. And this was the payment, by no means confined to homicide, which varied according to rank.

These two things then--the coirp-dire of seven cumhals and the honour-price--made up together (with, in some cases, exceptional additions) the eric fine.

Next as to the persons liable for its payment.

In the Corus Bescna[64] the following statement is made relating to homicide in cases where the homicide was one of _necessity_:--

The eric fine is to be paid by the slayer’s kindred (fine), as they divide his property (cro). He (the slayer) shall pay a cumhal of restitution (aithgin) and as much as a son or a father of the six cumhals of the dire-fine.

As to crimes of _non-necessity_:--[65]

he himself is to be given up for it, with his cattle and his land.

[Sidenote: The kindred of ‘near hearths’ were liable for the whole eric.]

If he has not enough to pay the eric or is not to be caught, then

it is to be paid by his son until his cattle and his land be spent on it (or failing him) by his father in the same manner.

Lastly, failing both the son and the father,

it is to be paid by each nearest hearth (teallach) to him until all they have is spent, or full payment of the crime is made up among them.

So that, in the absence or in default of the murderer, at the date of this Brehon tract, his family and kindred were answerable for the whole of the eric in the case of wilful murder.

[Sidenote: The ‘hearths’ liable apparently to third cousins.]

The nearest hearths or ‘fine who bear the crimes of each kinsman of their stock’ were, according to the Senchus Mor (i. p. 261):--

1. _Geil_ fine; 2. _Derb_ fine; 3. _Iar_ fine; 4. _Ind_ fine.

I think M. D’Arbois de Jubainville[66] is probably right in explaining these four hearths or fines to be groups or grades of kindred. He divides them thus:--

{ father; The _geil_ fine { son; { grandson; { brother.

{ grandfather; _derb_ fine { paternal uncle; { nephew; { first cousin.

{ great-grandfather; _iar_ fine { great-uncle; { great-nephew; { second cousin.

{ great-great-grandfather; _ind_ fine { great-great-uncle; { great-great-nephew; { third cousin.

Whether this interpretation of the Brehon scheme of the divisions of the Irish fine or kindred be correct in every detail I shall not venture to give an opinion, further than to say that, viewed in the light of other tribal systems, it seems to me to be nearer the mark than the various other attempts to make intelligible what after all are very obscure passages in the Brehon Laws. The seventeen persons making up the four divisions of the fine or kindred must be taken, I think, as representing _classes_ of relations and not individuals; _e.g._ under the head ‘first cousin’ must be included all ‘first cousins,’ and so on throughout.

So understood, the four hearths or groups of kindred liable for the eric would include the sixteen grades nearest of kin to the criminal. He himself, or the chieftain, would form the seventeenth person on the list.

The tract ‘Of every Crime’ seems to confirm the view above taken. It states (iv. 241) that ‘for the crimes of every criminal’ he himself was first liable.

If he has absconded it goes upon his chattels; living chattels or dead chattels.

[Sidenote: The four ‘fines’ or ‘hearths’ were groups of kinsmen in grades of relationship.]

The liability falls next upon his father and his brother, but, according to the commentary, upon his son first, if he have one. These seem to be the _geilfine_ relations or nearest hearth. And after them it falls, according to the text, upon his ‘deirbhfine relations.’ And ‘if they have absconded so that they cannot be caught, his crime goes upon his chief.’ But before it goes upon the chief the iarfine and other fines come in, according to the commentary, and the _chief_ is said to be that of the _four fines_.

The reason why the crime goes upon the deirbhfine division and the iarfine division here before it goes upon the chief is because it is one chief over them.… _His chief_--_i.e._ the chief of the four families (p. 243).

On the whole, therefore, according to whatever rules of kinship a fine may have been divided into the ‘four nearest fines or hearths,’ we can hardly be wrong in considering them not as four artificial groups including in all seventeen individuals, but as four _family groups_ arranged in the order in which liability for a kinsman’s crime was to be shared.

[Sidenote: The same groups both received and paid eric.]

The full liability for the eric would then, as in the Cymric case, fall upon the four groups or hearths as a whole. But, again as in the Cymric case, the amount falling upon each of them was defined and divided among the individuals composing it. The same family division held good both as regards payment and receipt of eric.[67]

The general correspondence between the obligation to pay and the right to receive a share in fines is shown by another passage from the Senchus Mor:

The feini charge the liability of each kinsman [comfogius] upon the other in the same way as he obtained his eric fine and his inheritance.[68]

The penalties for any other crime than homicide fell in the first instance upon the criminal alone, and the person injured took the whole of the compensation for his injury.

But it was not so in the case of homicide. It was not a matter for the individual alone. Both in payment and receipt it was, as with the Cymry, a joint interest of the kindred.

The following passage makes this clear:--

What is the reason that it is upon himself alone every crime that a person commits goes, _except killing_, provided he has the means of paying it?

_Answer._ Because, though it be against him alone evil is done, _except killing_, it is to himself alone it shall be paid. Every _killing_, however, which he commits, it is not he alone that shall pay for, though he has the means of paying for it, but it goes upon the family (fine), and this is now the reason: because though it were himself or his son that had been killed, it is the whole family (fine) that would take the body fine (coirp-dire) of either of them, and not his son or father.[69]

[Sidenote: The solidarity of the kindred.]

A still clearer indication of this solidarity of the family or kindred occurs in the Book of Aicill (p. 541) in regard to the right of the several members, according to relationship, to share in composition for a kinswoman abducted without their consent. If taken without her own consent, honour-price was to be paid to herself, and also honour-price was to be paid to her chiefs, and her relations, according to the nature of their relationship to her. This presumably was for the breach of their protection. Should death overtake her before she was restored, coirp-dire and honour-price were to be paid to her family. In case of her consent it was the same except that she could claim no honour-price for herself.

So far, then, we have felt our way to the following conclusions:--

[Sidenote: Summary of the rules as to eric.]

(1) That the eric for homicide in Ireland was shared by the family in grades of relationship elaborately fixed, but which it is not necessary to discuss further.

(2) In cases of innocent homicide the family, _i.e._ four nearest hearths or grades of kindred, shared the eric with the slayer, _i.e._ the slayer was only liable to pay a share of the eric.

(3) In cases of intentional homicide the goods of the murderer all had to go first, and only the remainder was thrown upon his kindred. But (except _inter se_) they were liable to the kindred of the slain for the whole of what the slayer could not pay.

(4) The eric consisted of two parts--the coirp-dire and the honour-price. The coirp-dire was seven cumhals, one of which was for restitution (_aithgin_), the other six cumhals being the _coirp-dire_ proper.

(5) As in other laws, there were sometimes additional payments for breach of protection or privilege &c.

II. THE HONOUR-PRICE (ENECLANN).

It is necessary next to direct special attention to the honour-price (eneclann).

The question at once arises, _whose_ honour-price had to be paid?

In the first place, according to a passage in the Book of Aicill, it is the honour-price of the _slayer_ that had to be paid, _i.e._ the higher the rank of the slayer the greater the payment to the kindred of the person slain.

[Sidenote: The honour-price of the slayer.]

The passage alluded to occurs almost at the beginning of the Book of Aicill (p. 99). The heading, literally translated, is: ‘Fines are doubled by anger (ferg).’ Then follows a long commentary, in which the point seems to be limited to _secret_ murder, and the doubling seems to be the result of the _concealment_. This is quite consistent with tribal feeling as shown in other laws, concealment of the slain person on the part of the murderer being considered a grave aggravation. The passage is as follows:--

_Fines are doubled by anger (ferg)._

The double of _his own honour-price_ is due of each and every person, whether native freeman, stranger, foreigner, daerman, or looker-on, for the crime of _secret_ murder.[70]

And then the commentary goes on to say that if it was the same person who killed and concealed

a fine of 7 cumhals and full honour-price for the concealing, and 7 cumhals and full honour-price for the killing, which is twice 7 cumhals and double honour-price upon a native freeman for secret murder.

Obviously the _honour-price_ in both cases is that of the murderer, for a little further on is a statement that

the same fine is upon a native freeman for looking on at the killing of a native freeman, or a stranger, or a foreigner, or a daerman.[71]

[Sidenote: The honour-price of the slain or of his kinsmen.]

But besides this honour-price of the criminal, as we have seen, other payments had apparently to be made to the relatives of the slain, for breach of their protection or for injury sustained, and these were measured by the honour-price of the recipients and not by that of the criminal.

It is not quite clearly stated that these payments were a part of the eric, but we may suppose that they were in a sense a buying off of the right of feud, and accepted in lieu of the right of joining in the avengement of the crime and in the feud, for which the eric was the composition.

[Sidenote: The honour-price of the protector of the slain.]

A passage in the Book of Aicill (p. 107) incidentally seems to show that the son of a person slain could choose whether to claim honour-price on the scale of his own social rank, according to right of property, or of the status of his father or grandfather, or that of the chieftain under whose protection he lived.

If, having been given his choice of taking honour-price in right of property, or honour-price in right of his father and his grandfather, he made choice of honour-price in right of his property, and decay came upon his property so that he has [left] but the kingship of the three handles--the handle of his flail, the handle of his hatchet, and the handle of his wood axe; he is (then) entitled to but one screpall for his worthiness if he be worthy; and if he be not worthy he is entitled to nothing, unless children have been born to him afterwards which he had not before on the day of making his choice, and if they have been born he has honour-price in right of them.

The passage goes on to mention the case of his having made choice ‘to have honour-price in right of his relations or in right of his chief.’

In the Senchus Mor (i. p. 275), without direct mention of the case of homicide, is the following statement:--

The honour-price is fourfold. Full honour-price is due to one for his father, half honour-price for his father’s brother, one third honour-price for his son or his daughter, one fourth honour-price for his grandson.

On the whole it may be gathered from the Brehon tracts that, whilst the coirp-dire or body fine was a fixed amount, the eric or full payment was complex, involving, besides the coirp-dire, the honour-price of the slayer according to his rank, and also payments to the relations of the slain, regulated by their honour-price and rank, and nearness of relationship to the slain person, by way of reparation for the insult or injury involved, or for breach of their protection, &c.

In order to judge how much these payments of honour-price added to the eric, we must seek to learn something of the character of the various grades and ranks, and the amount of the honour-price of each.

III. THE GRADATIONS IN RANK UNDER THE BREHON LAWS.

The gradations in the honour-price, as stated in the ‘Crith Gabhlach,’ become very important from the light thrown by them upon the structure of tribal society in Ireland.

[Sidenote: The ‘midboth’ or ordinary freeman and his food allowance.]

At the bottom of the list of these grades is mentioned the _midboth_ man or ordinary freeman without land or cows (?). He is said to be entitled, as food allowance, to the humblest fare of ‘milk and stirabout’ and for himself alone (iv. 301).

His honour-price is only a dairt heifer or colpach heifer, and his honour-price (as that of other grades) is also the limit of the value of his oath or pledge. He is a man who has not yet attained to a household of his own. When he has done that he seems to rise to the next rank of an _og-aire_, _i.e._ a young _aire_.

Suddenly, we are told of the og-aire that he has seven cows and a bull, seven pigs, seven sheep, and a horse. He also has a cow land, _i.e._ land to graze seven cows, for which a cow is paid every year by him to his chief. He has an ox, and a fourth part of the needful for ploughing: _i.e._ presumably he joins with others in making up a plough team of four oxen. Surely these have been supplied to him by his chief, as in the case of the Cymric ‘da.’ His proportionate stock (turcreicc) is eight cows, which with his land he gets from a bo-aire, possessed of surplus cattle, and he pays to him a food-rent ‘bes tigi’ (like the Welsh gwestva) of a cow and a pig, &c. Should his stock increase he does not always become at once a _bo-aire_, ‘because four or five such may occupy the land of a bo-aire, and it would not be easy for each of them to be a bo-aire’ (iv. pp. 305-309).

[Sidenote: The ‘bo-aire.’]

So in the same way a _bo-aire_ has land of twice seven cumhals, and he has half of a full ploughing apparatus, and his proportionate stock (from his chief) is twelve cows; and a colpach heifer is his food-rent; and his honour-price is five seds.

A bo-aire may have a full and complete plough team and twenty cows and other things, and he may even rise to the giving of proportionate stock to tenants of his own if his stock should have grown too much for his land. But he still may remain a bo-aire. He may, however, rise from a bo-aire into a _flaith_ (or chief), when he has double as much as an ‘aire desa’ and has established himself with a _green_ round his homestead, and so surrounded his house with a _precinct_ in which he can give protection to cattle taken in distress, this being one of the important duties and functions of a chief (flaith) (iv. pp. 309-317).

It would seem that even when a man had risen to be the chief of his kindred (fine) he might still be simply a bo-aire, and not necessarily yet a _flaith chief_.

In another tract, among other disconnected items are the following:--

Whatever number of the divisions of the bo-aires happen to be contending, though one of them be older than the others, the grade which is most wealthy, _i.e._ in point of wealth, it is it that takes precedence.

He is a hill of chieftainship in the third person.

Unless his father and grandfather were flaith, though he may be of the same race as to his origin, his chieftainship is lost to him.

A plebeian chief is one whose father or grandfather was not a chief (flaith). (iv. pp. 379-381.)

It would seem from these statements that to become a flaith from the rank of bo-aires something like an election was needful, and that wealth weighed most in the election. It shows, however, that it was election out of a class or family in which the flaithship descended from father to son, and that one of the qualifications was that a man’s father and grandfather before him must have been flaiths.

[Sidenote: The ‘aire desa.’]

So too in the ‘Crith Gabhlach’ (iv. p. 321) the _aire desa_ must be the son of an aire and the grandson of an aire. He has (probably a minimum of) ten tenants, five _giallna_ and five _saer_, and gets a food-rent from each. But he himself takes proportionate stock from his chief, for which he pays food-rent in the same way.

[Sidenote: The ‘aire ard.’]

The _aire ard_ has twenty tenants, ten _giallna_ and ten _saer_, and in his turn he takes proportionate stock from his chief (iv. p. 325).

[Sidenote: The ‘aire tuisi.’]

The _aire tuisi_ has twenty-seven tenants, fifteen giallna and twelve saer, and he takes himself proportionate stock from a king, ‘and he makes corus-arrangements _in the raith right of his father and grandfather_,’ whatever this may be (iv. 325).

[Sidenote: The ‘aire forgaill.’ The ‘Ri-tuaithe.’]

Above him is the _aire forgaill_, with forty tenants; and at the head of the flaith or chieftain grade comes the _Ri-tuaithe_, who is the chief or King of a Tuath.

[Sidenote: The lower grades take stock from the higher and pay food-rents to them.]

We need not attempt to discuss the details of this hierarchy of chieftains. It is enough that, throughout, the lower chieftain takes stock from and pays food-rents to the higher chieftain, or the Ri-tuaithe, as the case may be. So that the grades of tribal rank were connected by the link formed by the receipt of an allotment of stock from, and the payment of food-rent to, the next superior grade.

* * * * *

Concentrating attention now on the ‘fine’ or group dependent upon a single flaith or chief, we have seen that it consisted not only of his kindred, but also of other dependents.

[Sidenote: The other tenants of a chieftain.]

We have seen that the chief had both _giallna_ and _saer_ tenants, and that he supplied these tenants with stock, and received food-rent and services in return.

In the second volume of the Senchus Mor[72] are two chapters on _Saer-raith_ and _Daer-raith_. And the two kinds of tenancy are explained somewhat as follows.

[Sidenote: Effect of continuance of tenancy for three lives.]

In the _saer_-raith the stock is given without any pledge, and the return for it is one-third in value as food-rent every year, and the tenant has to perform what is translated as homage, and to do service on the dun-fort, at harvest time, and on military expeditions, but he does no manual labour. The saer tenant cannot separate from his own hereditary tribal chieftain, or refuse to take stock from him, and to that extent he seems to be _adscriptus glebæ_. But if he chooses to receive stock from another chief he can give it up when he likes, unless not having returned it _for three lifetimes_, he has let the chief get a permanent hold on him, but this must not be so as to rob his own tribe of their innate rights (p. 219). This freedom to take stock from other chieftains does not, therefore, seem to alter his position or that of his successor as permanent tenants of their own hereditary chieftain. And this applies both to his higher chieftain of _kingly_ rank, and his own lesser chieftain of _flaith_ rank.

He cannot separate from his own king (ri) at any time, either in _saer_-rath or _daer_-rath, unless the chief be indigent.… His own _aire_ of the _flaith_ grade is in the same position as his own _king_ (p. 211).

On the other hand, whilst in the case of stock taken from another chieftain the contract can be ended on either side (except after three lives), the hereditary king or chieftain cannot, without good reason, withdraw the stock from the tenants.

If he be his own king he can never take away either his _saer_ stock or _daer_ stock unless the tenant be indigent, and there are no life separations between the tenant and his own hereditary king unless either of them act illegally, &c.…

The tightness of the tribal bond is shown still more clearly by the statement that the chieftain himself is not competent to forgive, so as to bind his successors, the food-rent due from the tenant.

The food-rent is free to the successors of the chief; for the chief is not competent to forgive the payment of what supplies his house (p. 213).

So much we gather from the chapter on _saer_-rath. Now as to _daer_-rath (p. 223). No one was bound to take _daer_ stock from any one, not even from his own chieftain or king. Taking daer stock was therefore a matter of contract, and a contract by a tribesman affected his _fine_ or kindred.

The stock is received by the tenant either with or without the knowledge of the _fine_, for if it was unknown to them they could impugn his contract, but if it was within their knowledge, though the stock be ever so great, it is fastened upon them.

The fine had a voice, presumably lest it should be found that cattle in their family herd, unknown to them, might belong to some outside chieftain. And further, if continued for three lives, the obligation might become permanent, as in the case of saer stock.

[Sidenote: ‘Fuidhir’ tenants become _adscripti glebæ_ after three generations.]

Besides these _daer_ and _saer_ tenants who had taken stock from their chieftain or king, and who seem to have been to a great extent _adscripti glebæ_, there is mention of _fuidhir_ tenants. They seem to be strangers, admitted, like the Cymric alltuds, upon a chieftain’s land, and, like the Cymric alltuds, free to move away, until by residence for three generations they also have become recognised as freemen, and at the same time _adscripti glebæ_.

In the tract, ‘Divisions of the Tribe of a Territory,’[73] is the following mention of the fuidhir tenants, confirming what has been said above.

It occurs in the commentary:--

His fuidhir tenants, _i.e._ they become free during the time of three persons; the fourth man is called a daer-bothach person; the _fifth is a sencleithe_ person.

The fifth person would be the great-great-grandson of the original fuidhir. Further on (p. 287) is the following:--

The families of the fuidhir tenants are subject to manifold divisions. The son is enriched in the same ratio as his father, and the father does not sell anything to the prejudice of his sons, grandsons, great-grandsons, or great-great-grandsons.

[Sidenote: The fifth generation become ‘sencleithe.’]

The chief point of interest is that the men of the fourth generation of fuidhirs, according to the above-quoted passages, became _daer-bothach_ persons--half free men--and the fifth generation _sencleithe_, so that the family, like the Cymric stranger, grew into freedom in four or five generations.

This gradual growth of fuidhirs into sencleithe tenants in five generations of occupation is illustrated by the retention of rights for a corresponding period. In the Book of Aicill (p. 157) is a statement that the land of an imbecile person (a fool’s land) is not lost to his descendants, though they be also imbeciles, ‘till five persons:’ that is, till the fifth generation.

The number of generations required does not, however, seem to have been absolutely uniform.

The following is from the ‘Crith Gabhlach’ (p. 321):--

If there be service from them (cottier and fuidhir tenants which he, the chief, brings upon the land) to ‘flaith’ chiefs to nine times nine (years?), they are cottiers and fuidhir tenants; they are _sencleithe_ tenants from that out.

In the Editor’s note (p. 350) to the sequel to the ‘Crith Gabhlach,’ there is a statement that the sencleithe tenant was a man who came from his natural chief to settle under another chief; and if he or his successors continued away during the time of three successive chiefs, with the knowledge of the former chief, and unclaimed by him or his successors, he or they then became ‘sencleithe,’ and could not go away of themselves nor be claimed by the other.[74]

[Sidenote: Comparison with Cymric custom as to strangers, and as to the link between chief and tribesmen made by bestowal and acceptance of cattle.]

These passages, taken together, seem to imply that after five, or sometimes three, generations of tenancy under the same chieftain or his successors, the fuidhir tenants became in some sense _adscripti glebæ_, like the Cymric alltuds, and at the same time formed a group of kindred very much like a Cymric gwely.

Beyond this it is not easy to realise the position of the _sencleithe_ person. The text of the Brehon law tracts is often very obscure, and the commentary so imperfect that the suggestion again and again occurs to the student that the commentator may sometimes himself be groping in the dark. Moreover, all the Brehon tracts have not yet been published, so that we have as yet only part of the evidence before us. Still it seems to be safe to say that there are indications that, as in Wales, there were rungs in the social ladder by which the stranger or unfree tenant might, after a certain number of generations, climb into something like freedom and tribal rights at the cost of becoming at the same time attached to the land of the chieftain; and that to the freeman also the grades of social rank were in some measure dependent upon the social position of fathers and grandfathers and great-grandfathers as well as upon the acceptance of stock and the payment of food-rent and the performance of services to chieftains of higher rank.

Further, without pressing too far resemblances which are not complete between Irish and Cymric custom, it may at least be suggested that the Irish example of the acceptance of stock by the young og-aire from the chief of his family, or some higher chieftain whose man he was or became, may throw some light upon the Cymric provision of _da_ or cattle to the young tribesman who became ‘man and kin’ to the chieftain who gave it for his maintenance. In the Irish instance, this bestowal and acceptance of stock was part of a system which ran through all ranks and grades. And it seems to have formed the natural link connecting one social rank with another, and securing some kind of solidarity in the whole kindred or tribe, in addition to the tie of blood relationship and sometimes as a substitute for it.

We are now in a position to consider the amount of the honour-price of the various grades in tribal society as exhibited in the Brehon tracts, and to judge how far it was an important addition to the coirp-dire, and whether it raised the Irish _eric_ to an amount at all near to that of the _galanas_ of the Cymric Codes.

[Sidenote: The amount of the honour-price of each grade.]

In the ‘Crith Gabhlach’ the honour-price of each grade is given as below:--

Midboth men a dairt heifer or colpach heifer Og-aire 3 seds of cow kind Bo-aire 5 seds or = 1 cumhal _Aire desa_ 10 seds or = 2 cumhals Aire ard 15 seds or = 3 cumhals Aire tuisi 20 seds or = 4 cumhals Aire forgaill 15 seds (_sic_; ? 30 seds) or = 6 cumhals.[75] _Ri_-tuaith 7 cumhals

The honour-price is given in the ‘Crith Gabhlach’ in seds. The number of cumhals or female slaves is taken from a list in the Book of Aicill (p. 475) and from a statement in the Senchus Mor (i. p. 76) in which the honour-price of the aire forgaill is stated to be 6 cumhals.

It seems, then, that the honour-price of the Ri-tuaith, the highest chieftain, was seven cumhals, whilst the honour-price of the bo-aire only amounted to one cumhal, that of the og-aire to only three two-year-old heifers, whilst that of the simple freeman without land or cattle was only one single heifer.

[Sidenote: Difference between the Irish ‘eric’ and the Cymric ‘galanas.’]

The whole eric fine for homicide, including the coirp-dire and additional payments of honour price, evidently fell very far short of that of the Cymric galanas. Even in the case of the Ri-tuaith or highest chieftain slain by one of his own rank, the eric can hardly have exceeded the galanas of the young unmarried Cymric tribesman--viz. of sixty cows.

[Sidenote: The honour-price the limit of the power of protection.]

The importance under Irish tribal custom of the honour-price of a tribesman, and its graduation in proportion to rank, position, and wealth in the tribe, is apparent quite apart from the question of homicide. It ruled the value of ‘his oath, of his guarantee, of his pledge, and of his evidence.’ These according to the ‘Crith Gabhlach’ (p. 307) were the four things in which he acted to the extent of his honour-price, and he was not competent to undertake liabilities beyond this limit. This becomes very important when we realise how large a place the system of compurgation, or the support of a kinsman by the oaths of his fellow-kinsmen, filled in tribal usage.

On the other hand, whilst the honour-price of a tribesman or chieftain was the limit up to which his power of giving protection to his fellow-tribesmen by oath or pledge or otherwise extended, it also was the measure of his own protection. He was entitled to his honour-price not only in case of homicide. If he was satirised or insulted, or if the protection he afforded to others was violated, or his house was burned, or any one stole from him, out of his house or in it, or forced his wife or his daughter, his honour-price was the measure of the amount of redress he could claim for the wrong. The analogy of this to the Cymric _saraad_ is obvious, and something like it is found in most tribal systems.

[Sidenote: A typical case of eric from the Senchus Mor.]

Finally, imperfect and vague in some points as may be the result of the foregoing examination of the Irish evidence, we are now perhaps in a position to appreciate, for what it is worth, the curious case described in the Senchus Mor.[76] It may be taken so far as it goes as a precedent or indication of the way in which the intricate matters connected with the eric fine and honour-price were worked out in practice, though it is difficult to explain all the rulings of the Brehon experts.

The matter in dispute was between two of the three principal races of Erin--the Feini or ‘men of the North’ and the Ulaidh or ‘men of the South.’ Fergus was the son of the King of the Ulaidh. Owing to a quarrel amongst the Feini, Eochaidh Belbhuidhe, being expelled by Conn of the Hundred Battles, had fled from his own tribe and put himself under the protection of Fergus.

Whilst under the protection of Fergus, Eochaidh was killed by Asal the son of Conn, and by four sons of Buidhe, and a grandson of Buidhe. The latter, being the son of Buidhe’s daughter _Dorn_ by a stranger, was not acknowledged by her kindred (fine).

The eric fine for this outrage upon the protection of Fergus was thus arranged:--He was to have three times seven cumhals, _i.e._ seven cumhals in gold, seven in silver, and land of seven cumhals called _Inbher-Ailbhine_.

This was in satisfaction for the crime of the six murderers, viz. the son of Conn, and the four sons and the grandson of Buidhe. Five out of the six slayers apparently were able to pay their share. But not so the sixth, viz. the grandson of Buidhe, the illegitimate son of his daughter Dorn, who, being unrecognised by the kindred, apparently had no claim for help from them. Consequently Dorn, the mother of the illegitimate grandson, was handed over to Fergus as a bondwoman in pledge for her son’s share of the eric.

So matters stood for a time. But a new trouble arose, which seems to have upset the whole settlement and made it necessary to consider it over again, from the beginning.

It would seem that after all there was a question whether the land _Inbher-Ailbhine_ was permanently handed over, or only for a time, and redeemable within the period of the lives of three chieftains, because there was a question whether such a period had expired or not. And again it was claimed that Dorn was only given in _temporary_ bondage as a pledge for her illegitimate son’s share of the eric.

Besides these doubts, new circumstances had created a new position. Fergus was unfortunate enough to have suffered a blemish on his face. This, being a serious matter in a chieftain, was studiously kept from his knowledge. Dorn, acting as bondwoman, was one day, according to the story, preparing a bath for Fergus. Fergus complained that she was too slow about it and struck her with his horse-whip. She, being vexed, reproached him with his blemish, and for this insult Fergus slew her on the spot. Very shortly afterwards Fergus himself died.

This then was the new position, causing a new quarrel between the two tribes and involving the reopening of the old one. The interest lies in the way in which it was settled.

[Sidenote: Final balance of payments agreed to.]

A balance was now struck between the crimes on each side, beginning with the slaying of Eochaidh while under the protection of Fergus, as follows:--

Fergus, being king of a province, was entitled to 18 cumhals both as airer-fine and honour-price for the violation of his protection. There were also due to him 9 cumhals for his half airer-fine and half honour-price for Dorn’s insult in reproaching him with the blemish; so that this was altogether 27 cumhals to Fergus.

On the other side the Feini claimed as follows:--

Honour-price was demanded by the Feini for the killing of (Dorn) the pledge, for the pledge they had given was without limitation of time, and for it 23 cumhals were payable by Fergus for airer-fine and honour-price, for the authority of Fergus was opposed at the time.

This seems to have settled the matter between the two tribes; _i.e._, so to speak, the public matter between the Feini and Fergus’s people. But there were individual rights to be considered also. Besides these 23 cumhals due to his tribe,

Buidhe was entitled to honour-price for the killing of his daughter, _i.e._ he was an _aire-forgaill_ of the middle rank and was entitled to 6 cumhals as honour-price. Her brother was also entitled to honour-price for her death; he was an _aire-ard_ and was entitled to 4 cumhals as his honour-price.

Why the other brother had no claim for honour-price does not appear--perhaps the one brother was the representative of the brothers as a class. The total sum demanded on Dorn’s side was therefore 23 + 6 + 4 cumhals = 33 cumhals.

So that this which the men of the South demanded amounted to 33 cumhals, and the men of the North demanded 27; and a balance was struck between them, and it was found that an excess of 6 cumhals was due by the men of the North, for which the land _Inbher-Debhline_ was again restored by the men of the North.

The commentary goes on to say:--

And it is evident from this, that when a man has paid eric fine, should the person to whom it has been paid commit a crime against him, the law orders that his own eric fine should be restored to the former should it be better than the other eric fine.

In this case the land which had been taken by Fergus as ‘seven cumhals of land’ was returned to pay for the balance due of six cumhals only.

It will be observed that whilst the father and brother of Dorn had their own honour-price allowed for her slaying, no _coirp-dire_ was claimed for the life of Dorn herself. The reason is given as follows:--

What is the reason that the land was restored by the people of the North and that the eric-fine for the woman was not restored, whereas both had been given (to Fergus) as eric-fine for trespass? The reason is the woman committed an offence in the North for which she was forfeited, and the land did not commit any offence for which it could be forfeited, but it was returned in part payment for that trespass (_i.e._ the killing of Dorn).

IV. THE CURRENCY IN WHICH THE BREHON FINES WERE PAID.

Before leaving the Irish coirp-dire and honour-price, allusion must be made to the currency in which they were paid.

[Sidenote: Payment in cumhals or female slaves.]

The most significant point was the payment in _cumhals_ or female slaves. The cumhal was equated with three cows, but the payment was reckoned and stated in cumhals. The female slave was the prominent customary unit of payment, and doubtless a common object of commerce and trade.

[Sidenote: Cumhal = three cows or ounces of silver.]

The equation of the cumhal and the cow with silver was also remarkable. The cow was equated with the Roman ounce, and the cumhal with three ounces.

From a passage in the Senchus Mor (i. p. 247) and the Book of Aicill (pp. 371-377), the following table of values is evolved:--

8 wheat-grains = pinginn of silver 24 ” (3 pinginns) = screpall 72 ” (3 screpalls) = sheep (B. of A. p. 377) 96 ” (4 screpalls) = dairt heifer 576 ” (6 dairts) = bo, or cow, or unga 1728 ” (3 bo) = cumhal or female slave

These silver values as compared with those of the Cymric Codes seem at first sight to be singularly low. The Welsh cow, as we have seen, was valued in silver at three Saxon ounces, and the male and female slave each at a pound of twelve ounces. The Welsh value of the cow was roughly three times, and that of the slave three and one third times, the Irish silver value.

This Irish equation between cattle and silver must surely have been made at a time when silver was of quite exceptional value in Ireland. But there is some reason to believe that an earlier equation had been made with gold of a very different character.

[Sidenote: An older equation with gold.]

Professor Ridgeway has called attention to an interesting story from the life of St. Finian in the Book of Lismore (fol. 24, b.c.), in which an ounce of gold was required for the liberation of a captive, and a ring of gold weighing an ounce was accordingly given.

Now, if the ounce of gold is put in the place of the cumhal or female slave, the gold values of the Brehon monetary reckonings would be:--

Cumhal = 576 wheat-grains = ounce Bo or cow = 192 ” = stater or ox unit Dairt heifer = 32 ” = tremissis

These gold values, if established, would take their place at once as following the gold system of Constantine, and probably might belong therefore to a period in which the Continental ratio of gold to silver would be 1:12, and the silver values fairly consistent with those of the Welsh and other tribes. The cumhal or female slave would then equal twelve ounces or one pound of silver as in Wales. This, however, must not be taken as proved. It is with the silver values of the Brehon Laws that we are here concerned. And we should be tempted to refer this silver value to the period of Charlemagne’s attempted introduction of the ratio of 1:4 were it not that, as we shall see, it seems to date back to a period some centuries earlier.

There is another point of interest in connection with the early Irish monetary reckoning.

[Sidenote: The reckoning in scores of Roman ounces, _i.e._ the ‘Mina Italica.’]

We have seen that in the Brehon Laws the smallest silver unit was the _screapall_ or scripulum. And it has already been mentioned that the scripulum was also known as the _denarius Gallicus_, of which 24 went to the Roman ounce of 576 wheat-grains, as in the Brehon Laws, and that a score of ounces made the mina Italica of twice 5760 wheat-grains. It is curious to find in a passage quoted by Petrie[77] from the _Fodla Feibe_ in the Book of Ballymote,[78] a full and exact appreciation of the number of wheat-grains in the scripulum and the Roman ounce. The wheat-grains, according to this passage, are to be taken from wheat grown on typically rich soil which produces ‘the three roots,’ and 24 wheat-grains are the weight of the ‘screapall’ of silver, and 576 the weight of the ‘uinge’ or ounce. Further it is stated that the full weight which the _Tinde_ or weighing bar is to weigh is--not a pound: there is no mention of the pound--but _seven score ounces_.[79] Now this reckoning, not in pounds, but in _scores of ounces_, has already been alluded to as, consciously or unconsciously, a reckoning in so many of the _mina Italica_. Petrie quotes a passage from the ‘Annals of the Four Masters’ in which this payment in scores is illustrated.[80]

A.D. 1029. Amlaff, son of Sitric, lord of the Danes, was captured by Mahon O’Riagain, lord of Bregia, who exacted 1,200 cows as his ransom, together with seven score British horses and three score ounces of gold and the sword of Carlus … and three score ounces of white silver as his fetter ounces, and four score cows for word and supplication, and four hostages to O’Riagain himself as a security for peace and the full value of the life of the third hostage.

Apart, however, from the monetary system of the Brehon Laws, the fact remains that the real currency of early Irish custom seems to have been in _cumhals_ or _female slaves_. The coirp-dire and the honour-price of the Brehon tracts were reckoned in cumhals, and we shall find that there appears to be good evidence that both payment in female slaves and the equation of the female slave with three Roman ounces of silver go back to a very early period.

V. THE IRISH COIRP-DIRE AND HONOUR-PRICE TRACED FURTHER BACK THAN THE BREHON LAWS.

The evidence regarding the coirp-dire of the Brehon Laws and its payment in female slaves does not rest on those laws alone.

[Sidenote: St. Patrick’s ‘pretium hominis’ of ‘seven ancillæ.’]

St. Patrick, in his ‘Confessions,’[81] treats the _pretium hominis_ as a well-known unit of value. These are the words of St. Patrick:--

Vos autem experti estis quantum erogavi illis qui judicabant per omnes regiones quas ego frequentius visitabam; censeo enim non minimum quam pretium quindecim hominum distribui illis.

You know by experience how much I have paid out to those who were judges in all the regions which I have often visited; for I think that I have given away to them not less than the _pretium quindecim hominum_.

Further, in the ‘Tripartite Life’ St. Patrick is represented as putting the alternative between the death of a transgressor and the payment of seven cumhals (‘_Aut reum morti aut VII. ancillas reddere debet_’).[82] The evidence for this coirp dire and its payment in ancillæ seems to be thrown back by these passages to the fifth century.

[Sidenote: Evidence of the ‘Canones Hibernenses.’]

Further, when we turn to the series of ‘Canones Hibernenses’ published in Wasserschleben’s work, _Die Bussordnungen der abendländischen Kirche_ (p. 136), we find repeated evidence that the ‘pretium hominis,’ or ‘pretium sanguinis,’ of seven ancillæ, was a well-recognised unit of payment in ecclesiastical quarters more or less connected with the Irish and Breton Churches.

The first group of these Canons is headed ‘_De disputatione Hybernensis Sinodi et Gregori Nasaseni sermo de innumerabilibus peccatis incipit_.’

The first clause of this group imposes a penance for parricide of fourteen years in bread and water and satisfaction; or half this only if there was no intention.

The next clause imposes for ordinary homicide seven years’ penance in bread and water.

Clauses 8 and 10 fix the ‘prætium animæ’ of a pregnant woman (including woman and child) at twelve ancillæ.

[Sidenote: _Ancilla_ of same value in silver as the Brehon _cumhal_.]

Clause 9 fixes for us the silver value of the _ancilla_ and seems to show that it was the same as the silver value of the cumhal in the Brehon Laws.

The clause is as follows:--

XII. Altilia[83] vel XIII. sicli (? XII.) prætium uniuscujusque ancillæ.

Ecclesiastical usage retained to some extent the use of Roman phraseology. The siclus or sicilicus, as we have already seen, was the didrachma of two Roman _argentei_ or silver drachmæ. And as the drachma after Nero was one eighth of the Roman ounce, so the _siclus_ was one quarter. The Altilia was the ‘fattened heifer’ possibly of Irish custom.[84] Twelve fattened heifers or sicli equalled therefore three Roman ounces--_i.e._ the exact silver value of the cumhal of the Brehon Laws. Here, therefore, in these so-called Irish Canons the ancilla seems to be reckoned at the Brehon silver value of the cumhal.

Having gained this point we proceed to examine the other clauses.

In title III., headed ‘_Synodus Hibernensis decrevit_,’ are the following:[85]--

[Sidenote: Seven ancillæ the price of a man’s life.]

Sanguis episcopi vel excelsi principis vel scribæ qui ad terram effunditur, si colirio indiguerit, eum, qui effuderit, sapientes crucifigi judicant, vel VII. ancillas reddat.

The blood of a bishop or high prince or a scribe poured on the ground, _si colirio indiguerit_,[86] the ‘sapientes’ judge that he who sheds it shall be crucified or pay seven ancillæ.

Here, obviously, the VII. ancillæ are the price of the life of the criminal--the seven cumhals of the coirp-dire. The canon adds the following:--

Si in specie, tertiam partem de argento et comparem verticis de auro latitudinem nec non et similem oculi de gemma pretiosa magnitudine reddat.

If paid in specie, one third must be paid in silver, and of gold of the size of the crown of the head, and also the like in precious stone of the size of an eye.

These passages seem to have a curious correspondence with the following passage in the Brehon Laws (sequel to the ‘Crith Grabhlach,’ iv. p. 363):--

As to the shedding of a bishop’s blood, if it reaches to the ground as blood that requires a tent the guilty person is to be hanged for it, or it is seven cumhals that are to be paid for his sick maintenance and his eric.

If the wound be in his face, the breadth of his face of silver is paid, and of the crown of his head of gold.

The canons go on to state that if the blood does not reach the ground _nec colirio indigeat_ the hand of the striker is to be cut off, or the half of VII. ancillæ paid, if the act is done with intention; if not, the price of one ancilla is to be paid.

Another clause states that if a bishop be struck or violently handled, without effusion of blood, half the price of VII. ancillæ is to be paid.

In all these cases the fines are reckoned in a unit of VII. ancillæ or the half of it. The cutting off of the hand of the criminal is reckoned as equal to half of VII. ancillæ. The VII. ancillæ is the recognised unit.

When, in other clauses, dealing with the case of the same things done to a _priest_, a lesser punishment is decreed, still _the price of VII. ancillæ_ is the price of the life of the criminal. If the blood of a priest is shed and reaches the ground, _donec colorium subfert_, the hand of the criminal is to be cut off, or half of VII. ancillæ to be paid, if the act be intentional. If not intentional, the price of one ancilla is enough.

In title IV., _Dejectione_, after a clause stating that he who ejects a poor man kills him, and he who meets a person ready to perish and does not succour him kills him, there follows this clause:--

Si quis jecerit episcopum et si mortuus fuerit, accipiatur ab eo pretium sanguinis ejus L. ancillas reddit, id est VII. ancillas uniuscujusque gradus vel l. annis peniteat et ex his accipiuntur VII. ancille de jectione ejus.

If any one ejects a bishop and if he should be dead, let there be received for him the price of his blood, let him render fifty ancillæ, _i.e._ seven ancillæ for each grade of rank, or do penance fifty years, and from these shall be received seven ancillæ _de jectione ejus_.[87]

[Sidenote: ‘Pretium sanguinis’ seven ancillæ.]

Here the ordinary ‘_pretium sanguinis_’ or _coirp-dire_ is again clearly reckoned at VII. ancillæ, and the bishop, being of the seventh grade of rank in the ecclesiastical hierarchy, is to be paid for sevenfold.

It is also worth notice that in these clauses the cutting off of a hand is reckoned as _half_ of the ‘_pretium sanguinis_.’ This is in full accordance with the Brehon rule laid down in the ‘Book of Aicill’ (iii. p. 349).

Half the eric-fine of every person is to be paid for a foot, a hand, an eye, a tongue.

But inasmuch as the ‘eric-fine’ in this case might be taken by mistake to include the honour-price as well as the coirp-dire, the commentary adds:--

He is entitled to half ‘coirp-dire’ and half compensation (aithgin) and full honour-price.

The loss of the hand was reckoned at half the coirp-dire. The full honour-price was due for the insult or assault.

Yet another clause in these canons seems to show that not only the coirp-dire of seven cumhals was familiar to the makers of the canons, but also the honour-price.

In the Brehon Laws the honour-price was payable for breach of a chieftain’s protection, and in the case of the Ri-tuaith or kingly chieftain of a Tuath the honour-price was, as we have seen, seven cumhals. And so also was that of the bishop of the church in his territory.[88]

[Sidenote: ‘Honour-price’ of a bishop or king seven ancillæ.]

Accordingly, in the following clause in the canons the bishop is put in the same position as a king, with what was practically an honour-price of seven ancillæ:--

_Patricius dicit_: Omnis qui ausus fuerit ea quæ sunt regis vel episcopi aut scribæ furari aut rapere aut aliquod in eos committere, parvipendens dispicere, VII. ancillarum pretium reddat aut VII. annis peniteat cum episcopo vel scriba.

_Patricius dicit_: Every one who shall dare to steal anything belonging to a king or bishop or scribe, or to take away from or commit anything against them heedlessly, shall pay the price of seven ancillæ or do penance for seven years with a bishop or scribe.[89]

So that, though it is not very easy to put an exact date upon these canons, they seem clearly to adopt and confirm for ecclesiastical persons the Irish coirp-dire of seven ancillæ, and the highest honour-price also of seven ancillæ. And further the _ancilla_ of these canons was, it appears, of the same silver value as the _cumhal_ of the Brehon Laws.

VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES WALLICI.’

It is perhaps possible with help from another set of canons to obtain further evidence of Celtic usage as to the fine for homicide, and what is still more to the point, to trace it back to the Continental side of the Channel.

[Sidenote: The so-called ‘Canones Wallici’ of perhaps the Breton Church.]

At the end of the Latin version of the Dimetian Code of South Wales are appended as part of chapter XLIX. several clauses which do not belong to the Code and are quite inconsistent with its provisions. These clauses are carelessly extracted, with variations, from a set of canons which, from their thus partly appearing at the end of the Latin version of the Dimetian Code, have come to be known as the ‘Canones Wallici.’

The oldest MS. of this document is referred to the 8th century, and the canons themselves are referred by Haddan and Stubbs to the 7th century.[90]

It is not at all clear that, notwithstanding the name they have acquired, they are of Welsh origin.

The intercourse between the missionary monks and churches of Brittany, Cornwall, Wales, and Ireland was so intimate that there is no difficulty in understanding how a Welsh scribe or copyist falling upon these canons should add extracts from them to a Latin copy he was making of the Dimetian Code. Whether of Welsh origin or not, some of them may have been used, amongst others, by the Church in South Wales.

It may seem presumptuous to doubt their Welsh origin after the opinion expressed both by Wasserschleben and such competent authorities as Haddan and Stubbs, to whose labours the student is so greatly indebted. But that opinion is doubtfully expressed, and reference is made by them to the fact that two of the three MSS. describe the collection of canons not as ‘Canones Wallici’ but as ‘_excerpta de libris Romanorum et Francorum_,’ and ‘_excerpta de libris Romanis et Francorum_’ while the third, of the 8th century, does not seem to have any heading but ‘_Incipit justicium culparum_.’ Haddan and Stubbs assign the origin of these canons to that period (c. A.D. 550-650) during which both the Welsh Church and the Welsh Principalities appear to have become organised, _i.e._ to the period following St. Patrick and St. Finian, during which the monastic churches of South Wales were the channel of intercourse between the Breton and Irish Churches. This _collection_, according to the same authority, may date from the 7th century.

The Canons may have been meant for use on both sides of the Channel. And as they are ‘_excerpta_’ from books of the Romans and Franks, they seem to originate from the Continental side, however much they may have been used in Wales.

When we come to examine them, they bear every evidence of being ‘_excerpta_,’ and we know from the _excerpta_ of Isidor what different materials may be brought together in such a collection. There is no continuous plan or order apparently running through the whole. And certain of the canons, chiefly those relating to _homicide_, seem to be marked off from the remainder by the payments being made throughout in ‘_ancillæ_’ and ‘_servi_’; whilst in most others the payments are made in _libræ argenti_ or in _libræ stagni_, or occasionally in _solidi_, _unciæ_, and _scripula_.

The safer course may be, therefore, to treat them, not as a consistent and single set of canons, but as _excerpta_ from various sources.

[Sidenote: The clauses as to homicide.]

Following the eighth-century MS. as most likely to be correct in its text, the _excerpta_ relating to homicide are these:--

C. 1. Si quis homicidium ex intentione commiserit, ancillas III. et servos III. reddat et securitatem accipiat.

Canon 1. If any one by intention shall have committed homicide, let him pay three ancillæ and three servi and acquire safety.

C. 2. Si quis judicio fuerit competitus et præstando verum durus esse voluerit et ipsam intentionem fuerit interfectus, ancillas II. et servos II. reddi debere præcipimus. Quodsi manum aut pedem vel quemlibet membrum perdiderit similiter duas partes prætii se noverit accepturum.

Canon 2. If any one, being brought to justice, tries to resist the arrest and is slain in the attempt, we declare that two ancillæ and two servi shall be given for him, but if he loses a hand or a foot or any limb let him likewise know that he shall accept two thirds of the price.

C. 3. Si quis homicidii causa fuerit suspicatus et non ei titulus comprobandi, XL. et VIII. viris nominatis, ex quibus XXIV. in ecclesia jurent eum esse veracem, sic sine causa discedat. Quodsi non juraverit, ancillas III. et servos III. reddat et securitatem accipiat.

Canon 3. If any one shall be suspected of homicide, but there are not means of proof (‘titulus comprobandi’), 48 men having been named, of whom 24 shall swear in a church that he is right (‘verax’), so he shall depart innocent (‘sine causa’); but if he [they?] shall not have sworn he shall pay _three ancillæ and three servi_ and be free.

C. 4. Si servus ingenuum occiderit et culpa ingenui fuerit hoc, de fuste aut dextrali aut dubio aut de cultello fuerit interemptus, ipse homicida parentibus tradatur, et quidquid faciendi voluerint habeant potestatem.

Canon 4. If a slave shall kill a freeman and it shall be the fault of the freeman, and he shall have been slain by a cudgel, or a hatchet, or a … or a knife, the homicide himself shall be handed over to the parentes and they shall have power to do what they like with him.

C. 5. Si quis dominus servum arma portare permiserit et ingenuum hominem occiderit, ipsum et alium juxta se noverit rediturum.

Canon 5. If any master permits his slave to carry arms and he kills a freeman, let him know that he must hand over the slave himself and another likewise.

C. 6. Si quis ingenuus servum alterius sine culpa occiderit, servos duos domino. Quod si culpa fuerit servi alius, alius servus domino reformetur.

Canon 6. If a freeman shall kill the slave of another without fault (of the slave), he shall pay two slaves to the master. But if it were the fault of the slave, another slave shall be restored in his place.

C. 12. Si quis homicidium fecerit et fugam petierit, parentes ipsius habeant spacium intra dies XV., ut aut partem restituant et securi insedeant, aut ipsi de patria vadant; post hoc si ipse interemptor venire voluerit, reddat medium quod restat et vivat securus. Quodsi interim occisus fuerit, mancipium et quæ acceperint faciant restaurari.

Canon 12. If any one shall have done homicide and shall have sought flight, his parentes shall have the space of fifteen days, in order either to make their share of restitution and remain safe, or themselves quit the country. After this, if the slayer himself wants to return, he shall pay the remaining half and be safe. But if in the meanwhile he shall be slain they shall cause the slave [? slaves] and whatever they had received to be restored.

[Sidenote: Payments of six _ancillæ_ or _servi_ for homicide. The slayer to pay half and the parentes half.]

Here, apparently, is a fairly complete and consistent set of canons relating to homicide. All the payments are to be made in _ancillæ_ and _servi_. And the payment for intentional homicide is apparently a fixed payment of three ancillæ and three servi, _i.e._ six slaves in all. Canons 1 and 2 are consistent and conclusive on this point.

Now, looking at these canons alone, two facts point very strongly to an Irish rather than a Welsh connection, or perhaps we ought to say, to a Goidelic rather than Cymric connection. In the Brehon Laws, as we have seen, the payments are made in _cumhals_ or ancillæ, and the fixed wergeld or _coirp-dire_ is strictly speaking _six_ ancillæ, and one added for a special object, making seven cumhals in all. In the Cymric Codes, on the other hand, the galanas is paid in cows and never in ancillæ, and the amount of the galanas is graduated according to rank, that of the lowest and youngest tribesman being 60 cows, nearly three times as great as the six ancillæ and servi of these canons.

[Sidenote: The Irish coirp-dire apparently common to South Wales and the Breton churches from fifth to seventh century.]

The force of these suggestions of Irish connection is greatly increased by the fact that nowhere else in the collections of Canons and Penitentials except in these so-called ‘Canones Wallici’ and the ‘Canones Hibernenses,’ and closely allied sources, do we find the payments expressed in ancillæ. And it must be remembered that the intimacy between Breton and Cornish saints was mainly with South Wales, and through South Wales with Ireland, and further that South Wales, until conquered by Maelguin, was Goidelic rather than Cymric.

But whether the payment for homicide in the ‘Canones Wallici’ be the coirp-dire of the Brehon Laws or not, if we may recognise in these rules as to homicide the customs current in some degree on both sides of the Channel, let us say from the fifth to the seventh century, we cannot also fail to recognise in them evidence of influences at work which have broken away partly from tribal usage, and which hail, not from the primitive tribal instincts of Irish or Gallic tribes, but from the side of Roman and ecclesiastical law, to which the districts alluded to had long been subject.

We shall see more and more how foreign the tribal instinct of the solidarity of the kindred, and the consequent obligation on the whole kindred for the whole composition for homicide, were to Roman law and Christian feeling, and how soon under these influences the disintegrating process began in Gallo-Roman districts, causing the solidarity of the kindred to give way.

The solidarity of the kindred is partly recognised in these canons, but it is also partly ignored.

[Sidenote: The extent of the liability of the parentes of the slayer.]

The 12th canon states, as we have seen, that if the murderer had taken flight his parentes had fifteen days allowed either to pay part and be secure, or themselves leave the country. What part? The clause states that if the murderer wished to return from his exile he might pay the _half_ that remained, and thereafter live secure. So that it would seem that the kindred were only liable to pay half, instead of the whole coirp-dire of six ancillæ and servi. If, in the meantime, the murderer was killed, presumably by the parentes of the slain, the slaves, or whatever else had been received by the parentes of the slain from the parentes of the slayer, had to be restored to the latter, the feud having been satisfied by his death at their hands.

In the Brehon Laws as in the Cymric Codes, the solidarity of the kindred was complete. As we have seen, under Irish custom the whole kindred of the four nearest hearths were liable for the payment of the _coirp-dire_ for unnecessary homicide. But the fact that the payment of wergelds was foreign to Roman law, combined with the claim of the Church to protect from death criminals taking refuge at the altar, had no doubt in Northern Gaul, as we shall find was the case in Southern Gaul also, already begun to break up to some extent the tribal solidarity on which joint liability for the payment of wergelds was based.

[Sidenote: The cleric who slays is to give himself up to the slain person’s parentes.]

Those criminals who claimed protection at the altar were, under Gallic ecclesiastical usage, as we shall see, saved from death, but at the same time handed over as slaves to the parentes of the slain. And it is not difficult to detect the lines of thought leading to this result. In the ‘Penitentials’ attributed to St. Finian,[91] the spirit in which the missionary churches of Brittany, Wales, and Ireland, from their clerical point of view, dealt with crime very clearly appears. A layman, in addition to making composition to the injured person, should also do penance; but a cleric who possessed no property of his own could not pay the composition (s. 9, p. 110). What, then, was he to do in a case of homicide? The penitential (s. 23) lays down the rule:--

If any cleric kills his neighbour he must undergo ten years’ banishment with seven years’ penance. If after ten years he has acted rightly and is approved by the testimony of the abbot or priest, let him be received back into his country and let him satisfy the friends of him whom he has killed. Let him return to the father or mother (of the slain), if alive, saying ‘Behold I, as for your son, will do whatsoever you tell me.’ If he does not rightly do this he is not to be received--‘in eternum.’

Then in s. 53 is added, ‘If any one will propose better rules we will accept and follow them.’

To sum up the evidence of the canons, we can hardly claim to have done more than to have connected the coirp-dire of the Brehon Laws with the _pretium hominis_ of St. Patrick, and with the _pretium sanguinis_ of the ‘Canones Hibernenses,’ and with the clauses relating to homicide excerpted by the compiler of the so-called ‘Canones Wallici’ from the books of the Romans and Franks.

The connection, though traceable only through ecclesiastical channels, seems to establish a continuity as regards the fixed payment for homicide between the Breton and Irish churches, and possibly the churches of the Goidelic portion of South Wales, of the fifth and sixth centuries.

[Sidenote: Continuity of Irish and Breton custom as regards the ‘pretium hominis’ and payment in ancillæ.]

If it were suggested that the _pretium hominis_ of seven ancillæ might be an ecclesiastical invention originating with the missionary churches of the Armorican districts of Gaul, we should still have to inquire why these churches differed so much from other Gallic churches. Everywhere else the Church, finding it impossible to get rid of a deep-rooted custom, seems to have made compacts with the secular power, adopting the customary system of wergelds prevalent in each of the conquered and converted tribes, and giving to the several grades in the ecclesiastical hierarchy graduated wergelds placing them on a level with corresponding classes of tribesmen or laymen. Even in these Celtic Canons the clerical instinct, whilst apparently adopting the fixed wergeld or coirp-dire for laymen, claimed for the clergy a graduated wergeld.

The bishop, as we have seen according to the canons, claimed a sevenfold _pretium hominis_--seven times the price of seven ancillæ--because of his rank in the clerical hierarchy. He claimed too the _honour-price_ of seven ancillæ--the same as that of the Irish chieftain of a district for breach of his protection or precinct. The bishop seems to place himself here as elsewhere in these matters, on a level with the secular prince or even with the king.

And again, if St. Patrick in his ‘Confessions’ (a work the authenticity of which is generally accepted) could use, as he did, the _pretium hominis_ as a well-known unit of payment, it would seem that at least as early as the end of the fifth century the value of the _pretium hominis_ as a unit of payment was perfectly well understood. And this in itself is a proof of further antiquity.

The redeeming of baptized captives from slavery was moreover a recognised method of increasing the number of converts to the Christian Faith. In his equally authentic Epistle to the subjects of Coroticus St. Patrick speaks of the Roman and Gallic custom of Christians to send holy and fit men to the Franks and other nations with so many thousands of solidi for redeeming baptized captives, while Coroticus was killing and selling captives to a foreign people ignorant of God. Mr. Whitley Stokes, in editing this letter, suggests that this passage points to a date before the conversion of the Franks (A.D. 496).[92] The traffic in captives and slaves, and their sale perhaps into a still pagan corner of France, accords with the strangely local use of the _ancilla_ as the unit of payment as well in the Canons as in the Brehon Laws.

What, then, are we to make of this fixed wergeld of seven ancillæ? So far, we find it prevalent only in Ireland and in the Goidelic or non-Cymric districts of South Wales and Brittany. And the evidence seems to carry it back to the fifth century.

VII. THE WERGELD OF ANCIENT GALLIC CUSTOM. THE EVIDENCE OF CÆSAR.

[Sidenote: Cæsar does not state the amount of the Gallic wergeld, but the Druids had jurisdiction in cases of homicide.]

There seems to be left but one possible further source of evidence as regards the wergelds of the Gallic tribes before the Roman conquest, viz. that of Cæsar. Speaking of the Druids, his words are these:--

Illi rebus divinis intersunt, sacrificia publica ac privata procurant, religiones interpretantur. Ad eos magnus adulescentium numerus disciplinæ causa concurrit, magnoque hi sunt apud eos honore. Nam fere de omnibus controversiis publicis privatisque constituunt, et, si quod est admissum facinus, _si cædes facta_, si de hereditate, si de finibus controversia est, iidem decernunt, præmia pœnasque constituunt (vi. 13).

There is certainly nothing in these words, when carefully considered, which indicates in the slightest degree whether the Gallic wergeld was fixed, or graduated according to rank. They amount to this:--

The Druids have cognisance of nearly all public and private controversies, and if any crime has been committed, if a murder has been done, if concerning inheritance, if concerning boundaries there is controversy, it is they who decide, and they fix the compensation and penalties.

On the occasion of any murder committed, there would be plenty of room for controversy whether the wergeld were fixed or graduated according to rank, or even, as is quite possible, left open to the judgment of the Druids. So that we gain nothing from Cæsar’s evidence on this particular point, further than that the penalties for slaying were within the jurisdiction of the Druids.

It may, however, be well to notice that this passage has been the subject of controversy upon another point of interest to this inquiry: viz. on the question whether the evidence of Cæsar should be taken as in favour of the theory of the communistic ownership of land in Gaul or that of individual ownership.

M. Fustel de Coulanges[93] has argued with great force that the statement of Cæsar that the Druids were accustomed to settle controversies whether _de hereditate_ or _de finibus_ implies that in his view there must have been something like private property whether of individuals or of families.

[Sidenote: The evidence of Cæsar on tribal landholding.]

Now if a connection may be traced between the liability of the whole kindred for wergeld and the occupation of land by kindreds, with lesser divisions into something like _gwelys_, then, without pressing the point too far, without suggesting that the Welsh or the Irish form of tribal occupation of land may have been exactly that which in Cæsar’s time prevailed in Gaul, we may at least say that the analogy of the Welsh and Irish examples would lead us, from a tribal point of view, to judge that the form of land occupation in Gaul was not likely to be either absolute individual or absolute communal ownership. And as under Welsh and Irish tribal custom and forms of land occupation there was plenty of room for public and private controversies both _de hereditate_ and _de finibus_, it may fairly be suggested that some form of tribal land occupation would at least be more consistent with what Cæsar recorded in the few sentences under review than either complete individual or complete communal ownership would be.

But, passing from the passages already quoted to Cæsar’s further statements relating to the Druids, light seems to pour from them into another matter otherwise very difficult to realise.

It is at first sight with something like amazement that we view the arrogance of the pretension of the missionary priests of the Christian Church to impose what must have been galling penances upon chieftains and tribesmen who had committed crimes of murder or incest. Still more surprised might we well be that they had any chance of securing obedience.

The evidence of Gildas and of the Cadoc records quoted in a former volume is sufficient to show that to a most astonishing extent even chieftains submitted to the penalties and penances imposed by priests and monks who were claiming for themselves immunity from secular services and payments. The very fact that the Ecclesiastical Canons contain the rules we have examined as to the payments for homicide by the kindred of the murderer seems to involve the bold claim of the Church to bring the punishment of crime within its jurisdiction. We have seen also how in these Canons the right of the bishop to be placed in social rank on a level with the highest chieftains and princes and kings was already taken for granted in the corner of Gaul so closely connected with South Wales and Ireland.

[Sidenote: The position of the Druids paved the way for clerical pretensions.]

The statement of Cæsar opens our eyes to the extent to which under the earliest prevalent system of religious belief the way was paved both for these clerical pretensions and also for the submission of chieftains and people to the penances imposed.

After describing, as above, the prerogatives of the Druids, Cæsar adds a few words to describe the nature of the _sanctions_ by which obedience to their awards was secured:--

vi. xiii. 5. Si qui aut privatus aut populus eorum decreto non stetit, sacrificiis interdicunt. Hæc pœna apud eos est gravissima. Quibus ita est interdictum, hi numero impiorum ac sceleratorum habentur, his omnes decedunt, aditum sermonemque defugiunt, ne quid ex contagione incommodi accipiant, neque his petentibus jus redditur, neque honos ullus communicatur.

Whoever of them, whether a private person or a people, does not stand to the award, they interdict from the sacrifices. This penalty is with them a most heavy one. Those who come under this interdict are looked upon as in the number of the impious and criminal. These all shun, avoiding touch or speech, lest they should be hurt by the contagion. Nor to these is justice given if they seek it, nor is any honour shared with them.

Then in the passage following Cæsar describes how strongly organised was the power which the Druids represented and which they had at their back:--

His autem omnibus Druidibus præest unus, qui summam inter eos habet auctoritatem. Hoc mortuo aut, si qui ex reliquis excellit dignitate, succedit, aut, si sunt plures pares, suffragio Druidum, nonnumquam etiam armis, de principatu contendunt. Hi certo anni tempore in finibus Carnutum, quæ regio totius Galliæ media habetur, considunt in loco consecrato. Huc omnes undique, qui controversias habent, conveniunt, eorumque decretis judiciisque parent.…

Above all these Druids, there is one who holds the chief authority among them. To him, if dead, if there be one of the others excelling in dignity, he succeeds, or if there be many equal, by the suffrage of the Druids, sometimes even by arms, they contend for the chieftainship. At a fixed time of year they hold session in a consecrated place in the district of the Carnutes, which region is held to be the centre of all Gaul. Here all, from everywhere, who have controversies, assemble and submit to their decrees and judgments.…

Druides a bello abesse consuerunt neque tributa una cum reliquis pendunt: militiæ vacationem omniumque rerum habent immunitatem. Tantis excitati præmiis et sua sponte multi in disciplinam conveniunt et a parentibus propinquisque mittuntur.

The Druids are accustomed to keep away from war, nor do they pay tribute with other people; they have exemption from military service and a general immunity. Induced by so great advantages, many join their order both of their own accord and sent by parents and relations.

It is not necessary here to follow further these familiar passages in the ‘De Bello Gallico’ or to inquire more deeply into the religion of the Gauls. It is enough that the religion or superstition of the Gauls was sufficient in itself, and sufficiently deeply believed in, to fortify the influence and power of the Druids with the necessary sanction, and to outlive the disintegration which Roman conquest, in spite of its tolerance to tribal religions, must have in degree produced. The testimony of Renan to the deep-rooted superstition of the Breton population, and the lingering presence even to this day of instincts and customs reaching back to a stratum of indigenous ideas underlying Roman and Christian civilisation, shows, as Irish and Welsh legends do also, that feelings of this kind are not subject to sudden change.

And when we try to realise the position and work of the early Gallic or Breton or Cornish or Welsh or Irish churches from the fifth century onwards, we seem to see how their position and work were made possible only by the fact that what was technically called the conversion of a people to Christianity was not after all so great a revolution as one might at first sight have thought.

The missionary monks or priests, it might almost be said, _naturally_ took the place of the Druids in the minds of the people. They had power to shut out the criminal from the sacrifices of the Christian altar, just as the Druids could from theirs. The conversion, such as it was, meant at least that in the belief of the people the spiritual powers were transferred to the priest, and that the old sanctions of superstition naturally followed the transfer. Thereby was secured to the Church something of the same prestige and power which had once belonged to the priests of the old religion.

[Sidenote: The tribes were used to the central power of the Druids and of Imperial Rome and the Church took their place.]

When it is considered how the organised and world-wide system of the Church, with its centre in Rome, continuing to some extent the prestige and the civilisation of Imperial Rome, must have appeared to the chieftains and petty kings of uncivilised tribes, it may be recognised that in this respect also it resembled to their eyes the power of the priesthood of the old religion with its centre at Chartres and reaching in its authority from Britain to Southern Gaul. So that in this respect also the way was paved for the Church in the minds of the people. The tribes were used to the idea of a great central spiritual power, and in the Church, by transfer from the old to the new religion, they found it again.