citizenship. Fuidhirs, or manual labourers without property, were the lowest section of the population. Some were born in this condition, some clansmen were depressed into it by crime, consequences of war or other misfortune; and strangers of a low class coming into the territory found their level in it. The fuidhirs also were divided into saer and daer; the former being free by industry and thrift to acquire some property, after which five of them could club together to acquire rights corresponding to those of one freeman. The daer-fuidhirs were tramps, fugitives, captives, &c.
Fosterage, the custom of sending children to be reared and educated in the families of fellow-clansmen, was so prevalent, especially among the wealthy classes, and the laws governing it are so elaborate and occupied such a large space, that some mention of it here is inevitable. Beyond mention, there is little to be said, owing to the absence of general principles in an infinity of specific details, mostly domestic and apparently trivial. A child in fosterage was reared and educated suitably for the position it was destined to fill in life. There was fosterage for affection, for payment and for a literary education. Fosterage began when the child was a year old and ended when the marriageable age was reached, unless previously terminated by death or crime. Every fostered person was under an obligation to provide, if necessary, for the old age of foster-parents. The affection arising from this relationship was usually greater, and was regarded as more sacred than that of blood relationship.
The solidarity of clan and fine in their respective spheres, the provisions of the system, the simple rural life, and the prevalence of barter and payments in kind, left comparatively little occasion for contracts between individuals. Consequently the rules relating to contract are not very numerous. They are, however, sufficiently solemn. No contract affecting land was valid unless made with the consent of the fine and in the presence of the Aire-Forgaill. Contracts relating to other kinds of property are more numerous. When important or involving a considerable amount, they had to be made in the presence of a flaith or magistrate. The Aire-Coisring presided over most of the contracts of the common people. The parties to a contract should be free citizens, of full age, sound mind, free to contract or not, and under no legal disability. “The world would be in a state of confusion if express contracts were not binding.” From the repeated correlative dicta that “nothing is due without deserving,” and that a thing done “for God’s sake,” i.e. gratis, imposed little obligation, it is clear that the importance of valuable consideration was fully recognized. So also was the importance of time. “To be asleep avails no one”; “Sloth takes away a man’s welfare.” Contracts made by the following persons were invalid: (1) a servant without his master’s authority; (2) a monk without authority from his abbot or manager of temporalities; (3) a son subject to his father without the father’s authority; (4) an infant, lunatic, or “one who had not the full vigilance of reason”; (5) a wife in relation to her husband’s property without his authority. She was free to hold and deal with property of her own and bind it by contract. If a son living with his father entered into a contract with his father’s knowledge, the father was held to have ratified the contract unless he promptly repudiated it. “One is held to adopt what he does not repudiate after knowledge, having the power.” Contract of sale or barter with warranty could be dissolved for fraud, provided action was taken within a limited time after the fraud had become known. Treaties and occasional very important contracts were made “blood-covenants” and inviolable by drawing a drop of blood from the little finger of each of the contracting parties, blending this with water, and both drinking the mixture out of the same cup. The forms of legal evidence were pledges, documents, witnesses and oaths. In cases of special importance the pledges were human beings, “hostage sureties.” These were treated as in their own homes according to the rank to which they belonged, and were discharged on the performance of the contract. If the contract was broken, they became prisoners and might be fettered or made to work as slaves until the obligation was satisfied. Authentic documents were considered good evidence. A witness was in all cases important, and in some essential to the validity of a contract. His status affected the force of the contract as well as the value of his evidence; and the laws appear to imply that by becoming a witness, a man incurred liabilities as a surety. The pre-Christian oath might be by one or more of the elements, powers or phenomena of nature, as the sun, moon, water, night, day, sea, land. The Christian oath might be on a copy of the Gospels, a saint’s crozier, relic or other holy thing.
These laws recognized crime, but in the same calm and deliberate way in which they recognized contract and other things seriously affecting the people. Although we find in the poems of Dubhthach, written in the 5th century and prefixed to the Senchus Mór, the sentences, “Let every one die who kills a human being,” and “Every living person that inflicts death shall suffer death,” capital punishment did not prevail in Ireland before or after. The laws uniformly discountenanced revenge, retaliation, the punishment of one crime by another, and permitted capital punishment only in the last resort and in ultimate default of every other form of redress. They contain elaborate provision for dealing with crime, but the standpoint from which it is regarded and treated is essentially different from ours. The state, for all its elaborate structure, did not assume jurisdiction in relation to any crimes except political ones, such as treason or the disturbance of a large assembly. For these it inflicted the severest penalties known to the law—banishment, confiscation of property, death or putting out of eyes. A crime against the person, character or property of an individual or family was regarded as a thing for which reparation should be made, but the individual or family had to seek the reparation by a personal action. This differed from a civil action only in the terms employed and the elements used in calculating the amount of the reparation. The function of a judge in a criminal as in a civil action was to see that the facts, with modifying circumstances, were fully and truly submitted to him, and then by applying the law to these facts to ascertain and declare the amount of compensation that would make a legal adjustment. For this amount the guilty person, and in his default his kindred, became legally debtor, and the injured person or family became entitled to recover the amount like a civil debt by distraint, if not paid voluntarily. There were no police, sheriffs or public prisons. The decisions of the law were executed by the persons concerned, supported by a highly organized and disciplined public opinion springing from honour and interest and inherent in the solidarity of the clan. There is good reason to believe that the system was as effectual in the prevention and punishment of crime and in the redress of wrongs as any other human contrivance has ever been.
In calculating the amount of compensation the most characteristic and important element was Einechlan (= honour-price, honour-value), a value attaching to every free person, varying in amount from one cow to thirty cows according to rank. It was the assessed value of status or caput. It was frequently of consequence in relation to contracts and other clan affairs; but it emerges most clearly in connexion with crime. By the commission of crime, breach of contract, or other disgraceful or injurious conduct, Einechlan was diminished or destroyed, a capitis diminutio occurred, apart from any other punishment. Though existing apart from fine, Einechlan was the first element in almost every fine. Dire was the commonest word for fine, whether great or small. Eric (= reparation, redemption) was the fine for “separating body from soul”; but the term was used in lighter cases also. In capital cases the word sometimes meant Einechlan, sometimes coirp-dire (= body-fine), but most correctly the sum of these two. It may be taken that, subject to modifying circumstances, a person guilty of homicide had to pay (1) coirp-dire for the destruction of life, irrespective of rank; (2) the honour-value of the victim; (3) his own honour-value if the deed was unintentional; and (4) double his own honour-value if committed with malice aforethought. The sum of these was in all cases heavy; heaviest when the parties were wealthy. The amount was recoverable as a debt from the criminal to the extent of his
