Imprisonment, among the Irish at the period of these laws, does not appear as detention in a common gaol, but as a personal fettering of the culprit ; and some of their subtlest distinctions concern the liability of the person bound to provide the fetters, in case of the culprit s escape. It has been suggested with much appearance of reason, that refinements of this kind, inter apices juris, with which the Brehon law abounds, are rather exercises of the writer s ingenuity in framing suppositional cases illustrating classes of abstract rules than evidences of any actual application of law to the particular subjects. Such are the law of the measure of damages for injuries by bees, by cats, by the hunting hound, by traps for game, &c., all which are elaborated to a pedantic nicety. Of the courts in which these laws were administered we have but an imperfect view. The primary local tribunal was a qiiasi court baron, called the Airecht, composed of freemen of a certain status. The inferior classes were ecoma airecJda, that is, "impares curias." The office of Brehon in the court is very obscurely indicated. The stays and imparlances (anad, esain, ditkirn), &c., incident to the process of bringing causes to final judgment, and the fact that damages were, in all cases of ordinary occurrence, assessed beforehand by specific rule, gave repeated opportunities for settling out of doors. There were professional advocates and means of carrying the case to courts of higher jurisdiction, but how these were consti tuted does not appear ; but mention is made of several gradations from the airecht urnaidh (sheriff s tourns ?) to the cul-airecht, or ulterior court, which indicates some resort by way of appeal. Their rules of evidence, in addi tion to the testimony of the eye, admitted, in questions of title to land, that of the ear, cluais, or general report, and laidh (cantus) or history in the form of a poem publicly recited (a remarkable example of practical functions be longing to the office of a bard) as well as the evidence of landmarks or mearing stones. These, it seems (O Curry, 2d series, Sullivan, Introd., clxxxvii.), should be sunk under the surface, as Martin in his account of the Western Isles of Scotland (p. 114) has described:—
" They preserve their boundaries from being liable to any debates by their successors, thus. They lay a quantity of the ashes of burnt wood in the ground, and put big stones above the same ; and for carrying the knowledge of this to posterity, they carry some boys from both villages next the boundary and then whip em soundly and tell it to their children. A debate having arisen between the villages of Ose and Groban in Skye, they found ashes as above men tioned under a stone, which decided the controversy."
This gives countenance to the tradition that, prior to the
reign of Aed Slaine in the 7th century, there were no
fences in the country, but all was open save the walls and
mounds surrounding dwellings. It is difficult to accept
this statement unreservedly, partly on account of the habit
of assigning fabulous origins indulged by all archaic, and
notably so by the Irish writers, but chiefly because the
Brehon code comprises a very full law of fences. The
materials, dimensions, and several sorts of quick-setting of
these are laid down with great particularity, and the rights
and liabilities of adjoining owners are minutely described.
Returning to the subject of judicial administration, we have
a much clearer view given of the nature and incidents of
process by which the jurisdiction of the court was made to
attach, than of the constitution of the court itself. This
was by distress, or the seizure of the goods of the defendant,
in some cases immediate, in others preceded by summons,
and, in the case of the privileged classes, by trosgad or
fasting on the part of the plaintiff, a practice still known
in some parts of India, and much relied on as an evidence
of common Aryan origin for the ancient Irish and present
Hindu legal systems. The distress might either remain
in the hands of the defendant, if of the superior grade, by
way of attachment (fornasc), subject to a lien, on security
for his appearing and abiding the award of the court, or it
might at once be driven to a pound (fonts). Here it was
kept during a certain time or " stay " (anad), varying with
the nature of the complaint, during which the defendant
might have it back on like security. Tailing this, a process
of forfeiture (lobad) commenced, and ultimately the dis
tress, or so much of it as sufficed to satisfy the claim, vested
in the plaintiff, the defendant receiving back the balance, if
any. On security being given, the merits of the dispute
were determined by the court. A proceeding analogous to
the action of replevin was thus incidental to every litiga
tion ; and this appears to have been the early course of
the common law in all the local courts, not proceeding on
the king s wiits, both of England and Scotland, down to
the times of Bracton (fo. 156. 2, Reeves s Hist. Ewj. Lau ,
59), and of the enactment " Quoniam attachiameuta "
(Leges Bar. Scot., i. and cxi.). One of the few cases cited
in the Brehon law (vol. i. p. 65) states the procedure in
what was substantially an inter-tribal action of ejectment
for recovery of land, in the incidents of which a resem
blance is found to many principles of jurisprudence and
methods of procedure of the common law of England, such
as prescription, limitation, set-off, entry, ouster, distress,
rescue, fresh pursuit, withernam, replevin, surety in replevin,
avowry, Welsh mortgage, writ of possession, and return of
distress. The case was this:—
Land had been assigned by way of Welsh mortgage in part pay ment of a mulct or fine. The mortgagee and his descendants re mained in possession until it became a question whether the law of prescription (ntdrad) had not given them the absolute estate. To try the title, a bailiff of the claimant tribe put his horses on the land. The bailiff of the tribe in possession drove them off, ac companying the act with an admission that formerly the claimant tribe had been in possession. The claimant s bailiff then distrained three cows of the occupier s bailiff outside his cattle shed, and drove them to the border of the territory, where they lay down. It would have been his duty here to give public notification of his proceed ings, and to have driven his distress to the nearest pound of the external territory ; but the cows, not having been milked, escaped, and returned to their calves, which had been left behind. The distrainer, making fresh pursuit by the traces of the milk dropped on the ground (regarded probably as a constructive keeping in view), recaptured them at daybreak at the homestead of the owner, and, with them, in addition, distrained and impounded three [six <J others, taken from [out of] the door of the cattle-shed, by way of aithcracli gabail, or second caption, to double the amount for what seems to have been considered a constructive rescue implied by the escaped beasts being again in the owner s custody. Notwithstand ing these facts, the regularity of the proceeding was admitted by the tribe in possession, whose rcgulus now came forward and had back the distress, on giving pledges to try the question at law, and to return the cattle if unsuccessful. Further security was also given by him for some other liability. The action which, so far, was in the nature of replevin, now assumed the character of eject ment, and the personal wrong of ousting the bailiff who had made the entry merged in the question of title to the possession of the land. It was held that the period of prescription, being the time of three successions to the kingship, had not expired, one of the successions being irregular. The land was, therefore, still redeem able, and, on taking an account and setting off the receipts, includ ing a mulct of less amount due by the mortgagee, against the origi nal balance due to him, it was found he had been fully paid, and a return of the cattle was awarded, and possession of the lands de livered to the claimant. (See "On the Rudiments of the Common Law discoverable in the published portion of the Scnclius Mor," in Trans. Roy. Irish Academy, vol. xxiv. p. 83, 1867.)
of Marlbridge (52 Henry III. c. 4) in England, forbidding the driving of distresses beyond the bounds of the county, and of the " Regiam Majestatem " (re-enacted by 1 Robert, i. c. 7) in Scotland, requiring that when driven beyond tho bounds of the territory the distress shall be exhibited before witnesses, are to be regarded not as merely intro- ductive enactments, but as substantially declaratory of the previous state of the common law ; further, that the old
opinion that " all administration of justice was at firat in