I. THE ERIC FINE OF THE BREHON LAWS.

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.

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:

—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:

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.

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.

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):—

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:—

The geil fine {father;
son;
grandson;
brother.
derb fine {grandfather;
paternal uncle;
nephew;
first cousin.
iar fine {great-grandfather;
great-uncle;
great-nephew;
second cousin.
ind fine {great-great-grandfather;
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.

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.

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]

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:—

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.