By the “Brehon” law or custom, every crime, however enormous, was punished, not with death, but by a fine or pecuniary mulct, which was levied upon the criminal. Murder itself, as among all the ancient barbarous nations, was atoned for in this manner; and each man, according to his rank, had a different rate or value affixed to him, which if any one were willing to pay, he needed not fear assassinating his enemy. This rate was called his “eric.” When Sir William Fitzwilliams, being lord deputy, told Maguire, that he was to send a sheriff into Fermannah, which a little before had been made a county, and subjected to the English law; “Your sheriff,” said Maguire, “shall be welcome to me: but let me know, beforehand, his eric, or the price of his head, that, if my people cut it off, I may levy the money upon the county.”[*] As for oppression, extortion, and other trespasses, so little were they regarded, that no penalty was affixed to them, and no redress for such offences could ever be obtained.
The customs of “gavelkinde” and “tanistry” were attended with the same absurdity in the distribution of property.
1612.
The land, by the custom of gavelkinde, was divided among all the males of the sept, or family, both bastard and legitimate: and, after partition made if any of the sept died, his portion was not shared out among his sons, but the chieftain, at his discretion, made a new partition of all the lands belonging to that sept, and gave every one his share.[**] As no man, by reason of this custom, enjoyed the fixed property of any land; to build, to plant, to enclose, to cultivate, to improve, would have been so much lost labor.
The chieftains and the tanists, though drawn from the principal families, were not hereditary, but were established by election, or, more properly speaking, by force and violence. Their authority was almost absolute; and, notwithstanding that certain lands were assigned to the office, its chief profit resulted from exactions, dues, assessments, for which there was no fixed law, and which were levied at pleasure.[***]
* Sir John Davis, p. 166.
** Sir John Davis, p. 167
*** Sir John Davis, p. 173
Hence arose that common by-word among the Irish, “That they dwelt westward of the law which dwelt beyond the river of the Barrow;” meaning the country where the English inhabited, and which extended not beyond the compass of twenty miles, lying in the neighborhood of Dublin.[*]
After abolishing these Irish customs, and substituting English law in their place, James, having taken all the natives under his protection, and declared them free citizens, proceeded to govern them by a regular administration, military at well as civil.
A small army was maintained, its discipline inspected, and its pay transmitted from England, in order to keep the soldiers from preying upon the country, as had been usual in former reigns. When Odoghartie raised an insurrection, a reënforcement was sent over, and the flames of that rebellion were immediately extinguished.
All minds being first quieted by a general indemnity,[**] circuits were established, justice administered, oppression banished, and crimes and disorders of every kind severely punished.[***] As the Irish had been universally engaged in the rebellion against Elizabeth, a resignation of all the rights which had been formerly granted them to separate jurisdictions, was rigorously exacted; and no authority, but that of the king and the law, was permitted throughout the kingdom.[****]