The uncultivable, unreclaimed forest, mountain, and bog-land was common property in the wider sense that there was no several appropriation of it even temporarily by individuals. It was used promiscuously by the clansmen for grazing stock, procuring fuel, pursuing game, or any other advantage yielded by it in its natural state.
Kings and flaiths were great stock-owners, and were allowed to let for short terms portions of their official lands. What they more usually let to clansmen was cattle to graze either on private land or on a specified part of the official land, not measured, but calculated according to the number of beasts it was able to support. A flaith whose stock for letting ran short hired some from a king and sublet them to his own people. A féine, aithech, or ceile (kailyeh), as a farmer was generally called, might hire stock in one of two distinct ways: saer—"free", which was regulated by the law, left his status unimpaired, could not be terminated arbitrarily or unjustly, under which he paid one-third of the value of the stock yearly for seven years, at the end of which time what remained of the stock became his property, and in any dispute relating to which he was competent to sue or defend even though the flaith gave evidence; or daer—"bond", which was matter of bargain and not of law, was subject to onerous conditions and contingencies, including maintenance of kings, flaiths, or brehons, with their retinues, on visitations, of disbanded soldiers, etc., under which the stock always remained the property of the flaith, regarding which the ceile could not give evidence against that of the flaith, which degraded the ceile and his fine and impaired their status; a bargain therefore which could not be entered into without the sanction of the fine. This prohibition was rendered operative by the legal provision that in case of default the flaith could not recover from the fine unless their consent had been obtained. The letting of stock, especially of daer-stock, increased the flaith's power as a lender over borrowers, subject, however, to the check that his rank and eineachlann depended on the number of independent clansmen in his district.
Though workers in precious metals, as their ornaments show, the ancient Irish did not coin or use money. Sales were by barter. All payments, tribute, rent, fulfilment of contract, fine, damages, wages, or however else arising, were made in kind—horses, cows, store cattle, sheep, pigs, corn, meal, malt, bacon, salt beef, geese, butter, honey, wool, flax, yarn, cloth, dye-plants, leather, manufactured articles of use or ornament, gold, and silver—whatever one party could spare and the other find a use for.
Tributes and rent, being alike paid in kind and to the same person, were easily confused. This tempted the flaith, as the system relaxed, to extend his official power in the direction of ownership; but never to the extent of enabling him to evict a clansman. For a crime a clansman might be expelled from clan and territory; but, apart from crime, the idea of eviction from one's homestead was inconceivable. Not even when a daer-ceile, or "unfree peasant", failed to make the stipulated payments could the flaith do more than sue as for any other debt; and, if successful, he was bound, in seizing, to leave the family food-material and implements necessary for living and recovering.
LAW OF DISTRAINING. Athgabail (ăh-gowil) = "distress", was the universal legal mode of obtaining anything due, or justice or redress in any matter, whether civil or criminal, contract or tort. Every command or prohibition of the law, if not obeyed, was enforced by athgabail. The brehons reduced all liabilities of whatsoever origin to material value to be recovered by this means. Hence its great importance, the vast amount of space devoted to it in the laws, and the fact that the law of distress deals incidentally with every other branch of law and reveals best the customs, habits, and character of the people. A claimant in a civil case might either summon his debtor before a brehon, get a judgment, and seize the amount adjudged, or, by distraining first at his own risk, force the defendant either to pay or stop the seizure by submitting the matter in dispute to trial before a brehon, whom he then could choose. There was no officer corresponding to a sheriff to distrain and realize the amount adjudged; the person entitled had to do it himself, accompanied by a law-agent and witnesses, after, in "distress with time", elaborate notices at intervals of time sufficient to allow the defendant to consider his position and find means of satisfying the claim if he could. In a proper case his hands were strengthened by very explicit provisions of the law. "If a man who is sued evades justice, knowing the debt to be due of him, double the debt is payable by him." In urgent cases "immediate distress" was allowed. In either case the property seized—usually cattle—was not taken to the plaintiff's home, but put into a pound, and by similar easy stages became his property to the amount of the debt. The costs were paid out of what remained, and any ultimate remainder was returned. On a fuidir (foodyir) = serf or other unfree person resident in the territory incurring liability to a clansman, the latter might proceed against the flaith on whose land the defendant lived, or might seize immediately any property the defendant owned, and if he owned none, might seize him and make him work off the debt in slavery.
Seizure of property of a person of higher rank than the plaintiff had to be preceded by troscead (truscah) = fasting upon him. This consisted in waiting at the door of the defendant's residence without food until the debt was paid or a pledge given. The laws contained no process more strongly enforced than this. A defendant who allowed a plaintiff properly fasting to die of hunger was held by law and by public opinion guilty of murder, and completely lost his eineachlann. Both text and commentary declare that whoever refuses to cede a just demand when fasted upon shall pay double that amount. If the faster, having accepted a pledge, did not in due course receive satisfaction of his claim, he forthwith distrained, taking and keeping double the amount of the debt. The law did not allow those whom it at first respected to trifle with justice.
Troscead is believed to have been of druidical origin, and it retained throughout, even in Christian times, a sort of supernatural significance. Whoever disregarded it became an outcast and incurred risks and dangers too grave to be lightly faced. Besides being a legal process, it was resorted to as a species of elaborate prayer, or curse,—a kind of magic for achieving some difficult purpose. This mysterious character enhanced its value in a legal system deficient in executive power.
NON-CITIZENS. From what precedes it will be understood that there were in ancient Ireland from prehistoric times people not comprised in the clan organization, and therefore not enjoying its rights and advantages or entitled to any of its land, some of whom were otherwise free within certain areas, while some were serfs and some slaves. Those outsiders are conjectured to have originated in the earlier colonists subdued by the Milesians and reduced to an inferior condition. But the distinction did not wholly follow racial lines. Persons of pre-Milesian race are known to have risen to eminence, while Milesians are known to have sunk, from crime or other causes, to the lowest rank of the unfree. Here and there a daer-tuath = "bond community", of an earlier race held together down to the Middle Ages in districts in which conquest had left them and to which they were restricted. Beyond that restriction, exclusion from the clan and its power, some peculiarities of dialect, dress, and manners, and a tradition of inferiority such as still exists in certain parishes, they were not molested, provided they paid tribute, which may have been heavy.
There were also bothachs = cottiers, and sen-cleithes = old adherents of a flaith, accustomed to serve him and obtain benefits from him. If they had resided in the territory for three generations, and been industrious, thrifty, and orderly, on a few of them joining their property together to the number of one hundred head of cattle, they could emancipate themselves by appointing a flaithfine and getting admitted to the clan. Till this was done, they could neither sue nor defend nor inherit, and the flaith was answerable for their conduct.
There being no prisons or convict settlements, any person of whatever race convicted of grave crime, or of cowardice on the field of battle, and unable to pay the fines imposed, captives taken in foreign wars, fugitives from other clans, and tramps, fell into the lowest ranks of the fuidre—"serfs." It was as a captive that Saint Patrick was brought in his youth to Ireland. The law allowed, rather than entitled, a flaith to keep unfree people for servile occupations and the performance of unskilled labor for the public benefit. In reality they worked for his personal profit, oftentimes at the expense of the clan. They lived on his land, and he was responsible for their conduct. By analogy, the distinctions saer and daer were recognized among them, according to origin, character, and means. Where these elements continued to be favorable for three generations, progress upward was made; and ultimately a number of them could club together, appoint a flaithfine, and apply to be admitted to the clan.