Page:Encyclopædia Britannica, Ninth Edition, v. 4.djvu/298

254 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, &quot;impares curias.&quot; 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:—

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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 &quot; stay &quot; (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 &quot; Quoniam attachiameuta &quot; (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:—

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It appears from this that the provisions of the statute of Marlbridge (52 Henry III. c. 4) in England, forbidding the driving of distresses beyond the bounds of the county, and of the &quot; Regiam Majestatem &quot; (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 &quot; all administration of justice was at firat in 