SECTION II.

Criminal Law (1)

T is commonly said that no distinction existed in the Irish laws between civil and criminal liability. A distinction did exist, but it was not the same as that in English jurisprudence. The common punishment of all sorts of crimes and all sorts of civil wrongs was indeed a fine, varying in amount according to the nature of the act, to be levied on the property of the offender like a civil debt. All proceedings, whether for a crime, a tort, or a breach of contract, were identical in origin and prosecuted by the same persons and generally in the same manner. The State did not prosecute, but left individuals to prosecute in criminal as well as to sue in civil cases. The law did not set up crime as a species of liability

distinct from civil wrong. Still there were important points in which criminal differed from civil liability. It differed first in the moral nature of the act by which it was incurred; and this was a legal difference so far as the law enforced it. There is here a confusing of law with morality, which some English legal authorities are at such pains to keep asunder or in antagonism. Theirs is trouble ill-bestowed, and vainly, because its object is unnatural. Until human nature itself is changed law and morality will, in spite of lawyers' theories, be in fact and be generally considered closely related. And it can hardly be denied that wilful civil wrong is oftentimes the medium of base moral crime. Another difference, sometimes of importance, was, that, in civil cases the defendant frequently had the right of choosing the judge. This arose from any one of certain causes. For example, if the plaintiff distrained as the first step in an action, as he might do when his claim was for a liquidated amount, the defendant was driven to the necessity of either submitting to the distress or taking the case before a brehon. Criminal cases, the amount obtainable not being liquidated, had to be submitted to a brehon in the first instance, and hence the person against whom a crime had as a fact been committed chose the brehon. Then the subsequent effects upon status and legal competence were entirely different.

Persons against whom crimes had been committed, or if they had been killed their immediate relatives, were left to sue out redress, just as in civil cases, by summoning the offender to appear before a brehon, who heard the case and assessed, according to the principles of law and justice, the amount of fine that should be paid as compensation; and then, if the defendant did not pay immediately, by levying a distress on his goods. There were no prisons, except in communities to which small islands or other natural prisons belonged, and there were hardly any public servants who could correctly be called police or detectives. The people were their own police, and their activity in that character was spurred and sharpened by the knowledge that a sept had to pay for a secret crime committed in the part of the territory assigned to it, unless it were shown that the crime had been committed by an outsider. This liability of the sept continued so long as the criminal lived, whether his crime was one against person or gainst property. But on his death happening, whether as punishment for the crime or from natural causes, a difference arose. If the crime was purely personal, the liability of the sept was at an end, for "the crime dies with the criminal; "but if it had caused damage or loss of property, the sept still remained liable for this net loss. Every clan and every clansman had a direct monetary interest in the suppression and prevention of crime. The higher motives by which Irishmen were undoubtedly actuated were, however, far more effectual.

The whole public feeling of the community was entirely in support of the law—a signal proof of its suitability. Evasion of law and concealment of lawbreakers, which alien laws afterwards made so popular in Ireland, were then little known. Both in popular estimation and in fact the honour and the interests of all, of community and individual, were involved in the maintenance of the law. Law supported by public opinion, powerful because so inspired, powerful because unanimous, was difficult to evade or resist, though there were no men in livery to enforce it. It so strongly armed an injured person, and so utterly paralysed an offender, that an escape from justice was hardly possible. The only way in which it was possible was by running away, leaving all one's property behind him, and sinking into slavery in a strange place; and this in effect was a severe punishment rather than an escape. So long as an offender had property, the motive for flight was not so strong as it is with a criminal of the present day; for the brehons do not appear to have taken on themselves to pronounce the death sentence at all, but only the amount of compensation. In some cases of a criminal caught in the act, the person against whom he was offending had a right to fetter him and detain him wherever he pleased until judgment was pronounced and satisfied.

If a criminal did abscond without paying the penalty of his crimes, any property he left behind him was applied to the payment of it pro tanto. If not fully satisfied, the liability for the remainder fell first upon the criminal's immediate relatives who were entitled to inherit his property. If not satisfied by them, it extended throughout the fine and the sept even to the clan if necessary. The only way in which the immediate relatives, being able to pay, could escape liability was by giving up the offender to the injured family. The right to recover and the liabilty to pay were alike based on the rules of kinship explained in connection with the clan system.