and elaborate nomenclature of native terms not borrowed from Roman law. This nomenclature implies an equally elaborate machinery. It was the existence of this legal system which kept out the canon law, which never, for instance, succeeded in suppressing or even modifying the marriage customs. In discussing the laws and institutions of early nations we are liable to go to one or other of two extremes: – (1) We represent the laws, &c., in terms of modern law, by which we make inchoate institutions full-grown, while the germs of a legal system are represented as a fully developed code; or (2) we deny the existence of all law and legislation. You are right I think as regards the Church; for owing to the organisation of the old Celtic Church it was perfectly acephalous. Whatever influence it did exert was individual and never official, and, therefore, not continuous – it might be described in fact as sporadic influence.’
4
‘All through the laws,’ says Dr. Sullivan, ‘there is ample evidence to prove that the tribesmen, or Aires, were bound to take stock from the Ri, or chief, only. The amount of this stock, called Saer, or free-stock, is strictly laid down, and the amount of the tribute payable for this stock, called Bestigi, or house-refection, or tribute, is also strictly laid down. But if the Ri were wealthy he might offer more stock to his Ceiles, clients or vassals, on condition of paying him certain dues, called Biatad. The stock so given was called Daer, or base-stock; and its acceptance by a tribesman made a Daer-ceilé of him, and placed him very much in the power of the Ri, or chief. No tribesman could accept Daer-stock without the consent of his Fine, or sept, which would be bound by the acts of its members. A tribesman, with the consent of his Fine, might accept Daer-stock from any Flath, or lord, in his own Tuath, or tribe. All the above applies to the tribesmen, or Aires, who alone constituted the free class. But besides the Ceiles, or clients, or free tribesmen, or Aires, there was another class, called Fuidirs. The markland of the tribe and the land held in severalty of the Ri, and the similar land of the Cendfinne, or chieftain (or captain, as he is called in the Scottish Highlands) of a sept was let out to various classes of Fuidirs. Some were Saer, or free Fuidirs, and others Daer, or base Fuidirs. The Saer-fuidirs, again, were of two sorts – broken tribesmen who went into another Tuath and got stock as well as land from a Ri, or Flath, and Saer-fuidirs who possessed some stock of their own which they grazed on land of a chief or of a Flath. Some of these free Fuidirs entered into daer, or servitude, by accepting stock under certain conditions. The Fuidir classes were the true tenants at will. The Aires were of the clan, the Fuidirs, Bottachs, or cottiers, and other servile classes, belonged to the clan. The giving and taking of Daer-stock depended upon the impoverishment of a sept through cattle murrain, the levying of blood-fines on account of the misconduct of some of its members, &c. But the whole thing was voluntary, and depended on the poverty of a sept and the wealth and ability of the Ri, or Flath.’
5
Dr. Sullivan does not think Christianity was fully established by the middle of the seventh century. ‘The Irish Church organisation,’ he says, ‘was ill calculated to influence the social habits and the political life of the people; unlike the diocesan and centralised system of the Latin Church. Hence a high spiritual life and intellectual cultivation within the numerous cœnobiums was quite compatible with practical paganism and disorder outside.’
6
‘At all times’ must be understood to refer only to those comparatively modern ages above mentioned.
7
‘The election,’ says Dr. Sullivan, ‘was always from the Geilfine, or relatives within the fifth degree. Should the Geilfine fail, or be all killed in battle, the Derbfine, or relatives from the fifth to the ninth degree, came in.’
8
‘This,’ says Dr. Sullivan, ‘is not right. There was the “joint undivided family” formed by the Bo-aire class, or freemen possessed of cattle. The poorer Flaths, or heads of septs, did not gavel their possessions, but either elected a tanist or formed a “joint undivided family.” When the property of an Aire was not sufficient to gavel, so as to qualify one or more Aires, the division of the inheritance did not take place, but the parties agreed to form a “joint undivided family.” In such a family one was head, and as such was an Aire. Bo-aires of this class, to avoid the gavelling of their property, elected a Tanist– the Tanaise Bo-aire. Poor and broken tribesmen, not having sufficient wealth to qualify them as Aires, formed a “joint-family,” or Congilda. Every Flath, or head of a sept, had a tanist also. The Irish “joint-family” was an institution of great importance and of surpassing interest in the comparative history of the Aryan family.’
9
‘This account of Davies,’ says Dr. Sullivan, ‘is entirely wrong. The law of the distribution of the property of a deceased tribesman was most carefully laid down. No doubt then as now, and naturally more frequently then than now, a chief, or head of a sept, or of a Treb (homestead) might usurp power he did not possess, and do wrong.’
10
‘Marriages in Ireland,’ says Dr. Sullivan, ‘were not regulated by canon law. The Irish marriage customs were in full force long after the Norman conquest. According to these customs, which appear to have been wholly uninfluenced by the canon law, bastardy was entirely different from what that term implied in countries under canon law, and in modern times. The Irish marriage customs should consequently be taken into account here, as they sanctioned a kind of polygamy, divorce, &c. See also the excommunication in 1282, by the Archbishop of Canterbury against Llewellyn, Prince of Wales, at the request of Edward I., in which the marriage customs of the Welsh, identical with those of the Irish, constitute one of the charges.’
11
Le Résolution des justices touchant le Irish custome de gavelkind. Reported by Sir John Davies, A.G., 3 Jac. i.
12
Dr. Sullivan believes the story of the decision against Columba to be a mere myth.
13
‘The Irish Church,’ says Dr. Sullivan, ‘had undoubtedly two distinct phases of monasticism: one that of the Patrician period – an obscure but highly important and interesting phase; the other, that of the sixth and subsequent centuries, to which the Irish missionaries belonged.’
14
‘Besides,’ says Dr. Sullivan, ‘the monastic bishop proper, who furnished the wandering Scotic bishops of the Middle Ages, there is a later development of a higher church organisation in the tribal bishop, who was a close approximation to a diocesan bishop. The tribal bishop was a bishop who had jurisdiction over the whole of a Tuath, and sometimes even a Mór Tuath. The growth of territorial jurisdiction is well marked by the prestige attached to the office – the bishop ranked in fact almost on a level with the chief, and was entitled to the same legal retinue. Many of the ancient dioceses, and some of the existing ones, e. g. Ross, Kilmacduagh, Kilfenora, represent ancient Tuaths, or tribe territories. Several deaneries were former dioceses, and are co-extensive with ancient Tuatha.
15
Dr. Sullivan warns me not to attribute too much influence to the Danish Church. ‘The tribe-bishop,’ he says, ‘was a much earlier development, and proves the growth of diocesan jurisdiction and the consequent merging of the Irish Church in the Latin Church. The acceptance of the Roman time for celebrating Easter by the Irish Church and the constant intercourse between
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