‘I have heard no reason, so far, to change my mind either in this specific case or in terms of the wider philosophy of punishment,’ the abbess bristled.
‘Have my arguments not moved you to reconsider the effectiveness of the implementation of compensation and rehabilitation on society rather than the imposition of fear to create a moral society?’
‘We want to create an obedient society,’ snapped Abbess Fainder. ‘No, I am not moved at all. If a child steals, then the child is punished and fear of punishment creates obedience.’
Coba made a final, desperate attempt to demonstrate his philosophy.
‘Let us use that child analogy. How many have said that their child steals? “We have told the child that it is wicked to steal and we have beat him or her for stealing. Yet still they steal. Why is this?” The answer depends on the individual child. Some are cowed into submission by punishment or the threat of punishment, but not all. Indeed, punishment of a physical nature often leads to a strengthening of resolve for vengeance on the figure of authority or the society that the figure represents. It can lead to increasing violence instead of preventing it.’
‘Doing nothing at all increases that violence,’ sneered the Abbess. ‘You are an old and foolish man, Coba.’
‘What our law seeks to do is to solve the problems of the attitude of wrongdoers. The best corrective measure is to make the child understand that stealing involves pain to someone, by taking away something belonging to the child every time they commit a theft. Most children respond to this rather than to a smack or physical pain. Thus we have a law system by which the naughty child can learn. If they have any capacity for sympathy, then they realise the pain they have inflicted and further, they may be led into changing their ways.’
‘I cannot stand here arguing this nonsense, Coba. Your laws and their punishments have failed otherwise we would now live in a society free from all crime.’
Fidelma felt a strong desire to enter the argument again.
‘Every breach of law is effectively an injury to another, and if a man is brought to the realisation of that injury then his soul is saved; when he has been so rehabilitated he may go on to lead a worthwhile life. Thus the law is a work of moral education by being a curative punishment, as well as a compensatory and preventative punishment.’
Coba nodded in approval at her explanation.
Abbess Fainder turned to them both with an expression of cynicism.
‘You will not persuade me to change my mind. The Saxon has been judged and tomorrow he will hang for the crime he has committed. Now let us go and greet the King.’
Chapter Eight
It was late evening when the appeal court finally assembled in the great hall of the fortress of Fianamail of Laigin. It had taken some insistence on Fidelma’s part to force Fianamail and his Brehon, Bishop Forbassach, to agree to the hearing during their meeting in the chapel of the abbey. Bishop Forbassach and Abbess Fainder argued strongly against any such hearing but Fidelma pointed out that the young King had given his word that if Fidelma could discover legal objections to the conduct of the trial apart from objections to punishment under the Penitentials then he would order a consideration of those objections. Bishop Forbassach immediately demanded to know what the objections were but Fidelma pointed out that the arguments could not be revealed unless it was done during a formal hearing.
It was with reluctance that Fianamail realised that he would have to abide by his promise. Clearly, the abbey was no place to hold the appeal as several scribes and officials needed to be summoned to attend. The great hall of the fortress was deemed the only suitable place at such short notice.
The hall was lit by flickering torches, balanced in their iron holders on the walls, and warmed by a central fire. Fianamail took the central position on a dais in his carved oak chair of office. At his right side sat Bishop Forbassach, Brehon of Laigin.
Abbess Fainder was in attendance and, as her support, she had brought her rechtaire Sister Étromma and, strangely – or so Fidelma thought – the villainous-looking Brother Cett. Brother Miach accompanied them. There were several religious, scribes and some of the King’s household and warriors including Mel. Seated among the others, Fidelma had spotted Coba, the local chieftain, who was so against the introduction of the Penitentials. Dego and Enda sat at the rear of the chamber to watch the proceedings.
It was not a true court of law in the sense that in an appeal to stay a sentence, the defendant did not have to be present, there was no prosecutor, nor were witnesses usually called. The arguments to stay the sentence rested on the ability of the dálaigh to raise questions about the procedures of evidence heard at the previous trial or even present questions on the inappropriate severity of the sentence.
Fidelma had taken a seat before the dais. A stillness descended when Bishop Forbassach rose and called the assembly to order.
‘We are here to hear the plea of the dálaigh from Cashel. Proceed,’ he instructed Fidelma before he resumed his seat.
Fidelma rose reluctantly to her feet. She had been growing puzzled at the sight of Forbassach apparently about to moderate over the court.
‘Am I to understand that you are presiding at this hearing, Forbassach?’ she demanded.
Bishop Forbassach stared coldly at his old antagonist. He was a man with an unforgiving nature and she sensed his enjoyment at her confusion.
‘That is an odd opening for your plea, Fidelma. Do I need to answer such a question?’
‘The fact that you presided over Brother Eadulf’s trial must surely exclude you from sitting in judgment on your own conduct of that trial.’
‘Who has a greater legal authority in this kingdom than Bishop Forbassach?’ intervened Fianamail irritably. ‘A lesser judge has no authority to pronounce criticism of him. You should know that.’
Fidelma had to admit that this was true and a matter she had overlooked. Only a judge of higher or equal rank could overturn a judgment made by another. Yet for Forbassach to judge this matter would clearly be a further injustice.
‘I had hoped that Forbassach might have sought the advice of other judges. I see only Forbassach sitting here and not even a qualified dálaigh to adjudicate the evidence with him. How can a judge be judge of their own judgments?’
‘I shall note your objections, Fidelma, if you wish to register them.’ Bishop Forbassach’s smile was triumphal. ‘However, as Brehon of Laigin I acknowledge no other person to have authority to preside in this court. Should I remove myself it could be argued that I was admitting that I have been guilty of prejudice in this matter. Such objections from you are overruled. Now I will hear your appeal.’
Fidelma’s mouth compressed and she glanced across to where Dego was sitting, a bemused spectator. He caught her eye and grimaced, a small gesture of support. She realised now the bias against her even before she began her plea. There was nothing else to do but proceed as best she could.
‘Brehon of Laigin, I wish to make a formal appeal to you to postpone the execution of the Saxon, Brother Eadulf, until such time as a proper enquiry and a new trial can be arranged.’
Forbassach continued to regard her with an unchanging sour expression. Fidelma found his attitude almost contemptuous.
‘An appeal must be backed by the weight of evidence of irregularities of the first trial, Fidelma of Cashel,’ Forbassach acknowledged dryly. ‘What are the reasons for your appeal?’
‘There are several irregularities in the presentation of evidence at the trial.’
Forbassach’s disagreeable expression seem to deepen.
‘Irregularities? Doubtless you are suggesting that such irregularities are due to the fact that I, who presided at that trial, am responsible for them?’
‘I am well aware that you presided at the trial, Forbassach. I have already made my objection known to your judging your own conduct.’
‘So what are you charging me with? What exactly?’ His voice was cold and menacing.
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��I am not charging you with anything, Forbassach. You know enough of the law not to misinterpret my words,’ snapped Fidelma. ‘An appeal is merely to lay facts before the court and put forward questions, the answers are left to the court to pursue.’
Bishop Forbassach’s eyes narrowed at her barbed response.
‘Let me hear your so-called facts and you may also ask your questions, dálaigh. It cannot be said that I am not a fair man.’
Fidelma felt as if she were beating against a wall of granite and tried to gather some inner strength.
‘I appeal on the grounds of irregularities of law. I would present the following specific points.
‘Firstly, Brother Eadulf was a messenger between King Colgú of Cashel and the Archbishop Theodore of Canterbury. He had the protection and privilege of the rank that entails. This rank was not taken into account during the proceedings. He carried a written letter and the white wand of an ollamh, a messenger who had immunity from legal proceedings.’
‘A white wand of office? A message?’ Bishop Forbassach sounded amused. ‘They were not presented in evidence.’
‘Brother Eadulf was not allowed the opportunity. I present them now …’ Fidelma turned to pick up the objects from the bench on which she had placed them. She held them out for examination.
‘Retrospective evidence is no evidence,’ Bishop Forbassach smiled. ‘Your evidence is inadmissible. Bringing such items with you from Cashel …’
‘I found them in the guests’ hostel of the abbey where Brother Eadulf had left them,’ Fidelma retorted, angry at Forbassach’s attempt to dismiss them.
‘How are we to know that?’
‘Because Sister Étromma was with me when I found them in the mattress of the bed which she identified as that which Brother Eadulf had used.’
Bishop Forbassach turned his gaze to where Sister Étromma was sitting.
‘Stand forward, Sister. Is this true?’
Sister Étromma was clearly nervous of Bishop Forbassach and also cast a frightened glance towards the abbess as she stood up.
‘I accompanied the Sister into the guests’ hostel and she bent over the mattress and then produced those items.’
‘Did you see her actually find the items?’ pressed the Brehon.
‘She had her back towards me and turned from the bed to show me.’
‘Then she may well have been carrying the items on her person and only pretended to find them?’ suggested Bishop Forbassach with a note of satisfaction. ‘The evidence cannot be submitted.’
Fidelma was outraged.
‘I protest! As a dálaigh, I am sworn to uphold the law and your insinuation besmirches my honour!’
‘As a Brehon, I have also sworn the same oath and yet you dare question my judgments!’ snapped Forbassach. ‘What is sauce for the goose will also be sauce for the gander. Continue with your case.’
Fidelma swallowed hard, trying to keep control of her emotions. Losing her temper would benefit no one, least of all Eadulf.
‘Secondly, Brother Eadulf was awaken from his sleep, assaulted and taken to a cell without being told of what he had been accused. He was kept in the cell for two days without food or water. It was only when Forbassach came and told him the nature of the crime of which he was accused that he knew why he was being detained. No advocate, no dálaigh, was appointed in his defence, neither was he allowed to question the evidence. He was asked only to admit his guilt.’
‘If he had been innocent, he could have presented his evidence,’ grumbled Bishop Forbassach. ‘All of what you say, anyway, is merely based on the word of the Saxon. These claims are denied. Proceed.’
Fidelma went on stubbornly.
‘Then let us refer to the irregularities of the witness statements. Sister Étromma came forward to identify the dead girl. How could she identify her when she had never seen her before she was confronted by her dead body? She had been told that she was a novitiate in the abbey. Yet she did not know that fact at first hand.’
‘The mistress of the novitiates told her.’
‘She had already left on a pilgrimage. Even if she had, you know the law, Forbassach. She did not know the girl from her own personal experience. Étromma’s evidence was not valid according to the rules of the court.’
‘That is a matter for the judge,’ replied Bishop Forbassach tightly. ‘I judged that the matter of identification was not important; so long as the girl was identified it does not matter by whom.’
‘We are talking of rules of law,’ Fidelma responded. ‘But let us continue to the next witness – the physician, Brother Miach, who examined the body. He swore that the girl had been forcibly raped. True, she was a virgin who had had intercourse just before her death. That much, as a physician, he should have told us. But our physician brings opinion into his evidence and his opinion was that the girl had been raped. Now, I am not saying that she wasn’t, just that an opinion is not evidence and should not have been accepted as such. The evidence does not indicate beyond question the type of intercourse which happened before the girl’s death. Was it the crime of focloir or sleth; forcible rape, or rape by persuasion? This should have been pointed out and considered.
‘Now comes the evidence of Sister Fial who is the key witness … an eye-witness. She says that she is a friend of the dead girl. They became novitiates in the abbey at the same time. They were both under the age of choice. Sister Fial says that she had made an arrangement to meet the dead girl on the quay outside the abbey at a time which must have been well after midnight. No one has asked why at the trial, or for what purpose. Is it not strange that twelve- or thirteen-year-old novitiates are wandering outside the abbey at such an hour? Are these important questions dealt with? No, they are not.
‘Next, Fial says that in the darkness, down on the quay, she sees a man attacking and strangling her friend. She must have walked within a metre of where the attack was happening. What does she do in response to the sight? She simply stands by the bales and watches while her friend is assaulted and strangled. She sees the man running back to the abbey and entering it. All in the dark. She stands undecided what to do – how long, we are not told. We cannot even ask her because Sister Fial seems to have disappeared from the abbey. She stands, making no attempt to go to her friend. The abbess comes along and still she continues to remain in the silent shadows while Mel examines the body. It is a long time before she emerges to tell her story.’
She paused; a total silence had descended.
‘Then we have the evidence of Mel, the captain of the watch, who, coming to the quay, sees the figure of the abbess, Abbess Fainder, on horseback looking down at the body. Yet at no time was the abbess called to give evidence as to her role in this business. She points the body out to Mel. It is Mel and his comrade, Daig, who take charge and are eventually told by the girl, Fial, our missing witness, that she identifies the attacker as the Saxon monk staying at the abbey.
‘Eadulf is found in bed. He conveniently has a piece of the murdered girl’s bloodstained robe in the bed with him, making no attempt to hide it.’
Forbassach grinned dourly.
‘I think you have scuppered your own arguments, dálaigh. The evidence shows clearly that the Saxon was in bed with such bloodstained clothing as demonstrates beyond question that he was the guilty party.’
‘I believe that the irregularities outweigh that evidence and those irregularities must be clarified before the matters of the bloodstains can be taken into account. I have already dealt with the circumstances of his detention which are, I say again, not in accordance with the law. He is detained in the abbey. We know the results. What is not known is how our missing witness, Fial, identified the Saxon Brother. Indeed, how does she know that he was a Saxon Brother when Brother Eadulf has said that at no time did he lay eyes on the girl when he came to the abbey. He spoke to very few people – the abbess, Sister Étromma and a Brother called Ibar. Only they knew him to be a Saxon for he speaks excellent Irish. No one asked the girl
how she could recognise the Saxon in the darkness. There are too many questions that have not been asked in this case, let alone answered.’
Fidelma paused for a moment, as if taking breath.
‘On these grounds, Brehon of Laigin, I appeal directly to you with the request that the sentence on Brother Eadulf be suspended until such time as a proper impartial investigation has been made and a fair and just trial be held.’
Bishop Forbassach waited for a moment, as if giving her a chance to continue, and then he asked sharply: ‘Do you have any further arguments to put before me, dálaigh of Cashel?’
Fidelma shook her head. ‘Given the time that I was allowed, that is all I can bring forward at the moment. I think it is enough for a stay of the execution for a few weeks at least.’
Bishop Forbassach turned and held a hurried whispered conversation with Fianamail. Fidelma waited patiently. The bishop turned back to her.
‘I will make the decision known in the morning. However,’ he glanced sourly at Fianamail, ‘if the decision were mine alone I would say it fails.’
Fidelma, usually so self-controlled, took a step backward as if someone had pushed her in the chest. If she admitted the truth to herself, she had realised from the outset that Bishop Forbassach had decided to protect his initial judgment and sentence. However, she had hoped that he might delay the execution for a few days for the sake of appearances. It appeared that Fianamail was more conscious of keeping to the façade of justice than Forbassach. Fidelma was not prepared for such a blatant demonstration of injustice.
‘Why do you say that you would fail my appeal, Forbassach?’ she asked, after she had recovered her voice. ‘I am interested to know the argument. Would the learned judge tell me on what grounds he is dismissing this appeal?’
Her tone was quiet, subdued.
Bishop Forbassach misinterpreted the timbre as an acknowledgment of defeat. There was something of triumph in his expression.
‘I told you that the decision will be announced tomorrow. However, firstly, I was the judge at the trial of the Saxon. I say that he was accorded every respect and facility. He says that this was not so. You have his word, that of a stranger to this land, against mine. I speak as the Brehon of Laigin. There is little doubt whose word should be taken.’
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