Irish Law

Source: Fergus Kelly, A Guide to Early Irish Law

Will be on reserve.

Assignment: Preface, Chapters 7 and 8.

Very brief outline of the information in the book.

v Tuath: Tribe or petty kingdom, ~150 of them, average population ~3000

v Status: Nemed (privileged), freeman, unfree

Ø Honor price is linked to status, is the wergeld if you are killed but many other things too.

Ø Affects your ability to contract, serve as surety, pledge, give an oath.

v Fine: Kin-group--descendants through the male line of the same great grandfather.

Ø Some land held in common by kin group

Ø Some common responsibility for crimes and debts of members,

§ Who must make it good to those who pay

§ On pain of expulsion

§ And loss of much of their legal rights

Ø Group has a claim to wergeld for members, obligation to pursue feud if not paid

Ø Some ability to cancel contracts by other members of the group

Ø One representative chosen by the kin to act for them

v Maternal vs paternal kin

Ø Woman’s tie to her kin after marriage depends on the details

§ Weaker the more official the marriage

· Chief wife vs secondary wife

· Married with permission of her kin vs not

§ Weaker if she has sons

§ Stronger if her husband is low status

Ø Tie to maternal kin means

§ Share of inheritance,

§ Share of wergeld,

§ Obligation to pay fines incurred by members of the maternal kin

§ control over and responsibility for children

v Lord/Client: A separate structure of mutual obligation. Lord might also be kin.

Ø Lord advances fief

§ Land or

§ Cows or

§ …

Ø client owes obligations

§ food rent

§ military service

§ labor service

§ …

Ø One man can be the client of multiple lords, with a smaller fiefs from the second, still smaller from the third..

Ø Base client. The lowest class of lord must have at least five of them

§ Terminable by the client only with a substantial penalty

§ Penalty the other way if terminated by lord. But …

§ After seven years, fief becomes client’s on death of lord

Ø Free client. Also five required for the lowest class of lord.

§ Terminable by the client with no penalty--may be equal of lord

§ Pays a higher rent than a base client

§ After 7 years he must return number of cows equal to original fief (but no rent)

§ Fief goes back to the lord’s heirs on his death

Ø Fuidir: Semi-freeman

§ Maintained by the lord, who is liable for his fines

§ Obligated to work for the lord

§ Lord received fines owed to his fuidir

§ Some fuidir may freely terminate relations, lower status ones not.

§ Fuidir apparently are men no longer in kin groups

§ After three generations the fuidir can no longer terminate the relationship.

v Briugu

Ø Rich non-lord who has lordly status--and the obligation of unlimited hospitality.

v Poets are high status (nemed), have rights outside their tuath (most other people don't), possibly play a role in the law

v Judges:

Ø Each king has an official one, who perhaps judges all disputes in the tuath?

§ Judge must post a pledge for the truth of his judgement

§ Owes damages for a false judgement.

§ Collects damages for a false charge of false judgement

Ø Other lawyers perhaps live on fees from arbitrating disputes?

Ø And others represent clients in disputes.

v Craftsmen, professionals, some have their own honor price--harper, for instance. Smith, wright.

v Servants: Honor price depends on that of their master

v People without independent legal capacity

Ø Women (with some exceptions)

§ Subject to father, husband, son, a few limited forms of independent action

§ Polygyny, range of forms of marriage

· Depending on who contributes how much property and

· Whose kin do or do not assent

· And …

Ø Children

§ Responsibility for them depends on how marriage occurred and status of parents

§ Fosterage very common

· Payment to foster parents

· Up to 14-17.

· Relationship permanent. Fosterfather has claim to a share of wergeld, obligations to revenge

Ø slaves, insane, unransomed captive, …

v Property

Ø Land either

§ Belonged to the kin group, use divided among members

§ Private, obtained with own money

· If money was made off kin land, large fraction of the private land eventually goes to kin when the owner dies

· If made off one’s skills, a smaller fraction but still some

· Can only alienate a fraction, or with permission of the king group?

§ Common waste: Anyone could hunt, gather wood, etc.

§ On the other two kinds, very limited rights of third parties, neighbors.

Ø Lost property--share of it went to finder, depending on where it was found. Compare to the Islamic.

v Killing or wounding

Ø Compensated with money like wergeld, but

§ Fixed sum for any freeman (to his kin)

§ Plus amounts to relatives depending on their honor price and relationship.

§ Secret killing doubles the fine

Ø Injust injury short of death requires sick-maintainance

§ Medical care and support

§ Including support for a suitable retinue!

§ And a substitute to do the work of the injured person

§ And additional payment if reproduction is hindered because separated from his wife

§ And fine for any injury--depending on injury and status of victim

§ And additional fine for any lasting injury--crippling, say

§ By (maybe) 700 A.D., sick maintanance was replaced by payment

Ø Satire

§ Unjustified requires payment of honor price--or perhaps praise to compensate

§ Justified is a legitimate way of punishing someone who deserves it

Ø Refusal of hospitality tortious if hospitality is owed--which depends on wealth and relationship

Ø Violation of protection tortious

§ Can give protection, depending on one’s status, to equals or inferiors for some time

§ Killing or injuring one under protection entails a fine to the protector as well as any other legal consequences

§ Permanent protection over freeman’s house and environs, killing or injuring anyone there is violation of protection (like violating the king’s peace? Anglo-Saxon law)

Ø Theft. Penalty to owner and to the person whose property it was on, related to honor price.

Ø Penalty for observing a crime and not trying to stop, if a man could stop

Ø Fine obligations die with you, as does the ability to reclaim borrowed property. There are some exceptions.

v Contracts. On many things. Secular ones are usually oral.

Ø Honor price restrictions.

§ Cannot independently contract for more than your honor price--can with kin permission?

§ Can serve as a witness or surety only up to your honor price.

§ Which means that a higher status person can "overswear" a lower status!

Ø There are limits to your ability to contract based on other obligations

§ Cannot make a contract that impinges on obligations to kin or others

· Son can void father’s sale if it reduces ability his to support son

· Woman can donate property she produced to the church--but not if it leaves her relatives obliged to pay her debts.

· Husband or wife can void some contracts by the other, depending on subject of contract and nature of relationship

· Kin group can dissolve contract that could make them liable for losses

§ Rather like Jewish law, where property gets sold subject to a lien for seller's debts

Ø Most contracts are unenforceable if there are no sureties.

Ø Pledge: Thing of value deposited to guarantee performance

§ Sometimes pledges in both directions! Working like a hostage?

§ Fore-pledge before issue arises--by beekeeper against offenses by bees

§ Or by judge in case his judgement found to be wrong.

§ Can give a pledge on behalf of someone else--and collect interest

Ø Sureties

§ Rath surety guarantees someone else’s contractual performance--can do so up to his own honor price

· If principal defaults, Rath must give a pledge and, eventually, pay

· He then has a claim to be more than reimbursed by his principal.

· If more guarantee is needed, the main surety guarantees 2/3, back surety 1/3

§ Naidm has obligation and right to force principal to fulfill contract

· including by violence; owes his own honor price if he fails.

· Possibly one Naidm for principal, one for Rath?

§ Hostage surety

· Pledges to surrender himself if the principal defaults

· Prisoner for ten days, during which can be redeemed by principal paying

· After he is a captive, must ransome himself (7 cumhal)

· In either case, principal owes him compensation after.

Ø Hostages: Held by king to guarantee allegiance

§ If authority of king flouted, hostages forfeit

§ May be executed, blinded, ransomed--for no fixed amount

§ May also be held by king, used to guarantee other contracts? Details not clear.

Ø Distraint and Legal Entry (You will read this chapter)

Ø Procedure (You will read this chapter)

Ø Punishment

§ Almost all crimes can be attoned for by payment--as in Iceland

§ If the defendant cannot or will not pay …

· Someone else can pay for him

· Or he can be sold into slavery

· Or killed

§ Setting adrift

· Typically, but not always, for a woman (because reluctant to kill?)

· A woman who commits murder or arson or breaks into a church

· Set adrift in an offshore wind with one paddle and a vessel of gruel

· Judgement is left to God

· One source gives this as the punishment for kin-slaying (by a man, presumably)

§ Outlawry.

· Means deprivation of legal rights

· For a variety of crimes

· Must be proclaimed first

· And may be ended if he can atone for his offense.

The remaining chapters are on law texts and law schools.