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

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

    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.

    Some land held in common by kin group

    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

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

    Some ability to cancel contracts by other members of the group

    One representative chosen by the kin to act for them

v   Maternal vs paternal kin

    Womans 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

    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.

    Lord advances fief

      Land or

      Cows or

     

    client owes obligations

      food rent

      military service

      labor service

     

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

    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 clients on death of lord

    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 lords heirs on his death

    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

    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:

    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

    Other lawyers perhaps live on fees from arbitrating disputes?

    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

    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

    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

    slaves, insane, unransomed captive,

v   Property

    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 ones 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.

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

v   Killing or wounding

    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

    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

    Satire

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

      Justified is a legitimate way of punishing someone who deserves it

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

    Violation of protection tortious

      Can give protection, depending on ones 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 freemans house and environs, killing or injuring anyone there is violation of protection (like violating the kings peace? Anglo-Saxon law)

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

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

    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.

    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!

    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 fathers 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

    Most contracts are unenforceable if there are no sureties.

    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

    Sureties

      Rath surety guarantees someone elses 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.

    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.

    Distraint and Legal Entry (You will read this chapter)

    Procedure (You will read this chapter)

    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.