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
¯ WomanÕs tie to her kin after marriage depends on the details
¤ Weaker the more official the marriage
á Chief wife vs secondary wife
á 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 É
¤ After seven years, fief becomes clientÕs 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 lordÕs 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.
¯ 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
¯ 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
á Depending on who contributes how much property and
á Whose kin do or do not assent
á And É
¤ Responsibility for them depends on how marriage occurred and status of parents
¤ Fosterage very common
á Payment to foster parents
á Up to 14-17.
á Relationship permanent. Fosterfather has claim to a share of wergeld, obligations to revenge
¯ slaves, insane, unransomed captive, É
¯ Land either
¤ Belonged to the kin group, use divided among members
¤ Private, obtained with own money
á If money was made off kin land, large fraction of the private land eventually goes to kin when the owner dies
á If made off oneÕs skills, a smaller fraction but still some
á 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
¤ 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 oneÕs 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 freemanÕs house and environs, killing or injuring anyone there is violation of protection (like violating the kingÕs 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
á Son can void fatherÕs sale if it reduces ability his to support son
á Woman can donate property she produced to the church--but not if it leaves her relatives obliged to pay her debts.
á Husband or wife can void some contracts by the other, depending on subject of contract and nature of relationship
á 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
¤ Rath surety guarantees someone elseÕs contractual performance--can do so up to his own honor price
á If principal defaults, Rath must give a pledge and, eventually, pay
á He then has a claim to be more than reimbursed by his principal.
á 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
á including by violence; owes his own honor price if he fails.
á Possibly one Naidm for principal, one for Rath?
¤ Hostage surety
á Pledges to surrender himself if the principal defaults
á Prisoner for ten days, during which can be redeemed by principal paying
á After he is a captive, must ransome himself (7 cumhal)
á 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)
¤ Almost all crimes can be attoned for by payment--as in Iceland
¤ If the defendant cannot or will not pay É
á Someone else can pay for him
á Or he can be sold into slavery
á Or killed
¤ Setting adrift
á Typically, but not always, for a woman (because reluctant to kill?)
á A woman who commits murder or arson or breaks into a church
á Set adrift in an offshore wind with one paddle and a vessel of gruel
á Judgement is left to God
á One source gives this as the punishment for kin-slaying (by a man, presumably)
á Means deprivation of legal rights
á For a variety of crimes
á Must be proclaimed first
á And may be ended if he can atone for his offense.
The remaining chapters are on law texts and law schools.