Book Review: A GUIDE TO EARLY IRISH LAW

Review submitted by: Michael McKenny

Title: A GUIDE TO EARLY IRISH LAW

Author: Fergus Kelly

Publisher: Dublin Institute For Advanced Studies

Publication Date: 1998 (1988)

ISBN: Not Given

Reviewer: Michael McKenny

There are many kinds of books of which a summary, especially one extending over a number of pages, may appear to capture much of the spirit and contents of what is being reviewed. This, however, is a handbook, a textbook that can almost be regarded as a legal code in its own right in which the details and distinctions are highly significant, and hence it is impossible to provide any comprehensive precis of what is already a quite concise presentation.

Frankly admitting that situation, here is a suggestion of what awaits one taking the necessary step of consulting the text itself.

The introduction (pp. 1-16) outlines briefly early Irish society. It quotes Binchy's characterization of this society as:

'tribal, rural, hierarchical, and familiar (using the word in its oldest sense, to mean a society in which the family, not the individual, is the unit) -- a complete contrast to the unitary, urbanised, egalitarian and individualist society of our time'. p. 3

It proceeds to examine each of these characteristics, mentioning that there were about one hundred and fifty tribes, each with a population of about three thousand, that normally, except for the learned, one did not travel outside one's tribal territory, that treaties extended legalities across some tribal borders, that it was a very rural society and the word trader is absent from the old Irish law texts, that it was inegalitarian, conscious of the principle of Roman law that all are equal under the law and aware of the great difference between this and Irish law with its unequal honour prices. One could gain or lose rank. Family, kin, refers to all descendants through the male line of the same great-grandfather. There was family land and responsibilities to and by the family. Also maternal kinship was significant, for example in fosterage.

Chapter One (pp. 17-38) is the first of three examining law pertaining to rank. It deals,

with those persons who owe their status to their political power and/or wealth: the king, the lord (including his clients and tenants) and the briugu (hospitaller). p. 39

At the top are the kings of great kings, great kings and kings ruling a 'fifth', several tuaths, a tuath.

Triad 186 gives injustice, extortion and kin-slaying as the three things which cause the overthrow of a king. p. 18

A king must behave like a king, have a retinue, have no physical disability and, "Not break his geisi." (p. 20).

Chapter Two (pp. 39-67) considers the men of art: clerics, poets, lawyers, physicians, druids, workers in wood, blacksmiths, other manufacturers, entertainers and retainers (this last including bodyguards, stewarts, cup-bearers, messengers and charioteers). Kelly states that the poet's:

high status thus reflects early Irish society's deep preoccupation with honour (enech lit. 'face'): it is damaged through satire and increased through praise. p. 43

The poet is considered one possessed of magical abilities, both destructive and protective. Poets are seen as an hereditary caste, wealthy, inter-tribal and repositories of tradition. Illegal satire is strongly condemned.

The authors of the law-texts seek to punish his misuse of the magic power of satire by reducing or even cancelling his status. pp. 49-50

Lawyers include barristers (the aigne pleading cases for, "One third of his client's award" p. 56) and judges. Judges were ranked according to the rank of disputants arbitrated, right up to royal advisors. There were hereditary judicial families, such as, "The McKiegans, O'Deorans, O'Brisleans." (p. 53) Judges could be fined for erroneous decisions.

There were also hereditary families of physicians, for example, O'Hickeys, O'Shiels and O'Cassidys. (p. 58)

As well as applying herbs and supervising diet, there is evidence that a physician might carry out surgery on a patient...the physician is entitled to cause bleeding during the course of the treatment; but if he cuts a joint or sinew he is obliged to pay a fine, and must at his own expense assume responsibility for the sick-maintenance of the patient. p. 59

The law codes are the product of literate Christian Ireland and do not render pagan respect to druids, indeed listing them with brigands. (p. 60)

The honour price of wrights, smiths and other manufacturers is specified, work is to be done on time and,

a craftsman's honour-price does not diminish if he does not practise his craft. p. 63

Harpists, honourable in their own right, are expected to evoke sorrow, joy and sleep. Other entertainers do not have personal honour price, but a fraction of the honour price of their lord. Royal bodyguards and other attendants of the king are not liable for injuries inflicted on duty.

Chapter Three (pp. 68-98) considers the legally incompetent:

They are the woman, the child, the dependent son of a living father, the insane person, the slave, and the unransomed captive (cimbid). p. 68

The chapter outlines the nine kinds of sexual union, the existence of polygyny, states that if issue results from a voluntary union opposed by the parents of one of the lovers, the other lover is solely responsible for rearing the child and enumerates various grounds for divorce:

She may divorce him if he is impotent ('because an impotent man is not easy for a wife') or if he becomes so fat as to be incapable of intercourse. Practising homosexuality is another reason for divorce: a wife may divorce her husband if he spurns the marriage bed and prefers to lie with boys. A man who is sterile can also be divorced, though it is not clear how this sterility could be proved -- unless the wife had previously shown her fertility by bearing a child to another man...she may divorce him if he is indiscreet 'because it is not right for a man who tells of bed to be under blankets'. p. 74

The spouse of one infertile may leave temporarily to obtain a child from someone else. While normally women did not have legal capacity, there were exceptions; she could inherit from a sonless father and she was the responsible spouse if her husband was landless or an outsider.

In early Irish law, a crime against a woman is normally regarded as a crime against her guardian (husband, father, son, head of kin) and consequently the culprit must pay him his honour-price or a proportion thereof. p. 79

A father or fosterfather normally pays or is paid for offences by or against children; among those exempted are kings and poets. Fosterage, which could be performed for affection or for fees, required the child to be maintained and educated in accord with his/her status. A tie existed even after the fosterchild had grown.

Normally, guardians were responsible for offences by those of unsound mind. There were exceptions.

For example, injuries caused by missiles thrown by a druth do not require compensation: it is clearly the responsibility of the passer-by to keep out of the way. p. 92

A druth is a retard as contrasted with those deranged, but not dangerous and those violently insane. Those of unsound mind were not to be exploited. Contracts with them were invalid and a sane person who impregnated a druth or bore a child to a druth was solely responsible for its upbringing.

Slaves faced many restrictions and had no rights. A captive:

is a person who has committed a serious offence, which has not been paid for. The individual or kin whom he has wronged can seize him and keep him captive. p. 97

He could be ransomed.

Chapter Four, "Property" (pp. 99-124), looks at the different kinds of land, co-ploughing agreements, joint-herding, inheritance, common land rights, access, squatting, buildings, stock, ornaments, clothing, the currency system, fines, rent, gift giving, deposits, and goods lost and found. Among its interesting points:

Even to look into a house unbidden entails a fine of one cow and to cross a man's courtyard without permission, or to open the door of his house renders the culprit liable to pay 5 sets. p. 110

The basic meaning of cumal is 'female slave', and it is sometimes used in this sense. More often, however, cumal is used as a unit of value. p. 112

In some circumstances, however, unauthorized borrowing is permitted. According to triad 163 a person may take another's property without consent when in fear or when going to warn his neighbours of some danger. p. 119

It is lawful to kill in battle, or to kill a thief caught in the act of stealing. An unransomed captive (cimbid) may be killed by the individual or kin whom he has wronged, and a violator of the law (fer coilles cain) may be killed by anybody. pp. 128-129

The chapter proceeds with illegal injury, sick-maintainance, lawful injury, forcible rape, other non-consentual sexual intercourse, sexual harrassment, verbal assault, refusal to provide hospitality, violation of protection, animal trespass, damage to property, theft, stolen goods, accidents, ignorance, negligence, drunkenness and not trying to prevent crimes. Among its interesting points:

Heptad 47 lists eight categories of women who get no redress if subjected to rape, whether forcor or sleth. Most of these are promiscuous or adulterous women, such as an unreformed prostitute, a woman who makes an assignation to bush or bed, or a married woman who agrees to meet another man. pp. 135-136

To kill or injure a person under protection is to commit the crime of digun 'violation of protection'. This entails payment of the protector's honour-price, as well as the appropriate payment to the victim or his kin. p. 141

Every law-abiding freeman is permitted certain acts which are technically theft. He can take anything from a burning building, from a corpse on a battlefield, or from a great depth (presumably from the bottom of a lake or sea). He can take anything from a place of terror (the glossator cites as examples Loch Bel Set and Loch Bel Draguin, both haunted by monsters) or anything which can only be reached by ropes. He can take scrap metal from a forge, the sweepings of a threshing-floor and similar waste. p. 148

Chapter Six, "Contracts, Pledges and Sureties" (p. 158-176), begins by stating that most contracts were verbal, needed to be witnessed and could be cancelled by sunset, if either party changed his mind. Fraud, duress, ignorance, drunkenness (with exceptions such as for co-ploughing), etc. invalidated contracts. Pledges, objects important to the pledger, were significant in ensuring contracts were fulfilled.

The professional judge (brithem) who decides a law-case has himself to deposit a pledge of 5 ounces of silver in case of dispute with his judgement. The intention is clearly to give a dissatisfied litigant some leverage if he wishes to get a judge's verdict re-examined. A judge who refuses to give a pledge for his judgement is debarred from further practise in the territory. p. 166

The chapter proceeds to consider sureties, third parties guaranteeing one or both sides to a contract will fulfill their obligations. Some covered financially, some with their honour and some (temporarily, normally ten days) with their bodily liberty. They could seek recompense from the defaulting principal, unless they were foolish enough to go surety for such categories as foreigners, escaped slaves and wives without the husband's consent.

Hostages, generally of royal or lordly birth, held by kings for up to thirty days, helped ensure payment of fines across tribal borders.

Chapter Seven, "Distraint and Legal Entry" (pp. 177-189), looks at private enforcement:

Chapter Seven, "Distraint and Legal Entry" (pp. 177-189), looks at private enforcement:

Firstly, the plaintiff must give formal notice...to the defendant... There is then a delay...of one, two, three or five days...During the period of delay, the defendant may put matters to rights by paying whatever fine is due, or otherwise fulfilling his obligations. In some cases he may merely give a pledge...to signify his readiness to come to terms. If he fails to make a move, the plaintiff is entitled to enter his land, and remove cattle to the value of the amount due. p. 178

There is a further delay, providing more time for the original owner to claim his stock with,

an additional charge to cover the plaintiff's expenses in feeding the cattle while in the pound. p. 179

However, when time runs out, the property has changed hands permanently.

Various exceptional circumstances allow a postponement (taurbaid). These include the death of a member of the defendant's family, the attack of a host from outside which brings fire and slaughter, seeking a midwife for a woman who is in labour, getting a physician for a person who is in danger of death, and similar pressing duties or emergencies. pp. 183-184

One could fast, from sunup to sundown, against a noble -- a more difficult class from whom to make claims. The chapter also includes mention of legal entry, by males, females and vagrants, as well as illegal entry and the role of lawyers.

Chapter Eight, "Procedure" (pp. 190-213), mentions the importance of making a claim, hiring an advocate, and the:

eight steps of a law-case: (1) fixing a date for the hearing, (2) choosing the proper 'path of judgement' by the plaintiff's advocate, (3) the giving of security (arach), (4) pleading (tacrae), (5) rejoinder (frecrae), (6) judgement (breth), (7) promulgation (forus), (8) conclusion (forbae). p. 191

Normally, a minor case would be tried by one judge at the judge's house. Major cases having more than one judge would be held out of doors. Page 194 provides a diagram of the author's suggested seating arrangements for sixteen categories of people sitting around the centrally located judges.

Among other interesting points in this chapter is that an oath can be over-sworn by a person of higher rank. Normally, a woman cannot legally swear an oath. Generally, more than one witness was required, but one trustworthy witness was worth more than two untrustworthy ones. There is also consideration of circumstantial evidence (for example, disproving an alibi, the accused's nervousness, the finding of the accused's shoe or glove at the scene of the crime, etc.), inadmissable evidence (such as the testimony of those of ineligible categories of people), lots and ordeals, including duels.

Chapter Nine, "Punishment" (pp. 214-224), begins by stating:

The authors of the Old Irish law-texts seem to envisage that payment can atone for almost any crime. In this respect Irish law contrasts with many other early law-codes, where death or mutilation is the normal punishment for a wide range of offences. p. 214

The death penalty existed (more frequently in canon rather than secular law) and one could also be flogged, set adrift or outlawed.

Outlawry in Irish law is not necessarily permanent: it is clear that an outlawed person can recover his rights if he is able -- either by payment or other means -- to atone for whatever crime he has committed. p. 224

Chapter Ten, "Law Texts" (pp. 225-241) dates the originals some seven to eight hundred years earlier than the 14th-16th Century manuscripts that preserve them. There is discussion of penmanship, glossing and commentaries, as well as linguistic evidence concerning the original texts.

In the Introduction to CIH (pp. ix-x) Binchy summarises the arguments in favour of the view that the law-texts were composed by professional lay jurists, whose main motive would have been to preserve in written form as much as possible of traditional Irish law in the face of the gradual encroachment of Christian ideas and organisation...On the other hand, in two articles in PERITIA 3 Donnchadh O Corrain, Liam Breatnach and Aidan Breen have recently drawn attention to the extent to which many Old Irish law-texts are based on canon law. Particularly significant is Breatnach's discovery that parts of BREATHA NEMED TOISECH consist of a translation or precis of the COLLECTIO CANONUM HIBERNENSIS. p. 233

Fergus Kelly doubts clerical authorship of all the law-texts. He mentions foreign descriptions from later periods and parallels elsewhere, such as legal fasting in Nineteenth Century Nepal.

Chapter Eleven, "Law-Schools" (pp. 242-263), begins with the school or schools of the SENCHAS MOR. It proceeds to the NEMED school.

These texts include the text on status URAICECHT BECC, the oldest recension of COIC CONARA FUGILL 'the five paths of judgement', the text on accidents BRETHA ETGID and the two BRETHA NEMED texts (Appendix 1 Nos. 14-15). There is some evidence to connect this NEMED school with the territory of Mumu 'Munster'. p. 246

Kelly discusses next texts which seem to have come from neither of the above schools and references to schools and lawyers in the annals.

Of the fifteen judges or lawyers who are mentioned in the annals up to 1200 A.D. all but four seem to have held ecclesiastical office, often very elevated. p. 249

He proceeds to post-Norman times and such legal families as the MacEgans, MacClancies, O'Dorans, O'Davorens, MacBerkeries, etc. and finally the end of brehon law with the English triumph in the early Seventeenth Century.

In addition the book contains a lengthy table of contents (pp. vii-xiii), a foreward thanking people such as Daniel A. Binchy and Proinsias MacCana, a list of abbreviations (pp. xvii-xxi), lists of fourteen ranks from ri ruirech (supreme king) to mug (slave), of ten units of currency as valued from screpul (=1/24) to cumal (=3) comparative to milch cows or fractions thereof, of the titles of 31 "Commonly quoted law-texts and wisdom-texts", appendices listing and commenting on seventy-nine surviving and, "Known only in titles or from quotations in glossaries" (p. 265) law-texts (plus at least five additional texts, see the final paragraph of 5 on page 266, the end of 16 on page 269, the last sentence under 25 p. 271 and the last paragraph of 78 on p. 282) pp. 264-283, on seven wisdom texts pp. 284-286, providing a bibliography ("A list of books and articles of relevance to the study of early Irish law") pp. 287-295, a pronounciation guide to Old Irish pp. 296-300, indices of Irish terms in Irish, the International Phoenetic Alphabet and English translation pp. 301-323, of Anglicized forms of Irish and Scottish legal terms pp. 324-325, of Welsh and Breton words in the book pp. 326-327, of, "The main topics treated in this book" (p.328) 328-346, and sample short extracts, with translation, from the law-texts pp.347-358, as well as footnotes at the bottom of the relevant pages of the text proper.

This is a significant work of scholarship on an intricate and complex topic that will well reward anyone interested who makes the effort to read it. This is a major reference work for anyone desiring accurate information on early Irish society. This, in case there be any doubt on the matter, is a book I really liked.

Reviewer Rating: 5-Excellent

Review submitted: March 28, 2001