Puzzles of Irish Law

Ireland, prior to the Norman conquest of the 12^th century, possessed an elaborate set of legal and political institutions. Unfortunately, none of the legal treatises from that period has survived in the original. In reconstructing those institutions, we are dependent on 14^th-16^th century copies, often fragmentary and possibly corrupt, along with copies of non-legal texts such as heroic poems (tains) and wisdom texts. We also have accounts of Irish institutions from long past the English conquest, some of which may plausibly be interpreted as survivals from the earlier period. The information is sufficient to sketch a picture of the legal and political system, but with considerable uncertainty and many gaps.[1] The picture is complicated by the fact that what we are observing is itself a pre-Christian system as modified by Christianity—Ireland was converted by Saint Patrick in the 5^th century.

Kingdoms and Kin-Groups

Ireland was divided into a large number of petty kingdoms (tuaths); one estimate is that there were about a hundred and fifty of them, with an average population of about three thousand. The king of one tuath might be accepted as the overlord of other kings. The overlord of three or more tuath qualified as a “Great King,” with a higher honor price (see below) than an ordinary king. A provincial king, or “king of great kings,” had a still higher honor price. While the idea of a king of all Ireland existed, there do not seem to have been any examples.

A king was expected to have a judge, a poet, and a churchman in his tuath. He played some role in the process of settling disputes and enforcing judgements, but exactly what role is not clear; as we will see, a good deal of enforcement seems to have been done privately.

A few categories of individuals, such as hermits and poets, had rights everywhere, but most had no rights outside their own tuath. Similarly, an individual normally had no legal claims against violations of his rights by anyone outside his tuath. One exception was a situation where the subject of one king was killed by the subject of another, both acknowledging a common overlord; the procedure for collecting the fine for the killing was initiated by the victim’s king taking a hostage, presumably a subject of the killer’s king, in the court of their common overlord. Another occurred when the inhabitants of two tuaths were given rights against each other by treaty.

While some land was ordinary private property, much, perhaps most, was held by kin-groups (fine), consisting of the descendants in the male line of a common great-grandfather. The land was divided among the members of the fine, who could use it but were not free to sell it. Individuals could purchase additional land for themselves, but the fine had a claim to a share of that land on the owner's death—larger if the money to purchase the land had been earned by farming the buyer's share of the common land, less if it was money he had earned by his own skills, for example as a smith.

Members of a fine were legally responsible for paying each other’s fines, to be reimbursed by the responsible party, and had some ability to cancel each other’s contracts, presumably because if the contracting member defaulted his kin might be liable. They were entitled to a share of the blood-money paid for the killing of a member, and responsible for pursuing a feud against the killer if blood-money was not paid.

Marriage law recognized a range of possible relationships, depending both on the resources each party brought into the marriage and the degree to which the marriage had or had not been approved of by the woman’s kin. The greater the degree to which the marriage had been approved by the wife’s kin,[2] the weaker her subsequent ties to them, as reflected in who got how much of her possessions when she died and who was entitled to collect how much of the fine if she was killed or obligated to pay how much of the fine for her offenses. A man would normally have a chief wife, but could also have a secondary wife or concubine.

A woman was under the authority first of her father, then her husband, then her sons, and had very restricted rights. She could not, with some narrow exceptions, serve as a witness, swear oaths, make contracts or serve as a surety to guarantee the contracts of others, and she had only limited rights with regard to the control of property.

Fostering of children was a common practice that established a sort of pseudo-kinship; a man’s foster father had a claim to a fraction of the blood-money if his foster son was killed, and related responsibilities.

Rank and honor price

Every individual had an honor price, determined primarily by his rank in society and affecting almost every feature of his relationship to the legal system. It determined the payment owed to him for injuries to him or for the death of a kinsman, the maximum amount he was able to contract for, the weight of his oath in a legal dispute, and a variety of other things. In theory it was possible for a man to have his honor price reduced or to lose it entirely—have it reduced to zero—for any of various offenses, such as swearing a false oath or cowardice (by a king) in battle.

One implication of this system was that dealing with someone whose honor price was high, such as a king, was risky. In case of a dispute he could overswear you, making it difficult to collect on a debt or enforce other obligations against him.

The system of ranks had three large divisions: nemed, freeman, unfree. Within each there were multiple divisions. Thus nemeds included king, lord (of several grades, depending on the number of base and free clients each has), cleric (again several grades—a bishop was at least claimed to be superior to a king), poet and hospitaller (briugu). The last was a man who had accepted an unlimited obligation to provide hospitality to anyone who asked it. Becoming a briugu was apparently a way in which a wealthy man could achieve lordly status; one source decribes a briugu as “a man who, by acquiring twice the land and property of a lord, attains equal rank with him.”

A freeman might, but apparently did not have to, be the client of one or more lords. Clientship consisted of the lord providing the client with a fief of land, stock or other valuables and the client owing the lord various services in exchange. The amount of the fief depended on the status of the recipient, with the main distinction being between a small farmer and a strong farmer, and on whether he was classified as a base client or a free client.

The distinction between base and free clients determined various terms of the contract, including the duties owed and whether the fief eventually became the property of the client on the lord’s death (yes if base, no if free). In all cases the relationship could be terminated by mutual agreement. If a lord wished to dismiss a base client, he had to compensate him with half his honor price plus what he was owed for rent and services; if it was the basis client who wished to terminate, he owed a substantially larger penalty to the lord. In the case of a free client, either party could terminate the relationship without penalty.

In addition to free clients and base clients, a lord might also have dependents of lower status (fuidir), who could not make any legal contract without permission of their lord. The lord was required to support the client, to pay the fines for any crimes committed by him or his family, and entitled to collect the fines for crimes committed against him. The fuidir was obliged to carry out any tasks assigned him by the lord. He was thus a sort of temporary and voluntary slave, free to leave at any time,[3] provided that he surrendered two-thirds of his produce and left no debts or obligations behind him. After three generations of clientship to a lord, however, the fuidir becomes a senchléithe, a client tied to the land and transferred with the land.

Finally, at the bottom of the hierarchy, were slaves, male or female. They might be prisoners taken in war, foreigners picked up by slave traders, people who had failed to pay a debt or fine and so been enslaved, or the descendants of such. They had no legal rights. The master was liable for the offenses of his slave and collected compensation for offenses against his slave.

The system of ranks was not entirely rigid. If a strong farmer acquired sufficient wealth, he could take the first step towards becoming a lord; the process would become complete only for his grandson. A slave could be freed and a nemed could lose that status by bad actions. But it was a strongly hierarchical society where social mobility was slow.

Payments for death or injury

As in several of the other legal systems we have looked at, illegal acts that resulted in death or injury obliged the offender to make monetary compensation. Someone guilty of a wrongful killing owed blood money (eraic) to the kingroup of the victim; if the kingroup had required the assistance of someone else to enforce their claim, he was entitled to a third of the payment. The amount owed was 7 cumals; “cumal” originally was the word for a female slave but had become a unit of value. The eraic was fixed at that sum for any freeman, and did not depend on his honor price.

In addition to the eraic, the killer also owed a further payment to the victim’s kin, based not on the victim’s honor price but on that of the kin. A son of the victim was entitled to his full honor price, a first cousin to a third, a foster father or foster brother to a seventh. If these payments were not made, the kin were entitled to seize the killer and hold him to ransom, kill him, or enslave him. If they were unable to seize him, they could pursue a blood feud against him. As in the Icelandic system, a secret killing, one in which the body was concealed or left where it was unlikely to be found and the killer failed to acknowledge his act, was considered especiallys serious; in Irish law, it resulted in doubling the penalty.

In the case of injury short of death, the first step was to have the victim taken care of by his kin for nine days, to see if he would die; if he did, it was treated as a case of killing. If he survived, the offender owed him a penalty for any lasting injury, its amount depending on both the injury and the status of the victim, and was also obliged to provide sick-maintainance,[4] to host the victim, along with a retinue of size suited to his rank, and provide him with medical care until he recovers. The offender was also required to provide a substitute to do the work of the injured man and to pay a fine, if the victim was married, to compensate him for the loss of the opportunity to reproduce. This was one of the special cases where a woman’s testimony was acceptable; the victim’s wife may testify that he was away on sick-maintainance during a time suitable for conception.

There is some evidence that over time, sick-maintainance was replaced by a money payment, a process that, according to one source, was complete by 700 A.D.

Contracts

In order for a contract to be valid it had to be witnessed and, in most cases, bound by sureties—individuals who in one of several ways guaranteed that it would be performed. In some cases, a contract made by one person could be cancelled by another. One possible reason was the if first person failed to fullfill his contractual obligation the second would be liable, another that the contract would prevent the first person from fulfilling his obligations to the second. Thus a son could cancel his father’s contract if it might adversely affect his inheritance or consisted of selling an object of value that could be used as a pledge for the son’s life. A main wife could cancel her husband’s disadvantageous contracts, and a wife of lower status could cancel those of them that dealt with food, cattle, clothing and sheep. One could not contract for more than his honor price without permission from his kin, and the fine could dissolve a contract if they would be liable in the case of his default.

One mechanism for enforcing obligations, including those associated with a contract, was a pledge, an object of value to one party handed over to another as a sort of hostage.[5] When an injurer agreed to provide sick-maintanance, he handed over three pledges, one to guarantee that the injured man will be properly looked after, one to guarantee the provision of a substitute to do his work, and one to guarantee that, once recovered, the injured man will be safely returned. In some cases, the pledge was given in advance, in case of a future obligation. Thus neighboring farmers exchanged pledges to guarantee compensation in case of injury, such as trespass by cattle.

A second mechanism to enforce the obligation of a contract was the use of sureties, of which there were three different sorts. The paying surety (rath) agreed to guarantee with his own property the fulfillment of the side of the contract that he was standing surety for, up to the amount of his honor price. If his principal defaults, the other party gives notice to the rath that he intends to distrain (see below) property of his to the value owed plus a penalty; the rath responds by giving a pledge, to be returned when his principal fulfills the contract, plus a penalty. The principal must then compensate the rath for having had to give a pledge. If the principal does not fulfill the contract, the other party distrains the appropriate amount from the rath’s property; his principal now owes him substantial damages.

The enforcing surety (naidm) has no financial obligation, but has agreed to make sure that the principal fulfills the terms of the agreement. If he fails to do so, he loses his honor price. He is legally entitled to use force against the principal, to distrain his property, to imprison him, even to use violence against him. It seems likely that each side had two naidm sureties, one to compel the contracting party to fulfill his obligations and one to compel the rath surety to fulfill his.

The hostage surety (aitire) guarantees the performance of an obligation with his body rather than his property. If his principal defaults, he is obliged to surrender himself to the other party. His principal then has a period of time, usually ten days, in which to ransom the hostage by paying what he owes plus a penalty. If that is not done, it is up to the hostage to ransom himself by paying seven cumals, the body price of a freeman. His principal then owes him the seven cumals, plus his honor price, plus twice the amount originally at issue; the hostage is entitled to distrain goods to that value.

One implication of all of this is that a contract involved a considerable number of people—the principals, the witnesses, several sureties on each side, and sometimes kinsmen of the principals whose permission was needed for the initial agreement.

Distraint and Entry

Distraint was a procedure by which one party could seize what another party owed him, most commonly in the form of cattle. The plaintiff begins the process by giving formal notice to the defendant that he intends to impound his property; the defendant then has a period of from one to five days, depending on the nature of the controversy, in which to pay what he owes or offer a pledge to guarantee future payment or performance. If he fails to do so, the plaintiff is entitled to enter his land in the early morning, accompanied by a professional law agent (aigne), and carry off the appropriate number of cattle to a private pound, a fenced territory on his own or, with permission, someone else’s land. There is then a further delay, presumably of the same number of days as before, during which the defendant can again act to satisfy the plaintiff’s claim. If he fails to do so, a certain value of lifestock forfeit on the first day, more on the second, and so on until all are the property of the plaintiff. At any point in the procedure, the defendant can pay or pledge to pay the balance of what is owed and recover the remaining cattle.

There seem to have been special rules for distraint associated with specific offenses, such as offenses by animals. Thus if a watch-dog has committed an offense, the plaintiff must put a plank over his feeding trough and give notice that it is not to be fed until the owner has paid the fine. If the owner ignores the prohibition and feeds the dog, he becomes guilty of a human offense, for which the penalty is much larger than for the original animal offense. Similarly, a professional such as a smith is distrained by symbolically disabling the equipment of his profession until he had done justice to the plaintiff and, if he failed to do so, distraining his property in the usual fashion.

There is an alternative procedure to be used if the defendant is a nemed, not distraint but fasting outside the nemed’s house; the nemed is then supposed to guarantee justice to the plaintiff either by appointing a rath surety or by giving a household article as a pledge. If he eats during the fast without having done so, the amount he owes the plaintiff is doubled. After some number of days, the plaintiff is entitled to distrain the nemed’s property. If the nemed holds out against a properly managed fast, he loses the right to be paid for any offenses committed against him.

The rules on distraint were complex, and there was a fine for improper distraint. Hence it was prudent for the plaintiff to have the assistance of a professional lawyer, who in exchange was entitled to a third of the amount distrained.

Distraint (or fasting) was used to enforce a claim of payment. Legal entry was a similar procedure used to claim land. It was initiated when the claimant entered the land holding two horses and accompanied by a witness and sureties. He then withdrews. After five days the occupant of the land may submit the dispute to arbitration. If he has not done so, ten days after the initial entry the claimant again enters the land, this time accompanied by two witnesses and four horse, allowed to graze on the claimed land. He again withdraws, and after three days the occupant can submit the dispute to arbitration.

Twenty days after the first entry comes a final entry, accompanied by three witnesses and eight horses. If the occupant does not at this point agree to arbitration, the claimant acquires legal ownership of the land.

All of these procedures appear to be private actions. This suggests an obvious question—how are the claims enforced by distraint, fasting or legal entry established? Are we observing an entirely private system of law enforcement, perhaps one in which the involvement of multiple parties in any substantial dispute is the mechanism to prevent the enforcement of unjustified claims? Or is this the private collection of a claim established through something analogous to a trial in a formal legal system? Or is it a mixed system, in which some claims are established in court and possibly enforced by distraint, while other claims, such as the claim of a surety against the principal who has failed in his obligations or the claim for damage by an animal, are enforced by an immediate distraint?

Trial Procedure

There were professional judges and professional advocates, both of whom played a role in a trial. There is one very detailed description of the participants in a trial and how they were arranged in a court. Participants include provincial king, over kings, bishop, chief poet, sureties, hostages, witnesses, judges, litigants and advocates.

Pretty clearly, this is not a description of all trials, since most would not have included a provincial king and overkings, and it is hard to believe that, even in a kingdom of three thousand people, the king and all of the important people around him would have been present for every trial; perhaps it is an idealized version of the most elaborate court procedure the author could imagine. But it does suggest that there was a procedure involving a judge and a king, although it is unclear from the sources what role if any the king had in determining the verdict. Both judges and advocate were recognized professions, and although each king was supposed to have a judge, there is no suggestion that every judge was connected to a king. It is possible that some sorts of trials were held in a royal court with the king and the king’s judge participating, while others involved only the judge (or judges—for a major case there could be more than one), sureties, witnesses, and spectators.

The first step in a law case was for the plaintiff to publicly announce that an offense had been committed. Once the case commenced, it was up to the plaintiff’s hired advocate to decide which of five different paths of judgement, loosely corresponding to forms of action in the common law, to pursue; the suitable path would depend on the nature of the case and the path chosen would determine the details of the subsequent procedure.

The next step was for plaintiff and defendant to each give either a pledge or a surety, depending on the path chosen, to guarantee that he would abide by the verdict. The judge was also required to give a pledge—five ounces of silver—in support of his judgement, and owed a fine of eight ounces if he left a case undecided. A judge who acted unjustly, as for instance by giving a verdict after hearing only one side of the case, loses his honor price and his position as judge; such a miscarriage of justice was also supposed to bring supernatural punishment down on the tuath where it occurred.

Each party’s advocate would then offer the argument for his side; presumably witnesses would also testify at that point. Each advocate would then get to rebut the other’s arguments, after which judgement would be given and then publicly announced.

As in Jewish law, the legal procedure might include the swearing of oaths; under some circumstances someone accused of an offense can defend himself by swearing the charge away. Similarly, witnesses were expected to support their testimony by oath, and a judge was required to swear to tell the truth.

In the Irish case, however, the force of an oath was linked to the honor price of the person swearing it; a higher status individual could “overswear” a lower status. This appears to imply that an accusation sworn by an inferior against a superior could be cancelled by the superior overswearing it, that in the opposite case the superior’s accusation stands despite the inferior’s oath to the contrary, and that a superior could rebut the testimony of an inferior in a case against a third party by overswearing it. Assuming that this reading is correct, it is not surprising that the literature contains warnings of the risk of lending money to, or in other ways contracting with, someone of higher status, especially a king.

It was possible for the oath of one party in a case to be supported by the oath of another person, up to the value of his honor price. It is not clear if the honor prices of the two oaths added, making it possible for two people of lower status to overswear one of higher, or whether the combined oath had the weight of the honor price of whichever of the two was of higher status. Someone who bears false witness in a case is supposed to lose his honor price; it is not clear how his guilt was to be determined.

If the judge in a case was unable to determine which party was in the right, perhaps because there were no witnesses or the oaths on either side were evenly balanced, the verdict could be produced by a random process, or by an ordeal. The former process could be used if it was known that one of the animals in a herd had committed an offense, but not which animal. One animal would be selected at random, and his owner held liable for the damages. As in other early legal systems, someone accused of an offense could offer to prove his innocence by submitting to an ordeal, such as plunging his hand into boiling water. If the hand thereafter shows marks of scalding, the defendant is held to be guilty, if not, innocent.[6]

A dispute could also be settled by a formal duel, analogous to the Norse holmgang. The terms had to be agreed to by both parties and confirmed by sureties on both sides. As in the Norse case, the duel did not have to be to the death.[7]

The Puzzle

As I suggested earlier, it is unclear from the available information to what extent the Irish legal system was something analogous to a system of state enforcement and to what extent it was more nearly a system of private arbitration. Evidence for the latter view is the requirement that parties provide a pledge or surety at the beginning of the trial in order to guarantee that they will abide by the verdict. On the other hand, the fact that a king has a judge associated with him, along with the description of an elaborate trial setup involving provincial king, overkings, et multae caetera, suggests that at least some trials did involve the nearest thing available to state enforcement.

One possible solution is to interpret it as a mixed system. Some controversies, perhaps ones which involved the king or were for some reason of special importance to him, were settled by a procedure over which the king had some control, perhaps because it was the king’s judge who had to decide them. Others were settled in a private system enforced through the system of pledges and sureties, along with reputational enforcement. That would be consistent with the observation that some but not all judges were linked to kings.

---

[1] My source for most of the account I give here is Fergus Kelly, A Guide to Early Irish Law

[2] Ranging from marriage where the wife was betrothed by her kin through marriage forbidden by her kin.

[3] Not true, however, of a lower category of fuidir, the dóerḟuidir or “base fuidir.”

[4] Oddly enough, the same obligation appears in traditional Somali law.

[5] Note the relation to the discussion of contract enforcement in Imperial China in Chapter XX.

[6] Reference to Peter Leeson’s piece on ordeals.

[7] For a discussion of holmgang, see Radford, R.S., “Going to the Island: A Legal and Economic Analysis of the Medieval Icelandic Duel,” Southern California Law Rev. 62 (1989) 615-44.