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CELTIC LAW - A SHORT SUMMARY - Part
1-12
INTRODUCTION
A lot of things have been said about Celtic Law, from
that it in fact did not exist and the stronger one was right, over that
it developed from a matriarchal system, that it was a matriarchal system
(please note that matriarchal is a legal term - it defines inheritance)
up to that it was a very complex and definitely better system than most
of todays legal systems. All of this is, to a certain extent, right, but
the greater part of it is wrong.
What I will try to do now is give a short summary of how Celtic Law
really functioned, which things were regulated by law, how the laws
looked and how legal problems were solved. Once again, I will start this
with looking on the sources that have come down on us.
COURT PROCEDURE
Fixing a date for the hearing
Choosing the "proper path of judgment" by the plaintiff's
advocate
The giving of security (a/rach)
Pleading (tacrae)
Counter-pleading (frecrae)
Judgment (breth)
Announcement (forus)
Conclusion (forbae)
THE MAKEUP OF THE COURT
OATHS
Overswearing (fortach)
Denial by oath (di/thech, di/thach)
Oaths on behalf of others (airthech)
Compurgatory oath (imthach)
Repudiation (fretech)
False oath (e/thech)
Female oath (bannoi/ll)
WITNESS (FI/ADU)
DECISIONS IN UNDECIDEABLE CASES
PUNISHMENT
PAYMENT
METHODS OF PUNISHMENT IN CASE OF NON-PAYMENT OF FINES
SLAVERY
PUTTING TO DEATH
SETTING ADRIFT
PUNISHMENTS ONLY APPEARING IN CANON LAW
OUTLAWRY
WELSH LAW
SOURCES
THE LAWS OF HYWEL DDA
OLD CELTIC LAW
THE SOURCES
THE RECONSTRUCTION
THE SOURCES FOR CELTIC LAW
Mainly, we have two groups of sources that are of
utmost importance to our understanding of Celtic Law. The first one of
these is the Irish legal tradition. Mainly written down by Christian
monks of the 7th to 10th century AD (though some texts were written even
later) these law texts, the bulk of which exists in an edition by
D.A.Binchy (Corpus Iuris Hibernici, from now on shortened as CIH),
though sometimes severely influenced by Christian motives, perhaps give
us the most complete legal codex that had developed separately from
Roman Law in Europe that has come down on us. The main part of the Irish
law texts is called the Senchas Mar. These texts essentially give us a
good view at how the law might have looked before the Roman conquering
in most of Europe.
The second one of those is the Welsh legal tradition. First set down in
about the 12th century AD it is definitely a good deal later put into
writing than Irish law, and, maybe because of this, shows a lot more of
foreign influences in the law already, starting with influences of Roman
law and going over Christian to Anglo-Saxon and early Norman influences.
Still, the basic system of the law and the great bulk of actual laws
still very closely parallel similar Irish laws. The Welsh law has been
taken down as the Law of Hywel Dda as a single complex. In comparison
with the Irish law it is very well possible to filter out common Celtic
concepts in the law.
Additionally to those primary sources, which do give us actual law texts,
we have some other sources as well that may tell us something about
actual use of the law and allow us to try to reconstruct a picture of
how old Celtic law might have looked.
First, there are the Irish and Welsh tales, which do, even though not
often, also tell about judicial processes. These can tell us how the
laws were actually executed (in difference to the law texts themselves
that tell how the laws should be executed).
Second, there are the historical sources about Wales and Ireland, which
also tell us about how the laws were actually executed.
Third, there are the ancient historical sources which let us, once in a
while, glimpse at "customs" that can be explained by or are
even exactly paralleled with later, Irish and Welsh legal proscriptions.
This can then be compared to other systems by Comparative IE Studies,
Comparative Linguistics and comparative Legal Studies to provide
explanation models and fill in existing blanks with possible
reconstructions.
These are the sources which are basically available to us when trying to
study Celtic legal systems, even though once in a while it might also be
possible that archaeology provides us with a hint or two at legal
specialties.
THE IRISH LAWS
The Irish Law texts, often also called Brehon Laws,
Brehon being the anglicized term for the Irish "Brithem"
(agent noun for ir. breth "judgment", literal translation for
brithem therefore is "maker of judgments"), the Irish term for
lawyer, are the most extensive documents for Celtic Law that have come
down on us. They were written down by the Christian monks, the earliest
texts probably dating from the late 6th and early 7th century AD, and
therefore were partly influenced by a Christian mindset. Still, they do
seem to reflect the "old" prechristian laws very closely in
most aspects, and the basics of the legal procedures is definite indigenous.
LITERATURE
Before I start my summary I will give a short
literature list, as there exist excellent sources for Irish Law which
are also relatively easily available. Many laws exist in translation
into English and therefore you can study them yourselves if you like.
Fergus KELLY, A Guide to Early Irish Law. Early Irish
Law Series 3, Dublin Institute of Advanced Studies 1988 (2nd reprint
1995). ISBN 0-901282-95-2
Translations and editions of original texts (sometimes
with comments):
Thomas CHARLES-EDWARDS and Fergus KELLY, BECHBRETHA:
An Old Irish law-tract on Bee-Keeping. (Edition and Translation) Early
Irish Law Series 1, DIAS 1983.
Liam BREATNACH, URAICECHT NA RI/AR: The Poetic Grades
in Early Irish Law. (Edition and Translation) Early Irish Law Series 2,
DIAS 1987, ISBN 0-901282-89-8
Fergus KELLY, AUDACHT MORAINN (Edition and
Translation). DIAS 1976.
Neil McLEOD, Early Irish Contract Law. Sydney Series
in Celtic Studies 1, University of Sidney 1995. ISBN 0-86758-623-0
(Edition and Translation of DI ASTUD CHOR)
Additionally there exist numerous translations in
various journals for Celtic Studies.
Finally, there is the complete edition of all Irish Law texts
known until approx. 1978:
D.A. BINCHY, CORPUS IURIS HIBERICI (Vol.I-VI), DIAS
1978.(only Edition, no translation)
LEGAL BASICS
Before we take a look at what laws existed and how
they look, we have to take a short look at the very basics of law. As
far as we can say, the basic regional unit was the tribe (tu/ath), and
this seems also to have been the basic legal unit, as Irish Law distinguishes
between the deorad ("outsider") and the aurrad ("Person
of legal standing within the tu/ath). Basically, it seems as if the
outsider has no legal rights in the tu/ath and can be killed, maimed or
acted with in any manner without these acts being considered as legal
offences if there exists no treaty between the tu/ath the outsider came
from and the one in which he is killed, maimed, etc.... Only if a treaty
exist between the two tribes in question such a person can have a legal
standing at all.
RANK
The second important basics of Irish Law was rank.
Simply said, the higher your Rank, the more legal standing you do have.
As such, "an offence against a person of higher rank entails a
greater penalty than the same offence against a person of lower rank. Similarly,
the oath of a person of higher rank automatically outweighs that of a
person of lower rank." (KELLY 1988, p.7). The measure of a person's
status is his honour price or lo/g n-enech (literally "the price of
his face"), which has to be paid for any mayor offence like murder,
satire, serious injury etc. Offences which do not touch the victims
honour - like minor damage to property or animal trespass, incurs lesser
fines. A person's capacity to perform most legal acts is directly linked
to this honour-price. He can only make a contract to the value of his
honour-price, he can't be surety for any greater amount, and his oath is
only worth his honour-price if a Compurgatory oath is required. I will
deal more detailed with rank in "Social Structures - a short
summary".
KIN
Another basic element in the legal system is kinship.
I will make a more detailed survey of kinship in "Social Structures
- a short summary", but some words are necessary here too.
Basically, the kingroup referred to most often in the law texts is the
derbfine ("true kin"), which consists of all descendents
through the male line from a common great-grandfather. This group has
considerable legal rights in over its individual members. Each kin-group
has its own kin-land (called "fintiu"), for which every
legally competent adult male has some responsibility. This land can be
sold only with consent of the kin, and provided that a man has successfully
fulfilled his obligations towards his kin he can annul contracts of
other members of the kin if he thinks they are detrimental to the kin.
On the other hand, the kin is legally responsible and liable for
offences committed by its members - a kinsman can be distrained if the
offender cannot fulfill his legal obligations. Of course, the kin can
reclaim all losses due to such distraints from the original offender,
who can be ejected from kin if he fails to satisfy the claims of his kin
- an act by which the offender looses all his legal rights.
If a member of the kin is illegally killed, his or her kinsmen get a
share of the e/raic (body-fine), and if the culprit fails to pay the
kinsmen are expected to prosecute a blood-feud against him.
Especially abhorred is the act of slaying a member of ones kin
"fingal". A kin-slayer forfeits his share of the kin-land, but
is still liable to pay for offences by other kin-members.
The head of the kin is known as the a/gae fine or cenn (sometimes conn)
fine. He is chosen from among the kin (probably by election) on the
basis of superior wealth, rank and good sense, and acts and speaks for
his kin at public occasions.
MATERNAL KIN
Even though kinship is determined by the paternal line
primarily, maternal kin also plays some role. On marriage a woman does
not completely sever her connections with her own kin. The maternal kin
is also required to take part in a blood-feud if a child of one of its
daughters is killed and the culprit doesn't pay, gets a part of the
e/raic of such slain children and has to intervene if such a child's
fosterage is improperly carried out.
THE LAW OF PERSONS
Basically, there exist three categories of persons in
Irish Law. The first and most important one is the category of
"nemed", meaning more or less "noble, privileged"
(literally "sacred"), consisting of the actual nobility and
some of the craftsmen. The next one is the category of the freemen,
consisting of the remaining craftsmen and the farmers, and finally there
are the unfree. I will take a look at the laws in regard to all of those
ranks in descending order.
PEOPLE OF NEMED RANK
To the rank of "nemed" belong, basically,
five categories of persons, being: the king, the nobles, the
hospitallers, the clerics and the poets. Additionally some texts speak
of "doer nemed" ("base nemed") people which includes
the physician, the judge, blacksmith, coppersmith, harpist, carpenter
and other craftsmen as the lower part of the nemed rank, but it is clear
that those ranks did not enjoy all the privileges of the abovementioned
five groups of persons.
Nemed rank confers some privileges. E.g., the property of a nemed cannot
be distrained (legal term to be explained later) in the usual manner,
instead it has first to be fasted against him. He is also immune from
some legal obligations. However, also a nemed person doesn't stand
entirely above the law. As an example, an absconder from law (for
instance somebody who didn't pay the fines due to him as covered
earlier) cannot find refuge with a nemed, however high the rank of this
nemed might be.
KING (RI/)
There are some differing categories of kings, which I
will cover in the Social Structures treatment more detailed. Basically
this differences depend on how many tu/atha are under the control of
such a king, and the honour-price of a king can thereby vary between 7
and 14 cumals (legal term which will be explained later). There are
certain legal requirements for a king, not fulfilling any of these can
result in a reduction or even loss of his honour-price and, accordingly,
his status. These requirements are:
KING'S JUSTICE (FI/R FLATHEMON)
This requirement covers pretty much of the betterknown
requirements for a king which frequently appear in the epics. Into this
category fall such restrictions as not working with mallet, spade or
axe, always be accompanied by a proper retinue, not defaulting from ones
oath, being able to enforce ones right, of course making correct judgments
but also cowardice in battle (a wound in the neck when fleeing from a
battle reduces his rank to that of commoner except when breaking through
the enemies lines and being wounded in the neck then), physical
disfigurement and breaking ones geisi. The well known expected result
for a breach of the kings justice is the rebellion of earth against the
king: If he breaches it there will be infertility and bad natural
conditions and political instability.
LEGISLATION
seems not to be part of a kings rights according to
Early Irish Law. However, a king can issue an ordinance (rechtgae) in
times of emergency.
LAW-ENFORCEMENT
Obviously most law-enforcement was done through an
elaborate system of suretyship, pledging and distraint (all explained
later), so the king was not directly involved in the usual
law-enforcement procedures. However, in case of emergency ordinances
(rechtgae, see above) and in legal problems extending over the borders
of one tu/ath the king was required to enforce the law on behalf of his
subjects.
JUDGMENT
Obviously a king was required at least to be present
in more important law cases (along with the bishop and chief poet) and
to approve judgments made in such cases, if not having to judge in such
cases himself. It also seems that if a judge refuses to swear in support
of his judgment, the case is referred to the king, so the king seems to
function as the final institution in law cases that cannot be decided by
lesser judges.
LAW-OBSERVANCE
Of course the king has to observe the law as any other
member of the tu/ath. However, if for any reason a legal claim arises
against the king the king may be represented by a "substitute
churl" (aithech fortha), a man of low rank dependent on the king
which can be legally distrained without affecting the honour of the
king. If the king has no such substitute churl, the plaintiff can still
distrain the king, but only through a very special procedure.
LORD (FLAITH)
Basically the rights of a lord are mainly to his
clients, as they make up his status. A lord must have a certain number
of clients to be a lord at all, the lowest level being the so-called
aire de/so (literally "lord of vassalry") which has 5 free and
5 base clients (free and base clientship will be explained later).
However, a lord has to be fair against his clients, he looses his honour
if not fulfilling his obligations towards his clients, and may also
loose his honour-price for various offenses including refusal of
hospitality, sheltering a fugitive from the law, tolerating satire,
eating food known to be stolen, and betraying his honour.
Additionally there exist relatively detailed descriptions of what he has
to own additionally to having the required number of clients, up to the
size of his house and number of beds in it.
Additionally a lord can have dependants of unfree rank (in contrast to
the clients which are freemen) This includes the fuidir (semifree
tenant, who cannot make a legal contract without permission of his lord
and has to fulfill any task the lord chooses to assign him to (in
difference to clients which have a fixed set of tasks to fulfill). The
fuidir has to be maintained by the lord who also has to pay for any
offences, but may himself collect any penalties due to offences against
the fuidir. However, the fuidir may leave his lords property if he
leaves behind no liabilities or debts and surrenders 2/3 of the produce
of his husbandry to his former lord. Then there is the bithach
(literally "cottier, one who lives in a hut") which is usually
equated with fuidir, the distinction between the ranks being unclear.
Finally there is the senchle/ihte, which is a bothach or fuidir whose
forebears have occupied the same land for at least three generations.
Senchle/ithe literally means "ancient dwelling". Such a person
is not a slave, but is bound to the land and cannot renounce his
tenancy. If the land changes owner, so does the senchle/ithe.
HOSPITALLER (BRIUGU)
All householders are to some extent under obligation
to provide hospitality to any freeman in Irish Law. However, for a
hospitaller this obligation is said to be limitless (KELLY 1988, 36). He
has to provide hospitality to everyone, as often he may come, and not
keep an account against anybody who comes. A hospitaller stays of this
rank until he refuses hospitality. "The office of briugu seems to
have been one by which a wealthy man of non-noble birth could acquire
high rank" (KELLY 1988, 36).
CLERICS
There's nothing much to say about the Clerics apart
that they had to be a man of the Church and fulfill the expected duties.
Else than that an additional fine is entailed by any serious offence
against clerics or church property.
Where the church acted as a lord (i.e. as a landowner or by having
clients) all laws relating to lords and clients were to be obeyed by
both parties as if the church were a lord.
POETS (FILI or E/CES)
The only lay professional who had full nemed status
were the poets, whose main function it obviously was to praise and
satirize. According to the text Bretha Nemed a poet derives his status
from three skills: "imbas forosna" (encompassing knowledge
which illuminates), "teinm la/eda" (breaking of marrow?) and
"di/chetal di chennaub" (chanting from heads?) (KELLY 1988,
44).
The main right of a poet was that for every poem commissioned by a
patron he received a fee (du/as) depending on his rank and the nature of
the composition. He is however expected to produce quality, if he
doesn't he looses his nemed status. If the poet is not paid he has the
right to satirize his patron.
Irish law recognizes two kinds of poets, the fili and - inferior in
status and accomplishment - the bard, who receives only half the
honourprice of a fili of the same rank.
WOMAN POET (BANFILI)
It seems to have been possible for women to become a
full-fledged poet. It seems, however, that this was regarded as unusual,
maybe only taking place when a poet had no sons and one of his daughters
showed aptitude for his profession.
PERSONS OF DOERNEMED OR NON-NEMED STATUS
Into this category fall all the freemen and all
craftsmen which are not specifically noted under nemed rank as well as
lawyers, physicians and druids. Basically, all those persons have
independent legal ability, they can make contracts, give pledges or
function as sureties for matters that are not above their honour-price.
Some of these can also come together to make legal dealings up to the
sum of their honour-prices (usually in case of swearing in court
together, called compurgation). Additionally, those of doernemed rank
usually have some legal abilities or privileges according to their
profession.
CRAFTSMEN
The craftsmen, and here I include also the lawyers,
physicians and druids have some additional legal privileges coming from
their profession. These mainly fix the sums due to them if they carry
out their job (as the 1/12 of the legal claim that goes to the lawyer or
the feeding due to a physician that cares for a wounded or sick person),
and adversely set the rules for what they have to pay as a penalty if
they commit any error in making their job (as the judge pronouncing a
false judgment).
SERVANTS
in the household of a king or lord are treated
separately here because they have an independent legal capacity of some
kind (although the full extent as to how much independent legal capacity
they had is not exactly known), but their honour-price (and thereby the
fines and penalties for offenses against them) are fractures (usually
one-half) of the honour-price of their lord.
LEGALLY INCOMPETENT PERSONS
Finally we have the group of legally incompetent
persons (also called "senseless", ir. ba/eth or e/conn). These
persons have no independent legal capacity and therefore cannot make a
contract without authorization of their legal guardian, they cannot
carry out distraint, act as witnesses or sureties or give pledges.
However, some of them have some limited legal capacity of their own,
especially the woman and the son of a living father.
WOMEN
Even though women have no independent legal right
usually there are some exceptions to this rule, most of concerning
marriage and divorce. A woman had always some limited influence on the
joint property she shared with her husband and, depending on her status
in marriage, full influence on her own property if she had one, with the
only limitation that the husband could at any time renounce any contract
she had made which he considered detrimental to their joint household, a
capacity that a wife had in regard to contracts made by her husband as
well.
Generally, the honour-price of a primary woman (c/etmuinter) is half
that of her husband, concubines (all further women) are rated usually at
half of that of a primary woman. However, concubines may choose if they
want to be under the legal rule of kin, husband or sons. A primary wife
is usually expected to be of the same social rank as her husband.
Wife's had to be bought more or less in Irish law by giving a
bride-price (coibche) to the father of which the bride gets a share. In
contrast to most other early legal system, Irish law does not seem to
care about bridal virginity, even though there are some hints that
virginity was expected in case of the chief wife.
Divorce was permitted for many reasons, and depending, depending on the
kind of marriage and on who was the one "legally responsible"
for the breaking of the marriage received less or even nothing from of
the joint property. Separation without fines or penalty is also
possible.
Additionally a woman has legal capacity in regard to "her"
property, she can give a plead on behalf of another from it (i.e. her
embroidery needle, work-bag or dress) and can also function as a witness
in case of problems in regard to her household or women's jobs like
weaving.
Offences by women were cared for by her legal guide, who had to pay any
debt or penalties, while any debts or penalties for offences against her
would have to be paid to her legal guide.
FEMALE HEIR (BANCHOMARBAE)
If a man has no sons his daughters can inherit a
lifetime interest in his land, which installs her with every legal
capacity a man would have. In case she marries a landless men or
stranger, the legal roles in marriage are reversed: she pays the fines
for him and makes the decisions for their joint-household. However, upon
her death, the property is not inherited to her husband or sons, but
reverts to her own kin.
SON OF A LIVING FATHER
An adult son who's father is still alive usually has
no legal capacity of his own. However, he can annul any contracts of his
father that would damage or diminish his future inheritance, as long as
he fulfills his duties as a son (i.e. doesn't leave the land of his
father without being given leave, obeys his orders, etc....
CHILDREN
Children under the age of 14 have no legal
responsibilities and no legal capacity. Between 14 and 20 boys/young men
acquire some legal capacity if they inherit land, but this is limited to
a certain extent. Conversely, the rank of a man above 20 who has not yet
inherited stays limited to that same amount. Offences by and against
children are usually dealt with by the father or the kin.
The rearing of children is usually the responsibility of both parents,
except when the child was conceived through wrongdoing on the part of
the father, in which case he alone is responsible. Usually children
would be sent away on fosterage while still very young. Fosterage is a
legal contract considered beneficent for both parties. During fosterage,
the foster)father is fully responsible (legally) for any offences committed
by the foster-child.
INSANE PERSONS
Any offences committed by or against insane persons is
dealt with by their legal guardian. They have no independent legal
capacity at all. However, exploitation of an insane person is against
the law.
DISABLED PERSONS
Some physical disabilities may also limit legal
capacities of a person (i.e. such a person cannot be king, or somebody
infertile may not marry). Mocking somebody for a physical disability
incurs a heavy fine.
SLAVES
Basically, a slave has no legal rights at all.
LAWS DEALING WITH PROPERTY
The main items of property mentioned in the laws are
land, buildings, livestock, domestic and farm utensils, weapons, clothes
and ornaments. (KELLY 1988, 99).
LAND
Land is probably the most important kind of property
in Irish law at all, as someone owning no land cannot be legally
independent. The basic unit of land usually mentioned in the law texts
is called a "cumal", a legal term that literally means
"female slave" but came to be used as a legal unit for
different purposes as in this case. Such a cumal of land probably had
the size of about 13.85 hectares, and had a value of between 8 dry cows
for bogland and 24 milch cows for best arable land.
Most of the farmland seems to have been "fintiu" (kin-land),
which was divided between all adult male kinmembers to be farmed. Every
one of these farms as an individual, but some control about what he does
with this land remains with the kin, e.g. he can't sell it or parts of
it without permission of the kin.
If somebody has acquired further land (because of successful farming or
success in a profession or whatever reason else, as long it is legally acquired
and not kinland of his own kin), he may dispose of it according to his
wishes much easier. Still, the kin retains a right to a certain share of
it (2/3rds to 1/3 rd depending on why the owner could acquire it), which
becomes part of the kinland at his death.
A certain part of the territory of each tuath is attached to the
function of kingship, it becomes the property of each king when he
becomes king.
The land owned by a man is usually inherited by his sons, the process of
dividing taking place in the way that the youngest son divides the
holdings in equal parts, and then the eldest has the first choice, the
second eldest the second, and so on. Every son from a legal (i.e. approved
by the kin) marriage has a right to get his share from this, so sons
from second wife's and concubines do inherit as much as those of the
primary wife do. Sons of illegal or unusual marriages (e.g. if a
banchomarbae marries a man from a foreign country) usually don't
inherit, or at the best get a smaller share than "legal"
children.
In some cases kinland may also be redistributed amongst the kin, giving
a greater share to a more prolific branch of the kin from a less
prolific with large holdings. However, a minimum of land worth 14 cumals
(the requirements of property for a bo/aire) would still go to any heir
and only what remained after that would be redistributed to other groups
of the kin. Female inheritance of land only was possible in case that
there were no sons of the deceased. Under certain conditions, adoption
could also qualify somebody for inheritance of land.
Cooperative farming between neighbors was usual in case of such farmers
who had only little property, the most common form of this is
co-ploughing, but also joint-herding was common. Such cooperation's were
to be bound by contracts (contracts will be explained in detail later).
Additionally, there existed some other rights on land. Private ownership
of land is something very important in Irish Law, being extended even to
mines and fishing-rights, but still there were some "common"
rights on land, such as collecting enough wood to make a fire, a quick
dip of a fishing net into a stream, collecting a handful of hazel-nuts
if one is hungry etc., as long as one is a person of legal standing.
Probably there were also some limited rights to hunt on someone's land,
however, the owner of the land in any case got a share of everything
hunted on his land, with the share greater if he had not given
permission to the hunter.
Additionally to this, landholders had more expressed rights on the
properties of their immediate neighbors. If necessary, he can cut a
mill-race through the neighbors land, provided he pays compensation for
the value of the land. Where there was no other access, he was allowed
drive his cattle, if properly supervised, across his neighbors land.
Even the problem of the fruit of a neighbors tree falling on one's land
is regulated.
Doing damage to the land of somebody else is considered as an offence,
be it made by a person or by domestic animals. In the case this happens,
the offender (the owner in case of animals) has to pay a fine.
BUILDINGS
There are a number of laws that treat buildings and
damage to them. First, a certain of ones house and a certain number of
ones buildings is required for certain social strata of society. The
typical bo/aire, for instance, has a dwelling-house of at least 27 feet
diameter, and outhouse of 15 feet, a kiln, a barn, a pig-sty, a calf-pen
and a sheep-pen.
Damage to any part of the house brings about a heavy penalty, starting
with such offences as crossing a man's courtyard without his permission,
or opening the door of his house or looking into it unbidden. There are
also detailed fines for damage to any part of the house, regulations
that tell with how much damage to the door-post of the front or
back-door has to be compensated, and so on.
MOVABLE PROPERTY
As with the other kinds of property already mentioned,
there are also some minimum requirements in moveable property to keep up
a certain social status. As such, we have a very complete description of
what was expected to be in the possession of a bo/aire, starting from
the tools for agriculture, over his animals, to his and his wife's
clothing. Especially noted were some parts of the equipment, like
ornaments, weapons, clothing and vessels which were usually used as
pledges (for pledges see later).
Moveable property could be transferred in a number of ways, but almost
all of these are contracts. However, a few words should be said here on
Irish currency. Through all the law texts, a very complex system of
currency is used, basically because there was no "fixed"
currency in the way of coins in Ireland before the 11th century AD, the law texts
however were mainly taken down in this period where more than one
currency system existed. However, as in fact all offences against the
law can be compensated through payment of fines, currency units are
frequently used throughout the texts.
CUMAL
As already noted elsewhere, the basic meaning of Cumal
was "female slave". It is, however, in the law texts most
often used as a unit of value. It can be assumed that originally it were
really female slaves that had to be given, but in the time the texts
were written down we can be pretty sure that this was no longer in
practice, but instead a payment of the equivalent value in other
currency was made.
CATTLE
Cattle probably was the main kind of currency used,
and is also the predominant kind of currency used in the law texts. The
basic unit here is the milch cow (lulgach or bo/ mlicht), usually
accompanied by her calf. 2/3rds of her value is the in-calf cow (bo/
inla/eg), the three year-old dry heifer (samaisc) is half the value of
the milch cow, the two year-old heifer (colpthach) 1/3rd, the yearling
heiifer (dairt) 1/4th and finally the yearling bullock (dartaid) at
1/8th. Below this, values are given in sheep, fleeces or sacks of grain.
(Silver) OUNCE
Even though coins as currency seem to have been rare,
two terms have been taken over from Latin to the Irish currency system:
ungae (from Latin uncia "ounce") which is made up from 24
screpul (from Latin scripulus "scruple").SE/T
Usually used as the unit for honour-prices below the
level of kings, se/t (treasure, jewel, valuable) is also used in fines.
RELATION OF THE CURRENCIES
The usual relation between those currencies seem to
have been:1 cumal = 3 milch cows = 3 ounces of silver = 6 se/ts.
However, there also exist some texts that have slight variations of
these relations, and some even have strong deviances like in Ca/in
Aicillne, where the relation of 1 cumal = 20 sets is given.
LOST PROPERTY
Movable property of course can get lost. Basically
Irish laws deal with lost property in a way that the closer it is found
to the home of the one who lost it, the smaller is the share of the one
who finds it. The share of the finder is increased if the item is found
in a frequented or likely place. The finder of lost property had to
proclaim his find throughout the territory.
If property is deposited (by whatever means and whatever reason) on the
land of somebody else, the owner of this land is entitled to
"autsad" (storage-fee?). The same principle is applied in
Bechbretha, where the owner of a land on which a swarm of known origin
settles is entitled to ownership of the bees or a share of their
produce.
CONTRACT LAW
Contract Law is one of the most important parts of
Irish Law (in my eyes THE most important). So to say, everything that
one does that goes beyond farming for his own needs has to be bound by
contracts. The primary text on Early Irish Contract Law, Di Astud Chor,
has been edited and translated lately by Neil McLeod and published in
the Sidney Series for Celtic Studies 1, 1995.
CONTRACTS
Basically, it can be assumed that the most common
legal act in early Irish society was the verbal contract or "cor
be/l" (lit. putting of lips), often only referred to as
"cor". Contracts were seen as the exchange of
"fe/ich" (obligations). The parties involved in a contract
were called "fe/chem". The obligation accepted by each
contracting party is to render "folud" (consideration" to
the other. The acceptance of this obligation in turn creates an
entitlement ("dliged") to the counter-consideration
("frithfolud") promised by the other party (McLEOD 1995, 14).
Basic regulation in regard to a contract is that a person cannot make a
contract independently for an amount greater than his honour-price. If
he still wants to make such a contract he must get permission from his
kin. Equally, witnesses and sureties can only secure contracts up to
their honour price (or parts of contracts up to their honour-price)
(KELLY 1988, 158).
For a formal contract there were certain legal requirements:
WITNESSES
For a contract to become formal it was necessary to
appoint some witnesses who were specifically charged to note and
preserve in their memories the terms of the contract. The technical term
for such a contractual witness was "roach", though usually the
term for eye-witness, "fi/adu" is used in the law texts. In
church law these witnesses were often replaced through written evidence.
SURETIES
Each party in a contract usually had to bring a surety
for their part of the deal. The sureties fulfilled the role of enforcers
of the contract, in two ways. First, sureties usually were of higher
social standing than the contracting party, so they were more vulnerable
to disgrace if the contract wasn't fulfilled by the party they secured.
Second, they were in a better position to ensure the adherence to the
contract than the other party to it. Usually the surety was a superior
to the person making a contract, be it the father for his son, the lord
for his clients, the abbot for his monmastic subordinates.
There were three basic types of surety. The first is the
"naidm" or "macc", the "enforcing surety",
which promised his honour that the party that had invoked him as a
surety would not default from the contract. If it still did, he had to
distrain (see for distraint later) the defaulter and, in addition, was
entitled to his honour-price from the defaulter. The second type of
surety is the "ra/th", the "paying surety". The
paying surety guaranteed that he would make good from his own resources
the debts of his party, if it defaulted and the naidm failed to enforce
payment. In such cases, however, the ra/th was also entitled to his
honour-price and to recover, with interest, the amount he had paid to
satisfy the claims of the creditor. (McLEOD 1995, 17). The third type of
surety was the "aitire", the "hostage-surety", who
was most probably invoked in cases where the status of involved persons
was so high that enforcing them would have shown as problematic or in
cases where contracts were made to avoid blood-feuds, and in case of
sick-maintenance. If in this case the party of the hostage surety
defaulted, he had to submit himself to the aggravated party. The
defaulter then had 10 days to ransom the hostage, after which the
liberty and life of the hostage were forfeit. The hostage could redeem
himself with paying the corp-dire (Body-price) for a human body in Irish
Law (7 cumals), which he of course then was entitled to recover from the
defaulter, who remained liable to the contract as well.
Contracts without a naidm and a ra/th were generally considered
unenforceable.
OATHS
However, in case that somebody invoked "the men
of heaven and the gospel of Christ", i.e. gives an spiritual oath,
the contract is also valid.
FORMULAE AND HANDSHAKE
There were certain formulae with which contracts were
made, and probably a handshake was also part of the binding of a
contract.
TIME
However, the contracting parties had a certain period
in which they could cancel the contract. This time is the until the
sunset on the day the contract was made (and later seems to have been
extended on a 24-hour period). Once this time has elapsed the contract
becomes binding unless it has some defect capable of grounding
rescission.
INVALID CONTRACTS
There are some situations which make a contract
invalid. Under these fall for instance contracts made under duress, in
fear, or drunken (in the last case however this doesn't apply to
co-ploughing agreements, which are fully valid even when made while
drunk). Also the earlier contracts take precedence over later ones.
If a contract contains a fault which could not be reasonably detected by
the disadvantaged party, the contract can be rescinded or adjusted.
Also certain people cannot make independent contracts of their own, like
minors, lunatics, slaves, captives or aliens, so any contract with them
is invalid.
Additionally, in close social relationships, e.g. husband-wife,
father-(grown-up) son, abbot-monk, some additional regulations and
limitations exist on the ability of a person to make legal contracts.
Basically in those cases, the superior can cancel out almost any
contract of his inferior (i.e. the father of his son, husband of wife ,
...), while the inferior can only cancel out such contracts of his
superior that could be detrimental to itself (so if the father wants to
sell all his land, the son can object, as this will diminish his social
status upon inheriting, as we already know that Social Status depends in
part on the land possessed).
PLEDGES
An important part in contract procedure is fulfilled
by pledges ("gell"). A pledge is an object of value delivered
by its owner for a fixed period into the custody of another (KELLY 1988,
164). Basically, a pledge shows the willingness of a person to meet the
other's claim in a certain amount of time, or to submit the case to
arbitration where it is disputed. Usually, the pledge is an object
closely associated with the life of the one who gives it, so a champion
would pledge his weapon, a farmer one of his tools, a noble a precious
brooch and similar. Only a kink, a church dignitary or a lord may pledge
objects of gold.
Pledges may already be given before any offence has taken place. E.g. it
was expected from neighboring farmers to exchange fore-pledges ("argyle")
to show their willingness to at least submit cases of injury of animals
and especially animal trespass (explained later) to arbitration.
As well as giving pledges on ones own behalf, a person may give a pledge
on behalf of another. In this case, he is entitled to receive an
interest ("fuillem") as long as the intem is out of his
possession. In case the pledged item becomes forfeit, the interest is
increased and a heavy compensation has to be paid to the former owner.
OFFENCES
Additionally to the mentioned legal rights and
obligations there were a number of actions considered as legal offences.
OFFENCES AGAINST THE PERSON
KILLING
The most serious offence against another person is to
kill it. However, in difference to many other legal systems, killing was
not punished by making the offender subject to the same fate as his
victim, but the law allowed the killer to atone for his crime by
payment.
As it seems, this payment was made up of two basic
types of fine and had usually to be paid to the victim's kin.
The first type of fine is the fixed penalty for
homicide, which amounts to 7 cumals for every freeman, irrespective of
rank. It is generally called "e/raic" (in later Old Irish
replaced by "cro/"). This goes to the victim's derbfine, apart
from the enforcer's third (trian tobaig) which may be deduced if it is
necessary for payment to be enforced by a lord or other person of power.
(KELLY 1988, 126)
The second kind of fine is based on the honour-price
("lo/g n-enech") of the victim's kin. Every member of the
victim's kin get's a certain fraction of his honour-price, starting with
his full honour price if it is a very close relative of him (i.e.
father, mother, sons, daughters, brothers & sisters), half of it if
one step away (Paternal uncle/maternal aunt), down to one seventh for
the killing of foster brother or foster) father. It is clear from that
that killing could be extremely expensive if the victim was of high
rank.
If for whatever reason the payment isn't made, the
victim's kin can hold the killer captive and do anything with him what's
to their liking, from selling him into slavery to putting him to death.
If the killer escapes and his kin doesn't pay the fines, the victim's
kin is obliged to carry out a blood-feud to exact vengeance (dii/gal) on
behalf of the victim. If the victim was a lord of any kind, his
base-clients must join the vengeance-party.
FINGAL (Kin-slaying)
It is clear from the above that in case of kinslaying
the above system of atonement by payment doesn't work (as the kin would
have to compensate itself). Additionally, it can't be avenged by other
members of the kin as they then would commit fingal themselves if they
put the killer to death.
So the usual punishment for this act is that the
offender is thrown out of the kin and thereby looses all legal rights.
He more or less becomes a non-person.
SECRET KILLING
Secret killing is basically the same offence as simple
killing, but in this case the murderer either conceals the body, leaves
it in the wilderness or fails to acknowledge his crime. As in most early
societies, this is considered as a more serious crime than normal
slaying, and therefore, if found guilty, the offender has to pay twice
the normal amount for killing.
LAWFUL KILLING
Irish laws recognizes some forms of killings that do
not entail a penalty, and therefore have to be considered
"legal" killings. This ranges from killing in a battle over to
kill a thief while caught in the act of stealing to killing an
unransomed captive (cimbid) who may be killed by the individual or kin
he wronged. It is also allowed to kill in self-defense (although that's
a somewhat complex matter).
INJURY
For injuries there also has to be paid compensation,
varying according to how severe the injury was and if there stay any
lasting blemishes. If a person is not fully recovered after nine days, a
physician judges if the person will ever recover at all. If not, the
offender has to pay the severe penalty for "cro/lige ba/is"
(blood-lying of death), more than the usual penalty for killing.
However, this fee frees him of any further obligations, may the victim
now die or recover.
SICK-MAINTENANCE
If the victim is not fully recovered after the nine
days, but the physician believes that he will recover, the offender must
take him on "folog n-othrusa" (sick-maintenance, often
referred to simply as "othrus"). This entails bringing the
injured person to the house of a third party and nursing him at the
culprit's expense until he is cured. Sick-maintenance is considered a
formal contract and therefore has to be bound with pledges and sureties.
Additionally, a lot of provisions are made as to what
is required for sick-maintenance, form how many persons the victim may
take with him as his retinue, if he is allowed to one, up to how much
food he and his retinue have to get while being on sick-maintenance.
However, even in the time of the writing of the law texts,
this practice was about to be replaced by payment instead of
sick-maintenance, as this practice doubtlessly was cumbersome for all
involved parties.
LAWFUL INJURY
Under certain circumstances, injuries are also not
illegal and no penalty has to be paid for such injuries. Included in
this list are bloodshed by a competent physician during authorized
surgery, or by children during a game (as long as no foul play is
involved, by opponents in a duel and so on.
RAPE
Irish Law discerns two kinds of rape
("forcor" and "sleth"), even though for both the
same penalties apply. Forcor hereby refers to forcible rape, while sleth
covers all kinds of situations where a woman is subjected to intercourse
without her consent.
Whatever the kind of rape was, the rapist must pay the
honour-price of the victim's superior (usually father, husband, son or
guardian), and the full e/raic if the victim was a girl in marriageable
age, a chief wife or a nun that has not renounced the veil, half that
for any other kind of woman. If the victim becomes pregnant as a result
of the rape, the rapist is fully responsible for rearing the child.
However, there are some cases where rape incurs no
penalty, whatever kind it may be. In most cases this applies where the
woman raped was promiscuous or adulterous, such as prostitutes or a
married woman that agrees to meet another man. However, it the woman
conceals the rape, there is also no penalty for it. If the rape happens
in a town or settlement, the woman is obliged to call for help, but not
so if the assault is made in the wilderness.
SEXUAL HARASSMENT
Her full honour-price must be paid to a woman kissed
against her will. If her dress is raised, she also has to be compensated
(even though we do not know how as this is not stated). AN assailant has
to pay ten ounces of silver fro touching a woman or putting his hand
inside her girdle and seven cumals and three ounces for putting his hand
under her dress to defile her.
SATIRE
For satirizing a person ("a/erad - to
strike" or "rindad - to cut") the penalty was the payment
of the victim's full honour-price. This included a wide range of verbal
assaults, like mocking a person's appearance, coining a nickname which
sticks or composing or repeating a satire. Even mocking a person's
defect by gesture may make a person guilty of satire. Also if a person
is satirized after death, the full honour-price, as if he were still
alive, is paid to his kin.
However, a satire may be legal, and was used as a
legal instrument, as it was one of the pressures, especially against
peoples of high rank, to obey the law. If a person, especially kings and
nobles, tolerates a satire, he looses his honour-price. As such, if the
satire was illegal he had to extract compensation from the offender, if
not he had to give a pledge that he would pay whichever fines he owed.
In case of satire the satire could also be publicly
retracted by composing a praise-poem. Such an act would cancel the
original satire.
REFUSAL OF HOSPITALITY
Hospitality was considered as a duty of every freeman.
Thus, to refuse somebody food and shelter where it is due makes the
offender guilty of the offence of "esa/in" (lit."driving
away", also termed "etech", refusal) and requires a
compensation appropriate to the injured party's rank. The only
exceptions to this practice are the ranks of fer midboth and o/caire,
which had due to their lacking of property only to provide hospitality
to their lord as set in their clientship contract.
On the other hand, in some cases, hospitality has to
be refused. A known criminal must not be fed or protected.
If a person indirectly causes another to refuse
hospitality (for instance if not returning borrowed food in due time),
he must himself pay the honour-price of the embarrassed host.
VIOLATION OF PROTECTION
One of the important principles of Irish Law was the
right of a freeman to give legal protection ("sna/dud", also
"turtugud") for a certain period of time to another person of
equal or lower rank. To kill or injure a person under protection is to
commit the crime of "di/guin" (violation of protection), for
which the offender has to pay the protector's honour-price additionally
to any other fines payable due to his deed.
Additionally, any freeman was also felt to exercise
permanent protection over his own house and its environs, known as
"maigen di/gona". This usually covered the area he had fenced
as his courtyard. If a person was killed or injured inside this area,
this action made the culprit guilty of di/guin against the householder.
However, it is illegal to give protection to various categories of
absconder, e.g. a runaway wife or slave, a fugitive killer, an absconder
from his kindred etc. (KELLY 1988, 141).
OFFENCES AGAINST PROPERTY
Of course, the laws do not only care about offences
against the person, but also for offences against a person's property.
There's a wide range of texts dealing with damage done to grass, crops,
trees, breaking of fences up to erecting of a building on another's
land.
ANIMAL TRESPASS AND HUMAN TRESPASS
Probably one of the most common legal problem in
ancient Ireland was that of Animal trespass. The text "Bretha
Comaithchesa" (judgements of neighborhood) deals extensively with
such situations. It is recommended by this text that neighbors give
fore-pledges to each other to lessen the chances of disputes arising
from such instances. Of course, a landowner cannot claim for any damage
done to his property by his neighbor's animals, if he has his land inadequately
fenced. The four legal types of fences therefore are described in detail
in Bretha Comaithchesa.
If it, however, happens that a man has his land adequately fenced and
still an animal of his neighbor gets on his land (by breaking through
the fence in whatever way), the general principle of the law is to relate
the amount of compensation to the amount of damage done. Following from
this, the penalty when cattle breaks into a meadow is twice as much as
if it breaks in moorland. Similarly, grazing-trespass is more severely penalized
in winter, when grass is scare, than in summer, where it exists in
abundance.
Additionally, certain kinds of animal trespass may be specially penalized.
E.g. if pigs do not only eat the grass but also root up the ground,
their owner has to lend alternative land until the damage to the field
has been restored. As well there are special penalties if a dog
defecates on the land of a neighbor.
If there is malice or neglect on part of the owner of the trespassing
animal, the penalty is greater, as then this is considered as
"human trespass" (duine-chaithig) rather than animal trespass
(rop-chaithig). This also applies where a farmer drives his cattle onto
his neighbor's land, or deliberately breaks down a fence. This also
applies if the farmer lets his animals trespass across three or four
holdings. Similarly, trespass by night involves twice the penalty than
by day, because "cattle should be locked up in an enclosure by
night" (KELLY 1988, 143).
Animals that cannot be reasonably restraint by fences, like bulling
bulls, cows in heat and similar induce no penalties. Cutting trees is
considered as human trespass if it happens on another one's land.
OFFENCES AGAINST BUILDINGS
Basically the same principle applies here as it does
with trespass: The penalty is in relation to the damage done.
Additionally, if buildings are used without the consent of the owner, a
like penalty applies.
Exception to this rule are damage to a person's mill which is used
illegally, in this case the honour-price of the owner has to be paid
additionally to restoration of the damage.
As most buildings in the time of the law texts were built from wood,
there seem to have been special considerations about arson. However, the
text on this, "Bretha Forloiscthe" (judgements of arson) has
not come down on us, so its contents can only be glimpsed at from a few
surviving commentaries. Apparently, the text distinguished between fires
caused by neglect and such set deliberately, and laid down the fines for
the burning of various buildings and for causing death or injuries to
people or animals inside. Nonetheless, a king is entitled to perpetrate
arson on his royal circuits if his subjects have evaded their duties
towards him. (KELLY 1988, 145).
DAMAGE TO MOVEABLE PROPERTY
Little is known from the surviving Irish law texts on
damage to moveable property, but it can be assumed from what we know
that a restitution had to be paid which equaled the worth of the damaged
object, as it is in Welsh law. No fines had to be paid if the damage was
done to precious objects, as the owner was expected to keep them safe.
More attention is devoted to the damage of livestock in the Irish laws.
Here the same principle applies as in case of animal trespass.
Additionally, there existed a separate text on dogs,
"Conslechta" in which injuries by and to dogs were treated,
but of this only a few quotations and commentaries have survived.
THEFT
Once again, the main text on that matter,"Bretha
im Gata" (judgements of theft), is missing. We can, however, guess
at what stood in that text from various other texts. The basic principle
is, that if you steal something, you have to give back twice the amount
of the stolen good, except when the stealing involved large livestock,
where four times to five times the amount stolen had to be returned.
Additionally, if you stole something from the property of a third person
(so if something belonging to A but lent to B), additionally the
honour-price of the person from which's land the item was stolen has to
be paid, one third of which goes to the person to which the item
belonged, two thirds to the person from which's land it was stolen.
As far as we can guess from other texts, there was also distinguished
between theft by stealth (gat) and theft with violence (brat). If this
paralleled the Welsh law, where theft by stealth induced a higher fine
than one with violence is not known.
Additionally, the place from which a good was stolen was taken into
consideration. The rule is, the further it is from the house, the less
penalty has to be paid.
However, some cases of "theft" were allowed to any freeman,
such as taking something from a burning building, from a corpse on a
battlefield, scrap metal from a forge, the sweepings of a treshing-floor
and similar waste.
The sale of stolen goods is included in the list of invalid contracts,
and the man who receives these goods is considered a "fer
medo/ngaite" (man of middle theft), but only if he knows that the
goods are stolen. If a thief brings stolen items into the house of
somebody, he must pay half of the honour-price of the householder, if he
brings it only into the airlise (the enclosed area around the house), he
has to pay one seventh.
Stolen goods may not be reclaimed if they crossed the border as part of
the recompense for the violation of a treaty.
A habitual thief looses all his rights in society. If he has to be
punished, the usual punishment is hanging.
REDUCED LIABILITY FOR OFFENCES
There are a number of situations in which liability
for an offence may be reduced or even cancelled.
ACCIDENTS
Even though usually offences entail a penalty, there
are certain cases where there is no liability for the offender, as the
offence happened accidentally. As such, no compensation can be claimed
if one gets hurt when getting to close to a working craftsmen, or in any
case where the person or thing damaged was knowingly exposed to a
dangerous situation. As such, no penalty can be claimed if a person is
injured by horses during an "o/enach" (feast), or boys injured
during play (like hurling).
(A special note for our weapon-training fans: "However, if a boy is
injured in the more dangerous 'fi/anchluichi', "paramilitary
games", such as spearthrowing or hurling rocks, the culprit's kin
must apparently provide sick-maintenance" [KELLY 1988, 151])
Normally, the owner of an animal is responsible for any damage it does,
there are however some cases in which this doesn't apply and the damage
is considered being an accident.
IGNORANCE
"Anfis" (ignorance) may halve the penalty
for an offence, such as in cases of illegal distraint, or killing a
clerical student whose status was not known to the killer. It sometimes
may even cancel out any penalty. For instance, a lord eating stolen food
in ignorance is not committing any crime.
Ordinary, if an offence is committed, the injured party must take the
appropriate measures against the culprit. If he fails to do so within a
fixed period. If not, the case "dies from negligence", but
ignorance of any damage done can expand this time limit.
NEGLIGENCE
Here the legal principle seems to be "an offence committed
through negligence entails only restitution" (CIH 2195.12-3).
However, in some cases negligence requires more than restitution, e.g.
when driving somebody else's cattle. If an injury or death is caused by
negligence, this may halve the penalty.
STRESS OR NECESSITY
A penalty for an offence may be cancelled if it is committed
under mental or physical stress. As such, the jealous first wife is
legally entitled to inflict injury on her husband's second wife under
certain circumstances (KELLY 1988, 153), but also herbs for an invalid
or a morsel of food desired by a pregnant woman can be taken without
penalty.
DRUNKENNESS
There is no hint that damage or injury are treated
more lenient when committed under drunkenness. However, contracts made
when either party was drunk are usually invalid, except for contracts of
joint ploughing, clientship or in regard to the law of neighbourship.
INSANITY
Usually his legal guardian is responsible for the
deeds of an insane person. However, some things like injuries caused by
missiles thrown by an insane person are treated as accidents and
therefore no compensation is due.
LIABILITY OF ONLOOKERS AND ACCESSORIES
A person who is witness of an offence may be guilty of
"aircsiu" or "forcsiu" (both meaning
"looking-on"). There are quite a number of cases where this
can happen. Additionally, there are a number of cases where an onlooker
may become an accessory to a crime. This entails various penalties,
starting with the full penalty for the one who instigates a crime,
accompanies the criminal and exults in it when it is done, down to one
quarter of the fine for the original crime for somebody looking on but
not trying to stop a crime. Of course, everyone trying to stop a crime
as well as persons of which was not expected that they could stop it
like clergy, women, children and persons of unsound mind would not have
to pay any penalties. Additionally, every informer who betrays a
criminal undertaking, even though he may himself have been involved, is
free from liability.
A person who provides hospitality or protection to a known criminal is
also regarded as an accessory.
LIABILITY AFTER DEATH
Usually, a men's personal offences die with him and do
not pass on to his heirs. However, if a man dies while committing an
offence, his heirs are liable to pay the fines for this one offence.
If a man is hostage-surety (aitire), his responsibilities do not pass on
to his heirs. However, if he has been paying-surety (ra/th), liabilities
which he has incurred through his suretyship do pass on to his heirs in
the derbfine (KELLY 1988, 157). Such liabilities and debts on a person's
property do not become settled until the fourth generation.
Heirs, however, are not entitled to things loaned out while the owner
died.
LEGAL PROCEDURE
After having dealt with the prescriptions the laws
make, we will now proceed to actual legal procedure. So to say, what
happens, if one of the aforementioned laws is violated?
DISTRAINT (ATHGABA/L)
Basically, legal procedure in Ireland was not directly
a matter of public administration, which was, in the times the laws were
written down, still in an embryonic stage. As such, it was required of
the wronged individual or his kin to take care of his legal rights by
himself in most of the cases. To do this, he usually has to proceed
along a legally defined path to set his claims.
In case of contract law this usually was made by declaring the pledge of
the other side as forfeit, thereby forcing the other side either to
loose their honour or to settle the claims in court. However, in cases
where no pledges had been given there were other methods required if the
offending party did not fulfill the claims of the claimant and the whole
case had to be brought in front of a court.
The most common form of stating ones claims and thereby initiating a
lawcase is distraint, i.e. usually carrying away a certain number of
animals, most often cattle, equivalent to the worth of the claim, from
the offender (or in some cases from a substitute from him). It is
described in great detail in "Di Chetharslicht Athgaba/la" (on
the four sections of distraint). The text describes the normal procedure
in which distraint has to take place.
Firstly, and this is in fact the initiation of the lawcase, the
plaintiff has to give formal notice (airfo/cre or apad) to the defendant
that he intends to distrain him. Having done this, there is a delay
(anad) of one to five days in which the defendant is given time to
react, either by fulfilling his obligations to the claimant (in case of
a violated contract), paying whatever fines are due or giving a pledge
to signify his readiness to come to terms.
If the defendant fails to react in time, the plaintiff is entitled to
enter the land of the defendant and carry off animals to the value of
the amount under dispute (to/chsal). This must be made in the early
morning in the presence of an "aigne" (advocate). Those
animals are to be put in a secure "pound" which may belong to
the plaintiff or to somebody else. Any injuries to the animals while in
this pound are in the responsibility of the plaintiff.
Now another delay starts to run, called "di/thim" (delay in a
pound), probably of the same length as the original delay. If now the
defendant settles the claim, he gets his animals back and nothing else
happens.
If the defendant however fails to react once again, the final stage of
distraint starts. From the end of the second delay on, the animals start
to become forfeit, a process known as "lobad" (lit. decay) or
"athgaba/l i/ar fut" (distraint with a stay). On the first
day, animals in the worth of 5 se/ts become forfeit, from that on,
animals in the worth of 3 se/ts per day, until none remains. Once an
animal has become forfeit, it cannot be recovered by the defendant, who
however can still settle the claims at any time during this
"decay", by paying the balance of the amount owed and a fee
for the plaintiff's expenses for feeding the cattle while in the pound,
thereby regaining all the animals still left over.
There also exists a special form of distraint, called "athgaba/l
inmleguin", whereby a surrogate for the defendant is distrained,
probably usually a member of the same kin-group as the defendant, even
though he might also be a ra/th (surety) that had guaranteed a contract
that the defendant has broken. In case of distraint of a surrogate, the
period of notification is doubled and the surrogate has to be formally
informed for which offence he is being distraint, where they will be
impounded, and the identity of a "fethem" (legal
representative for the plaintiff). In case of the surrogate being a
kinsmen of the defendant, regulation of how he could get back his
distrained animals or equivalents therefore would be an internal matter
in the kin, if he is a ra/th, he would be entitled to clame back double
the amount distrained plus his honour-price from the defendant (and
could himself then distrain the defendant for that, if necessary).
In certain cases distraint can also take a ritualized for. E.g. a smith
can be distrained by binding a white ribbon across his anvil, thereby
"magically" prohibiting him from working on it.
The above described procedures basically work against anyone of less
than full nemed rank. In case the person to be distrained is somebody of
full nemed rank, special actions have to be taken:
FASTING
If the defendant is of full nemed rank, the claimant
has to fast (troscud) against him to pressurize him to justice. The fast
takes place outside the nemed's house and, at least according to later
commentaries, only last from sundown to sunrise (thereby the claimant
misses the main evening meal) for a certain period, rather than to death
or settlement. If fasting takes place, the nemed must guarantee to
concede to justice by either appointing a surety or giving a pledge. If
he eats during the fast, he must pay twice the amount originally owed.
If he holds out against a justified and properly conducted fast, he
looses his status and all his legal rights.
SUBSTITUTE CHURLS
A person of nemed rank may have a so-called
"aithech fortha" (substitute churl). In case he has, the
plaintiff must distrain this substitute churl instead of the nemed
himself, if he does still distrain the nemed himself he has to pay the
fine for illegal distraint.
RESTRICTIONS ON AND ILLEGAL DISTRAINT
There are certain restrictions on the practice of
distraint. Various circumstances, like the death of a family member, can
allow a postponement, certain animals may not be distrained (like cows
that have just calved). Of course, the reason for such postponements
have to be genuine and proven by witnesses.
If the claimant does not respect a legal postponement, or distrains
animals which he would not be allowed to, or distrains on a holy day or
in defiance of the protection (turtugud) of a third party or in some
other cases, he is guilty of illegal distraint. The fine for illegal
distraint is 5 se/ts.
As there are many and difficult considerations to be made in case of a
distraint, and formal procedures are to be followed, it is important to
have a professional lawyer (aigne) who carries out the distraint on
behalf of the claimant. This lawyer gets one third of the amount
distraint as payment.
LEGAL ENTRY (TELLACH)
Legal entry is the procedure to lay claim to a certain
piece of land. It is also a very formalized procedure, which is detailed
in the text "Din Techtugad" (on legal entry).
The procedure is the following. As a first step, the claimant enters the
land, holding two horses, accompanied by a witness and sureties. He immediately
withdraws again after this "ce/ttellach" (first entry). The
person currently occupying the land may now submit the dispute to
arbitration for a period of five days.
If the occupant didn't react, the claimant now enters the land again,
ten days after the first entry, accompanied by four horses which are
unjoked (and therefore free to graze), two witnesses and sureties, once
again withdrawing immediately. This is the so-called "tellach
medo/nach" (middle entry). Once again, the current occupant can
submit the cause to arbitration, this time he has a three day period.
Twenty days after the original entry, if the current occupant still
hasn't reacted, the claimant makes the "tellach de/idenach"
(final entry), this time accompanied by eight horses which he may feed
and stable, and three witnesses. If now the occupant is willing to
submit the case to a judge, the claimant is granted "speedy
arbitration", meaning that the case will be heard on the next
possible day. If however the current occupant still fails to submit to
arbitration, the claimant acquires legal ownership of the disputed
property (KELLY 1988, 187). He now has to spend a night on it, kindle a
fire, and tend his animals on it.
FEMALE ENTRY (BANTELLACH)
The procedure for female entry is basically identical
to the usual procedure, only that the periods are shortened to 4/8/10/16
days for the respective entries / reactions of current occupants and
that the horses are replaced by ewes, and on the final entry, a kneading
trough and a sieve for baking have to be brought with her.
ILLEGAL ENTRY
It is of course illegal to make such an entry into
property to which one has no right. However, also false numbers of
animals or other failures in the procedure make the entry illegal.
Illegal entry is severely fined and noted, together with illegal
distraint and illegal dueling as the three occasions when the Fe/ni
(freemen of full legal capacity) prosecute illegality.
COURT PROCEDURE
To initiate a lawcase at all, the victim (or a
relative of him) has to publicly indicate that an offence has been
committed, and to take legal action has to hire an advocate to plead on
his behalf. Has a lawcase been formally initiated in that way, a court
hearing has to take place. This is a formalized action, divided in eight
stages which will be described in the following.
Fixing a date for the hearing
This is the first stage in the court procedure. From
what we can deduce from some texts, it was probably set to the fifth day
after the announcement, with the defendant giving a pledge that he will
attend on the third day.
Choosing the "proper path of judgements" by
the plaintiff's advocate
There exist five different paths, being fi/r (truth),
dliged (entitlement), cert (justice), te/chtae (propriety) and coir
n-athchomairc (proper enquiry), which set some specific procedures and
bonds for the further process. If the advocate chooses the wrong path or
changes it during the process, he has to pay a fine of a cow, the case,
however, seems not to be affected by this failure. The five paths do
deal with different kinds of offences mainly.
The giving of security (a/rach)
Now, before anything else happens both parties in the
lawcase must be bound by either a pledge or a surety that they will
abide to the judgements. Which kind of security has to be given hereby
depends on the paths chosen above.
Pleading (tacrae)
The pleading takes place in front of one or more
judges, in a court (airecht). The more complicated the case, the more
judges would be required. The place for this can either be a judge's
house or, in case that numerous witnesses, supporters and similar would
be involved, an open air location was chosen, probably at a regular
site. In front of the court both parties now make their pleading,
probably also involving the hearing of witnesses and sureties.
Counter-pleading (frecrae)
The next step is the counter-pleading, in which both
advocates try to rebut the other party's case. This also may involve the
hearing of witnesses and sureties.
Judgements (breth)
After both parties have commenced their pleading and
counter-pleading, the judges make a judgements.
Announcement (forus)
After the judge(s) have come to a decision, the judgements
is announced, probably also including an exposition on what basis the
judge(s) have come to their judgements.
Conclusion (forbae)
Finally, the case is concluded. This probably involved
some ceremonies, and it is likely that also the putting into effect off
the judgements was part of this stage.
THE MAKEUP OF THE COURT
It is possible to reconstruct the makeup of a court
(probably only one for more important cases, in less important ones the
dignitaries being mentioned in the following would probably be replaced
by lesser ranking dignitaries) from the law texts.
In the center of the court are the judges, in
"the court itself (airecht fodesin). At the back of the court
(cu/l-airecht) sit the king, the bishop and the chief poet (although
these probably could also be replaced by lord, priest and lord's poet,
and some of them probably could be missing as well). To the one side of
the court, in the "sidecourt" (ta/eb-airecht) sit the
historians, overkings, hostages and ra/th- and aitire-sureties. Opposite
to this is the socalled "court apart" (airecht fo leith),
where naidm- and rath-sureties, witnesses and sureties to contracts
(maic cor mbe/l) sit. In front of the court (opposite to the back-court)
is the waiting court, where the plaintiff and the defendant (together
referred as fe/chemain) and their respective advocates sit.
OATHS
One of the most important elements of actual court
procedure was the swearing of oaths, it was more or less the way how
cases were decided.
Overswearing (fortach)
If a case is not clear, and both sides swear to a fact
or bring witnesses that swear, the oath of the person of higher rank
automatically overrides the oath of one of lesser rank.
Denial by oath (di/thech, di/thach)
By swearing an oath one can "swear away"
accusations raised against him.
Oaths on behalf of others (airthech)
Oaths can also be sworn on behalf of other persons,
functioning as a complete substitute. So did for instance some saints
swear on behalf of their whole people.
Compurgatory oath (imthach)
This practice is one of the most important practices
in Celtic law, as it allows each party in a lawcase to back up the value
of one's oath with the oaths of other persons to overswear the other
party. Each additional person swearing on behalf of one of the parties
can add a value up to the worth of his honour-price to the value of the
original oath. The party who finally has the higher total honour-price
overswears the other one. Such compurgatory oaths only back up the
swearing of the principal swearer, in contrast to the airthech which is
a complete substitute.
Repudiation (fretech)
If a husband wants to repudiate his wife (ore
vice-versa), or a kingroup any of his members, but also by a debtor who
has fulfilled his debt and renounces any further claim by his creditor
uses this kind of oath.
False oath (e/thech)
A person who swears a false oath is not entitled to
give testimony about anyone (KELLY 1988, 201).
Female oath (bannoi/ll)
Usually, a woman's oath is invalid. However, in some
special cases a woman's oath is valid, and in some cases even cannot be
countersworn (as in the case of a woman in danger of death at childbirth
naming the father of the child).
WITNESS (FI/ADU)
A witness normally has to support his evidence by
oath. He normally can only give evidence to something he has seen or
heard. Evidence by a single witness is usually also considered invalid,
at least two witnesses are needed in a lawcase. There are some
exceptions to this rule, as that one trustworthy witness is preferred
against two untrustworthy. Any freeman can usually give evidence of up
to his honour-price.
Written evidence
Although probably rare prior to Christianity, written
evidence is considered an "immoveable rock" which overswears
any number of witnesses.
Indirect evidence
Although usually only direct evidence is useable in
court, sometimes also indirect evidence may be used. Most of this
consists of incriminating behavior on the part of the one suspected of
an offence. This includes elements like the breaking of an alibi he has
given or showing obvious signs of nervousness if confronted with the
case. However, indirect evidence is not of itself conclusive, there have
to be other things as well (such as a known criminal history) to give
them enough weight to be considered enough to be used to judge against
the suspected person.
Inadmissible evidence
Some categories of persons cannot give evidence,
whatever they may have seen. This includes a wide variety of persons,
starting with slaves over prostitutes and robbers up to senile persons.
Other witnesses are only excluded for certain cases, like the man who is
courting cannot give evidence in a case involving the family of the
woman he loves and similar. Also, a man cannot give evidence if it would
bring advantage to himself. As well is hearsay evidence excluded.
Female evidence
Once again, females are usually banned from giving
evidence in lawcase, but there are exceptions to the rule. As such,
females may give evidence in case of female entry, or in case of a
female witness who accompanies a woman on sick-maintenance, or in case
of sexual problems in a marriage, where the woman is examined by a
female witness.
False witnesses
A person who gives false witness (gu/ fi/adnaise) or
false testimony (gu/thestas) looses his honour-price.
DECISIONS IN UNDECIDEABLE CASES
It might happen that in a lawcase there are no
witnesses, or that the oaths on both sides are evenly balanced.
Lots
Lots were mainly used in cases of unwitnessed offences
of domestic animals, like if an animal was killed in a jointly owner
herd, and in cases of division of land between heirs which could come to
no other result.
Ordeals
Another way to decide such things are ordeals, which
contain some form of violence. The most frequent of ordeals in Irish law
seems to be the "proof of the cauldron" (fi/r coiri), where
the suspect has to put his hand into a cauldron of boiling water, and if
the hand shows signs of scalding afterwards is thought as guilty.
However, there were definitely a number of different kinds of ordeals.
Duel (ro/e)
The formal duel is an accepted ordeal in old Irish
law. However, the terms of such a duel must be agreed beforehand and
confirmed by sureties from both parties, or is considered invalid. A
duel cannot be used to resolve every legal dispute, but only such like
bringing a son in a kingroup, contesting about ownership of a holding,
about false accusation and similar. Normally, if one party doesn't
appear to the duel, it's case is considered to be lost unless there are
reasons for postponement. Wounds inflicted in legal duels are not
actionable, and duels have not to be fought to death. Even minor
setbacks can be taken to indicate that justice is on the side of the
other combatant. These includes things like falling down or dropping
ones weapon accidentally.
PUNISHMENT
According to the law texts, there are different ways
of possible punishment in Irish Law, of which, however, one is the
preferred one, namely payment of fines. The other possibilities are
slavery or putting to death or other physical punishment or declaring
somebody an outlaw, but these seem to have been only resorted to when
the preferred form was not executable.
PAYMENT
We already have seen that the primary method of
punishment in Irish law was paying a fine, and this is what we can
expect to have been the usual way of atonement for a crime. References
to payment have been made all over the last mails, and as such I will
not say any more on it.
METHODS OF PUNISHMENT IN CASE OF NON-PAYMENT OF FINES
As already noted, these methods were usually only used
in case that the culprit was unwilling or unable to pay. The decision
which method of punishment should be applied to the non-paying culprit
seems to have been completely the choice of the wronged party, the
victim if still living, or his relatives in case not.
SLAVERY
Seemingly this was the second best possibility in most
cases. Even though usually treated equally with death penalty in the law texts,
the material worth of a slave seems to have made it more likely that the
victim of the crime or his relatives would have sold the culprit into
slavery rather than kill him.
PUTTING TO DEATH
Generally, Canon Law seems to have preferred death
penalty in cases where the honour-price of the offender was lower than
the penalty, and it additionally made the relatives of the offender
liable for the fine. However, secular law seems to have employed the
death penalty only as an alternative to payment or enslavement.
Hanging
The most common form of executing an offender seems to
have been hanging (crochad) from a gibbet (gabul). It is given as a
possible punishment for wounding or death.
The pit
One of the more obscure forms of death penalty is the
pit (go/la). It seems as if in this case the condemned person,
presumably in chains - is left to die of starvation and exposure in a
pit.
Slaying
The third form of execution recognized by Irish Law is
slaying (guin), probably by sword, spear or axe. It is also referred to
as cro/ (lit. bloody death). (KELLY 1988, 219).
SETTING ADRIFT
This refers to a punishment where the offender is set
adrift on the sea (and usually taken into servitude upon being washed
ashore). It is only rarely mentioned in the law texts. It seems to have
been one of the preferred methods to deal with serious offences by
women. It is possible that this kind of punishment was introduced only
after the advent of Christianity. If a such punished criminal is washed
back to the shore of his own people, it depends what his crime was as to
how he is treated. If it was only a minor offence, he is returned to his
former status. If the offence was serious, he seems to have been
condemned to serve as an unfree peasant.
PUNISHMENTS ONLY APPEARING IN CANON LAW
Some form of punishments do appear in Ireland
exclusively in Canon Law (Church Law). They do not appear in any secular
Law texts, so we have to assume that they did not appear in the Law
prior to the advent of Christianity.
Mutilation
In difference to many other law texts, mutilation does
not seem to have been a suitable punishment in Irish law. The first
recorded mutilation as a punishment for a crime is from 1224, where a
robber had cut his hands and feet of. Of the Old Irish Law texts none
mentions mutilation, only Ca/in Adomna/in (a Canon Lawtext) lays down a
twofold punishment which includes mutilation (cutting off of the left
foot and the right hand) as the first part, the second part however is
putting the culprit to death.
Flogging
Also a punishment very often used in many early law texts,
especially as a punishment for slaves, flogging also appears only in
Canon Lawtext in Ireland. There is, however, no reference to it in the
Secular Old Irish Lawtext.
OUTLAWRY
A person may be deprived of his or her legal rights
for a wide range of offences. This kind of punishment appears in case of
theft, for example, but also in case of "absconders"
(e/lu/daig), i.e. persons that failed to fulfill their duties against
society. The usual course of action taken by someone who is outlawed is
to leave the territory of his tribe and become an exile (deorad). As far
as we can say this was a banishment for life, there is no instance for
any fixed period for the banishment, after which the culprit would be
allowed to return.
Recovery of legal rights
However, outlawry is not necessarily permanent. If the
outlawed person later can atone for the crime - either by payment or
otherwise - he can recover his rights in society.
With this, the treatment of Irish Law is finished. We
will next proceed to Welsh Law, where, however, only the mayor
similarities and differences to Irish Law will be shown. Consider
everything not mentioned in the treatment of Welsh Law to either be not
mentioned in the Welsh Lawtext or treated roughly similar to the
equivalent Irish regulations.
WELSH LAW
Welsh Law has been, in the form it has come down on
us, taken down in the first half of the 10th century AD in a single
codex authorized by one of the more successful independent Welsh rulers,
King Hywel Dda mab Cadell (Hywel the Good, son of Cadell), at least that
is what history claims. However, most of the laws included in Cyfraith
Hywel, the "Laws of Hywel", were not made by Hywel, but were
rather a compilation and unification of the old Welsh laws as
interpreted by the professional Welsh lawyers, called ynad or brawdwr.
The real role of Hywel probably was that he was responsible for the
first written legal codex in Wales, which according to legend, happened
at the Abbey in Whitland (btw, I have been to Whitland recently, they
have a little Hywel Dda presentation center which is definitely NOT
worth visiting) at a jurists conference under Hywel.
One of the most significant differences to Irish Law
is that Welsh Law has been taken down much later, and that it already
shows strong influences of early medieval Anglo-Saxon laws. While the
basic concepts of law are almost equal to Irish Law, some specifics are
quite different.
SOURCES
The main sources for the Welsh Laws are the Llyfr Gwyn
Rhydderch, the "White Book of Rhydderch" and the "LLyfr y
Damweiniau", and some "smaller" works, all dating from
the 13th to 16th century.
A translation of the Laws of Hywel is also available and recommendable,
which also includes a literature list for further readings. it is:
D.Jenkins: The Law of Hywel Dda. Law texts from medieval Wales. Welsh
Classics, Gomer 1986 (2nd ed. 1990), ISBN 0 86383 277 6.
THE LAWS OF HYWEL DDA
The Laws of Hywel are separated in three parts, the
first of which is the Laws of Court, the second the Laws of the Country
and the third the Justices' Test Book.
THE LAWS OF THE COURT
Here we see the strongest differences to Irish Law. In
Hywel's Laws there are detailed Laws in regard to the King's Court,
which show strong influence from the Anglo-Saxon Laws.
First is dealt with the honour-price,
"sarhaed" in Welsh, of king and queen. Then comes a series of
laws regarding the rights and duties of members of a royal court,
starting with the heir-apparent, the Edling. Here we already see the
influence of Anglo-Saxon Laws, as the legal term used is
"Edling", derived from the Anglo-Saxon "aetheling"
in contrast to the original Welsh "gwrthrychiad", the
"heir-apparent", a term more or less paralleled in Irish
"ta/naise".
In between the order of the court is laid out, how
many people are allowed to be seated and where which person is allowed
to sit. The order of the court is as follows: the king, next to him the
cynghellor, then the host, then the edling, then the chief falconer and
finally the physician, while on the other side sit the priest of the
household, the usher, the court justice and finally the court smith. On
the lower hand of the hall sits the Captain of the household, with the
bard of the household at one side of him. Finally the chief groom and
the chief huntsman sit across the screen from king and priest.
Then the rights and duties of the rest of the Court
are detailed, starting with the king's officers, which are, in
descending order in regard to rank: The Captain of the Household, the
Priest of the Household, the Steward, the Chief Falconer, the Court
Justice, the Chamberlain, the Bard of the Household, the Usher, the
Chief Huntsman, the Mead-brewer, the Physician, the Butler, the
Doorkeeper, the Cook and the Candleman.
Then come the queen's officers, once again with rights
and duties, starting with the Queen's Steward, then the Queen's Priest,
the Queen's Chief Groom, the Queen's Chamberlain, the Queen's Handmaid,
the Queen's Doorkeeper, the Queen's Cook and the Queen's Candleman.
Additionally to the above officers, which are
considered "court officers", are another some, which are in
court as well, but are not considered "court officers". These
are also detailed, with their rights and duties. They are the Groom of
the Rein, The Footholder, the Dung Maer, the Serjeant, the Porter, the
Watchman, the Bakeress, the Court Smith, the Pencerdd and finally the
Laundress. As such, Court Positions, the rights and duties of Court
officials and the general details of Court we have from Welsh Law are
much more detailed than anything we have from Irish Law. All in all, the
Welsh Court looks a lot more like medieval courts than anything we have
from Ireland, definitely a result from the later date and the stronger Anglo-Saxon
influence on the Welsh Laws.
Also, the increased importance of the King and his
Court in Welsh Law becomes apparent wehn we look at certain privileges
of the King and his Court, which go a good deal beyond everything we
know from Irish Law, and which probably also constitute the most
important difference between Welsh and Irish Law. For instance, in stark
contrast to Irish law, where penalties due because of illegal acts and
following judgements in court were payable only to the victim or his
kindred, in Welsh law most offences against the Law not only invoke a
penalty payable to the injured party but also a penalty payable to the
king, which in most cases would be much more than the actual penalty
paid to the offended party.
The rights of the king and his court were also
increased in other fields of law. For instance, Welsh Law allows the
king and his Court to ride through a field without having to pay
compensation either for the violation of the property or any damage
caused. Also, some animals are considered to be "king's game"
and may only be hunted by the king or his court officials. All of this
strongly shows the influence of a more "medievalised" society
in Wales at the time when the laws were taken down, with very immediate
and strong Anglo-Saxon influences.
THE LAWS OF THE COUNTRY
With this part we come back to solid Celtic Law. Even
though the rights and privileges of the Court are part of this part to
some extent, too, we here find clear parallels to Irish Laws.
The Laws of the Country include the Laws of Women
(more or less marriage and divorce), the validity of oaths, injury to
animals, surety (w. "Mach") and contracts (w. briduw, amod),
church protection, land law (inheriting, acquiring and reclaiming,
sharing, Women and Land), laws on aliens, then again come some royal
rights and finally family law. All of those laws, with the exception of
the part on royal rights, but even parts of these, are very similar to
the comparable Irish regulations in those fields. Variations exist only
at the level of detail.
THE JUSTICES' TEST BOOK
The third part deals with legal procedure and
punishments for offences against life, health or property. It contains
regulations in regard to homicide, theft, fire, the value of wild and
tame animals, the value of trees, houses and equipment, the value of the
human body and parts of it (for compensation of damage), contains
regulations on joint ploughing and finally on corn damage. All of those
regulations also parallel the Irish Laws in the respective areas,
thereby giving us a good basis for finding out "common Celtic"
legal elements.
Having finished Welsh Law, we now turn to the last
part, Old Celtic Law.
OLD CELTIC LAW
This is probably the hardest part of the whole series,
as, in fact, almost nothing from old Celtic Law has come down on us.
THE SOURCES
The sources for old Celtic Law are limited to a mere
few short notices in (mainly) Caesar, a handful of Celtiberian and
Gaulish inscriptions and a few hints in names and titles that have come
down on us either via archaeological remains (like pottery inscriptions)
or, too, are found in the historians.
Probably the most direct hints at old Celtic Law,
apart from the famous Caesar quote about the druids in their function as
judges "In all public and private quarrels the priests alone
judge and decide. They fix punishments and rewards, where crimes or
murder have been committed or boundary and inheritance disputes arise.
If a private person or persons fail toespect their decision they can
exclude the men involved (where need be, the whole tribe) from public
worship. This is for them the worst punishment imaginable. Thos thus
excommunicated count as godless criminals; all men must avoid them and
eschew any talk with them, lest the infection be passed on. If they try
to get in touch with them, they forfeit justice and honour."(Caesar,
De Bello Gallico VI, 13.5) is another passage in the description of
Gaul, "When a man marries, he adds to the dowry that his wife
brings with her a portion of his own property estimated to be of equal
value. A joint account is kept of the whole amount, and the profits
which it earns are put aside, whoever survives the other gets the whole
property and the profits that were put aside." (Caesar, DBG VI,
19.1-2) and the first Botorrita Inscription, a relatively long
Celtiberian inscription dealing with the possessions of a temple, as
translated by Meid (Archaeolingua Series Minor 5):"Concerning
the 'hilly' region of Tocoit- and Sarnicios it has been thus decreed as
non-permitted: Neither is it permitted to put (things) upon, nor is it
permitted to perform work, nor is it permitted to cause damage by destruction. And
whoever wishes to perform such things should take ... cut up (coined?)
silver, that is 100 units, to deposit at (the temple of) Tocoit-. And
whosoever wishes to construct a cow-shed, a corral (ß), a walled
enclosure or a shelter should buid ('cut out') a way (of access). If he
cuts out (earth) for the purpose of construction, he shall remove these
(materials) within three days (?) out of the enclosure; into the
territory of Neitos he shall transport them. For whom they sow arable
land, to him - when they cut the crops, when the custaicos brings in the
crops, whatever (howmuchever) he should cut outside or inside (the
enclosure) - of these he shall give the amounts constituting the
tithe.In this inner area neither ancios nor esancios (neither enclosed
nor open land) outside of (or apart from) the land adjacent to Sarnicios
shall be harvested by the people of Acaina. Who wishes to utilize
pasture land or arable land at Tocoit-, shall give the dekameta (the
tithe). This, at the cult feast of Tocoit- and Sarnicios, we proclaim,
truly and holily, (namely I), Ablu Ubocum, the regens of the council
(and the following persons), (list of names).".
Apart from these longer notes, the rest is limited to
short sentences or even single words, which however give as titles of
magistrates sometimes from which certain functions (which had to had
somne sort of legal background) can be derived, like the
street-controller or the silver-controller.
Therefore, most elements of old Celtic Law are at best
reconstructable from the Irish and Welsh Laws and their similarities,
especially where those similarities are on a linguistic basis that shows
that the terms for certain legal things were derived from a common
Gaulish word. Such things can be found, for instance, in the terms for
co-ploughing and for distraint.
THE RECONSTRUCTION
To reconstruct an actual law system from those few
hints is, of course, only possible in its roughest basics, and only
where texts like the ones quoted are available we can take a short
glimpse at (maybe only short-timed and temporal) details.
What we can say with some certainty is that the basics
of contract law are not too dissimilar to the Irish ones (as far as can
be deduced from the few hints). Also we can assume that things similar
to clientship contracts with tithes for the right to use land and maybe
also other lent property, with the basic concept similar to the Irish
one, although maybe strongly differing in the details. Even though
Caesar notes that thief's, murderers and similar criminals were
sometimes punished by killing them as sacrifices to the gods, obviously
the more typical punishment for severe crimes was, also according to
Caesar, the exclusion from the religious ceremonies (and with that, most
probably, from the tribe and family as well). From the trial of
Orgetorix, of which Caesar tells us in the beginning of his DBG, we can
guess that, in court, oaths not dissimilar to the parallel Irish and
Welsh practices were part of the legal procedure, and probably payment
of a penalty was a common punishment. The status of nobles, according to
Caesar, depended on how many clients they had, again quite similar to
the Irish customs in this regard. Additionally we know about a number of
magistrates with quite specific functions (like the street-controller
mentioned above), who probably had some legal function - perhaps to
control the quality of the streets in case of accidents or to prevent
such. Other features like the palisades found in the oppida, but also on
lowland settlements tell us that probably the rights of trespass were
limited, again a system like the Irish one is quite probable. The legal
function of an enclosed territory is also quite obvious from the
Botorrita inscription.
Altogether we can, for the Old Celtic Law System,
reconstruct parts law code that are, even though we know no details, sufficiently
similar to the Irish and Welsh systems that we can assume that those
parts which we have no hints about were roughly similar as well. Most
probably the legal texts in the Old Celtic Law System had, in certain
points, other priorities than the Irish and Welsh ones, and had somewhat
differing solutions for one or the other problem, but were similar in
the basic system. Maybe for instance there were stronger monetary
elements in the Old Celtic Law System. But the law was there, and a
class of learned judges and lawyers worked together with a secular
authority to execute it. This article originally appeared as a
multi-part message on CELTIC-L@Danann.hea.ie. If you want you may
distribute it freely as long as it is not used for commercial purposes
and you include the email-address of the author
(a8700035@unet.univie.ac.at) for responses.
This message is part of a series that have been and will be published on
the Celtic culture mailing list (Celtic-L@Danann.hea.ie). The titles of
the series which already exist are:
Celtic
Religion - what information do we really have (7 part message, also
available as a single .txt file)
Celtic Law - a short summary (this one)
in print:
Celtic Social Structures - a short summary
From: Raimund KARL (a8700035@unet.univie.ac.at)
To: CELTIC-L@DANANN.HEA.IE
Subject: Celtic Law - a short summary - Part 1 - 12
Date: Sun, 15 Dec 1996 14:32:32 - Tue, 21 Oct 1997 14:03:56
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