RIGHTS IN CELTIC IRISH LAW*

JOSEPH R. PEDEN

Department of History, Baruch College of the City University of New York

"The laws which the Irish use are detestable to God and so contrary to all laws that they ought not to be called laws. . ." Edward l of (1277) "Leviathan in swaddling clothes" D. A. Binchy on the lrish TuoN,

INTRODUCTION Scientific study of the Irish law tracts had to await the development of Celtic philology. It is impossible at the present time to present This was begun in the early 20th century through a systematic, coherent description of the the interest of the German Celticist Rudolph ancient Irish law of property. The reason Thurneysen, the English linguist Charles is that a considerable portion of the sources Plummer and the Irish historian Eoin Mac- have not been published in modern scien- Neill. These three undertook the first really tific textual editions and translations. The competent study of the difficult texts, principal sources used repeatedly by historians and more importantly, they trained and en- in the 19th and early 20th centuries are the couraged younger scholars to pursue the very multi-volumed editions of the old Irish law difficult linguistic, historical and juristic studies tracts edited and translated by Eugene O'Curry which would prepare them for further study of and John O'Donovan and published posthu- the law tracts. mously by other editors between 1864 and 1901. Unfortunately, many historians not specializ- While both these pioneer scholars were compe- ing in the study of the ancient Irish law tracts tent in their understanding of Middle and early have been unaware of the textual inaccuracies Modern Irish, the language of the glosses and of the O'Curry - O'Donovan translations and commentaries, neither was able to cope too have continued to incorporate their older un- successfully with the archaic and very technical scientific work, and that of their editors, into terminology of the Early lrish texts of the law- their own work. For example, one of the most the oldest and most valuable strata for under- commonly cited sources for early Irish history standing Irish legal concepts and principles. is Patrick Joyce's A Social History of Ancient The later editors of the O'Curry. - O'Donovan , first published in 1906 and republished transcriptions and translation were, with one in 1913 and again as late as 1968. This work exception, almost wholly ignorant of the Irish is notoriously inaccurate; it has no sense of the language, and the result was that their footnotes fact that a chronology of at least 1000 years is were misleading and inaccurate, their intro- being covered during which some changes in ductory essays teemed with misinterpretations, social and legal institutions took place. Joyce's and the printed texts themselves were full of book was used between 1914 - 1918 when the glaring errors.[ll great French historian P. Boissonade was pre- paring his epochal history of social life and This paper was given at a symposium on "The Origins and work in medieval Europe. Thus Boissonade Development of Property Rights" sponsored by the Institute for Humane Studies at the University of San Francisco, speaks of "the soil of Ireland (belonging) to 17-20January, 1973. 184 tribes or clans. . . .the clans held the land in 82 JOSEPH R. PEDEN common. . . .no man held individual property philological and historical standards of criti- save his household goods, and each held only cism to the ancient Irish law tracts. the right of over his strip of tribal My survey of the literature indicaies that domain. . . in each district of Ireland the free (1) private of property played a population lived communistically in immense crucial and essential role in the legal and social' wooden buildings . . . . they lived and fed in institutions of ancient Irish society; (2) that the common, seated on long benches, and all the Irish law as developed by the professional families of the district slept there upon beds jurists-the -outside the institutions of reeds. . .". One can see immediately that the of the State, was able to evolve an extremely writer is using the words "tribe", "clan", sophisticated and flexible legal respqnse to "tribal domain", "district" and "population': changing social and cultural conditions while equivocally, leading to great confusion. Almost preserving principles of equity and the pro- every part of this passage is incorrect or very tection of property rights; (3) that this flexibility misleading.[3] and development can be best seen in the develop- We might ignore Boissonade's errors except ment of the legal capacity and rights of women they are typical of many other secondary and in the role of the Church in assimilating to sources including the Cambridge Economic native Irish institutions and law; (4) that the History, whose editor Eileen Power, incidentally, English invasion, conquest and colonization in translated Boissonade's work into English in Ireland resulted in the gradual imposition of 1927. Worse yet, this translation was reprinted English feudal concepts and which as a Harper Torchbook in 1964 and circulates were incompatible with the principles of Irish widely in American colleges, perpetuating law, and resulted in the wholesale destruction errors dating back more than 60 years. of the property rights of the Irish Church and Even when native Irish authors like lawyer the lrish people. Daniel Coghlan attempted to write a systematic description of under the ancient law tracts, his work was described by a scholarly Irish law is almost wholly the produet of a reviewer as "inaccurate and unreliable, of little professional class of jurists called brithim or ~alue''.[~1Despite nearly 50 years of persistent brehons. Originally the and later the and rewarding scientific study of the Irish law filid or poets were the keepers of the law, but tracts by professionally competent philologists by historic times jurisprudence was the profes- and jurist-historians, a recent historical work sional specialization of the brehons who often appeared which ignores all that has been pub- were members of hereditary brehonic families lished on the'problem of Iristi land law in the and enjoyed a social and legal status just below ancient law tracts, and in a chapter entitled that of the kings. The brehons survived among "Celtic Communism" repeats all the inaccura- the native lrish until the very end of a free Irish cies of Joyce[Sl society in the early 17th century. They were Under these circumstances, conscious of my particularly marked for persecution, along with own lack of knowledge of the , the poets and historians, by the English authori- and keenly aware of the shoals that await the ties. The statutes of Kilkenny (1366) specifically historian who is not expert in this highly forbade the English from resorting to the specialized field of study, I have deliberately 's law, but they were still being mentioned avoided all reliance upon authorities who are in English documents of the early 17th ceniury.l61 no! themselves trained in Irish language and The absence from the function of law-making history. 1 am not presenting a coherent syste- of the Irish kings may seem startling. But Irish matic review of the lrish law of property; I am kings were not legisiators nor were they normally presenting a review of what the most compe- involved in the adjudication of disputes unless tent Irish scholars of the last half century have requested to do so by the litigants. A king was discovered since they applied modern scientific not a sovereign; he himself could be sued and a PROPERTY RIGHTS IN CELTIC IRISH LAW 83 special brehon was assigned to hear cases to are recognizably Irish in character, they do which the king was a party. He was subject to reflect local, perhaps regional differences; if the law as any other freeman. The Irish polity, the evidence were fuller, several local schools the tuath, was, one distinguished modem scholar might be identified. As of now it appears that put it, "the state in swaddling clothes". It exis- a northern and a southern regional affinity ted only in "embryo". "There was no legis- can be detected. The fact that in later historical lature, no bailiffs or police, no public enforce- times certain families of brehons were associated ment of justice . . . there was no trace of State- with specific tuatha or regions suggests that local administered justice". Certain mythological variations in specific procedures and penalties kings like were reputed to be were almost inevitable. But from the tenth Iawgivms and judges, but turn out to be euheme- century, the legal fiction arose that the lrish law rized Celtic deities. When the kings appear in the was a unity and all contradictions were to be enforcement of justice, they do so through the explained away by the commentaries. The system of suretyship which was utilized to multiple and competing law systems of the early guarantee the enforcement of contracts and the period were now subjected to homogenization decisions of the brehon's courts. Or they appear to produce what was considered to be a uni- as representatives of the assembly of freemen to form law for the whole island. And this fiction, contract on their behalf with other fuafha or like the equally unhistorical claim that there churchmen. Irish law is essentially brehon's was a single High-King of Ireland-the King law-and the absence of the State in its creation asseeiated with Tara-retained its hold on and development is one of the chief reasons for historians down to the application of modern its importance as an object of our scrutiny.171 textual criticism in the 20th cent~ry.[~l The bulk of the lrish law tracts were com- The conversion of the Irish to Christianity mitted to writing in the late seventh and early begun in the fifth century was bound to affect eighth centuries, and though influenced some- profoundly Irish life and institutions. The what by the impact of Christianity, they are Christian church was already very Romanized basically reflective of the social and legal prin- in its institutional and cultural conceptions. It ciples, practices and procedures of pagan Irish was urban-oriented and, thanks to St. Augustine, society. In the early ninth century, the oldest had reconciled itself to the Roman conception texts were being glossed because the original of the State as part of the natural (if sinful) meaning was no longer certain, or practice had order of the world. In Ireland Romanized in fact undergone developmental change. By Christians found a wholly rural-oriented society the 10th century elaborate commentaries were with a barely embryonic conception ~f the State, being added which indicate that the texts were and a well-develope4 legal tradition in which either so obscure to the new generation as to law making was the special function of essen- be inexplicable, or change had become so tially private persons-a professional class of marked that the commentaries often contradict jurisconsults and arbitrators known as the the text itself. Part of this confusion was due to brehons. Law and order, and the adjustment of the very archaic and technical language of the conflicting interests, were achieved through the earliest texts and the subsequent change in the giving of rather than State-monopolized Irish language from what we call now Old Irish coercion. The Church could not depend upon to . If we recall the marked dif- the lrish kings to compel their people to convert ferences between the English of Chaucer and to Christianity nor could they use the State to that of Shakespeare, we will understand the impose Christian law on an unwilling popu- difficulties of the brehon jurists over a compar- lation. Significantly, the conversion of the able period of time.181 lrish was undertaken without State-directed To complicate matters further, the earliest compulsion and not a single martyrdom is Irish texts reflect the existence of several dif- associated with the Church's triumphant ferent schools of law, each producing its own success.f'0l particular code or tract. While all the tracts Without the instrumentality of the State to 84 JOSEPH R .PEDEN enforce its commands, the Church's impact One way in which the Church did inflbence on lrish law was still very weak in the sixth lrish law was by seeking to have the Irt$h:kings century; canonical texts of this period forbid and assemblies accept a specific writtencqde of Christians to make use of the brehon's court law composed by an outstanding ecclesiastic, against one another. They are to resort to the The Annals of for A.D. 778 recold that to arbitrate among them as in the pre- Bresal, Abbot of , and Dunnchad, King of Constantinian Church. But the collapse of the Southern O'Neill "confederacy", had agreed Roman empire in the West, and the isolation to accept the laws of St. Columcille, founder from Roman influences, coupled with the rise of Iona, as binding upon their peoples. This of a wholly native clergy during the period, was something akin to a treaty or compact forced the Irish Church to integrate itself more governing internal and external relations. The fully into the native lrish institutions and cul- compact publicly committed the people re- ture.[lll presented h&e by their king to obey the new In legal tracts dating from the late seventh law. This is the closest that the Irish got to and early eighth centuries, the clergy are recog- legislating a system of law. The law codes, nized in their seven ranks, with appropriate always attributed to some saint, represent the honor-prices, and other rights and obligations intrusion of Christian moral practices into the under the law. The right of free men to be- of the land-the brehons' law. queath property to the Church under certain They were largely concerned with ensuring conditions was recognized, and the right of better protection for the persons and property women to give gifts was also approved by the of the clergy, their households, clients, servants, jurists. St. Patrick had mentioned the practice tenants, and ordinary women and children. of newly baptized women placing their gold There were also efforts to impose Sabbath laws. bracelets upon the altar as a gift, and his prac- But these new ecclesiastic-inspired codes were tice of returning them. He may have done so thoroughly Irish in structure and principles. As to avoid litigation as to their right to make such Kathleen Hughes has put it: "The general effect a gift at this early period when their legal of Christianity upon Irish law was to modify capacity was dubious. The law also ruled out it without dislocating it; its rigidity was reduced deathbed bequests to the Church as invalid due and the result was a strengthening of native to possible mental impairment, and the laws on instit~tions".['~l marriage and other sexual relations remained The study of the law texts and tbe canonlcar wholly pagan.ll21 texts has suggested to at least one historian that The failure of the Church to impose its own the existence of two competing law systems in will upon the Irish law is best appreciated if one medieval reflected a more subtle considers the fact that the Church was com- tendency in Irish jurisprudence and practice :o pelled to create its own legal codes in which a conceive of Ecclesio and Tuath as separate and wide variety of criminal and moral practices alternate.entities with each having its own qghts, were outlawed and appropriate penalties and relations between' the two governed by assigned. The so-called penitentials of the Irish contract. For example, a study of the develop- Church were later carried by Irish missionaries ment of the Church's manner of holding land to the continent and became a vital part of the suggests that it seems to have controlled some judicial structure of the entire Western Chris- of its property as a sovereign entity-outside tian Church. Penalties ranged from set periods and apart from the authority of any king and of prayer, fasting, abstinence, pilgrimage, the jurisdiction of any twth. Some churches hermitage, exclusion from the sacraments, and were very clearly held under lay proprietorship- other spiritual acts, to a fixed scale of monetary the proprietor being a layman witb the right of commutations of these penalties. The influence patronage. In other cases the lad was given of Irish secular law, with its dependence upon away without any restrictions at all-public monetary compensation for offenses under or private-into absolute allodial ownership by law, seems clear.[l3l an ecclesiatical corporation. In some cases PROPERTY RIGHTS IN CELTIC IRISH LAW 85 familial land was donated with the consent of within his jurisdiction, explained the impli- all the kindred but the abbot or cleric holding cations of the papal bull, and askc4 for their the benefice had to be chosen from the kindred oaths of affirmation. Apparently without any of the donor. For example, ten of the first eleven great conflict, they agreed to respect the Abbots of Iona were kinsmen of the founder, immunity of the clergy, their property, tenants St. Columcille. Lastly, royal land-land which and artisans from any lay impositions -fiscal, was attached to the public office of the king- alimentary or servile, and undertook to respect ship-was donated to the church with the con- the right of the clergy to have all cases involving sent of the assembly of the Tuath in return for their delicts, debts or contracts heard in the the clergy performing spiritual offices without bishop's court rather than the brehon's. They fee among the people. These lands were further undertook the obligation of acting as apparently freed of all public obligations- to sureties to the church for the apprehension of billet troops, answer a call to arms or give tri- anyone in their jurisdiction who failed to bute to the king.I15] appear before the episcopal cour,ts.~'71 The Church continually pressed to free itself While the Archbishop had no difficulty in of all obligations to lay owners or public getting the Irish kings to recognize the immuni- authorities. This effort accelerated during the ties of the Church, he ran into grave difficulties 11th and early 12th century as part of the with the English king Edward I whose rule ex- Gregorian reform movement and the investiture tended over parts of the province of Armagh. controversy. But as early as the 6th century, He was accused by Edward's officials in Ireland many monasteries were operating as virtual of wholesale usurpation of the King's rights ecclesiastical tuatha ruled by their abbots. over the Irish Church. He had appropriated to Daughter houses were established which recog- himself the custody of the temporalities-pro- nized the abbot of the founding house as their perties-of vacant bishoprics and abbacies; he "overlord" and the many houses and proper- had consecrated new prelates for these offices ties, tenants, clients and unfree dependents without the king's license; he had heard pleas located over wide areas of the British isles and in his court that by right belonged to the King's Ireland appear to be ecclesiastical principalities court, to the detriment of the royal prerogatives dealing with the secular tuatha as equals rather and revenues. Archbishop Nicholas defended than subjects. By the early seventh century the himself by arguing that he had acted in accor- Archbishopric of. Armagh heads a federation dance with the ancient rights (under Irish law) of churches spread across the north and west of of his Church as in the days before the conquest, Ireland, while the bishoprics of , and rights which the English king Henry I1 had probably Cork and in the south, are sworn to uphold. Edward replied to that argu- following suit. Armagh claimed overlordship ment by imposing a heavy fine and ordering over any church that was free of obligations to that his officials make sure no Irishman ever an existing overlord-be he king, lay proprietor was elected again as .['*I or abbot. By the 8th century the bishops of Tws is but one clear instance ip which the Armagh and Kildare, and the Abbots of lona, property rights and the freedom the Irish church Clonmacnois and Bangor were rulers over vast achieved under Irish law were to be radically ecclesiastical principalities free of the rule of reduced under the impact of English feudal and any secular authority.1'61 common law traditions. By the 14th century, the This situation continued in those parts of antagonism of the two peoples was so great that Ireland not subjected to English rule. For the English government forbade any religious example, when the native Irish archbishop of order, monastery, collegiate church or cathedral Armagh, Nicholas mac Moel Iosa, received the to admit to its membership anyone of Irish notorious papal bull Clericis laicos asserting the nationality. Moreover, anyone who was Irish most extreme papal claims to immunity from presenting himself for ordination to clerical State control (issued by Boniface VIlI in 12%), orders in a diocese under the English king's he called a meeting of the kings of all the tuatha jurisidiction was presumed to "have lived con- 86 JOSEPH R. PEDEN tinuousiy among evil people and to come from free status were those who had forfeited their an evil background", and was to be denied lives for some crime, but were ransomed and sacred orders. Thus were the native Irish kept as servile tenants by some freeman, But dispossessed of their own churches in their own generally, wealth, talent or skilled oraftsman- land to give places to foreign invaders.I191 ship were enough to make free status possible. In effect, economic self-sufficiency was the hall-mark of free status.(20l I1 While some historians have been dubious as us now examinein some detail the charac- to the reality of the fine distinctions in grade or ter of Irish law and the role of in rank which the law tracts reveal when applied legal and social institutions. to the actualities of everyday life, 1 do not Irish society was a precisely stratified, class- share their view. Admittedly medieval intellec- conscioussociety in which rank had tuals in general, and the Irish jurists in parti- legal and economic foundations, The earliest cular, show a marked predilection for making law tracts divide the population into two legal numerically ordered distinctions in all sorts of classes: the free and the unfree. The free are situations. But it must be remembered here the kings, nobles and commoners-all those that the assessment of a man's property-its who own land and thus enjoy the franchise, a character and value (land, chattels, clients)- place in the assembly of ihe ruorh, and have a Was absolutely necessary if he was to participate legal capacity to make contracts in their own ~nthe very elaborate system of suretyship which right or through their father, husband or male was the basic mechanism by which all law was kinsmen. Possibly under the influence of the enforced. And it also was vital to assess his Church, which had seven orders of clergy, the honor-price-another essential part of the Irish jurists subdivided the kings into three grades, system of the nobles and commoners into seven each. The honor-price (dire or enclann) was the The grade or rank of a man was determined payment due to any free man if his honor or by the amount of property he owned and the rights were injured or impugned in any fashion number of clients he had. Since the clients by another person. It might be invoked for the varied according to his available wealth (see violation of any contract, any act of violence to below), wealth was the principal basis for a his person or that of his dependents, any tres- man's rank in Irish society. The unfree were pass on his rights or property, or even a mali- those who did not own land, thus did not have cious use of "satire" without cause which the franchise, and were usually household damaged his reputation (usually the work of a retainers or tenants at will of a landowner. or poet). In the oldest texts, honor-price What is somewhat surprising is the fact that varied in amount according to the rank of the these ranks and categories were not fiied. The victim, and the penalty for the offense varied, law texts say that "the free may sit in the seat of being fiied according to the seriousness of the the unfree" and "the unfree may sit in the seat offense at the amount of his honor-price or of the free". "Everyone may become free by some multiple or fraction thereof. At a later his wealth and unfree by his lips". The free stage of legal development, the jurists estab- who become unfree are those who sell all their lished fiied penalties for specific crimes and land or rights or body in service to another enforced them equally regardless of the rank (). The unfree in the seat of the free are of the victim. But in addition, the offender still those who buy land or the right to the franchise had to pay the honor-price appropriate to the by their art (skilled craftsmen), their talent victim's rank. (), or by husbandry (tenants at will). This . Honor price was also essential in the work- social mobility is reflected in the legal maxim: ings of the system by which means all A man is better than his birth. The only class judgments of the brehons' courts were en- excluded permanently from recovering their forced. Since law enforcement was not a func- PROPERTY RIGHTS IN CELTIC IRISH LAW 87 tion of the state or king in the Irish tuath, it testants in a legal dispute-had to have their was entirely dependent upon each party in an honor-price assessed because they were for- action or suit providing himself with sureties bidden to pledge payment of any debt beyond who would guarantee that the judgment of the the value of their honor-price which was, of brehon's court would be honored. If a person course, assessed on the basis of their rank was about to bring suit, he sought sureties to which was in its turn based upon an assess- help hiin persuading the defendant to submit ment of their wealth. Thus ownership of to peaceful adjudication of the dispute; this property in all its forms was the basis of a might involve applying the law of distraint in man's legal status and marked the extent of his which the plaintiff seized some movable pro- participation in and protect;on within the legal perty of the defendant and impounded it under system.[231 lawful procedures until the defendant gave The lrish law recognized three distinct kinds surety that he would submit to adjudication. If of contract: sochor, dochor and michor. A he refused to do so, the community would con- sochor was a "good contract" which had three sider him an outlaw-and he and his property qualities: it was a contract between two or more would lose the protection of the law.iZzl free men; these free men were legally capable to There were three kinds of surety: first, a act (not insane or minors or otherwise restricted surety might offer the plaintiff to join him in in legal capacity); and lastly, the objects ex- enforcing his claim against the defendant. changed were of "equal profitableness". In Since Irish law did not distinguish between contrast is the dochor or "bad contract" in tort and criminal actions, all crimes or suits which the first two qualities are present, but the were punished by payment of fines and honor- third is lacking. Here the seller has suffered prices. Thus the plaintiff-if he won his suit- some loss of value in the exchange. What became a creditor, the defendant became a appears to be present here is the intrusion of the debtor. The surety guaranteed payment by Christian concept of the "just price", perhaps pledging his own honor-price. A second form an early influence of the Church upon the law. of surety (aitire) had the surety pledge his per- But what is most significant is that, while son and freedom as a guarantee. If the party failure to exchange at a just price renders a defaulted on his obligations, the surety had to contract "bad", it does not render it invalid. surrender himself to the aggrieved party and An invalid contract-called michor-is one then begin to negotiate his freedom by paying which is illicit or void because one or more of the debt and also the honor-price of the creditor the parties had not the legal capacity to act in for this new injury. Once freed he could of his own right or was not a free man. The moral course try to recover his losses from the de- dubiousness of the dochor is not the issue and faulter.[231 A third type of surety (ruth) guaran- has no direct legal impact. However, as we teed that in the event the debtor defaulted the shall see, the legal distinction did have legal im- creditor would be paid out of the surety's own pact in cases where women executed con- property. If the surety was subjected to loss, tracts in the absence of their husbands, or men the debtor must pay his honor-price. If he de- without the consent of their wives in some in- faulted, his honor-price was forfeited and he stances.[241 lost his legal status. As in so many ancient societies, in Ireland Because of the vital role that it played in the many economic transactions took place under surety system, honor-price was one of the chief the guise of a contractual relationship known as attributes of a person's rank and only men of clientship. In lrish law, clientship was of two full legal capacity possessed it in their own distinct types-free and base, distinguished right. Wives, children and sons living in their from one another by the type of services re- father's house were protected by the honor- quired by each. Free clientship (soer-celsine) price of their husbands, fathers or male guar- was the grant by a king or noble to another free dians. Sureties and compurgators-persons man of livestock in return for the payment of a who gave oaths as to the truthfulness of con- "rent" of '/, of the value of the livestock to be 88 JOSEPH R. PEDEN paid annually for 7 years. At the end of that stock on a deferred time payment system. He time, the client bccame sole and absolute owner remained free in legal status and the contract of the livestock and his clientship terminated. was terminable at the end of seven years or even AU classes of free men were eligible to become earlier if paid in full. No one could mistake this free clients without any loss of legal status, for a feudal bond of vassalage or a fief despite franchise or honor-price. The only other obli- the free client's minimal social obligations to his gations were that the free client did homage to creditor. But base clientship, where manual his "lord" or creditor by standing in his pre- labor services were required along with an sence and by attending hi on certain cere- annual food-rent, was more easily misunderstood monial occasions. Since a noble's or a king's by the Anglo- as equivalent to English rank depended in part on the number of clients villeinage or serfdom.IZ6] that he had attending him, the Irish upper In Irish law among the ranks of the unfree classes invested a large part of their assets in were a specific class-the sen-chleithe-who are acquiring as many clients as they could afford. the legal equivalent of the English villeins. This gave them inc~easedsocial and legal status, They are hereditary holders of a parcel of land and probably increased their political power in in return for uncertain service and pass as appw- the assemblies as well. It also raised the value tenances of the land should it be alienated or of their honor-price, thereby increasing tbeir sold. They are included as part of the owner's capacity to act as sureties and compurgators. property for purposes of assessing his honor- The base client was also a free man, an owner price d rank. Another class of the unfree of some land, but usually a commoner. He are the fuidir who are not "villeins' in Idsh law received a grant of either stock or land from a but are tenants at will bound to uncertain ser- person of higher rank in return for the payment vices. However, they are free to move or aban- of an annual rent in kind (a food-rent) pro- don their holding upon due notice to their land- portionate in value to the value of the borrowed lord, and may rise in social status or fall to the land or stock. In addition he owed specified rank of sen-chleithe if they have had ancestors labor services to his "lord" or creditor, and this living on the same land for nine generations- is why his clientship was "base". an unlikely situation.l271 The Irish apparently considered that laboring With the English occupation both the fuidir for another man somehow impugned one's and the base clients were reduced to serfdom honor because the "lord" had to pay the base under English law. They are called betaghs or client upon the initiation of the contract the betagius in the English documents from the value of his honor-price. In return the "lord" 12th century onwards. The fuidir lost the right was entitled to receive a percentage of the base to leave his holding and the possibility of rising client's honor-price and other compensation in status. The base client lost his personal status paid to him if he sustained any injury or vio- as a free man, his right to the ownership of his lence resulting in a legal settlement. The base own land and moveable property, and the right client thus remained a free man and could ter- to bequeath his property to the Church or minate his base clientship at any time upon others. Even the free clients seem to have suf- returning the "lord's" property and compen- fered some loss in status as the distinction sating him for any possible losses.[25] between them and the base clients was often The Anglo-Norman invasion of Ireland in ignored by the English in their efforts to seize the late 12th century and the subsequent partial the of the conquered Irish. Thus the conquest of its territory was to have a detri- English conquest meant a vast displacement mental effect upon the status and legal rights and dispossession, and loss of status for most of the Irish clients, particularly on those who of the Irish landholding classes and tenantry as were base. Neither form of Irish clientship was well.[28] equivalent to Anglo-Norman vassalage. Free As we have already indicated, one of the clientship was essentially a form of commercial most persistent myths of Irish history is the contract in which the purchaser bought live- belief that a form of primitive communism PROPERTY RIGHTS IN CELTIC IRISH LAW 89 prevailed in landholding. Due in part to the Ownership of property in Irelana was gene- failure of the translators and editors of the law rally absolute; but some instances of limitations tracts published in the 19th century to use such were recognized in the law tracts. For example, words as "tribe", "clan" and "" precisely, there were three instances in which the rights of later writers, particularly those dependent upon ownership were subject to adversative prescrip- Patrick Joyce's work as a source, confused the tion. If two successive generations of land- lands of the tuath with those of thefhe or family. owners failed to challenge the right of a mill- In addition, Irish law recognized joint-owner- race to cross their land without receiving some ship and co-tenancy as well as co-operative form of compensation for the infringement, the work ventures. All of these have been vaguely millrace became the absolute property of the described in different places as "communal mill owner(s). The same rule applied to the ownership" or communism. construction of a fishing weir across a stream or In a very detailed critique of Joyce's work, estuary and the of a bridge or Eoin MacNeill, one of the first professional plank roadway across a stream or bog. Also, historians who was also able to read and inter- the law recognized that certain personal "neces- pret the law tracts from their manuscripts sities" suspended rights in with competency in Old Irish, pointed out that particular instances: a man might take a single there was no evidence whatever to suggest that from a stream or a single drawing of a the lands of the tuath were held in common or net from a river or lake without infringing on periodically redistributed. Quoting Sir Henry the property rights of the owners; he could Maine who had admitted that "all the Brehon also cut a sapling for a riding crop or the shaft writers seem to have had a bias towards private of a spear or commandeer a wagon to carry as distinguished from ", home a corpse. The gathering of nuts or kind- MacNeill wryly comments that it was hardly a ling from woodlands was free to all equally, bias-it was a reality. It was a myth of collective provided the woodlands were not partitioned or ownership that was the product of bias. There appropriated for private use. Seaweed could be are only two kinds of land which seem to have taken also under the same restrictions. As for been viewed as being without owners: mountain wild beasts, they belonged to whoever killed peaks and woodlands or forests which were not them.l3'1 partitioned or appropriated. There was also the A very common form of property holding land that belonged to the king by reason of his was joint-tenancy. This was especially common office. But since the kingship was normally where the kindred were acting as a close eco- hereditary within a kindred or derbfne-four nomic unit in livestock raising or tilling the soil. generations of males of which one had been a In a pastoral enterprise where summer and reigning king-even the royal domains had a winter pasture were needed and large herds of semi-private character as they circulated in cattle, sheep or kine required only a few persons usufruct within the royal dynasty.091 to attend them in the fields, co-tenancy was a The English government encouraged Irish reasonable solution involving both division of rulers to surrender their tuath and its landed labor and maximum utilization of land. The territory to the English Crown which would Irish took a dim view of trespassing and neigh- then re-grant it in feudal tenure to the Irish bors were required to give each other sureties king who thenceforth would be a feudal vassal. against ; in co-tenancy of land, the The result of such a transaction in effect would repair and maintenance of fencing was the be to transfer ownership of all lands from the responsibility of each co-tenant along the outer allodial Irish owners to the English king and of his own land; failure to keep it then as a fief to the new Irish vassal-dispos- properly fenced compelled him to pay a fine to sessing the people to the benefit of his co-tenants, and he probably forfeited his and the Irish former king. Needless to say, surety to his neighbor for trespass as well. such Irish kings were swiftly repudiated by Each tenant was required to supply some tool their people.IM1 which was stored in a common place; each 90 JOSEPH R.PEDEN morning he was required to appear at a fixed perty of a family or kindred group. MacNeill time when the day's work on the fencing would admits that here we may have "communal" begin. If late, another might take his tool for ownership. By this he means that certain land the day and he paid a fine. The co-tenants also cannot be sold without the consent of the derb- took turns in guarding their livestock. To fine-all males descended from a common protect themselves against suit for negligtnce, great-grandfather to the thud generation. Thus the co-herders set limits to their personal this group is also the normal range of inheritors liability before witnesses and gave sureties to and also entitled to the compensation for each other. The losses due to attacks by wolves, homicide for any of its members. While each gorings, and wanderings into bogs were pro- member held and disposed of the fruits of his vided against by these contracts and individual own parcel of land, some residual control was responsibility for loss thus established.[3Zl exercised by the kinsmen. When the land was A form of joint-ownership was used in the rdstnbuted is not clear, but some division must constmction of mills. The owners were usually have taken place when a young man came of monasteries, kindred groups or individual joint- age, perhaps his share of his father's patrimony owners. If a mill was wholly within the lands was transferred at this time. If he died without of a single landowner that would obviate the sons, it probably was redivided among his need for joint-ownership. But frequently the brothers. Sons were the normal and equal water for the millrace and pond had to be diver- heirs of their fathers, and their mothers.t35l ted from a distant lake or stream. This meant Whether land was distributed in proportional that the owners of the source of the water, and share upon the death of any kinsman amongst the landowners through whose land the millrace all the kinsmen seems dubious. The fractionali- ran, had to be compensated for the infringe- zation would seem very much against the ment of their property rights. This might be interest of orderly management. Some writers done by payment of a single sum to the owners imply this was the case, but may have been of the land or water resource, or else recog- misled by a law tract dealing with the division nizing them as joint-owners with specific rights of compensation due a dead man levied on his of use of the mill for set periods in varying pro- murderer by an armed raid into another tuath. portions. The owner of the mill and pond and In this tract, the deceased's compensation is the owner of the source of the waters got the obviously movable-it had been captured and largest share, with the landowners of the land taken from another territory. Also, it was through which the millrace passed getting pro- divided first into three thirds-one went to portionately less. (It was noted elsewhere that the king and nobles of every grade above the the landowners had to allow the millrace and deceased's; a second third to the members of could lose their rights to compensation after the hosting other than the above; and the last two generations).['fl third to the deceased's kindred. This last third The climate of Ireland is such that drainage is was then divided by a series of apportiohments a major problem. Thus ditches abound for by fractions among the kinsmen according to drawing off water, and for keeping cattle im- the closeness of their relationship to the dead pounded. The occurrence of drownings was man. This legal rule for a specific type of blood- apparently so common that the jurists waived letting, should not be assumed to be the norm the liability of owners for drownings in ditches, for the division of ordinary property. Thus the or other accidental deaths in ditches sur- actual distribution of landed property may rounding cattle pens,-homesteads, churches, well have been confined normally to the or grave mounds, or in millraces and ponds, immediate male issue, while the more distant peat bogs or from footbridges. But if an kinsmen retained residual rights of accident was due to the failure to fence one's in case of failure of direct issue.[f61 fields, the owner was liable to be fix~ed.[)~l One result of the English conquest was the One of the more difficult problems in study- displacement of the Irish law of inheritance. ing the Irish law of land ownership is the pro- Under the feudal customs of England the law PROPERTY RIGHTS IN CELTIC IRISH LAW 91 of prevailed and was also applied to Ireland. Certain 16th century legal agree- A fair test of the sophistication of any legal ments have Irishmen trying to preserve the old system might be to examine the extent to which system of equal sharing among sons, but these women enjoy legal capacity and property -Is. were not recognized in English courts, thus By this standard Irish law in the 8th century disinheriting the normal Iri~hheirs.[~~1 may have had more sophistication than English One last look at Irish concepts of in the days of Queen Victoria. right may be revealing. A 17th century manu- Irish law was typically Indo-European in script reveals a poetic dialogue between two that it was patriarchal in character at the dawn contestants before a brehon. The first, re- of the historical period. In all the oldest legal presenting the "men of Munster", claims they texts*women have no legal capacity to act or own the Shannon River and its resources on own property in their own right. They are three grounds; the Shannon was conquered in under the tutelage of some male-father, the 11th century by the Munster king Brian brother, husband or son-just as if they were Boru from the Vikings; that the river in its children. lower courses runs through their lands; and Yet even under this burden, women were in that in a previous case Brian's rights were up- practice straining to break the bonds of the law. held. The poet representing the "men of The early law tracts found it necessary to men- Connacht" bases his claim on the fact that the tion that a husband has the right to rescind any river was always recognized as theirs from the contract made by his wife in his absence, even if time of Patnck to that of Brian; that the passage she had found sureties to support it. The con- of a river through the land of Munster does not tract was deemed invalid, and the sureties as make it the property of Munster, any more well. But the clear implication is that women than a man travelling through Munster bed were in fact making contracts in their husband's comes thereby a Munsterman; that the judge- name in his absence, and the jurist who com- ment in favor of Brian was invalid because posed the tract must have been under some made by a foreigner (thus unfamiliar with Irish pressure to acknowledge the practice, for he law); and lastly that the river belonged to specified that such an invalid contract could be Connacht because it had its source in that land. validated if the husband neglected to repudiate The brehon decided in favor of the poet of it within 15 days of his return home or of his Connacht. He held that "just as the offspring being notified of its existence.[391 of every father belongs to the father and in- The legal incapacity of women is also evident herits his patrimony, the natural father of every in the earliest forms of marriage contract in stream is every unexhausted well from which which the wife is under her husband's tutelage. it springs forth first". As the Shannon has its But already a concession to her appears. If source in Connacht, it and its resources belong she is of rank equal to him, she may interpose to the men of Connacht. The previous judg- to prevent him making a dochor, a "bad" or ment on behalf of Brian is interesting also, and disadvantageous contract (see above). Her not repudiated explicitly. Brian as presumptive intervention does not invalidate the contract; owner of the river claimed ownership of a jewel it merely suspends its coming into force until found in the gullet of a fish taken from the river her son or husband's kinsmen can be informed by a trespassing fisherman. He won his claim and given time to act. The implication is that since the fish in a lake or river belonged to its her husband is about to alienate property that owner. is not fully his to dispose of. Even if she is Rivers and streams and waters in Ireland are only betrothed, a woman can intervene in some still held in private ownership-but by descen- instances to prevent her future husband from dants of the English feudalists.[3*1 acting, at least temporarily.[401 92 JOSEPH R. PEDEN Another somewhat important breach which except when the contract "advanced their opened the way for extending women's legal common well-being". If either party made a capacity wai recognition of her right to give dochor or disadvantageous contract, it could a gift of a value no greater that he^ honor-price- be rescinded within IS days of the other partner normally half that of her husband. Gift-giving returning home or receiving notificatioh of its is not a contractual act, but it implies the capa- having been made. Specific types of contracts city to own property in one's own right. Speci- mentioned in the texts include the hire of land, fically she had the right to give the "product of the purchase of livestock, the purchase of her own hands" to the Church. necessary household equipment or supplies, The greatest departure from the system of and agreement between kinsmen for joint til- male tutelage over women is found in the law lage of fields. No object whose lack was disad- tract called the Senchus Mor composed in the vantageous to-the joint household could be early 8th century and reflecting the teachings sold without mutual consent.~4~l of a school of law operating in Northern Ire- In addition to the property which the mar- land. There, as in so many other cases, one of riage partners held jointly, each could own the pressure points for granting women wider additional property, including the profits of legal capacity was the natural desire of sonless their joint holding, in absolute single or sole fathers to wish to bequeath their property to ownership. The only restriction on the profits their daughters. In the SMdaughters are recog- of their joint enterprise was that the wik could nized as having the right to a life interest in the dispose of her share only to the value of her landed property of their father if he left no honor-price which was half that of her husband. sons, or presumably grandsons of the male This may have had some further restriction as line. But at the daughter's death, the land, to time limit but the texts are silent on it. The which appears to have been familial, reverted to husband's share of the profits of their joint the natural male heirs of the father's fine or household was his sole property, but in certain kindred. As an heiress to such property, the instances his wife could dispose of it without daughter logically had to have the means to his consent. She could alienate it to his advan- protect it; therefore she was recognized as tage, but was subject to a fine if she acfed with- having a variety of legal rights including the out his consent. If he incurred any loss in the right to sue and be sued, to engage in distraint transaction, and she somehow made a gain, and even to make legal entry on disputed or she could be sued by her husband for . unoccupied land by almost the same procedure This rule seems to envision embezzlement or as was open to males in the same circumstances. fraud among partners. 14'1 Recognition of life interest in familial land in A woman could inherit property from her certain circumstances also implied that she had mother if there were no sons, but normally the fuU ownership of the product of that land, and sons were the natural heirs to their mother's as the right to dispose of it freely. The older form well as their father's property. If childless, a of marriage contract in which the woman was woman's property reverted to her nearest male under her husband's tutelage did not lend itself kinsmen-not her husband--or she could be- to such a situation, and it now gave way to a queath it to the Church. new form of marital contract which soon be- One of the most startling aspects of the Irish came the norm among the propertied classes. law was its treatment of the rights of women in Called a marriage of "mutual portions", it various sexual relationships outside Christian required that each partner to a marriage bring marriage and their right to . In one legal to it a set portion of property which was to be tract no less than ten different kinds of sexual held jointly by husband and wife, its profits union between males and females are legally being divided proportionately between them. recognized-each having a very precise legal In this joint ownership-partnership, no contract character, each partner enjoying specific pro- was valid without the consent of each partner, perty rights and obligations. From a Christian PROPERTY RIGHTS IN CELTIC IRISH LAW 93 viewpoint, some of these relationships are donment by reason of his entering a monastery. clearly polygamous, others irregular, some None of the above except consanguinity was even casual or violent. Most legal systems in grounds for annulment in canon law. There Christian Europe denied these women legal were also some eleven categories of legal status and rights, and extended these depri- separation with respective property rights and vations to the children unless the father recog- obligations regarding the care of children and nized them. The Irish law recognized rights distribution of property. That these laws were of maintenance and support which vary in de- not "obsolete" can be shown in the marital gree and amount according to the character of history of Gormflath. Wife first of Olaf, the sexual union. For example, in a marriage Viking king of , widowed, she married of mutual portions the cost of "fostering" or Malachy, king of Meath and High-King of Tara rearing a child is shared equally by the parents; A.D. 980. Malachy repudiated her, and she but if the child is horn of a bondwoman, or as later married and divorced Brian Boru, who a result of rape, or in secret, the father is res- also won the High-Kingship by replacing ponsible solely for its rearing costs. In some Malachy. Thus she had two ex-husbands still instances the male has some control over the living when she became betrothed to a thud, woman's property rights and a right to share in Sigurd, Earl of . V6I her honor-price; in others she controls some of While the history of Irish law between the his property rights and shares in his honor price. 8th and 17th centuries is very sketchy due to the The detail, extensiveness, balance and propor- lack of surviving historical materials, occasional tionality with which the rights and obligations references indicate that women continued to of each partner are assigned in these very un- enjoy an exceptional standing in law with re- christian couplings is unique in the law tracts gard to their property rights down to the end of Christian Eur0pe.1~1 of native Irish culture and independence in the Although it has been suggested that this i; early 17th century. In the early 14th century another instance of the archaic and unreal there is reference to a woman acting as an agent character of the Irish law tracts, which could for an English proprietor whose cattle have not have had validity in a Christianized Ireland, been "stolen" by some Irishmen. She is com- the evidence suggests otherwise. Throughout missioned to mediate for their return-the Irish the medieval period, both Irish clerical and having in their law invoked the law of distraint foreign commentators frequently denounce the on the Englishmen's cattle. There is even a Irish for their failure to suppress sexual promis- reference to a woman sitting as an arbitrator cuity and adhere to the marriage laws of the along with a brehon in a suit. In the early 17th Church and "civilized" societies. It is most century the English observer Sir John Davies in unlikely that the Irish were more promiscuous hi book investigating why the Irish were so than other peoples; but it was their unique prac- hard to conquer remarks: that the Irish are so tice of continuing to separate canon law from savage that "the wives of Irish lords and chief- civil law that seemed so scandalous to other tains claim to have sole property in a certain Europeans. [4Sl portion of the goods during coverture with the Similarly, the Irish law recognized the right power to dispose of such goods without the of divorce. A man might repudiate his wife for assent of their husbands; (therefore) it was dishonoring him, doing him some injury or resolved and declared by all the (English) judges willful abortion. But, incredibly, the wifecould that the property of such goods should he ad- initiate a divorce action against her husband! judged to be in the husbands and not in the She could charge consanguinity, incurable in- wives as the (English) common law is in such firmity, sterility, cruelty evidenced by lasting cases". This is but another example of the injury, slanderous remarks as to her character, destructive and retrogressive effect of the im- for another woman, willful ne- position of English common law on the legal glect in supplying the necessities of life, or aban- status and property rights of the lrish people.1471 94 JOSEPH R. PEDEN

CONCLUSION AND SUMMARY testant Scots sent by James I-that most ab- solute of English Kings. While a comprehensive survey of the Irish law of property and property rights cannot As for the native Irish and their ancient yet be written, we can already see that the idea culture, the English official Sir ~ohh!Davies of private ownership permeates those aspects thought he said it all: "For if we consider the Nature of the Irish Customes, of the law which have been subjected to recent we shall finde that the people that docth use them, study. The Irish frankly and openly used must of nmitie beRebeUes to all good Oov~ent, assessments of property as the criterion for destroy the commonwealth wherein they live. and bring Barbarisme and desolation u n the rib1and determining a man's social and legal status, the most fruitfull Land of the world".' E' I ,, extent of his capacity to act as a surety or com- NOTES purgator, and to fix the amounts of compen- I. The Ancient Lows of Ireland, 6 volumes. 1865 - 1901. sation due hi as a victim of crime or any kind The most complete evaluation of the law tracts by a competent lrish philologist and jurist is D. A. Binchy's of injury. Ownership of land determined a Rhys Memorial Lecture before the British Academy man's status as free or unfree and his right to entitled TheLinguisficrmdHistoncalValue oftheIrish .. participate in the public assembly. The needs Lnw Tracts (London. 1943). Also Binchy, "Anden! Irish Law", irish Jurisr NS l(1966). 84 -92. of the Church modified but did not alter the 2. Patrick W. Joyce, A Social Hisfory of Ancient Ireland basic character of native Irish institutions and (Dublin, 1%). 2 vols. Reprinted in 1913 and 1968. law. While it secured for itself almost total 3. P: Boissonade, Life and Work in Medieval ~uro& freedom from lay ownership and secular obli- trans. by Eileen Power (London, 1927). Harper Tqrch book edition (New York, 1964). Sn pp. 78-79 of the gations, it was never able to fully destroy the latter. essentially secular character of Irish law as 4. See the review of Daniel Coghlan's Ancient Land exemplified in the laws on marriage and di- Tenures of Ireland in Irish Law Times and Solicitors' vorce. The legal capacity of women showed Journal (March 10, 1934). Further comments in July 14 and Sept. I5 issues. The reviewer is anonymous. exceptional development and gave women pro- 5. P. Bereford Ellis, A Hislory ofthe Irish Working Ch perty rights in the 8th century that were cen- (London, 1972). The author ignores all modern turies ahead of those enjoyed by English scholarship on the subject and rejects MacNeill's women. The fact that lrish law was the creation criticismof Joyce because he was procapitalist! 6. Binchy, Hisroricai ValueofIrishLawTracfs,22. Also, of private individuals who were professional, Gearoid Mac Niocaill, "Notes on Litigation in late even hereditary, jurists, gave to the law both a Irish law", Irish Jurist NS 2 (1%7), 299 - 307, and G. J. conservative yet flexible and equitable charac- Hand, "The Forgotten Statutes of Kilkenny", Irish ter. Their power rested upon the free consent Jurirr NS l(1966). 301. 7. D. A. Binchy in Early Irish Society (Dublin, 1954). of the community in choosing them as arbitra- 56-58. Also, Mylei Dillon and Nora Chadwick; The tors in disputes; and this made equity and jus- Celtic Realm (London, 1%7), 93 - 98. tice more likely than in royal courts where the 8. Binchy, Irish Jurist NS 1(I%), 84 - 92. interests of the State and its rulers are para- 9. Ibid. See also, Eoin MacNeill, "Prolegomena to a mount. The invasion and conquest of Ireland, Study of the Ancient Laws of Ireland" Irish Jurist NS2(1%7), 106- 115. the work of over 400 years before it was com- 10. The most authoritative recent study of the irishchurch pleted, was eventually fatal to the Irish system in the preconquest period is Kathleen Hughes, The of law snd the culture and civilization it ex- Church in Early Irish Society (London, 1966). See pressed. The English State was incompatible chapters4 and 5 in particular here. 11. Ibid. Chapter 12, pp. 123 - 133 and Chapter 5, pp. with the Irish tuoth; the English common law 45 - 55. was totally incompatible with the Irish law. 12. Ibid. Also, for St. Patrick, see R.P.C. Hawon, St. Ireland from the 12th century was a single land Patrick: His Origins and Career (New York, 19681, in which two nations and two laws and two 139. i3. Ludwig Bieler, "The lrish Penitentials", Scriptores cultures engaged in a constant struggle for sur- LoriniHibernioe (Dublin. 1963). vival. The end came in the early 17th century 14. Hughes, Chapter 14, pp. 143 - 156. See especially with the flight bf the last Irish kings from Ulster .149.151...... and the new plantation of that region by Pro- 15. See paper given to Columbia University Faculty Seminar

I PROPERTY RIGHTS IN CELTIC IRISH LAW 95

in Hislory of Legal and Political Thought (1%6) by 35. Mac Neill, Celtic Ireland, I52 - 176. Also, Mac Neill, Prof. Charles Donohuc 01 Fordham University: On "The lrish Law of Succession", Studies 8 (1919), the Senchar Mor, an early 8th century tract including 367 ff. materialon Church-StateRelotiom. Also, Hughs, 161. 36. Mac NeiU, Studies 8 (1919, 376 - 377. Also, Kuno 16. Hughs, Chapter 8, pp. 79-90 on monastic pmchiae Meyer,inEriu 1 (IW), 214-215. and Chapter 11, pp. Ill-122on Armagh. 37. J. Otway-Ruthven, "The Native lrish and English Law 17. J. A. Watt. me Church and the Two Nations in in Medieval Ireland". Irirh Historical Studies 8 (1950), Medieval Ireland (Cambridge, England, 1970). 160- 1- 16. 169. 38. Brian O'Cutv, "The Poctic Confronlatlon about the 18. Ibid. Shannon Riw." Eriu 19 (1962). 89 - 105. The poem 19. Ibid, 206-207 and2ll. isdatcdtothc lSth

~ ~~~~~~ See Value,p. 33. Celticist. here D. A. Binchv. "The LedCaoacitv of Women in Regard to d&macts",-~~l~:pi. 22. See Dillon and Chadwick, Celtic Realm (London, 207 - 234, especially 21 1 - 2i6. 1%7), 98 99. Also, see Mac Neill, op. cit. - 40. Binchy, SEIL, 216 - 217 and 224 - 225. 23. Ibid. 41. Ibid., 226-227 and on W9 note 1. Women could act 24. Rudolf Thurneysen, "Sochor and Dochor': Emys as sureties under certain limitations, see pp. 232 - 234. and Studies in Honor of Pro[. Eoin Mac Neill, edited On gifts see Myles Dillon, "The Relationship of by John S. J. (Dublin, 1940), 158 - 159. Mother and Son, Father and Daughter and the Law 25. For a discussion of clientship, see D. A. Binchy, Crith of inheritance", SEIL, 129- 179peuim. Gablach (Dublin. 1941). pp. 78, 80, % - 97 and 107. 42. Binchy, SEIL, 22b-228. Also, Dillon andChadwick, 95 -%. 43. Ibid. 227 - 230. Some texts indicate daughters may 26. Gcaroid Mac Niocaill, "The Origins of the Betagh", inherit some kinds of chattels from their fathers, Dillon, Irirh Jurist NS 1 (I%@, 292-298. Liam Price dis- SEIL, 171,113. agrees wth Mac Nicoaill in Eriu 20 (1966), 185 - 190, but J. A. Hand is convinced by Mac Niocaill's analysis 44. Nancy Power, "Classes of Women Described in the in his English Law in Ireland 1290 - 1324 (Cambridge, Senchas Mor", Studies in Early Irish Low (SEIL), 81 - I%)), 213. 108. 27. Binchy. Crith Gablach, 105. 45. For a discussion of Irish marriage law and 12th century criticisms of it, A. Gwynn, "The First Synod of 28. Onfuidir, Ibid. 93. Otherwise, see op. cit. Cashel", Irish EccIesiasticalReview 66 (INS), 81 - 92; 29. Eoin Mac Neill. Celticlrelond(Dublin, l92l), 144 - 151. 67 (1946). 109 - 122. 30. On the policy of "surrender and re-grant" under 46. August Knoch, "Die Eheschudung in alter Irischen Henry VllI see J. C. Becket, The Making of Modem Recht", Studies in , 235 - 268. For IreIand(London, I%), 18- 19. Gormflath, see Edmund Curtis. A 31. D. A. Binchy, "lrish Law Traas Re-edited: Coibnes (Dublin, 1950). 28-30. Uisci Thairidne (AL IV, 206-222)", Eriu 17 (1955), 47. A quotation from Sir John Davies on "The Irish seep. 81 n. 9 521s. Also, Mac Neill, Celticlreland, 170 Custome de Gravelkind in a review of Studres in if. Irish Law edited by D. A. Binchy in The Irirh Low 32. AncientLaws, IV, p. 372 if. Times, 15 August, 1936. 33. op. Cit. 48. Sir John Davies, A dicovery 01the true camwhy 34. Ibid., 71-72. Ireland was never entirely subdued (London, 1612),