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 Brehon Law

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Melisende
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PostSubject: Brehon Law   Sun Nov 02, 2008 1:50 pm

Brehon Law

These “laws” formed the basis of early Celtic society. These “laws” governed everyday life and, occasionally, politics, and were formulated between 600 - 900AD in Ireland.

These laws were predominantly focused on civil not criminal aspects, where compensation for loss - of life, of property - was the main focus rather than punishment, and was based on the strict hierarchical status within Irish society.

Prior to the Brehon Laws and the Cáin Adomnáin, women were essentially subordinate to their husbands and fathers. After the adoption of the Brehon Laws, Irish society continued to be male-dominated, but women had greater freedom, independence and rights to property than in other European societies of the time.


Marriage:
Following marriage, a woman was considered to be the partner, not property, of her husband. Any property that she owned prior to marriage remained hers. Property that was aquired within the marriage was held jointly, and could not be sold or disposed of without the consent of both husband and wife.

A married woman retained the right to pursue a case at law as well as recover a debt in her own person.

A husband was legally permitted to hit his wife to "correct" her, but if the blow left a mark she was entitled to the equivalent of her bride-price in compensation and could, if she wished, divorce him. However, women were still largely subject to their fathers or husbands and were not normally permitted to act as witnesses, their testimony being considered "biased and dishonest".

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

In certain cases of legal separation for good cause, the wife not only took with her all of the marriage portion and gifts, but an amount over and above that for damages.


Divorce:
Divorce was provided for on a number of grounds (eg. impotence or homosexuality on the husband's part), after which property was divided according to what contribution each spouse had made to the household.

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


Equality:
Women in Celtic Ireland had greater freedom. It was said that it was an Irish lawgiver by the name of Brigid (not to be confused with St.Bridget), who was responsible for granting inheritance rights to women in the absence of sons. Women were able to undertake a profession - they were poets, physicians, lawgivers, druidesses. And they were equally entitled to access to education.

However, a woman could not legally swear an oath. She required witnesses to take up this role. And one “trustworthy” witness was better then two “untrustworthy” ones.


Status:
Hierarchical status was an important factor in Irish society. Rank, profession, and property were all important considerations with regards to a persons “status”. However, the rights of those men and women who dwelt in the lower echelons of society were not forgotten. Irish society was deeply preoccupied with “honour” and “compensation”.

Example: the man who stole the needle of a poor embroidery woman was compelled to pay a far higher fine than the man who stole the queen's needle



Warfare:
With this greater equality within Irish society, women frequently felt it was their duty to take up arms and march into battle with their brothers or husbands. It was only in 697 that women were exempted from warfare. The law exempting them is known as the Cáin Adomnáin after St. Adomnáin, who, at his mother's behest, fought for this exemption.


Crime and Punishment:
In early Irish law, a crime against a woman was regarded as a crime against her guardian (husband, father, son, head of kin) and consequently the offender was required to pay to the guardian the equivalent of the women’s honour-price or "weregild" or a proportion thereof.

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

Payment or compensation for the atonement of a crime was the norm. And although the death penalty did exist, a far harsher punishment of exile or banishment could be enforced. Irish society was based upon the ties of family and to be expelled from this group was an extreme punishment.

It was also a crime to exploit those of unsound mind (druths). Normally, the guardian of a “druth” was responsible for any offences committed. Any contracts made with a druth were invalid; and any sane person who impregnated a druth or bore a child to a druth was solely responsible for that child’s upbringing.


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


Slaves:
Slaves faced many restrictions and had no rights. A captive: “is a person who has committed a serious offence, which has not been paid for. The individual or kin whom he has wronged can seize him and keep him captive.” (Kelly) Though he could be ransomed.

Female salves were referred to as “cumals” and were often used as a unit of currency. One cumal was equal to three milch cows.


Cáin Adomnáin
Also known as the Law of Adomnáin or the Law of Innocents. It was designed in 697 by St.Adomnáin of Iona, especially for the protection of non-combatants (women, children and the clergy) in times of hostility. The laws also provided sanctions against the killing of children, clerics, clerical students and peasants on clerical lands; against rape, against impugning the chastity of a noblewoman, prohibited women from having to take parts in warfare, and more besides. As with Brehon Law, it was limited to within Ireland and would eventually decline.


Decline of Brehon Law:

Brehon Law began its decline with the Normand invasion of Ireland (1177), and feudal law took over. It is ironic that the final removal of Brehon Law and with it, the rights and freedoms of women, occurred under Queen Elizabeth I of England.


Glossary of Terms:

Bot = remedy, compensation
Eorl = earl, nobleman
Ceorl = churl, peasant
Scaetts = money, payment
Fioh = fee, money
Morgengyftt = morning gift, gift from husband to wife on the morning after marriage
Esne = serf, labourer, working class
Gaengang = pregnant (return)
Birele = cupbearer, steward
Minster = monastery


References:
  • “Early Medieval Ireland 400-1200” by Dáibhí Ó Cróinín (Longman, 1995)
  • “A Guide to early Irish Law” by Fergus Kelly (Dublin Institute for Advanced Studies, 1988)
  • “Irish Land Law” by Professor J.C.W. Wylie (Butterworths)
  • "Sex and Marriage in Ancient Ireland" by Patrick C.Power (Mercer, 1976)
  • “Women in Anglo-Saxon England and the Impact of 1066” by Christine Fell (Indiana University Press, 1984).

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