Logically the subject of Marriage should have been discussed in connection with the account of the clan system. But not being essential to that account, its introduction there would have further confused a subject already sufficiently obscure.
Under the clan system one would expect to find the marriage laws very important and clearly laid down; yet, notwithstanding the domestic familiarity of the laws, the information given on the marriage relation is surprisingly scanty, and of a disappointing character too. The ancient Celtic family was not constructed like the modern Christian family, and it retained its form for some time after the people had become Christian. What precisely that form was, and what the principle of construction, being matters involved in our lack of knowledge of the clan system, are now subjects of more or less wild conjecture. My own impression is that in reference to the small private circle which we should call the family, it is not so much knowledge of the thing itself we lack as knowledge of the manner in which the clan organisation produced such a condition of things that the law was rarely invoked in matters which are of frequent occurrence in modern litigation.
So far as the laws show, the marriage relation was extremely loose, and divorce was as easy, and could be obtained on as slight grounds, as is now the case in some of the States of the American Union. It appears to have been obtained more easily by the wife than by the husband. When obtained on her petition, she took away with her all the property she had brought her husband, all her husband had settled upon her on their marriage, and in addition so much of her husband’s property as her industry appeared to have entitled her to. This latter would be little or nothing if she had been an idle woman, a considerable amount if she had been a good housewife and producer of wealth. It was estimated in various ways according to circumstances. Supposing there was a quantity of flax or wool on the premises, if this remained in the raw state until the woman obtained her divorce she could take away none of it unless she was able to establish a claim in some other way, which she might do up to the value of one-eighth of the raw material. If by her industry she had it ‘in locks,’ she was entitled to take away one sixth of it; if combed, one-third; and so on; the assumption being that she had made these improvements. In making these calculations various matters of set-off arose with which we need not trouble ourselves here. The law seems to contemplate a woman being divorced from her husband and marrying him again, and even doing this more than once. Possibly divorce is a redundant translation, that the marriage was not considered completely dissolved, and that separation would be more nearly correct.
According to these laws a man might purchase a wife; from which it would follow that what a man might buy he might also sell. The English laws of Æthelbirht and of Ine distinctly provide for the buying of a wife. The Irish laws have much more to say about the abduction than about the purchase of wives. The laws recognised three relations between men and women. In the first of these stood ‘a first lawful wife;’ in the second ‘a first lawful adaltrach-woman;’ in the third ‘an adaltrach-woman of abduction.’ All were legal relations, and could not be dissolved except by the will of both parties or by legal process. These relations are not defined; but I believe that the first was the only one that had a religious sanction, and that the second and third were merely civil relations, the third being distinctly stuprous and of itself scarcely conferring any right.
Apparently the law on marriage and the dissolution of marriage was wholly pagan, and never underwent any modification in Christian times; perhaps because it was little resorted to except by the wealthy, and they had sufficient influence to keep it unaltered. Besides, it is impossible to know how we may err in attempting to apply laws to a form of society which we do not understand. I am convinced that the law on this subject must not be taken as presenting a true picture of ancient Irish life, not because the picture is an unfavourable one, but because outside the laws there is overwhelming evidence that this legal picture is unjust, that singular purity characterised the Irish in the past as in the present, and that women occupied in ancient times a position as honourable as they occupy now. It is one of the many cases in which the law is more concerned with the few who invoke it than with the many who never invoke it during their lives. Probably all the value that should be attached to the law on this subject is that it marks the extreme limit of libertinism.
Fosterage was such an important feature of Irish social life that, although only a custom, elaborate rules relating to it were laid down in the laws; and we cannot omit noticing the subject, however briefly.
Fosterage was the custom of placing children during their minority in charge of other members of the clan. It was usually restricted to members of the fine, which has been described and which chiefly consisted of persons within the fifth degree of kindred; but there was no strict rule on this point. It was practised by all classes, but especially by the wealthy, by chiefs and leading men. It is not clear what, besides the force of habit, was the motive for it; but its practice, whether designed for that end or not, helped materially to strengthen the natural ties of kinship and sympathy which bound the chief and clan or the flaith and sept together. Quite apart from law, the relations arising from fosterage were in popular estimation the most sacred of the whole social system, and a stronger affection oftentimes sprang up between persons standing in those relations than that between immediate relatives by birth.
There were various kinds of fosterage, and minute rules are laid down for all, especially with reference to the mode of treating the children in fosterage according to the position they were intended to fill in after life, the amount payable by the different classes for the different kinds of fosterage, the relations between the child and its foster parents both during the fosterage and after, and various other matters. Foster parents were bound under heavy penalties to teach their foster children or have them taught, whether boys or girls, the branches of knowledge, business, trades, or exercises suited to their rank. During the fosterage the foster father was liable for injuries and offences committed by the foster child, and entitled to compensation for any injury done to the foster child.
A peculiar variety, called literary fosterage, was practised by ollamhs. Ollamhs taught pupils of the ordinary sort in the ordinary way, for payment or for nothing according to circumstances; but they also took a limited number of pupils into a particular kind of fosterage combined with pupilage, adopted them into their families, and so thoroughly imbued them with the spirit of the profession they were about to enter that the original family ties of those pupils became as if they had never existed.
As a rule a child was not sent to fosterage until it was one year old. ‘There are three periods at which fosterage ends: death, crime, and selection.’ Selection meant marriage; and the legal age of selection was reached by girls at the end of fourteen years, and by boys at the end of seventeen years. Foster parents who had properly discharged their duties were entitled in old age to be supported by their foster children, if they were in need and had no children of their own.
The law of fosterage seems to search out, ransack, and provide for every domestic possibility. It is perfectly amazing to find so many rules relating to domestic economy, and to contrast the modern absence of rule on such matters. Let me give an illustration. Expounding the cáin law of fosterage some worthy ollamh writes in this fashion—‘What are their victuals? Leite=stirabout is given to them all; but the flavouring (literally dip) which goes into it is different; namely, salt butter for the sons of the inferior grades, fresh butter for the sons of chieftains, honey for the sons of kings. The food of each continues the same respectively until the end of one year, or three years [according to the kind of fosterage]. Stirabout made of oatmeal on butter-milk or water is given to the sons of the Feini grades, and a bare sufficiency of it merely, and salt butter for flavouring. Stirabout made on new milk is given to the sons of the chieftain grades, and fresh butter for flavouring, and a full sufficiency of it is given to them; and this stirabout is made of barley-meal. Stirabout made on new milk is given to the sons of kings, and it is made of wheaten meal, and honey for flavouring.’ This passage will convey an idea of the small matters of which the law took cognizance. Skene, the author of Celtic Scotland, says that the word ‘stirabout’ is unknown out of Ireland, and quoting this passage he substitutes the word ‘porridge.’
Contracts and Wills.
Contracts between individuals do not assume great importance among a people organised in clans until clan responsibility has begun to give place to the responsibility of individuals. The provisions of the clan system, coupled with the simple country life of our ancestors, left little occasion for contracts either of the commercial sort or under seal among them; and the same system so fully provided for the devolution of their property after their death that there was hardly any occasion for wills. In transferring property in goods, barter, which was far more extensively employed than true sale, was in general more conclusive and gave rise to fewer questions for legal decision. Contracts relating to land were not numerous. They could in general be made only with the concurrence of the sept and in the presence of a flaith of high rank called the Aire-forgaill. Some written contracts relating to land have been preserved, perhaps from the fourteenth century; but while other writings of apparently less private importance are carefully dated, these are without date. It is at first sight strange that written contracts and wills were so little used among a people so addicted to writing on other subjects. The explanation is, that the clan system rendered them unnecessary. They were exceptional and foreign to that system, and while it continued in effective operation the amount of property affected by contracts and wills was probably not great. Nevertheless, some rules relating to wills are laid down in the Corus Bescna; and the Senchus Mór contains a good deal about contracts, from which it is clear that warranty on the sale of goods was well understood and frequently given and taken; and the importance of a valuable consideration, not generally recognised in English law until the last century, was perfectly well known in Ireland. Anything done without valuable consideration is described as done ‘for God’s sake,’ and imposed a very slight if any legal obligation on the other party to it. From the expression frequently used that ‘Nothing is due without deserving it,’ we must infer that a valuable consideration was essential to the binding of a contract of any kind.
It also appears that to form a contract perfect and legally binding a witness was necessary, that this witness should in general be of the tribe of the party on whom the performance of the contract lay, that his status was an important legal element, and that by acting as witness he incurred the liabilities of a surety.
Many rules are given as to the times within which in different circumstances sales might be set aside. A contract of two sane adults, with knowledge and warranty, might, on fraud being discovered, be dissolved in twenty-four hours. Without knowledge and without warranty it might be dissolved for ten days after the fraud was discovered. In both cases the ‘knowledge’ is that of the buyer. The law seems more concerned about the state of the buyer’s mind at the time of the purchase than about that of the seller.
Ratification of contracts made by persons under subjection and therefore not fully entitled to contract was also well understood. ‘One is held to adopt what he does not repudiate after knowledge, having power.’
From a passage I have quoted it would appear that, as in English law until recently, a married woman was merged in her husband while he lived, and could not be bound by any contract made by her. This, however, is subject to some qualification, for it is clear from other passages that a woman could contract, in the presence of her husband, to the amount of her own honour-price. Few married women had either taste or occasion for asserting what are now called women’s rights.
A boy was deemed to have no sense until he was seven years old, only half sense from seven to the end of his fifteenth year. Even after this period he had strictly no power to contract so long as he remained a member of his father’s household; but if he did make a contract with his father’s knowledge it was binding on the father unless promptly repudiated. If once ratified by the father it was treated as his contract.
Monks on becoming such lost the capacity of contracting; but a monk who became abbot, or was appointed to manage the temporal affairs of his community, was allowed to contract on behalf of the community.
The non-free had very meagre powers of contracting, and the lowest grade of them had none at all.
One does not expect to find much in these ancient laws relating specially to artisans. The ordinary law applied to them as to other people, and they were not sufficiently numerous to call for special treatment. We are told that their social status was determined by the rank of those for whom they worked. If this was so, its effect in practice probably was to make the position of artisan to a chief an object of ambition in each particular craft and the reward of superior skill in that craft; and if the artisan continued to progress, his status would rise pari passu with his skill—a very just arrangement. Workers in gold and others who practised what might be called fine arts, the results of which were required only by the wealthy, must under the same arrangement have stood high in the social scale. Smiths, too, were always held in high esteem. Some of the more important artisans were supplied with free lands for their support; others were paid wages, which appear to have been fixed, in theory at least, by the law. We have already noticed the power of artisans to form guilds or partnerships in virtue of which they could acquire political and social rights; and we have also noticed some liabilities connected with their trades, in the chapter on crime.
It was customary with artificers, on completing a work and delivering it to the employer, to pronounce a blessing on it. So strong was the feeling on this subject, that a workman who refused to give the blessing was fined. It would seem that the first who saw a work newly finished by another was also expected to bless the work. This was extreme sensibility; but as the blessing was general the shock caused by its omission was great. When I first came to London I was shocked on meeting persons asking alms without adding the words, ‘for God’s sake,’ and taking alms without uttering a prayer in return; for neither is ever omitted in Ireland.
There does not appear to have been at any time in ancient Ireland one fixed form of oath or manner of swearing in legal proceedings. The Brehon Laws do not tell us much of how our pagan fathers swore. There is no doubt at all that they did swear; and, if writings not of a legal character are to be trusted, they swore on solemn occasions by the sun, moon, wind, and other elements, the dew, the crops, and the countenances of men. Ugaine Mór, before his death in a.m. 4606, ‘exacted oaths, by all the elements visible and invisible, from the men of Erinn in general that they would never contend for the sovereignty of Erinn with his children or his race’ (Four Masters). In Christian times a similar variety of oaths prevailed, all differing in legal value. The oath of highest value was that taken on the Gospels; but an oath taken on a relic, on a shrine or reliquary, or on a bishop’s crosier, was also deemed very solemn and binding. Again, the value of the oath differed according to the place in which it was taken. Sometimes it was taken in the house of the person swearing, sometimes at the grave of those dearest to him, sometimes in a court of justice, sometimes in a church before the altar. That at the grave was probably of pagan origin. In some cases the oath was not a simple oath, but a triple one; the person swore first standing, then sitting, and then lying, as he spent his life.
‘The king excells all in testimony, for he can, by his mere word, decide against every class of persons, except those of the two orders of religion and learning who are of equal rank with him.’ This is still generally so in monarchies.