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18 September 2014
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Wars and Conflict - The Plantation of Ulster

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Ireland before the Plantation

The legal system

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Image of a page from Brehon law tract

A page from a Brehon law tract ©

Brehon law was based on private arbitration of disputes by a hereditary caste of professional judges, the Brehons. They simply judged the amount of fines due from those guilty, and left it to extended families, patrons or chiefs to enforce payment. Their judgements were based on customary law - preserved in old Irish law tracts of the seventh to the ninth centuries - on case law, and on proclamations of the local ruler. Chiefs employed official Brehons to try cases involving their own interests, appeals from a lower court, and fines for disobedience and tax evasion. By the 16th century, the lord's Brehon also tried public cases of murder and theft.

Although English law and ecclesiastical law came to influence the system, land inheritance was a very conservative area. This affected the status of women because only men inherited family land. A female could inherit furniture or cattle from her father, and receive settlements in goods, or a life-interest in landed estates, from her husband. Her status in law compared with an adult son still living in his father's house, under paternal authority. The adult son would become emancipated later as a landowner but women always remained under some male authority - father, brother, husband or adult son. Such a protector had a duty to sue for any compensation owed to the woman, to guarantee payment of any fines she incurred, and to arrange her marriage.

A woman without brothers could inherit a life-interest in her family's land but unless she married a close cousin - as many such heiresses did - she could not pass the estate on to her children. Therefore marriages were not arranged between Gaelic ruling families for the sake of transferring estates of land from one noble lineage to another, as regularly happened in England. The key consideration in war-torn Gaelic society was that marriages should seal important political and military alliances between the chieftains' dynasties.

Image of women at a Gaelic hedge-school

Women at a Gaelic hedge-school ©

Another distinctive feature of Gaelic custom was that most illegitimate children had a right to share in their father's inheritance. Many daughters of minor chieftains were given by their families as concubines to paramount chiefs, and their sons became recognised nobles. The payment of a 'bride-price' to the concubine or her family, and the consent of her kinsmen, conferred respectability on the arrangement. Even married women were sometimes known to 'name' one or more of their children as illegitimate offspring of the local chief - once their own husband had died or they themselves were on their deathbed. If the claim was acknowledged, nobility and a right to some share in the chief's inheritance was immediately conferred on the child.

The clash between church law and these archaic secular marriage laws meant divorce at will was common among the upper classes. The only requirement was the return of the wife's marriage goods. Should the rejected wife choose to contest her dismissal in the church courts (Protestant or Catholic), the husband could usually justify himself in the church's eyes on the frequently-occurring grounds of over-close kinship, or a previous contract of marriage to a woman still living.

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Image of Prof. Fergus Kelly Brehon law was inward-looking and not influenced by outside legal systems.
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Prof. Fergus Kelly, School of Celtic Studies, Dublin Institute for Advanced Studies
Image of Professor Donnchadh Ó Corráin English colonists criticised Brehon law because it did not support capital punishment.
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Professor Donnchadh Ó Corráin, Lecturer in Medieval Irish History, University College Cork
Image of Dr. Katharine Simms Irish women enjoyed considerable social freedom under Brehon law.
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Dr. Katharine Simms, Lecturer in Medieval History, Trinity College Dublin
Image of Prof. Fergus Kelly Legal students were required to work long hours in cold conditions.
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Prof. Fergus Kelly, School of Celtic Studies, Dublin Institute for Advanced Studies
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