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Women and the Law in Early Ireland

By mf90goldie Dec 14, 2010 2266 Words
Women and the Law in Early Ireland

Exaggerated claims have sometimes been made about the degree power and freedom enjoyed by women in early Irish society. It certainly true that women feature prominently in Old and Middle Irish literature. In the saga Táin Bó Cuailnge, Queen Medb is the leader of Connacht, and occasionally takes part in the fighting itself. Her husband King Ailill generally defers to her dominant personality, and turns a blind eye to her sexual adventures. But in real life, the power of women was undoubtedly much more restricted. The annals provide no instances of a female political or military leader. Indeed, the male imagery which surrounds the office of kingship would seem to preclude even the possibility of a female ruler. Probably the most accurate picture of the actual position of women in early Irish society is provided by the wisdom-texts, specially the Triads of Ireland. Reticence, virtue and industry seem to be the qualities most admired in a woman. One source gives the three steadiness of good womanhood as 'a steady tongue, a steady virtue, a steady housewifery’. The types of female behaviour most consistently censured are sexual promiscuity, making spells or illegal satires and thieving. Feminine beauty - so often enthused over in the sagas - does not count for much in the wisdom-texts, though one text gives the three glories of a gathering ‘a beautiful woman, a good horse and a swift hound'.

Legal capacity of women

The laws reveal a society in which a woman is generally without dependent legal capaciity. She is debarred from acting as a witness and she normally cannot make a valid contract without the permission of her superior (usually her husband or father). As expressed in the Old Irish Dire-text: 'her father has charge over her when she is a girl, her husband when she a wife, her sons when she is a [widowed] woman with children, her kin when she is a 'woman of the kin' (i.e. with no other guardian), the Church when she is a woman of the Church (i.e. a .nun). She is not capable of sale or purchase or contract or transaction without the authorisation of one of her superiors'. However, in spite of such uncompromising general statements, it is clear that a woman's legal incapacity is not total. In certain circumstances her evidence may be valid. A woman also has the right to give items of her own personal property (such as her embroidery needle, work-bag or dress) as a pledge on behalf of another, and is entitled to a fine and interest if her pledge is allowed o become forfeit. But she cannot give pledges of cattle, horses, silver, gold, copper or iron without her husband's permission. A woman can inherit a life-interest in land when her father has no sons. She is called the banchomarbae 'female heir' and - like any male land-owner - has the right to distrain goods and to make formal legal entry into her rightful inheritance. If she marries a landless man or a stranger from another tuath, the normal roles of husband and wife are reversed: she makes the decisions and pays his fines and debts. After her death, the property of a banchomarbae normally reverts to her own kin and does not pass to her husband or sons. On marriage a woman does not totally sever her connections with her own kin. As Binchy points out 'the more formal the marriage, the greater the severance'. In the case of a cétmuinter (chief wife) with sons, one third of her inheritable assets goes on her death to her own kin, and the remaining two thirds go to her sons. Likewise her own kin gets one third of any éraic paid for her, and must pay one third of any fine which she incurs. In the case of a cétmuinter without sons, her assets and liabilities are divided equally between her own kin and her husband. In a marriage where she has not been betrothed by her kin, but the union has not been forbidden, two thirds of her assets and liabilities go to her own kin, and only one third to her sons. Where a woman is abducted against the wishes of her kin, all her assets go to her own kin, and all her liabilities fall on her abductor. The influence of the Church must have helped to raise the status of women in early Irish society. In his Confessio (5th century) Saint Patrick lays great stress on his conversion of women of all classes to Christianity. Women feature largely in later accounts of his mission: the 7th century lives of Patrick by Muirchu and Tirechán refer to the conversion of many women. Some were consecrated as nuns, Tirechán also mentions Brigit, reputed foundress of the monastery of Kildare. However, it seems more likely that Brigit was a pagan goddess whom hagiographers transformed into a national saint.

Female inheritance

According to an Old Irish quotation in later commentary a daughter is entitled to a share of her father's personal valuables, but not of his land. However, if she has no brother, she is known as a banchomarbae 'female heir', and is entitled to a life-interest in her father's land. Normally, she cannot pass this land on to her husband or her sons; on her death it reverts to the wider circle of her own kin. But if her husband is an alien, such as a Briton - who would have no land in the tuath - she is entitled to pass on to her son land worth 7 cumals i.e. the property-qualification of an ócaire. By virtue of her ownership of land, a female heir has more extensive legal rights than other women.

Offences by women

If a crime is committed or debt incurred by an unmarried woman it is normally paid by her father (or by her kin if he is dead), In the case of a married woman, the status of the marriage determines who pays: the more formal the marriage the greater the responsibility assumed by her sons. So, if a chief wife incurs a liability, two thirds are paid by her sons and only one third by her kin. If a chief wife has no sons, her husband and her kin must each pay half. If she is a wife of lower status - but her marriage is recognised and bound by her kin" - her liability is evenly divided between her sons and her kin. But if the marriage is merely recognised without being bound," two thirds of any liability are paid by her kin, and one third by her sons. Finally, if the wife has been abducted against the will of her father or kin, all her liabilities must be paid by her abductor." In certain circumstances a woman may injure another woman without incurring liability. Thus, injuries inflicted in a female fight are not actionable. Similarly, a chief wife is allowed to inflict injury on her husband's second wife (adaltrach). The texts do not make it clear for how long this right lasts, but a gloss says that the chief wife is free to inflict any non-fatal injury for a period of three days (presumably after her husband's second marriage). In retaliation, the second wife can only scratch, pull hair, speak abusively or inflict other minor injuries.

Offences against women

In early Irish law, a crime against a woman is normally regarded as a crime against her guardian (husband, father, son, head of kin) and consequently the culprit must pay him his honour-price or a proportion thereof. The Church sought to make it a more serious offence to kill a woman than to kill a man. Cáin Adomnáin lays down very heavy penalties for the murder of a woman. The culprit has a hand and foot cut off, is then put to death and his kin pays 7 cumals (the normal éraic of a freeman). Alternatively, he may do 14 years' penance and pay double éraic of 14 cumals. The fines for injury to a woman are similarly heavy though whether the Church actually succeeded in increasing the fines for offences against women is unknown, as no records of any cases have been preserved. In general, women do not have independent legal capacity. The limitations on their ability to contract are spelled out starkly in the Dire-text: 'The worst of transactions are women's contracts. For a woman is not capable of selling anything without authorisation of one of her superiors: her father has charge over her when she is a girl, her husband when she is a wife, her sons when she is a [widowed] woman with children, her kin when she is a 'woman of the kin' (i.e. with no other guardian), the Church when she is a woman of the Church (i.e. a nun). She is not capable of sale or purchase or contract or transaction without the authorization of one of her superiors, except for a proper gift to one of her superiors, with agreement and without neglect'. However, a wife in a 'marriage of joint property' (i.e. bé cuitchernsa) is entitled to make advantageous contracts independently of her husband. These concern the household and farm, including the renting of land, purchase of provisions, buying in young animals, etc. In such a marriage the husband has of course the same right to make an advantageous contract independently of his wife, and either partner can dissolve the other's disadvantageous contract. Even in a marriage into which a wife has brought no property she can still impugn her husband's disadvantageous contract, provided she is a main wife (cétmuinter). If she is a wife of lower status she can only impugn contracts relating to food, clothing, cattle and sheep. A wife can dissolve all her husband's contracts in a marriage into which he has brought no property, e.g. if he is an outsider from another tuath. The law-texts recognise the special position of the nun. A nun has certain legal rights not possessed by laywomen. Hence the evidence of a nun may be accepted against that of a cleric, though a woman is not normally entitled to give evidence.

Rape

Early Irish law regularly distinguishes two types of rape (forcor and sleth) though both seem to entail much the same penalties and responsibilities. Forcor refers to forcible rape, whereas sleth covers all other situations where a woman is subjected to sexual intercourse without her consent. Sleth is often associated with drunkenness in the texts and it would seem that intercourse with a drunken woman is usually regarded as an equally serious offence to forcible rape However, in some circumstances, a drunken woman has no redress if advantage is taken of her. For example, if a married woman goes unaccompanied to an ale-house, she gets no compensation if she is the victim of sleth because 'it was wrong for her to be in the [ale] house without her husband to protect her'. The rapist must pay the honour-price of his victim's legal superior (i.e. her husband, father, son, or guardian). In addition, full body-fine (éraic) must be paid for the rape of a girl of marriageable age, a chief wife or a nun who has not renounced the veil. For the rape of a concubine (adaltrach), only half the body-fine need be paid. If the victim of rape becomes pregnant, the rapist is responsible for rearing the child." 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. There is also no redress for the women who - for whatever motive - conceals the fact that she has been raped." If she is assaulted in a town or settlement a woman is legally obliged to call for help, but not if the assault is made in the wilderness. Triad 100 gives 'the three darknesses into which women should not go: the darkness of mist, the darkness of a wood, the darkness of night. This is clearly to be taken as good advice rather than the statement of a legal principle: there is no evidence that a woman raped under these circumstances lost her right to redress. It is probable that in practice some lasting marriages originated in rape. Such marriages are recognised in early Irish literatures but not in the law-texts. The text on marriage lists nine types of sexual union, including 'mating by forcible rape or stealth' but such a union is regarded as being of its nature criminal, and is distinguished from union by abduction and union by secret visiting. In both these cases the woman consents to the union, though her kin does not.

Sexual harassment

Bretha Nemed toisech states that her full honour-price must be paid if a woman is kissed against her will. A gloss on this passage refers to the shaming of a woman by raising her dress, but does not say what penalty is due for this offence. According to Cáin Adomnáin an assailant pays ten ounces (of silver) for touching a woman or putting his hand inside her girdle and seven cumals and three ounces for putting his hand under her dress to defile her.

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