Marriage in Ireland, ed. A Cosgrove, Dublin 1985 5-24.

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Irish Holocaust– Push to Educate the Facts

Marriage in Early Ireland

Donnchadh Ó Corráin

Source: Marriage in Ireland, ed. A. Cosgrove, Dublin 1985 5-24.

There was a controversy amongst early Irish lawyers (about AD 700) as to whether monogamy or polygamy was the more proper and one clerical lawyer solved the problem by reference to the Old Testament: if the chosen of God (here he may be referring to the chosen people as a whole or merely to the Patriarchs, and the glossators of the text refer explicitly to Solomon, David and Jacob) lived in polygamy ‘it is not more difficult to condemn it than to praise it’.[1]

In the longest established of the western churches outside the Roman Empire and in a society in which christian Latin culture flourished in a remarkable way,[2] the norms of christian marriage were not, paradoxically, accepted in society generally (we shall see later that there were exceptions) throughout the middle ages. It is not unusual, of course, that the norms should not be observed: they were, after all, a counsel of perfection and elsewhere in christian Europe the laity were far from obeying the church’s rules[3]—but it is surely interesting that the christian Irish lawyers, most of whom were clerics, should appear to consider marriage within a theoretical framework different from that of the contemporary church and should frame their practical rulings accordingly. However, one should not lay too much stress on the differences between marriage in early Irish and in early continental societies: the similarities are, in practice, much more significant than the differences, and if Ireland was remarkable it was in the persistence of early medieval patterns of marital behaviour into the later middle ages and beyond.

The principal sources for the history of marriage in early Ireland are the law tracts in Irish and Latin, all the most important of which were probably written up within half a century of AD 700.[4] In some respects, the materials are rich—in many instances they provide us with an account of what was done rather than what ought to be done—but they are difficult to interpret. In other respects, they are very limited, for we have no marriage charters and no records of marital cases before the Anglo-Norman period. Records of church legislation about marriage dry up in the eighth century and do not begin again until the twelfth (when the great reform, or rather revolution, in church and society was undertaken). Much of what is said here must, therefore, be tentative.

Lawyers writing in Irish divide first and principal marriages into three categories:

(1) lánamnas comthinchuir, ‘marriage of common contribution’, marriage in which, apparently, both parties contribute equally to the common pool of marital property;

(2) lánamnas for ferthinchur, ‘marriage on man-contribution’, an arrangement by which the bulk of the marriage goods are contributed by the man; and

(3) lánamnas for bantinchur, ‘marriage on woman contribution’, marriage to which the woman brings the preponderance of the property.

All three main types of marriage are considered by the lawyers as special contractual relationships between the spouses in regard to property, which are similar in some important respects to that of a lord and his vassal, a father and his daughter, a student and his teacher, an abbot and his lay-tenant—other pairs that hold property in common and, on occasion at least, run a common household. What each of the pair may have given the other, consumed, or spent in good faith cannot give rise to a legal action; what has been taken without permission must be replaced if a complaint is made about it; and legal penalties are involved only when the complaint (and the appropriate legal procedure which must follow it) is ignored or when property is removed by theft or by violence.

The threefold categorisation, which refers to main marriages only, is not quite satisfactory because it runs together institutions which were really separate, but it does bring out that about AD 700, when the principal tract on marriage was written. Lánamnas comthinchuir, which the tract places first and treats in greatest detail, was regarded as the most important or perhaps the normal type of principal marriage amongst commoners of property (and aristocrats) and had been for some considerable time.[5]

It was a dignified state for the wife in question: if it was a marriage ‘with land and stock and household equipment and if the wife was of the same class and status as her husband, she was known as a bé cuitchernsa, literally ‘a woman of joint dominion, a woman of equal lordship’—a term which seems to be rendered domina in the canon law tracts. Neither of the spouses could make a valid contract at law without the consent of the other. The lawyers list exceptions to this rule but, apart from the specification that these must be dealings which advance their common economy, they are mere run-of the-mill matters in the ordinary business of farming—agreements for co-operative ploughing with kinsmen, hiring land (presumably for grazing), getting together the food and drink to meet the duty of entertaining one’s lord or to celebrate church feasts, acquiring necessary tools or equipment and the like—and one would expect either spouse to make such arrangements without necessarily consulting the other.

Not so the more important contracts, such as those which involve the alienation of property. In Irish law there is really no conjugal fund or common property in marriage: each partner retains ultimate private ownership of what he/she brought into the marriage, though it may be pooled for the purpose of running a common household. (And each may have personal property besides.) This is particularly stressed in the general provision that every dealing in property must be carried out conscientiously and without neglect of the interests of the other partner. One particular rule stated that both partners must acknowledge that any object acquired is not common property but the private possession of the partner whose property was alienated to acquire it. Anything essential to the common economy of the spouses may not be sold without consultation and common agreement and, more generally, each partner may dissolve the disadvantageous contracts entered into by the other. The partners have greater freedom in the disposition of their personal private property: they may, independently of each other, sell or lend it up to the amount of their honour-price—and here the wife is less free than the husband for the honour-price of the wife is usually half that of her husband.

The same preoccupations with property recur in the pro visions regarding divorce. The Irish lawyers (and most of them were clerics) do not moralise about it but rather set to the task of working out an equitable division of the assets between the partners. Since each partner receives back what he/she has contributed in the first instance, the rules concerning division apply only to profits earned and acquisitions made while the marriage contract was in force. In this connection the lawyers hit upon the handy notion of a threefold division between tír, urgnam, cethra ’and, labour and capital (livestock)’ and, in the first instance, divided the profits equally between the spouses in the proportion to which each of them may have supplied these factors of production. The thirds assigned to land and capital are distributed regardless of the conduct of the spouses; but in the case of a divorce in which one partner is innocent and the other guilty, the labour third falls to the innocent party. In this sense, labour may mean either the direct labour of the spouse or the provision of hired labour by meeting the expenses of wages and maintenance of servants out of his/her own resources.[6] These principles are, of course, applied to the division of the principal form of mobile wealth usually possessed by the couple—cattle and other livestock. And they are applied with certain modifications to other assets.

In the division of consumables—dairy products, cured meats, corn and textiles—an additional principle is applied by the lawyers: added value. Here the best example, perhaps, is that of textiles. The woman takes half of all clothing and woven cloth, a third of wool ready and combed for spinning, a sixth of fleeces and sheaves of flax. Textile production is labour intensive and the value of the product is the result of the work done rather than the original worth of the raw materials. The woman’s share on divorce reflects this. Indeed, a commentator on the tract states that land is not taken into account in the case of flax and woad because these take up so little ground and because they require so much labour and are so valuable.[7]

The division of dairy products (no doubt salted butter and cheese) is quite complicated the labour third is divided in two portions and the woman (who, of course, has run the dairy) takes one; of the remainder (i.e. one-sixth of the whole) diminishing fractions go to the spouse who supplied the dairy vessels (a matter of considerable importance, for dairy vessels were expensive artifacts produced by highly skilled craftsmen), the husband, and the spouse who provided the dairy workers.[8] Similar principles govern the division of corn in store and cured meat. The legal tracts incidentally provide first class evidence of the importance of the woman’s role (as manager and worker) in the rural economy—in dairying, in the production of woollen and linen garments, in caring for farmyard animals (especially the fattening of stall-fed beasts for the table) and in organising the ploughing and reaping of corn (and, no doubt, the feeding of the labourers).

Lánamnas for ferthinchur ‘marriage on the man’s contribution’, represents a different kind of property and contractual arrangement and, in some significant ways, is a different kind of marriage partnership, particularly since in Irish law much of the standing of the partners depended on their property relationship. Here the man provides the bulk of the conjugal property—land, housing and stock—and the woman provides little or nothing. In this instance, if the wife is a lawfully betrothed wife but not a cétmuinter (first or principal wife), contracts made by the husband are valid, whether or not his wife knows or consents, but he may not alienate food or clothing, cows or sheep without her consent. What is in question here is the necessities of life and the means of their continued production, and to this degree the interests of this kind of wife are protected. If, however, she is a lawful cétmuinter and a woman of equal standing and birth, she may impugn all her husband’s foolish contracts and have them dissolved on her behalf by her sureties (for which see below).

On the occasion of divorce, such a woman is considerably worse off than the previous kind of wife. Since she provided neither land nor stock, she must take a much diminished share of the assets acquired whilst the marriage lasted: she takes half of her own handiwork and one-sixth of the dairy produce in store. If she has been a hard worker (márdéntaid), she takes one-ninth of the cattle dropped whilst the marriage contract was in force and one-ninth of the corn and cured meat in store. These portions belong to the ‘labour third’ of the assets and the implication is that if she were the guilty party, she received very little indeed on parting. Since, apart from this labour third, she is practically without means, the lawyers specify that she is to receive a sack of corn each month from the date of parting to the next Mayday—the time when new contracts, including marriage contracts, were made and the assumption is that she should re-marry as soon as possible.[9]

Lánamnas for bantinchur ‘marriage on the woman’s contribution’, represents the third type of property arrangement in marriage. In this case, the woman inherits an estate in default of sons and marries a man of little or no property. Here there is role reversal: ‘in this case the man goes in the track of the woman and the woman in the track of the man’. If the man is what the lawyers call ‘a man of service, a head of counsel who checks the home-folk with advice as influential as that of his wife’—a man, therefore, who plays an active role in the management of his wife’s estate—he obtains some recompense on the occasion of a divorce: he receives a ninth of the handiwork and of the corn and cured meat in store and one-eighteenth of the dairy produce. Again, if either of the partners is guilty, the innocent one takes the ‘labour’ portion. If it is a first or principal marriage, all the profits which are not to be assigned to land or capital fall to the innocent party. Apart from that, what each brought to the marriage, each takes away. If the woman owns all the property, the standing of the husband in society is estimated in terms of his wife’s status (enech ‘honour’), unless he is more venerable, better bred or more honourable than she’.[10]http://www.ucc.ie/celt/marriage_ei.html

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Irish Holocaust- Push to Educate the Facts

The three categories of marriage described so far are based on property; there were others (as we shall see) but it may be useful to consider these in more detail.

The marriage of the woman of property to a man of less, or in extreme cases, no property is what occurs in a patrilineal society such as that of the early Irish—a society in which estates, offices and ritual roles pass from male to male, ideally from father to son—when a man has no surviving sons to inherit his property. This happens in about one in five of all cases (the percentage may be somewhat lower in polygynous societies, at least among the nobility who had more access to women) and was not, therefore, a rare occurrence.[11] The daughter (or daughters, and in this instance the estate was divided between them)[12] was called a banchomarba ’an heiress’; she inherited a life-interest in her father’s estate, she had to get guarantors that she would not alienate it wrongfully and, on her death, it reverted to her father’s nearest male relatives (to males within her gelfhine or, in default of these, to males within her derbfhine). She could not transmit any rights to the estate to her children. A compromise was however possible: she could marry one of the ultimate heirs and preserve an interest for her children, and this appears to be the ancient solution to the problem. This entailed parallel cousin marriage, that she should marry her first cousin or, perhaps less frequently, her second cousin—but such endogamous marriages were forbidden by church law and denounced as incestuous.

The Irish lawyers searched the scriptures and found their answer in the Old Testament. Jewish law, as preserved in Leviticus, forbade marriage with the following relatives: sister, mother, mother’s sister, father’s sister, son’s daughter and daughter’s daughter. This leaves the way open for parallel cousin marriage but they went further and cited cases from Old Testament history which proved that the law of God allowed such marriages. In particular, they cited the case of the daughters of Salphaad. Their father died without sons and they demanded an inheritance of land amongst their kin, but the elders objected on the grounds that they would marry outsiders and alienate family land. They approached Moses who consulted God who, in turn, judged their claim to be valid provided they married men of their own tribe. The record of their marriages preserved in the same book of the Old Testament shows that they married the sons of their father’s brothers. Here was explicit biblical justification of parallel cousin marriage and divine sanction for marriages contracted with close relatives for reasons of property. The lawyers found further support in the story of Tobias (who married his father’s brother’s daughter) for the legal opinion that ‘all the property of a man who has no son should be given after his death to the husband of his daughter if he is of the same kindred’.[13] Lánamnas for bantinchur is not, then, simply an Indo-European custom which finds its closest comparison in the Greek epikleros and the Indian putrika ‘appointed daughter’ (as some would argue), but a strategy of heirship in which the needs of the kindred and the demands of the church are neatly balanced. It is important to note, too, that this kind of marriage is not necessarily a first or principal marriage: it can be a secondary union, and is perhaps a pointer to the possible independent behaviour—for pleasure or procreation—of propertied women in early Ireland.

It is likely, of course, that men marrying heiresses amongst their own kindred possessed some property; but, where there was competition for land amongst males inheriting a family estate (and such competition involved status as well as property),[14] it is reasonable to assume that the usufruct and prospect of possession (at least as far as his heirs were concerned) acquired by a member of the family who married an inheriting kinswoman were taken into account in the division of the paternal estate, and his share diminished accordingly. This would have given rise to a situation where men were heavily dependent on their heiress-wives, but the same circumstances could come about otherwise. A woman could acquire land ar dúthracht, by outright gift of her father of land which was his personal (as distinct from) family possession, and women could also possess land which is called orba cruib 7 shliasta ‘land of hand and thigh’. It is possible (though quite uncertain) that two kinds of land are in question here: land acquired by the woman’s own labour and land got as a marriage portion or for some other sexual service, but the precise meaning of the term is not clear from the contexts.[15] Further, it is evident from the canon law that, in certain circumstances, a father could be obliged to give his daughter an estate in land amongst her brothers—at least where there was parallel cousin marriage.[16] And it is perhaps worth remembering that, while Irish society was strongly patrilineal in ideology, such social ideologies are usually modified by individual needs and pressures.

The general opinion is that lánamnas comthinchuir was the normal kind of marriage between persons of property in the seventh and eighth centuries. But how old was that institution? Caesar’s brief account of marriage amongst the Gauls appears to refer to two important characteristics which are present in the Irish type: men match the herds which their wives bring as dowries by contributing an equal amount from their own property, and an account is kept of the profits of these conjoint resources (suggesting that each reserved ultimate ownership of what was contributed to the marital fund).[17] If this type of marriage is a common Celtic institution, we may have here a hint as to the meaning of comthinchor ‘common contribution’ that the wife brought a dowry (dos) in herds and that the husband matched that dowry with a payment to his wife of an equal amount from his own resources (donatio ex marito).[18] One need not, of course, assume that such dowries were always in cattle: we have seen that women could acquire real estate and other kinds of property and the glossators, whatever the value of their opinions on this point, note that land could form part of their marital contribution The equality of husband and wife is matched elsewhere and scholars have argued that the Indo-European peoples had always known a variety of marriage which left the wife her husband’s equal partner—and one could compare the Roman marriage without manus and the Germanic marriage in which the husband did not acquire his wife’s mundium.[19]

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