Alternatives to Top-Down Provision of Protection PART2

7/29/2019 Alternatives to Top-Down Provision of Protection PART2

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PROPERTY RIGHTS IN CELTIC IRISH LAW*JOSEPH R. PEDEN

Department of History, Baruch College of the City University of New York

"The laws which the Irish use are detestable to God and so contrary to all laws that they ought notto be called laws. . ." Edward l of England (1277)"Leviathan in swaddling clothes"

D. A. Binchy on the lrish TuoN,

INTRODUCTIONIt is impossible at the present time to presenta systematic, coherent description of theancient Irish law of property. The reasonis that a considerable portion of the sourceshave not been published in modern scien-tific textual editions and translations. Theprincipal sources used repeatedly by historiansin the 19th and early 20th centuries are themulti-volumed editions of the old Irish lawtracts edited and translated by Eugene O'Curryand John O'Donovan and published posthu-mously by other editors between 1864 and 1901.While both these pioneer scholars were compe-tent in their understanding of Middle and earlyModern Irish, the language of the glosses andcommentaries, neither was able to cope toosuccessfully with the archaic and very technicalterminology of the Early lrish texts of the law-the oldest and most valuable strata for under-standing Irish legal concepts and principles.The later editors of the O'Curry. - O'Donovantranscriptions and translation were, with oneexception, almost wholly ignorant of the Irishlanguage, and the result was that their footnoteswere misleading and inaccurate, their intro-ductory essays teemed with misinterpretations,and the printed texts themselves were full ofglaring errors.[llT h i s paper was given at a symposium on "The Origins andDevelopment of Property Rights" sponsored by the Institutefor Humane Studies at the University of San Francisco,17-20January, 1973.

Scientific study of the Irish law tracts had toawait the development of Celtic philology.This was begun in the early 20th century throughthe interest of the German Celticist RudolphThurneysen, the English linguist CharlesPlummer and the Irish historian Eoin Mac-Neill. These three undertook the first reallycompetent study of the difficult Old Irish texts,and more importantly, they trained and en-couraged younger scholars to pursue the verydifficult linguistic, historical and juristic studieswhich would prepare them for further study ofthe law tracts.

Unfortunately, many historians not specializ-ing in the study of the ancient Irish law tractshave been unaware of the textual inaccuraciesof the O'Curry - O'Donovan translations andhave continued to incorporate their older un-scientific work, and that of their editors, intotheir own work. For example, one of the mostcommonly cited sources for early Irish historyis Patrick Joyce's A Social History of AncientIreland, first published in 1906 and republishedin 1913 and again as late as 1968. This workis notoriously inaccurate; it has no sense of thefact that a chronology of at least 1000 years isbeing covered during which some changes insocial and legal institutions took place. Joyce'sbook was used between 1914- 1918 when thegreat French historian P. Boissonade was pre-paring his epochal history of social life andwork in medieval Europe. Thus Boissonadespeaks of "the soil of Ireland (belonging) to184tribes or clans. . . the clans held the land in


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82 JOSEPH R. PEDENcommon. . . .no m an held individual propertysave his household goods, and each held onlythe right of usufruct over his strip of tribaldomain. . . in each district of Ireland the freepopulation lived communistically in immensewooden buildings . . . . they lived and fed incommon, seated on long benches, and all thefamilies of the district slept there upon bedsof reeds. . .". On e can see immediately that thewriter is using th e wo rds "tribe", "clan","tribal domain", "district" and "pop ulation ':equivocally, leading to great confusion. Alm ostevery part of this passage is incorrect or verymisleading.[3]We might ignore Boissonade's err ors exceptthey are typical of many other secondarysources including the Cambridge EconomicHistory, whose editor Eileen Power, incidentally,translated Boissonade's work into English in1927. Worse yet, this translation was reprintedas a Harper Torchbook in 1964 and circulateswidely in American colleges, perpetuatingerror s dating back more than 60 years.Even when native Irish authors like lawyerDaniel Coghlan a ttempted t o w rite a systematicdescription of land law under the ancient lawtracts, his work was described by a scholarlyreviewer as "inaccurate and unreliable, of little~ a l u e ' ' . [ ~ 1Despite nearly 50 years of persistentand rewarding scientific study of the Irish lawtracts by professionally competent philologistsand jurist-historians, a recent historical workappeared which ignores all that has been pub-lished on the'problem of Iristi land law in theancient law tracts, and in a chapter entitled"Celtic Com munism " repeats all the inaccura-cies of Joyce[Sl

Under these circumstances, conscious of myown lack of knowledge of the Irish language,and keenly aware of the shoals that await thehistorian who is not expert in this highlyspecialized field of study, I have deliberatelyavoided all reliance upon authorities who areno! themselves traine d in Irish language an dhistory. 1 am no t presenting a coheren t syste-matic review of the lrish law of prop erty; I a mpresenting a review of what the most compe-tent Irish scholars of the last half century havediscovered since they applied m oder n scientific

philological and historical standards of criti-cism t o the ancient Irish law tracts.My survey of the literature indicaies that(1) private ownership of property played acrucial and essential role in the legal an d social'

institutions of ancie nt Irish society; (2) that theIrish law as developed by the professionaljurists-the brehons-outside the institution sof the State, was able to evolve an extremelysophisticated and flexible legal respqnse tochanging social and cultural conditions whilepreserving principles of equity and the pro-tection of property rights; (3) that this flexibilityand d evelopment can be best seen in the develop-ment of the legal capacity a nd rights of w omenan d in the role of the Ch urch in assimilating t onative Irish institutions and law; (4) that theEnglish invasion, c onquest an d colonization inIreland resulted in the gradual imposition ofEnglish feudal concepts and comm on law whichwere incompatible with the principles of Irishlaw, and resulted in the wholesale destructionof the property rights o f the Irish Church andthe lrish people.

Irish law is almost wholly the produet of aprofessional class of jurists called brithim o rbrehons. Originally the Druids an d later thefilid or poets were the keepers of the law, butby historic times jurisprudence was the profes-sional specialization of the brehons who oftenwere members of hereditary brehonic familiesan d enjoyed a social and legal status just belowtha t of the kings. The brehons survived amon gthe native lrish until the very end of a free Irishsociety in the early 17th centu ry. The y wereparticularly marked fo r persecution, along withthe poets and historians, by the English authori-ties. The statutes of Kilkenny (1366) specificallyforba de the English from resorting to thebrehon's law, but they were still being mentionedin English docum ents of the early 17 th ceniury.l61Th e absence from the function of law-makingof t he Irish kings may seem startling. But Irishkings were not legisiators nor were they normallyinvolved in the ad judic ation of disputes unlessrequested to d o so by the litigants. A king wasno t a sovereign; he himself could be sued an d a


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83ROPERTY RIGHTS IN CELTIC IRISH LAWspecial brehon was assigned to hear cases towhich the king was a party. He was subject tothe law as any other freeman. The Irish polity,the tuath, was, one distinguished modem scholarput it, "the state in swaddling clothes". It exis-ted only in "embryo". "There was no legis-lature, no bailiffs or police, no public enforce-ment of justice . . . here was no trace of State-administered justice". Certain mythologicalkings like Cormac mac Airt were reputed to beIawgivms and judges, but turn out tobe euheme-rized Celtic deities. When the kings appear in theenforcement of justice, they do so through thesystem of suretyship which was utilized toguarantee the enforcement of contracts and thedecisions of the brehon's courts. Or they appearas representatives of the assembly of freemen tocontract on their behalf with other fuafha orchurchmen. Irish law is essentially brehon'slaw-and the absence of the State in its creationand development is one of the chief reasons forits importance as an object of our scrutiny.171

The bulk of the lrish law tracts were com-mitted to writing in the late seventh and earlyeighth centuries, and though influenced some-what by the impact of Christianity, they arebasically reflective of the social and legal prin-ciples, practices and procedures of pagan Irishsociety. In the early ninth century, the oldesttexts were being glossed because the originalmeaning was no longer certain, or practice hadin fact undergone developmental change. Bythe 10th century elaborate commentaries werebeing added which indicate that the texts wereeither so obscure to the new generation as tobe inexplicable, or change had become somarked that the commentaries often contradictthe text itself. Part of this confusion was due tothe very archaic and technical language of theearliest texts and the subsequent change in theIrish language from what we call now Old Irishto Middle Irish. If we recall the marked dif-ferences between the English of Chaucer andthat of Shakespeare, we will understand thedifficulties of the brehon jurists over a compar-able period of time.181

To complicate matters further, the earliestIrish texts reflect the existence of several dif-ferent schools of law, each producing its ownparticular code or tract. While all the tracts

are recognizably Irish in character, they doreflect local, perhaps regional differences; ifthe evidence were fuller, several local schoolsmight be identified. As of now it appears thata northern and a southern regional affinitycan be detected. The fact that in later historicaltimes certain families of brehons were associatedwith specific tuatha or regions suggests that localvariations in specific procedures and penaltieswere almost inevitable. But from the tenthcentury, the legal fiction arose that the lrish lawwas a unity and all contradictions were to beexplained away by the commentaries. Themultiple and competing law systems of the earlyperiod were now subjected to homogenizationto produce what was considered to be a uni-form law for the whole island. And this fiction,like the equally unhistorical claim that therewas a single High-King of Ireland-the Kingasseeiated with Tara-retained its hold onhistorians down to the application of moderntextual criticism in the 20th ce nt~ry .[~l

The conversion of the Irish to Christianitybegun in the fifth century was bound to affectprofoundly Irish life and institutions. TheChristian church was already very Romanizedin its institutional and cultural conceptions. Itwas urban-oriented and, thanks to St. Augustine,had reconciled itself to the Roman conceptionof the State as part of the natural (if sinful)order of the world. In Ireland RomanizedChristians found a wholly rural-oriented societywith a barely embryonic conception ~f the State,and a well-develope4 legal tradition in whichlaw making was the special function of essen-tially private persons-a professional class ofjurisconsults and arbitrators known as thebrehons. Law and order, and the adjustment ofconflicting interests, were achieved through thegiving of sureties rather than State-monopolizedcoercion. The Church could not depend uponthe lrish kings to compel their people to convertto Christianity nor could they use the State toimpose Christian law on an unwilling popu-lation. Significantly, the conversion of thelrish was undertaken without State-directedcompulsion and not a single martyrdom isassociated with the Church's triumphantsuccess.f'0l

Without the instrumentality of the State to


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84 JOSEPH R . PEDENenforce its commands, the Church's impacton lrish law was still very weak in the sixthcentury; canonical texts of this period forbidChristians to make use of the brehon's courtagainst one another. They are to resort to theclergy to arbitrate among them as in the pre-Constantinian Church. But the collapse of theRoman empire in the West, and the isolationfrom Roman influences, coupled with the riseof a wholly native clergy during the period,forced the Irish Church to integrate itself morefully into the native lrish institutions and cul-ture.[lll

In legal tracts dating from the late seventhand early eighth centuries, the clergy are recog-nized in their seven ranks, with appropriatehonor-prices, and other rights and obligationsunder the law. The right of free men to be-queath property to the Church under certainconditions was recognized, and the right ofwomen to give gifts was also approved by thejurists. St. Patrick had mentioned the practiceof newly baptized women placing their goldbracelets upon the altar as a gift, and his prac-tice of returning them. He may have done soto avoid litigation as to their right to make sucha gift at this early period when their legalcapacity was dubious. The law also ruled outdeathbed bequests to the Church as invalid dueto possible mental impairment, and the laws onmarriage and other sexual relations remainedwholly pagan.ll21

The failure of the Church to impose its ownwill upon the Irish law is best appreciated if oneconsiders the fact that the Church was com-pelled to create its own legal codes in which awide variety of criminal and moral practiceswere outlawed and appropriate penaltiesassigned. The so-called penitentials of the IrishChurch were later carried by Irish missionariesto the continent and became a vital part of thejudicial structure of the entire Western Chris-tian Church. Penalties ranged from set periodsof prayer, fasting, abstinence, pilgrimage,hermitage, exclusion from the sacraments, andother spiritual acts, to a fixed scale of monetarycommutations of these penalties. The influenceof Irish secular law, with its dependence uponmonetary compensation for offenses underlaw, seems clear.[l3l

One way in which the Church did inflbencelrish law was by seeking to have the Irt$h:kingsand assemblies accept a specific writtencqde oflaw composed by an outstanding ecclesiastic,The Annals of Ulster for A.D. 778 recold thatBresal, Abbot of Iona, and Dunnchad, King ofSouthern O'Neill "confederacy", had agreedto accept the laws of St. Columcille, founderof Iona, as binding upon their peoples. Thiswas something akin to a treaty or compactgoverning internal and external relations. Thecompact publicly committed the people re-presented h&e by their king to obey the newlaw. This is the closest that the Irish got tolegislating a system of law. The law codes,always attributed to some saint, represent theintrusion of Christian moral practices into thecustomary law of the land-the brehons' law.They were largely concerned with ensuringbetter protection for the persons and propertyof the clergy, their households, clients, servants,tenants, and ordinary women and children.There were also efforts to impose Sabbath laws.But these new ecclesiastic-inspired codes werethoroughly Irish in structure and principles. AsKathleen Hughes has put it: "The general effectof Christianity upon Irish law was to modifyit without dislocating it; its rigidity was reducedand the result was a strengthening of nativeinstit~tions".['~l

The study of the law texts and tbe canonlcartexts has suggested to at least one historian thatthe existence of two competing law systems inmedieval Gaelic Ireland reflected a more subtletendency in Irish jurisprudence and practice :oconceive of Ecclesio and Tuath as separate andalternate.entities with each having its own qghts,and relations between' the two governed bycontract. For example, a study of the develop-ment of the Church's manner of holding landsuggests that it seems to have controlled someof its property as a sovereign entity-outsideand apart from the authority of any king andthe jurisdiction of any t w t h . Some churcheswere very clearly held under lay proprietorship-the proprietor being a layman witb the right ofpatronage. In other cases the l a d was givenaway without any restrictions at all-publicor private-into absolute allodial ownership byan ecclesiatical corporation. In some cases


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85ROPERTY RIGHTS IN CELTIC IRISH LAWfamilial land was donated with the consent ofall the kindred but the abbot or cleric holdingthe benefice had to be chosen from the kindredof the donor. For example, ten of the first elevenAbbots of Iona were kinsmen of the founder,St. Columcille. Lastly, royal land-land whichwas attached to the public office of the king-ship-was donated to the church with the con-sent of the assembly of the Tuath in return forthe clergy performing spiritual offices withoutfee among the people. These lands wereapparently freed of all public obligations- tobillet troops, answer a call to arms or give tri-bute to the king.I15]The Church continually pressed to free itselfof all obligations to lay owners or publicauthorities. This effort accelerated during the11th and early 12th century as part of theGregorian reform movement and the investiturecontroversy. But as early as the 6th century,many monasteries were operating as virtualecclesiastical tuatha ruled by their abbots.Daughter houses were established which recog-nized the abbot of the founding house as their"overlord" and the many houses and proper-ties, tenants, clients and unfree dependentslocated over wide areas of the British isles andIreland appear to be ecclesiastical principalitiesdealing with the secular tuatha as equals ratherthan subjects. By the early seventh century theArchbishopric of. Armagh heads a federationof churches spread across the north and west ofIreland, while the bishoprics of Kildare, andprobably Cork and Emly in the south, arefollowing suit. Armagh claimed overlordshipover any church that was free of obligations toan existing overlord-be he king, lay proprietoror abbot. By the 8th century the bishops ofArmagh and Kildare, and the Abbots of lona,Clonmacnois and Bangor were rulers over vastecclesiastical principalities free of the rule ofany secular authority.1'61This situation continued in those parts ofIreland not subjected to English rule. Forexample, when the native Irish archbishop ofArmagh, Nicholas mac Moel Iosa, received thenotorious papal bull Clericis laicos asserting themost extreme papal claims to immunity fromState control (issued by Boniface VIlI in 12%),he called a meeting of the kings of all the tuatha

within his jurisdiction, explained the impli-cations of the papal bull, and askc4 for theiroaths of affirmation. Apparently without anygreat conflict, they agreed to respect theimmunity of the clergy, their property, tenantsand artisans from any lay impositions- fiscal,alimentary or servile, and undertook to respectthe right of the clergy to have allcases involvingtheir delicts, debts or contracts heard in thebishop's court rather than the brehon's. Theyfurther undertook the obligation of acting assureties to the church for the apprehension ofanyone in their jurisdiction who failed toappear before the episcopal cour,ts.~'71While the Archbishop had no difficulty ingetting the Irish kings to recognize the immuni-ties of the Church, he ran into grave difficultieswith the English king Edward I whose rule ex-tended over parts of the province of Armagh.He was accused by Edward's officials in Irelandof wholesale usurpation of the King's rightsover the Irish Church. He had appropriated tohimself the custody of the temporalities-pro-perties-of vacant bishoprics and abbacies; hehad consecrated new prelates for these officeswithout the king's license; he had heard pleasin his court that by right belonged to the King'scourt, to the detriment of the royal prerogativesand revenues. Archbishop Nicholas defendedhimself by arguing that he had acted in accor-dance with the ancient rights (under Irish law)of his Church as in the days before the conquest,rights which the English king Henry I1 hadsworn to uphold. Edward replied to that argu-ment by imposing a heavy fine and orderingthat his officials make sure no Irishman everwas elected again as Archbishop of Armagh.['*ITws is but one clear instance ip which theproperty rights and the freedom the Irish churchachieved under Irish law were to be radicallyreduced under the impact of English feudal andcommon law traditions. By the 14th century, theantagonism of the two peoples was so great thatthe English government forbade any religiousorder, monastery, collegiate church or cathedralto admit to its membership anyone of Irishnationality. Moreover, anyone who was Irishpresenting himself for ordination to clericalorders in a diocese under the English king'sjurisidiction was presumed to "have lived con-


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86 JOSEPH R.PEDENtinuousiy among evil people and to come froman evil background", and was to be deniedsacred orders. Thus were the native Irishdispossessed of their own churches in their ownland to give places to foreign invaders.I191

I1usnow examinen some detail the charac-ter of Irish law and the role of inlegal and social institutions.Irish society was a precisely stratified, class-

conscioussociety in which rank hadlegal and economic foundations, The earliestlaw tracts divide the population into two legalclasses: the free and the unfree. The free arethe kings, nobles and commoners-all thosewho own land and thus enjoy the franchise, aplace in the assembly of ihe ruorh, and have alegal capacity to make contracts in their ownright or through their father, husband or malekinsmen. Possibly under the influence of theChurch, which had seven orders of clergy, thejurists subdivided the kings into three grades,the nobles and commoners into seven each.The grade or rank of a man was determinedby the amount of property he owned and thenumber of clients he had. Since the clientsvaried according to his available wealth (seebelow), wealth was the principal basis for aman's rank in Irish society. The unfree werethose who did not own land, thus did not havethe franchise, and were usually householdretainers or tenants at will of a landowner.What is somewhat surprising is the fact thatthese ranks and categories were not fiied. Thelaw texts say that "the free may sit in the seat ofthe unfree" and "the unfree may sit in the seatof the free". "Everyone may become free byhis wealth and unfree by his lips". The freewho become unfree are those who sell all theirland or rights or body in service to another(slavery). The unfree in the seat of the free arethose who buy land or the right to the franchiseby their art (skilled craftsmen), their talent(bards), or by husbandry (tenants at will). This .social mobility is reflected in the legal maxim:A man is better than his birth. The only classexcluded permanently from recovering their

free status were those who had forfeited theirlives for some crime, but were ransomed andkept as servile tenants by some freeman, Butgenerally, wealth, talent or skilled oraftsman-ship were enough to make free status possible.In effect, economic self-sufficiency was thehall-mark of free status.(20lWhile some historians have been dubious asto the reality of the fine distinctions in grade orrank which the law tracts reveal when appliedto the actualities of everyday life, 1 do notshare their view. Admittedly medieval intellec-tuals in general, and the Irish jurists in parti-cular, show a marked predilection for makingnumerically ordered distinctions in all sorts ofsituations. But it must be remembered herethat the assessment of a man's property-itscharacter and value (land, chattels, clients)-Was absolutely necessary if he was to participate~n he very elaborate system of suretyship whichwas the basic mechanism by which all law wasenforced. And it also was vital to assess hishonor-price-another essential part of the Irishsystem of

The honor-price (dire or enclann) was thepayment due to any free man if his honor orrights were injured or impugned in any fashionby another person. It might be invoked for theviolation of any contract, any act of violence tohis person or that of his dependents, any tres-pass on his rights or property, or even a mali-cious use of "satire" without cause whichdamaged his reputation (usually the work of abard or poet). In the oldest texts, honor-pricevaried in amount according to the rank of thevictim, and the penalty for the offense varied,being fiied according to the seriousness of theoffense at the amount of his honor-price orsome multiple or fraction thereof. At a laterstage of legal development, the jurists estab-lished fiied penalties for specific crimes andenforced them equally regardless of the rankof the victim. But in addition, the offender stillhad to pay the honor-price appropriate to thevictim's rank.Honor price was also essential in the work-ings of the surety system by which means alljudgments of the brehons' courts were en-forced. Since law enforcement was not a func-


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87ROPERTY RIG HTS IN CEL TIC IRISH LAWtion of the state or king in the Irish tuath, itwas entirely dependent upon each party in anaction or suit providing himself with suretieswho would guarantee that the judgment of thebrehon's court would be honored. If a personwas about to bring suit, he sought sureties tohelphi in persuading the defendant to submitto peaceful adjudication of the dispute; thismight involve applying the law of distraint inwhich the plaintiff seized some movable pro-perty of the defendant and impounded it underlawful procedures until the defendant gavesurety that he would submit to adjudication. Ifhe refused to do so, the community would con-sider him an outlaw-and he and his propertywould lose the protection of the law.iZzlThere were three kinds of surety: first, asurety might offer the plaintiff to join him inenforcing his claim against the defendant.Since Irish law did not distinguish betweentort and criminal actions, all crimes or suitswere punished by payment of fines and honor-prices. Thus the plaintiff-if he won his suit-became a creditor, the defendant became adebtor. The surety guaranteed payment bypledging his own honor-price. A second formof surety (aitire) had the surety pledge his per-son and freedom as a guarantee. If the partydefaulted on his obligations, the surety had tosurrender himself to the aggrieved party andthen begin to negotiate his freedom by payingthe debt and also the honor-price of the creditorfor this new injury. Once freed he could ofcourse try to recover his losses from the de-faulter.[231 A third type of surety (ruth) guaran-teed that in the event the debtor defaulted thecreditor would be paid out of the surety's ownproperty. If the surety was subjected to loss,the debtor must pay his honor-price. If he de-faulted, his honor-price was forfeited and helost his legal status.Because of the vital role that it played in thesurety system, honor-price was one of the chiefattributes of a person's rank and only men offull legal capacity possessed it in their ownright. Wives, children and sons living in theirfather's house were protected by the honor-price of their husbands, fathers or male guar-dians. Sureties and compurgators-personswho gave oaths as to the truthfulness of con-

testants in a legal dispute-had to have theirhonor-price assessed because they were for-bidden to pledge payment of any debt beyondthe value of their honor-price which was, ofcourse, assessed on the basis of their rankwhich was in its turn based upon an assess-ment of their wealth. Thus ownership ofproperty in all its forms was the basis of aman's legal status and marked the extent of hisparticipation in and protect;on within the legalsystem.[231The lrish law recognized three distinct kindsof contract: sochor, dochor and michor. Asochor was a "good contract" which had threequalities: it was a contract between two or morefree men; these free men were legally capable toact (not insane or minors or otherwise restrictedin legal capacity); and lastly, the objects ex-changed were of "equal profitableness". Incontrast is the dochor or "bad contract" inwhich the first two qualities are present, but thethird is lacking. Here the seller has sufferedsome loss of value in the exchange. Whatappears tobepresent here is the intrusion of theChristian concept of the "just price", perhapsan early influence of the Church upon the law.But what is most significant is that, whilefailure to exchange at a just price renders acontract "bad", it does not render it invalid.An invalid contract-called michor-is onewhich is illicit or void because one or more ofthe parties had not the legal capacity to act inhis own right or was not a free man. The moraldubiousness of the dochor is not the issue andhas no direct legal impact. However, as weshall see, the legal distinction did have legal im -pact in cases where women executed con-tracts in the absence of their husbands, or menwithout the consent of their wives in some in-stances.[241As in so many ancient societies, in Irelandmany economic transactions took place underthe guise of a contractual relationship known asclientship. In lrish law, clientship was of twodistinct types-free and base, distinguishedfrom one another by the type of services re-quired by each. Free clientship (soer-celsine)was the grant by a king or noble to another freeman of livestock in return for the payment of a

"rent" of '/, of the value of the livestock to be


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88 JOSEPH R. PEDENpaid annually for 7 years. At the end of thattime, the client bccame sole and absolute ownerof the livestock and his clientship terminated.AU classes of free men were eligible to becomefree clients without any loss of legal status,franchise or honor-price. The only other obli-gations were that the free client did homage tohis "lord" or creditor by standing in his pre-sence and by attending hi on certain cere-monial occasions. Since a noble's or a king'srank depended in part on the number of clientsthat he had attending him, the Irish upperclasses invested a large part of their assets inacquiring as many clients as they could afford.This gave them inc~easedsocial and legal status,and probably increased their political power inthe assemblies as well. It also raised the valueof their honor-price, thereby increasing tbeircapacity to act as sureties and compurgators.The base client was also a free man, an ownerof some land, but usually a commoner. Hereceived a grant of either stock or land from aperson of higher rank in return for the paymentof an annual rent in kind (a food-rent) pro-portionate in value to the value of the borrowedland or stock. In addition he owed specifiedlabor services to his "lord" or creditor, and thisis why his clientship was "base".The Irish apparently considered that laboringfor another man somehow impugned one'shonor because the "lord" had to pay the baseclient upon the initiation of the contract thevalue of his honor-price. In return the "lord"was entitled to receive a percentage of the baseclient's honor-price and other compensationpaid to him if he sustained any injury or vio-lence resulting in a legal settlement. The baseclient thus remained a free man and could ter-minate his base clientship at any time uponreturning the "lord's" property and compen-sating him for any possible losses.[25]The Anglo-Norman invasion of Ireland inthe late 12th century and the subsequent partialconquest of its territory was to have a detri-mental effect upon the status and legal rightsof the Irish clients, particularly on those whowere base. Neither form of Irish clientship wasequivalent to Anglo-Norman vassalage. Freeclientship was essentially a form of commercialcontract in which the purchaser bought live-

stock on a deferred time payment system. Heremained free in legal status and the contractwas terminable at the end of seven years or evenearlier if paid in full. No one could mistake thisfor a feudal bond of vassalage or a fief despitethe free client's minimal social obligations to hiscreditor. But base clientship, where manuallabor services were required along with anannual food-rent, was more easily misunderstoodby the Anglo-Normans as equivalent to Englishvilleinage or serfdom.IZ6]In Irish law among the ranks of the unfreewere a specific class-the sen-chleithe-who arethe legal equivalent of the English villeins.They are hereditary holders of a parcel of landin return for uncertain service and pass as appw-tenances of the land should it be alienated orsold. They are included as part of the owner'sproperty for purposes of assessing his honor-priced rank. Another class of the unfreeare the fuidir who are not "villeins' in Idsh lawbut are tenants at will bound to uncertain ser-vices. However, they are free to move or aban-don their holding upon due notice to their land-lord, and may rise in social status or fall to therank of sen-chleithe if they have had ancestorsliving on the same land for nine generations-an unlikely situation.l271With the English occupation both the fuidirand the base clients were reduced to serfdomunder English law. They are called betaghs orbetagius in the English documents from the12th century onwards. The fuidir lost the rightto leave his holding and the possibility of risingin status. The base client lost his personal statusas a free man, his right to the ownership of hisown land and moveable property, and the rightto bequeath his property to the Church orothers. Even the free clients seem to have suf-fered some loss in status as the distinctionbetween them and the base clients was oftenignored by the English in their efforts to seizethe properties of the conquered Irish. Thus theEnglish conquest meant a vast displacementand dispossession, and loss of status for mostof the Irish landholding classes and tenantry aswell.[28]As we have already indicated, one of themost persistent myths of Irish history is thebelief that a form of primitive communism


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89ROPERTY RIGHTS IN CELTIC IRISH LAWprevailed in landholding. Due in part to thefailure of the translators and editors of the lawtracts published in the 19th century to use suchwords as "tribe", "clan" and "sept" precisely,later writers, particularly those dependent uponPatrick Joyce's work as a source, confused thelands of the tuath with those of thefhe or family.In addition, Irish law recognized joint-owner-ship and co-tenancy as well as co-operativework ventures. All of these have been vaguelydescribed in different places as "communalownership" or communism.In a very detailed critique of Joyce's work,Eoin MacNeill, one of the first professionalhistorians who was also able to read and inter-pret the law tracts from their manuscriptswith competency in Old Irish, pointed out thatthere was no evidence whatever to suggest thatthe lands of the tuath were held in common orperiodically redistributed. Quoting Sir HenryMaine who had admitted that "all the Brehonwriters seem to have had a bias towards privateas distinguished from collective ownership",MacNeill wryly comments that it was hardly abias-it was a reality. It was a myth of collectiveownership that was the product of bias. Thereare only two kinds of land which seem to havebeen viewed as being without owners: mountainpeaks and woodlands or forests which were notpartitioned or appropriated. There was also theland that belonged to the king by reason of hisoffice. But since the kingship was normallyhereditary within a kindred or derbfne-fourgenerations of males of which one had been areigning king-even the royal domains had asemi-private character as they circulated inusufruct within the royal dynasty.091The English government encouraged Irishrulers to surrender their tuath and its landedterritory to the English Crown which wouldthen re-grant it in feudal tenure to the Irishking who thenceforth would be a feudal vassal.The result of such a transaction in effect wouldbe to transfer ownership of all lands from theallodial Irish owners to the English king andthen as a fief to the new Irish vassal-dispos-sessing the people to the benefit of the Crownand the Irish former king. Needless to say,such Irish kings were swiftly repudiated bytheir people.IM1

Ownership of property in Irelana was gene-rally absolute; but some instances of limitationswere recognized in the law tracts. For example,there were three instances in which the rights ofownership were subject to adversative prescrip-tion. If two successive generations of land-owners failed to challenge the right of a mill-race to cross their land without receiving someform of compensation for the infringement, themillrace became the absolute property of themill owner(s). The same rule applied to theconstruction of a fishing weir across a stream orestuary and the right of way of a bridge orplank roadway across a stream or bog. Also,the law recognized that certain personal "neces-sities" suspended private property rights inparticular instances: a man might take a singlesalmon from a stream or a single drawing of anet from a river or lake without infringing onthe property rights of the owners; he couldalso cut a sapling for a riding crop or the shaftof a spear or commandeer a wagon to carryhome a corpse. The gathering of nuts or kind-ling from woodlands was free to all equally,provided the woodlands were not partitioned orappropriated for private use. Seaweed could betaken also under the same restrictions. As forwild beasts, they belonged to whoever killedthem.l3'1A very common form of property holdingwas joint-tenancy. This was especially commonwhere the kindred were acting as a close eco-nomic unit in livestock raising or tilling the soil.In a pastoral enterprise where summer andwinter pasture were needed and large herds ofcattle, sheep or kine required only a few personsto attend them in the fields, co-tenancy was areasonable solution involving both division oflabor and maximum utilization of land. TheIrish took a dim view of trespassing and neigh-bors were required to give each other suretiesagainst trespass; in co-tenancy of land, therepair and maintenance of fencing was theresponsibility of each co-tenant along the outerboundary of his own land; failure to keep itproperly fenced compelled him to pay a fine tohis co-tenants, and he probably forfeited hissurety to his neighbor for trespass as well.Each tenant was required to supply some toolwhich was stored in a common place; each


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90 JOSEPH R.PEDENmorning he was required to appear at a fixedtime when the day's work on the fencing wouldbegin. If late, another might take his tool forthe day and he paid a fine. The co-tenants alsotook turns in guarding their livestock. Toprotect themselves against suit for negligtnce,the co-herders set limits to their personalliability before witnesses and gave sureties toeach other. The losses due to attacks by wolves,gorings, and wanderings into bogs were pro-vided against by these contracts and individualresponsibility for loss thus established.[3ZlA form of joint-ownership was used in theconstmction of mills. The owners were usuallymonasteries, kindred groups or individual joint-owners. If a mill was wholly within the landsof a single landowner that would obviate theneed for joint-ownership. But frequently thewater for the millrace and pond had t o be diver-ted from a distant lake or stream. This meantthat the owners of the source of the water, andthe landowners through whose land the millraceran, had to be compensated for the infringe-ment of their property rights. This might bedone by payment of a single sum to the ownersof the land or water resource, or else recog-nizing them as joint-owners with specific rightsof use of the mill for set periods in varying pro-portions. The owner of the mill and pond andthe owner of the source of the waters got thelargest share, with the landowners of the landthrough which the millrace passed getting pro-portionately less. (It was noted elsewhere thatthe landowners had to allow the millrace andcould lose their rights to compensation aftertwo generations).['flThe climate of Ireland is such that drainage is

a major problem. Thus ditches abound fordrawing off water, and for keeping cattle im-pounded. The occurrence of drownings wasapparently so common that the jurists waivedthe liability of owners for drownings in ditches,or other accidental deaths in ditches sur-rounding cattle pens,-homesteads, churches,or grave mounds, or in millraces and ponds,peat bogs or from footbridges. But if anaccident was due to the failure to fence one'sfields, the owner was liable to be fix~ed.[)~lOne of the more difficult problems in study-ing the Irish law of land ownership is the pro-

perty of a family or kindred group. MacNeilladmits that here we may have "communal"ownership. By this he means that certain landcannot be sold without the consent of the derb-fine-all males descended from a commongreat-grandfather to the thud generation. Thusthis group is also the normal range of inheritorsand also entitled to the compensation forhomicide for any of its members. While eachmember held and disposed of the fruits of hisown parcel of land, some residual control wasexercised by the kinsmen. When the land wasrdstnbuted is not clear, but some division musthave taken place when a young man came ofage, perhaps his share of his father's patrimonywas transferred at this time. If he died withoutsons, it probably was redivided among hisbrothers. Sons were the normal and equalheirs of their fathers, and their mothers.t35lWhether land was distributed in proportionalshare upon the death of any kinsman amongstall the kinsmen seems dubious. The fractionali-zation would seem very much against theinterest of orderly management. Some writersimply this was the case, but may have beenmisled by a law tract dealing with the divisionof compensation due a dead man levied on hismurderer by an armed raid into another tuath.In this tract, the deceased's compensation isobviously movable-it had been captured andtaken from another territory. Also, it wasdivided first into three thirds-one went tothe king and nobles of every grade above thedeceased's; a second third to the members ofthe hosting other than the above; and the lastthird to the deceased's kindred. This last thirdwas then divided by a series of apportiohmentsby fractions among the kinsmen according tothe closeness of their relationship to the deadman. This legal rule for a specifictypeof blood-letting, should not be assumed to be the normfor the division of ordinary property. Thus theactual distribution of landed property maywell have been confined normally to theimmediate male issue, while the more distantkinsmen retained residual rights of inheritancein case of failure of direct issue.[f61One result of the English conquest was thedisplacement of the Irish law of inheritance.Under the feudal customs of England the law


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91ROPERTY RIGHTS IN CELTIC IRISHLAW

of primogeniture prevailed and was also appliedto Ireland. Certain 16th century legal agree-ments have Irishmen trying to preserve the oldsystem of equal sharing among sons, but thesewere not recognized in English courts, thusdisinheriting the normal Ir i~h hei rs.[~~ 1One last look at Irish concepts of propertyright may be revealing. A 17th century manu-script reveals a poetic dialogue between twocontestants before a brehon. The first, re-presenting the "men of Munster", claims theyown the Shannon River and its resources onthree grounds; the Shannon was conquered inthe 11th century by the Munster king BrianBoru from the Vikings; that the river in itslower courses runs through their lands; andthat in a previous case Brian's rights were up-

held. The poet representing the "men ofConnacht" bases his claim on the fact that theriver was always recognized as theirs from thetime of Patnck to that of Brian; that the passageof a river through the land of Munster does notmake it the property of Munster, any morethan a man travelling through Munster bedcomes thereby a Munsterman; that the judge-ment in favor of Brian was invalid becausemade by a foreigner (thus unfamiliar with Irishlaw); and lastly that the river belonged toConnacht because it had its source in that land.The brehon decided in favor of the poet ofConnacht. He held that "just as the offspringof every father belongs to the father and in-herits his patrimony, the natural father of everystream is every unexhausted well from whichit springs forth first". As the Shannon has itssource in Connacht, it and its resources belongto the men of Connacht. The previous judg-ment on behalf of Brian is interesting also, and

not repudiated explicitly. Brian as presumptiveowner of the river claimed ownership of a jewelfound in the gullet of a fish taken from the riverby a trespassing fisherman. He won his claimsince the fish in a lake or river belonged to itsowner.Rivers and streams and waters in Ireland arestill held in private ownership-but by descen-dants of the English feudalists.[3*1

A fair test of the sophistication of any legalsystem might be to examine the extent to whichwomen enjoy legal capacity and property -Is.By this standard Irish law in the 8th centurymay have had more sophistication than Englishlaw in the days of Queen Victoria.Irish law was typically Indo-European inthat it was patriarchal in character at the dawnof the historical period. In all the oldest legaltexts*women have no legal capacity to act orown property in their own right. They areunder the tutelage of some male-father,brother, husband or son-just as if they werechildren.Yet even under this burden, women were inpractice straining to break the bonds of the law.The early law tracts found it necessary to men-tion that a husband has the right to rescind anycontract made by his wife in his absence, even ifshe had found sureties to support it. The con-tract was deemed invalid, and the sureties aswell. But the clear implication is that womenwere in fact making contracts in their husband'sname in his absence, and the jurist who com-posed the tract must have been under somepressure to acknowledge the practice, for hespecified that such an invalid contract could bevalidated if the husband neglected to repudiateit within 15 days of his return home or of hisbeing notified of its existence.[391The legal incapacity of women is also evidentin the earliest forms of marriage contract inwhich the wife is under her husband's tutelage.But already a concession to her appears. Ifshe is of rank equal to him, she may interposeto prevent him making a dochor, a "bad" ordisadvantageous contract (see above). Herintervention does not invalidate the contract;it merely suspends its coming into force untilher son or husband's kinsmen can be informedand given time to act. The implication is thather husband is about to alienate property thatis not fully his to dispose of. Even if she isonly betrothed, a woman can intervene in someinstances to prevent her future husband fromacting, at least temporarily.[401


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92 JOSEPH R.PEDENAnother somewhat important breach which

opened the way for extending women's legalcapacity wai recognition of her right to givea gift of a value no greater that he ^ honor-price-normally half that of her husband. Gift-givingis not a contractual act, but it implies the capa-city to own property in one's own right. Speci-fically she had the right to give the "product ofher own hands" to the Church.

The greatest departure from the system ofmale tutelage over women is found in the lawtract called the Senchus Mor composed in theearly 8th century and reflecting the teachingsof a school of law operating in Northern Ire-land. There, as in so many other cases, one ofthe pressure points for granting women widerlegal capacity was the natural desire of sonlessfathers to wish to bequeath their property totheir daughters. In the SMdaughters are recog-nized as having the right to a life interest in thelanded property of their father if he left nosons, or presumably grandsons of the maleline. But at the daughter's death, the land,which appears to have been familial, reverted tothe natural male heirs of the father's fine orkindred. As an heiress to such property, thedaughter logically had to have the means toprotect it; therefore she was recognized ashaving a variety of legal rights including theright to sue and be sued, to engage in distraintand even to make legal entry on disputed orunoccupied land by almost the same procedureas was open to males in the same circumstances.Recognition of life interest in familial land incertain circumstances also implied that she hadfuU ownership of the product of that land, andthe right to dispose of it freely. The older formof marriage contract in which the woman wasunder her husband's tutelage did not lend itselfto such a situation, and it now gave way to anew form of marital contract which soon be-came the norm among the propertied classes.Called a marriage of "mutual portions", itrequired that each partner to a marriage bringto it a set portion of property which was to beheld jointly by husband and wife, its profitsbeing divided proportionately between them.In this joint ownership-partnership, no contractwas valid without the consent of each partner,

except when the contract "advanced theircommon well-being". If either party made adochor or disadvantageous contract, it couldbe rescinded within IS days of the other partnerreturning home or receiving notificatioh of itshaving been made. Specific types of contractsmentioned in the texts include the hire of land,the purchase of livestock, the purchase ofnecessary household equipment or supplies,and agreement between kinsmen for joint til-lage of fields. No object whose lack was disad-vantageous to-the joint household could besold without mutual consent.~4~l

In addition to the property which the mar-riage partners held jointly, each could ownadditional property, including the profits oftheir joint holding, in absolute single or soleownership. The only restriction on the profitsof their joint enterprise was that the wik coulddispose of her share only to the value of herhonor-price which was half that of her husband.This may have had some further restriction asto time limit but the texts are silenton it. Thehusband's share of the profits of their jointhousehold was his sole property, but in certaininstances his wife could dispose of it withouthis consent. She could alienate it to his advan-tage, but was subject to a fine if she acfed with-out his consent. If he incurred any loss in thetransaction, and she somehow made a gain,she could be sued by her husband for theft.This rule seems to envision embezzlement orfraud among partners.141

A woman could inherit property from hermother if there were no sons, but normally thesons were the natural heirs to their mother's aswell as their father's property. If childless, awoman's property reverted to her nearest malekinsmen-not her husband--or she could be-queath it to the Church.

One of the most startling aspects of the Irishlaw was its treatment of the rights of women invarious sexual relationships outside Christianmarriage and their right to divorce. In one legaltract no less than ten different kinds of sexualunion between males and females are legallyrecognized-each having a very precise legalcharacter, each partner enjoying specific pro-perty rights and obligations. From a Christian


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93ROPERTY RIGH TS IN CELTIC IRISHLAWviewpoint, some of these relationships areclearly polygamous, others irregular, someeven casual or violent. Most legal systems inChristian Europe denied these women legalstatus and rights, and extended these depri-vations to the children unless the father recog-nized them. The Irish law recognized rightsof maintenance and support which vary in de-gree and amount according to the character ofthe sexual union. For example, in a marriageof mutual portions the cost of "fostering" orrearing a child is shared equally by the parents;but if the child is horn of a bondwoman, or asa result of rape, or in secret, the father is res-ponsible solely for its rearing costs. In someinstances the male has some control over thewoman's property rights and a right to share inher honor-price; in others she controls some ofhis property rights and shares in his honor price.The detail, extensiveness, balance and propor-tionality with which the rights and obligationsof each partner are assigned in these very un-christian couplings is unique in the law tractsof Christian Eur0pe.1~1Although it has been suggested that this ianother instance of the archaic and unrealcharacter of the Irish law tracts, which couldnot have had validity in a Christianized Ireland,the evidence suggests otherwise. Throughoutthe medieval period, both Irish clerical andforeign commentators frequently denounce theIrish for their failure to suppress sexual promis-cuity and adhere to the marriage laws of theChurch and "civilized" societies. It is mostunlikely that the Irish were more promiscuousthan other peoples; but it was their unique prac-tice of continuing to separate canon law fromcivil law that seemed so scandalous to otherEuropeans.[4SlSimilarly, the Irish law recognized the rightof divorce. A man might repudiate his wife fordishonoring him, doing him some injury orwillful abortion. But, incredibly, the wifecouldinitiate a divorce action against her husband!She could charge consanguinity, incurable in-firmity, sterility, cruelty evidenced by lastinginjury, slanderous remarks as to her character,abandonment for another woman, willful ne-glect in supplying the necessities of life, or aban-

donment by reason of his entering a monastery.None of the above except consanguinity wasgrounds for annulment in canon law. Therewere also some eleven categories of legalseparation with respective property rights andobligations regarding the care of children anddistribution of property. That these laws werenot "obsolete" can be shown in the maritalhistory of Gormflath. Wife first of Olaf,Viking king of Dublin, widowed, she marriedMalachy, king of Meath and High-King of TaraA.D. 980. Malachy repudiated her, and shelater married and divorced Brian Boru, whoalso won the High-Kingship by replacingMalachy. Thus she had two ex-husbands stillliving when she became betrothed to a thud,Sigurd, Earl of Orkney.V6IWhile the history of Irish law between the8th and 17th centuries is very sketchy due to thelack of surviving historical materials, occasionalreferences indicate that women continued toenjoy an exceptional standing in law with re-gard to their property rights down to the endof native Irish culture and independence in theearly 17th century. In the early 14th centurythere is reference to a woman acting as an agentfor an English proprietor whose cattle havebeen "stolen" by some Irishmen. She is com-missioned to mediate for their return-the Irishhaving in their law invoked the law of distrainton the Englishmen's cattle. There is even areference to a woman sitting as an arbitratoralong with a brehon in a suit. In the early 17thcentury the English observer Sir John Davies inh i book investigating why the Irish were sohard to conquer remarks: that the Irish are sosavage that "the wives of Irish lords and chief-tains claim to have sole property in a certainportion of the goods during coverture with thepower to dispose of such goods without theassent of their husbands; (therefore) it wasresolved and declared by all the (English) judgesthat the property of such goods should he ad-judged to be in the husbands and not in thewives as the (English) common law is in suchcases". This is but another example of thedestructive and retrogressive effect of the im-position of English common law on the legalstatus and property rights of the lrish people.1471


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94 JOSE PH R. PEDENCONCLUSION AND SUMMARY

While a comprehensive survey of the Irishlaw of property and property rights cannotyet be written, we can already see that the ideaof private ownership permeates those aspectsof the law which have been subjected to recentstudy. The Irish frankly and openly usedassessments of property as the criterion fordetermining a man's social and legal status, theextent of his capacity to act as a surety or com-purgator, and to fix the amounts of compen-sation due hi s a victim of crime or any kindof injury. Ownership of land determined aman's status as free or unfree and his right toparticipate in the public assembly. The needsof the Church modified but did not alter thebasic character of native Irish institutions andlaw. While it secured for itself almost totalfreedom from lay ownership and secular obli-gations, it was never able to fully destroy theessentially secular character of Irish law asexemplified in the laws on marriage and di-vorce. The legal capacity of women showedexceptional development and gave women pro-perty rights in the 8th century that were cen-turies ahead of those enjoyed by Englishwomen. The fact that lrish law was the creationof private individuals who were professional,even hereditary, jurists, gave to the law both aconservative yet flexible and equitable charac-ter. Their power rested upon the free consentof the community in choosing them as arbitra-tors in disputes; and this made equity and jus-tice more likely than in royal courts where theinterests of the State and its rulers are para-mount. The invasion and conquest of Ireland,the work of over 400 years before it was com-pleted, was eventually fatal to the Irish systemof law snd the culture and civilization it ex-pressed. The English State was incompatiblewith the Irish tuoth; the English common lawwas totally incompatible with the Irish law.Ireland from the 12th century was a single landin which two nations and two laws and twocultures engaged in a constant struggle for sur-vival. The end came in the early 17th centurywith the flight bf the last Irish kings from Ulsterand the new plantation of that region by Pro-

testant Scots sent by James I-that most ab-solute of English Kings.As for the native Irish and their ancient

culture, the English official Sir ~ o h h !Daviesthought he said it all:

"For if we consider the Nat ure of the Irish Custo mes,we shall finde that the people that docth use them,m ust of n m i t i e b e ebeUes to all good O o v ~ e n t ,destroy the commonwealth wherein they live. andbring Barbarisme and desolation u,,most fru itfull Land of th e world".' E' n the r i b 1 ndNOTES

I . The Ancient L ows of Ireland, 6 volumes. 1865 - 1901.The most complete evaluation of the law tracts by acompetent lrish philologist and jurist is D. A. Binchy'sRhys Memorial Lecture before the British Academyentitled TheLinguisficrmdHistoncal Value ofthe Irish ..Lnw Tracts (London. 1943). Also Binchy, "Anden!Irish Law", irish Jurisr NS l(1966). 84 -92.

2. Patrick W . Joyce, A Social Hisfory of Ancient Ireland(Dub lin, 1%). 2 vols. Reprinted in 1913 an d 1968.3. P: Boissonade, Life and Work in Medieval ~ u r o &trans. by Eileen Power (Londo n, 1927). Harp er Tqrchbook edition (New York, 1964). Sn pp. 78-79 of thelatter.4. See the review of Daniel Coghlan's Ancient LandTenures of Ireland in Irish Law Tim es and Solicitors'Journal (March 10, 1934). Further comm ents in July14 and Sept. I5 issues. Th e reviewer i s anonym ous.5. P. Bereford Ellis, A Hislory of th e Irish WorkingC h(London, 1972). Th e author ignores all modernscholarship on the subject and rejects MacNeill's

criticism of Joyce because he was pro capitalist!6. Binchy, Hisroricai V alue ofIrish Law Tracfs,22. Also,Gearoid Mac Niocaill, "Notes on Litigation in lateIrish law", Irish Jurist NS 2 (1%7), 299 - 307, and G. J.Hand, "The Forgotten Statutes of Kilkenny", IrishJurirr NS l(1966 ). 301.7. D. A. Binchy in Early Irish Society (Dublin, 1954).56-58. Also, Mylei Dillon and Nora Chadwick; Th eCeltic R ea lm (London, 1%7), 93 - 98.8. Binchy, Irish Jurist NS 1 (I%), 84 - 92.9. Ibid. See also, Eoin MacNeill, "Prolegomena to aStudy of the Ancient Laws of Ireland" Irish JuristNS2(1%7), 106- 115.

10. The most authoritative recent study of the ir is hc hu rc hin the preconquest period is Kathleen Hughes, TheChurch in Early Irish Society (London, 1966). Seechap ters4 and 5 in particular here.11. Ibid. Chapter 12, pp. 123 - 133 and Chapter 5, pp.45 - 55.12. Ibid. Also, for St. Patrick, see R.P.C. Hawon, St .Patrick: His Origins and Career (New York, 19681,139.i3. Ludwig Bieler, "The lrish Penitentials", ScriptoresLoriniHibernioe (Dublin. 1963).14. Hug hes, Chapt er 14, pp. 143 - 156. See especially149.151.. ....15. See paper given to C olum bia University Faculty Seminar

I


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95ROPERTY RIGHTS IN CELTIC IRISH LAWin Hislory of Legal and Political Thought (1%6) byProf. Charles Donohuc 01 Fordham University: Onthe Senchar Mor, an early 8th century tract includingmaterialon Church-StateRelotiom. Also, Hughs, 161.

16. Hughs, Chapter 8, pp. 79-90 on monastic p m c h i a eand Chapter 11, pp. Il l-12 2on Armagh.17. J. A. Watt. m e Church and the Tw o Nations in

Medieval Ireland (Cambridge, England, 1970). 160-169.18. Ibid.19. Ibid, 206-207 an d2 l l .20. Eoin Mac Neill. "The Law of Status or Franchise",Proe, Royal Irish Academy 36C (1921-24), 265 - 316.

See here p. 273.21. Binchy eipressed some doubt on this in his HistoricalValue,p. 33.22 . See Dillon and Chadwick, Celtic Realm (London,1%7), 98 - 99. Also, see M ac Neill, op. cit.23. Ibid.24. Rudolf Thurneysen, "Sochor and Dochor': E m y s

and Studies in Honor of Pro[. Eoin Mac Neill, editedby John R yan S. J . (Dub lin, 1940), 158- 159.25. For a discussion of clientship, see D. A. Binchy, CrithGablach (Dublin. 1941). pp. 78, 80, % - 97 and 107.Also, Dillon andChadw ick, 95 -% .26. Gca roid Mac Niocaill, "The Origins of the Betagh",Irirh Jurist NS 1 (I%@ , 292-298. Liam Price dis-agrees wth Mac Nicoaill in Eriu 20 (1966), 185 - 190,bu t J . A. Hand is convinc ed by Mac Niocaill's a nalysisin his English Law in Ireland 1290 - 1324 (Cambridge,I%)), 213.27. Binchy. Crith Gablach, 105.28. On fuidir, Ibid. 93. Otherwise, see op. cit.29. Eoin Mac Neill. Celticlrelond(Dublin, l92l), 144 - 151.30. On the policy of "surrender and re-grant" underHenry VllI see J. C. Becket, The Making of Mod emIreIand(London, I%), 18 - 19.31. D . A. Binchy, "lrish Law Tr aa s Re-edited: CoibnesUisci Thairidne (AL IV, 206-222)", Eriu 17 (1955),seep. 81 n. 9 521s. Also, M ac Neill, Celticlreland, 170if .32. AncientLaws, IV, p. 372 if.33. o p . Cit.34. Ibid., 71-72.

35. Mac Neill, Celtic Ireland, I5 2 - 176. Also, M ac Neill,"The lrish Law of Succession", Studies 8 (1919),367 ff.

36. Mac NeiU, Studies 8 (1919, 376 - 377. Also, Kun oMeyer , inEr iu 1 ( IW ), 214-215.37. J. Otway-Ruthven, "The Native lrish an d English Lawin Medieval Ireland". Irirh Historical Studies 8 (1950),

1 - 16.38. Brian O'Cutv, "The Poctic Confro nlatlon about theS hannon R iw ." Eriu 19 (1962). 89 - 105. The poemisdatcd to thc lS th


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An American Experiment in Anarcho-Capitalism: The-ot So Wild, Wild West*byTerry L. AndersonandP. J. Hill

De partm ent of Economics, M on ta na Sta te University

The growth of government dur ing this century has attracted the attention ofmany scholars interested in explaining that grow th and in proposing w ays tolimit it. As a result of this attention, the public choice literature has experi-enced an upsurge in the interest in anarchy and its implications for socialorganization. The work of Rawls and Nozick, two volumes edited byG or do n Tullock, Ex plora tions in the Theory of Anarchy, and a book byDavid Fried ma n, The M achinery of Freedom, provide examp les. Th e goalsof the literature have varied from providing a conceptual framework forcom paring L eviathan and its oppo site extreme to presenting a form ula forthe o pe rati on of society in a sta te of anarch y. But nearly all of this work hasone co mm on aspect; it explores the "theory of anarchy." The purpo se of thispap er is to take us fro m the theoretical world of anarchy to a case study of itsapplication. To accomplish our task we will first discuss what is meant by"anarcho-capitalism" and present several hypotheses relating to the natureof social organization in this world. These hypotheses will then be tested inthe co ntex t of the A merican W est dur ing its earliest settlement. We propo seto examine property rights formulation and protection under voluntaryorga nization s such as private protection agencies, vigilantes, wagon trains,and early mining camps. Although the early West was not completelyanarc histic, we believe tha t governm ent a s a legitimate agency of coercionwas absent for a long enough period to provide insights into the operationand viability of prop erty rights in the absence of a form al state. The na tureof contrac ts f or the provision of "public goods" a nd th e evolution of western"laws" for the period fr om 1830 to 1900 will provide the da ta fo r this casestudy.* This paper was written while Terry Anderson was a National Fellow at the Hoover

Institution, 1977-78. While retaining responsibility for any errors, the authors wish tothank Jon Christianson, Murray Rothbard, and Gordon Tullock for their valuable com-ments.9


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10 THE JOURNAL OF LIBERTARIAN STUDIESTh e West d urin g this time ofte n is perceived as a place of great cha os, withlit tle respect for p rope rty o r l ife. O ur research indicates that this was no t the

case; property rights were protected and civil order prevailed. Privateagencies provided the necessary basis for a n orderly society in which prop -erty was protected an d conflicts were resolved. These agencies often did no tqualify as governments because they did not have a legal monopoly on"keeping order." Th ey so on discovered th at "warfare" was a costly way ofresolving disputes and lower cost me thod s of sett lement (arbitration, courts,etc.) resulted. In summary, this paper argues that a characterization of theAmerican West as chaot ic would appear to be incorrect .

Anarchy: Order or Chaos?Th ou gh the first diction ary definition of ana rchy is "the state of having no

governm ent," many people believe that the th ird definit ion, "confusion orch ao s generally," is m or e app ro pr ia te since it is a necessary result of the first.If we were to eng age seriously in the task of disma ntling the governm ent as i texists in the U.S., the political econo mist wou ld find no scarcity of prog ram sto el iminate. H owever , as the d ismantl ing cont inued, the decisions wouldbecome mo re and m ore difficult , with the last "pubiic goods" to be de alt withprobably being programs designed to define and enforce property rights.Consider the following two categories of responses to this problem:1 ) Th e first scho ol we shall represent a s the "constitutionalist" o r "socialcontractar ian" school . For this group the important quest ion is "how dorights re-emerge an d com e to co m ma nd respect? How d o 'laws' em erge thatcar ry with th em g enera l respect for their ' legitimacy'?"' This position do esnot allow us to "Sump over' the whole set of issues involved in defining therights of persons in the first place."z Here collective action is taken as anecessary step in the establishment of a social contract or constitutionalcon tract which specifies these rights. T o the e xten t that rights could beperfectly defined, the only role for the state would be in the protection ofthose rights since the law designed for that protection is the only publicgood. If rights cannot be perfectly well defined, a productive role for thestate will arise. The greater the degree to which private rights cannot beperfectly defined, the more the collective action will be plunged into the"eternal dilemm a of dem ocratic governm ent," which is "how can govern-m en t, itself the reflection of interests, establish the legitim ate bo un da ries ofself-interest , a nd how can it, conversely carve ou t thos e areas of interventionthat will be socially protective and collectively useful?"3 The contractariansolution to this dilemma is the establishment of a rule of higher law or aconstitution which specifies the protective and productive roles of thegovernment. Since the productive role, because of the free rider problem,


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11N AMERICAN EXPERIMENT IN ANARCHO-CAPITALISMnecessar ily requires coercion, the governm ent will be given a m ono po ly o nthe use of force . We re this no t the case , som e individuals would choose no tto pay for services f rom which they der ive benef i ts .

2) Th e second sch ool ca n be labeled "anarcho-capi ta l ist" o r "pr ivateprope r ty anarch is t. " In i ts ex t rem e for m th i s school would advoc a te e limi-nat i ng a l l for ms of col lective act io n s ince a l l funct ions of governm ent ca n hereplaced by individuals possessing pr ivate r ights exchangeab le in the mar ketplace. Und er this system al l t ransact ions wou ld be voluntary excep t insofaras the protect ion of individual r ights an d enforceme nt of contracts requiredcoerc ion . T he essen tia l ques t ion fac ing th i s school is how ca n law and order ,which d o require som e coercion, he suppl ied w ithout ul t imately resul t ing inone pro vider of those services holding a m ono po ly o n coercion, i.e ., govern-ment . I f a do m ina nt p ro tec t ive f i rm o r assoc ia tion emerges a fte r exchangestake place, we will have the m inimal s ta te a s def ined by Nozick a nd will havelapsed back into th e world of the "const itutionalist ." Th e pr ivate prop er tyanarchis t 's v iew tha t m arke ts can pro vide protect ion services is summ arizedas fo llows:

The profit motive will then see to it that the most efficient providers ofhigh quality arbitration rise to the top and that inefficient and graft-oriented police lose their jobs. In short , the market is capable of provid-ing justice at the cheapest price. According to Ro thba rd, to claim thatthese services are "public goods" and cannot be sold to individuals invarying amounts is to make a claim which actually has little basis infact.'Hen ce, the anarcho-c api ta l is ts place fa i th in the profi t seeking entrepreneu rst o f ind the o pt im al s ize a n d type of protective services and fa i th in compet i -t ion to prevent the es tab l ishment o f a mo nopo ly in the provis ion of theseservices.

There are essent ia l ly two differences between the two schools discussedabove. Firs t, there is the emp ir ical quest ion of whether com pet i t ion canactual ly provide the protect ion services . O n the anarcho-capita lis t s ide , thereis the bel ief that it can. O n the const i tut ional is ts o r "minimal s ta te" s ide ,there is the fol lowing argument .

Conflicts may occur, and one agency will win. Persons who have previ-ously been clients of losing agencies will desert and comm ence purcha-sing their protection from winning agencies. In this manner a singleprotective agency or association will eventually come to dominate themarket for policing services over a territory. Independent persons whorefuse to purchase protection from anyone may remain outside the scopeof the dominant agency, but such independents cannot be allowed topunish clients of the agency on their own. They must be coerced into notpunishing. In order to legitimize their coercion, these persons must hecompensated, but only to the extent that their deprivation warrants.'


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12 T H E JOURNAL OF LIBERTARIAN STUDIESThe second issue is more conceptual than empirical, and hence, cannot beentirely resolved through observation. This issue centers on the question ofhow rights are determ ined in the first place; how d o we get a starti ng poi ntwith all its status quo characteristics from which the game can be played.Buchanan, a leading constitutionalist, criticizes Friedman and Ro thb ard ,two leading private property anarchists, because "they simply 'jump over'the whole set of issues involved in defining the rights of persons in the firstp l a ~ e . " ~o the const itutionalist th e Lockean concept of mixing labor withresources to arrive at "natural rights" is not sufficient. The contractarianapp roa ch suggests that the starting point is determined by the initial bar-gaining process which results in the constit ution al con tract. D eba te over thisissue will undou bted ly con tinue , but even Buch anan agrees th at "if thedistribution or im putation of the rights of persons (rights to d o things, bothwith respect to othe r person s an d t o physical things) is settled, then away wego. And aside fro m differences o n certain specifics (which may be im por tantbut relatively am ena ble t o analysis, e.g., the efficacy of m arket-like arran ge-men ts for internal and external peace-keeping), I should accept m any of thedetailed reforms that these passionate advocates propose."'O ur purpo se in this p aper is to discuss, in a historical context, s om e of theim po rtan t issues tha t Buchanan says are amenable to analysis. We d o notplan to debate the issue of the starting point, but will be looking at the"eRcacy of market-like arrangements for internal . . . peacekeeping.""tdoes seem, for the time period and the geographical area which we areexam ining, that there was a distribution of rights which was accepted eitherbecause of general agreement to some basic precepts of natural law orbecause the inha bitan ts of the Am erican West cam e ou t of a society in whichcertain rights were defined an d enforced. Su ch a starting po int is referred toas a Schelling po int, a point of comm onality that exists in the minds of theparticipants in s om e social situation.9 Even in the absence of any enforce-ment mechanism, most members of the western society agreed that certainrights to use and con trol property existed. Th us when a m iner argued tha t aplacer claim was his because he "was there first," that claim carried moreweight tha n if he claimed it simply because he was m ost pow erful. Tastes,culture, ethics, and num erous other influences give Schelling point charac-teristics to some claims but not to others. The long period of conflictsbetween the Indians an d the settlers can be attributed t o a lack of any suchSchelling points. We concentrate, however, on arrangements for peace-keeping and enforcement that existed among the non-indigenous, whitepopulat ion.

In th e following pages we describe the private enforcem ent of rights in theWest between the period of 1830 and 1900. This description do es allow oneto test, in a limited fashion, some of the hypotheses put forth about how


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AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM 13anarcho-capitalism might function. We qualify the test with "limited" be-cause a necessary feature of such a system is the absence of a monopoly oncoercion.'o Various coercive agencies would exist hut none would have alegitimized monopoly on the use of such coercion. The difficulty of dealingwith this proposition in the American West is obvious. Although for muchof the period formal government agencies for the protection of rights werenot present, such agencies were always lurking in the background. There-fore, none of the private enforcement means operated entirely independentof government influence. Also, one has to he careful in always describingprivate agencies as "non-government" because, to the extent that theydevelop and become the agency of legitimized coercion they also qualify as"government." Although numerous descriptions of such private agenciesexist, it is often times difficult to determine when they are enhancingcompetition and when they are reducing it.

Despite the above caveats, the West is a useful testing ground for severalof the specific hypotheses about how anarcho-capitalism might work. Weuse David Friedman's The Machinery of Freedom as our basis for theformulation of hypotheses abou t the working of anarcho-capitalism becauseit is decidedly non-utopian and it does set out, in a fairly specific form, theactual mechanisms under which a system of non-government protectiveagencies would operate. The major propositions are:I ) Anarchocapitalism is not chaos. Property rights will be protected and civilorder will prevail.2) Private agencies w~llprovide the necessary functions for preservation of anorderly society.3) Private protection agencies will soon discover that "warfare" is a costly way ofresolving disputes and lower-cost methods of settlement (arbitration, courts, etc.)will result.4) The concept of 'Sustice" is not an immutable one that only needs to be discovered.Preferences do vary across individuals as to the rules they prefer to live under and theprice they are willing to pay for such rules. Therefore, significant differences in rulesmight exist in various societies under anarcho-capitalism.5) There are not significant enough economies of scale in crime so that major"mafia" organizations evolve and dominate society.6) Competition among protective agencies and adjudication bodies will serve ashealthy checks on undesirable behavior. Consumers have better information thanunder government and will use it in judging these agencies.

Cases from the WestBefore turning to specific examples of anarcho-capitalistic institutions in

the American West, it is useful to examine the legendary characterization ofthe "wild, wild West." The potential for chaos is a major objection to trust inthe market for enforcement of rights and many histories of the West seem to


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14 THE JOURNAL OF LIBERTARIAN STUDIES

substantiate this argument. These histories describe the era and area ascharacterized by gunfights, horse-thievery, and general disrespect for basichuman rights . T he taste for the dram atic in li terature an d o ther entertain-ment form s has led to co ncentra tion on the seeming disparity between thewesterners ' desire for order and the prevailing disorder. If the Hollywoodimage of the West were not enough to taint our view, scholars of violencecontributed with quotes such as the following: "We can report with someassurance that compared to frontier days there has been a significant dec-rease in crimes of violence in the United States.""Recently, however, more careful examinations of the conditions thatexisted cause one to doubt the accuracy of this perception. In his book,Frontier Violence: Another Lo ok, W. Eugene Hollon stated that the he-lieved "that the W estern fron tier was a fa r mo re civilized, mor e peaceful, andsafer place than American society is today."'Z The legend of the "wild, wildWest" lives on despite Robert Dykstra's finding that in five of the majorcattle to wn s (Abilene, Ellsworth, Wichita, Do dge City, and Caldwell) fo r theyears fro m 1870 to 1885, only 45 hom icide s were reported-an average of 1.5per cattle-trading seas on .') In Abilene, suppose dly one of the wildest of thecow town s, "nob ody was killed in 1869 o r 1870. In fact, nob od y was killeduntil t he adv ent of officers of the law, employed t o prevent killings."'4 Onlytw o tow ns, Ellsworth in 1873 an d Do dge City in 1876, ever had five killingsin any one year.15 Frank Prassel states in his book subtitled "A Legacy ofLaw an d Order," tha t "if any conclusion can be drawn fro m recent crimestatistics, it must be that this last frontier left no significant heritage ofoffenses against the person, relative t o o the r sections of th e country."l6Moreover, even if crime rates were higher, it should be remem bered that th epreference for order can differ across time and people. To show that theWest was mo re "lawless" th an o ur p resent d ay society tells on e very littleunless some me asure of the "demand for law an d order" is available. "Whilethe fron tier society may ap pe ar to have functioned with many violations ofform al law, it sometim es m ore tru ly reflected com mu nity custom s in conflictwith superficial and at times alien standards."" Th e vigilance committeeswhich sp ran g up in many of the mining town s of the West provide excellentexa mp les of th is conflict. In most instanc es these com mittees aro se afte r civilgovernment was organized. They proved that competition was useful incases where govern men t w as ineffective, as in the case of S an F rancisco inthe 1850's , 'hr where government became the province of criminals whoused the legal m ono poly o n coercion to further their ow n ends, as in VirginiaCity, Montana Territory in the 1860's.lY Even in these cases, however,violence was not the standard mo dus operandi. When the San Franciscovigilante com m ittee was reconstituted in 1856, "the g rou p remaine d in actionfor three months, swelling its membership to more than eight thousand.


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15N AMER ICAN EXPERIMENT I N ANARCHO-CAPITALISMDuring this period, San Francisco had only two murders, compared withmo re th an a hund red in the six m on ths before the comm ittee was formed."2QT o understand how law and orde r were provided in the American West,we now tur n to fou r examples of institutions which approxim ated anar cho-capitalism. T hese case studies of land claims clubs, cattlemens' associations,mining camps, and wagon trains provide support for the hypotheses pre-sented above and suggest that private rights were enforced and that chaosdid not reign.

a. Land Clubs:Fo r the pioneer settlers who often m oved in to the public dom ain before it

was surveyed or open for sale by the federal government, definition andenforcement of property rights in the land they claimed was always aproblem . "These marg inal o r fron tier settlers (squatters as they were called)were beyond the pale of constitution al government. N o statute of Congressprotected them in their rights to the claims they had chose n an d the improve-m ents they had mad e. In law they were trespassers; in fact they were honestfarmers."21 Th e result was the fo rm atio n of "extra-legal" org aniza tions fo rprotection a nd justice. These land clubs o r claims associations, as th ee xt ra -legal associations came to he known, were found throughout the MiddleWest with the Iowa variety receiving the most attention. Benjamin F.Shambaugh suggests that we view these clubs "as an illustrative type offron tier extra-legal, extra-constitutional political organization in which arereflected certain principles of Am erican life an d character."'2 T o Fred erickJackso n Turn er these squatters' associations provided an excellent exam pleof the "power of the newly arrived pioneers to join together for a com m onend without the intervention of governmental institutions. . . ."2'

Each claim s association ado pted its own constitution and by-laws, electedofficers for the ope ratio n of the org aniz ation , established rules for adjudicat-ing disputes, an d established the p rocedu re for the registration and protec-tion of claims. The constitution of the Claim Association of JohnsonCo unty, Iowa offers one of the few records of club operation. In addition topresident, vice president, and clerk and record, that constitution providedfor the election of seven judges, any five of w hom could compo se a court tosettle disputes, and for the election of two marshals charged with enforcingrules of the association. The constitution specified the procedure wherebyproperty rights in land would be defined as well as the procedure forar bit rat ing claims disputes. User charges were utilized for defrayin g arbi tra-tion expenses.

In such case of the place and time of holding such court and summ ons allwitnesses that either of the parties may require the court made previous


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16 THE JOURNAL OF LIBERTARIAN STUDIESto their proceeding to investigate any case require the plaintiff anddefendan t to deposit a sufficient sum of money in their hands to defraythe expenses of said suit or the costs of said suit, and should either partyrefuse to deposit such sum of money the court may render judgmentagainst such peison refusing to do. . . .24

As a sanction against those who would not follow the rules of theassociation, violence was an option, but the following resolution suggeststhat less violent means were also used.Resolved, that more effectually to sustain settlers in their just claimsaccording to the custom of the neighborhood and to prevent difficultyand discord in society that we mutually pledge our honours to observethe following resolutions rigidly. That we will not associate nor counte-nance those who do not respect the claims of settlers and fur ther that wewill neither neighbor with them . . . Trade barter deal with them in anyway whatever. . . .a

T ha t the con stitutions , by-laws, an d resolutions of all claims clubs werenot al ike suggests that preferences among the squatters did vary and thatthere were alternative forms of protection and justice available. The mostco m m on justification for

Documents

Alternatives to Top-Down Provision of Protection PART2