Celtic Law : A Short Summary

LEGAL PROCEDURE

After having dealt with the prescriptions the laws make, we will now procede to actual legal procedure. So to say, what happens, if one of the aforementioned laws is violated?

DISTRAINT (ATHGABÁL)

Basically, legal procedure in Ireland was not directly a matter of public administration, which was, in the times the laws were written down, still in an embryonic stage. As such, it was required of the wronged individual or his kin to take care of his legal rights by himself in most of the cases. To do this, he usually has to proceed along a legally defined path to set his claims.

In case of contract law this usually was made by declaring the pledge of the other side as forfeit, thereby forcing the other side either to lose their honour or to settle the claims in court. However, in cases where no pledges had been given there were other methods required if the offending party did not fulfill the claims of the claimant and the whole case had to be brought in front of a court.

The most common form of stating one’s claims and thereby initiating a law case is distraint, i.e. usually carrying away a certain number of animals, most often cattle, equivalent to the worth of the claim, from the offender (or in some cases from a substitute from him). It is described in great detail in “Di Chetharslicht Athgabála” (on the four sections of distraint). The text describes the normal procedure in which distraint has to take place.

Firstly, and this is in fact the initiation of the law case, the plaintiff has to give formal notice (airfócre or apad) to the defendant that he intends to distrain him. Having done this, there is a delay (anad) of one to five days in which the defendant is given time to react, either by fulfilling his obligations to the claimant (in case of a violated contract), paying whatever fines are due or giving a pledge to signify his readiness to come to terms.

If the defendant fails to react in time, the plaintiff is entitled to enter the land of the defendant and carry off animals to the value of the amount under dispute (tóchsal). This must be made in the early morning in the presence of an “aigne” (advocate). Those animals are to be put in a secure “pound” which may belong to the plaintiff or to somebody else. Any injuries to the animals while in this pound are in the responsibility of the plaintiff.

Now another delay starts to run, called “díthim” (delay in a pound), probably of the same length as the original delay. If now the defendant settles the claim, he gets his animals back and nothing else happens.

If the defendant however fails to react once again, the final stage of distraint starts. From the end of the second delay on, the animals start to become forfeit, a process known as “lobad” (lit. decay) or “athgabál íar fut” (distraint with a stay). On the first day, animals in the worth of 5 séts become forfeit, from that on, animals in the worth of 3 séts per day, until none remains. Once an animal has become forfeit, it cannot be recovered by the defendant, who however can still settle the claims at any time during this “decay”, by paying the balance of the amount owed and a fee for the plaintiff’s expenses for feeding the cattle while in the pound, thereby regaining all the animals still left over.

There also exists a special form of distraint, called “athgabál inmleguin”, whereby a surrogate for the defendant is distrained, probably usually a member of the same kin-group as the defendant, even though he might also be a ráth (surety) that had guaranteed a contract that the defendant has broken. In case of distraint of a surrogate, the period of notification is doubled and the surrogate has to be formally informed for which offense he is being distraint, where they will be impounded, and the identity of a “fethem” (legal representative for the plaintiff). In case of the surrogate being a kinsmen of the defendant, regulation of how he could get back his distrained animals or equivalents therefore would be an internal matter in the kin, if he is a ráth, he would be entitled to clame back double the amount distrained plus his honour-price from the defendant (and could himself then distrain the defendant for that, if necessary).

In certain cases distraint can also take a ritualised for. E.g. a smith can be distrained by binding a white ribbon across his anvil, thereby “magically” prohibiting him from working on it.

The above described procedures basically work against anyone of less than full nemed rank. In case the person to be distrained is somebody of full nemed rank, special actions have to be taken:

FASTING

If the defendant is of full nemed rank, the claimant has to fast (troscud) against him to pressurize him to justice. The fast takes place outside the nemed’s house and, at least according to later commentaries, only last from sundown to sunrise (thereby the claimant misses the main evening meal) for a certain period, rather than to death or settlement. If fasting takes place, the nemed must guarantee to concede to justice by either appointing a surety or giving a pledge. If he eats during the fast, he must pay twice the amount originally owed. If he holds out against a justified and properly conducted fast, he loses his status and all his legal rights.

SUBSTITUTE CHURLS

A person of nemed rank may have a so-called “aithech fortha” (substitute churl). In case he has, the plaintiff must distrain this substitute churl instead of the nemed himself, if he does still distrain the nemed himself he has to pay the fine for illegal distraint.

RESTRICTIONS ON AND ILLEGAL DISTRAINT

There are certain restrictions on the practice of distraint. Various circumstances, like the death of a family member, can allow a postponement, certain animals may not be distrained (like cows that have just calved). Of course, the reason for such postponements have to be genuine and prooven by witnesses.

If the claimant does not respect a legal postponement, or distrains animals which he would not be allowed to, or distrains on a holy day or in defiance of the protection (turtugud) of a third party or in some other cases, he is guilty of illegal distraint. The fine for illegal distraint is 5 séts.

As there are many and difficult considerations to be made in case of a distraint, and formal procedures are to be followed, it is important to have a professional lawyer (aigne) who carries out the distraint on behalf of the claimant. This lawyer gets one third of the amount distraint as payment.

LEGAL ENTRY (TELLACH)

Legal entry is the procedure to lay claim to a certain piece of land. It is also a very formalised procedure, which is detailed in the text “Din Techtugad” (on legal entry).

The procedure is the following. As a first step, the claimant enters the land, holding two horses, accompanied by a witness and sureties. He immediatly withdraws again after this “céttellach” (first entry). The person currently occupying the land may now submit the dispute to arbitration for a period of five days.

If the occupant didn’t react, the claimant now enters the land again, ten days after the first entry, accompanied by four horses which are unjoked (and therefore free to graze), two witnesses and sureties, once again withdrawing immediatly. This is the socalled “tellach medónach” (middle entry). Once again, the current occupant can submit the cause to arbitration, this time he has a three day period.

Twenty days after the original entry, if the current occupant still hasn’t reacted, the claimant makes the “tellach déidenach” (final entry), this time accompanied by eight horses which he may feed and stable, and three witnesses. If now the occupant is willing to submit the case to a judge, the claimant is granted “speedy arbitration”, meaning that the case will be heard on the next possible day. If however the current occupant still fails to submit to arbitration, the claimant acquires legal ownership of the disputed property (KELLY 1988, 187). He now has to spend a night on it, kindle a fire, and tend his animals on it.

FEMALE ENTRY (BANTELLACH)

The procedure for female entry is basically identical to the usual procedure, only that the periods are shortened to 4/8/10/16 days for the respective entries / reactions of current occupants and that the horses are replaced by ewes, and on the final entry, a kneading trough and a sieve for baking have to be brought with her.

ILLEGAL ENTRY

It is of course illegal to make such an entry into property to which one has no right. However, also false numbers of animals or other failures in the procedure make the entry illegal. Illegal entry is severely fined and noted, together with illegal distraint and illegal duelling as the three occasions when the Féni (freemen of full legal capacity) prosecute illegality.