This article is an expanded version of a paper which I gave at Jesus College Oxford on 9 May 2013 at the conference on Celtic Legal Procedure organized by T. M. Charles-Edwards and Jaqueline Bemmer, and also at the School of Celtic Studies Tionól on 16 November 2013. I warmly thank the organizers of those conferences as well as Professors Fergus Kelly and Liam Breatnach for inviting me and I am most grateful to Professor Fergus Kelly for reading a draft of this article. Any errors are my own responsibility.
Towards the end of the tract entitled Cóic Conara Fugill (Five Paths to Judgement)1, the author asks why there are five paths of judgement. And he ends up giving the answer: “So that unlearned people and those ignorant in law cannot take legal action against those who have a knowledge in law”2. We have to admit, indeed, after a first reading of the tract, that the aim of the author has certainly been reached. In a general way, not all law tracts are so obscure and require such a great mastery of the keys of reading as the Five Paths. The jurists, probably jealous of their prerogatives, seem to have taken particular care to protect the procedure, which is at the heart of law.
There are a few tracts specialized in the matter, which have been investigated by Fergus Kelly, in his famous Guide3. But Cóic Conara Fugill is the most complete one. It envisages five procedures according to the nature of the cases: 1) serious crimes, disputes linked to land property or to power and “great difficulties”, 2) the validity of contracts, and some offences, 3) the balancing of contracts, 4) disputes concerning dependent people, 5) the right to ask for rejudgement. The procedures all bear names whose mere evocation doesn’t allow us to give a precise definition: “Truth” (fír), “Right” (dliged), “Justice” (cert) “Due” (téchta) and the right to ask for rejudgement (cóir n-athchomairc). The parties or their lawyers have to choose the appropriate procedure and follow it till the sentence is passed, without changing it. There are several versions of that tract4. They are all contained in manuscripts which were written as late as from the 12th to the 16th centuries. However, we know that the text itself was composed in the 7th or 8th century.
Two scholars have provided explanations of this text. Rudolph Thurneysen writes in his 1926 edition, that the names of the procedures correspond to the question that the judge asks himself in various situations. For instance, he asks himself for fír: “Ist er es wirklich (iar fír) oder ist er es nicht?”5. For dliged, he asks himself: “Besteht ein gültiger also einzuhaltender Vertrag oder nicht?”6. The third procedure is used, according to Thurneysen, in cases of hidden defects which only become apparent later7. The question of the status of dependent people and of their level of freedom is settled by following the third procedure, particularly by resorting to senchaide “die Kenner der Vergangenheit”8, the custodians of the past9. Finally, the fifth path allows the parties who are not capable of determining by themselves the path to follow to ask the judge before the start of the trial10.
A few decades later, Robin Chapman Stacey offers another interpretation of the text, based on the sureties required for each procedure. According to her, a link between the nature of the surety which is required and the nature of the case can be established. So, fír, which also means “ordeal”, would concern the disputes settled by the judgement of God, because a “true-gage” (fírgille) would be necessary. An association between naidm-sureties11 and contractual entitlement is “a natural one” for the second procedure (dliged). Gages are “one of the most common forms of security for payments owed”12 and Robin Chapman Stacey thinks they are given to settle disputes over unfair exchanges of the third procedure (cert). The paying surety (ráth) is linked to téchta (fourth procedure), because it is often used when the parents’ or lords’ responsibility for the acts of their subordinates is involved. Finally, cóir n-athchomairc would be a “catch-all” procedure, as would be the guarantor who is linked to it: a hostage (aitire) who is linked to no particular contract. That fifth path then corresponds to a stage through which all claims would progress. At that point, the proper path was chosen and the proper guarantors exchanged13. It is clear that sureties play an important part in a trial in Ireland, and that to each path corresponds a particular surety, which, as Robin Chapman Stacey writes, has a link with the very nature of the case. But is it really according to the sureties that the cases are shared?
Without questioning the links between sureties and the nature of the cases of each procedure demonstrated by Robin Chapman Stacey, I offer a different analysis, by using the Small Primer (Uraicecht Becc), a text which may come from the same school as Cóic Conara Fugill14. A passage from that tract about social ranks notably presents a hierarchy of three judges, who seem to correspond to the first three procedures of the Five Paths of Judgement. The choice of the right procedure would then actually be the choice of the right judge. A first block of three paths would then be distinguished, to which a second one would then be added15.
After showing the method used as regards social classification which may have been applied to the judicial field (I.), I will present the first group of three procedures (II.), a group to which two other paths have been added (III.).
The will to establish a classification is visible from the very beginning of the tract, when the author writes: “Five paths of judgement are being examined here”16. And the question that immediately comes to mind is why there are five procedures? A difficult question. Let’s content ourselves first, with observing the authors of law texts at work, while they are elaborating such classifications.
It is the case in versions E and H of the Five paths with the seven categories of things which compose the procedure (§2), the three elements of knowledge necessary for those categories (§3), the three “things” that repress falsehood and testify to truth and right (§4), the eight “things” a lawyer can do before his (legal) action (§6), the twelve “things” a lawyer can do during his action (§7), the five “things” a lawyer can do after his action (§8), the eight steps of the procedure (§16), and the five foundations of judgement (§139). If it is not easy here again to explain some of those classifications, others are justified by the text itself. Paragraphs 2, 4 and 6 are indeed linked to Latin grammar. Let’s take the example of paragraph 6. It links the eight “things” the lawyer has the right to do or to have before his legal action, with the noun, pronoun, verb, adverb, participle, conjunction, preposition, interjection of Latin grammar. We may, then, presume that the eight steps of the law-case enumerated in paragraph 16 are also inspired by the same model.
Beside that text, classification is very common in law tracts, especially in those concerning social ranks. According to the Branched Purchase (Críth Gablach), the laymen are classified into seven ranks after the model of the ranks of the Church17. Indeed, in the Collectio Canonum Hibernensis, you can find the following classification: bishop, priest, deacon, subdeacon, lector, exorcist and doorkeeper18. That is how we find it in the Small Primer, with seven ecclesiastical ranks19, seven ranks of noblemen and of poets.
But all this mustn’t make us forget that Ireland must have known a previous system of classification, whose traces are still visible in some texts. Their study allowed us to de-construct the social structure into seven ranks, elaborated by law schools, to get to what must have been the original classification. Neil McLeod’s work has contributed a lot in this area. Indeed, he has shown that Kings, Lords and Commons must originally have been known as an internal classification into three ranks. The category of kings was composed of “King of Great-kings” (rí ruirech), “Great king” (ruire) and “King” (rí)20. The category of lords was composed of “High lord” (aire ard), “Lord of precedence” (aire tuíseo) and “Ordinary lord” (aire déso)21. Finally, the category of Commons was composed of the “Cow-freeman” (bóaire), of the “Young freeman” (ócaire) and the “Man between the two houses” (fer midboth)22. The idea of an original classification into three groups seems to be shared by a certain number of scholars such as Fergus Kelly who thinks that the organization of ideas in groups of three is commonplace in ancient Irish literature23. And Thomas Charles-Edwards wrote that “grouping things into threes is, of course, far older than the textbook style. A comparison between Irish and Welsh suggests that it is an ancient mode of ordering material far predating the introduction of literacy into Ireland or Wales”24.
But let’s come back to procedure. If we don’t know why it is number 5 that was chosen, we may wonder whether number 3 was not, here again, the original number. By following Neil McLeod’s logic, the answer is perhaps to be found in a tract which is not specialized in the subject, such as the Small Primer. In the first lines, the tract asks: “Wherein is the judgement in the language of the Féni? It is not difficult: in Truth and Right and Nature”25. The question could be rephrased in this way: “What allows to get to judgement in Irish customary law? It is not difficult: the procedure called ‘Truth’, the procedure called ‘Right’ and the procedure called ‘Nature’”. A glossator seems to confirm it by adding: “In Truth, that is that he knows the path of judgement which is truth. And Right, that is that he knows the path which is Right. And Nature, that is that he knows the path which is natural for it, on the three paths of judgement which he has put forward”26.
For its part, Cóic Conara Fugill envisages the following five procedures: “fír and dli-ged, cert and téchta and cóir n-athchomairc”27. If we compare the two lists, we find again fír and dliged in first and second positions, then cert and aicned. I think those two terms (cert and aicned) actually apply to the same procedure: that of the balancing of contracts; but I’ll come to that question later.
If the Small Primer presents three different procedures, it also describes a hierarchy of three judges. The most important one is the judge of the “three (legal) languages”, which are customary law (fénechas), the poet’s art (filidecht) and the Church’s law (légend)28. Then comes the “judge of the language of the Féni and of the poet’s art”29, which are the two sources of lay law. And then, at the very bottom of the ladder, we find
the judge who is competent to give judgement for the folk of art in regard of justice, in the estimation and measurement of the work and the remuneration of every product, and who is competent to reconcile custom and judgement30.
Contrary to the first two, the training he may have received is not even evoked by the text. That might indicate he has only received an elementary teaching, which accounts for his position at the bottom of the hierarchy.
The question of the link between the three procedures and the three judges is now posed. Can it be that the choice of the right procedure was actually the choice of the right judge? That would mean that some fields are reserved to some judges, for instance due to their seriousness or their technical aspects.
The principle according to which a party has to choose the judge who corresponds to his case is not foreign to Irish law. Indeed, a tract bears a title – though it comes late – but which expresses that idea: “To ascertain who is a judge in every case”31. In that spirit, let’s see now what our three “paths” may correspond to.
The first procedure is called fir: truth. And it may also be the noblest term, used to apply to justice. Then, it is not surprising that it should be linked to the person of the king32. Indeed, it is very widely admitted today that the king judges33, and that he judges the most difficult cases. Then, the word fir is often linked to the royal function. The king’s sentences are referred to as “true judgements” (bretha fira)34. Fír is also linked to kingship (flaith), particularly in the Testament of Morann35, which repeatedly uses that term. Royal justice provides peace and prosperity36. The king appears as the supreme judge and the guarantors of the good functioning of justice37: “Let him preserve justice, it will preserve him. Let him raise justice, it will raise him”, we read in the Testament of Morann38.
The king is expected to have a certain knowledge in legal matters. “Be skilled in every tongue”39, we read in a story40. He was certainly expected not to lose face in front of jurists. For instance, a poem enumerates what is expected from the king in that matter:
If thou be a king you should know, the prerogative of a ruler […], valuation of lands, measurement by poles; augmentation of a penalty, larceny of tree-fruit; the great substance of land-law: marking out [fresh] boundaries, planting of stakes, the law as to points [of stakes], partition among co-heirs…41.
Most qualifications that are required here are related to land law. Then the sharing of lands between heirs is a competence we’ll find again in the cases of the first procedure. But the king doesn’t judge alone, since he is not an expert in law42. Indeed, he is assisted by the one we can call the “royal judge”. He is a judge we can often see in literary or legal texts, such as the image of the great Caratnia, who delivers so-called “false judgements”43. He is a judge who is very much linked to royal power44. Then, if the texts indicate that it is the king who chooses his judge45, everything leads us to believe that he chooses the best one, the highest-ranking one in the hierarchy, to settle the most difficult cases. It would then appear natural to see the most learned of them – the “judge of the three [legal] languages” – sitting next to the king. All that legal knowledge is necessary to judge the most diverse cases, but above all the most important ones: those that the Five paths of judgement intend for the first procedure of “Truth”. Because that text shows that “what is claimed for on that procedure is heavier and higher than what is claimed for on the other paths”46. What are, then, those difficult cases that the king and the royal judge are going to settle? The answer is given by the text:
You must follow the “Truth” in case of shameless denial, great difficulties, sharing between brothers, acceptance of a lord, claim for heritage, claim for the right to command47.
The list is completed below by the
intentional or unintentional offences with full fine and every offence that might benefit no concession (logad) or mercy (trócaire). And a lord’s claim for rule and an abbot’s claim for an office48.
In other words, the king and his judge settle serious crimes and offences the presumed author denies all responsibility for, disputes related to land property, clientelism, access to power and finally, “great difficulties”. Those are the most important cases in that society and I think that the king intervenes in each of those fields49.
A first paragraph reads: “take dliged for contracts”50. Since Thurneysen’s study, it is commonly agreed that it is more precisely about settling the matter of the validity of contracts. And it is no wonder, since Irish law is particularly precise about the respect for the consent of the parties, about the capacity to contract, or about the guarantees which go with conventions51. If the conditions necessary to constitute a valid contract are not fulfilled, the judge is faced with what Irish law calls a “bad contract”, liable to be repealed by following the second procedure.
But paragraph 10 adds another case, which was put aside by Rudolf Thurneysen and Robin Chapman Stacey’s studies. It concerns “unintentional offences with half the fine and the unexcused injury”52. Those offences are only sentenced to half of the fine, they are not as serious as the ones treated by the first procedure. Here, the offence is admitted and can even be unintentional.
Contracts and offences would then be linked in that second procedure of “Right” (dliged). This reminds us of the distinction in Roman law of obligations, between contractual obligations and punishable obligations. You find that distinction in Gaius53, then in the Institutes of Justinian (Inst. III, 13, 2) and finally, a little differently in Alaric’s Breviarum54. I don’t know if the Irish had access to the Breviarum, like Aldhelm of Malmesbury (639-709) in England at the same period55, but I think the category of punishable obligations of paragraph 10 mustn’t be put aside too rapidly. It may have appeared later as the structure of the tract suggests56, but its presence is not meaningless.
The offences of paragraph 10 are not, indeed, serious enough to appear in the category of fir. They are here because their resolution is, by nature, easier. They are either unintentional offences, or inexcusable damages, which can be settled by paying compensation. Version E even adds “carelessness”. We are indeed in a different position from the first procedure where it is about “shameless denial”, offences punished by the whole fine or punished without mercy or pity. Here, far from the crisis bad faith or lies can provoke, both parties will head for a more peaceful settlement of their case. The Small Primer seems to confirm the distinction between contractual obligation and punishable obligation. The second procedure is described in that way: “Right (dliged) is founded on verbal contracts and acknowledgment (aititiu)”57. We find again the contracts of §8 of Cóic Conara Fugill and probably the offences of §10, which are admitted or confessed (so, easier to settle). In that case the link between contractual and punishable obligations appears in both texts under the name of dliged.
So, the judge who is to settle those problems must have a solid knowledge of Irish law, given the great diversity of the situations that can be submitted to him. Contracts appear, indeed, at all levels of society and in many fields. And punishable offences are not fewer. In our hierarchy of judges, the one who is placed immediately under the royal judge is the one who knows customary law (fénechas) and the art of poets (filidecht). Those two sources of law are very likely to be complementary and indispensable to the judge who will give his verdict about contractual and punishable obligations.
We read in §11 of Cóic Conara Fugill, that cert must be chosen concerning the comparative evaluation of things, their compensation and exchange58. That procedure opens the possibility of getting from justice some adjustments in case of defect. Besides, it is a practice admitted by other legal texts59. In that context, the third judge seems to be quite proper for fulfilling that function, he is – I have already mentioned it – “the judge who is competent to give judgement for the folk of art in regard of justice, in the estimation and measurement of the work and the remuneration of every product”60. Therefore, indeed, there exists a judge in charge of “estimating” and “measuring” products and work.
We have seen that in the Small Primer, the third procedure was not called cert, but aicned. I think, however, that it is the same. Paragraph 2 of the Small Primer indeed reads: “Nature is founded on concession (or remission) and joint arrangement”61. Then, this is precisely what the judge will have to try and get with cert: a “concession” (logad) from the party who asked for too much and then the “arrangement” (cocorus) between the parties. That definition shows how close aicned is to cert. In that context, the term aicned means balance and equity that we also find in the list of §139 in Cóic Conara Fugill62 (aicned must not be mistaken for the phrase recht aicnid which designates customary law).
If that’s the way it is, we can consider, then, that our two tracts deal with three identical procedures: fír, dliged and cert/aicned. We know that cert is a borrowing from the Latin certus. A scribe may very well have substituted that word for aicned in Cóic Conara Fugill. Cert, by keeping the meaning of “just” and “fair” of his predecessor, then gives that procedure a more precise and technical meaning of “exactness” which may have appealed to the author.
It results from that distribution of cases, that both parties will have to know who to address before taking legal action. A craftsman will not require the “great learned judge” who has the status of lord, to examine a dispute concerning the sale of one of his products. That judge will also look unfavourably on a request concerning a simple theft or some injuries. On the contrary, he will draw a certain prestige out of settling some disputes about pieces of land between great landowners, or again difficult cases, involving murders or linked to power. Consequently, the change of procedure is tantamount to a change of judge, poorly considered by the one who was requested for nothing. That accounts for the fact that the fine of a cow was paid by the party who was badly advised.
The first three procedures, then, constitute a coherent group of cases classified according to their seriousness. To each of those three groups corresponds a judge: the master, the generalist and the beginner. That triad is typical of traditional Irish categories. However, the text reached us along with two other procedures that are very likely to have been added.
If the hypothesis of the addition of two procedures is correct, it means that the author of the tract is trying to constitute a group of five. It also means number five is linked, in those jurists’ mind, to the judicial activity (as well as number seven is linked to the ranks of society). Confirmation of that link can be found through other gatherings in fives. Thus, in our tract, the judge is expected to found his decision on one of the following five elements: roscad, fásach, teistimin, cosmailius and aicned63. In the Airecht-text, the tribunal is divided into five parts (five courts)64. And in another text, it is admitted there exist five types of judgements65. It is noteworthy that all those passages are linked to procedure.
In that context, the author of Cóic Conara Fugill had to find two other procedures to complete the first three, and add a procedure linked to seignorial justice and another one allowing appeal against a sentence.
The fourth procedure bears the name of téchta. That term is thus defined in the Dictionary of the Irish Language: “In Laws legal rightness, that which is in conformity with law (of dues, fines, etc.)”, “frequently meaning what the lord was entitled to demand from his tenants, but perhaps referring originally to the status of the tenant, i.e. to what extent he was free or unfree”66. That procedure allows to solve the disputes about dependent people living under the authority of a master or a lord. Those dependent people are enumerated under the mention “perpetual origin”, paragraph R14 (H§112), which gives the following list: “cottiers” (bothaig), “tenants-at-will” (fuidri), “hereditary serfs” (senchléithe flatha), “old rust of crime” (sensmúr cinad), “commoners of origin” (aithig bunaid), “commoners of tribute” (aithig chís)67. That list is taken up again and completed by R/E§16 (H§127). Every time, the lists of the various versions start with the same three types of dependent people (bothaig, fuidir, senchléithe flatha) and vary after the mention of the “old rust of crime”, by the addition of other individuals characterized by their submission to an authority (commoner of origin, commoner of tribute, client of the lords, client of the monastery, child in fosterage). Therefore, the original list only seems to have been made of the first three dependent people68 and the “old rust of crime” (sensmúr cinad), as Rudolf Thurneysen suggests69.
According to him, “Sen-smúr cinad bedeutet also ‘alter Rost von Vergehen’, ‘Vergehen, die so alt sind, daß sie gleichsam eingerostet sind’ ”70. The offences it is about are dealt with differently from those of the first two procedures (fír et dliged). They concern dependent people and are settled later than the others. Here indeed “every offence [is dealt with] after a year” (cach cin iar ṁbliadain)71. Those are offences which are at least a year old. Although it is generally recommended to take legal action within reasonable time – which is often indicated by the texts – here, the legal action is postponed. That delay is justified, in my opinion, by the system of penal responsibility of dependent people. The lord is indeed responsible for offences committed by the dependent people who are under his authority. Conversely, he recoups the compensations paid in case of offences against them72. Indeed we know the fuidir “does not pay for the offence of his son nor of his grandson or his great-grandson or his great-great-grandson or his [other] kinsmen or for his own offences. The lord who feeds him pays for his offences”73. Then, Irish law allows the least dependent (“free fuidri”) to leave their lord under some conditions, especially if they do not leave any debt unpaid and particularly any debt linked to an offence. It can be read, for instance, that “a fuidir of land is capable of parting from his lord provided he shows his possessions to his lord and provided he does not make his lord liable for an offence”74. Another passage confirms that mechanism specifying that “Every fuidri except unfree fuidri are capable of separating from a lord, provided they do not leave him with liabilities or with [anything to be paid for] offences”75. Old offences, then, are those which were voluntarily kept as debts, they are dependent people’s offences. Under those conditions, the téchta procedure allows the judge to settle the problems linked to the rights and duties in relation to dependent people, including the possible disputes linked to their departure. Whenever the fuidir leaves his lord, he must pay him back the possible “old rusts of crime” before being totally freed.
Therefore several hypotheses can be made. The payment of the debts could entail a dispute with the lord, since he could play on the amount of the old rusts of crime to maintain a fuidir insolvent. The dependent person who was about to recover his freedom could attempt to get justice through téchta. But maybe that procedure must rather be considered as being used to decide between two lords fighting over a dependent person, one having to pay the other one the liabilities of his fuidir (hence the calculation of the amount of old offences). Dependent people must have been the objects of envy between big land-owners who went as far as attracting those who could terminate their contracts. According to Nerys Patterson indeed,
competition between lords for clients was keen; competition for fuidri may also be inferred, or else the rules governing their social position would have hardened into caste-like hereditary servitude. But the on contrary, various “degrees” of fuidirship were recognised, according to how long the fuidir’s ancestors had served those of the lord (Binchy 1984). In my view, these rules were not designed to protect the inconsequential fuidri, but to safeguard rising local lords from charges of illegality when they poached their kinsmen’s labor-force. Such laissez-faire provisions protected the brehons from the consequences of having to rule against emerging local powers76.
That would account for dependent people being judged separately, and not through one of the first three procedures. Finally, téchta may have allowed, as Rudolf Thurneysen thinks, the question of the status of dependent people to be judged77. If it is difficult to imagine the most dependent people taking legal action (a senchléthe who would claim the right to be classified as a fuidir, for instance), we may admit a man reduced to the status of dependent person but pretending to be free can refer the matter to an authority (the lord of his pretended lord) for him to acknowledge his status through the fourth procedure78.
It is likely that, as in other medieval societies, the lord judges by himself the matters of those who live under his authority. The Law of Base Clientship (Cáin Aicillne) which indicates that the lord must not pass bad judgements on his base clients (dóercele)79 indeed does not mention any professional judge80. Thomas Charles-Edwards writes about that tract that “lords who have kept their side of the bargain have the right, indeed the obligation, to judge their clients”81.
If the rule concerns the relationships between a lord and his base clients, it applies, particularly, towards dependent people. In the tract about the Divisions of the Kindred (Fodlai Fine)82 it seems to be alluding to that lord who judges the ones he governs, since he knows them well:
No one is capable of acting as judge of kin or fuidir who does not know their subdivisions and their díre and [the nature of] authority over them and their honour-price. How many divisions of kin are there? His fuidirs, his offspring, his “forks” who serve him are kin to each lord, so that a name for them all is “lords’ kin”83.
The fourth procedure would then correspond to seignorial justice, a judicial activity indeed, but which is not dispensed by a professional judge and which had to be added to the list of the first three procedures, so as to reach number five. Dependent people are judged there, particularly the debts contracted from their lords, especially whenever they leave them (old offences). Maybe the lords are judged there who are fighting over dependent people before their overlord or again the issues of the status of dependent people. However that may be, téchta represents a supplementary judicial activity allowing the author of our tract to reach number four. He then had one last step left.
The compound phrase cóir n-athchomairc means, to my mind, “in accordance with the new request” or “accordance of the new request”, and indicates that the fifth procedure offers the parties the possibility of contesting a judgement which has already been passed (an appeal procedure)84. According to the Dictionary of the Irish Language, cóir n-athchomairc applies, in the Five paths of judgement, the “name of one of the procedures used in deciding a law case” and the translation of a part of paragraph 18 is given: “cóir n-athchomairc is chosen in a case which has been well-prepared and for which suitable guarantees have been given, provided this is the decision of one learned in law”. Robin Chapman Stacey gives the following definition: “coir n-athcomairc is selected concerning every speedy, well-bound [case] but [only] according to (or “after”) a declaration of a verdict [based on the] true-learning of knowledge”85. If you examine the two terms of the phrase separately, you find for cóir: “proper, correct, right; suitable, fitting, just” and for athchomarc: “act of asking, enquiry; request, question” (DIL).
In the beginning of the 20th century, Robert Atkinson gives the following translation: “ath-chomarc, the act of re-interrogating, asking leave, (right of) appeal”86. A little bit later, in 1926, Standish Hayes O’Grady gives the translation of the first words of Cóic Conara Fugill’s E version: “Five ‘paths of judgment’ they are that have to be considered viz. Truth and Right, Right and Possession, and the right of Appeal”87. According to the Dictionary of the Irish Language, “aith-, ath- prep. prefix forming compounds with nouns, adj(j). and verbs, leniting. […] With verbs and verbal nouns corresponds in sense to Latin re-, with nouns second, a further”88. Then, there is the idea that something is being re-claimed.
However, according to Rudolf Thurneysen, cóir n-athchomairc is used whenever the parties do not know which path to choose at the beginning of the trial. He writes that:
Der Hauptsatz, wonach der Ausdruck ein gemeinsamer Name für alle vier Urteilswege ist, und der Ausdruck coir n-athchomairc „das Ordnungs-mäßige der Anfrage“ selber zeigen, daß man wohl diesen Urteilsweg wählen konnte, wenn man nicht von vornherein sich für einen der vier andern zu entscheiden wußte; man überließ dem Richter die Anweisung, ging ihn um sie an, wie zu plädieren war. Als unmittelbare Ergänzung von athchomarc hat man sich ursprünglich wohl nicht, wie in der obigen Erklärung, den Urteilsspruch (breth) zu denken, sondern entweder „Anfrage an den Richter“ oder „Nachfrage nach dem zu wählenden Urteilsweg“89.
For Robin Chapman Stacey,
it would be possible to argue that cóir n-athchomairc refers not to a separate plea or procedure, but rather to a stage through which all claims pursued in a curial setting would progress. […] At that point the proper path was chosen and the appropriate guarantors exchanged, while disputes that did not fall on one of the other four paths continued on cóir n-athchomairc with the aitire as guarantor90.
For those two authors, the fifth path is then a preparatory step used in case of doubt about the procedure to be used (Thurneysen) or “to guarantee the defendant’s appearance in court” (Stacey).
If cóir n-athchomairc is, as Rudolf Thurneysen says, a means of asking the judge which path to follow for those who do not know the procedure, why does the author of the text want, on the contrary, to exclude the “uneducated” and the “ignorant of law” instead of sending them to cóir n-athchomairc? We are facing there a first contradiction. Moreover, why has the fine of a cow “on each path” (R§2) been provided to punish the one who could not choose the right procedure, whereas the fifth path would allow to make that choice (according to Thurneysen)? There too is a contradiction. Finally, why should one pass through cóir n-athchomairc before the choice of the final procedure (Stacey) whereas such a step already seems to exist with the “fore-pleading” of paragraphs R26 and 29? You can read indeed: “fore-pleading (fore-arguing) before the choice [of plea] and the bond of the corpus of each path” (§26)91, and then: “what is common to them: a fore-pleading (fore-arguing), since it takes place before the choice [of plea] and the bond of the corpus of each path” (§29)92. It is also very odd to place in fifth position – at the end of the list – a path which should be used at the beginning of procedure. Even though law texts are sometimes obscure, our jurists have often got us used to more logical constructions.
In the Dictionary of the Irish Language, the end of §R18 is translated thus: “after the verdict has been declared” (s. v. derosc). Thurneysen is embarrassed by that phrase and admits: “aber die Ausdrucksweise ist sehr eigentümlich, da das Vorgehen selber als ein Aussprechen, Konstatieren bezeichnet zu sein scheint”93. He writes:
Das Wort derosc bezeichnet in den Rechtstexten immer den Abschluß von etwas, einer Verfallszeit, einer Bußleistung usw., die Erklärung, daß etwas voll abgebüß ist. Es wird immer mit derb-cinniud glossiert (wie auch hier), was nicht „sichere Bestimmung“, sondern „sicheres finire“, „sichere Begrenzung, Abschließung“ beudeuten muß94.
I think the new claim can be explained precisely because there has already been a judicial decision (derosc) that is being contested through cóir n-athchomairc.
Therefore, the first four paths can lead to the fifth one, whenever a party contests a first judgement through that appeal procedure. That is, in my opinion, the meaning of the following phrase that can be found in paragraphs 23 and 28 of R version (=H§133 & H§146): “for cóir n-athchomairc is a name common to them all, whenever the parties are, in accordance with order, entitled to re-claiming before the judge” (R§23)95. The phrase is used again a little bit further:
one asks then, what is peculiar, proper, common and improper of the paths of judgement. […] It is common to them, that they are called cóir n-athchomairc, as said in Senchas Már96: for cóir n-athchomairc is a name common to them all, whenever the parties are entitled to re-claim his judgement97 before the judge98.
The parties ask the judge to give his verdict about a case which has already been judged. The gloss of paragraph 23, which adds “i.e. whenever there is a law-case of arrangement between the judges”99 induces the idea that it is meant to re-establish law in a case, correct something. Finally, it can be read paragraph 16 of H version, that “the four-path procedure makes (leads to) five”100, which means the four procedures go towards the fifth one (and not the other way round).
Is the idea of contesting a judicial decision foreign to Irish law? We know that King Conn contests the judgements of his judge Caratnia, that he calls “false judgements”, fifty one times (even though it turns out that the latter was finally right)101. Fergus Kelly has made an inventory of the faults the judge can be blamed for in law tracts: “indulgence”102, “foolishness, ignorance and negligence” 103, disrespect of procedure104; he has also shown the judge at fault has to justify himself by paying a fine or by losing his office105. But sanctions are not only human, they are also divine, since a bad judgement entails the ruin of the túath106, or the “failure of corn and milk and fruit as well as diseases and disasters”107. Likewise, the king is warned against the calamities that could descend upon his kingdom if he should judge badly108. Therefore the judge is not infallible109.
Whenever a party considers the judge did not make his decision according to law, he probably does not content himself with a mere declaration of false judgement. Marilyn Gerriets, who showed in 1988 that the king has an important role in judicial matters, writes that “even among the laity cases could be heard independently of the king, and normal procedure may have required all but the most serious cases to be heard by the king only in appeal”110. She then quotes an excerpt from the text called To ascertain who is a judge in every case (Dia fis cía is breitheamh i ngach cúis)111, whose translation I give:
Any judge who gives a judgement of the laity or of the Church; if a party (to the dispute) impugns (the judgement) immediately he gives a pledge of five ounces regarding the objection… If the party does not dare to object to the judgement immediately, he counts ten days from the day of the judgement regarding the objection. And his objection is established thus: a cross on the storeroom of the judge, or before him. And he does not restore the pledge… If he does not dare to oppose the judgement at the end of ten days he restores the pledge from it… An objection (is made) in the house of their own leader who precedes them to the king (about) any judgement that the parties cannot establish among themselves112.
According to that excerpt, it is possible for a party to contest a judgement, immediately or within the ten days following the decision. He informs the judge by a sign left at his home or given to him in person: a cross (cros) whose nature is difficult to determine. It seems to be a code which signals to the judge that his decision is being questioned. Perhaps Cóic Conara Fugill alludes to that sign in the poem of paragraph H5, precisely about the fifth procedure, talking about “the true new inquiry with ogam”113, since there exists an ogamic cross-shaped letter)114. Then the party goes to his “own leader”, a lord who precedes him to the king, who is the appeal judge. The presence of those lords is probably justified by the fact one had to have sureties at one’s disposal when addressing a judge, and particularly the king. We know the people who stand bail and guarantors are often of a higher rank than that of the parties who appeal to them115. Then it is no wonder that the parties in the text above are accompanied by their lords who are very probably their guarantors. Paragraph R19 in Cóic Conara Fugill and its gloss confirm that hypothesis for the fifth procedure, which provides that action be guaranteed by a “hostage-surety” (aitire)116. The gloss indicates it is a hostage-surety from the rank of the lords committed to the recognition of the path of judgement which is cóir n-athchomairc117. Paragraph 134 in the H version takes up again both R§19 and its gloss. The guarantor who has to be designated for the cóir n-athchomairc procedure is from noble rank, which completely corresponds to the text called To ascertain who is a judge in every case, which provides for an appeal before the king. It is a sign which shows the fifth procedure holds an unusual importance, and allows appeal to a great king, thanks to the aitire (lit. “being between”), who, as a nobleman, has easy access to Court and has the means of being heard by the king118.
To regard cóir n-athchomairc as a path of appeal against the decisions made in the first four procedures would perfectly correspond to the spirit in which Cóic Conara Fugill was built. All the disputes of Irish society are included in fír, dliged, cert and téchta, and an appeal is possible through cóir n-athchomairc. Let us then formulate a few hypotheses. If that procedure allows appeal against decisions taken on the first four paths, it can be expected that only the most important decisions are concerned, those which are worthy of being heard by a great king. Fír matters are already important, by definition. The most important contracts and offences (dliged) could come up before the king as well, as could matters concerning the most precious goods (jewellery, weapons, etc.), whose worth would have been undervalued (cert). Finally, which serious enough matters judged on téchta could attract the attention of a great king for him to re-judge them? Perhaps those in relation to the claim for the status of freeman, by a person claiming to be unjustly maintained in servitude119.
Cóir n-athchomairc would allow the great king – at least in theory – to control the judicial system, as the Testament of Morann (Audacht Morainn) seems to suggest in these terms:
Ad-mestar cert 7 cóir, fír 7 dliged, cumthus 7 córus cacha flatho fíre fria huili aicillni – Let him estimate right and justice, truth and law, contract and regulation of every just ruler towards all his clients (≈ téchta?)120.
I fully agree with Robin Chapman Stacey when she writes that “Cóic Conara Fugill was but one step in the process by which the jurists sought to bring under curial jurisdiction structures and affiliations that had for so long been crucial to the private settlement of dispute”; and also that “the elaboration of curial procedure might be linked to the consolidation of kingship that is so marked a feature of the seventh and eighth centuries in Ireland”121. If the hypotheses I am presenting in this study are right, one can think that the author of the text has tried to classify matters and the competences of judges into a hierarchy by placing the king at the summit of that hierarchy and by constituting a field reserved to him so as to reinforce his power and his image. That will to reinforce kingship also exists elsewhere in western areas during the high Middles Ages and appears in churchmen’s writings. And it is certainly not by chance that the royal judge is the “judge of the three languages”, who masters the law of the Church in particular (we know it is for some “a sea over streams” and “the most wonderful law”122). In that context, the presence of such a judge near the king is then not insignificant, especially when you know that this one can have the last word, as did the great Caratnia123.