WHEN TWO WORLDS COLLIDE: MARRIAGE AND THE LAW IN MEDIEVAL IRELAND
Gillian Kenny
After the Anglo-Norman invasion of 1169 two entirely different legal systems concerning women and their rights upon marriage co-existed within Ireland. One system was based on the principles and tenets of the English common law which the invaders brought with them in the later twelfth century.
This legal sysÂtem enforced coverture, that is, the basic premise that, legally, married women were under the rule of their husbands. In contrast to this, Gaelic Irish society functioned according to its own ancient legal code, commonly called the Brehon law, which had reached its apogee and received codification in the seventh and eighth centuries but which was still in use in the later medieval period. Under this system women's rights after marriage were often very different from those proÂvided for under the imported English common law. Because the two co-existing legal systems and societies were so different, women's experiences after marriage varied greatly within Ireland. These systems flourished and evolved separately but did not integrate or amalgamate in any way successfully. Of course certain habits and practices were adopted by both sides, but not to a significant extent. Indeed there was no overwhelming desire on either side to accommodate the traditions of the other, and thus these two societies grew ever more separate and alien to each other. Problems also occurred when intermarriage took place, as often both the married couple and those around them were confused as to which legal sysÂtem to follow when it came to the woman's rights at marriage.Initially, however, there is a certain shared experience for women of both socieÂties. When a single woman became a wife in late medieval Ireland, in both Gaelic and Anglo-Irish society, she experienced many changes in her life. She passed from her own family into that of her husband, and entered into a new life with a new set of experiences and expectations, most notably to be a mother.
This change in circumstance was a shared life-experience for the women of both societies. In both cases the woman's status changed upon marriage, as did her title and affiliation, and she had to become accustomed to new rules of social conduct. However, after that initial change, there were profound differences in how women from Gaelic Ireland and Anglo-Ireland were permitted to conduct their lives as married women. The existence of a church inter Hibernicos as well as a church inter Anglicos, in addition to the pervasive influence of the Gaelic secular code concerning marriage, made for very different marital experiences for Gaelic and Anglo-Irish women.[160] In general, the rights of a wife at marriage, and her behaviour and freedoms within marriage, varied enormously between the Gaelic and Anglo-Irish worlds.Marriage Amongst the Anglo-Irish
Anglo-Irish marriage law took its cues, and indeed its entire legal basis, from EngÂlish legal attitudes to marriage. The colonization of the later twelfth century, and beyond, brought English legal concepts concerning marriage into Ireland for the first time. This, allied with the rise of the English-influenced church, ensured that the Anglo-Irish model of marriage would have been recognizable to most other citizens of later medieval Europe. In English Ireland, as in the rest of Europe, peoÂple married in two main ways: in public and clandestinely.[161] The church accepted clandestine marriages as valid but always tried to encourage marriage in church. Medieval canon law with its acceptance of words of consent as binding vows â€?made the marital bond strikingly easy to create but very difficult to break’.[162] Predictably, therefore, the church courts in Ireland were often busy dealing with the fall-out from clandestine marriages. A church-sanctioned marriage was increasingly preÂferred, for a number of reasons. A public ceremony was an important way to be sure of witnesses to the ceremony, who were often crucial, especially if any quesÂtions were later raised over the validity of the marriage.
A church ceremony was a vital public way of affirming a connection between families, as well as a means of transmitting wealth from one generation to another. It was also a very public way of transferring guardianship of the new wife to her husband, and thus control over any lands or goods she might bring to the marriage. Therefore, the wealthier the families, the more important a public marriage ceremony was.[163] A public marriage was also a means of proving mutual consent, and of guaranteeing the legitimacy of both the union and its offspring.[164] Furthermore, a public marriage made the abanÂdonment of wives harder to accomplish and clarified arrangements like dowers and jointures, which were to the benefit of the woman involved. However, many couples continued to engage in clandestine marriages, probably due in the main to a deep-rooted belief in Anglo-Irish communities that, despite what the clergy had to say, marriage was a private rather than a public affair.[165]Once they were married, Anglo-Irish women were legally subject to their husÂbands, who, upon marriage, controlled all their property and moveables but could not alienate them without their permission.[166] The legal restrictions placed upon wives in Ireland also included an inability to make a will without their husbands' permission.[167] Land grants within Anglo-Irish areas concerning lands held by marÂried women take the form of documents made by husbands with the consent of their wives. The extent, if any, to which married women consented to the alienaÂtion of their lands, or were even concerned with the repercussions of such actions, remains unknown. It is impossible to ascertain from formulaic legal documents concerning land transactions whether or not wives did actually consent to their husbands' land deals regarding lands brought to the marriage by the wife. No matÂter who initiated such deals, or who approved of them or not, what is not in doubt is that in the minds of many husbands and wives the husband was pre-eminent - even without legal sanction - and his authority was paramount.
Marriage Amongst the Gaelic Irish
This view of the marital contract wherein the husband's legal authority was paraÂmount was not reflected in the contemporary Gaelic world or at least not to the same extent. In Gaelic Ireland, marriage was an overwhelmingly secular affair. The body of Gaelic laws dealing with marriage was written and codified in or around the eighth century and, after this period, it is very difficult to ascertain the types of changes and developments which evolved in Gaelic society concerning women and marriage, in particular.[168] However, it does appear that these early laws concerning marriage to a large extent continued to be utilized throughout the later Middle Ages in Ireland, especially amongst the aristocracy.
When a Gaelic Irish woman married, guardianship of her was also transÂferred to her husband, but, unlike in the Anglo-Irish tradition, he was not her sole guardian and the wealth she brought into the marriage did not pass into his hands. In Gaelic Irish society marriage did not sever the tie between a woman and her original family, and so her own kin never relinquished all their rights over and interest in her.[169] This link may have aided her if she had to deal with an unpleasÂant husband or marital situation, but it could also limit the woman, who could sometimes find her actions controlled by her native kin, because of the mesh of
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Married Women and the Law in Premodern Northwest Europe obligations between them that a marriage did not completely sever.[170] However, if a woman produced sons whilst married then the ties of her parental family became less binding.[171]
Gaelic Irish marriage was a complex and layered affair. According to the early law tracts a woman held differing legal status depending on whether she was a primary wife of equal status to her husband (known as a cetmuintir), a wife of lower status, a concubine or involved in a more casual union, and that status also depended on whether she had sons or not.
The differences in rights accorded to women based on the perceived legitimacy or not of their sexual unions with men could lead to intriguing situations. For instance, whereas, legally, a wife of equal status was, to a certain extent, under her husband's rule, the concubine, in conÂtrast, was not. This meant that a concubine could choose whether to put herself under the rule of her husband, her own family or her sons.[172] Within a marriage contract the status of each partner depended on the amount of property he or she brought into the marriage. The law tracts advocated that marital relationships be made up of men and women of equal status so that the wife would then enjoy the same contractual capacity as her husband.[173] By the later Middle Ages many married couples are likely to have consisted of a man and woman of equal status, meaning that both were of equal property and family.[174] It is worth pointing out that the property consisted of moveables in general. Amongst the higher orders, cattle and horses in large amounts changed hands at marriage.Within Gaelic areas the secular attitude towards marriage and the begetting of children meant that official separation was not always a prerequisite to multiÂple relationships. Because Irish law made a distinction between formal marriage, informal relationships and illegitimate relationships, different rights accrued to the children of the differing relationships.[175] Adding to the wide array of possible relationships, men and women of the Gaelic Irish also frequently entered into forÂmal contracts of concubinage throughout this period. It was not uncommon for a high-status man to have more than one concubine, which could lead to dozens of offspring. To give just one example - and there are many more - Turlough an fhiona O' Donnell, lord of Tirconnel, who died in 1423, had eighteen sons by ten different women, and fifty-nine grandsons in the male line. This was an activÂity that the church wished to stamp out.
For example, a regulation issued from the diocese of Armagh in the mid-fourteenth century stated that, â€?no subject of the province of Armagh, lay or clerical, may hold women or concubines under the name of Cayf otherwise Choghir [Choghie?] for obtaining their concubinage'. The document went on to promise excommunication to those who would give orpromise a woman anything in return for her becoming their concubine and enÂtering into a contract with her.[176] Generally amongst the Gaelic Irish, concubines were not viewed as negatively as they were in Anglo-Ireland.[177] In Anglo-Irish arÂeas these legally irregular relationships presented serious problems when it came to issues such as land ownership and inheritance, and property rights.[178]
Amongst the Gaelic Irish, however, illegitimacy was not a stigma nor was it necessarily a bar to inheritance (as it was in areas subject to the common law in Ireland) and so concubinage was not necessarily disparaged. Irish law permitted the affiliation of children by their mother's declaration provided that the alleged father formally accepted this declaration. Only this acceptance could make the declaration legally valid.[179] This was important because, according to Irish law, a son born due to an extra-marital relationship who was acknowledged by the faÂther could claim a right to part of the inheritance, although any claims he had were difficult to enforce if his mother was of a low status.[180] He could not succeed to any kind of power at all, for example, if his mother was a serf, a slave or a female satirist. The preferred heir was the son of a lawful wife, according to the law tracts, and it may have been difficult for any other sons to gain power unless they had strong political allies.[181] In terms of succession, the son of a primary wife was preÂferred above younger candidates or the son of a concubine, unless the latter was better qualified than the former.[182] If a father refused to acknowledge a son, for exÂample, then the woman had to produce witnesses to attest to her relationship with the father. If doubt still persisted, she could pay an adoption fee which was set at a price equivalent to the honour-price of a king, a sum which lower-class women would have found impossible to raise. According to Jaski, this rule was probably designed to halt the unwanted illegitimate sons of lower-class mothers becoming the responsibility of noble families. Intriguingly, the woman's reputation (regardÂing her sexual history) was also crucial to any chance of the child being accepted by the father and his kin.[183] The woman's sexual history was subject to scrutiny and her claims were found to be lacking should she be judged promiscuous and, therefore, untrustworthy.
This is all in direct contrast to the legal proscriptions concerning the succesÂsion of non-legitimate children within Anglo-Irish society. It is worth pointing out that, in Anglo-Irish areas too, people did not always adhere to the teachÂings of the church regarding sexuality. Marriages, clandestine marriages and relationships not sanctioned by any kind of formal ritual were not uncommon outside Gaelic Ireland.[184] Nevertheless, the church's hold on marriage was always far stronger in Anglo-Irish-controlled areas than in Gaelic ones. As the Middle Ages wore on in Ireland the church did exert increasing influence on Gaelic areas. Gaelic Irish wives, especially, increasingly began to use church courts to redress marital wrongs such as being repudiated by their husbands. Gaelic Irish men and women also applied, in increasing numbers, to the Holy See for dispensations to marry during the fifteenth century, a period of intense religious fervour amongst the Gaelic Irish.
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Marriage Contracts
Once marriage was agreed upon, the first step for the families of couples who were to be married, in both cultures, was often the drawing-up of a marriage contract. In these documents, reciprocal arrangements were made, usually by the respective fathers of the bride and groom, for such necessities as dowry and marriage grants. In all societies, including medieval Ireland, marriage was fundamentally â€?a time of bargaining'.[185] In Anglo-Irish areas, the bride's parents/guardians negotiated her dowry (maritagium), while the groom's family may have had to decide on what kind of reasonable dower and/or jointure to award her, if the naming of it was inÂsisted upon at the ceremony. Dowry and other financial arrangements at marriage were primarily exchanges, not between individuals but between families.[186] Detailed dowries were a staple of life in parts of Ireland from the earliest days of the Anglo- Norman colonization. For example, a grant made by Richard de Burgh to Theobald Walter and his wife, Richard's daughter Margery, on the occasion of their marriage, sometime before 1242, was probably Margery's dowry. In this grant, it was specified that only the heirs of Margery should inherit.[187] In areas subject to the common law a dowry given to a woman by her family upon her marriage was (conditionally) a permanent grant. If the woman had no heirs of her body, or if her line failed in the third generation of heirs, her dowry was to revert to the donor's heirs.[188] The dowry could be given as moveables, but generally came in the form of a land grant. This land grant remained entirely with the wife after her husband's death, but she could not control it during her marriage as it was vested in her husband. It remained, however, the wife's property during this time.[189]
The two societies' laws concerning marriage were very different but they did not exist entirely independently from each other. In some cases it can be seen that certain aspects of the opposing culture's traditions concerning marriage were adopted. A marriage contract made in 1401, detailing how the earl of Ormond granted to Theobald de Burgh his illegitimate daughter Elizabeth in marriage, gives an interesting insight into the extent to which certain Gaelic customs conÂcerning marriage had been adopted by the Anglo-Irish.[190] Theobald had to pay 240 cows to the earl for the marriage, 120 up front and 120 to follow.[191] (The value ascribed to cattle and the use of such moveables in a marital contract is more assoÂciated with Gaelic Ireland than with Anglo-Ireland.) He also had to give forty stud horses, and undertook (with his kinsmen) to aid the earl in his wars and disputes. Ormond, in turn, granted to his daughter as her dowry his manor of Coraneyer Owenagh [sic] for the term of her life, and free passage for all merchants, carriers and tradesmen going as far as Limerick, a privilege that he held. On the day this document was drawn up, those listed as being present to receive and witness the oaths of the de Burghs and their followers were recorded as being the earl of OrÂmond and Katherine of Desmond, who was the earl's concubine (and a member of one of the most powerful of Anglo-Irish families) as well as being Elizabeth's mother.[192] The marriage appears to have gone ahead for, in 1402, the MacWilliam Burkes, of which Theobald was the leader, came to the aid of the earl of Ormond in his war with the earl of Desmond, which indicates that he was keeping his side of the bargain.[193]
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Gaelic Women and their Property
In Gaelic areas the bargaining over marriage was similar in some ways to the AnÂglo-Irish system, in that both families were expected to contribute to the match. Marriages of the more formal type were probably arranged by the families of the bride and groom, and the betrothal was a contract sustained by the sureties of both families.[194] It was the custom for a husband to pay a bride-price (coibche) to the bride's family upon marriage. The bride was entitled to a portion of that coibche and if the marriage broke up due to a fault on the husband's part then the coibche was retained by the wife's father, but, if the fault lay with the bride, then the coibche was to be returned to the husband.[195] This bride-price may have graduÂally lessened in importance in legitimate marriages, as the dowry appears to have risen in importance within such relationships. The meaning of the gift itself gradÂually changed, and it began to signify property contributed by the father of the bride, thus becoming neutral marriage goods.[196] This change seems to have been primarily due to ecclesiastical pressure to enforce the dowry, as its payment was demanded by the canon law.[197] However, the coibche payment continued into the sixteenth century as a vital part of the concubinage contract. The spreidh (stock) which the woman had been accustomed to receive from her own family on setting up home duly seems to have been converted into a dowry paid to the husband (by the woman or her family). Because of the Gaelic Irish system of fosterage, sometimes the bride's marriage-portion could be provided by her foster family.[198] However, the husband still remained liable for its repayment in case of divorce, and it would also be repaid if he died.[199]
The Gaelic wife's continuing control over her own property could have interÂesting repercussions, especially if, as could sometimes be the case, part of that property consisted of soldiers. The Annals of Loch Ce, for example, refer to the marriage of Aedh O Conor and Ailin, the daughter of Dubhgall MacSomhairle, upon which the young wife brought as her dowry 160 galloglass.[200] Dowries in Gaelic Ireland are not very well documented before the sixteenth century but, in general, they probably consisted of moveables, which could include soldiers as well as the more usual cattle and horses. Gaelic married women appear to have had the right to hold and administer these dowries independently of their husÂbands, which was completely opposite to the English common law (as it was inÂterpreted in Ireland) regarding the rights of married women. The ability to control their own property after marriage was the crucial difference between the lives of Gaelic wives and those of their Anglo-Irish counterparts.
According to Gaelic law, married women of equal status to their husbands had extensive legal powers regarding their own property and the couple's joint propÂerty. A Gaelic Irish wife had the freedom to administer her own goods, which she brought with her to the marriage, as well as any marriage-portion settled on her by her husband. She was to be consulted in every case involving their joint land and property, and had veto rights, just as her husband had those same rights to any contract she made on her own. If her husband made a bad decision concernÂing joint property, then his wife had the right to rescind it.[201] Regarding property which the wife may have held separately, she was allowed to sell or let it inde- pendently.[202] A married woman was regarded, under Gaelic law, as having wide powers of independent contract, almost as wide as her husband's. However, if a woman brought property which she had inherited to her marriage, there were limitations to her enjoyment of it. A female heir (banchomarbae) could inherit a lifetime interest in her father's land, assuming she had no brothers. However, upon her death, the property would not be inherited by her husband or sons but would revert to her own kin, unless she was married to a foreigner who held no land, in which case, she could pass on a limited amount of her family land to her own heir.44 This was opposite to the status and rights of female heiresses under the common law who could freely transmit their inheritance to their heirs. It also meant that, in Gaelic society, there was no prospect of acquiring lands or title by marrying a female heir, which again was in opposition to the Anglo-Irish system regarding female heirs.45
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There were other limitations on female power within Gaelic Ireland. WomÂen, for example, were not allowed formally to wield political power. The right of Gaelic Irish women to retain control over their own property or moveables was, however, a crucial factor in how their personal power was exerted during marÂriage. The wife of a Gaelic chieftain, for example, was independently wealthy and was also, by virtue of her marriage, entitled to some share of the chief's authority over his territories. This may have led to some wives wielding a certain amount of political power within Gaelic Ireland. Gaelic Irish wives of chieftains sometimes became very involved in the political concerns of their husbands' families through their active involvement in the warfare that was habitual in Ireland.46 Thanks to their activities, some Gaelic wives were acknowledged by the authorities as being troublesome and dangerous to both church and state. In 1315, Donal O' Neill, his wife Gormlaith and their son, John, issued Letters Patent in which they promised the harassed archbishop, dean and chapter of Armagh that they would no longer make any demands upon ecclesiastically-owned lands and tenants for themselves or their allies' troops. They also promised to restore all church lands which they had seized, and to deliver pledges for good behaviour.47
Other Gaelic Irish wives were used as bargaining pieces by an administraÂtion desperate to keep order. In 1316 the royal justiciar was ordered to ascertain whether the release from prison of Mor, the wife of Hanlon, who was being held in Drogheda, would be prejudicial to the keeping of the peace or injurious to the interests of the king.48 There are other instances of Gaelic Irish wives being inÂvolved in the conduct of war. In 1471, Sile, the daughter of Niall Garbh O' Donnell and wife of Niall, the son of Art O' Neill, defended the castle of Omagh against O' Neill and his sons. Her husband and his brothers had been defeated by O' Neill and his sons, and had fled to O' Donnell. Sile remained in the castle and defended it until the family feud was resolved.[203] Other wives seem to have pursued a more diplomatic course in dealing with their husband's enemies. In 1392-3, a safe conÂduct pass was issued to Una, the wife of Niall Og O' Neill, who was going to and from Drogheda, accompanied by twelve men and women, to meet with the Lord Justice and Council.[204]
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Kelly, Early Irish Law, p. 104.
Jas ki, Early Irish Kingship, pp. 144-5.
R. R. Davies, â€?Frontier Arrangements in Fragmented Societies: Ireland and Wales, Medieval FronÂtier Societies, ed. R. Bartlett and A. MacKay (Oxford, 1989), p. 83.
H. J. Lawlor, ed., �Calendar of the Register of Archbishop Fleming, Proceedings of the Royal Irish Academy 30 C (1912-13), 170, Gormlaith was not the only O' Neill woman to make life difficult for the church. During the mid-fifteenth century the O' Neills were repeatedly excommunicated for continuing to make exactions on church lands. One of the worst offenders on that account was the then chief's wife, Evelina Baret (an Anglo-Irish woman): see the Register of Archbishop John Prene (Trinity College Dublin, MS 557/6/385), as cited in Simms, �Legal Position of Irishwomen, p. 108.
B. Smith, �The Medieval Border, The Borderlands; Essays on the History of the Ulster-Leinster Border, ed. R. Gillespie and H. O'Sullivan (Belfast, 1989), p. 50
A wife acting as an intermediary is not, perhaps, very unusual, but a wife conÂcluding a formal peace with her husband's enemies can be judged as more reÂmarkable. This appears to have happened in 1433 when Fionnuala, the wife of O' Donnell and daughter of O' Connor Faly, along with Nachtan O' Donnell and the sons of the chieftains of Tirconnell, made peace with the O' Neills who had been attacking them. This was without the consent of her husband as he was absent.[205] Her father was so powerful that her husband's opinion may not have mattered much to her.[206] In these instances high-ranking Gaelic wives are involved in poÂlitical and military affairs at the highest levels. It is possible that their ability to maintain control over the marriage-portions, which they brought with them into marriage, as well as the continuing influence of their natal family, granted them a freedom of action and a right to join in with and aid their husband's political and military plans. It also enabled them to control and unify their husband's family if he was taken captive. For example, in 1422, Owen O' Neill was ransomed by his wife and family after capture, by giving his captor cattle, horses and â€?other gifts'.[207] Certainly, at the higher levels of Gaelic society, the independent action of wives was tolerated and their continuing control over their own property could also come to their family's aid in times of trouble.
As well as retaining control of her own property, in Gaelic areas the wife of a chieftain was often entitled to various other taxes on her husband's lands such as cdin bheag and ctos Bantighearna (lady's rent).[208] Married Gaelic Irish women - at least those married to chieftains - seem to have enjoyed greater wealth and power during their husband's lifetime than at any other stage of their lives. Again this is in direct contrast to the experiences of their Anglo-Irish contemporaries whose lives were very severely curtailed once they married and became subject to the rule of their husbands. Gaelic Irish wives appear to have been well provided for by husbands who may have been nervous of a powerful wife taking her soldiers or cattle away with her should she wish to end the marriage. The Irish rental of MacNamara listed certain of his lands which owed cios Baintighearna in addition to their normal services to the chief.[209] As part of McCarthy’s rights as lord of DesÂmond, for instance, he was entitled to â€?rout’. This was a cess (tax) for horsemeat for either his horses or those of his wife, which was charged on the barony of Magu- inhy. The wife of MacCarthy Mor had â€?a small spending... out of divers quarters of the country, called canebeg [cain beag]’[210]
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Anglo-Irish Women: Land and Power
Such arrangements may also have had an influence on areas subject to the comÂmon law. In great Anglo-Irish lordships there was also sometimes an endowment assigned to the lady, like the tax on Gaelic lands given to Gaelic Irish wives, which she was able to use for her lifetime. Thomas, earl of Desmond (1529-34), granted to his second wife, Katherine, â€?besides the manor of Inchiquin, County Cork, an annual rent of 33 marks (£22) in Kerry â€?as fully as Evlina Roche [wife of Maurice, earl 1487-1520] and other countesses had been accustomed to receive the same’.[211] Again this is an instance of an Anglo-Irish family (admittedly the Desmonds who were quite extensively Gaelicized) aping Gaelic custom.
Despite the fact that the rights of Anglo-Irish women, once married, were severely curtailed, some wives may have actively joined with their husbands, or even led them, in pursuing power and influence through the disposal and acquisition of land. Some of these women, who actively aided their husbands in both the pursuit and consolidation of political power, have been both lauded and demonized because of their actions. One such woman was Margaret, the wife of Piers Butler, sixteenth-century earl of Ormond (1537). Her active supÂport of her husband during the many years he had to wait for the earldom of Ormond, as well as in his schemes to deprive his elder brothers of their rights, earned his wife both opprobrium and respect.[212] Margaret Butler was regarded by Stanihurst as â€?a lady of such a port, that all estates of the Realme crouched unto hir: so politique, that nothing was thought substantially debated withput hir advice: manlike and tall of stature: very liberall and bountiful’.[213] She was known popularly as Mairead Gearoid and various wild stories are attached to her. The castles of Ballyragget and Balleen in the lordship of Ormond had stone benches in the watchtowers that were called Mairead’s Chairs because Margaret is supposed to have hung prisoners from them.[214] She was also said to have hung people on a tree known as â€?sceach na Cuntaoise' or the Countess’s Bush.[215] Her impact on local folklore and myth was deep and testament to the strength of her rule with her husband. The extreme reactions that she appears to have inspired are also testament to the fact that Margaret was a very unusual woman. Her activities, though, are not representative, and most Anglo-Irish women had to wait until the death of their husbands to display any kind of sovereignty of acÂtion. They could do this because of the extensive provisions made for widows in the common law, in particular their dower and jointure rights. These allowances made by the common law for the widow’s rights were not matched within Gaelic Ireland. The ability of married women resident in Anglo-Irish-controlled areas to hold lands jointly with their husbands gave them an added element of finanÂcial security, particularly if their husbands died before them. To accomplish the holding of lands as a jointure, a man conveyed his estate to named trustees or feoffees, to the joint use of himself and his wife for life. Until the introduction of the Statute of Uses in Ireland, in 1634, a married woman was able to claim both dower and jointure, but after that date, where provision was made for a jointure, she had to elect for one or the other, but could not claim both.[216]
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Before this legislation was enacted, however, married women took advantage of both jointure and dower, and pressed their claims to them after their husband’s death. The process of enfeoffing a third party (or parties) and having them reÂenfeoff the grantor and his wife meant that several documents attested to these transactions, certain of which can sometimes be traced in the records. For exÂample, in 1329, the first earl of Ormond requested permission from the king to enfeoff James Lawless with all of the earl’s land, rents, advowsons and fees in EngÂland, and all reversions pertaining to the earl and his wife, so that Lawless might re-enfeoff the earl and Eleanor his wife and the heirs of their bodies.[217] The earl also seems to have been busy doing the same for his lands in Ireland. The Pipe Roll of 1342, regarding the manors of Turvey and Cloncurry, stated that there was nothÂing to answer for them since the earl’s death as he was jointly enfeoffed in them along with his wife Eleanor, a close relative of the king, and so the manors were delivered to her.[218]
Gaelic widows had no such explicit and legally protected provisions made for them from their husband’s property after his death. However, although they were not entitled to a dower, Gaelic widows could retain their spreidh (dowry), which then probably became the responsibility of their male guardian after the death of their husband. Thus the measure of independence afforded Anglo-Irish widows through their economic independence was not reflected in the Gaelic tradition.
At all stages in a Gaelic woman's life she had a legal guardian, who could be her father or another male relative as an unmarried woman, or her husband when married.[219] As a widow the identity of her legal guardian depended on whether or not she had adult male children. Early Irish law regarded a widow as being under the tutelage of her grown-up sons, if she had any, failing which her own kin took responsibility for her.[220] It often became an imperative for widows to quickly re-marry and so gain some sort of agency concerning their affairs again. As a result Gaelic widows are very hard to trace in remaining records, as they either re-married or disappeared, legally speaking. However, it is possible that over the hundreds of years since those laws were first committed to writing the realities of life for widows in Gaelic Ireland may have changed somewhat. Intermarriage with the colonists and the establishment of family networks with them, as well as interaction with Anglo-Irish widows and observation of their circumstances, may have served to make life less proscriptive for Gaelic Irish women after the death of their husbands.
Intermarriage
The two legal traditions concerning women's rights during and after marriage were very different in many ways but it was impossible for them not to become a little mixed as intermarriage between Gaelic and Anglo-Irish was a fairly common occurrence during the later Middle Ages. Members of Gaelic and Anglo-Irish soÂcieties seem to have regularly enjoyed concubinous or casual sexual relations, but when people from the two traditions married, legal problems could emerge, parÂticularly concerning the rights of the Gaelic wives of Anglo-Irish men. Under the law of the colony, common law was not extended to the Irish and this could cause problems for a Gaelic wife if she ever wished to claim her dower from her Anglo- Irish husband's estate, for example, as legally she was not entitled to such benefits. This deficit in law was highlighted by the Irish in their request for an extension of English law made in 1277.[221]7 The children of such unions were also at risk of failÂing to get their inheritance. To avoid this occurrence, Irish wives had to apply for an official grant of English law to safeguard both themselves and their children.
In the pockets of colonized areas in Ireland, away from the Anglicizing influÂence of Dublin and the surrounding areas, the Gaelicization of English families through intermarriage with Irish women could have very serious political con- sequences.[222] The children of such unions were comfortable in both worlds and the influence of their Gaelic mother was no doubt significant, as well as that of her family. Many of the descendants of the settlers belonged by birth to the Gaelic Irish traditions, as well as to the Anglo-Irish.[223] The â€?degeneracy’ of those Anglo-Irish who were becoming more like the Gaelic Irish began to worsen towards the end of the thirteenth century especially, and was legislated against. The parliament of 1297 forbade the English to wear their hair in a culdn (a tradiÂtional Gaelic hairstyle), for example, which indicates an increasing assimilation of Irish modes of dress and behaviour amongst the settlers. The government also began to try to restrict the colonists’ choice of marriage partner through prohibitions that forbade marriage between the colonists and any enemy of the king, whether they were Gaelic or Anglo-Irish.[224] These worries continued and statutes of the Kilkenny parliament of 1366 indicate that, by that stage, â€?degenÂeracy’ was viewed as almost being out of control.[225] Successive statutes imposed a ban on marriage or any relationship (i.e. concubinage) between Gaelic and Anglo-Irish.[226] Marriage may have been a contributing factor in â€?degeneracy’, but such influences run both ways and it could be argued that intermarriage could also lead to increasing Anglicization, especially for women. Gaelic women in particular increasingly began to use church courts to enforce their marriages, thus indicating a growing awareness of church law and teaching on marriage and their legal entitlements under both canon and common law as opposed to Gaelic law.[227] Ireland, in the fifteenth century, did see a substantial rise in applicaÂtions to dispense and enforce marriages amongst the Gaelic Irish. Abandoned wives from Gaelic areas began to utilize the church courts in attempts to force husbands to return. Granted, these developments occurred at a time of increasÂing and obvious religious devotion amongst the Gaelic Irish, but the influence of ongoing contacts with settlers on this behaviour should not be discounted.
Therefore, throughout the history of the colony in Ireland (except perhaps in its very early stages), intermarriage with Irish women and the adoption of Irish customs met with disapproval and attempts to outlaw it by the government. The prevalence of intermarriage between the Gaelic Irish and Anglo-Irish, or English, was always seen as a weakness in the stability of the colony. It was repeatedly prohibited by the government and equally repeatedly ignored.[228] For many Anglo- Irish families, living near areas of predominantly Gaelic ethos and influence, inÂtermarriages were a crucial means both of gaining acceptance and of building up alliances that could be achieved in no other way. The dictates of the government on the matter were thus comprehensively ignored throughout the later Middle Ages in Ireland, as the government had no means of enforcing their strictures against this matter. Amongst the Gaelic Irish the links between their culture and that of the â€?foreigners' were generally more accepted.[229]
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Every stratum of Gaelic Irish and Anglo-Irish society was familiar with interÂmarriage. From the highest levels of society, where intermarriage was often a way of securing a family's position in the face of local Gaelic opposition, to lower down the scale, where the stakes were not as high, people from the two cultures met and married. The cross-fertilization of cultural attitudes and traditions, as well as implications for the legal status of the women involved in these marriages, are of interest. It is possible that, depending on where and to whom she was married, a wife would follow the customs of the tradition she had married into. Gaelic wives of Anglo-Irish men can be found applying for grants of English law so they would be eligible for benefits such as jointures and dowers, if and when their husbands died. For example, grants of English law to Irish women such as Mariota, the wife of Ralph Burges, and Artesia, who may have been the daughter of Primate Mac Maolisa and who was married to Peter de Repentenny in 1285, safeguarded their rights in an Anglo-Irish world.[230] In 1289 Primate Mac Maoiliosa also petitioned for a grant of English law to be given to Ismaya, the wife of Bertram de Repenten- eye, in order that she might have her dower after her husband's death. It was exÂplained that she was Irish and the custom in Ireland was that Irish women did not have that right.[231] She was the daughter of O' Rahilly.[232]
However, not all marriages were between Gaelic women and Anglo-Irish or English men. Gaelic Irish men also married Anglo-Irish women. For example, a series of deeds from the early fifteenth century relates to grants of lands made by William O' Dowyr and his wife Isabella, the daughter and heiress of David Wod- stok. In such a situation a Gaelic man's right to administer his wife's land could be brought into question simply because he was Gaelic, and the onus was likely to have been on him to have himself admitted to English law in order to safeguard his rights in relation to his wife and their property. The necessity for Gaelic Irish men, living in areas subject to the common law, who were married to Anglo-Irish women, to have themselves admitted to English law can be seen in a case dating from 1384. In that year allegations over Adam Nores's background and descent led a jury to conclude that he was not of the Irish nation but â€?of descent of the mere English' and was, therefore, entitled to hold land in right of his wife.[233] When an Anglo-Irish woman married a Gaelic Irish man in a Gaelic area, her status was likely to have been that accorded to a Gaelic Irish wife under Gaelic law. However, it is likely that only women making political marriages entered into such agreeÂments regularly, and that, in such cases, they were entitled to all the many benefits of life as the wife of a chieftain. For example, in 1269 the earl of Ulster insisted that
Aedh Bui O' Neill grant his Anglo-Irish wife Eleanor (a cousin of the earl) the full rights of a Gaelic Irish married woman. This was in response to the fact that Aedh had previously neglected her, and the earl forced him to accord to Eleanor all the rights that she was entitled to according to the �custom’ of his land.[234]
Intermarriage was also often seen in Ireland as a means of procuring truces through alliances which would then end periods of warfare. The prevalence of these requests can be discerned in the applications made to the Vatican for marÂriage dispensations in order to guarantee peace. In such an instance it was argued that providing a dispensation was performing a public service, in that it kept the peace. This could be a persuasive argument in a war-torn country such as Ireland. In 1426, for instance, it was advised that the Pope remove the impediments delayÂing the marriage of the â€?noble and puissant’ Roger Mccmahuna (sic) of Clogher diocese and Alice White of the Armagh diocese. These impediments were that they were closely related on several levels, but the marriage was advised for several reasons. These included the legitimization of the children who had already been born as well as the peace that their union brought to the warring English and Irish.[235] It may be that in a country exhausted by feuds and warfare this excuse was found to be a powerful and effective way for the families involved to gain a politiÂcal or military advantage, by dint of an honourable reason for marriage.
Conclusions
The move into marriage for the women of both Gaelic Ireland and Anglo-Ireland saw them affected by new rights and restrictions according to the secular and ecclesiastical laws by which they lived their lives. With regard to the preparation and organization of marriage, the two societies were similar in that a marriage was often controlled by families as an act of political, social or economic aggranÂdizement, and both families expected to profit in some way from the match. FunÂdamentally, within Gaelic and Gaelicized society, marriage was a secular act and the definition of a wife was somewhat looser than in the Anglo-Irish areas. As wives, Anglo-Irish women were legally subject to their husbands and lost the legal abilities they enjoyed as single women. Similarly, Gaelic Irish women were always under the legal sway of a man throughout their lives, but, despite this, as wives they enjoyed extensive rights regarding the administration of their own property, which Anglo-Irish women effectively lost when they became wives. Gaelic wives’ continuing control over their property led to the emergence of some women as powerful agents in political matters.
In both societies the church’s strictures concerning the proper rituals for the making and breaking of marriages were often ignored as members of both socie- ties strayed from the orthodox path. In Gaelic society, in particular, the wideÂspread nature of more casual sexual unions and the effect these had on the legal rights and status of the women involved and of their children, exist in contrast to the prevailing situation in Anglo-Irish society. However, the rise of Gaelicization may have led to more acceptance of casual sexual relations amongst the Anglo- Irish as well. Meanwhile, the rise in religious adherence in both the Gaelic and Anglo-Irish worlds, from the fifteenth century onwards, witnessed a concomitant increase in applications to the Holy See to regularize existing unions or gain disÂpensations for planned ones that erred in the matters of consanguinity or affinÂity. The need for politically advantageous marriages saw ongoing intermarriage between the Gaelic and Anglo-Irish, a situation that could lead to legal confusion concerning the rights of the wives involved. Intermarriage was also conducive to the exposure of members of both societies to the ideas, laws and traditions of the other concerning women.
It should be clear therefore that two worlds co-existed when it came to women and marriage in later medieval Ireland. When these worlds collided for women, as they sometimes did, it was during love affairs, concubinous relationships and when the marriage bond was entered into. These two worlds were fundamentally very different in terms of how they viewed what a wife was, how a wife ought to behave and how marriages should begin and end. Yet they were both subject to change as increasing communication between them was established through links such as intermarriage. Over time cultural influences spread, traditions were copied and soon members of opposing societies began to manifest socio-cultural habits that were previously thought to be alien. Great Anglo-Irish lords took conÂcubines and treated their offspring as well as if they had been legitimate, thus reÂflecting Gaelic practice. Gaelic women went to court like their Anglo-Irish counÂterparts to punish errant husbands and try to rectify the calamitous consequences of abandonment. Divorce at will was allowed in Gaelic tradition, but the social and economic effects on discarded women and children could be disastrous.
These cross-cultural exchanges of ideas and traditions are examples of what societies in tense opposition do to survive: they adapt and appropriate. It was not a process free of problems, as the issues surrounding the need for Gaelic wives of Anglo-Irish men to be admitted to English law attest. Officially intermarriage was not promoted; unofficially it was a necessary aid for survival for many Anglo-Irish families. It was also a catalyst of Gaelicization, which successive governments acÂknowledged and feared.
Indeed the greatest instance of where these cultures collided is in the many examples of intermarriage that appear in the records. Here one can see at first hand the processes inherent in adapting to a new culture for women (for it was mainly women who had to adapt to their husband's culture). Their new husbands treated them, it seems, according to their own law codes, so Anglo-Irish women were accorded rights under Gaelic law and vice versa. The changes required of these women to shift their world-view to a new outlook must have been tremenÂdous and life-altering, not only for them but also for those closest to them, most notably their children. The effect of a Gaelic mother on children brought up in an Anglo-Irish tradition, for example, must have been hugely important in shaping
Married Women and the Law in Premodern Northwest Europe those children’s views of the â€?other’ culture, and vice versa (though, it appears, less common). Wives and mothers were practical promoters and facilitators of culÂtural exchange between two hostile societies and yet the gulf between the English and Gaelic worlds remained throughout the later Middle Ages.
The volume of marriages and other sexual relationships so far uncovered from the paltry surviving Irish sources testifies to an island where the two societies did, indeed, exist independently of each other, but also where, increasingly, collision in the form of complex human relationships was becoming a habit rather than a rarity. It appears that the worlds collided very often indeed but never enough for one cultural tradition to take precedence over the other on the island. That would take place at a later date, but during the Middle Ages, at least, the two societies on the island of Ireland presented a complex web of interpersonal relationships with women as wives and mothers at the heart of any collisions that took place.