The Lordship of the Isles

There have not been many states in history that did not have laws. Some of them had laws that were based on the teachings of religion, others had laws that had to have the support of a sovereign. Others had entirely different ways of making laws, such as speaking with tribal elders.

But very few had laws that were never written down, and almost all of those who did wished that the laws would be followed instead of ignored. The Lordship of the Isles, and the Highland clans, did not need to wish this. Although Gaelic law was never written, it was something of a covenant that every Gael was bound to by the fact that they were born.

But what laws existed in the Lordship of the Isles? How were they approved? How were people who broke them punished?

Where did Gaelic law come from?

The law of the Gael in the medieval era was descended from the law in ancient Ireland, but it had elements of Norse culture and feudalism to make an efficient legal system that was popular with the foreigners in the Lordship of the Isles, who were very powerful, and also popular with foreign trade.

However, the law in Ireland was written. The only explanation for Gaelic law in the Highlands to be spoken is Pictish influences, which would suggest that the law in the Lordship of the Isles was based around that of Dal Riada, which shared what would become Scotland with the Pictish kingdoms. This means that the Gaelic law in the Highlands would have been law for almost a millenium.

The Role of Gaelic Law

In medieval Ireland, Gaelic law concerned payment to the victim, and rights to property and land. The Lordship of the Isles continued to practice the former, but its property laws were somewhat different to those in Ireland.

It is assumed that tanistry was practised in the Lordship of the Isles, even if it was not often used by the Lords of the Isles themselves. The tacksmen and the retainers often divided land amongst their sons, rather than having their sons do it upon inheritance. Both legitimate and illegitimate children could claim land.

Daughters would not usually receive land or the buildings on it, but would inherit gifts and other objects. It has been suggested that her brothers would often gift her, but this does not seem to have been a part of the law. It instead seems to have been a part of Gaelic custom, which, although it had the strength of law, would not have been reinforced by official punishment if not followed.

Sometimes daughters inherited some of the land if there were no other heirs.

However, Gaelic law meant that women had many more rights than they would elsewhere. Their rights were almost equal to those of men, except where inheritance was concerned. They were protected from most crimes and held property separately, as in Ireland. However, Irish law allowed men to hit their wives as long as the blow left no mark.

The Gaelic law of the Highlands seems to have changed in the 12th century to say that this, although it had no official punishment, was immoral. It was also not as affected by the Church as Irish law, and so divorces were allowed on more grounds, and women were less of a subject to their husbands (although their position in comparison to their fathers was still the same).

All laws in the Lordship of the Isles were civil, with the offender having to answer to the victim or a member of the victim's family, or one of the judges (there was one for every island, besides Islay where the Lord of the Isles and his retainers had the title, although on larger islands such as Skye there may have been more) for their island.

Each judge had a seat on Eilean na Comhairle (Island of the Council), and through them an individual could appeal to the Lord of the Isles.

Fines

An offender would often have to pay a fine to their victim, especially in cases of rape and assault. The fine would be decided by the victim and a judge, and sometimes the family of the victim. The offender would have no say in this, and the role of the judge was only to decide how much the offender should pay, and not to decide whether they were innocent or guilty, but could appeal to the Lord of the Isles after they had paid the fine if they believed they had not done anything wrong or that the fine was too harsh, through the judge.

The fine would have to be repaid if the Lord of the Isles decided in the offender's favour.

Also, the victim would not receive all of the fine. The judge would also take some of it, and would probably give some of this to the Lord of the Isles if the victim or offender appealed.

Fines were not payments in currency, as the Lordship of the Isles had none, but would have been in goods like food, cattle, swords, and galleys.

Other Punishments

There were, or there seem to have been, other punishments that the victims could appeal for, that only the Lord of the Isles could order. These were reserved for crimes such as murder, heresy, and rape that resulted in pregnancy.

Exile, after a fine had been paid, seems to have been used the most. It was to another island, but could also be to Ireland or Scotland.

Burning was another one, if the punishment of the Brahan Seer has its origins with the Lordship of the Isles as it seems to. It is unknown whether he was burned for having second sight, which seems unlikely, or for insulting a clan chief, and so we do not know what an offender could be burned for.

Why was Gaelic law so strong?

The strength of Gaelic law is the fact that it was spoken of in mythology and by early Gaelic leaders. Chiefs and kings walked in the footsteps of their ancestors, as their inauguration demands, and would aspire to follow their example. The clansmen and their families aspired to be like their leaders.

The laws were also reinforced by equality and morals rather than money or punishment.

Gaelic law became an essential part of not just government, but the very idea of Gaelic identity, which was in itself part of the very ancient idea (and practice) of Celtic traditionalism.