Brehon Law: A legal handbook

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Clan System...continued

From The Brehon Laws by Laurence Ginnell, 1894

The Sept was an intermediate organism between the fine and the clan. It consisted of a number of fines, as the clan consisted of a number of septs. It was one of the divisions of the clan assigned a specific part of the territory, and over it and this district a flaith was supposed to preside.

No rule is stated, and I think none existed, as to the number of persons or of fines that might be in a sept. The right of the sept to undisturbed possession of its assigned portion of the territory was greater than that of the fine, was subject only to that of the clan, and was very rarely interfered with.

The rules of kinship by which the clan was formed were the same rules by which status was determined; and this status in turn determined what a man's rights and obligations were, and largely supplied the place of contract and of laws affecting the disposition and devolution of property.

The clan system aimed at creating and arranging definite rights and liabilities for every member of the clan at his birth, instead of leaving individuals to arrange these matters in their own ways. Kinship with the clan was the first qualification for the kingship, as for every minor office; and the king was the officer of the clan, and the type of its manhood, not its despot. Whatever its constitution, the clan when formed was a complete organic and legal entity or corporation, half social, half political, was proprietor of everything and supreme everywhere within its territory. Within historical times the clan owned the land—part of the land directly and immediately, the remainder ultimately. In earlier times it is very probable that the clan owned all the land and every other kind of property absolutely.

It is very probable that at first neither individual property in land nor even the property of the fine in it was recognised, but only that of the clan, and that these smaller rights of property were at first temporary usufructs, which subsequently became permanent encroachments on the rights of the clan. At no time did the land belong either to the state in the broad sense or to the individual absolutely. Each clan was a distinct organism in itself, and the land was its property—its absolute property at first, till parts of it were encroached upon by the growth of private rights, but its ultimate property so long as the clan existed in its integrity. The clan was the all-important thing. After the clan in degree of importance came the sept, where one existed, and then the fine.

The individual was left little to do but to fill the position assigned him and conform to the system. Among ordinary people the flaith-fine was the most important; but even his duties and liabilities were so clearly laid down as part of the system itself that he does not seem to have been left a wide discretion. This insignificance of the individual seems to us calculated to stifle the best qualities of man and to prevent all progress; and the whole system seems to be one of disintegration rather than of cohesion, and therefore adverse to the growth and continued existence of a true state. Its influence is so all-pervading in public as well as in private life that it amounts to a different system of civilisation from ours.
The average young man from Oxford or Cambridge, or even from Dublin University, with a mind full of fancy theories, may say lightly that it is the absence of civilisation. It is the absence of his civilisation, but not necessarily of all. There existed a spiritual bond, purer and more potent if wisely utilised than the modern one of a common nationality, the creature of power. And, however the fact is to be explained, the finest qualities of our race have been exhibited under the clan system. They may not have been due to it, but it did not prevent them. Having regard to the number of its inhabitants at the time, Ireland produced more distinguished men under the clan system than it has since done. This is a fact which no fancy theories can displace. It proves that, restricted though the clan system appears to us, it in fact afforded sufficient margin for a person to distinguish himself. A large measure of individual capacity was not alone attainable, but attained.

The bravest and most skilful warriors, the most zealous and successful missionaries, poets, musicians, and literary men in astonishing numbers and of astonishing power, taste, and skill, even some artists whose works have scarcely ever been surpassed, and above all a virtuous and happy people, grew up and flourished under the shadow, or the light—whichever it was—of the clan system. All this could not have been the absence of civilisation, but really was a true civilisation different from ours. Our modern notions are therefore an unreliable standard by which to test or judge the clan system. It is entitled, like every other system, to be judged by its results. So judged it has produced much which we are proud to inherit and might be proud to produce. It is quite certain, too, that in those far-off times the clan, with the rights it gave and maintained, formed the greatest bulwark of the poor and weak; and this explains to some extent the grateful tenacity with which the poor long clung to it. If it restricted men's natural right to make what bargains they pleased, the restriction applied most to the strong and wealthy; and if it arranged people's affairs for them to a large extent, the service was obviously most useful to those who, from any cause, were feeble. In this way it effectually prevented that violent antagonism of classes which is at once the danger and the disgrace of modern civilisation.

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Sub-Section 3.—The Céiles and the Land Laws

From The Brehon Laws by Laurence Ginnell, 1894

A TUATH, cinel, or clan occupied a given district, delimited by natural boundaries, as mountains and rivers, or by arbitrary boundaries first determined by the fortunes of war or otherwise. This whole district belonged, originally and ultimately, to the clan, as a corporation or community, and it was divided in the following manner for the benefit of that community:—Part was allotted to the king or chieftain, part to the flaiths and other public officers, part to the céiles or free clansmen, for their respective homesteads, part called the Cumhal Senorba was placed under the control of the king or chieftain for the maintenance of the poor, old, and incapable members of the clan, and part called the Fearan Fine, or tribe's quarter, was retained as the common land of the whole clan, which every member of the clan was free and equally entitled, sub modo, to use. None of this last was held as private property, except for one year, at the end of which it would become common again. There was also a portion of land, the extent of which was diminishing with the progress of ages, which occupied an intermediate position between the private land and the common land in this, that, on the death of a holder, all the land of this class held by his sept was divided anew. The land, as regards quality, generally ranged in the order set out, beginning with the king's best, which was usually that longest in cultivation, and ending with the common waste. The land held in common, however, was not all bad land or waste; some of it was cultivated and some meadowed. Land holders may be divided into three general classes, namely; first, all who held land officially, including the king, the professional men, and the flaiths; second, the Céiles, or ordinary free clansmen, who held land (as one may say) by birthright, who were the bone and muscle of the community, paid fixed tributes for the maintenance of the state, and formed its army in time of war; third, the non-free people, some of whom held land under contracts.

It is said by one recent writer that the céiles were freemen who placed themselves under the protection of a flaith; and another likens them to the Roman Clientes, which is substantially the same thing. I believe this to be a direct inversion of what they were. They were the ordinary free clansmen, who, as such, held land by as good a title as then existed, by as good a title as that of the flaith himself. Their rights, to their proper extent, originated in the law like his, and were as fully secured by the law as his. Instead of placing themselves under the protection of a flaith in the sense suggested, they placed, or at all events had the right to place, a flaith of their own choosing and of their own kindred over them to represent them and act for them as occasion required, and to protect, not appropriate, their rights. The two views may practically amount to the same thing if the period viewed is that of the clan's decay; but one is offensive and repugnant to an efficient clan system, while the other harmonises with that system and is not offensive.

Another modern writer says that the power of disposing of one's own several property was unlimited. He does not state his authority; nor what he means by property; nor whether he means property in land or property in chattels. The power of disposing of property in chattels has in all ages and countries been freer than the power of disposing of land. Property in ancient Ireland appears to have been divided into, not real and personal, but separable and inseparable. The inseparable included all lands and a great deal of chattels, and the separable the remainder of the chattels; and although this division may not have been made specially with reference to the right of disposal, it is pretty safe to assume that that right coincided with it. In many parts of the law, in both text and commentary, there is clear evidence that the individual had not an absolute and unfettered right of entering into important contracts of any kind without the concurrence of others. That being so he could not have an absolute right to sell, which is one of the most important forms of contract at the same time that it is in general an exercise of the right of personal ownership.

If by absolute ownership is meant unlimited and perpetual power of use and disposal, then no such thing as absolute ownership of land existed; and the person called owner was but part owner, part agent, and part trustee for life, with right of enjoyment. The fine or sept occupied the position of principal and cestui que trust. With the concurrence of the fine or sept, the individual could confer an almost absolute title. Without this concurrence he could not. Though the céiles owned, in a sense, the land about their homesteads, and no doubt called it their own, they certainly had not an absolute right either during life or at death to dispose of it to a person outside the clan. Tenure depended on, and was subject to, the tribal status not of the immediate holder alone, but of other members of the fine, who had in the property vested rights of a character and extent defined by the law. Neither the land nor the tenure of it belonged exclusively to the individual, but partly to the fine, contingently to the sept—a wider circle; and though all these had waived or forfeited their rights, or had died, the holder did not thereby acquire a right of absolute disposal, for the paramount rights of the clan itself intervened. And apart from these considerations, and its general repugnancy to the clan organisation, a right of absolute disposal is expressly negatived by distinct passages in the law.

In the Corus Bescna we read, "No person should grant land except such as he himself has purchased, unless by the common consent of the tribe, and that he leaves his share of the common lands to revert to the common possession of the tribe after him." That is a perfectly clear statement. Again we read, "It is one of the duties of the tribe to support every tribesman, and the tribe does this when in its proper condition. The proper duties of one towards his tribe are, that when he has not bought he should not sell; that he does not wound; nor desire to wound or betray."

From these two passages it is quite clear that the sale of inherited land was not absolutely free. It by no means follows that the sale of purchased land was wholly free from restriction. Little land was purchased, and clearly the sale of it was freer than the sale of inherited land. Even on the disposal of chattels, such as cattle, there were some restrictions. An owner about to sell them should inform the flaith or chief of his tuath of his intention; and the chief or flaith or any member of the tuath who required the thing about to be sold had a right of pre-emption or first offer.

The ownership of the clan, at first real and positive enough, was becoming vague, indefinite, and scarcely conscious or operative except when the need or the interest of the clan or of a member of the clan was shown to call for its exercise. This most frequently existed and could most easily be shown in connection with land, the most valuable of all property; but it might also be occasionally shown in a sufficiently acute form if an owner of cattle drove them away and sold them to strangers, while the lands of the clan were understocked. And among small farmers who were often joined for purposes of ploughing, to allow one of such partners to sell his draft beasts at a particular time when his own work was done but not that of his partner, would be to allow injustice; and the laws preferred prevention to punishment.

In connection with this question of disposal, it may not be amiss to point out in passing that in many countries in ancient times property in land was transferred only in a court of law, and that in England the alienation of land was not free until two centuries after the Norman Conquest.

The land held by the céiles as private property, and on which they resided, was subject to an annual ciss (=tribute), rather in the nature of revenue for clan purposes than of rent, and to smaller payments resembling rates. All tributes were paid in kind, and wealthy people had to pay in reflections also—which, of course, was a species of payment in kind. Money was little known or used. There is no mention of it in the Senchus Mor. It is mentioned a couple of times in the commentaries on other law tracts. Articles of gold, silver, and copper are spoken of; but not money in the text. An article called a sicail is spoken of in the commentary. Although it was of a fixed value, I think from its having been used only by ladies that it was considered rather an ornament than a coin.

Ordinary céiles paid in horses, cattle, sheep, goats, pigs, and other animals, alive or dead; wheat, barley, malt, flax, onions, dye-plants, firkins of butter, meal, wool, honey, and other products of the land, with, in most cases, "a handful of candles eight fists in length." These candles were partially peeled rushes dipped in fat. Bees and honey are so frequently mentioned in the laws that the editors remark that from the Brehon Laws alone a code on the subject of bees might easily be gathered. A curious code it would be too. An owner of bees was obliged to distribute every third year a portion of his honey among his neighbours, because the bees had gathered the honey off the neighbours' lands. There is even a special tract on "Bee Judgments." The importance of bees was largely due to the fact that sugar was unknown. Honey was probably the only sweetening material in use. It was used also in the manufacture of mead; and beeswax was used in the manufacture of candles, chiefly those employed at royal entertainments and as altar lights. In such times bees with their honey and wax constituted a valuable property.

The ancient laws of Wales also contain many rules relating to bees and honey, far more than the present importance of these things would justify.

Craftsmen and others who could make useful or ornamental articles, and who at the same time held some land, paid for it by whatever they could make, as machinery, agricultural and household implements, tools of various kinds, furniture, articles of clothing, bedding, linen, swords, shields, musical instruments, ornaments of various kinds for the person and for the home; in short, whatever the skill of one could produce and the fancy of another desire. Manufactured articles being then of greater value than now, and land being cheaper, those articles would pay for more land. Some persons also held land, as in England and on the Continent, by services—services against wolves, pirates, and other enemies; but this species of tenure does not appear to have been either extensive or continual. There was no such thing as tenure by ordinary military service. It was at once the right and the duty of every free clansman to render this, whether he held land or not; and a person who, in the absence of sickness or other valid excuse, failed to render military service when required suffered a reduction of status—a diminution of rights and powers. Cottiers holding small plots of land immediately from the flaith often paid for it in manual labour.

In respect of the quantities of the things paid in kind, nice calculations must have been difficult, but the laws distinguish three degrees. The first and lowest was the ciss fixed by law as payable by every clansman who held land. In the English version of the Ancient Laws of Ireland this word is translated "rent." This is due to the modern importance of rent acting on the minds of the translators. Rent is neither a correct translation of the word nor a correct description of the thing. The correct translation of ciss is tribute; and the ciss was not rent, but tribute. It constituted the ordinary revenue for public purposes; and it was levied on land as being at once the principal class of property and the natural source of support for the state. The second species of payment resembled rent more closely, being a stipulated payment for land to which a man had no title arising from clan status or from the law. The third was called the ciss ninscis, or wearisome tribute, and it was rent inreality. It was paid under agreement by a person who did not belong to the clan, that is, either by an outsider or a non-free person residing in the territory.

The measures by which the actual quantities in each case were ascertained were the cumhal (pronounced cooal) and the sed (pronounced shed). These terms are of constant recurrence throughout the laws wherever measurable quantities are in question. Cumhal means, literally, a bond-maid or female slave; but in the laws it is never used in any other sense than as a measure of quantity, or rather of value, perhaps what was originally supposed to equal the value of such a slave.

As applied to land (tir-cumhal), it meant the usufruct for one year of about twenty acres, less or more, according as the land was good or bad. For land was not always measured by its actual superficial extent, but by the number of cows it was capable of feeding. This is still quite a usual mode of measuring land and of calculating its worth. Also if a mill or other useful or profitable structure stood on the land, less of that land would amount to a cumhal than if there were no such structure. In short, cumhal was a measure of value, not of extent. As applied to other things than land, cumhal meant the value of three cows. Translators appear to hesitate at the word sed, probably on account of the number of senses in which it is used. It is rendered, "a jewel, a cow, a thing of value." It, however, does not mean any particular species of property, but a certain standard of value, irrespective of species; and in the Senchus Mor five seds equal three cows. Of course the knowledge of these equivalents hardly helps us at all in determining the present money value of either.
The free clansmen had, in addition to their private lands, the right to turn out cattle and swine to graze on the Fearan Fine or common land, the number of beasts that each person might so turn out being fixed in a general way by the law and specifically determined by the jury already mentioned. This use was not free, however. The rent usually paid for it was one animal yearly for every seven fed in this way.

A céile who required more land than he possessed could obtain it from the chief for one year, or, with the consent of the tribe, permanently, out of the Fearan Fine or any waste land that could be spared. For this the céile paid tribute of the second class mentioned above for ten years, after which the land was subject only to tribute of the first class. The land having in the meantime become more valuable, it is possible that the actual amount of the tribute remained the same.

Of the smaller payments to which landholders were subject, some were certain, others contingent. One of the certain payments was that made by all for the support of the poor, the aged, orphans, and the like belonging to the clan, in addition to the Cumhal Senorba, or Old Age Inheritance, which stood dedicated to their use. The immediate relatives of a criminal were contingently liable to pay compensation for his misdeeds; and the sept, and even the whole clan, were liable in the contingency of the nearer relatives failing. There was also a somewhat similar liability in respect of certain contracts, if entered into with the consent of the relatives or of the clan.

All the tributes mentioned were paid to the flaith, not as landlord but as a public officer, not for his own use, except so far as the absence of money and other circumstances rendered his use necessary, but to be spent in the interests of the clan. Neither the land nor the tribute issuing out of it belonged to the flaith. He had no power whatever to evict a clansman, whether the tribute was paid or not. He might evict an outsider, or a non-free person, to whom he had let land by agreement, if the rent agreed upon was not paid, or for other sufficient cause. But the free clansman's tenure was not the result of any agreement, and was not from the flaith at all, but was a right accruing to him at his birth; and if he was in default with the tribute the utmost the flaith could do against him was to distrain his cattle or other goods for the amount due. In the case of a number of debts due by the same person, and sued for at the same time, arrears of tribute had to be paid first; but if a céile died owing arrears of tribute, the amount of those arrears could not be recovered from the céile's heirs. "Every dead man kills his liabilities. It results from the neglect of the flaith that there is no liability upon the heirs of the céile, unless they themselves have committed default after the death of their father."

The collection and expenditure of tribute was the weakest point in the whole Irish system, as it was in that of Rome. The Roman system of government was probably as perfect for the time as is any system of modern Europe, with the exception of this one flaw—the taxes were farmed out to undertakers to collect, instead of being collected by the State. The Irish system provided the flaith for the collection of the tributes, but left them when collected in the hands of the collector. The flaith was at once state receiver and chief executive officer of his district.

What did he do with all this rent in kind which was being continually heaped upon him? The system theoretically provided many useful things for him to do with it; but the temptation to abuse his position gained as that system lost in controlling power. He was obliged to pay some tribute to the king or chief above him. In time of war he was bound to provide a fixed number of men and horses, together with food for them. He was bound to entertain the king and certain high officials with their respective retinues on certain periodic visits. He was bound to make suitable provision for the public officers of his own small territory. He was bound, with the concurrence of the local assemblies, to keep roads, bridges, and ferries in repair and to make new ones where necessary; to provide protection against storms and floods; to maintain the public mill of the district, the public fishing-net, and other public institutions which varied with the nature of the district.

It was his duty to supply, where needful, the farmers and cottiers with live stock for their lands, chiefly young cattle, according to their various wants, the quality of the land they held, and other circumstances, so that they might, by feeding and using these animals in their respective ways, support themselves and pay the tribute out of the profits. One farmer would, from taste or suitability of circumstances, make a specialty of breeding one particular class of stock, another a different class; and the flaith took up the tributes from the different men at different seasons of the year, thus making the supply keep pace with the demand, always having enough on hands to satisfy all requirements, and letting out to one what he had received from another. In order that the supply should not fail and that the sept should not suffer, the law required every clansman who had a superfluity of stock to dispose of to apprise the flaith of his district before selling them, and the flaith was empowered to enforce this law if necessary. The flaith was also bound to provide bulls and stallions for the use of the sept. These were very useful functions, and they by no means exhausted the duties which by law the flaith was bound to discharge, and probably did discharge (through servants, of course), so long as the local assemblies exercised their powers of guidance and control.

The tributes being in kind, too, it really was hard to make a better use of them than that indicated. But the system was a bad one, bound to break down as soon as the check of a local assembly was removed. Perhaps the flaith exacted nearly as much tribute from the people in a time of peace as in a time of war, and perhaps after exacting tribute he left public works undone, or left those who had paid for them to do them as well; and with so much property of various kinds in his hands and coming into them, and a feeble assembly or none to demand it or an account of it from him, the temptation to regard it all as his own imposed a strain on the virtue of the flaith, impelling him at once to oppress those beneath him and to shirk his own duty to those above him and to the State. The state receiver became a receiver for himself; the executive officer did not trouble himself to execute much beyond what was to his own advantage.

Some landholders of adequate means raised sufficient stock for their own use, and had no occasion to purchase or hire stock; or they purchased what they wanted in the ordinary way, from the flaith or from somebody else, and had no account to render. All the céiles were classified as Saer and Daer, which terms are translated as free and base respectively. We are told that the difference was like that which prevailed, and to some extent still prevails, in England between freeholders and copyholders.

Beyond this vague comparison, those who make it do not attempt to explain the distinction in the case of those who did not hire stock; and if the distinction existed among such ceiles—as it appears to have done—I have failed to discover in what it consisted. Of this I am very sure, that the difference was not the same as that between English freeholders and copyholders, that the conditions of the one country rendered the relations of the other wholly inapplicable, and that the references made to those tenures do not help us in the least. Possibly they are as often made to excuse the writer from explaining as to assist readers to understand. In my opinion, the tenure of all who did not hire stock was a perfectly free tenure, and in their case the terms saer and daer had reference to their comparative wealth and status, and not to the nature of their tenure.

The transactions of the flaith in cattle, however, appear to have consisted in practice mainly in letting out cattle on what may be called a hire-purchase system, which itself was of two kinds; and it is in the difference between these two kinds that, so far as regards the céiles who hired stock, the real difference between saer and daer consisted. The translators describe this difference, in half-English, as saer-stock tenure and daer-stock tenure. One of our modern writers says that the difference between the saer-stock and the daer-stock tenant was, that the latter paid Biathad (pronounced Beeha), a word signifying Food-Tribute, or a payment made in any eatable material. This is a mistake. Nominally, indeed, certain persons were bound to pay certain amounts of food-tribute, but in practice either or both paid it whenever it happened to be the most convenient form of payment. It was in the quantity and the other terms that the difference consisted. And with regard to both these terms, tenure being a word used in English law only with reference to land or something issuing out of land, it can hardly be a correct translation at all, since what the flaith let out to the céiles was not land but cattle. In what is called saer-stock tenure the flaith gave the stock without requiring any security, and without any bargain whatever, but subject to the general law which was known to both parties. My own impression is that the flaith was bound to do this, and that the person to whom he so gave stock was a clansman entitled to get stock in this way, and was not a tenant at all. However, let that pass. The flaith gave the stock, and for it the law entitled him to an annual return for seven years of one-third the value of the stock given. This payment being duly made, at the end of seven years the stock became the absolute property of the céile, and he had no more to pay for them. This was a substantial return. Though not so heavy as modern rent, especially in view of its short duration, it was heavier than the gross amount of tributes paid by the céiles who did not hire stock. The céile might, if he liked, not begin to pay the instalments until the end of the third year, but he was bound to pay up then for those three years.

Daer-stock tenure, among those who hired cattle, was somewhat similar; but the tenant had to give security for the stock, to render a larger return than the saer-stock tenant did, and if he was a free clansman entitled to take saer-stock the fact of his taking daer-stock seriously affected his status and that of his fine, rendered him incompetent to give evidence in a court of justice in opposition to the evidence of a flaith, and diminished or extinguished his right, and the right of his fine, to recover eric or other fine in the event of injury done to him or them. These were such grave consequences that a free clansman could not take daer-stock without the consent of his fine, and it was only the pressure of poverty would induce him to take daer-stock at all. War generally reduced large numbers to this necessity. It is probable that the law originally contemplated the taking of daer-stock only by men who were not true clansmen.

The rights and duties of both parties in these transactions are so fully and minutely laid down in the laws that there was little occasion for specific contracts, and probably business was done as smoothly without them as with them. There was more need of specific contract in base tenure than in the other, since, although it was provided for by the law, it originated not in a birthright like the other tenure, but in an agreement express or implied. Neither of the tenures was liable to capricious determination by either party. But for just and sufficient cause, and subject to fair conditions, either party might bring the arrangement to an end. It is said that the daer-céile as well as the saer-céile was able, for just cause, to have the contract set aside; but it is not clear how he could do this except with the voluntary consent of the flaith, first, because the flaith held security, and secondly, because the daer-stock tenant was incompetent to give evidence against a flaith.

If a céile who had taken stock absconded without paying the value, and left no property behind him but the land, unless the fine paid for the cattle the flaith was entitled to take and hold so much of the land as would compensate him. The remainder went to the fine of the absconding debtor, subject to any debts due by him.

In the laws a daer-man or daer-person is mentioned as distinct from a daer-stock tenant, and "the full eric fine of a daer-man" is frequently spoken of. What exactly this person was I cannot ascertain.

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Sub-Section 4.—Devolution of Property

From The Brehon Laws by Laurence Ginnell, 1894

UNITY of ownership in the clan, so long as it existed and so far as it extended, prevented the devolution of property to individuals in the same sense as in English law. Even to a late period a considerable portion of land was not inheritable by individuals, but remained unchangeably the property of the clan as an immortal corporation. To this land, therefore, no rules of devolution applied. Orba, or lands of inheritance, descended in three different ways:—

1. According to the rules of gavelkind. I place thisfirst, not because it was the most important in historical times, but because it was the oldest, was once general, and certainly was the most unlike anything we are now acquainted with. Land held by a man outside his home farm, and which occupied an intermediate position between his private land and the common land of the clan, descended according to the Irish system of gavelkind, that is, on the holder's death not only the particular land which had been thus held by him, but all the land of the same class belonging to his sept, was divided anew amongst the adult males of the sept. It was an unsettled system. Still it must be admitted that it gave some start in life, however crude, to young men who might otherwise have got none. On such a division of land, the amount of it that each person was entitled to receive was fixed in general theory by the law, subject to adjustment in each particular case by a court of twelve men who took differences of quality and other relevant facts into consideration.

Their decisions do not appear to have been questioned. If they ever were questioned, no doubt an appeal lay to the brehons. Under this peculiar custom of descent women appear to have been excluded. The amount of land subject to the custom constantly diminished, the custom receding, as it were, from good land and extending to land little cultivated. I think the land subject to this custom must have been unfenced, but it is not so stated. It was that portion of the land of the sept over which an individual right of private property had not yet attained maturity, the interest of each holder not being ownership nor quite a life interest. A large proportion of the good land of Ireland must have been rescued from this custom a century or two before the birth of Christ, if it be true as stated that large quantities of corn were grown and exported in those centuries to Britain, Gaul, and Spain, a thing hardly possible if the land had remained unfenced and subject to this unsettled species of gavelkind.

At the time of Caesar's arrival in Britain the land there was wholly unfenced, except the mounds and fallen timber that encircled the fortresses and clustering hamlets. There was no division into fields, the land being distinguished only as cleared and uncleared in respect of forest, and the people subsisting mainly on meat and milk. But Ireland was more advanced at that time, and (or perhaps because) it was more accessible to and more frequented by merchants from the then enlightened nations of the world, the state of Northern Europe being such that merchants could not cross overland in safety. Some of the good land of Ireland was fenced at a very early date, and the law affecting fences and mearings is old and and yet elaborate. The nature of the fence affected the liability for trespass upon land; hence in dealing with that subject the law describes the fences. There were ditch-and-mound fences, wall fences, stake fences woven with rods and having a blackthorn crest on the top; and some others.

2. As private property. In this case, on the death of the father of a family each member of his Geilfine—usually meaning each son not already provided for—was entitled to an equal share of the land and of the cattle fed upon it; but one of the sons, in addition to his equal share, inherited all the houses and offices constituting the homestead, the valuable fixtures which usually stood upon the same land, and the household, farming and manufacturing implements. Whether this favoured son was the eldest or the youngest is one of the disputed points in connection with that obscure subject the organisation of the fine. The preponderance of opinion at present seems to be in favour of the eldest son, and this is probably correct as applied to the Middle Ages; but I incline to the belief that earlier it was the youngest son who was so favoured. However this may be, as a counterpoise and consideration for the special inheritance, the law held him responsible, as succeeding flaith-fine and stem of the family, for the guardianship of his sisters until their marriage and of any other dependent members of his fine, obliged him to act as plaintiff and defendant as became necessary in all suits at law concerning them or their property; and if he was of proper grade bound him to entertain the king, bishop, bards, brehons, and others with their respective retinues. In the foregoing circumstances all the land went to the sons, and daughters had either to depend on the husbands they got or to be provided for out of the movable property. On the occasion of almost every marriage there was a collection, called a Tinol, made among the relatives and given to the bride. But this can hardly have been a very substantial amount, and it probably corresponded to modern wedding presents.

If daughters were more numerous than sons, and could not be provided for out of the movable property without gross inequality, one or more of their husbands might be admitted to an equal share of the land, and then questions of status would arise as to which of them this should be. If there were no sons, the land, anciently, went to the nearest male members of the fine in the order already described, subject to a provision being made out of it for the daughters. The exclusion of daughters from inheritance seems to us very unfair; but it was no more so then in Ireland than it was many centuries later under the Normans in England. The chief reason for it in the latter case was, that the land was held by military service, which women were incapable of rendering.

The Irish got rid of the anomaly long before the introduction of Christianity, through the exertions, it is said, of Brig Ambui. She is described by some as a lady judge. There were no lady judges. She was the wife of a judge, made use of her position to acquire an exceptional knowledge of law, gave advice to women regarding the taking possession of land which they claimed, and her advice was so skilful that she succeeded in winning, not alone their particular cases for her clients, but legal equality for her sex in general. She was probably assisted by two facts, namely, that military tenures in the Norman sense did not exist in Ireland, and that Irish women were in those times free and liable to bear arms. However it came about, in the Middle Ages in Ireland, if there were no sons the property was divided equally among the daughters. With regard to the further descent of land thus given to daughters, the text says, "As to a mother's land, her sons shall divide it from the days of her public testament. But the half of it shall revert to the tribe of the original owner of the land; the other half according to true judgments the seed of her flesh divide."

3. According to the rules of tanistry. In order to secure to kings, chiefs, flaiths, and other public officers who acted on behalf of the community, their ancient affluence permanent and undiminished, with all its attendant advantages, the law held the lands assigned them for their public services to be indivisible. The land held by each descended to his successor, as the property of a corporation does in English law. The successor was usually a near relative, but not necessarily so. Thus while the lands held by ordinary people underwent repeated subdivision as they descended, and the rights and privileges which landed property conferred were similarly subdivided, constantly tending downwards to small patches, few rights, and little power, a position of permanent and disproportionate wealth with its attendant power was secured to the people of rank; and what was apparently a restriction, and was originally intended as such, became in operation a class privilege. And although the flaiths had practically appropriated the official lands to their own families, so far from desiring to free those lands from this rule of descent, they maintained the rule and even extended it to all the lands they could in any way acquire.

[Delbáeth]

Sub-Section 5.—The Elizabethan Atrocities in their Relation to Land

From The Brehon Laws by Laurence Ginnell, 1894

RETURNING to the subject of tenure; in describing the céiles I have endeavoured to give a general outline of the element in which they lived, namely, the law affecting property in land. That law was as unlike the system called Feudalism as any that ever existed; so unlike, indeed, that it has been called, and truly called, the very antithesis of feudalism. This being so, it is strange and confusing to find Irish scholars of the present day writing and speaking of Irish feudalism, and representing the ghastly struggle of Queen Elizabeth's reign as one between Irish feudalism and English anti-feudalism; the real fact being that there has never been such a thing as Irish feudalism. The feudal system of land tenure prevailed for several centuries over England, Scotland, and a large portion of the continent of Europe, and it is still distinctly traceable in the laws of those countries; so much so that a thorough knowledge of real property law at the present day cannot be acquired until one has first made himself acquainted with the leading features of the feudal system. Those features do not exist in the system I have just outlined. Feudalism never prevailed in Ireland, never existed there, and the system that did prevail was as unlike feudalism as could well be devised.

The relation between the flaith and the céile was not one of tenure at all in the proper meaning of that word. The nature of that relation is wholly misconceived by any one who looks for tenure in it. A tenure did exist, as we shall see; but it existed between the flaith and the non-free people, not between the flaith and the clansmen. The land belonged neither to the king nor to a lord, but to the clan, including high and low. What the flaith held, what the céile held, and what neither held, belonged alike to the clan. And even when a clansman sought and obtained more land than his status entitled him to, and a relation resembling tenure arose respecting this land, that relation was not with the flaith, except as the official through whose instrumentality it was contracted, but with the clan of which the céile and the flaith were alike members. The feudal principle of primogeniture was not recognised by the law in regard to either rank or property. Instead of it, and in contrast with it, the law provided for election to every office, with the addition that the most worthy should be elected, and provided that property should descend to those who had the strongest natural claim, in shares which were in effect proportioned to the strength of that claim. It is surely a strange mistake to call such a system feudalism. As Professor O'Curry says, "Feudal land laws never prevailed in any form in ancient Erinn."

One element resembling feudalism ran through the whole Irish system from the king to the humblest person who paid tribute. This was the custom according to which when any one, high or low, paid tribute he was always given something in return by the person to whom he had just made the payment. Precisely the same rule was observed on the payment of tribute by the chief of a tuath to a provincial king, and on the payment of tribute by the provincial king to the Ard-Rig. The thing given in return was usually something of little value, but the acceptance of it is interpreted by writers of the present day, arguing from the heriot of English copyhold tenure, to have been the acceptance of a position of vassalage. Personally, I believe this to be a purely gratuitous assumption based upon a false analogy. This single ceremony, even if it were shown to have had any relation to land, cannot neutralise every other fact connected with the holding of land. It is at least as likely to have been a recognition of allegiance as a yoke of tenure. What its real meaning was, since it cannot yet be determined with certainty, had better be left in honest doubt until through further research certainty is reached. In the light of our present defective knowledge, the custom appears inconsistent with the clan organisation, and yet it seems to have prevailed when that organisation was in vigour; and it certainly was entirely native and not derived from the feudalism of England or the Continent.

It is true that the Irish system was undergoing a change amounting to decay, and was drifting in the direction of feudalism at the time that feudalism was dying out in England. Various causes, political, social, and economic, contributed to this. First of all, the radical defect in the system itself in regard to the collection and disbursement of the tributes. Then of historical causes, chiefly contact and friction with non-Celtic elements, beginning with the wars with the Danes, which deranged the mechanism and disturbed the smooth operation of the Gaelic system. Before the country had recovered from the disorder thus occasioned, the Anglo-Normans arrived, prevented recovery, and contributed to the progress of decay in the following, among other ways. While as a rule adopting the Brehon Laws, so far as their personal interests were served by doing so—adopting the advantages without the correlative restraints and responsibilities—those settlers introduced to the districts grabbed by them a few of the rules of feudalism and some of the feudal spirit.

Emboldened by the force of this example, and by avarice, some of the flaiths who were the Gaelic neighbours of those settlers, and who had long been treating as their own property that which was originally official, at times of disorder and consequent relaxation of the Gaelic discipline, extended their pretensions, began to assert their personal individuality over that of the community, to regard themselves as lords in the feudal sense, to treat the tributes paid to them, and even the lands out of which those tributes issued, as in some sense their own, and to treat as tenants men who had hitherto been their fellow clansmen. The presence of two rival races in the land, and the consequent frequency of war, afforded occasions sufficiently numerous for the progress of this constitutional gangrene.

Favoured by these circumstances, and prompted by self-interest, Gaelic flaith and Norman settler alike developed a strong personality, acquired undue prominence as military leaders, prevented the regular meetings of the local assemblies, marred and paralysed them when they did meet, rendered the formation of effective public opinion impossible in any way, and reduced the former clansmen or their descendants to the position of mere retainers. True progress there could be none, and as nations seldom stand still there was a retrograde movement. The old temporary tributes here and there degenerated into permanent rents; the old tenure of cattle into a tenure of the land upon which the cattle were fed; clan rights became more and more vague, the personal rights of people of rank more and more accentuated, the personal rights of humble people less so. The situation became altogether favourable for the introduction of feudalism, but it was never introduced; for the evolution of a native feudalism, but it was never evolved. For, after all, this retrogression was comparatively late and trifling, and as a fact it never found its way into the laws at all, but was constantly localised and counteracted by the laws as a disease.

It was quite alien to the laws; and, so far as it did extend, represented not Irish laws but the violation of them. Those laws continued to be the laws of the whole country except the Pale until the beginning of the seventeenth century; and long after their formal abolition under James the First, the people clung to them—as well they might—as tenaciously as they could; and the peasantry down to the present day have, in the face of stern laws, clung to the old Gaelic idea that the land belongs to the people, an idea wholly irreconcilable with feudalism.

The change in the land laws was one of the most important legal changes made by the English in Ireland. Without touching upon the question whether it was or was not necessary, it certainly could have been effected either without injustice to anybody or with very cruel injustice to the mass of the people. The latter was the method pursued. The Anglo-Norman settlers from the very beginning recognised and respected the rights conferred by tribal status. Indeed, it was impossible to do otherwise in a country where all rights were so conferred. To do otherwise would have been universal robbery, and this they were neither able nor inclined to carry out. But English rulers, from the Tudor period downwards, refused to recognise any such rights in the people, and, when it suited their purpose, conferred upon chiefs and flaiths rights which the clan system never gave them.

Though a man was in the actual possession of land descended to him in strict accordance with immemorial custom, if he was unable to show a record, or a contract on parchment duly sealed and delivered, he was treated as a mere tenant at will or a trespasser, and his land was given to an Englishman who had neither tribal nor any other right whatsoever. The Irish in general had, of course, no such muniments of title to show. They held their lands as their ancestors had held them, by right of birth in the clan. This meant to the English mind no right at all. Its assertion was rather an outrage. The general absence of contract was made a pretext for general confiscation. This, so far as relates to land law, was the real nature of the struggle that was in progress during the Tudor period, was atrociously pursued under Elizabeth, formally legalised under James the First, confirmed and rendered irrevocable by the Cromwellian and Williamite wars. It was not a struggle with feudalism, but a general confiscation of the property of Irishmen (carried out without any attempt to avoid needless injustice), and the natural resistance which that confiscation provoked.

[Delbáeth]

SECTION VI.

FREEMEN OWNING NO PROPERTY

From The Brehon Laws by Laurence Ginnell, 1894

IN further pursuance of our plan the next class to be considered is that composed of persons who were free but had little or no property, and consequently little or no power. Strictly speaking the collateral branches of most families, and persons thrust out of their fines by the operation of the law, and having no property, would fall within this description; but the persons I wish more particularly to gather within this convenient group, in order to separate them from those above them and from those below, were simply men who had become poor as the result of ordinary adverse circumstances, or of war, or of fines imposed for offences, or of want of industry. Their numbers fluctuated from various causes. They had rights by birth as members of their respective clans; but their want of property rendered and kept many of those rights in abeyance, unavailable, ineffectual. This was the only primary difference between them and their fellow clansmen who had property; but in effect it was productive of many important differences; so much so that in reality there was more in common between those people and the non-free than there was between them and propertied freemen, and many of them, abandoning all hope of recovering lost ground, deliberately threw up their clan status and their claims which poverty rendered practically worthless, and joined one or other of the non-free classes. Until they had done this, however, they were entitled to take part in the military muster of the clan, and had a number of other rights which any acquisition of property might enable them to realise, but which without property were empty. For example, they were entitled to feed stock on the Fearan Fine; but so long as they had no stock the right was quite useless.

[Delbáeth]

SECTION VII.

THE NON-FREE

Sub-Section I.—Preliminary.

From The Brehon Laws by Laurence Ginnell, 1894

FINALLY, with regard to the last great division, the non-free. One is sorry to find that there were in Ireland in ancient times, as there have been in other countries in times ancient and modern, people who were not free, some of whom were not regarded as members of the clan (that is, not regarded as citizens), and had no birthright in any portion of the property of the clan. This was so in Christian as well as in pagan times. There were fluctuations both in the numbers who were not free and in the severity of their condition; and there is much reason for thinking that that condition hardly ever reached the degree of extreme abjectness.

The origin of servitude in Ireland is lost in the mist of pre-historic ages. We are dependent on conjecture, the most probable being that the Milesians reduced to a condition of sufferance and servitude some portion of the Firbolg, Cruithni, and other races that had preceded them. But the distinction between bond and free did not long correspond with racial distinction, because on the one hand many persons of the earlier races subsequently rose to rank and power and became scarcely distinguishable from the rest of the community; while on the other hand many persons of undoubted Milesian race sank, either in punishment of their personal crimes or as a result of war or other misfortune, to the very lowest rank of the non-free. Again, a distinction must be observed between individuals in bondage all over the country and Firbolg communities which occupied separate districts in some parts of the country until the Middle Ages.

These latter cannot be classed as non-free. They were long treated as an inferior race, defective in status and in political rights and power; their language and their manners in so far as they differed from those of the dominant race were considered, as usual in such cases, marks of inferiority; and they probably paid higher tributes than other people did. But they often proved themselves sturdy people, and in course of time the distinctions mentioned came to signify no more than the local characteristics at present observable in different parishes.

Without admitting that servitude in any form or degree can be justified, or suggesting that any number of wrongs can make a right, one is free to observe that it is very hard to entirely eradicate from any social system, and especially from one so interwoven and complex as that of ancient Ireland, a social condition which has taken deep root in it and become part of it. Its continuance or discontinuance does not always rest with the free choice of individuals: that choice may be overruled by national requirements or what are deemed to be such. There being no prisons or convict settlements in Ireland, except where the natural prison afforded by a small island was available, reduction to a species of slavery, permanent or temporary, was considered a reasonable punishment of criminals guilty of capital offences but whose lives had been spared, and of other criminals who could not or would not satisfy the fines imposed upon them. Slavery in such cases differed very little from transportation or penal servitude. The taking of persons as hostages, too, for various purposes in civil matters was quite an ordinary proceeding in Ireland as in other European countries in ancient times. When any of these persons were forfeited the law entitled the holder to keep them in servitude, permanently or until they were redeemed or his claim satisfied by their labour or otherwise according to its extent.

Cowards who deserted their clan in the day of trial on the field of battle, or got wounded in the back (while running away), lost their status however high or low it might have been, and virtually lost with it their freedom. And, unfortunately, war oftentimes in its consequences reduced the brave as well to slavery. It always at once increased the number of slaves and furnished a pretext for holding them. The wars with the Danes had this two-fold effect. Stress and trial came, however, and were neither prevented nor surmounted by the holding of slaves in increasing numbers.

It is said that they were more numerous in the twelfth century than ever before, notwithstanding the condemnation of the Church. In England also in the same century slaves were very numerous, notwithstanding a similar condemnation. Slavery continued to exist in England to some extent down to the end of the sixteenth century, when it died a natural death; in Scotland down to the end of the eighteenth century, when it was abolished, in 1799, by the Act 39 George the Third, chapter 56; and in America, the land of the free, slavery existed until our own time.
In Ireland there were several grades in the non-free state, as in all classes of the free state; but there are three principal non-free classes distinguished in the laws, namely, the Bothachs, the Sen-Cleithes, and the Fuidhirs.

[Delbáeth]

Sub-Section 2.—Bothachs and Sen-Cleithes

From The Brehon Laws by Laurence Ginnell, 1894

THE word Bothach being connected with bothan, a cabin, it is inferred that the people called by this name were cottiers. Sen-Cleithe means Old Stake, or old adherent, and the people so called were the poor adherents and dependants of the flaiths, such as servants, herds, horse-boys, cart-boys, dog and hawk-boys, &c. Various writers describe both these classes as prisoners of war or their descendants. For my own part I believe that these two classes consisted wholly of persons born in the territory. Their very names indicate as much; so also does the class of business in which they were employed; and they were considered as in some sense members of the clan in whose territory they resided, which could hardly have been so had they been prisoners of war. But their connection with the clan did not go to the extent of giving them any birthright in the property of the clan; and I do not think they were entitled to arms or to take any part in the military muster. They had the right to live in the territory as best they could by working for any flaith or any other person who paid them best.

They were not restricted as to whom they should serve within the territory; but they were not free to leave the territory except with permission, and in practice they usually served the flaith. They had no political or clan rights, could neither sue nor appear as witnesses, and were not free in the matter of entering into contracts. They could appear in a court of justice only in the name of the flaith or other person to whom they belonged, or whom they served, or by obtaining from an aire of the tuath to which they belonged permission to sue in his name.

In this respect it was these people, not the céiles, who resembled the clientes of ancient Rome. They were capable of acquiring land by contract, and when they had done so they corresponded to the English villeins of the Middle Ages. With industry and economy they might become wealthy, and with the acquisition of wealth a certain progress was allowed upwards towards liberty and an easier lot. The distinction of saer and daer was recognised in their condition; but it is not clear in what that distinction consisted, unless the former represented legal status, which wealth was the ordinary means of procuring. Whenever any of them did by contract become land-holders and wealthy they also acquired some social and political rights, and could not be removed from their lands without just cause and compensation for unexhausted improvements. The main difference between such men and the free clansmen was, that while the clansmen's possession of land acquired by contract would in the course of ten years ripen into ownership, and cattle they had hired from the flaith and paid for would after seven years become their own, the non-free men had no such general law continually operating in their favour to this extent, but were kept to the terms of their contract because that was throughout their only title. A freeman sometimes paid a pretty heavy tribute for such land in the beginning; but in doing so he was gradually throwing off a burden from which he knew he would soon be entirely free.

A non-free man paid a still heavier tribute, which was a rent in reality; and yet his burden continued undiminished, ever wearisome. And in every case of conflict the claim of the non-free man should give way to that of the clan or of a fully enfranchised member of the clan. The benefit of the principle of partnership was extended to these two classes also, enabling a number of them to put their small means together, take a piece of mountain side or other poor land and stock it on the system now called rundale, and by means of this property to acquire rights and the protection of the law. If five families had each become so wealthy as to own one hundred head of cattle, and had then formed a partnership or guild resembling the fine of the freemen, and appointed a chief or flaith-fine, they were entitled at once and thenceforth to be recognised as a portion of the clan; and then, but not till then, all the rules of kinship applied to them as to the free people. Until they had emancipated themselves by individual or joint wealth, or in some other way, they appear to have lived very much on the sufferance of the clan. The majority of them remained poor and had little occasion or inclination for testing the scope or existence of their rights. It is probable that the condition of even these was not on the whole worse than that of modern agricultural labourers. Their position was one of rightlessness rather than slavery; they were tolerated rather than bound.

[Delbáeth]

Sub-Section 3.—The Fuidhirs

From The Brehon Laws by Laurence Ginnell, 1894

FUIDHIR was a name applied to all who did not belong to a clan, whether born in the territory or not. This was the lowest of the classes of the non-free people. This also was sub-divided into saer and the daer fuidhirs being the class

most closely resembling slaves. Even this lowest condition was not utterly hopeless; progress and promotion were possible, and indeed were in constant operation. But on the other hand the ranks of the fuidhirs continued to be recruited from various sources. It was here prisoners of war were to be found. The pagan Irish were wont to go on warlike expeditions to Britain and Gaul, and on their return to bring home, along with other booty, some of the natives whom they reduced to slavery in Ireland.

It was in this way Saint Patrick was brought to Ireland, and it was as a daer fuidhir he lived in Ireland in his youth. Centuries after Saint Patrick's time the Irish used to send to English ports and purchase children as merchandise from their English parents, who sold them freely. These children were brought up as fuidhirs in Ireland. And, as already mentioned, the ranks of the fuidhirs afforded a general refuge for convicts, fugitives from justice from other clans, tramps, outcasts, and unfortunate persons of all sorts. A freeman could remain in his own tuath and become a daer fuidhir if all his property when given up was insufficient to pay his debts—a species of bankruptcy plus capitis diminutio. No fuidhir, saer or daer, was entitled to bear arms, or to recover eric for the murder of a member of his family, or to inherit property if by any chance he found himself in a position in which he would otherwise inherit. The law recognised the fuidhirs in some respects, however, in certain matters not fit to be stated here. The lowest of them were regarded as intelligent persons, as human beings, not mere chattels.

Fuidhirs and the non-free of all classes resided for the most part on the flaith's land; for, apart from the satisfaction of specific claims, the flaiths alone, as a class, had the general right of keeping non-free persons on their lands. This exclusive right originated in the legal theory that they were public officers, bound among other things to perform certain public works requiring unskilled labour of a coarse kind, and they were allowed to keep non-free people for the performance of these works for the benefit of the community, as with convict labour of the present day. In practice they mostly employed the fuidhirs in works for their personal benefit. They were free to give patches of land to the saer fuidhirs either on their official lands or on their private property. In practice they gave them patches on the common or waste land also, exacted rent for it as though it were private, and in this way appropriated that land.

The land so given was usually the poorest, most inaccessible, and most difficult to utilise. The saer fuidhirs might, however, if they had the means, bargain with the flaith for good land and hold it for the term of one year, and during that term they could not be disturbed. For this land they paid him high rent, because he could charge them as much as he pleased, a thing he c