Personal rights of the political and social order were in ancient Ireland arranged upon a graduated scale of status, and society was divided into a great number of classes, or grades, quite distinct in many respects according to the position they occupied on this scale. One of the Gaelic commentators of the Middle Ages says, among other things, ‘The world was at an equality until the Senchus Mór was written.’ That part of his statement may be disregarded. At all events, I go on the assumption that it is incorrect; nor do I deem it necessary to state my reasons. For our present purpose, however, ancient Irish society may conveniently be divided into six general classes—(1) the kings of various grades; (2) the professional classes; (3) the flaiths, who constituted a sort of official nobility; (4) freemen possessing property; (5) freemen possessing none (or very little); and (6) the non-free classes. But although quite distinct, these classes were not utterly exclusive castes such as we read of in Eastern countries. It was possible for persons to rise (or sink, as the case might be) from one class to another. Rank and office meant nearly the same thing; or perhaps it would be more correct to say that wealth, rank, office, power and responsibility were considered as co-ordinate ingredients of status, and therefore always vested in the same persons proportionately according to their respective positions from the king downwards. Progress from one rank to another was no doubt effected in a variety of ways, as by duly qualifying for a learned profession, by displaying conspicuous valour, conspicuous skill in some department, the performance of some signal service to the community, and the possession of wealth. The first mentioned qualifications were personal and of immediate effect; this latter one was proprietorial and not always immediate. Its frank recognition shows that our ancestors were of a far more practical turn of mind than they now generally get credit for. Their complex political, social, and military system was avowedly based on the possession of wealth to even a greater extent than the system founded at Rome by Servius Tullius. The effect of wealth in this respect was arranged and calculated frankly upon fixed rules, and not left uncertain and indefinite as is now generally the case. Such a system at least furnished an incentive to thrift and industry. Every clansman was eligible, provided he possessed sufficient property, and had not forfeited his right by crime, to become an Aire (pronounced Arra); if he owned the qualifying property of a Flaith, and his family had owned that property for three generations, he might become a Flaith; and a Flaith was always eligible for the highest office in the state. On the other hand, loss of wealth below a given amount involved loss of the status to which that amount corresponded. The Irish system had this advantage over the Roman system, that when persons of an inferior grade had not sufficient property individually to qualify for the full rights of citizenship, as the rights of suing, of being jurors, witnesses, sureties, &c., a number of them might combine, form a guild or partnership, take a piece of land (presumably waste land), and this joint property, after they had cultivated it for ten years and fenced it off, would give a qualification for one of them to become an Aire, with all rights of citizenship and power to act for the partnership without external assistance. A similar right of forming partnerships was given to artisans and others who lived by handicrafts and such forms of industry; and having combined, they could choose from among themselves a person to become an aire, act for them, and enjoy full rights of citizenship on their behalf. These partnerships, or guilds, were a very important economic feature in ancient Ireland. Each rank in the ascending scale brought to the man who had reached it an expansion of liberty, an accession of rights and privileges, and a corresponding increase of liabilities. Also the fines recoverable in case of injury depended upon rank; and rank depended largely upon wealth.
There are indications that the different classes were distinguished by the colours of their dress; but there is no trace of any one having been punished for having violated this rule, and I think we shall not be far wrong in concluding that the rule strictly applied only to public occasions, that it was enforced rather by pride than by enactment, and that its extension to private life was due not so much to either of these causes as to convenience.
Let us now consider the various classes in the order named.
Caesar says that in Gaul some of the states were ruled by senates, with no individual holding the office of head of the state. But in nearly every case he appears to have found aspirants to that position, the sons or descendants of deposed kings; and if in any case he found neither a king nor an aspirant, the fact may have been due to some accidental cause, and without inquiring sufficiently he may have assumed what he as a Roman would expect. At all events, such a state of things does not appear to have at any time existed in Ireland or in any part of it. The Irish always had a man, not an assembly, at the head of the state, and the system of electing a Tanist while the holder of the office was living, in addition to its making for peace on the demise of the crown, made an interregnum of more rare occurrence than in countries which had not provided a Tanist in advance. Ireland has on a few occasions been ruled by two monarchs jointly; and for a few years after the death of Malachy the Second, in the eleventh century, it was ruled by two judges who were not kings. But these were exceptional occurrences, and beyond them kingly rule was quite uniform.
The word Cing occurs in the Gaelic manuscripts as the equivalent of Ríg; but Ríg (pronounced Reeh) is the term generally employed. It is cognate with the Latin Reg–s = Rex. It did not designate precisely the same class of official as the word king now does. Primarily, and above all things, the ríg was the head and representative of his race and clan, the members of which were rather his kindred whose interests it was his duty to serve than subjects to be ruled; and the word ríg being considered as a generic term, there was no inconsistency in several ranks or classes of rígs flourishing at the same time and forming a sort of hierarchy, the members of which were mutually dependent on each other. Our ancestors aimed, in theory at least, at interdependence in all departments.
The lowest oirríg, regulus, or sub-king, or sub-king was the Ríg-Tuatha, a king of one tuath, or district, the people of which formed one organic state. As already observed, these tuaths were very numerous, but sometimes two or three of them that were nearly related had but one king. And where there were separate rulers, the term ríg was by no means rigorously adhered to. Various other descriptive terms were employed; but the word ríg is simple and convenient for our purpose.
The next in rank was the Ríg-Mór-Tuatha. He was a ruler of a number of united tuaths, each of which might have a ríg-tuatha of its own, subject in some respects to the Ríg-Mór-Tuatha.
The next class of king was called the Ríg-Cuicidh, a word implying that he had five ríg-mór-tuathas under him, each of whom in turn might have three, four, or more ríg-tuaths under him. This was the rank of the provincial king.
So long as the Ard-Ríg resided at Tara he may be considered, by reason of his exceptional privileges, to have formed a separate rank of royalty, or rather its head; but after the abandonment of Tara, since the Ard-Ríg was rarely able to enforce his rights, he may be considered as belonging to the class of the provincial kings.
The king of each tuath owed allegiance and tribute to the Ríg-Mór-Tuatha; the latter owed allegiance and tribute to the Ríg-Cuicidh; and the Ríg-Cuicidh owed allegiance and tribute to the Ard-Ríg. The special branch of law affecting the allegiance in each case, the amount of the tribute, the amount to be returned by the recipient of the tribute, and other constitutional matters, was contained in the Psalter of Tara as drawn up under the direction of King Cormac, and also in the ancient Book of Rights (if this be a different work); and much on the same subjects will be found in a later Book of Rights which still exists and has been translated by O’Donovan. The prerogatives, privileges, duties, and liabilities of the various kings within their own territories are fully laid down in the course of the general law; and when the clan system was in an efficient condition, so many forces acted in aid of the law, and a neglect of official duty affected so many persons that, in ordinary times of peace, such neglect must have been rare. The king was not in any sense the maker of the law, but its officer, and so limited and hemmed round in his office, and so dependent on his clan, that it was easier and safer for him to conform to the intention of the law and promote the welfare of his people than to become either negligent or despotic.
The office of Ríg, of whatever rank, was always elective, as was the office of king anciently among the Saxons. But the choice was restricted by custom in the case of the Ard-Ríg and provincial kings to a narrow circle of the flaith class called the Riogh–dhamhna or Damna Ríg (=Materia Principum), the members of which were required to undergo a very careful training, mental and physical. It was therefore as a rule confined to the family in possession. So long as there was an eligible member of that family, the kingship may be said to have been practically hereditary in that family, but not in any particular member of it. An eldest son did not succeed merely because his father had been king, if there was an uncle, nephew, brother, cousin, or other member of the Damna Ríg better fit for the position; and the Tanist was usually such a relative, and not a son. The same rules applied to the election of sub-kings, but being in rank not so far removed from the flaiths the distinctions were not so marked, and if the family in possession failed, the flaith best qualified was eligible. The law on the subject is expressed in the following words: ‘Every head defends its members if it be a goodly head, of good deeds, of good morals, exempt, affluent, and capable. The body of every head is his tribe, for there is no body without a head. The head of every tribe, according to the people, should be the man of the tribe who is most experienced, the most noble, the most wealthy, the most wise, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and to be sued for losses.’ No person not of age, stupid, blind, deaf, deformed, or otherwise defective in mind or body, or for any reason whatsoever unfit to discharge the duties of the public position, or unfit worthily to represent the manhood of the community, could be chosen for king or could hold the kingship; even a blemish on the face was a disqualification. Here were requirements enough, positive and negative, which not every man could satisfy. The method of choosing the king was not fully one of merit, nor fully elective, nor fully hereditary, but a combination of all three: and on the whole the office resembled as much that of president of a republic as it did that of a modern king.
The Ard-Ríg was not elected by the people at large, but by the sub-kings and flaiths of all Ireland, the same men who constituted the Feis of Tara. The provincial kings were elected by the flaiths and aires of their respective provinces. The king of a tuath was elected by the flaiths, aires, and probably all heads of families in the tuath. The immediate position to which the person was elected in each case was usually that of Tanaiste or Tanist (=Second), the king being living. The Tanist was a successor or heir-presumptive elected before his time. He sometimes acted as a sort of vice-president while the king lived. As soon as he in his turn became king, a new tanist was elected, so that there was rarely a direct election to the office of king.
The king was, of course, by virtue of his office, head of the State in general, whether in arms or in peace. He was the fountain of honour and of justice, and one of his duties was to appoint a brehon to administer law in his district. He had himself, in ordinary times, some magisterial jurisdiction. King Cormac, for example, is spoken of as a ‘righteous judge,’ and all kings are spoken of as hearing cases and pronouncing judgments. The nature or extent of this jurisdiction is not clearly stated, but I think it had to do mainly with criminal law, especially treason and the kindred crimes. If from any cause there was in his district no brehon, or the brehon was incapacitated, the king himself was bound to act as judge in cases calling for immediate settlement.
Wealth is mentioned among the qualifications for the kingly office, but in addition to his private wealth a considerable amount of land was set apart for the use of every holder of the office, what was deemed sufficient to support the dignity and bear the expenses connected with it. On this land there was always a dun. A provincial king usually had several mensals of this nature with a dun on each. ‘The residence of a king is always a dun, and there is no dun without a king.’
Professional men next demand our attention, and of these especially the Brehons. The laws were administered in Ireland by brehons, so called while so engaged. It is not clear that there was in early times, as there was in later, a distinct order of men so engaged and not otherwise—judges and nothing else, and there is some reason for thinking that this was an after-growth. In the older manuscripts the words druid, bard, and brehon appear to be applied to the same persons interchangeably and as if synonymous. The terms are, however, not synonymous, and never were, even when applied to the same person. One person being a very learned man might be all three; and probably this was so sometimes, and was always looked for in pre-Christian times. But, of course, its continuance was neither necessary nor possible. In some of the manuscripts it is said that legal jurisdiction was vested in the bards, the ‘just bards’ are spoken of as custodians of the law, and the old law itself is called by a name which may be translated ‘Bardic Law.’ Further, a man who administered the law judicially, whether bard or druid or neither, is called a Breitheam or judge; genitive Breitheamhuin, pronounced Brehon (another instance of the adaptation to English of the genitive of a Gaelic word). Here we have three apparently different classes of men connected with the law in some way; but in what that connection consisted, and what were their mutual relations, or rather their actual distinctions, is not clearly stated.
Sub-section 2.—The Druids.
Druids next claim consideration. One modern writer tells us that the Druids were ‘magicians and nothing more.’ Magicians, yes; ‘and nothing more’ must be rejected. The popular view of what they were is more nearly accurate than this. The druids were much more. They were above all things the priests of such religion as existed; and in that character were quite as highly venerated and as influential in Ireland as Caesar found them in Gaul. Their religion, if their many strange and conflicting views and practices may be considered as one system and called a religion, was, to our minds, degraded and degrading, and their ceremonies may appear to us silly or worse; we may think Crom Cruach very unworthy of worship; but what does all this matter if that religion was dear to the people as the essence of a spiritual life and the prime requisite for attaining eternal happiness and glory, and if it yielded to its adherents any of the consolations which religion affords and for which the human heart yearns? It cannot be doubted that in Ireland, as in Gaul, the most learned, the most sage, and the most virtuous men of the nation were druids or priests of that religion. Their superior learning enabled them to become more than priests; magicians if you will, but certainly philosophers, astronomers, judges, bards, literary men, musicians, physicians, seers or diviners of future events, and many other things, and may have given them a choice, almost a monopoly, of all the offices which required learning. Their magic consisted mainly in their superior knowledge in times of general simplicity; and I think they deserve to be called a learned priesthood. In those circumstances most of the brehons, perhaps nearly all, were druids; but all druids were not brehons, for the office of brehon was but one of a choice of accessory offices which their learning opened to the druids. This seems to account sufficiently for the connection of the druids with the law, and for the apparent opinion of the writers of old that the terms druid and brehon might be used interchangeably.
It is impossible now to determine whether at any time the office of brehon was restricted to the druids as an exclusive legal priesthood. Probably there never was a positive restriction, but only the practical one involved in the requirement of learning, which few laymen could then satisfy. But the administration of the law not being the special function of the druids as such, but only a sort of secondary string to their bow, they may be supposed to have bestowed more attention upon whatever their special function was than upon law. The law remained in the Bearla Feini, the old classical Gaelic in which it had been originally composed, and constituted a large and important part of the Filidecht or higher academic course through which both druids and bards should pass, and in which they should attain a certain standard of proficiency before being admitted to their respective professions. As that old language gradually became antiquated the laws became less accessible and less intelligible to others than those learned men; and yet the school knowledge of it, which had sufficed for them and was little more than an accomplishment, did not always enable them to deal satisfactorily with the legal difficulties of everyday life. It is easy to conceive that in such circumstances the law may sometimes have failed in its primary object of bringing justice home to the people. An evident want arose. The combined effect of the negligence of those two classes of men and the growing importance of law must have made it clear that the administration of justice ought not to be secondary to anything, but deserved the special and exclusive study of a distinct profession. To this profession laymen applied themselves in increasing numbers as the druids withdrew, until the administration of the law had got almost wholly into non-sacerdotal hands. Not being occupied with religion or with any other profession, nor hampered with the trivial formalities which the sacerdotal mind has always been so prone to create and magnify, these men could breathe a freer air, enter more sympathetically into the views and feelings of both parties to a suit, and arrive at a decision more satisfactory to both, than is as a rule possible to men who, though in the world, are best when they are not of it.
In Rome also the pagan priests were the earliest judges and custodians of the law. They greatly hampered its justice and its efficiency by the invention of useless technicalities, until at length, in 451 B.C., the Romans resolved to reduce their laws into a written and fixed form, and called upon the priests to produce the laws for that purpose; when, lo, it was found that the priests, after all, really had no substantive laws to produce, that they had completely lost what it had been their business and their pretence to guard, and had guarded nothing but their own technical inventions, mainly concerned with mere procedure (or its prevention), and mainly detrimental to the free flow of justice. Hence the Romans in drawing up their Twelve Tables were obliged to resort to laymen of common-sense, and even to consult neighbouring nations as to the very rudiments of law.
Sub-section 3.—The Bards.
Now with regard to the Files or Bards. They did not, like the druids, become extinct on the extirpation of paganism, but continued to flourish and to form an important class down to modern times. They were anciently much more than the present popular conception of them implies, for they were the historians, genealogists, teachers, and literary men of the nation, some of them also being druids and some judges; but as regards the bards of Christian times, after the monks had taken learning and teaching under their special care, the present conception of the bards is fairly accurate, and therefore their connection with law is not at first sight obvious. Little or no such connection continued to exist, and the presence of the bards in battle and their thrilling writings relative thereto remind one more of the war correspondents of our own time than of lawyers. Anciently some of them were judges in addition to being bards, as we have seen in the case of Dubhthach; but these instances were few even then, and not at all sufficient to explain the intimate connection between the bards and the older law. The secret of that connection lies elsewhere. Their chief connection with law was not in the character of judges, but in their proper character of bards. In this their true character there was then a use for them amounting almost to necessity. Accustomed as we are to writing, printing, and other modes of preserving expressions of thought, we are liable to forget that the laws we are considering originated when those arts were unknown, when in northern climates men preserved their learning in their heads instead of on their shelves, and communicated it by their tongues instead of by ink and paper. Verse always has been, and still is, easily committed to memory and retained there; and the more harmonious it is, the more effective and reliable for this purpose. To give this quality to things of value, as law, history, and genealogy, not to speak of pure literature, to which this quality was then natural, was in such a time as important a service as a bard could render to his nation. It imprinted those things, not on paper, but on brains; fixed them in heads where otherwise they would not abide, and rendered them capable of being transmitted from person to person, from clan to clan, from generation to generation, from times far beyond the reach of history until well into historic times. This use of poetry was clearly very important, and hence the originals of almost all our very early manuscripts, on law as well as on other subjects, were in verse. It was the duty of the bards to reduce the laws into rhythmical form, and they retained that function in their hands for some time after the actual necessity for it had ceased to exist. Nothing but a sense of duty could induce a body of learned men to take such wonderful trouble with a subject so unattractive and unpromising. This fully accounts for the connection of the bards with our ancient law and explains the sense in which they were its custodians; and it also accounts for the abnormal development of the bardic profession in Ireland, and for the extraordinary amount of archaic Gaelic literature preserved. The combined effect of metre and rhyme was to render tradition at once easy and reliable. To take the Senchus Mór for example, though now arranged prose-like on the paper, portions of the text are in regular verse; not merely in metre like blank verse, but in rhyme. The editors say that whether this is due to the fact that two of the compilers of the Senchus Mór were poets, or to the fact that the pre-existing laws of Ireland were mostly in rhyme, or partly to both these causes, is an open question. Perhaps so. I think most students of the subject will for themselves consider the question as closed, and feel quite satisfied that the ancient laws of Ireland were mostly in rhyme, or in an alliterative assonance having all the properties of rhyme for art and memory, from necessity before the art of writing was known, and from the unexhausted force of a long-established usage after that art had become known. The art of writing became known to some extent in Ireland about the first Christian century, or perhaps a little earlier; its practice was encouraged and extended under King Cormac, in the third century, and from his time downwards; but it was not until the introduction of Christianity in the fifth century that writing became general. During this period, at all events, the time-honoured custom of making and retaining the laws in rhyme undoubtedly held its ground; so that not alone did the compilers of the Senchus Mór find the laws in rhyme, but they found the old usage still of quite sufficient force to require from themselves a semblance of reducing into rhyme any new laws then made, or modifications of the old. Rhymed laws were still the ideal aimed at. Accordingly there is reason to believe that the whole text of the Senchus Mór, written in the fifth century, was in rhyme, and in the introduction, written at a later date, is included Dubhthach’s fine poem as the most suitable introduction. This was probably the only introduction in the first instance, the work being then metrical and rhymed throughout. Wherever in the text the rhyme is now absent or broken the reader may conclude that there the various transcribers have been carrying on the operations I have endeavoured to explain. Finding it necessary to substitute new for obsolete words, and to translate some passages, and no longer a practical reason for reducing these emendations into rhyme, that ceremony was omitted, and thus while the law was simplified the verse was spoiled. The commentaries were not composed by bards at all, and so far as they are original they are not rhymed; but in them are frequently quoted fragments of traditional law for the purpose of driving home their conclusions, and such fragments are nearly all in rhymed metre.
The ancient cultivation of memory is one of the arts that have fallen into disrepute. It was carried, in other countries as well as in Ireland, to a degree of perfection now hardly credible. Nor were metre and alliteration, as subsidiary to it, peculiar to Ireland or to the Irish laws. The perfection attained in these was peculiar, and rhyme was peculiar. To the absence of this bardic perfection the poverty of other nations in archaic literature is due: to its presence our wealth in that respect is due. For other nations the remote past is a blank: for us it lives, mainly through the skill of the bards. The bards were liberally provided for by their contemporaries: we may enjoy their labour without having to pay for it.
Sub-section 4.—The Brehons.
Beginning at the point where all three qualities were possessed and all three functions discharged by one man, the functions had expanded and become differentiated until they formed three separate professions, followed by three distinct classes of men—Druids, Bards, and Brehons—this last being the newest class in the order of development. So long as this development proceeded, the legal profession was perfectly open to every one who chose to study the law. A druid, or a bard, or a man who was neither, was perfectly free on qualifying himself to become a brehon. It is now impossible to fix the date at which this development was complete, and the brehons stood recognised as a professional class apart from druids and bards. It was probably complete in the first century of the Christian era, certainly while Ireland was still wholly pagan; and there can be no doubt that it was a distinct advantage to the people and to the nation.
Later on a further change occurred (for it can hardly be called a development), namely, the legal profession, in common with most professions, arts and callings, became to a large extent hereditary, not by force of law, but by force of custom, and in obedience to a general tendency of the times. There never was a law in Ireland actually making any profession or calling hereditary, or imposing any restriction whatever on the natural right to learn and practise what one pleased. The tendency was spontaneous, or due to some general cause. In our view it was a backward tendency. But that proves nothing. The same may be said of many movements far more modern. Our desire is to see, so far as we can, our ancestors as they really were, not to make them fit into theories of what they should have been.
Whatever may have been the prevailing force in making callings become hereditary, no doubt it was materially assisted by the custom of rewarding distinguished merit, and the performance of public duties, with gifts of free land. This is a species of reward not unknown in modern times; but it was obviously more convenient in ancient times when there was little or no money with which to reward men. Men occupying official positions, from the king downwards, were provided with free lands. Many of those positions were attainable only by careful training and marked ability of the kind required. Bards, brehons, and other public officers, men distinguished in the healing and other arts, and in the handicrafts most important for the well-being and security of the community, were similarly provided for. A man having once acquired land in this way would have a strong motive for transmitting his profession to his children, since it was only by doing so he could transmit the land to them; in addition to which, his own was the particular branch of knowledge which he could transmit, and they learn with least trouble and least expense. Here was a two-fold motive for making both the profession and the land attached to it hereditary.
In the case of the brehon’s office this powerful cause did not operate alone. There were attached to the office manuscripts, in those early times of great value as legal documents, and perhaps still more precious privately as family heirlooms, the preservation of which, after his death, was an object of the most intense solicitude to every brehon worthy of the name. It was but human that a brehon should desire to entrust to his own offspring a charge so sacred, and but human that they, for his sake and for its own intrinsic value, should bestow more care upon such a trust than could be expected from strangers. In respect of the preservation of documents, and perhaps in other respects also, we of later times are much indebted to the hereditary custom, however that custom may in practice have militated against efficiency.
Still, although these causes must have acted powerfully, the office of brehon may, in obedience to the general tendency of the time, have become hereditary in cases where they did not exist. There were at all times non-official brehons, who were not attached to any clan and who held no land as a reward, but lived independently by their profession, and yet in these cases also the profession became hereditary.
Nor does the fact of having become hereditary appear to have led to the degradation and abuse which might be expected from it in our time, nor to have rendered the office of brehon more easily accessible than before. The essential standard of knowledge was in no degree lowered. The preparatory course of study continued to extend to twenty years. And of course the moral and other requirements were in no degree relaxed. Success as a brehon waited upon ability alone, and failure was attended by so many risks that the profession offered no attraction for unqualified persons. The brehons, like the old Saxon judges, but unlike modern judges, were always liable to damages, disgrace, and other grave punishments if their judgments were illegal or unjust.
The law says, ‘No person is qualified to plead a cause in the high court unless he is skilled in every department of legal science.’ There were several classes of advocates or pleaders, corresponding, perhaps, to Queen’s Counsel and Barristers of the present day. There were, besides these, professional lawyers of an inferior class somewhat analogous to solicitors. It has been stated that one uniform course of study was required, no matter what branch of law a man intended to follow; that having gone through that course he might become a brehon, an ollamh, an advocate, or a law-agent, according to his personal predilection, ability, and prospects of practice. In my opinion, this is correct only pro tanto. The course may have begun with the duties of the law-agent, proceeding upward in succeeding years until at the end of the brehon’s term it included all branches of law, and it may have been the same so far as the other gentlemen pursued it; but the brehon alone pursued it exhaustively, and devoted twenty years of his life to that task. There were, however, various distinctions between brehons and advocates, and among the brehons themselves, which are so difficult to follow that modern writers are not at all agreed about them. In a society wholly different from ours in its elements and construction those distinctions must have been made on principles different from any now operating. It does not follow that they were not proper distinctions. Our embarrassment is not necessarily due to defect in those laws, but to our ignorance of them, to our want of some missing link, perhaps many missing links, in their consequential chain.
Each king, and each chief who was sufficiently powerful, maintained a brehon, who was in a sense the brehon of the territory. But the law did not require this if there was an unofficial brehon in the district. The brehonship was rather a profession than a state department. The judicial institutions were not strictly permanent with a regular order of succession maintained systematically as men dropped off, and wielding power given and sustained by the state, as we now see. When an official brehon had died or ceased to act, unless there were cases pending, or somebody sought his office with the land that might have attached to it, there was no immediate reason for appointing a successor; and with regard to non-official brehons, when they were removed by death or otherwise they can hardly be said to have successors at all, or if so said it was Nature supplied them in her own good time. The scope of a brehon’s jurisdiction is not laid down in the law, simply because no brehon had exclusive jurisdiction anywhere, whether he was provided with free land or not, whether his office had become hereditary or not. The jurisdiction of official and of non-official brehon alike was generally determined by the suitors. A defendant should consent to have the case raised against him tried by some brehon, or else judgment would go against him by default. With this limitation the jurisdiction was purely consensual; the parties were free to settle their case in private or to submit it to any brehon they pleased. Of the brehons within reach, if more than one, suitors displayed a preference for one beyond the rest, and probably as a rule their choice was determined by his superior aptitude in unravelling knotty problems and giving decisions consonant with justice. Thus the brehon’s position resembled that of an eminent Roman jurisprudens, whose opinion was eagerly sought and paid for by people in legal difficulties. He heard the case, gave it the necessary consideration, and pronounced a decision in accordance with law and justice. This decision, though called a judgment, and eminently entitled to that name, was not precisely what the word judgment means with us. It was rather a declaration of law and justice as applied to the facts before him, rather an award founded in each particular case on a submission to arbitration. There was no public officer whose duty is was to enforce the judgment when given. The successful party was left to execute it himself. In doing this he was assisted by the inherent equity of the particular judgment itself, by the force of an immemorial law universally obeyed, by public opinion informed by the generally prevalent love of justice, by the defendant’s knowledge that delay, evasion, or resistance would be futile, would disgrace him and increase the penalty, and, above all, by that self-adjusting network of duties and obligations, involved in, and enforced by, the clan system. These combined forces went far to render executive officers of the law, as sheriffs, bailiffs, and police, unnecessary. They were practically irresistible, for they could go the length of outlawing a man and rendering his life and all he possessed worthless to him if he dared to withstand the execution of what a brehon had declared to be the demands of law and justice. They were quite as effectual as is what we now call the arm of the law, notwithstanding John Austin’s theory, that there can be no law except it be the command of a sovereign.
There were certain cases which a brehon provided with free land should hear and determine without payment. Beyond these cases, the official brehon and every other who tried a case were entitled to be paid by the unsuccessful litigant certain fees, which were fixed by the law according to the nature of the cases, the trouble they entailed, and, in civil cases, the amount of property involved. The amount of the fee was a matter of calculation, according to certain well-known rules, and it was always included in the total amount to be paid under the judgment by the unsuccessful party. In criminal cases one-twelfth of the beaten party’s honour-price was the fee to be paid to the brehon. If the person charged was found guilty he should pay this in addition to any other fine imposed: if the accuser failed to sustain his charge he had, if so sentenced, to pay the judge in addition to compensating the accused, and there was no occasion as now for a second trial.
When one brehon had adjudicated on a matter submitted to him, there could be no appeal to another brehon of the same rank; but there might be an appeal to a higher court, provided the appellant gave security. The grounds of appeal most frequently noticed are ‘sudden judgments,’ meaning probably those given without due consideration. If the facts of a case had undergone a material change after trial and judgment, as if the defendant in a criminal case had been tried and fined for assault, and after the judgment the person assaulted had died, a new trial might be had. In giving judgment in this second trial the judge would, of course, have regard to what was done under the first judgment.
Sub-section 5.—The Ollamhs.
A certain writer boldly tells his readers that there were three class of judges, the Ollamh (pronounced Ullav) being the highest or chief judge. Most other authorities on the subject say that the brehons were judges, the ollamhs professors or teachers of law. The latter view is correct subject to the following observations. Every brehon was an ollamh, inasmuch as he was obliged to obtain the degree of ollamh before he could become a brehon. Hence a man might practise as a brehon and teach law in his own house as an ollamh; and one who had distinguished himself in both these respects might be regarded as, in a sense, a chief judge. But the use of that designation is misleading. Both ollamhs and brehons might as well be called bards on the ground that both were obliged to take a degree in poetry. A loose application tends to involve those terms in the confusion from which we have just taken the trouble to extricate them. Ollamh practically meant a doctor, professor, or teacher of any branch of the Filidecht taught in the higher schools. It meant a possessor of knowledge whose profession it was to impart that knowledge. The right to the distinction was acquired by a course of study extending over twelve years’ ‘hard work,’ followed by a public examination; and the distinction was formally conferred by the king or chief of the district; after which the ollamh ranked next to the king or chief in the order of precedence, acquired a number of valuable privileges, was respected by the community, and highly favoured by the law. Every king or chief who could afford it selected one distinguished ollamh of each branch of knowledge, and maintained this staff of specialists at his court in order to be able to deal with all matters affecting his interests and those of his people. These men were very generously provided for, indeed extravagantly one would think. Other ollamhs made their living by teaching independently.
Before passing quite away from the legal system, a class of men, though not professional, connected with an important branch of the law may be noticed. They were drawn from the lay community in each cinel and tuath, and to twelve of them, as to a sort of jury, certain matters in dispute requiring knowledge other than legal were submitted, as, for instance, the manner in which land should be newly apportioned under the Irish system of gavelkind. The law determined the proportions, provided the quality of the land was uniform and other circumstances equal. As this would rarely happen in practice, these twelve men determined the actual proportions. They also arranged in the early part of each year how the common lands of each sept should be used that year. What the relations of those men to the clan were, what the qualification for the office, how the office descended, &c., are left open questions; and this is perhaps the best thing to do in the present neglected condition of the Brehon Laws. Still I should not be surprised if it were found on inquiry that it was not an office at all, but a power inherent in a certain status, and that every flaith–fine, or paterfamilias, was entitled to exercise it unless he had in some way forfeited his title.
Flaith may be pronounced Flah. The Flaiths corresponded in some respects to modern nobles, and like them originated in an official aristocracy. Theoretically they were public officers of their respective clans, each being at once the ruler and representative of a sept, were elected on the same principle as the kings, required similar qualifications according to rank, and were provided proportionately with free lands to enable them to support the dignity and perform the duties of the office. They also, like the kings, were allowed to hold at the same time all other property which they might have had or might subsequently inherit or otherwise acquire; and their position gave them some facilities of requisition which other men did not possess. Their official land was in law indivisible; an apparent restriction which in practice became decidedly advantageous to them as a class, as we shall see.
The law gave the right of succession to the most worthy member of the fine of the actual flaith, subject to the right of the clan to determine by election what member of the fine was in fact the most worthy. Hence the flaith’s successor might not be his son, though he had sons, but might be a brother, nephew, cousin, or other member of the fine; and while the flaith’s private property was on his death divisible among the members of his fine like that of any other individual, his official property with all the permanent structures thereon descended undivided to his successor, in addition to any share of the private property which might fall to that same person as a member of the fine. In course of time the hereditary principle encroached upon and choked the elective, the latter fell into desuetude, and the number of flaiths ceased to correspond to the number of septs. From the office and the land attached to it having been held successively by several succeeding generations of the same family, the flaith gradually learned to regard the land as his own private property, and the people gradually acquiesced; and I find it laid down by a modern writer as the distinguishing mark of a flaith, that he paid no rent, and that a man who paid no rent was a flaith though he owned but a single acre. This writer completely lost sight of the fact that the flaith was properly an official, and the land he held official land, and not his private property at all. The system under which he lived, and of which he formed a part, laid upon him certain duties for which the lands and revenues assigned him were a provision and a reward, and it was only through the decay and collapse of that system that he could venture to call those lands and revenues his own. The nature of his duties can most conveniently be explained when discussing the next succeeding class of society towards whom most of them were due and owing; and there also it will become very obvious that there was no such inadequate provision made for a flaith as a single acre would have been. It will suffice to mention here that a very high private-property qualification should have been possessed by the family for three successive generations before one could become a flaith at all; and then the official property was given in addition to that. In fact, the flaiths were rather too well provided for, and were so favourably circumstanced that ultimately they almost supplanted the clan as owners of everything.
As the sea attracts all waters, as power and wealth attract to themselves more power and more wealth, the flaith class tended to become great at the expense of the people beneath them. They were constantly taking liberties with, and extending their claims over, land to which they had no just title; and the law under which official property descended contributed to the same result. The idea of private property in land was developing and gathering strength, and land was generally becoming settled under it. The title of every holder, once temporary, was hardening into ownership, and the old ownership of the clan was vanishing, becoming in ordinary cases little more than a superior jurisdiction the exercise of which was rarely invoked. During the time of transition I think the flaith class encroached upon the rights not alone of those below them but of those above them also; that it was chiefly their greed, pride, and disloyalty which led to the breakup of the Irish Monarchy; and that it was for many centuries in their power to restore that monarchy, and with it an independent nationality, had they been sufficiently patriotic.
The flaiths, by virtue of their office, had legal jurisdiction in all matters coming under Urradhus law, or law locally modified. There were various grades or ranks among the flaiths as among modern nobles, but determined by the number of clansmen who paid them tribute; and the territorial limits of a flaith’s jurisdiction was wide or narrow as his rank was high or low. When the legal system was in proper working order, plaints involving Cáin law, that is, the law contained in the Senchus Mór and administered by the brehons, were required to be lodged at the residence of the Aire-ard before being submitted to the brehons.
A great many varieties of aires are mentioned in the laws; but generally the aire (pronounced arra) appears to have been considered as the type of the full citizen in possession of full legal rights. It was a term not strictly applied, rather a measure of status which different classes might attain than the designation of any particular class. The flaiths and those approaching that rank were aires; and I think every head of a fine was in status an aire though not so called. The aire most frequently spoken of and the aire–desa were recent accessions to the flaith class from the Céile class, belonging by birth and descent to the latter, but possessing sufficient property qualification for the former; and, so far as there was progress, may be considered as in a state of transition. The aire–desa was the lowest of the flaith class. Part of his qualification was to have ten free clansmen paying tribute to him. The numbers paying tribute to the different grades of flaiths ranged from ten up to forty, the flaith’s rank, honour-price, &c., ranging proportionately. The bo–aire was a man whose wealth consisted mainly in cattle. He was not a flaith.
Freemen Owning Property.
In pursuance of our plan we now proceed to consider the free clansmen who held property. Property, for the most part, meant land, the cattle fed upon land, and the crops grown upon land. Our ancestors all lived in the country and mainly by industries connected with land. They had numerous villages, the earliest of which are indicated by the still existing raths; but they had few towns so large: as to form distinct communities with life and interest different from those of the country. Our oldest maritime cities are of Danish origin. Hence the Brehon Laws are in the main applicable only to country life, and contain few rules specially applicable to town communities. The vast majority of freemen owning property were farmers, called Céiles, and for simplicity of description we will take this class as the standard.
The contemporary institutions of any given country are always so interwoven that it is difficult to discuss them separately, and impossible to give a complete account of one without giving as part of it some account of others connected with it. This is emphatically true of a country where society is organised on the system of clan, sept, and fine. That system is as soil in which all other institutions, like trees, have their roots. I have already had to anticipate myself in some respects. In order not to do so to a confusing extent, and in order to turn from hence on subsequent matters all the light we can, it will be necessary to deal, however briefly, with the clan system before treating specially of the Céiles, and to deal with the land system while discussing the Céiles.
Sub-section 2.—The Clan System.
A knowledge of the real nature of the clan or tribal system would be a master-key to much connected with ancient Ireland that is now mysterious, and would remove many stumbling-blocks, if not all. Possibly the lost books, and lost portions of books, would have furnished this key and given us glimpses of life of which without them we can never dream. They would, at the very least, have illuminated some obscure passages in the existing remains which are now subjects of doubt and liable to misinterpretation. But without them full knowledge of this most interesting subject is lost to us, and if it be recoverable at all can only be so by the expenditure of much labour of many minds. For although the existing remains are in many parts extremely familiar with social and domestic economy, providing even for the legal enforcement of some duties which with us are of merely moral obligation, still the information given, clear enough no doubt for those for whom it was intended, who knew its objects as self-evident facts and were themselves in the current of actual life, is in many respects not clear to us who grope in the dry channel through which that current passed. On certain points no information at all is given; and although great trouble is taken to explain other points, the writers, so to speak, do not begin at the beginning, but start on an assumed basis of knowledge which we no longer possess. We seek in vain for the why and the wherefore of things which apparently were so well known to the writers and their contemporaries that they did not need to be stated; and though much is said round and round a subject, the fundamental facts are evasive. From the time the system began to break up the prolonged agony of the nation has prevented the production of a writer capable of rescuing its fading features from oblivion. We are therefore obliged to pass over the subject very lightly and with uncertain tread, though it is really the most interesting branch, not alone of the law, but of the whole social and political economy. A few facts only appear to be pretty conclusively ascertained.
Mr. Seebohm, a diligent searcher after the truths of antiquity so far as regards England, comes to the conclusion that the tribal system was almost, perhaps wholly, universal—that is to say, that every nation has had its tribal period. He says, ‘It is confined to no race, to no continent, and to no quarter of the globe. Almost every people in historic or prehistoric times has passed or is passing through its stages.’ This is so; but while in continental countries, owing to international friction and other external influences, tribes generally suffered disintregation and dissolution, and ultimately disappeared, in Ireland, owing mainly to its remoteness, insularity, and freedom from those influences, the tribal system, while becoming Hibernicised in some respects, perfected and strengthened itself, and attained a highly artistic degree of development such as it probably never reached on any continent; and it was made, and long continued to be, the basis of right, duty, property, law, and civilisation itself.
Tuath, Cinel, and Clann, were the words used interchangeably to denote what we now call indifferently a clan or tribe. It resembled the Gens of ancient Rome in that all the members of it claimed descent from a remote fine, and from a common ancestor as head of that fine, and were therefore kinsfolk, were entitled severally to various rights dependent on the degree of relationship and other facts, and formed collectively a state, political and proprietorial, with a distinct municipal individuality and life, with a legislature of its own and an army in gremio; but in these two latter respects slightly subject to, and forming a member of, a superior state consisting of a federation of similar communities. Each clan was composed of a number of septs, and each sept was composed of a number of fines. Kinship was the web and bond of society throughout the whole clan; and all lesser rights whatsoever were subject to those of the clan. Theoretically it was a true kinship of blood, but in practice it may have been to some extent one of obsorption or adoption. Strangers settling in the district, conducting themselves well, and intermarrying with the clan, were after a few generations indistinguishable from it. A chief or a flaith also occasionally wished to confer on a stranger the dignity and advantages of clanship—practically meaning citizenship—and when he had obtained the sanction of the clan assemblies, the stranger was adopted in the presence of the assembled clan by public proclamation. In the course of time the name Tuath came to be applied to the district occupied by a clan, and Cinel (pronounced Kinnel) was then the word used to denote the clan itself. Fine (pronounced Finna) was also sometimes used in the broad sense of clan, and this was not strictly incorrect since every clan originated in a small fine; but the word fine properly meant one of a number of sub-organisms of which the clan consisted. It was a miniature clan, and in fact the germ of a clan and the real social and legal unit. It was considerably more comprehensive than our word family. It has been compared with the Roman familia, but it was more comprehensive than even that. When complete it consisted of the Flaith–fine (also called Ceann–fine), and sixteen other male members, old members not ceasing to belong to it until sufficient new members had been born or adopted into it, upon which event happening the old were in rotation thrust out to the sept, and perhaps began to form new fines. Women, children, and servants, did not enter into this computation. The flaith–fine, or paterfamilias, was the head and most important member of the group, in some sense its guardian and protector, and was the only member in full possession and free exercise of all the rights of citizenship. All the members had certain distinct and well-recognised rights, and, if of full age, were sui juris and mutually liable to and for each other; but so long as they remained in the fine, the immediate exercise of some of their rights was vested in the flaith–fine, who should act for them or in whose name they should act. ‘No person who is under protection is qualified to sue.’
There are various conflicting theories as to the persons of whom and the manner in which this organism was composed, and even as to whether it was in fact ever composed or ever existed except as a legal fiction; and no explanation of it or conjecture about it is free from difficulty. Having regard, however, to the frequent mention of it, and of the ‘seventeen men’ of whom it consisted, by various legal and other writers at times far apart and in various connections, it is quite impossible to believe that it was fictitious; but in practice it may not often have attained or long retained that perfect organisation which the law contemplated; and the law itself may have contemplated different things at different times. Whether the members of it became members on their birth, or on attaining manhood and acquiring property; whether they included or represented all within the fifth degree of relationship, or all within the seventeenth degree, are matters in dispute. Without presuming to settle them, let us construct a provisional fine for the purpose of conveying some idea of what it was like. When complete it consisted of ‘seventeen men’ who were always classified in the following manner:—
- The Geilfine consisted of the flaith–fine and his four sons or other nearest male relatives, most of whose rights were vested in him, who on his death were entitled to the largest share of his property, and would succeed to the largest portion of his responsibilities.
- The Deirbhfine consisted of the four male members next to the foregoing in degree of relationship to the flaith–fine, upon whom, contingently, a smaller share of his property and responsibilities devolved.
- The Iarfine consisted of the four males whose degree of relationship was still farther removed, and upon whom, contingently, still less property and responsibility devolved.
- The Innfine consisted of four males the furthest removed from the flaith–fine, upon whom, contingently, the smallest portion of his property and responsibility devolved.
On the birth of a new male member in the first of these groups (or, according to a more probable theory, on his becoming a man and owner of property), the eldest member of that group was crushed out to the second group, the eldest member of the second group was crushed out to the third, the eldest member of the third was crushed out to the fourth, and the eldest member of the fourth, if he had not died, was crushed out of the fine altogether, and became an ordinary member of the sept, or clan, with no special rights or responsibilities in connection with his former flaith–fine. Thus the members of the groups were cast off like the coats of an onion, not all at once, but gradually, the groups themselves remaining complete all the time, and never exceeding four members each. And as they were cast off they suffered a loss of rights, but gained in freedom of action and freedom from liabilities, and the flaith–fine ceased to represent them, act for them, or be responsible for them. The members of the fine also owed a mutual responsibility to each other, were bound in certain cases to enter into suretiship for each other, were liable to compensate for crimes committed by any one of them if the criminal failed to do so; and in general the law held that there was a solidarity among them. A member who became a criminal was, of course, primarily liable for his own crimes. It would also appear that a person otherwise entitled to become a member in a certain event, forfeited that right, with all the advantages attached to it, by crime. My own opinion is that the members of the fine were all full-grown men living on divisions of a farm which had been originally one; yet that the group included only persons within the fifth or sixth degree of kindred, and did not extend to the seventeenth, and that the organisation was a natural outcome of the ordinary sentiment of family affection, perhaps somewhat intensified, but at all events systematised and enforced by law.
Various other fines are mentioned, and the word fine is used in a number of combinations; but the organism provisionally outlined is the only one of the name of real importance; and the text, after stating much about the seventeen men, adds, ‘It is then family relations cease.’ Presumably it was then the rights of inheritance and the dangers of liability also ceased. Where in the system one should look for the exact counterpart of the modern family is not clear; nor is it clearly known whether the number of women, their presence or absence, at all affected the constitution of the fine. The original purpose and main object of the whole system are, for lack of true knowledge, matters of much conjecture. It is probable that the system continued perfect only so long as the Celtic race remained pure and predominant, and that it became disorganised in the course of the thirteenth century.
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.
Sub-section 3.—The Céiles and the Land Laws.
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 Mór. 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 in reality. 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 Mór 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.
Sub-section 4.—Devolution of Property.
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 this first, 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 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.
Sub-section 5.—The Elizabethan Atrocities in their Relation to Land.
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-Ríg. 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.
Freemen Owning No Property.
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.
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.
Sub-section 2.—Bothachs and Sen-Cleithes.
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.
Sub-section 3.—The Fuidhirs.
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 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 could not do with the clansmen. The daer fuidhirs, so long as they remained such, could hold no land whatever for any term, and no contract made with them had any binding effect. They worked for the flaith, and by means of their cheap labour he was able to cultivate his land, and some of the common land of the clan if it suited him. Both classes of fuidhirs helped the flaith to encroach on the property of the clan. Hence he had an interest in increasing the numbers of fuidhirs, and with their increase his dependence on the clan in some respects diminished. The moral and material interests of the free clansmen leant the other way. They disliked the presence and still more the increase of fuidhirs. The policy of the law, too, was distinctly and uniformly adverse to slavery and to the introduction and keeping of fuidhirs, and it imposed some checks on the practice. For the performance of servile labour for the benefit of the community it allowed rather than entitled chiefs and flaiths having control of districts to keep a limited number of fuidhirs in proportion to the size of their respective districts. This particular restriction as to number does not appear to have been operative. The law, however, held the chief or flaith responsible to his clan and to his king for all legal liabilities arising from the acts of fuidhirs. It made his rank and privileges depend on the number of céiles in his district. It bound him to be ready when required to bring a certain number of armed men into the field of battle, and as the fuidhirs were neither bound nor entitled to take part in military operations at all, this demand could be satisfied only by free clansmen. For all these reasons, however the flaith might desire to increase the number of fuidhirs for his personal advantage, he could do so directly at the expense of the céiles only to a limited extent. In other ways also the law discouraged the introduction of fuidhirs; and when they had been introduced it favoured and facilitated the well-being and emancipation of such of them as were not criminal. Therefore all families did not remain permanently in this kind of servitude but gradually rose from a lower to a higher degree according to a certain scale of progress, unless they committed some crime which would arrest that progress and cast them down again. This progress was arranged according to the time a fuidhir family had resided in the territory, and its thrift as evidenced by the amount of wealth acquired, subject to the effect of conduct. Though a flaith might not keep any bargain with a daer fuidhir, if as a fact he let land to him and did keep the bargain, a status began to be acquired. In the third generation the fuidhir family attained some partial connection with the clan and a foothold in the soil, so that they could not be driven away except for a crime. As time went on, if the progress was maintained, the rights of their descendants increased and expanded, they gradually intermarried with the clan and became indistinguishable from it, and their origin was forgotten.
In later times as the flaiths assumed the character of lords, all poor people, whether originally free or not, gravitated towards the condition of the ancient fuidhirs; and under Queen Elizabeth the majority of the Irish people were indiscriminately reduced to almost the same level. So they and their descendants remained for almost three centuries.