| Brehon Laws (Part Two) |
| 5. The Laws relating to Land Land originally common Property It would appear that originally - in prehistoric times - the land was all common property, belonging to the tribe, not to individuals, and chief and people were liable to be called on to give up their portions for a new distribution. But as time went on, this custom was gradually broken in upon ; and the lands held by some, after long possession, came to be looked upon as private property. As far back as our records go, there was some private ownership in land. Five ways of holding Land Within historic times the following were the rules of land tenure, as set forth chiefly in the Brehon Laws, and also in some important points by early English writers. The tribe (or aggregate or tribes), under the rule of one king or chief held permanently a definite district of the country. The tribe was divided, as already described, into smaller groups-clans or septs - each of which, being governed by a sub-chief under the chief of the tribe, was a sort of miniature of the whole tribe ; and each clan was permanently settled down on a separate portion of the land, which was considered as their separate property, and which was not interfered with by any other clans or septs of the tribe. The land was held by individuals in some one of five different ways. 1. The chief, whether of tribe or of the sept, had a portion as mensal land, for life or for as long as he remained chief. 2. Another portion was held as private property by persons who had come, in various ways, to own the land. 3. Persons held, as tenants, portions of the lands belonging to those who owned it as private property, or portions of the mensal land of the chief - much like tenants of the present day: these paid what was equivalent to rent - always in kind. The term was commonly seven years, and they might sublet to under-tenants. 4. The rest of the arable land, which was called the Tribe-land - equivalent to the folc or folk land of England - forming by far the largest part of the territory, belonged to the people in general, the several subdivisions of it to the several septs, no part being private property. This was occupied by the free members of the sept, who were owners for the time being, each of his own farm. Every free man had a right to his share - a right never questioned. Those who occupied the tribe-land did not hold for any fixed term, for the land of the sept was liable to gavelkind (below) or redistribution from time to time - once every three or four years. Yet they were not tenants at will, for they could not be disturbed till the time of gavelling; even then each man kept his crops and got compensation for unexhausted improvements; and although he gave up one farm, he always got another. The non-arable or waste land - mountain, forest, bog, etc.-was Commons-land. This was not appropriated by individuals; but every free man had a right to use it for grazing, for procuring fuel, or for the chase. There was no need of subdividing the commons by fences, for the cattle of all grazed over it without distinction. This custom still exists in many places all through Ireland. 5. The portion of territory occupied by each clan or sept commonly included land held in all the five ways here described. It should be observed that the individuals and families who owned land as private property were comparatively few, and their possessions were not extensive: the great bulk of both people and land fell under the conditions of tenure described under the Fourth and Fifth headings. Tenants: their Payments and Subsidies Every tribesman had to pay to his chief certain subsidies according to his means. Those who held portion of the tribe-land, and who used the commons-land for grazing or other purposes, paid these subsidies of course; but beyond this they had no rent to pay to any individual for land held or used under headings four and five described above. The tribesman who placed himself under the protection of a chief, and who held land, whether it was the private property of the lessor or a part of the general tribe-land, was, as already explained, a Céile [cail'eh] or tenant; also called féine and aithech, i.e. a plebeian, farmer, or rent-payer. But a man who takes land must have stock - cows and sheep for the pasture-land, horses or oxen to carry on the work of tillage. A small proportion of the ceiles had stock of their own, but the great majority had not. Where the tenant needed stock it was the custom for the chief to give him as much as he wanted at certain rates of payment. This custom of giving and taking stock on hire was universal in Ireland, and was regulated in great detail by the Brehon Law. Every tenant and every tradesman had to give his chief a yearly or half-yearly tribute, chiefly food supplies - cows, pigs, corn, bacon, butter, honey, malt for making ale, etc.- the amount chiefly depending on the quantity of land he held and on the amount of stock he hired. Some tenants were obliged to give coinmed [coiney], that is to say, the chief was privileged to go with a retinue, for one or more days to the house of the tenant, who was to lodge and feed them for the time. This was an evil custom, liable to great abuse ; and it was afterwards imitated by the Anglo-Norman chiefs, who called it coyne and livery; which they chiefly levied from their own people, the English settlers. They committed great excesses, and their coyne and livery was far worse than the Irish coinmed, so that it came at last to be forbidden by the English law. There was a numerous class of very poor unfree tenants called fudirs, who were generally in a very wretched condition. They were tenants at will, having no right in their holdings. A fudir was completely at the mercy of his chief, who might turn him off at any time, and who generally rackrented him so as to leave barely enough for subsistence. The ancient rights of the tenants, i.e. of the ceiles or freemen, were chiefly three - A right to some portion of the arable or tribe-land, and to the use of the commons: a right to pay no more than a fair rent, which, in the absence of express agreement, was adjusted by the Brehon Law: a right to own a house and homestead, and (with certain equitable exceptions) all unexhausted improvements. Among the freemen who held farm land there was no such thing as eviction from house or farm, for there was a universal conviction that the landlord was not the absolute owner, so that all free tenants had what was equivalent to fixity of tenure. If a man failed to pay the subsidy to his chief, or the rent of land held in any way, or the debt due for stock, it was recovered, like any other debt, by the processes described in next section, never by process of eviction. Descent of Land In Ireland the land descended in three different ways. as private property.-When a man had land understood to be his own, it would naturally pass to his heirs; or he might if he wished divide it among them during his life - a thing that was sometimes done. The land held by the chief as mensal estate descended, not to his heir, but to the person who succeeded him in the chiefship. This is what is known as descent by Tanistry. by Gavelkind.-When a tenant who held a part of the tribe-land died, his farm did not go to his children: but the whole of the land belonging to the fine or sept was redivided or gavelled among all the male adult members of the sept - including the dead man's adult sons. The domain of the chief, and all land that was private property, were exempt. The redistribution by gavelkind on each occasion extended to the clan or sept - not beyond. Davies complains, with justice, that this custom prevented the tenants from making permanent improvements. The two customs of Tanistry and Gavelkind formerly prevailed all over Europe, and continued in Russia till a very recent period : and Gavelkind, in a modified form, still exists in Rent. They were abolished and made illegal in Ireland in the reign of James I.; after which land descended to the next heir according to English law. 6. The Administration of Justice The Law of Compensation In very early times, beyond the reach of history, the law of retaliation prevailed, as in most other countries-" an eye for an eye, a tooth for a tooth "-in other words, every man or every family that was injured might take direct revenge on the offender. But this being found inconsistent with the peace and well-being of the community - especially in cases of homicide, which were frequent enough in those days - gradually gave place to the law of compensation, which applied to every form of injury. In Ireland the process was this -The injured party sued the offender in proper form, and, if the latter responded, the case was referred to the local brehon, who decided according to law. The penalty always took the form of a fine to be paid by the offender to the person or family injured, and the brehon's fee was usually paid out of this fine. Procedure by Distress If the offender refused to submit the case to the usual tribunal, or if he withheld payment after the case had been decided against him, or if a man refused to pay a just debt of any kind - in any one of these cases the plaintiff or the creditor proceeded by Distress; that is to say, he distrained or seized the cattle or other effects of the defendant. We will suppose the effects to be cattle. There was generally an anad or stay of one or more days on the distress; that is, the plaintiff went through the form of seizing the cattle, but did not remove them. During the stay the cattle remained in the possession of the defendant or debtor, no doubt to give him time to make up his mind as to what course to take, viz. either to pay the debt or to have the case tried before the brehon: but the plaintiff had all the time a claim on them. If the debt was not paid at the end of the lawful stay, the plaintiff, in the presence of certain witnesses, removed the animals and put them in a pound, the expense of feeding and tending being paid out of the value of the cattle. If the debtor persisted in refusing to settle the case, the creditor sold or kept as many of the cattle as paid the debt. Procedure by Fasting In some cases before distress was resorted to, a curious custom came into play -the plaintiff "fasted on" the defendant It was done in this way. The plaintiff, having served due notice, went to the house of the defendant, and, sitting before the door, remained there without food ; and as long as he remained, the defendant was also obliged to fast. It may be inferred that the debtor generally yielded before the fast was ended, i.e. either paid the debt or gave a pledge that he would settle the case. This fasting process - which exists still in India - was regarded with a sort of superstitious awe ; and it was considered outrageously disgraceful for a defendant not to submit to it. It is pretty evident that the man who refused to abide by the custom, not only incurred personal danger, but lost all character, and was subject to something like what we now call a universal boycott, which in those days no man could bear. He had in fact to fly and become a sort of outlaw. Eric or Compensation Fine Homicide or bodily injury of any kind was atoned for by a fine called Eric [errick]. The injured person brought the offender before a brehon, by whom the case was tried and the exact amount of the eric was adjudged. Many modifying circumstances had to be taken into account - the actual injury, the rank of the parties, the intention of the wrong-doer, the provocation, the amount of set-off claims, etc. - so that the settlement called for much legal knowledge, tact, and technical skill on the part of the brehon - quite as much as we expect in a lawyer of the present day. In case of homicide the family of the victim were entitled to the eric. If the culprit did not pay, or absconded, leaving no property, his fine or family were liable. If he refused to come before a brehon, or if, after trial, the eric fine was not paid by him or his family, then he might be lawfully killed. The eric for bodily injury depended, to some extent, on the "dignity" of the part injured: if it was the forehead, or chin, or any other part of the face, the eric was greater than if the injured part was covered by raiment. Half the eric for homicide was due for the loss of a leg, a hand, an eye, or an ear; but in no case was the collective eric for such injuries to exceed the "body-fine " -i.e. the eric for homicide. The principle of compensation for murder and for unintentional homicide existed among the Anglo-Saxons, as well as among the ancient Greeks, Franks, and Germans. In the laws of the English king Athelstan, there is laid down a detailed scale of prices to be paid in compensation for killing persons of various ranks or society, from an archbishop or duke down to a churl or farmer; and traces of the custom remained in English law till the early part of the last century. Modes of Punishment There was no such thing as a sentence of death passed by a brehon in a court of law, no matter what the crime was: it was always compensation; and the brehon's business was to determine the amount. Capital punishment was known well enough, however, and practised, outside the courts of law. Kings claimed the right to put persons to death for certain crimes. Thus we are told, in the Tripartite Life or St. Patrick, that neither gold nor silver would be accepted from him who lighted a fire before the lighting or the festival fire of Tara, but he should be put to death; and the death-penalty was inflicted on anyone who, at a fair-meeting, killed another or raised a serious quarrel. We have seen that if for any cause homicide was not atoned for by eric, then the criminal's life was forfeit. Various modes of putting criminals to death were in use in ancient Ireland. Sometimes they were hanged. Sometimes the culprit was drowned by being flung into water, either tied up in a sack or with a heavy stone round his neck. Where the death penalty was not inflicted for a crime, various other modes of punishment were resorted to, though never as the result of a judicial process before a brehon. Blinding as a punishment was very common, not only in Ireland but among many other nations. A very singular punishment was to send the culprit adrift on the open sea in a boat, without sail, oar, or rudder; as, for instance, in case of homicide, if it was unintentional. A person of this kind cast on shore belonged to the owner of the shore until a cuinal was paid for his release. Courts of Justice Courts for the trial of legal cases, as well as meetings of representative people to settle local affairs, were often held in the open - sometimes on green little hills, and sometimes in buildings. There was a gradation of courts, from the lowest - something like our petty sessions - to the highest, the great national assembly whether at Tara or elsewhere -representing all Ireland. Over each court a member of the chieftain or privileged classes presided : the rank of the president corresponded to the rank of the court; and his legal status, duties, powers, and privileges were very strictly defined. The over-king presided over the National Feis or assembly. In each court - besides the brehon who sat in judgement - there were one or more professional lawyers, advocates, or pleaders, called, in Cormac 's Glossary, dálaige [dawlee] and dai who conducted the cases for their clients; and the presiding brehon judge had to hear the pleadings for both sides before coming to a decision. Whether the court was held in a building or in the open air, there was a platform of some kind on which the pleader stood while addressing the court. With regard to evidence, various rules were in force, which may be gathered from detached passages in the laws and general literature. In order to prove home a matter of fact in a court of justice, at least two witnesses were required. If a man gave evidence against his wife, the wife was entitled to give evidence in reply; but a man's daughter would not be heard against him in like circumstances. Any freeman might give evidence against a fudir; but the fudir was not permitted to give evidence in reply. A king's evidence was good against all other people, with the three exceptions mentioned at page 23. The period at which a young man could give legal evidence was when he was seventeen years of age, or when he began to grow a beard. The Irish delighted in judgements delivered in the form of a sententious maxim, or an apt illustration - some illustration bearing a striking resemblance to the case in question. The jurist who decided a case by the aid of such a parallel was recognised as gifted with great judicial wisdom, and his judgement often passed into a proverb. Several judgements of this kind are recorded, of which one is given here. When Cormac mac Art, the rightful heir to the throne of Ireland, was a boy, he lived at Tara in disguise; for the throne was held by the usurper Mac Con, so that Cormac dared not reveal his identity. There was at this time living near Tara a female brewy, named Bennaid, whose sheep trespassed on the royal domain, and ate up the queen's valuable crop of glaisín [glasheen] or woadplants for dyeing. The queen instituted proceedings for damages; and the question came up for decision before the king, who, after hearing the evidence, decided that the sheep should be forfeit in payment for the glaisin. "Not so," exclaimed the boy Cormac, who was present, and who could not restrain his judicial instincts: "the cropping of the sheep should be sufficient for the cropping of the glaisin - the wool for the woad - for both will grow again." "That is a true judgement," exclaimed all : " and he who has pronounced it is surely the son of a king "-for kings were supposed to possess a kind of inspiration in giving their decisions. And so they discovered who Cormac was, and in a short time placed him on the throne, after deposing the usurper. |
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