321 



BREHON LAWS. 



BREHON LAWS. 



322 



demesne lands of the tribe. Each man of the tribe had then the right 

 to pasture as many cattle as he possessed on these common grazing 

 lands ; ami in proportion to the number of cattle thus pastured by 

 each was the share of the common tillage lands assigned to him on the 

 annual partition or hotch-potch of the lands. The private demesne 

 lands were the distinct property of individuals who were entitled to 

 acquire and transmit such possessions by certain qualifications not very 

 clearly explained. The demesne lands of the tribe were set apart for 

 the maintenance of the chief, the chief elect, the bard, doctor, and 

 brehon. 



With regard to the nature of the property enjoyed in these several 

 estates, the tribe at large possessed what is called the allodial or original 

 indefeasible property in all the lands, and could not be ejected out of 

 them in consequence of any arrears of tribute, inasmuch as the superior 

 lord lifted only a proportion of the increase of stock upon the pastures, 

 and was bound to take the same away at certain seasons ; this rent 

 was precisely a lay tithe, being one-tenth of the increase. As to the 

 common tillage lands, every member of the tribe possessed a life 

 interest in them, proportioned to his stock in cattle. In the private 

 demesne lands individuals had a permanent inheritable interest. In 

 his separate portion of the demesne lands of the tribe, the chief had a 

 life interest, of which the reversion lay with the tanist, that is, the 

 Kcuitd man, or chief elect, and in like manner the tanist, bard, &c., 

 possessed life interests in their several portions. 



The personal distinctions of the tribe, corresponding to the above 

 territorial divisions, were, so far as can be gathered from the very con- 

 fused authorities on this head, the In-Jinne, holders in common, and the 

 Dathaiij-jinni, those individuals alluded to above who were entitled to 

 separate inheritable possessions. The In-jinni, or commonalty of this 

 pastoral corporation, appear to have been of one rank ; but the Datkaiy- 

 Jinne were divided into several classes, of which the three most intelli- 

 gible were, the Deirbh-Jinnt, or class, as the commentators explain it, 

 nearest the succession, who had the right to inherit the whole patri- 

 mony of their kin without deduction ; the Vall-finne", who inherited 

 three-fourths of their patrimonial estates; and the lar-finnf, whose 

 right of inheritance extended to only one-fourth of the property left 

 by their relations. These privileged classes were in every tribe limited 

 in number ; but it does not exactly appear what was the qualification 

 for admission, or the rule of exclusion, or whether the Deirbh-finnf , 

 for instance, became disqualified on the election of a tanist less nearly 

 related to them than to others, although it is evident that a man might 

 rise from the condition of a tenant of common tillage to that of a free- 

 holder, or vice vend, descend from the higher class to the lower. As 

 to the chief himself, he was usually elected before the death of his 

 predecessor ; and the rule seems to have been invariably, that the 

 eldest of the candidates, if not incapacitated by age or infirmity, should 

 have the preference, the brother being commonly chosen instead of the 

 son, and the son rather than the nephew. His revenue arose, as has 

 been said, from the tenths of the increase of cattle, and from the 

 revenues of his demesne lands. In addition, he had certain claims of 

 entertainment for himself and household at stated times in the houses 

 of his tenants, in the same manner as his superiors, at certain seasons, 

 quartered themselves or their soldiers upon him. These claims were 

 sometimes compromised by both for an equivalent in tribute ; but as a 

 portion, more or less, by way of homage, was generally reserved, and 

 as the reservation, according to its extent, would seem to have had a 

 special denomination, we have an explanation of the perplexing multi- 

 plicity of exactions which has so frequently called down the censure of 

 our early writers, who seem to consider coyne, living, bonaght, lohoran, 

 cuddy, &c. &c., as so many separate taxes, leviable on one and the same 

 holding an extortion apparently monstrous, and really impracticable, 

 since there are as many denominations of tribute, according to its 

 reserved extent, as, if added together, would amount to perhaps three 

 times the value of the whole land. 



So far of the Finmt, or original members of the kindred, who con- 

 stituted the great majority of the tribe. But in every tribe there was 

 another class, less numerous and generally less honourable, but in many 

 respects peculiarly interesting and important, particularly as regards 

 the origin of the feudal lav. The subject of feudal tenures has occu- 

 pied the attention of the most distinguished English lawyers and 

 historian!!. The origin of the system has been in all cases referred 

 more or less to the necessities of military conquest, and its genius has 

 been invariably considered as quite distinct from that of any pastoral 

 constitution. The remains of the brehon law however would go far to 

 show that the feudal and pastoral systems, if not to some extent 

 identical, have been in their origin closely and necessarily connected. 

 The system laid down above is so far calculated for the government of 

 a society composed of tribes, each tribe possessing the allodium of its 

 own district, and the mass of its members holding in common. But 

 co-existent with the first practical development of such a system, if not 

 actually contemplated in its very rudiments, arises the necessity of 

 providing for those members of the community who, either by chance, 

 or choice, or compulsion, have been separated from their particular 

 kindreds, and have thus no proper Finnf with whom to claim a share. 

 Such individuals could not expect to participate in the rights of blood 

 enjoyed by those tribes among whom they might be dispersed, neither 

 could they be received by the commonalty of those tribes as tenants 

 on their fluctuating possessions. To provide for them, it was neces- 



ABTS AND SCI. DIV. VOL. II. 



sary that a certain portion of the land should be set apart for the 

 reception of strangers. To prevent the confusion of many landlords, 

 the profits of these tenements were allotted to the chief, who could 

 thus afford to exact a lighter tribute from the Finne of his tribe. To 

 induce the better 'sort of strangers to settle among them, the chief 

 was empowered to grant some of these tenements in perpetuity, but 

 the greater portion was usually let at will. As for those who had only 

 their labour to offer in lieu of the chiefs protection, they were received 

 on his private demesne lands, and became his serfs. Admission to the 

 upper class depended on the stranger's ability to pay the entrance fine 

 on one or more of the disposable tenements. These tenements con- 

 sisted of a homestead with a certain scope of ground annexed. The 

 homestead was denominated a Rath ; to constitute a legitimate rath 

 five things were requisite, namely, a dwelling-house, an ox-stall, a hog- 

 sty, a sheep-pen, and a calf-house : these buildings were generally 

 surrounded by a ditch and rampart, and formed if necessary a place of 

 defence as well as of residence. There is one very prevalent error with 

 regard to raths in Ireland ; namely, that they were Danish erections, 

 and designed solely for military occupation. The term " Danish rath " 

 is altogether a misnomer. The original titles of raths, according to the 

 classification of the brehon law, were drawn solely from the circum- 

 stance of their erection and occupation by the natives themselves ; as 

 for example, among many others, the Finne-rath, a homestead occupied 

 by the original kindred ; a Mer-rath, one rented by stranger tenants for 

 the first time ; an lar-rath, one occupied by stranger serfs on the chief's 

 demesne lands 5 a Saer-rath, one of which the stranger tenant enjoyed 

 the perpetuity ; a Forgu-rath, a secondary tenement appurtenant to the 

 Saer-rath, &c. &c. The entrance fine of such a tenement was denomi- 

 nated fal, and for the legitimate rath amounted to fifty head of cattle. 

 But the most important term in this vocabulary is that applied to the 

 stranger tenant himself. As distinguished from the Jinni, or original 

 clansman, the stranger tenant was called Fuidhir, and his tenure Fuidh. 

 Now these terms are pronounced respectively Fewer and Feu, the iden- 

 tical words still employed in Scottish law to indicate the freeholder and 

 his freehold. Hence that they are the radical form of the other feudal 

 derivatives, such as fief, fee, &c., seems more than probable ; and when 

 we come to consider more closely the relative situation of the Irish 

 ree-feuer, it will appear that there is something in it very analogous 

 indeed to the older forms of pure feudal tenure. First, the allodium 

 of the soil vested in the representative of the tribe, so that the tenure 

 of the ree-feuer holding of the chief might be considered as in capite, 

 with a power in many cases of granting mesne tenures to others. 

 Secondly, at the death of the chief a stated fine was paid to his suc- 

 cessor. Thirdly, females could not inherit. Fourthly, raths were 

 liable to escheat ; and Fifthly, the tenant was bound to serve the chief 

 in war, and to diet certain numbers of his soldiery at all seasons. Of 

 the more minute characteristics of the perfect feud as introduced by 

 the Normans into England, such as escuage, wardship, ransom, &c. &c., 

 there are so far few discoverable traces, but enough has been shown to 

 give good ground for considering the Irish law of feuers, connected as 

 it necessarily was with the pastoral constitution of their society, as the 

 original form of feudal tenure among all the Celtic nations. Feuers 

 were classified according to the circumstances of their migration ; as 

 those who had voluntarily left their former tribe to seek their fortunes; 

 those whose tribe had been dispersed in war, and those who had fled or 

 been expelled their tribe for debt, for robbery, for piracy, or murder. 

 The first three classes only had the privilege of becoming ree-feuers ; 

 criminal fugitives were admitted only to a temporary protection, which 

 they paid for by cattle or hand-service, on the private demesne lands of 

 the chief, until he should compound with his prosecutors, after which 

 they usually became his serfs or bondsmen. In the ' Annals of Ireland, 

 translated from the Irish of the Four Masters,' by Messrs. O'Donovan 

 and Connellan, it is stated that the usual mode of descent was by gavel- 

 kind. Bond-feuers were attached to the soil ; the lands to which they 

 were assigned being denominated Betagh lands, and they themselves 

 being frequently granted with the soil, as appears in many ancient 

 deeds, where they are specified under the name of Betaghs. 



Thus then it would appear that the country was occupied by kin- 

 dreds called Finni, holding for the most part in common, and by Feuers, 

 who were either tenants by rent and service, or vassals of the chief. 

 The tributes of chief to superior chief, up to the supreme king of the 

 whole island, were regulated by established precedents. The collection 

 of these rules for the kingdom of Munster is entitled ' The Book of 

 Rights,' and is still extant. 



So far of the common law ; next as to the statute law of the Irish. 

 Whether these particular enactments were decreed by a general assem- 

 bly, as asserted by some, or by local chiefs, as affirmed by others, is a 

 question not at present capable of satisfactory consideration. The 

 books containing them, of whatever age, profess to be but transcripts 

 and collections, with frequent references to similar compilations of still 

 older date; but the text appears to be original, as its dialect is so 

 antiquated as to require the assistance of frequent glosses, themselves 

 very difficult to be deciphered, and even when translated not by any 

 means easily understood. The collections are interspersed with nume- 

 rous moral sentences, occasionally also with superstitious dogmas : as 

 ail instance of the first, " Heaven is like a chariot on wheels, the more 

 you push against it the farther it flies from you ; " and as an example 

 of the second, "There are seven witnesses against a wicked king; 



