from: "A Social History of Ancient Ireland"
Author: P.W. Joyce, Vol. 1, 2nd ed.
Published : Dublin, 1913 Publisher: M.H. Gill & Son Ltd.
out of print.
Chapter VII
The
Laws relating to Land
The
Land originally as common property : Five
ways of holding on to land : Tenants, their payments
and subsidies : Fudirs or serfs on the land :
Descent of Land
1. The Land originally common Property.
The
following account of the ancient land laws of Ireland, which has been
compiled chiefly from the Brehon Laws, is corroborated in some of
its main features by those early English writers who described the
native Irish customs from personal observation. It throws much light
on the Irish land question of modern times.
In
theory the land belonged not to individuals, but to the tribe. The
king or chief had a portion assigned to him as mensal land. The rest
was occupied by the tribesmen in the several ways mentioned below.
The chief, though exercising a sort of supervision over the whole
of the territory, had no right of ownership except over his own property,
if he had any, and for the time being over his mensal land. It would
appear that originally - in prehistoric times - the land was all common
property, 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 ; and it is plainly recognised all through the Brehon Laws. (Br.
Laws, III, 53 ; IV 69 to 159) "All the Brehon writers seem to
have a bias towards private, as distinguished from collective, property"
(Maine, Anc. Inst., p. 105). Yet the original idea of collective ownership
was never quite lost for although men owned land, the ownership was
not so absolute as at present. A man, for instance, could not alienate
his land outside the tribe; and he had to comply with certain other
tribal obligations in the management and disposal of it (Br. Laws,
II. 283 ; III 53, 55) all which restrictions were vestiges of the
old tribe ownership. But within these limits, which were not very
stringent, a man might dispose of his land just as he pleased.
Outside
of the Brehon Laws, we do not find much reference to the former common
occupation of land. But there are at least two passages which have
been noticed by Sir Henry Maine (Anc. Inst., p. 114) as preserving
a dim memory of the old state of things: interesting passages supplied
to him by Dr. Whitley Stokes. One is an ancient scholiast's preface
in the Book of Hymns (Todd, 132) : -
"For the people were very numerous in Erin at that time (namely,
during the reign of the sons of Aed Slaine, A.D. 656 to 664): and
so great were their numbers that the land could afford but thrice
nine ridges (tri nói immaire : meaning here long narrow plots-not
hill-ridges) to each man in Erin: viz., nine of bog, nine of field,
and nine of wood." The other passage is in one of the ancient
tales-
"The Birth of Cuculainn " in the Book of the Dun Cow (and
copied into that, A.D. 1100, from an earlier MS.). This story relates
how, on one occasion, a party of the Red Branch Knights set out southwards
from Emain in chariots in pursuit of a flock of enchanted birds: and
they proceeded across country without difficulty, because, says the
story :-"There was neither trench, nor fence, nor stone wall
round land in those days, until there came the time of the sons of
Aed Slaine, but only smooth fields. Because of the abundance of households
in their time, therefore, it came to pass that they made boundaries
in Ireland." (Ir. Texte, I. 136, par., 2; and LU, 128, a, 14.)
Maine remarks it as instructive that, in both passages, the change
is referred to an increase of population: and he goes on to express
his opinion that this unquestionably represents true history. The
common occupation of land is also alluded to in the early Memoirs
of St. Patrick. (Trip. Life, p. 337, 26 ; and Introd. Clxxv)
2. 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. (For Irish Land Tenures, see Sull,
Introd., 185 et seq ; and for the correspondences between Irish and
Teutonic land laws, the same vol., 131 et seq.). The tribe (or aggregate
of tribes), under the rule of one king or chief, held permanently
a definite district of the country. The tribe was divided, as already
described (p.166) , 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.
First.-
The chief, whether of the tribe or of the sept, had a portion as mensal
land, for life or for as long as he remained chief.
Second.-
Another portion was held as private property by persons who had come,
in various ways, to own the 1and. Most of these were 'flaiths', or
nobles, of the several ranks ; and some were professional men, such
as physicians, judges, poets, historians, artificers, &c., who
had got their lands as stipends for their professional services to
the chief, and in whose families it often remained for generations.
Under this second heading may be included the plot on which stood
the homestead of every free member of the tribe, with the homestead
itself.
Third.-
Persons held, as tenants, portions of the lands belonging to those
who owned it as private property, or portions of the mensal and 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.
Fourth.-
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 (Br. Laws,
III. 17, 53 : Ware Antiqq., 72, top) 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 or redistribution
from time to time-once every three or four years. (Davies disc/ Letter
to Lord Salisbury, ed. 1787, p. 279). 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 un-exhausted
improvements; and though he gave up one farm, he always got another.
Fifth.-The
non-arable or waste land-mountain, forest, bog, &c.-was Commons-land.
This was not appropriated by individuals; but every free man had a
right to use it for grazing, (see chapter xxiii, vol, II, p. 282).
for procuring fuel, or for the chase. There was no need of subdividing
the commons by fences, for the cattle grazed over it without distinction.
The portion of territory occupied by each clan or sept commonly included
land held in all the five ways here described.
Between
common clan ownership on the one hand, and private ownership by individuals
on the other, there was an intermediate link; for in some cases land
was owned by a family, though not by any individual member, and remained
in the same family for generations. This was often the case with land
granted for professional services. A very remarkable and peculiar
development of family ownership was what was known as the 'Gelfine'
system, under which four groups of persons, all nearly related to
each other, held four adjacent tracts of land as a sort of common
property, subject to regulations, then well recognised, but now hard
enough to understand. (On the Gelfine system: See Br. Laws IV, Introd.,
L ; 41 last par and note 2; 43; 63,3; 249, 20; 269, ,8; 287, note
4; 289, notes I and 2 ; 293,7: Joyce, Short Hist. of Irel., 69 : and
Seebohm, Tribal Custom, p. 76.)
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.
3.
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 the categories tour and five described
above. The usual subsidy for commons pasturage was in the proportion
of one animal yearly for every seven,(Br. Laws, III. 129 ; iv, 305)
which was considerably less than a reasonable rent of the present
day. Probably the subsidy for tillage-land was in much the same proportion.
Every person who held land shared the liabilities of the tribe; for
instance, he was liable to military service, (Br. Laws II, 283)and
he was bound to contribute to the support of old people who had no
children. (Br. Laws, IV, 19, 41) .
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 céiles
had stock of their own, but the great majority had not. Where the
tenant needed stock it was the custom for the chief to lend him as
much as he wanted at certain rates of payment. A man might hire stock
from the king or a chief, of from a noble, or from some rich 'bo-aire'.
It often happened that an intermediate chief who gave stock to tenants
took stock himself from the king of the territory. This custom of
giving and taking stock on hire was universal in Ireland; and it gave
rise to a peculiar set of social relations which were regulated in
great detail by the Brehon Law.
The
céiles or tenants were of two kinds, according to the manner
of taking stock :- Saer-céiles, or free tenants, and
Daer-céiles, or bond tenants- the latter also called
giallna (geelna : 'g' hard) tenants. A saer (sare) tenant was one
who took stock without giving security-nothing but a mere acknowledgment
(Br. Laws, II. 195). Stock given in this manner was saer-stock, and
the tenant held by saer tenure. A daer tenant was one who gave security
for his stock: his stock was daer stock; and he held by daer tenure.
The saer tenants were comparatively independent, and many of them
were rich: as, for instance, the bo-aires, who were all saer tenants
to kings, chiefs, or nobles. The payments saer tenants had to make
were reasonable. Not so the daer tenants: they had to pay heavily,
and were generally in a state of dependence. Their position was much
the same as that of needy persons of our own day, who are forced to
borrow at usurious interest. More stock was given to a man in daer
tenancy than in saer tenancy. It was of more advantage to the chief
to give daer stock than saer stock (Br. Laws, II. 211, 213).
When
a man took daer stock, he had to do so openly, without any concealment;
and his Finé (finna) - i.e. his family, including all his sept
or kindred within certain degrees of relationship - might if they
pleased veto the whole transaction (Br. Laws, II. 217). From this
it would appear that daer tenancy was viewed with disfavour by the
community, for the reason, no doubt, that it tended to lower the status
of the tribe.(Maine, Anc. Inst. 163). There was a sharp distinction
between the two orders of tenants, the daer tenants being very much
the lower in public estimation. When the chief gave evidence in a
court of law against his tenants, the saer tenants were privileged
to give evidence in reply, but the daer tenants were not (Br. Laws,
II. 345). A daer or bond tenant was so called, not that he was a slave
or an unfree person, but because by taking daer stock he forfeited
some of his rights as a freeman, and his heavy payments always kept
him down.
The
ordinary subsidy owed by a saer tenant to his chief was called Bes-tigi
(bess-tee) or house tribute, varying in amount according to his means
or the extent of his land : it consisted of cows, pigs, bacon, malt,
corn, &c. He was also bound to give the chief either a certain
number of days' work, or service in war. (Br. Laws, II, 195; III,
19, x 8 ; 495) For whatever he took he had to pay one-third of its
value yearly for seven years, at the end of which time the stock became
his own property without further payment. (Br. Laws, II, 195, 197,
199, 203) This was equivalent to thirty-three per cent, per annum
for seven years to repay a loan with its interest - a sufficiently
exorbitant charge. He also had to send a man at stated times to pay
full homage to the chief. The labour and the homage are designated
in the laws as the worst or most irksome of the saer tenant's obligations
(Br. Laws, II. 195).
A
daer tenant had to give war-service (Br. Laws, III. 495) and work.
But his chief payment was a food-supply called Biatad (bee'ha) or
food-rent-cows, pigs, corn, bacon, butter, honey, &c.-paid twice
a year. The amount depended chiefly on the amount of daer stock he
took (II. 229), and probably varied according to local custom. At
the end of his term he had, under ordinary circumstances, to return
all the stock or its equivalent (II. 223). But if the chief died at
the end of seven years, the tenant, provided he had paid his food-rent
regularly, kept the stock (II. 269). The daer tenants were the principal
purveyors of the chief, who could be sure of a supply of provisions
all the year round for his household and numerous followers, by properly
regulating the periods of payment of his several tenants. This custom
is described by several English writers as existing in their own time,
so late as the time of Elizabeth.
The
daer tenants were bound to give coinmed (coiney), or refection, on
visitation-that is to say, the chief was entitled to go with a company
to the daer tenant's house, and remain there for a time varying from
one day to a month, the tenant supplying food, drink, and sanctuary
or protection from danger. (Br. Laws, II, 20, note 2 ; 233 ; III,
19) The number of followers and the time, with the quantity and quality
of food and the extent of protection, were regulated by law according
to the tenant's amount of daer stock (Br. Laws, III. 21), and according
to the rank of the guest: the higher the rank the longer the time
(II. 20, note 2). The protection might be relinquished either wholly
or partly for an increase of food and drink or vice versa (II. 21).
Sometimes soldiers, in lieu of regular pay, were sent among the tenants,
from whom they were entitled to receive 'buannacht' or 'bonaght',
i.e. money, food, and entertainment: an eminently evil custom. The
refection and bonaght, which were by far the most oppressive of the
daer tenant's liabilities, seem to have been imposts peculiar to Ireland.
The daer tenants were subject to several other duties, which came
at irregular intervals; and in time of war the chief usually imposed
much heavier tributes than at other times upon all the tenants. Sometimes
saer tenants were liable to coiney :
and occasionally a church was under an obligation to supply a night's
coiney to the chief at certain intervals, such as once a quarter.
(Misc. Ir. Arch Society, 1846, p. 143) But besides this, the superior
chief, when on his visitations, was to be entertained free by his
subordinate chiefs.(hyF, 209) Kings, bishops, and certain classes
of chiefs and professional men were also entitled to free entertainment
when passing through territories, with the proper number of attendants.
(Br. Laws, IV. 347, 349, 351) And it appears that when certain officials
met to transact public business, the tenants, both saer and daer,
had to lodge and feed them (III. 21) .If either the chief or the tenant
fell into poverty, provision was made that he should not suffer by
unjust pressure from the other party: "No one," says the
law- book, "should be oppressed in his difficulty " (II.
339).
The
daer tenants were by far the most numerous; and accordingly this system
of the chief stocking the farms was very general. It has often been
compared to the 'métayer' system, still found in some parts
of France and Italy , according to which the landlord supplies land,
stock, and utensils, and receives half the produce.
The
text of the Laws gives no information regarding the circumstances
that led some to become saer tenants and others daer tenants; and
the whole subject is involved in considerable obscurity. But a careful
study of the text will enable one to gather that this is probably
how matters stood. All who took land had to pay the chief certain
subsidies - as we have said - independently of what they had to pay
for stock. Those who chose to become saer tenants did so because they
had stock of their own, either
quite or nearly sufficient ; and they took stock in small quantity
to make up the amount they needed. The daer tenants, on the other
hand, were poor men who had to take all their stock - or nearly all
- on hire; and they had to give security because they were poor, and
because they took such a large quantity. In their case the subsidies
for land and the payments for stock are in the Laws commonly mixed
up so as to be undistinguishable.
The
power, wealth, and influence of a chief depended very much on the
amount of stock he possessed for lending out: for besides enriching
him, it gave him all the great advantage over his tenants which the
lender has every-where over the borrower. This practice was so liable
to abuse that the compilers of the Brehon Code attempted to protect
borrowing tenants by a multitude of precise detailed rules. Sir Henry
Maine considers that the payments made by the Irish tenants for stock
developed in time into a rent payment in respect of land.
Very
careful provisions-penalties in the shape of heavy compensation payments-are
laid down in the Laws to prevent either the chief or the tenant -
whether in saer or daer tenancy - from terminating the agreement in
an arbitrary fashion, as well as to protect each against any neglect
or misconduct on the part of the other .(Br. Laws, II. 313 et seq)
The tenure of all was therefore secure, in whatever way they held
their
lands.
Though
the custom of visiting tenants' houses for coiney or refection was
carefully safeguarded in the Brehon Law, it was obviously liable to
great abuse. In imitation of the Irish, the Anglo-Irish lords adopted
the custom of Coyne and Livery, (food for an and horse. 'Coyne' is
the Irish Coinmed or coiney ; livery is French - 'food for horse')
which they commonly levied from the English settlers, and committed
such excesses - far beyond any abuses of the native chiefs - that
they almost ruined the settlement ,by it. (for Coyne and Liery and
its abuses, see Ware, Antiqq., chap. Xii, and Hoyce, Short Hist of
Irel, 78)
4.
Fudirs or Serfs on the Land.
The social position of fudirs, saer and daer, has been already explained
(p. 162). The saer-fudirs were permitted to take land from year to
year; and they could not be disturbed till the end of their term.
Allowance had to be made to them for unexhausted improvements, such
as manure. As they were permitted a settlement by the grace of the
chief, they were reckoned a part of the chief's tine or family (Br.
Laws, IV. 283), though they were not members of the tribe. Outside
these small privileges, however, they were tenants at will. It would
seem indeed that the chief might demand almost anything he pleased
from a fudir tenant, and if refused might turn him off (III. 131)
But the daer-fudirs were in a still worse position. If a daer-fudir
took land, it did not belong to him during occupation (III. 131) ;
he was merely permitted to till it - he was a tenant at will, having
no right whatever in his holding. He was completely at the mercy of
the chief, who generally rackrented him so as to leave barely enough
for subsistence. The daer-fudirs, after a certain period of residence
(p. 163, supra), belonged to the land on which they were settled,
and could not leave it. The land kept by a 'flaith' or noble in his
own hands was commonly worked by daer-fudirs : and none but a noble
could keep them on his estate.
Spenser,
Davies, and other early English writers speak of the Irish tenants
as in a condition worse than that of bondslaves, and as taking land
only from year to year. No doubt, the tenants they had in view were
the fudirs, who must have been particularly numerous during the Irish
wars of Elizabeth (p. 164, supra). It is evident from the Brehon Law
that the fudirs were a most important class on account of their numbers;
for as they tended to increase in the disturbed state of the country
from the ninth century down, they must ultimately have formed a very
large proportion of the population.
Sometimes
a whole tribe, for one reason or another , came to be in such a state
of dependence or serfdom as to approach slavery. They were commonly
a tribe who had been expelled from their homes by stronger settlers
or invaders, and who, seeking a place of settlement from a strange
chief, were received by him under hard conditions. Such a tribe was
usually designated d'aer-thuath' (dair-hooa) , i.e. 'bond-tribe,'
corresponding with. 'daer-cheile' as applied to an individual (p.
189, supra) : often called in English, 'enslaved tribe,' but the people
were really not slaves. They were subject to heavy tributes, and had
to execute certain works, such as building, road-repairing, &c.,
without payment, for the chief of the district, and they were looked
upon as inferiors by the people among whom they settled.
The
ancient rights of the tenants, i.e. of the ceiles or freemen, as may
be gathered from the preceding part of this chapter, were chiefly
three :-.
A right to some portion of the arable or tribe-land, and to the use
of the commons :
Aright to pay no more than a fair rent, which, in the absence of express
agreement, was adjusted by law (Br. Laws, I. 159; II. 317; III. 127)
A right to Own a house and homestead, and (with certain equitable
exceptions) all unexhausted improvements.(Brehon Laws, IV. 133, 135,
137)
Unless
under special contract, in individual cases, the fudirs had no claim
to these-with this exception, how-ever, that the saer-fudirs had a
right to their un-exhausted improvements. Among the freemen who held
the tribe-land there was no such thing as eviction from house or land,
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
chapter, never by process of eviction. (Brehon Laws, I 123, 157, 159,
169, 187, 215, 217, 219, 231, 233.)
5. Descent of Land.
In Ireland the land descended in three different ways.
First, as private property.- When a man had land understood
to be his own, it would naturally pass to his heirs( Brehon Laws:
III. 399; IV. 45, 69.) - i.e. his heirs in the sense then understood,
not necessarily in our sense of the word; or he might if he wished
divide it among them during his life - a thing that was sometimes
done. In the Tripartite Life of St. Patrick (109, 111), we find cases
of the sons inheriting the land of their father. There appears in
the Brehon Law a tendency to favour descent of land by private ownership:
"The Brehon Law writers seem to me distinctly biassed in favour
of the descent of property in individual families."(Maine, Anc.
Inst. 193)
It should be remarked that those who inherited the property inherited
also the liabilities.(Br. Laws, III. 399-405 ; IV, 45)
Second.-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.
Third
: 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 - those members of the sept who were illegitimate getting their
share like the rest.(Davies, Discoverie, ed. 1747, p. 169; Br. Laws,
IV. 7, 9) 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.
(Letter to Lord Salisbury, ed. 1787, p. 280)
Davies
asserts that land went by only two modes - Tanistry and Gavelkind:
but both the Laws and the Annals show that descent by private ownership
was well recognised.
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 Kent. 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.
