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thE PRESEnCE oC thIs Book
[0J
thE ].m. kElly lIBRaRY
has BEEn maÒE POSSIBlE
thROUCJh thE CJEnEROSlty
StEphEn B. RomAn
From the Library of Daniel Binchy
AN C I E N T L A ,V S ù F I It E LAN D.
-0111 ëecruEa-o
A
D
CERTAIN OTHER SELECTED
BREHON LA ,V TRAOTS.
rL:UL18IlKU UVDKR TN. DIRE. TIOV 0" TME CON'MIS610VItRS ..ol\ Pl.DLJ911INU THE ,tSCIKNT
.L'&W:i .AND 1....!!J'I'I'I'U'I'&8 Otl' IRJì:LANÐ
VOL. IV
DUBLIN:
PRINTED FOR HER MAJESTY'S STATIO
ERY OFFICE:
PUBLISHED BY
A. THOl\[ &; CO., 8i, 88, &; 89, ABBEY-STREET;
HODGES, FOSTER, & CO., 104, GRAFTO
-STREI:T.
LONDON:
LONGMANS & CO.; TRÜBNER & CO.
OXFORD : PARKER & CO. CA
mRIDGE: l\IAC:\ULLAX & CO.
EDI
BLRGII: A. & C. BLACK, AND DOUGLA
& FOCLlS.
1879.
Pl'Íce Ten Shillin[Js.
7, UPPER PDIllROKE-STREET,
DUBLI
, 1st Septcmú( ,., 1879.
My LORD,
Having been requested by the Com-
nnSSlOners for publishing the Ancient Laws and
Institutions of Ireland to edit such of the Brehon
Law Tracts translated by the late Dr. O'Donovan
or :Mr. O'Curry as lllight be most suitable for pub-
lication, the Rev. Dr. T. O':\lahony anJ myself
proceeded to prepare for the press the text and
translation of the several Breholl Law Tracts con-
tained in this volume.
The Rev. Dr. T. O'.:\lahony, in consequence of ill-
health, was unfortunately obliged to retire from
all connexion with the editing of this volume
before he had finally revised the entire Irish text.
I am much indebted to the kindness of l\Ir. 'V. M.
Hennessy, who corrected for the press that portion
ofthe original text which had not been finally revised
by the Rev. Dr. T. O'1\lahony.
The notes appended to the text, except mere re-
ferences, were selected by the Rev. Dr. T. O'Mahony
from those appended to the manuscripts of the origi-
nal translators.
For the Introduction I am exclusively responsible.
The Index and Synopsis have been prepared by
l\1r. P. Bagenal.
..
I am, my Lord,
Your Lordship's obedient servant,
ALEXANDER GEORGE RICHEY.
The Right Rev.
The Lord BiBhop of LmERICK,
Secretary to the Commis.ion for Publishiug thc
Ancient Laws and Institutions of Ireland.
((2
CO
TE
TS.
Page
I
TUOmTTIO
:
Part I.-General observations as to the translation, ' ii
" n.-Of the Tract entitled "Of ta1..ing posses-
sion,"
" rn.-Of the" Fine" aUtI tho" Gulfine" system, J\.lix
" I V.-Of the Incidcnce of Fines,
Y.-Of the Succession to Land,
" YI.-Of the Tract entitled "J uùgments conccrn-
ing Co-tenancy," cJ\.ix
" Vn.-Of the Tract entitled" Eee Judgments," cxli
" YIII.-Of the Tract entitled" Right of \Vater," clvi
" IX.-Of the Tract entitled" Prccincts," clxiv
" X.-Of tbe Tract entitled" Divisions of Lanù;' cb..x
" XI.-Of the Tract entitled the" Crith Gabhlacb," cl xxi v
" X H.-Of the Tract known as "The Sequel to the
Crith Gabhlach," . ceviii
" XIII.-Of the Tract known as "Of Succession,"
and concluding observations, enxiii
xiii
Àciv
Clli
"
Synoptical Contents of Introduction, .
CCXXJ\.I
1.-"Om r:eér:u5a"O ; or " Of t.<tking h1wful possession," 1
II.-bf1,ear:ha comwr:hce[a all"O[O; or" Judgments of
Co-tenancy," 67
HI.-bech b1'.eLha; or " Bee Judgments," 1 G 1
IV.-COlbn1u[ Ul[Cl; or" Right of \Vater,"
o5
V.-mmb lle ; or" Precincts," . 2::!5
VI.-"Oo ùr.eltemiJ1lu[, &c.; or "Of the Judgment of
Every Crime," &c., 239
VII.-'Cé"O an feap.ann a cmr:mb; or "The Land is
forfeited fVI' Crimes,"
G3
y [11.-
o"Ota nll,e; or " Divisions of Land," 2;5
IX.-"Oe fo"Otwb c111eolt ruwt1; or "Of the Divi<;ivns
of the Tribe of a Territory," 281
X.-Cr_tr:h buutaë, the Crith Gabhlacll, 297
XI.- Do. do., thE' Sequel to tbe Crith Gal,hlach, 343
Xn.-The unnamed Tract entitled" Of Succession," 3ïl
Gencml Index of the Text, 383
INTHODUCTION.
I.
TilE Brehon Law 'Tracts contained in this volume have been
selected by the Editors as specially illustrating the lantl-
laws of the early Irish, and the constitution of the Celtic
family and tribe.
Upon the former of these subjects it is not to be antici-
pated that we should find in any work, composed by a
lawyer of the Drehon school, a series of definite rules
systematically an-anged; or even an attempt to lay down
the general principles upon which, in any class of cases, thù
judge or ar1itrator proceeded. The idea of hw in its
technical sense was wholly foreign to the ancient hnvyers.
They dealt not with laws, but cu::;tOlm;; which, of unknown
origin, handed down from remote antiquity, often obscure.
and frequently misconceived, influenced the public opinion
of each tribal community as to what it was right should he
done in each particular case. The Brehons were gradually
approaching the iùea of general legal propositions by an
induction from numerous and di<;tinct c:mes which had been
decided in accordance with pre-existing customs.
This mode of dealing with legal questions has been largely
illustrated in the prt'ceding volumes; assuming an individual
case to have resulted in a concrete decision, they vary to a
certain extent the constituent facts of the case by adding
some, or striking out others, and speculate as to the variatiun
in the decision which should have followed such an altem-
tion in the fads. This mode of dealing with legal questions
naturally fell in with the idea that all legal rights should Le
treated from a negative point of view, that is, considereù
not with the olÚe('t of being enforced, but rather of being
compensated for when infringed, the amount of such com-
Vlll
I
TUODt:CTIO
.
pensation being assessed in fixed ratios with reference to
the varying circumstances of each case.
To record the existing customs of their tribe was not an
easy task for the ancient lawyers, for it involved the
necessity of reducing the indefinite general opinion of t.he
tribe into a series of abrotract propositions by a wide induc-
tion from particular cases. The most indefinite custom
cannot exist, or be transmitted, without being reduced to
some form which is capable of oral transmission, and in
every uncivilized community certain ancient rules, dealing
indifferently with moral and legal matters, are handed down
from father to son, and remain the exclusive possession of
the elders of the triùe and the sages of the law. Such
ancient rules, when preserved, rarely afford any distinct or
reliable information; they are intended to serve as catch-
words or suggestions to assist the memory to recall what
had been previously orally communicated; generally in a
rythmical form, always in language condeused and antiquated,
they assume the character of abrupt and sententious proverbs,
the drift of which cannot be more than vaguely guessed at.
Collections of such sayings are to be found scattered
throughout the Brehon L'tw Tracts, and in them, if any-
where, are to be found whatever abstract legal propositionR
the Brehons possessed; it is to be regretted, although it may
1.e naturally anticipated, that but little clear and definite
infurmation can be extracted from thcse passages. If we
were certain that they were preserved in thcir original fonll,
and had no doubt of the accuracy of the translation, yet
the actual meaning and practical application of these brief
and oracular uttcrances would bc to a great extent a matter of
mere speculation; such, however, is far from being the case,
and the modern critic approaches the consideration of them
undcr great, if not almost insuperable, difficulties. The
firs!' inquiry natural1y is, whether we possess an authentic
Archaic text; upon this preliminary and cardinal question it
is impossihle not to fcel most serious misgivings; however
ancient any particular rule, or rathcr apophthegm, may be,
the grammatical fonn of the language in which it is
L\'TRODCCTIOX.
IX:
expressed cannot cl:tÏm very high antiquity; it is manifestly
much later than the Irish of the glosses; the words have
lost thf'ir inflexions, but the sentences have not assumed a
logical construction, and their present form very much
resembles a Latin inscription in which the inflexional
terminations of the nouns and verbs have been erased.
Both the text and matter of popular literature orally trans-
mittpd undergo a constant assimilation to the language and
ideas of the day; but many examples prove that ancient
formulæ handed down as the exclusive possession of a
comparatively small number may at length become unin-
telligible even to their exclusive custodians; the Salian hymn
of X uma and the litanies of the Arval hrothers were repeated
long after their direct meaning was lost. Although it cannot
be contended that the text of the. Brehon law had become
as absolutely antiquated as the formulæ last alluded to, it is
evident that the commentators felt that they were dealing
with an uncertain and difficult text; the numerous and
often conflicting glosses, amI the commentary, sufficiently
prove this. The original text may perhaps have been as much,
amI as little, understood by the Brchon of the lGth century
as the original text of the laws of the Decemviri by the
Roman of the 1st century.
An ancient legal text is further very much embarrassed by
the necessary use of purely technical terms, which can have no
life or meaning apart from the society in which they originated,
and which when once lost can never be recovered. The ex-
tensive reforms effected during the present century in the Eng-
lish Real Property Law have already rendered obsolete a large
proportion of the terms of legal art which were familiar to the
cotemporaries of Lord Kenyon. In the case of an hereditary
profession, as was that of the Brehon judge, the use of
technical terms throws about the simplest operation the air
of mystery, in which the exclusive possessors of any
speciality desire to hide their calculations; and thus by
every profession whose members assume an abstruse charac-
ter, heralds, lawyers, theologians, &c., there are used vastly
more technical words than are necessary, the object of which
x
IXTRODUCTIOX.
is rather to cloak trivial, than to express complex, ideas.
Difficulties arising from this cau!'e occur plentifully in every
Brehon law tract.
The task of translating the original text is further
embarrassed by the ordinary ab&enc
of punctuation in
the manuscripts. When the sentences in a paragraph
are intended to be fully developed, an intelligent reader
supplies for himself the want of punctuation (which is a
very modern invention), and successfully follows the sense
of the authors as it is gradually developed. The original
Brehon text consists altogether of curt and proverbial ex-
pressions, which rarely attempt the completeness ofa sentence,
and are strung together without an attempt at logical or
grammatical connexion; indeed it may be fairly supposed
that if one of these paragraphs had been read through to a
Brehon judge for the first time, evenly and without <<trong
accentuation, he would have found himself much perplexed
if required to explain the meaning. It is apparent that the
most ancient passages possessed a rythmical structure, and
that the movement of the verse, and the pauses in the lines,
threw out separately and emphased the curt anll unorganized
apophthegms. Passages of this character, when all the
words are reduced to the one dead level by being successively
written out without stop or accent, are absolutely deprived
of all the aids to their comprehension, which their author
assumed would be lent to them by the voice of the oral
teacher.
Editors of such a text m11st exercise the utmost caution,
and are exposed to consbnt temptations. The first necefi-
sary step which should precede translation is to break up
the text into the proper paragraphs and sentences. Tho
form of the text gives no indications how this should be done,
and hence in the present case the logical process has been
often inverted, the punctuation being fixeù with reference
to an a priori conjecture of the general drift of the passage.
Such speculations, however ingenious, are always practi-
cally of little value, when a large proportion of the words
are technical terms, the precise meaning of which is unknown
IXTRODGCTIOX.
Xl
to the author. The editors of this volume, which contains
Illany passages of peculiar difficulty, have felt themselves
forced to reconsider the principles upun which the more
ancient text shoulù be translated, and to lay down some
rules for their own guiùance in the matter. They have
come to the opinion that the only consistant principle upon
which a translation of the archaic passages can be baseù is to
adopt the explanations of words contained in the glosses, and
to assume the correctness of the '" iews as to the general
meaning of the text expressed in the commentary. It may
be easily conceded that the authors of both the glosses
and commentary were themselves unable to translate the
text with accuracy, or with certainty to divine its meaning;
Imt their condition in respect to the modern editor is ao;;
twilight to absolute darkness. At what date the original
family and tribe-system was broken up in Ireland; whether
it had not been superseded by another organisation even
before the date of some of the commentators of the Brehon
law tracts, is a question which cannot he answered without
much consideration and further examination of both the
Brehon law and the existing materials of Irish history; but
whether the original Celtic family and tribe-system (lid or
did not exist in its completeness at the time of commen-
tators, they lived under the influence of the ancient tradi-
tionallaw, and must, as an hereditary caste, have cherished
the recollections and spirit of the old customs, the exact
knowledge of which lllay even have ceased to be of practical
importance. As a means of understanding the present, as
even a fragmentary survival of what was once useful know-
ledge, every lawyer learns as a matter of course much which
is really obsolete and unpractical. The English law student
is instructed in much of the law which has been 10nO' since
t:>
advantageously abolished. The theory of the feudal system,
the origin of the manor, the feigned proceedings by fine and
recovery, are taught to modern students, who may never
have any need practically to apply them; but by this process
the tradition of the old real property law of England is
handed on; and a second rate practitioner of our day could
Xll
ISTRODUCTIOX.
to some extent explain a case in the year books which
would be absolutely impenetrable to the traincd mind of an
accomplished civilian. Bcforc attempting to fix the mean-
ing of any passage in the original text, the editors have
consulted the glosses and commcntary with the view of
ascertaining what the original commentators understood the
general drift and meaning of the text to be, and the punctu-
ation and translation has, as far as possible, been based upon
the assumption of the correctness of the views of these
early critics. Thc more any sblùent becomes conversant
with the ancient texts, the more he must be impressed with
the fact that any other mode of dealing with them is
wholly conjectural. It is possible for an ingenious editor,
hy a due application of stops, and the interpolation of words,
supposed to be understood, in italics, to produce any results
he may deRire, and by such a process a very plausible and
consistent appearance may be given to a translation which
hears a very feeble (if any) resemblance to the original. It
is the simple duty of the editors of the prescnt volume to
give the public a translation as correct as possible of the
Irish text, and they have anxiously abstained from the con-
stant temptation to translate this text in accordance with
their preconceived views of what it ought in any given casc
to mean; they at the same time desire to warn student!; of
the subject that in their opinion the present translation of
the original text can not be received as final or satisfactory :
it is essentially tentative : that other students will differ
from it in many particulars is certain; that some may suc-
cessfully revise and correct it is most probable; neither the
late distinguished scholars, who originally translated the
11188., nor the present editors, nor any future critic are certain
to be always successful in dealing with such a!;u bject matter.
The reader cannot be too clearly reminùed that the transla-
tion of the original texts has been conducted upon the
principles before stated; that conjectures founded upon the
supposed meaning of detached passages of text, and unsup-
ported by the commentary are uncertain; and that the
commentary, not the text, is, in the opini{\J1 ll[ the editors,
I
TRODUCTIOl, .
Xll1
the rclial.1e basis for any conclusions or further speculations.
'1'hese observations are the result of a prolonged experience
in dealing with these Brehon texts j the most difficult of the
passages in question have been translated and re-translated;
frequently the translations were apparently most consistent
and probable, but again and again they have been founù to
be inconsistent with what the glossists and commentators
manifestly understood them to be, and in many such
instances the editors had finally to admit that their ()wn
views as to the meaning of the text were, although perhaps
ingenious, altogether mistaken. .Ai; to the technical legal
terms occUlTing in the text, the editors have desired to
translate them as far as possible; it must be obsernd that
such words cannot find an exact equivalent in any modern
language; the complex ideas represented by these words
were, as is the case of all legal terms of art, formed unòer
peculiar and transitory conditions of society, and their real
and living use and meaning perished with the system out
of which they sprang. Their meaning can be only approxi-
mated by a diligent comparison of the divers passages in
which they occur.
II.
THE TRACT EXTITLED "O
TAKIXG LAWFUL POSSESSro
."
THE first tract contained in the present Volume is entitled
" On Taking Lawful Possession," and the importance anù
peculiar meaning of this tiUe will be obvious from the
subsequent observations.
The first portion of the original text down to page 33 is
obviously composed as a consecutive treatise dealing with
the symbolic ceremonial by which an action for the
recovery of the possession of land was institnted; the
latter portion consists of a selection of isolated rules, some
dealing with hereditary succession to land, others having
no more than an incidental connexion with those which
lU"eccde them.
XIV
DTRODUCTIOX.
This tract, in itself of obvious utility to the practising
Brehon, is the subject of lengthened and clear explanations,
and it would appear that the commentary annexed to the
text is form cd by combining several antecedent commen-
taries from different manuscripts, inasmuch as very similar
notes upon the same passage succeed each other in the text.
The great importance of this tract arises from its ex-
hibiting in the clearest manner the mode in which the
judicial authority of the Brehon arose, and the series of
lcgal fictions by which a defendant was constrained to
come into court, and to submit his case to the jurisdiction
of the customary Judge. It is most interestillg to observe
that the authority of the Brehon among the Celtic Irish
arose ill precisely the same manner as that of the Judges,
by whatever title they may be called, among the other
Aryan tribes; that the peculiarity of the Brehon system
does not prove any abnormal orgallization of the Celtic
tribe, but was in truth but an instance of archaic survival;
and that a Roman might þaye recognised in the proceedings
before the Brehon the ancient and technical formulæ, from
which with difficulty and after long delay the Civil Law
succeeded in freeing itself.
The evolution of the idea of law and judicial authority
is inseparal)le from and follows that of government and
social organization; the judicial system of the Celtic Irish
was permanently fixed by the arrested develupment of their
social organization, from many causes, which it is not
intended here to discuss, but most of which were originally
physical. The Celtic Irish never formed town communities,
or were subject to any vigorous central authority; it was
utterly impossible, therefore, that they could attain to ideas
of law, which are evolved by the needs of a more cOIIl)Jlex
civilization; the peculiarity of the Brehon is that profes-
sionallawyers of great acuteness :md considerable technical
education developed in numerous written ,\ orks the logical
results of a purely archaic customary law.
In the introduction to the htst volume we drew special
attention to the fact that all judicial authority, at leabt
I
TnODUCTIOK.
xv
among the Aryan or Indo-European tribe communities, is
originally dcri \'eù from a system of voluntary submission
to arbitration, and we treated the Brehon process by dis-
tress as a legal fiction illustrative of this principle; the
formulæ necessary for the iw;.,titution of actions to recover
the possession of land, and which are dealt with very
funy in the present tract, in a remarkable manner illustrate
this rule, and present extraordinary analogies to the ancient
processes of the Roman law. "Te desire very briefly, and
with special reference to the forms of actions-the subject
of this tract-to re-consider the origin and theory (If
judicial authority in primitive communities. E\ ery archaic
society is governed absolutely and exclusively Ly "Custom,"
which may be defined as the acquired habits of any human
community. Whence any such habits were originally
acquired, or when any society began to acquire and trans-
mit any fixed modes of acting, are questions wholly foreign
to this introduction; we must accept as a fact that every
human community appears to have acquired certain habib.
of acting, and that the surrounding physical. conditions
have been most influential in either origina6ng or modifying
them; abstract ideas of right or wrong are very obscure in
the members of a primitive community; even in the ordinary
affairs of Jaily life they consult their own comfort and
aùvantage much less than do the members of a civilized
society, anù do and endure many things because their an-
cestors did or endured the same, for the local opinion
of the tribe believes that their ancestors were wiser than
themselves, and what has been shall continue to be done.
In such a state of society the ordinary incidents of life, such
a:> the birth or death of any member of the community,
&c., are followed llY fixed and well-known results, and
the status, property, and position of each indi\idual depend
upon, or are affected by, the occurrence of a well-understood
fact, or group of facts. The progress of any such society
arises from the efforts of individual members to get rid
of the custom which re<;trains their personal freedom, to act
otherwise than the unwritten law of puLlic opinion decrees
X\'l
IXTRODUCTIOX.
that they must act, from the struggle of the free will against
the local custom. In such communities the individual dares
not nttempt to attain his object by open contradiction, or
repudiation of the venerated local usage, and strives, there-
fore, to effect his purpose through fictions by means of which
the custom is violated in fact, though observed in appearance.
If a man, who desires to do so:nething which he is forbidden
to do directly, observes that in the event of certain facts
occurring the custom will allow him to do what he desires,
he may artificially produce the requisite state of facts, and
then, in apparent conformity with the custom, circuitously
effect what he could not have directly accomplished; in
such a case a series of acts are consciously done solely for
the object that a certain effect may follow; the object
desired is the consequence of the act done, and arises
from the actual pre-existence of the necessary antecedent
fact; gradually as it is understood that the custom can be
thus evaded, the necessary ant
cedent acts became less and
less real, and finally assume the form of a symbolical, or
pantomimic performance, which, with the objeet of individual
convenience, is gradually more curtailed, until at last it is
simply alleged or verbally asserted to have been performed,
and matters are allowed to proceed upon such assumption.
Up to this point it is manifest that the necessary antecedent
facts must be fully and correctly performed, simulated, or
alleged, and that any failure so to do, or incorrectness in so
doing, must result in the failure of the whole operation.
Finally, the exception having become mOl"e familiar than the
l'ule, the society begins to believe that the individual has a
right to dq directly what he has hitherto affected indirectly,
and the formula, which originally was the foundation of the
matter, is discovered to be an unmeaning technicality and re-
jected altogether. The ceremony of marriage among half
civilised nations is the most obvious instance of this fact,
and the form of marriage by wife-capture existed in Rome,
as in many other communities, for centuries after the date
at which its meaning was so utterly forgotten that historical
romances were invented to account for its origin. As to
INTRODUCTIO
.
XVll
transactions of this kind during the intermediate period,
when the necessary antecedent facts were merely simulated
or alleged, two points must be observed; first, that unless the
simulation was correctly performed, or the allegation full and
complete, no results at all followed, and secondly, that if the
ceremony was correctly gone through, precisely the same
results followed as would have resulted from the real occur-
ence of the facts simulated to have occUlTed.-
The jurisdiction of JuJges was gradually established by
a series of fictions. In the original tribe each" paterfamilias"
ruled as of right those under his absolute jurisdiction; but, if
differences arose between mcmbers of two distinct families,
there wa.<; no original authority to which either could appeal;
such disputes could be decided only by a recourse to force
and arms; the manifest inconveniences of such a system
called for some remedy, as the society progressed towards
order and civilisation. At so
e pe1"iod there arose a custom,
or general public opinion, that under certain definite circum-
stances the hostile litigants should submit their quarrel
to the arbitration of the tribe, and that the question in
dispute should be decided by l'efercnce to the assumed
pre-existing custom.
The rule that in such cases recourse should be had to
arbitration was in its inception one of imperfect obliga-
tion, and the contending parties might still insist upon
the natural right to assert theil' claims sword in hand;
the regulations as to judicial process among the early
· The common recovery ill the Engli.h law was one of the most elaborate and
successful of legal fictions; by this process the owners of estates tail succeeded in
practically repealing the Statute" De donii." The original form of procednre in
actions of ejectmeut is often described as another instance of It:ga1 fictions; bnt it
does not fall within Sir H. S. Jlaine's definition of the term; it was not introduced
to create or attract jurisdiction. for the Court of Common Dench had original
jurisdiction to decide the question really in issue; and it produced no change in
the rules of the Common Law relative to titles to land. In it.. inception it was
nothing more than a fraudulent abuse of the procedure of the Court arising from
the alterati,n in the form of judgment entered np in actions commenced by the
writ" de ejectione fermae ;" Ilnd the alterations in the procedure, which established
it as the ordinary action for the recovery of I md, were introduced by the Court
itself.
b
XVlll
INTRODUCTION.
N (\rse settlers in Iceland illustrate this most clearly j.
but gradually the increa8ing pressure of public opinion
caused the reference to arbitation to become the accepted
and normal mode of deciding differences between the members
of the tribe. It is to be observed that the public opinion,
or custom, did not require the intervention of the arbitrator
until the dispute had reached a cert.-'tin point, viz., until the
public peace of the tribc was broken by the occurrence of
actual hostilites between its members. An individual could
not institute a suit to dctcrmine a right as against his
neighbour j but if he assailed his neighbour, spear in hand,
the communit)" required both to submit their rights to
arbitration. The plaintiff, therefore, who desired a judicial
decision upon his claim, proceeded openly to assert his
right in an hostile manner, confident that upon the inception
of the combat the other members of the community would
intervene and enforce the custom of arbitration against both
parties j the neighbours would not, however, step in between
the parties until matters had gone on to thc point at which
the custom required a submission to arbitration, nor could
the defendant be required to admit that the custom applied
to his case, unless all the preliminary requisite circmm;tanccs
had actually occurred. The pantomime of actual cunflict
had to be cOlTectly acted up to the critical point, otherwise
there would be no basis for the jurisdiction of the arbitration,
and it should not be pushed beyond a definite point, other-
wise actual conflict would have occurred, the very tllÌng
which the plaintiff desired to avoid. Hence the extreme
technicality of all the early procedure, which proceeded upon
this theory, and the fact that ancient lawyers devoted their
attention to the formulæ requisite to bring a defendant into
court, and disregarded the principles upon which the case
should be decided when brought before the arbitrator j for the
decision of the case it was assumed that the existing custom
.. " Then Flosi spurned the money, and said he would not touch a penny of it,
and then he said he would have only one of two things; either that Hanskuld
should fall unatoned, or they" ould have vengeance for him." (The story of Burnt
Njal, vol. 2, p. 1:;5.) This was after the judgment, and the tender of the com-
pensation.
I
TRODUCTIOX.
XIX
was sufficient, and the" sensus communis" of the members of
the community evolved the presupposed usage which ruled
the case.- Ignorance of the prescribed formula deprived a
· The proceedings at the trial at the Hill of Law in the second volume of the
Burnt "Sjal illustrate this fact, and prove that the technical terms relative to
"\ anoW! cla"Ses of wounds, &c., and the mysterious and obscure proceedings
incident to an action, were not peculiar to the Drehon Law. The course of
the proceedings in this case may be briefiy stated as follows:-
rorl1, the nominal
plaintiff, gh-es technical notice of the institution of suit (p. 23;;); Flosi, the de-
fendant, in the ni
ht secretly resigns his priesthood and joins the Thing of Askel
to escape the jnrbdiction of the Court (p. 239); the next morning lIIord opens
his case witlf the following notice- U I take witness to this, that I except all mis-
takes in words in my pleading, whether they be too many, or wrongly spoken, and
I claim the right to amend all my words, until I have put them iuto proper shape.
I take witness to myself in this.' (p. 2-12) ; the first objection taken is in the nature
of a challenge of the array, viz., that two of the neighbours on the inquest were
relatives to Mord, one his god [ather, the other his second cousin (p. 2-18) ;
Thorhall, the ad"\ iscr of the plaintiff, demurs to the challenge on the ground" that
be chlillenged them not for their kinship to the true plaintiffs, the next of kin, hut
for their kinship to him who pleaded the suit " (p. 2:50). The demurrer is allowed.
The defendant a
,"ain challenges the arra)" on the ground that two men on the
inquest were lodgers onl)', not hou'eholde
s (po 2:50). Thorhall replies that the
men qualified as owners of cattle of a value equal to that of the requbite
qualification in land (p. 252). This was a nove) point. Flosi said to Eyjolf-
.. Can this be law?" E)"jolf said hehad not wisdom enough to know that for a surety,
and then they sent a man to Skapti, the speaker of the law, to 85k him whether it
were good law, and he sent them Lack word, "that it wauurefy good u>w, tlwug"jelD
knew it " (p. 252). Then foIlowed a challeuge to four of the inquest; " fOl those
sit now at hom
who were nearer neighbours to the spot'. (p. 2;;3). To this
challeuge Thorhall demurs on the ground that a majorit)" of the inquest was
rightly summoned, and that therefore the case shoald proceed, whereupon a further
application is made to Skapti, who replies, "
Iore men are good lawyers now than
I thought. I must tell you then that this is such good law in all points, that there
is not a word to be said against it; but still I tlwught that I alone lDould know o,i"
now that Njal is tkad,fol' he was the only man I ever knew who J.ne", it." The
inquest are then called on W give the verJict, which they do without further
evidence, for they themseh-es were the witnesses (p. 2;;G). The plaintiff goes then
before the Court, and proves the finding of the inquest as to the fact, and the
defendant, Flosi, is called to defend the case, or rather to show cause against the
finding. EyjoU, on behalf of the defeudant, pleads to the jurisdiction of the
court, which was the Eastfrithersthing, whereas F10si, bei:J.g now a Thingman of
Askel, was within the jurisdiction of the l.,orthlandersthing. This objection 7las
fatal; but a second suit is immediately instituted against Flosi for contempt fur
court for employing a lawyer in the court to whose jurisdiction he was not suhjcct,
"for baving brought money into the fifth court ,. (p. 2GI). This step was ukcn
to compel Floai to withdraw the plea to the j unsdiction. Other technicalities
foIlow, Lut the litigation tinally resolves itself into tbe "Daltle at the AJthing. "
b2
xx
INTRODUCTION.
man of, not of the right, but of the possibility of bringing his
antagonist before a Judge; and the possessors of the req uisite
mysterious forms, whether patricians, pentiffs, or Brehons,
thus acquired the advantage of being the sole possessors of
these secret and essential forms. Thus, in the Roman law,
the term "actio" became the generic designation, which
signifies a particular form of procedure taken as a whole
including the ceremonies, acts, and worùs, which constituted
it; all of which had to be correcUy gone through before
the Judge had any jurisdiction in the matter. The case of
.
the Romans proves that it L"I quite possible that an actual
written law should co-exist with such a purely archaic
conception of the position and jurisdiction of the Judge.
This period in the development of Roman law is clearly
illustrated in the following passages :-
"The Quirites (men of the lance) had, in their judicial
customs, even to the promulgation of the twelve tables,
forms of procedure, assimilated to acts of violence, and
to the com bat, in which we at once see their predominant
characteristic, the military life, and the important part
played amongst them by their favourite instrument, the
lance; as also the predominance of the sacerùotal and
patrician elements, which had regtùated the forms, and
which had preserved the pantomimic action of former
days.".
"The actwnes leges wcre completed in jure before the
magistrate, and this was the case even when jt was necessary
for him to appoint a Judge. This was the form, the prelimi-
nary step;"t (that is, the intervention of the state did not
proceed beyond compelling the parties to submit the quarrel
to an arbitrator; the state dill not pretend itself to enforce
the law in the first instance);
"But notwithstanding the fact that the sacmrrnenturn,
and the judicii 2Jostldatio were generally forms for the
enforcement of all substitution of rights, and that they had
in all cases a certain uniform characteristic, however much
the details and necessary formulæ, adapted to each individual
... Ortolall, History of Roman Law, sec. 140.
t It1., sec. 142.
I
TRODUCTION.
XXI
case, might vary in each instance, according to the nature of
the law, or according to the provisions of the law upon
which the right was based, it was necessary that the parties
should be familiar with the acts and ceremonied suited to
their particular case.".
.. Such was the early system of procedure amongst the
Romans. Its characteristic was symbol; it is here that we
find the lance, the tuft of grass, the tile, and the material repre-
sentation of ideas, or of objects. It is here that we find the
gesture, the legal pantomime, the simulated act of violence,
the fictitious combat (7JutrLu'ltm C01tSe1"tw), for the most part
symbolising the tmn
actions and processes of an earlier and
barbarous period; here we find the utterance of sacred WrInS,
and he who should be so unfortunate as to say <<vine"
(vites) in an action concerning "ines, instead of using the
word "aI"bOl"es," which was the religious term peculiar to
the law of the case, would lose his action; here we find the
impress of the sacerdotal finger; we see it in the saaa-
mentum, the preliminary deposit of money in the hands of
the pentiff for the benefit of public religious service; we see
it in the pignoris captio, accorded subsequently on occasions
in which religious sacrifices were concerned; and it is here
we find the weight of patrician influence. The magistrate
was a patrician; the Judge could only be selected from the
order of patricians; in one word, jus and the judicium
were in their hands."t
The explanation of the latter statement l)lainly is that
it was the original tribe, not the mere sojourners or strangers
on the spot, who had the right to intervene to preserve the
peace, and that none but a member of the original tribe
could be assumed to know the local custom.
The Roman ceremonial to which we desire to draw particu-
lar attention, as presenting peculiar analogies to the Brehon
procedure detailed in the present tract, is the manuum conSlY1"-
tio, which formed portion of the symbolic action which took
place in the process known as the<< SaC1"a11wntu,m. " This
... Id., sec. 143.
t Id., see. 1H.
XXII
INTRODUCTION.
proceeding appears to be nothing else than a personal conflict
between the litigants, fought out over the subject matterindis-
pute; if the subject of dispute was such as could not conve-
niently be calTied or led before the prætor, a portion was
brought into court, and the formalitie'! were enacted over it as
if it were the whole (dcindc in eam pa'rtem quasi in totam
1"em p1'æsenten1, fiebat vindkatio). If it was a flock of sheep
or herd of goats, a single sheep or goat, or single tuft of hair
was brought; if it was land, a clod; if it was a house, a tile,
(Gaius IV
17 Poste.s translation). The essence of the action
was an actual combat over the subject of dispute; a mere
personal conflict apart from the subject matter in dispute
was not sufficient to compel a submission to arbitration as
to title; the actual "res" or its symbol must have been fought
across by the contending parties. It is remarkable how far
even at the date of Gaius, the original form in actions as to
the possession of land had been symbolised for the conve-
nience ofthe parties. Originally, when land was the subject
of controversy, the prætor repaired with the litigants to the
spot, and they there performed in his presence (injm'e) the
ceremony of the manuum conse1"iio. At thi::; stage of the
procedure, the breach of the peace was designedly produced
in a symbulic form, but every thing else was real. .When,
however, the Roman territory became too extensive for the
prætor to attend every such fictitious combat, the ceremony
was adapted to the change in circumstances, the presence
of the prætor was dispensed with; the parties, accompanied
by their respective witnesses, performed the manuu,m con-
BCl.tio upon the ground in dispute, and carried a clod as
portion thereof to the prætor, and then matters proceeded
as if the prætor had been present upon the lOC'U.B in quo
during the performance of the ceremony. Subsequently the
necessity for the litigants to resort to the lands in dispute
was dispensed with; they left court and again returned, it
being assumed that they had in the meanwhile repaired to
the lands in question; that is that the statement that there
had been a ?nanwnm conscrtio became an un traversable
I
TRODU'CTIOX .
XX III
aUegation in the pleading, and of course was soon absolutely
dropped out and disregarded..
The Brehon procedure for the recovery of land is identical
with the Roman form up to the point at which the contest
for possession was reduced to a mere symbolic formula;
probably from the small extent of the tribe lands in which
such disputes arose, the further step of substituting an
untraversable allegation that a conflict had arisen for an
actual or simulated conflict JiJ not occur to the Celtic
lawyers; but the procedure, although crystalised in this
archaic form, was modified to suit the circumstances of
different CMes, and was adapted to admit what in our
.. JIIr. Poste in his edition of Gaius (p. 499, 2nd ed.) a<ks the question, .. W"hat
was the exact nature of the 'manuum consertio? ,.. Upon the analoh'Y of the oath
taken by the parties in the wager of battle in the old Englbh law he conjectures
that the term was equb.-alent to ð.ti"'
a, an oath or pledge that the party believed
in the justice of hid case; in the first edition of :':is work he adds, "It must be
confcS:!ed, however, that none of our authorities allude to the oath (jusjurandum)
having formed a part of the procedure by sacramentum, and possibly the manuum
con.ertio was merely a symbolic battle." In his later edition he adds .. Is it
possible when we consider the common Ar
'an descent of the Romans and our
Teutonic ancestors to 8uppose auy connexion bet\\een the forms of Roman aud
Teu
onic litigation? Or, wai molnuum consertio merely a symbolic battIe, an
idle reminiscence of a process belonging to a period anterior to the existence of
public tribunals, tbe period of self-help, when the remedy of the litigant was to
redress hid wrongs by the prowess of his own right hand? Or was manuum
consertio, like Diductio and Vis ex conventu, a fictitious trespass necessary for
the basis of the penal (?) proceedings by sacramentum? Or was it merely the
means of identifying the subject of 1itigatiou? ., (p. 500). Thc supposed analogy
between the Roman action and the "'ager of Battle is very doubtful. The
English proceeding was one of the modes of arrh-ing at a finding upon the issue
of fact arising upon the pleadings, by an appeal to the Divine power to testify as
to this fact by giying the victory to the party in the right. The assertion of right
was an appeal to the Divinity by both of the combatants, who might be hired
champions, but ought to be persuaded of the truth of their cause. Upon the
result of the combat depend"d the finding, as to the question of fact, npon which
judgm"nt was entered. What resemblance there is between these cases it is
difficult to see. There can be little doubt that manuum consertio is to be trans-
lated in its ordinary meaning as a combat, not 1\ " symbolic battle, an idle remin-
iscence of a process belonging to an anterior period," but, fo,' the purpo!u of the øuil,
an actual combat, as for the purp08e of barring an estate tail, the recovery was
an actual actiou, pleaded to and defended by the tenant in tail; and tàe judgment
over in warrentee against the youchee was full compensation to subsequent tenant
in tail and the remainder men.
XXIV
I
TRODCCTION.
present system of English pleadings would be described as a
counter-claim.
It is to be first observed that the introduction of the
community for the purpose of compelling the parties to sub-
mit to arbitration, was quite independent of any intention
or desire of the parties that there should be an adjudication
as to their several rights to the land in question; it arose
from the existence of the fact that two claimants were at
one and the same time in possession adversely to each other
of a certain piece of land. This iR very clearly shown by a
case cited in the commentary.- Ninne, the son of Matech,
with three horsemen was on his way to Ulster; they
unharnessed their horses upon certain lands, which had
previously bclonged to their tribe; this fact was unknown
to them, they had no intention of making any claim to the
bnds in question, and their halt there was merely accidental.
The occupier of the land required them to depart; "Then
the two, who were with Ninne replied; 'It does not make
our claim greater that we have unharnessed our horses here;
it is not to claim our share therein.' (The occupicr replies)
'This is not easy, for it was your own before; they shall not
be left there for that reason.' They did not knO'l.v until
then that it had been theirs before. The person whose land
it was drove their horses from it Ly force. They aft.erwards
complained to Conchobar Mac Nessa concerning it, and he
awarded a fine for unlawful expulsion upon the person who
drove the horses out of the land, and an equivalent for what
was driven off it, and he gave them lands in proportion to
their family."
This story recognises the right of Matech to require
an adjudication as to his rights in respect of the
lands, although the King compounded this claim by an
equivalent given out of his own lands. This bare fact of a
contest for possession was gradually modified into a fixed
procedure by which notice of the intended entry was served
upon the occupier, and the transaction was witnessed and pro-
bably regulated to members of the tribe, the occupier given
.. Page 5.
INTRODUCTIOX.
xxv
ample time to consider whether he would abandon tbe lands
to the claimant, or submit the case to arLitration, and, finally,
damages payable to the occupier for an illegal entry secured
in the event of the claim proving unfounded. The ent.ire
process in its fully elaborated state was tedious, requiring, if
the occupier simply remained quiescent, a period of not less
than thirty days. For ten successive days (or at least on the
fir5t and tenth day) the claimant gave notice of his demand,
and of his intention to enter if no answpr were returned;
on the tenth day, accompanied by his witness, and leading
two horscs by their bridles, he crossed the boundary, and
remained upon the contested premises, but just within the
march, for a day and a night; he then retired, and during the
subsequent period of ten days (or at least on the middle and
l<tst day) repeated the notices previously given; upon the
twentieth day he again crossed the march, with four horses
and two witnesses, and advanced one third way towards the
centre of the lands. If again he received no answer from tbe
occupier, he withdrew, and for two days more gave notice
outside of his intention to make his final and decisive entry;
on the thirtieth day he again entered the lands with eight
horstS, and with witnesses of whom a certain proportion
were of the chieftain rank (flaitl
8), and the others freemen
(feini); upon this last occasion he advanced to the centre
of the land, and took posse
sion, unless the occu pier submitted
to arbitration. The prolonged period requisite for the notices
and several entries, was intended to allow the occupier time
to consider whether be would consent to arbitration; and
the final entry was in such a form as to compel the occupier
either to abandon possession. or actually to resist, for it is
stated that, "unless law be offered to him before going over"
(which must mean the crossing of the bOlmdary on the
thirtieth day), "it is not unlawful for him not to come out,
until it is ascertained whether the land is his or not." If, how-
ever, the occupier distinctly refused arbitration, and con-
tested the rights of the claimant, the lengthened procedure
was unnecessary, and the matter was brought to an issue by
an actual forcible entry and occupation of the lands in
question; "if it be certain to him (the claimant) that law
XXVI
INTRODUCTION.
will not be given to him before going over" (i.e., before he
has crossed the boundary upon the thirtieth day)," it is
not unlawful for him that he has not given notice, provided
that he has brought the means of taking possession "; and
again; "if it be certain to him that law will not be ceded to
him, it is guiltless for him to go over with all his cattle."
The symbolism of the procedure is evident; the claimant
is to enter upon the lands in such a fashion as to show that ·
he is not seeking as a traveller to cross the piece of ground in
question; he does not drive his chariot into or upon the
lands, for in such case his intention might be ambiguous;
his horses must be loosed from the chariot, and led by the
bridle as if to graze; the duration of the first entry is
intended to prove by a lengthened sojourn within the fence
that his claim was not to traverse but to occupy; on the first
two occasions upon which
n actual conflict isnot anticipated,
he is attended by a witness or witnesses to testif)' to the
performance of the essential act; upon the third occasion he
is accompanied by witnesses, who must consist of members
of the noble and of the free class of the tribesmen. The
necessary presence of the former is remarkable; it is very pro-
bable that they are representatives of the community, whose
office would be two-fold; either to intervene as the Roman
prætor in the actio sac1'wment'i, if an actual conflict occurred,
or if the occupier abandoned the pos
ession to recognise th
claimant as the legal occupier of the land. That the arbitra-
tion must have rested upon either voluntary submission or
actual conflict, is manifest from the statement that the result
of an unresisted entry on the thirtieth day by the claimant,
not followed by a submission to arbitration by the occupier,
was not in the nature of a judgment in rem, but merely
legalised the plaintiff's occupation until the question of right
was decided; and this continued legal occupation had no
other result than to inconvenience the occupier to such an
extent as to compel him to discuss before the professional
arbitrator the question of right.">\'
.. The Welsh process for the recovery of land is analogous to the Irish. " There
are three kinds of dadenhudds of land; and these dadenhudds are, a dadenhudd by
tilth and ploughings, a dadenhudd by car, and a dadenhudd by bundle and burden."
I
TRODUCTION.
XXVll
The symbolical acts by which a man expressed his inten-
tion of subsequently taking possession, and which upon the
last entry amounted to constructive possession, were mani-
festly unsuited to the case of a woman; it was necessary for
her to represent in pantomime the incidents of her owner-
ship, and if she failed in the appropriate details, the cere-
mony was wholly useless for the pUl1)ose of putting the
occupier in such a position that public opinion would require
his submission to arbitration; thus when the Brehon Sencha,
with the design of causing the process to fail, declared that
the formulæ in the two cases were the same, blotches arose
on his cheek as a punishment for his unjust advice; nor
was he cured until his daughter Brigh communicated to
the female claimant the requisite symbolic acts for the
purpose of establishing her right to force the occupier to
an arbitration.
The exclusive possession of the knowledge of such ancient
forms was in all early societies the basis upon which rested the
.. And these dadenhndd8 are not to be prosecnted except by the son, in the place
where his father was theretofore, or in the place where his parents were fonnerly;
for a dadenhudd is not to be sued by kin and descent."
" Whoever is to prosecute dadenhudd by tilth and ploughing, is to remain npon
the land, without answering, until he may turn his back on the stack of the forth-
coming harvest, and that without answering to anyone, and the answer j and the
ninth day from the following calends of winter, law."
.. 'Thoe"er is to prosecute dadenhudd by car, by having heen with his car and
his household and his hearth, belonging to himself, or to his father before him,
npon that land, is to be there, withont answering, nntil the ninth da)', and then
give an answer; and at the end of the second ninth day proceed to law."
.. Whoever is to prosecute dadendudd by bnndle !ind bnrden, by having been
iVith his bundle and his burden, his fire, himself and his father before him using a
hearth, upon the land, is to be there, without answering, three nights and threo
days, and give an answer; and At the end of the ninth day, law."
.. And the dadendudds are not to be adjudged to anyone, unless there shall have
been a grant and delivery of the land to him previously b)" the lord." (Ancient
Laws and Institutes of Walea, vol. i., p. 171,)
It is to be observed that these forms of action are confined to claims founded
upon actual ouster, or by lineal descent to lands granted to individuals in several
propertr. The narrow limits within which a claim by hereditary descent were
restricted by the Welsh law are subsequently explained in the section of the
Introduction dealing with the fine and the gRlfine organization. The full detaiL!
of the procedure in such cases are in the same work, voL ü., p. 277.
XXVlll
INTRODUCTION.
power of the sacerdotal or patrician classes. If the correct
fulfilment of ancient traditional litanies, or the dramatic
performance of a complicated pantomime, was necessary for
every tribe man who desired to accomplish his devotions or
to assert his right, the class, which posse
sed the traditional
and requisite formulæ, exercised an undefined but un-
limited influence over the uninitiated lower order. The
first step towards the establishment of original judicial
power, was the publication, or perhaps the vulgarisation, of
the antique formulæ. A knowledge of the custom was practi-
cally useless unless accompanied with the further knowledge
of the appropriate form of action; hence immediately after
the passing of the Twelve Tables a further effort was made
to prescribe regulations for the forms of procedure, or thc
actions of the law (lcgcs actiones); and hence the severity
ofthe blow inflicted upon the Patriciate Ly the devulgation
of the formulæ Ly Flavius Fimbria. There is some incon-
sistency between the text and commen
'try as to the form
pursued by a female claimant, but upon the whole the
principle of the variance between the two ceremonies is
obvious; the symbolical acts to be performed by a woman
represented the ordinary incidents of her occupation of the
land; for the horses led by the man, in her case were substi-
tuted the same number of sheep; the period of thrice ten
days was in her case reduced to thrice four days; she made
three successive entries, first, with two sheep and one female
witness; secondly, with four sheep and two female witnesses;
and lastly, with eight sheep and three female witnesses; the
text cites what must have been considered the leading case
of the woman Ciannacht, which contains further particulars
of the procedure which had apparently fallen into disuse
before the date of the commentary. It was necessary for
the claimants of either sex up
n the first entry to remain a
full day and night within the fence, and by the commentary
it appears that upon the second entry also it was necessary
for the woman to remain for this period upon the lands; the
witnesses therefore who accompanied her upon these occa-
sions were women, not men; but upon the occasion of the
I
TnODLCTIO
.
XXIX
third and final entry she "claimed her right with a male
witness." 'Vhatever be the reason that upon the two first
entries the witnesses were female (as to which the gloss gives
a curious explanation), it is evident that the witness upon
the occasion of the third entry was required to be a male,
and we may infer that this arose from his fulfilling not
merely the duty of witnessing the transaction, but of inter-
vcning, in the name of the community, in the manner above
suggested. The original also represents Ciannacht not only
to have driven the appropriate number of sheep into tbe
land, but also to have carried with her a sieve, a kneading
trough, and a baking instrument (probably a griddle); these
articles clearly indicated her intention not merely to enter,
but also to remain upon the lands, and to perform the duties
of her position as hou&ewife.
This ceremonial, necessary as a general rule for the asser-
tion of a claim to the possession of lands, was, from its
nature, in some instances impossible, and in many incon-
venient; and the form was therefore varied to suit the
peculiar nature of the case, hence the passage in the text:-
"There are seven lands with the Feini-into which cattle arc
not brought for entry; it is men that are required" (p. 7); and
that in the commentary :-" the same number of cattle which
is brought to take possession of the other land., is the number
of men that shall be brought to take possession of these lanùs "
(p. Ð). The two first cases excepted are those in which the
entry with horses was absolutely impossible, viz., (l)adun fort
without land, or (2) a church without a green; the four next
exceptions are ca..,es in which the horses to be brought upon
the land would be exposed to some necessary peril, viz., (3)
" a land upon which there are plunderers," which is glossed
as meaning a land upon which the cattle have been killed;
this is a very ambiguous expression, and may bear two
entirely different meanings, according to the reference of the
term" plunderers," either the persons in occupation, or to
third parties; the general object of the exception is that
the claimant should not be obliged to go through the details
of the ceremony, if there were reason to anticipate his
I
xxx
INTRODUCTION.
horses would be injured or stolen; (4) an island into which
it would be impossible, without great inconvenience, to
bring the horses; (5) land the cattle upon which were
suffering from murrain; (6) land the cattle upon which
were upon certain contingencies liable to be seized by
some local potentate in exercise of some customary right.
Two instances of lands of this description are given; the
lands of Tir-Mudhain, the cattle upon which were forfeited
to the King of Caisel on the day on which he assumed the
sovereignty, because the inhabitants of the lands had killed
a former King of Caisel; and the lands of Rod-Adamair,
the cattle upon which were similarly forfeited to the Coarb
of Lismor the day on which he assumed the Abbacy, a custom
eXplained as the reward granted to Saint Mochuta, the
founder of Lismor, for having expelled a serpent out of the
lands in question. In both these instances the lands were
subjected to some curse or penalty, in expiation of the sins of
their former owners, and such exceptional rights should not
be confounded with any of the feudal incidents; (7) the last
excepted case is that of" land which the chief divides after
the death of the tenant (occupier), where a hole is made,
where a stone is put." It is evident that this passage was
ambiguous to the glossists and commentators; the immediate
gloss upon the text is perplexed anù contradictory; it seems
to explain the exception as referring to any proceeding on
the part of the chief to re-enter upon a portion of the tribe
land (dibadh land), after the death of the member of the
tribe to whom it had been allotted, for the purpose of re-
distributing it. In a later passage of the text, which occurs
in page 21, there are two classes of land excepted in the
following words, " except in the case of the lands of Conn
Cetcorach, or of land devoted to the support of a mansion
whieh is a Nemeadh-person's," the latter of these exceptions
manifestly corresponds with the ßixth exception of the
passage in the 7th page, and it may be assumed that the
former exception, in the latter passage, agrees with seventh
exception in the earlier portion of the work; this is
rendered certain by the explanation in the gloss that the
INTRODUCTION.
XXX.I
phrase" Conn Cetcorach's la.nd" ùcnoted some particular.
portion of the "dibadh " land; the gloss in page 23 explains
the exception as referring to a contest between tribesmen
upon a re-distribution of the land by the chief, but adds the
very difficult passage, "as to the land which is lent or let
for rent, it is into it the requisites for taking possession are
brought." That the ancient ceremonial should be exclusively
(or at all) applicable to lands let upon rents, is highly im-
probable, mid it is in contradiction to the cases of Kinne
son of Matech. anù CiaIlllacht, which were evidently con-
sidered as leading authorities. The only explanation of tte
gloss which can be suggested, is that the glossist intended
to distinguish the two classes of L.'tnds; those held in common
by the members of the tribe, and divided and re-divided
among them by the chief, to which the entry with horses
was not necessary; and those held by members of the
tribe in severalty, to which the ceremony was applicable;
but that at the date at which the gloss was written the
free members of the tribe had been rcduccd to the position
of paying rent to the chief for the land held in severalty,
and that thus the payment of rent had become one of the
incidents of several ownership.
The claimant having, however symbolically, asserted his
claim to possession of the lands in question by a forcible entry,
if he failed to sustain his right, became a trespasser ab initio,
and was bound to pay damages to the defendant whose
occupation he had wrongfully disturbed. Every step in the
procedure had to be taken in such a manner that the damages
for the entry, if wrongful, were ipso facto secured to the defen-
dant. In the case of a male claimant, every witness, whom
he brought with him on each occasion, was to be of an honour
price equal to the value of the land. The fine for the entry
fell upon the claimant and his witnesses, who, most probably,
in the subsequent proceedings testified to the validity of the
claim, and it would seem that when the claimant, after the
third entry, was put into possession of the lands in question,
all the stock and other property brought in by him upon the
lands, were charged with the damages ultimately to be found
XXXll
I
TRODUCTIOY .
payable to the defendant if the claimant's case :fitiled; and it
may be conjectured that in the original form of the action the
claimant was bound to put on the land upon the occa.c:;ion of
his third entry stock equivalent to the value of the land; such
at least seems to be the passage in the text :-"If there be
Fenechus," (submission to arbitration conceded as a custom-
ary right), "speedy judgement is passed in his favour. If
there be not Fenechus, lawful possession i.s gi'æn; its price
is to be offered with sheds, cows, food, habitations, attend-
ance of cattle, except in the case of the lanrl of Conn Cetcor-
ach, or the land devoted to the support of a mansion which
is a Nemadh-person's" (p. 21).
The exceptions prove the rule that it was necessary in all
other cases to bring in the equivalent in property. 1f this
be correct the analogy to the actio sacramenti in all its
essential points is complete; and the property to be placed
upon the land represents the subject matter of the symbolic
wager. This system of counterclaim was strictly logical, and
founded upon the mode in which such transactions were
regarded by a tribe in an early stage of civilization. The
symbolic act was rcgarded as a real and bonlÎ fide transaction,
and all the consequences followed from it, which should
have followed if the thing dramatically represented had really
taken place; the ceremonial was a short-hand mode of writ-
ing, but was for all purposes that which it represented. The
defendant was forced to arbitration upon the assumption of
an actual conflict, arising out an actual adverse entry; the
claimant could not deny the reality of the trespass, which was
the basis of his claim to obtain a judicial decision of his
rights, and was estopped from trasversing this fact when the
defendant sought in his turn damages for the wrong sym-
bolically inflicted. Thus, among the .Maories, when a man
guilty of manslaughter expiated the offence by submitting
to the form of being wounded by the avenging kinsman, he
was considered as absolutely dead for all purposes; he lost
his status as a member of his tribe; his property was divided
as if he were actually dead, and he was, as if a stranger, re-
introduced into his original tribe by the ceremony of adoption.
IXTROD{),CTIO
.
XXXlll
The amount of the fine to be paid by the unsuccessful
claimant, as may be anticipated, varied, according to the
Brehon Law, with reference to the various circumstances of
the case. " If the nobles have entered over a full fence, and
it is a land which has not a chief and a tribe, it (the fine) is
a "Cumhal" and forfeiture of stock. If they hat'e entered
over an half-fence it is three-quarters of a" Cumhal," and
three-fom-ths of the stock. If they huve entered on land
which has not any fence at all, it is half a "Cumhal,"
half the stock. The stock only is to be divided by the
plebeians, and half a "Cumhal" is tlte fine if it be in Cain-
Law.- If it be land that has a chief and a tribe, it is for-
feiture of the stock with a" Cumhal " fine, if entmnce be
made over a full fence, and one half if there be no fence at
all; and this is the same with respect to plebeians and
nobles " (p. 25).
The peculiar distinction in this passage between land
which has a chief and a tribe, and that which has not a
chief and a tribe, is worthy of obsen'ation. The original
translation has in many passages given this meaning to the
words in question j it must, however, be confessed that thi"
translation is most unsatisfactory; it implies the existence
of extra tribal land, a fact most improbable in a country
!'Ouch as Ireland, in which there was no fringe of unsettled
lands between the Celtic occupiers and an anterior
defeated population j the whole island was divided into
distinct and very well-defined tribe districts; neither between
the tribe-marks which must have been everywhere con-
tenninous, and still less within their limits, could there have
been establisbed independant landholders, disconnected from
the prf'vailing system of society. It is to be observed that
the word in these passages translated" tribe" is " eoibhne, "
which is translated" hereditary right" by the same trans-
. Was the forfeiture of the stock absolute in the case of land without a chief or
tribe? or did it in this cue also depend on the result of the action? Although
not without hesitation, we adopt the former theory, "iz., that in the case of such
lands the stock was abaolutely forfeited, because the form of action was inappli-
cable. That the forfeiture was absolute ma
be gathered from p. 21, line 24, and
p. 31, line 31.
c
XXXI V
T
TIWDUCrlO
.
laOOr in such passages as "land to which he thinks he has
an hereditary right" (coibltne); and the word coibhne itself
is frequently used as designating a particular class of pro-
perty in land, coibhne-llmd as contrasted with dibadh-land.#
The term must signify both the nature of the l"Ïght of an
individual to certain landed property of a particular character,
and also the land which was itself the sulject matter of such
a right. In the original text (page 39) the claims of heirs
of females are spoken of as affecting II coibhne "-land, and it
may be reasonably concluded that tIle coibhne-Iands were
those which had been allocated in severalty to distinct
DllllÌlies, and were descendab!e in the families of the original
real (or eupposed) præpositus. The tribe lands, being
those heM in common by the members of the tribe, arc
manifestly descri1ed as the dibadh-Iands, in wilich the
share of each occupier was for life only. If this conjecture
be correct, the passages in question should be translated
"Lands which have not an owner in severalty, and hereditary
transmission "; coiblLne-land would thus be equivalent to the
Norse "1LÛal"-land; and the samc word when used to express
the right of an individual to such bnd (or his share therein)
would correspond to the well known term" udal-recht." If
this conjecture be correct, much of the apparent difficulties
and contradictions in the tcxt and commcntary would bc
. Cund, or conn, is simp1}' a form of the worll meaning "head," an,], as applied
to an individual, must be a correlative term, indicating tIle position of the indi-
vi<lual specified in relation to one or more others. The idea implied by the word
II coibne" is that of the issuing out and interlacing of various branches springing
from one common stock, and it thus means an association of persons grouped
together with reference to a common rig;ht or subject-matter. This is e
act1y the
ancient illea of the ownership of "hereditary" lands, not land in its entirety
transmitted from one individual to another, according to certain rules of sueces-
t!ion (which is our modern conception of heh'ship), but land in which a\1 the
desccndents of the original acquirer jointly take an interest. This coilme property
means I ropert
. held jointly by the aequirer anù his de-cendents. The h
ad of an
actual or potential (amily would Le the cUIHI, or conn; and if the family were
organized on the geiUìne F).stem, he wouM be then identical with the II geilline-
flaith." Dibadh property. in its origim,l sense, as contrasted \\ith coilme propert)",
scems to express an)" property divisible, or to Le divi,led, among sev
ra1 dist:nct
persons. The necessary equi\'oca1 use of such terms ia hereaf(cr referred to in
a sub'cqucnt section.
IXTRODL"CTIO
.
xxxv
rcmowd. "
e find in this tract four distinct c1asses of land
to which the prescribell process of formal re-entry is
unapplicable, having reference to the nature ùf the estate
in the land, and not to the locality or illtIinsic circumstances;
the three more important of these are the following; first,
the land described in the te
t at page 7, in the passage abow
referred to, as "land whieh the King divides after the death
of the tenant, where a hole is made, where a stone is put ";
whatever be the precise meaning of the rule, the text refers
to dihaJb-land redivisable afler the death of each occupier;
secondly, "the land of Conn Cetcorach ", which also is
explained to mean debadh-land, anù, tbirdl.y, the land which
has not" cltnd" or " coibhne." If the third class of land is
simply a negative description of the lands included in the
preccding passages, the meaning of all these passages is
simple and clear, viz, that the common tribe lands, dis-
tributed from time to time among the general members of
the tribe fur a
ricultural purposeR, and mcared by distinct
mounds and boundary stones set up by the executive of
the tribe, and in which the owncr had only transitory
interests, were not lands to which the process of recovery of
possession by entry was applicable. The fourth excepted
cla"s of lands, viz.. those subject to the rights of some
Nemedh person, are lands upon which the process is rather
facilitated than prohibited, in the interest of the c1aim:mt.
It is a common error to a
sert that all lands in Ireland under
the Brehon Law wcre held as tribe lands, and that the
entire tribe were the owners of the lands comprised in the
tribe-district; it is manifest that much land was held in
severalty, and npon such terms that indi dduals had specific
rights in distinct lands, either by hereditary descent, or as
founded upon contract. It is quite possible that lands should
be cut out of the general trihe-land, and become the subject
of several ownership and hereditary rights, without their
vesting in any individual in absolute property. Portion of
the tribe lands may have been acquired Ly a single family,
or by an individual on behalf of himself and his family or
possible desccn
lents, and these may have been transmitted
c2
XXXVI
INTRODCCTION.
by hereditary succession, or sold without anyone person
acquiring the rights which are implied by the English term
in" estate"; lands may be enjoyed in severalty as between
the family and the tribe, but jointly as between the members
of the family itself. Such were tbe principles of the Norse
uùal tenure of land; and some such system of land-holding
seems to be the basis of the Celtic Geilfine system, which
it is proposed tu deal with in the fo1lowing section.
A curious exception to the necessary formulæ occurs in
the case of individuals described as" ?'aitech "-persons. A
raitech-person is defined in the commentary as one" who
was up to this time (the time of the action) abroad, li1:Ï?lg
apart from the tribe, and who does not know that he has
not land, and he comes with his cattle, and his neighbours
say the land is his, and judges tell him to go as far as the
third of the land" (p. 20).
The raitech was therefore an acknowledged tribesman,
who, after long absence returned to his tribe, and, upon the
information given to him by members of the tribe, pro-
ceeded bonâ fide to assert his hereditary right to the coilme-
lands of his family.
The ?'aitechs were divided into three classes; the two
first were the man who had got into failure, and the man
who had deserted upon failure; both these classes comprise
those who had lost, or failed to obtain, any share in coibne-
land, and were so to say" out on the road "; tbe third class
of raitech is defined thus, "The King is ca1led raitech, be-
cause he owns his share of waifs of his road, and also from
his generosity." (Page 81.) The introduction of the King
into the class of broken men is probably due to a fanciful play
upon words; it may, however, be observed, that the King, who
claimed a share in any eoibne-Iands in a tribe territory,
would probably be resident outside, and would .find it
difficult to carry out the full ceremonial in the prescribed
fashion.
The broken man returning to his tribe would find it im-
possible to drive llis horses upon and off the land in dispute
at the proper periods; he had no house or" green" of his
INTRODUCTJO:Y.
XXXVII
own to resort to in the meanwhile j and what was more im-
portant, he was not in himself a security for the damages
the occupier could recover, if the claim proved to be ground-
less. He was therefore permitted to graze his horses upon
the lands during the intervals between the entries, paying
a fixed price for the grazing; and, if the case were decided
against him, he was allowed three days to clear out, and,
subject to the payment of the small damages of three "seds,"
he was permitted to drive off his beasts (p. 27).
The original text, and the detached instructions in the
commentaries, contemplate the use of horses exclusively in
the symbolical entry; and horses appear to have been both
the original, and at all times the preferable stock for the
purpose. J n the gloss an illegal entry is defined as
" the bringing illegal means of taking possession into land,
i.e., cows after horses when he could find horses," the fine for
which was a "cumhal" or forfeiture of stock, or three" seds "j
the glossists are at variance as to the precise amount (p. 33).
It is evident that at some period cows were substituted for the
horses, which in the original ceremony were indispensable.
There appears to have been some distinction, certainly, as to
the amount of fines, between the case of an entry to recover
possession made by a noble, and one made for a similar pur-
pose by a simple freeman, or plebeian, as it is tmnslated. It
may be conjectured that this form of action was, in its
origin, confined to the recovery of lands by the patrician or
noble class, and that the horses and chariot were the symbol
of military possession, as was the lance (at later time repre-
sented by the wand) in the case of the Romans: that a
similar form of action was in vented for the benefit of the
lower orders, and that \ùtimately the two formulæ were
confounded, although it was always understood that the
claimant only used cattle instead of horses from necessity,
and that he was not at liberty to substitute them for horses
"when he could find horses."
The forms of the Brehon procedure for recovering the
possession of land ended with the reference of the dispute
to arbitration; .tþe object of the process was that his right
I
XXXVlll
INTUODue nON.
at law should be granted to the claimant; that there should
be "Fenichus "; the pressure was put upon the defendant
that there might be "Fenech us," a proceeding or judg-
ment in accordance with the custom of the tribe. Thus the
whole ceremony of the Roman actio ended with the appoint-
ment of the judex. The ancient procedure ended precisely
at the point where the modern commences. As to wlmt
is now consid-ered the essential of an action, the pleadings
in court, Gaius dismisses it in very brief terms; "deinde
quum ad judicem venerant, antequam apud eum causam
perorarent, solebant brevi tel' ei et quasi per judieem rem
exponere; quæ dicebatur causæ collectio, quasi causæ suæ
in breve collectio." (Gaius 1 V. 15.)
To understand this we require only an account of the
mode in which a dispute is decided in an Indian village
community. The case is submitted to the entire body of
the inhabitants, who represent the original tribe, or family,
to the patricians in fact of the small "civitas." The
body thus assembled comLine in themselves the func-
tions of witnesses, judge, and jury. They include in
their number all those who knew the facts of the case,
"the respectaLle men of the neighbourhood," so familiar to
us as our ancient form of jury. They themselves are the
living testimony as to what is the custom of their com-
munity, and this custom they apply to tl1e facts of the
case assumeù to be within their own kno"leJge. The
villagers talk over the case among themselves, apparently
in a very confused mannerj separate groups form, who
discuss t11C question in various ways; but at length a result
is evolved; there is a general consensus arrived at, and the
judgment is given in a purely concrete form. In :Mr.
Wallace's description of the confused discussion and ultimate
result of a meeting of a Russiall Mirto assess taxation and
divide the. village lands, we have a vivid description of the
workings of sneh a primitive asseml,ly. At this stage of
civilization it is clear that there was no form of procedure
after the submission to arbitration. When the community
had grown too large to sit together and decide as one body
I
TRODUCTIO
.
XXXIX
upon the case, a committee of the entire body would be
appointed to hear and decide the dispute. This stage of
the judicial development existed among the Icelandic
orse.
Of this procedure there are the most detailed accounts in
the two trials before the Althings related in the Saga of the
Burnt :Kjal, amI before referred to. In these cases it is
evident that the defendants were not bound to submit
to the jurisdiction, unless the preliminary ceremonies
were accurately gone through, and the judges selected
in accordance with the custom. Numerous points of
the utmost nicety are raised by the defendants to
every step of the action, and equally technical replies are
made on behalf of the plaintiff". These very special points
of practice are decided by the general assembly, because
they were antecedent to the crcation of the court. But it is
something yery foreign to our ideas that the judges, when
at last legally appointed, neither hear any speeches from
the parties, nor examine witnesses; they retire from the
public meeting, talk the matter over, and come to a decision
on groun/ls wholly apart from what we should consider the
merits of the case. \Yhen a society became numerous, and
its customs complicated, the general public naturally felt
their own ignorance of the traditional rules by wlIich any
cases should be decided, and there arose a necessity for
experts who had maùe the knowledge of the traditional
custom their special study. The Icelandic l' orse dung
tenaciously to the custom of a public assembly, and solved
the difficulty by the appointment of the "Speaker of the
Laws," who attended the Althing, and was its professional
adviser.- The Celtic Irish lost the ancient custom of the
." In those days there were no books; everything was traditional: the law itself
was committed to memory and the custody of faithful lips. Time out of mind
tbere bad existed amongst the nations of the north men who, like Ulfljót, had
made the cu-t<Jmary law tIu'ir øtudy, and learned its traditional precepls b)" "eart.
There were the lawmen orlnw)ers (lögmenn), a class which we shall still find
flourishing in the time of which our Saga tells. They were private persons,
invested wilh no official character, but who enjoyed all the influence which all
exclusive knowledge of anyone subject, and, most of all, of such a ,lifficult subject
as law, mUlt ncC{.sarily gh e to any man in an early stale of socict). llut wLen
xl
IKTRODt'"CTIOX.
general assembly, and the decision of what the local custom
was, fell into the hands of the Brehons, the hereditary and
professional possessors of the secret of the custom. But the
Brehon was not a judge in the modern sense of the term;
he represented the assembled tribe, and when he had once
got possession of the case there were nO sacred formulæ to
prescribe the mode in which it should be conducted. It is
evident that the reference ofthedispute to a single individual,
in whatever character he acted, necessarily introduced new
elements in the procedure; the court no longer could be held
not only to decide upon the law, but also to testify what
the actual facts were; hence the introduction of pleadings
(causæ collectis), the fnll statement of the case (pc1"onJ.tio),
and the examination of the wituesse;;, and also the arrange-
ments for the remuneration of the judge. The foundation
of the jurisdiction of the Brehon, as simply the professional
witness of the local custom applicable to the facts, (and
unable to apply to the case, what in English law is termed
" equity," the appeal to an over-ruling moral law antecedent
to or over-ruling the technical law when it worked injustice,)
is illustrated by the rule (page 51)," Constant is every old
law of every territory of covenants. When any territory is
uncovenanted, it is then every disputed case is brought
before the King." By a "territory of covenants" is meant
a district in which there was an established custom, sup-
posed to rest upon the" consensus" of the tribe, and which
was testified to by the local hereditary Brchon; (t territory
the A1thing wal established, we first hear of a law officer properly so-called.
This is what we have called the "
peaker of the law." His bounden duty
it was to recite puhlickly the whole law within the space to which the
tenure of his office was limited. To him all who were in need of a 1eg-a1
opinion, or of information as to what was or was not law, had a right to turn
rluring the meeting of the AIthing. To him a sort of preJòidency or precedence
at the AIthing was concelled, but with a care which marks how jealously the
young Republic guarded itself against bestowing too great power on its chief
officer. He was expressly excluded from all share of the executive, and his tenure
of office was restricted to three years, though he might be re-elected at the end of
the period." Dasent, Durnt Nja1, p. Ivi.
The judicial power in Iceland was vested in the Court of Laws, composed of the
priestl
. heads of the original families, each with two assessols, whom the official
IaW).er instructed upon any point of law, if requested to do so.
IXTRODUCTIO:Y.
xli
uncovenanted" is glossed" where the defendant or plaintiff
has not a Brehon," that is, when the community has failed
to retain a record of their customs ùy the appointment of
the regular witness to the existence and nature in the
person of the Brehon; in such a district there was nO law to
be applied to the question in dispue. In this case therefore the
King himself was the judge. From this passage we may
infer that at a very early date the general meeting of the
tribe, which did continue to meet for SOme purposes down
to a late period, had lost its judicial power, and that the
King had acquired the powers and position of the assembly
of the tribe, or. which in this case is more probable, there
still hung about him certain surviving fragments of his
ancient judicial function.
.When a professional or hereditary class undertake tIle
duty of recording and transmitting the customs of the tribe,
the hitherto indefinite custom, or habit of acting in a par-
ticular manner, is necessarily reduced to the form of short
rules committed at first to memory, subsequently to 'writing.
Two fragments of these ancient dicta occur in the present
tract (p. 39 and p. 45). The difficulty of translating pas-
sages of this nature has already been referred to, but,
difficult as is the task of translation, more so is the attempt
to extract from them and develop at length, the customary
rules dimly hinted at, rather than embodied, in the curt and
oracular sentences. An attempt is here made by the assist-
ance of the glosses and commentary to express in distinct
terms the substances of these passages. The following is
submitted to the criticism of the reader by the editors, as a
re"ult of such a comparison, but made by those who can claim
the possession of no source of information, which is not
available to the ordinary student.
(1)
1. The sons, and, if there are no sons, the daughters of
their mother. claim a right to enter upon and take posses-
sion of the lands, in respect of which legal contracts for
full consideration, and dealing with coibue-Iand, had been
xlii
J?\TRODUCTIO
.
made with their mother, for the geilfine chief, who ml1st
for this purpose be one of the geilfine division,if confirms
the contract.
2. Brigh made the dccision, which fixed the rule of
succession to lands in respect of which contracts had been
entered into upon the occasion of a woman's marriage.
3. The lands are diyisible with reference to the number
of the members of the family inclusive of the grandchildren,
and the great-grandchildren, but of the land thus divisible
is excepted one-seventh, which becomes the property of the
geilfine chief. This one-seventh is fixed with refercnce to
the extent of the lands themselves.
4. On the extinction of the class of great-great-grandchild-
ren, their land goes back to the other classes representing the
three prior generations; in such case it is divided among
the classes representing thc three prior generations; on the
extinction of the f,rreat-great-grandchildren class the other
classes of the family became the owners. It is not divided
among them in other proportions than the liability for the
wrongs done by members of the family; and, therefore, in
such a case the class representing the sons gets no more than
one-fourth part.
5. 'Vhen the members of a family exceed seventeen in
number, they cease to be organized as a family.
6. The fuidhir-tcnants are not subject to any joint liability
for wrong committed by their kinsman, unless they form
five house-holds of them, completely organized as a family,
upon the principle of mutual liability.
7. If the fuidhir tenants consist of five households, or-
ganized as a family, under a chief, and having sufficient
stock, they divide their property among them, as do the
members of the family, and are subject to liability for each
other's deeds in the same proportion.
. It is subseqnenfy suggeste I that the expression, "Unless he be the sixth,"
may be taken iu its literal sense as meaning the sixth head of the family in liueal
descent, a con,truction of the words which. in the view subsequently taken of the
geilfine, would be practically equivalent to that in the text.
IXTRODUCTIO
.
xliii
(II.)
1. A son does not succeed to all the land of his mother,
unless he claim it through her by virtue of a marriage
contract of which the family had notice (i.e., unless it be
"c1'uibh" or "sliastn" land).
2. (As to lands other than" cnâbh" or" sliastn" lands),
her sons divide it upon her death, but (tltey do not succeed to
the e11ti1'e) for one-half reverts to the family of the (her)
father; the remaining half only her sons divide.
3. The half, which reverts to the family of the (her) father,
the members of that family duly diviùe alllong themselves.
4. In the case of a "bv-aÚ'e" chief (who dies without
leaving a son) there comes to his daughter by right of
relationship r.o more than one-half, i.e., fourteen" cumhals"
of lamI if the deceaseJ had twenty-eight" cumhals" of land.
The same rule applies to the" bratach " lands of a " bo-aire "
chief.
5. L:md given by the family to the deceased to the used
as a road, upon the terms of his restoring it, is to be restored
by his daughter, if she succe
d, in its entirety; but she is to
be paid by the family upon giving it up, one half the value
of it.
Of these rules, those numbered 1, 1-5 appear to relate to the
mother's cl'uibh and sliasta lands,aml arc framed with the view
of regulating that succe5sion in accordance with the princi-
ples of the geilfine organi7ation, which are subsequentiy dis-
eu!'>sed in this Introduction. The rules numbered II., 1-3
deal with the sucee
sion to a woman's other than cruibh
and sliasta land; and those numbeled II. 4 and 5 deal with
the succession of a daughter, in default of sons. to lwr
f,tiher's land. The very remarkable rules, 1. 6 and ï, do
not appear to have any immediate connexion with the ques-
tion of female owner
hip of land. It would be premature
here to consider the meaning and operation of these rules
until the nature of the fmoily itself and of the geilfinne
system has been to some extent e;;;tablished, and the pro-
posed explanation of the system of descent is, therefore,
postponed to a subsequent section.
xliv
INTRODTJCTlON.
It remains to draw attention to some isolated rules
in the latter portion of this tract as illustrative of the nature
and date of the Brehon Law. The first paragraph, to which
attention is desired to be drawn, is the case of Seither in
the original text (page 17). She claimed as against the
chiefs of the tribe, certain lands which they had taken
possession of; the glosses explain this by their having
erected boundaries, or set up stone landmarks; comparing
this with the passage in page 7, where "dibadh" land is
described as "the land which the chief divides after the
death of the tenant, where an hole is made (or, a nwund is
?'CtÎsed), where a stone is put," her ground of complaint was
that the chief of the tribe had measured off as common
tribe property, the land which she claimed in separate
ownership. Her father anù mother were of different tribes,
and her right to the land was established. She then sought
that she shoulù not be subjected to the imposts which fell
upon the unfree holders of land ("flâdhirs"), nor should
she be expelled from the land (put out into the road), for
failure to perform the military duties incident to the
possession of the land. She was freed from this obligation
(of military services) by her tribe, according to the rule
"that female possession reverts, i.e., that one-half of the
land, which passed to a woman, falls back into the general
tribe land, and that in consideration of this the tribe releases
the residue during the female owner's life from the duties
incident to the possession.- It is clear from this rule that
it These rules, as far as they deal with the succession of women to land, or the
succession to the land of women, must be taken to represent the effect of the
judgement of Brigh which established the rights of women.
The rule that women, as being incapable to do military service, should forfeit
one half of the inheritance, could be introduced only after a date at which the
military. incapacity of women was an acknowledged fact.
This would brin
down the alteration of the law of snccession in the favour of
women to a date snbsequent to the year G97. " Connected with Adamnan's journey
to Ireland in G97, the Annals record a transaction, which they despatch with
enigmatic brevity: Dedit l
g
m innocentium populill. In other words, they allude
to a social refonnation, which was brought abont by Adamnan, and which, having
obtained the highest sanction of the people, became, as in the case of many modern
Actð of Parliament, associated with the name of the propounder. A s).nod was
convened at Tard, within an enclosure caIled the Ratlr-nu,-Senad4, or .. Bath of
I
TRODLCTroN.
xlv
the possession of any portion of the tribe land entailed
the duty of military service; but that this was an incident
to the possession of la
d by a free member of the tribe (as
the" trinoda necessities" of the early English Law), not a
feudal service due to the chief of the tribe. The contra-
dictory glosses upon this passage prove that the commentators
were unable to explain the point of the division, and that
the condition ûf society had then materially changed since
the date of the original text. The note to this passage,
printed at the foot of page 17, shows how the latcr commen-
tators had lost the correct traditions of the law, and
preferred the display of a scrap to genealogical information
the
ynod.." where the memory of the chief actor was perpetuated in the name
PUl,all Adhamhnain, or "PavilIion of Adamnan," which was giveu to a portion of
the space; also iu the Suidhe Adhamhnai.., or Adamnan.s chair; the Dumha
Adhamhnai", or Adamnan's mound; and the Cro8 Adhamhnain, or Adamnan's
cross, situated at the east of the Rath. This mor:omt, or "convention general,"
"as held, as a semi-legendary record states, at the instance of Adamuan, for the
purpose of procnring a national enactment exempting women fro!1l war and expe-
ditions." "Reeve's Life of St. Co1umha," p. I.
In relatiou to this law the following passage occurs in the "Vision of
Adamr.an," which is pre.erved in the" Leabhar Dreac" :-"{t was this precept,
too, which was preached in the weat convention of the meu of Erin, wheu
Adamnan.s rule "as put on the Gaedhil, and when women were made free by
Adamuan, and Finachta Fledach, sou of Dunchadh, son of Aine Siaine, the King of
Er:n, and by the men of Erin a1.:!O. For it was alike that men and women went
into battle, and into conßicts, until the Rnle of Adamnan was imposed."
.. It is to be regretted that we have not a more bistorical account of tbe institu-
tion of this law than the following, which is taken from the Leabhar Bresc and
Book of Lecan :-' Adamnan happened to be tranllinl{ one day through the plain
of Bregia with hi:J mother on his back, when they saw two armies engaged in
mutual conflict. It happened then that Ronait, the mother of Adamnan, obsen-ed
a woman, with an iron reaping-hook in her hand, dragging another woman Ollt of
the opposite battalion, with the hook fastened in one of her brea.ts; for men and
women went equ..lIy to battle at that time. After this Ronait sat down, and said,
'Thou shalt not take me from this spot until thou exemptest women for ever from
being in this condition, and from excursions and hostings. Adamnan then
promised that thing. There happened afterwards a convention (mop:oa1L) in
Ireland, and Adamnan, with the principal part of the clergy of Ireland, went to
that as.embl)", and he exempted women at it." (Petrie's Tara, p. 14;.) Reeves.
Life of St. Adamnan, p. lí9, note. It seems that Adamnan took occasion of a
great religious revival to ameliorate the condition of the Celtic woman, and that
the reform thus effected was considered as one of the great events, as it un-
douhtedly was, in early Irish history. The celebrated judgment of Brigh,
certainly the rules embodied in this tract, cannot have heen of an earlier date.
xlvi
ll';TRODUCTIO
.
to the intelligible explanation of thcir text. Evidently for
the purpose of gettin 6 in the names of her brothers, it is
stated that
he claimed against her brothers; the author of
this cannot have understood tIll' first line of the original text
which is very clearly eXplained in the gloss; and the
posbibility of an adverse claim by a sister against brothers
in respect of land derived either through the maternal or
p:tternal side, is absolutely at yariance with the express
rule laill down in the commentary, page 13, line 33.
When the authentic tradition of the custom was once
affected by the changes in the existing modes of life and deal-
ing with property which must have arisen from the political
convulsions to which the Irish Celtic nation was suùjected
dm-ing the historic period, the Brehon la.wyers ha-l no definite
and abstract legal principles to guide thcm, and the analogies
which they may have discovered in the Ecclesiastical and
English systems, with which they came in contact must have
been essentially misleading. There is, therefore, no reason to
doubt the fact, which is patent upon the face of their writings,
that the Brehon lawyers found much difficulty in dealing
\vith the ancient texts, and h:we annexed to them the mo'<t
varying and contradictory explanations.
In most early customary laws the validity of any trans-
action usually depended upon the performance of some
prescribed mode of stipulation; the fullowing p:tssages are,
therefore, worthy of notice as indicative of a very modern
anù equitable mode of viewing the essence of the transfcr
of property: "(
b tv) the person who buys without stealing
or concealment, with purity of conscience, it (the subject
'JIlCLttl. 1. of the lYlwc1wse) is his lawful property, according to
God and JIlan; if his conscience is free, his soul is free.".
There is in this passage an assertion of the doctrine of a
purchase for valuable consideration without notice, and the
title of the purchaser is refen-ed to his moral condition at
the date of purchase, not to the fulfilment of the requisite
C8remony of purchase. The same idea is evident in the
following passage, also: "Except the covenant,> which are
forbidden by the Feini, nothing is due without der.,crving
.. Page 33.
I
TROl)t;CTlO
.
xl vii
it, for every contract, which is unsafe, is entitled after
nuptial present accorJing to the Brehon, except in case of
poverty, or prohibition, or want of power.".
In this passage there are involved the doctrines of consi-
deration as the necessary basis fùr a contract, of purchase for
valuable consideration and part performance, and of the re-
scission of the contract by an inequality in the condition of
the parties which in equity would now cause an agreement
to be set aside, 01' specific p
rformance to be refused. In
the latter port.ion of this para;raph " poverty" must mean
such pres<:ure of poverty upon one of the contracting parties
as would prevent his actin; as a perfectly free agent; anel
"prohihitiun," according to the gloss, the fact of notice affect-
ins the purchaser that the vendor has no equitable title;
" want of power" is explained a<; duress, or intluence of :t
moral or immoral character.
There are other lxtssage:; in thi>l tract which lay down in
a direct manner the ancient theory of society that the
individual exists only as a member of some recogniscd
community and therefore that his contracts are always
I>ubject to rescis<;ion by the head of the community to which
he b010ngs. "There are four covenants which are not
binding, though they lUw parties) are proceede
l against j
thai of a bondman with his chief j of a son with his father;
of a monk with his abbot; of an "ulach" person with another
if alone. For the chief, and the tribe, and the church may
redeem (1'escind) every good contract, and every bad contract
which are made with their subjects, except what they
themselves order them; for these are the three defective
covenants mentioned by the Feini; the covenant with the
subject of a church; the covenant of a servitor of a ehief;
a covenant with fugiti,"es from a tribe."t The principle
here laid down is clear and distinct, "but even at the
date of the original text it had become modified by the
appJication of equitable principles, for the pas<;age concludes
thus: "They are bound not to ba remiss about covenants,
· Page 5!>.
t Pa;;e :í5. This statement, or OllC e.lmost iltentical, is frequently repeate.l in
the llrehon Law Tract
.
xlviii
INTRODUCTIOY.
because if they should be remiss about covenants, then
they do not annul the covenants of their subjects," which is
an application to the case of the equitable doctrine of laches.
This passage is followed by a very obscure paragraph
dealing with what are styled" tC1'nal covenants," not agree-
ments in our sense of the word but the legal results arising
from the acts or omission of three persons in a certain
relation. It is suggested that the passage may be illustrated
thus; A contracts with B that the latter should do something
affecting C, or which C may forbid to be done, and Chaving
notice of the transaction does not interfere; and thereupon by
re.:'tson of C's omission to do so the contract becomes binding
upon him. This principle, (if our explanation of the passage
is correct), is an excellent example of the equitaLle doctrine
of" acquiescence."
The latter portion of this tract must be considered as a
mere common place book of some Brehon, who wrote out in
the blank pages which followed the first part, a number of
independent dicta, as he learnt them, or as they occurred to
his memory; very few of these rules have any connection
with the subjcct-matter of the original work; there is little,
if any, sequence of thought, and they manifestly are of very
different origin in point of date; this latter portion is how-
ever valuable both on account of the very ancient rules as
to the succession to land which are here preserved, and as
illustrating the extent to which the ancient law was modified
by equitable principles, a result doubtless attributable to the
indirect influence of the civillaw.*
.. "They speak Latin like a vulgar language, learned in their common school. of
leachcraft and law, whereat they begin children and hold On sixteen or twenty
years, conning by rote the aphori.ms of Hippocrates and the Civi{l...titules, and
a few other parings of these two faculties. I have seen them where they kept
school, ten in some one chamber, gro,-eIling upon couches of straw, their books at
their noees, themselves lying prostrate, and 60 to chant out their les60tu by piece-
mwl, being the most part lusty feIlows of twenty-fiv2 years and upwards."
Edd. "Campion's account of Ireland," page 18 (A.D, 1571).
Mr, Prendergast goes so far as to Bpeak of the Ert-hon as gi\"'ing .. his judg-
ment according' to the Erehon Code, formed parrly of Irish customs, and partly
of maxims cuIled from the Roman Digest." (The Cromwellian Settlement, 2nd
edition, p. 15.) This is an exaggeration, fortunatel)' for the antiquarian \"'alue of
the Erchon Law Tracts.
I
TRODUCTION.
xlíx
III.
THE "FINE" AND THE "GEILFINE" SYSTE
r..
In all the Brehon Law Tracts there are references to an
existing organization, generally known as the Geilfine
system, and to the four cla
ses designated as the Geilfine,
Deir1hfine, Iarfìne, and Indfine. t No distinct explanation
of the system is anywlwre given by the writers of these
tracts, but it is everywhere assumed as existing, and of so
well-known and notoriOlls a character that it did not seem
to our authors necessary to state it5 details or to lay down
the nlles 1,r which it was governed. That it was familiar,
or a
sumed to be familiar, to the students of these works is
proved by the figurative use of the terms primarily indicating
the members of this system as indicating certain definite
relations of place j remarkable passages of this nature occur
in the "Bee-Judgments"; and the "Right to Water."* It is
obviously impossible to understand the scope or meaning of
many of the rules contained in the Ol"iginal text, or of
passages in the commentary, without forming some clear
conception of this peculiar organization of individuals as-
sumed throughout, as pre-existing, and endeavouring to define
the technical terms connected with this system, which so
often occurs, used sometimes in a primary, and sometimes in
a secondary sense. In the Book of AicilI, published in the
last volume of the Breholl laws, there occurred a very
remarkable passage, explanatory of the mode in which
l,roperty was divisible among the members of a family in
.. It was originally intended to have de,.oted a separate section of tbe Introduc-
tion to each of the Tract. contained in this ,'olume; it was, bowe,'er, di'covered
in tbe progres. of tbe work, that owing to the identity (of the questions which arose
in certain of tbese Tracts, it was impossible to adopt tbis course without much
repetition of previous statement., or an embarrassing amount of cross references.
The sections III., IV., and V. of the Introduction are designed as dealing with the
questions which arise upon the Tracts entitle,l " Of tbe J udgmenta of e,'ery Crime,
&c.," "The Land is forfeited for Crimes," and" The Divisions of tbe Tribe of a
Territo'}'," and also with the rules of sucl'ession coutained in the first Tract in the
'olume. The consideration of the remaining Tracts bas been necessaril)' pootponerl
until after the discn"ion of tbe qnestion of the" geilfine" system.
t This word sometimes appears as" Innfine" or" Finnfine."
t p. 1 73.
p. 207.
d
I
I"'TRODUCTIO
.
accordance with the rules of the Geilfine system,. and an
attempt was made in the Introduction to that volume, to
explain the rules laid down upon this suùject in the commen-
tary upon the Book of Aicill.t The explanation given by
the editors of the preceeding volume of the passage, with
which they were immediately dealing, has been to that
extent admitted to be correct hy the yarious authors, who
have, since the date of the publication of the last vohune,
written upon the subject; and before any attempt to draw
further deductions from the additional information, which
is afforded by the law tracts now for the first time puùlished,
it may not be inexpedient to reprint the passage in the
previous introduction dealing specially with this suhject.
" The most remarkable custom described in the Book of Aicill is
the fourfold distributiun of the family into the' geilfine,' 'deirhh-
fine,' , iarfine,' and' indfine 'divisions. From hoth the text awl
the commentary it appears that the object of the institution did
not extend further than the regulation of the distribution of their
property. \Vithin the family seventeen members were organized
in four divisions, of "\\ hich the junior class, known as the' geilfi.ne ,-
division, consistell of five persons; the' deirbhfine' the second in
order, the' iarfine ' the third in order, and the' indfine' thc senior
of all, consisted respectively of four persons. The whole organ-
ization consisted, and could only consist of seventeen members.
If any person was born into the 'geilfine '-dh'ision its eldest
memher was promoted into thc 'deirbhfille' ; thc eldcst lllemùer
of the' deirbhfine ' passed in{,o tllC 'iarfine'; the eldest member
of the' ial"fine' moved into thc ' indfine' ; and the eJdpst member
of tIle 'indfine' passed out of the organization altogether. It
would appear that this transition from a lower to a higher grade
took place upon the introduction of a new member into the' geil-
fine' -division, and tIH
r<\fore depenlled upon the introduction of
ncw members, not upon the death of the seniors. The lll"operty
hcld by any class, or by its members as such, must have been
held for tIle benefit of the survivors or survivor of tlmt class; but,
upon the extinction of a class, the property of the class or of its
members as such passcù to the surviving classes or class according
to special and very technical rules.
"On the failure of the' geilfinc '-class, three-fourtln, of its pro-
... p. 330.
t p. cxx:.:i....
I
TRODLCTlOY.
Ii
perty passed to the 'deirbhfìne,' three-sixteenths to the' iarfine,'
and one-sßteenth to the' indfine '-class.
"On the failure of the 'deirbhfine '-class, three-fourths of its
property passed to the' geilfine,' three-sixteenths to the' iarfine,'
and one-sixteenth to the 'indfine.'
" On failure of the 'iarfine' -class three-fourths of its property
pnssed to the 'deirbhfine,' three-sixteenths to the' geilfine,' allli
one-sixteenth to the 'indfine.'
" On failure of the' inùfiue,' three-fourths of its property passed
to the 'iarfine,' three-sixteenths to the 'deirbhfìne,' and one-six-
teenth to the ' geilfine.'
"On failure of the 'geilfine' and 'deirbhfine'-classes, three-
fourths of their property passed to tlle ' iarfine,' and one-fourth to
the'indfine.'
" On fiÚlure of the' indfine ' and 'iarfine,' three-fourths of their
property passed to the' deirLhfine,' and one-fourth to the' geilfine.'
"On failure of the 'deirbhfine' and 'iarfine '-classes, three-
fourths of their property passed to the (geilfine,' and one-fourth to
the 'indfine.'
" On failure of the 'geilfine' and 'indfine,' three-fourths of the
l)roperty of the' geilfine ' passed to the ' deirbhfine ' and one-fourth
to the' iarfine' ; and of the property of the (indfine,' one. fourth
passed to the (iarfine,' and one-fourth to the' deirbhfine.'
"Two posRible combinations of two extinct classes, v.Ïz. :-tIle
( geilfine' and 'iarfine,' and the 'deirbhfine' and 'indfine,' are
omi"tted from the commentary. It would appear that upon the
failure of any two classes the whole orgtll1ization required to be
completeJ by the introduction of a sufficient number into the
( geilfine '-class and by promotion carried on tluougll aU the cla..<;ses
upwards; and if there were not forthcoming sufficient persons to
complete the organization thcre 'was no partition among the sur-
viving two classes. but the property went as if the deceased were
not members of an organization at all. The rules as to the dis-
tribution of property upon the extinction of anyone class or of
any two classes may be understood from the annexed diagram.
1 2 3 4 :; 6 7 8 (9) (l0)
Indfine, 16 1
: 01
f
'
0 o liJ4
Iarfine, . 16 3 1: I 24 0 0
41
12
Deirbhfine, 16 12 o 12
I-;;-
12 4 o , 0
7' ---
I-;'-
Geilfine, 16 0 12 3 , o 8 24 0
The rule upon which the distribution of the property of such
an organization depends appears clearly from the ahove diagram.
d2
Iii
I
TRODUCTIO
.
Let it be assumed that each class possesses property represented by
the figure 16. The class or classes extinct are denoted in the
subsequent columns ùy a cypher, amI the distribution of the pro-
perty uf the extinct class or classes is indicated ùy the numhcrs
set opposite the names of the s'U'viving classes. Tlll'ee-fomihs of
the propeliy of any extinct class pass to the next junior class, and
in default of any junior surviving class, to the next senior class.
The remaining one-fourth is treated in the same manner. If,
exclusive of the class which has rpceived its sllare, there remains
but one class, the residue passes to that class, but if two classes
survive, three-fourths of the residue pass to the next junior class,
and, in defaul t, of such class, to the ne)< t senior class; and the residue,
one-fourth of a fourth, or one-sixteenth of the entire, goes to the
remaining class. If two classes become extinct, the propmiy of
each is distributed according to this rule, in which case, if the
two classes which become extinct are next to each other, the dis-
triùution of the property of both is identically the same; but if
the extinct classes are not ne>-.t to each other, the property of each
is distributed to the remaining classes in varying propOliions.
It is evident from the commentary that the original principle,
however it arose, had been forgotten, so that the distribution con-
tained in column 8 of the aùove diagram is very awkwardly ex-
11l"essed, and the cases in columns 9 amI 10 are altogether omitted.
The meaning of this very artificial arrangement al)pears from the
following passage :--' If the father is aIivp and has two sons, and
each of those sons has a family of the full number-i.e., four-it
is the opinion of la1ryers that the father would claim a man's
sllare in every family of them, and that in this case they form two
, geilfine '-divisions. And if the property has come from another
l,lace, from a family outside, thmlgh there should ùe within in the
family a son or a ùrother of the person whose property came into
it, he shall not oùtain it any more than any otlter man of the
family.' From this it appears that the wholeorgllnization exi.,ted
within the family, and consisted of the actual descendants of a
male member of the family, who himself continued in the power
of the head of the family. As soon as a SOIl of the house had
llimself four children, he and his four children formed a 'geilfine ,-
class, and each succeeding descendant UI) to the number of seven-
teen was introduced into the artificial body. The entire propel ty
exclusively belonging to this family within a family was confined
to the members of the organization until the number exceeded
sevpnteen, when the senior mcmher lost his rights to the separate
estate, retaining those which he possessed in the original family.
ISTRODUCTIO
.
liii
"This arrangement must be reg,\nled as an invasion of the
archaic form of the family, and an introduction pro tanto of the
idea of separate property" How or wnen the system arose we
have no information, but arrangements equally complicated have
been elaborated in the evolution of customary law.
" If it be admitted that the parent and his first four children
(or sons) form the original 'geilfine '-class, it may be conjectured
that the term 'geilfine' -chief, so often occurring in the Brehon
law, indicates a son of the head of the family, who has himself
begotten four children (or sons), and thus founded as it were a
family within a family; and further, that, as ul,on the death of
the head of a family each of his sons would hecome the head of a
new family, the 'geilfine '-relationship in such an event woulll
disappear, and its members would resolve themselves into a family
organized in the normal manner. It may be conjectured thltt the
parent always continued in the' gcilfine '-class, and that therefore
it contained five members, although the other classes comprised
four only, and that hence was derived the peculiar title of 'geil-
fine '-chief."
In this passage the system wa5 accepted a.s a very singular
institution, regulating the distribution of the property of a
f
lmjly; no attempt was made to account for the existence
of ruleH so unusual, although it is obvious, that the mere
e'\:istence of rules so complicated and in themselves so
unreasonable must be I"efemble to some anterior social
sptem, as is the case with the rules of the English la.w
dealing with the succession of real estate. Three distinct
theories as to the origin and working of this system have
been published since the date of the last volume of the
Brehon Law Tracts, by Sir H. S. )[aine in his Lectures on
the Early Hi.<,tory of Institutions; by Dr. W. K. Sullivan in
his introduction to the Lectures of the late Eugene O'Curry ;
and by .Mr. J. F. M'Lennan in an appendix annexed to the
last edition of his work upon Primitive Marriage, and
entitled the" Divisions of the Ancient Irish Family."
So numerous and important are the references to the Geil-
nne system in the tracts comprised in the present volume, so
radically does this system underlie the organization of the
family, and the succession to land, to illustrate which, the
]iv
I
TRODUCT
ON.
majority of the tracts now publishccl have been specially
selected, that it may not ùe considered an abuse of the
restricted duties of an editor to explain the views upon this
subject put forward upon such distinguished authority, and to
state the objections to the reception of any of them in its
integrity, before an attempt is made to propound a theory
of the origin amI working of the system, wholly deduced
from the Brehon L:tw Tmcts themselves, and which, al-
though not in itself to be assumed as correct, as no
modern explanation of so archæic an institution could claim
to be, is at least consistent with the authorities and in itself;
and affords a key to the rules as to the succession to land,
scattered throughout the present volume.
The views of Sir H. S. Maine upon this subject are clearly
put furward by him in the following passages selected from
his work:
"Any member of the joint-family, or sept, might be
selected as the starting point, and might become a root from
which sprang as many of these groups of seventeen men
as he had sons. As soon as anyone of the sons had four
children, a full Geiltine sub-group of five persons was fonned;
but any fresh birth of a male child to this son or to any of
his male descendants, had the effect of sending up the eldest
member of the Geilfine sub-group, provided always IJC wel'e
not the person from whom it had sprung, into the DerLhfine.
A succession of such births completed in time the Derbh-
fine division, and went in to form the larEne, and the lnd-
fine, the After and the End-families. The essential principle
of the system seems to me a distribution into fours. The
fifth person in the Geilfine division, I take to be the parent
from whom the sixteen descendants spring, and it will be
seen, from the proviso which I inserted above, that I do not
consider his place in the organization to have been ever
changed. He appears to be referred to in the tracts as the
Geiltine chief.-
"The Irish family is assumed to consist of three groups
of four persons, and one group of five persons. I have
· Early History of InstitutioDs, p. 210..
I
TItODUCTIO
.
Iv
already stated that I consider the fifth person in the
group of five, to be tbe parent from whom all the other
members of the four divisions spring, or with whom they
are connected by adoptive descent. Thus the whole of the
natural or adoptive descendants are distributed into four
groups of four persons each, their rank in the Family being
in the inverse order of their seniority. The Geilfine group
is several time stated in the Brehon Law to be at once the
highest and the youngest.
"
ow Mr. ,Yo Stokes has conveyed to me his opinion
that' Geilfine' means 'hand-family.' As I have reason to
believe that a different version of the term has been adopted
by eminent authority I will give the reasons for 1IIr. Stokes'
view. 'Gil ' means' hand '-this was also the rendering of
O'Curry-aml it Ís in fact the Greek xÍtp. In several Aryan
languages the term signifying 'hand' is an expressi\'e
equivalent for power, and specially for Family or Patriarchal
Power. Thus in Greek we have hoXirpW!; and XipTJ!;, for
the person under the hand. In Latin we have hent8
'master,' from an old word cognate to xEÍp; we have also
one of the earliest cardinal terms of ancient Roman Family
Law, manus, or hand, ill the sense of Patriarchal authority.
In Roman legal phraseology the wife who ha<; become in law
her husband's daughter by marriage is in nw?l'U. The son
discharged from Parental Power is emancipated. The free
person who has undergone manumission is in mancipio.
In the Celtic languages we have, with other words, 'GiIla,'
a servant, a word familiar to sportsmen and travellers in the
Highlands, and to readers of Scott in its Anglicised shape
, Gillie.'
" 11y suggestion, then, is that the key to the Irish distri-
bution of the Fa.mily, as to so many other things in ancient
law must be sought in the Patria Potestas.- It seems to
me to be founded on the order of emanciption from Parental
* The use by Sir R. S. 1IIaine of the term "palr"ia potesta8" is very infelici-
tous as baaing his theory upon a doctrine of the noman Law, "hich their own
lawyers admitted to be peculiar and exceptional. The more general tenn "head-
ehip of the joint house" ma
', however, be substituted for it without iujur:r to the
argument.
Ivi
Hil'HODUCl'ION.
Authority. The Geilfine, the Hand-family, consists of the
parent and the four natm-aJ or adoptive sons immediately
under his power. The other groups consist of emancipated
descendants, diminishing in dignity, in proportion to their
distance from the group, wllÍch according to archæic
notions, constitutes the true or representative family.
"The remains, which we possess, of the oldest Roman Law
point to a range of ideas very similiar to that which appears
to have produced the IrÏ:sh Institution. The family under the
Patria Potestas was, with the Paterfamilias, the true Roman
Family. The chilùren who were emancipated from Paternal
Power may have gained a practical advantage, Lut they
undoubtedly lost in theoretical dignity. They underwent
that loss uf status which in ancient legal phraseology was
called a capitis diminuto. 'Ye know too that according
to primative Roman law they lost all rights of inheritance,
and these were only gradually restored to them by a
relatively modern institution, the equity of the Roman Prætor.
N everthc!ess there are hints on all sides, that, as a general
rule, sons as they ad \'anced in years were enfranchised from
Paternal Puwer, and no doubt this practice supplies a partial
explanation of the durability of the Patria Potestas as a
Roman Institution. The statements therefore which we
find concerning the Celtic Family would not be very un-
true of the Roman. The youngest children were first in
dignity.".
The entire geilfine system rests according to ihis view upon
the patJ'in potesltts of the original progenitor withuut any
reference to common property; the mem LeI's are those up
to the number of sixteen, who are the subject of the put.ria
potcst(ts, whether sons or remoter descendants, either by
actual descent or adoption, and irrespective of age or the
possession of property. It may be inferred that ill Sir H.
S. Maine's opinion the eXL<;tence of the common ancestor
is essential for the maintenance of the system, and that he
regards aJI the members as living at the same time.
The theory of Dr. W. K. Sullivan is very different, and
is contained in the following passage of his work:
* Id., p. 216.
I
TRODUCTlON .
Ivii
"The whole Fine Dldltaig included several stages of
consanguinity ;-(1) the Cíndfine or children the sons ha dng
the foreright ;-(2) the BI'uindfine, from 7wuind, the womb,
the sons and daughters of heiresses or daughters of the
Gl'adh Fine, or nobility inheriting property in their oWll
right; (3) the Geltine, which seems to have been sometimes
used for all relatives to the fifth degree, and sometimes
for the relath"es to the fifth degree exclusive of the direct
heir:;. These constituted the family in the strict sense. of
the word. From the gelfine branched off, (4) the Del"bfine,
which included relati\"es from the fifth to the ninth degree;
(.J) the Iadine, or relatives from the ninth to the thirteenth
degree; and (G) the Indfine, or relatives fr;:,m the thirteenth
to the seventeenth degree. Beyond the latter degree, the
Fine merged into a Dldlwig Daine, that is, the nation at
large, who were not entitled to a share of the Dibad, or
property of deceased persons, or liable for the payment
of fines or americaments on account of crime:,;, etc., except
those of their own special Fine, within the recognised
degrees of consanguinity. The Gelfine were the represent-
atives of the rights and liabilities of the family or house;
they fonned a kind of family council styled Cuicer '/7((, Fi'/1C,
or the five Gials, or pledges of the family. As they re-
presented the roots of the spreading branches of the family,
they were also called the C1tiC 7ne1Y(, na Fine, or the five
fingers of the Fine. ",Yhen property, in default of direct
heirs, passed to collateral heirs, the Gelfinc received the
inheritance in the first instance, and assumed all the
responsibilities attached to it. In default of relatiyes of
the fifth degree, the property pas:òed to the representatives
of the other Fincs."*
This opinion of Dr. W. K. Sullivan has been adopted
by Mr. \Y. E. Hearn, who after citing the Welsh rule of
inheritance, viz., "The ancestors of a person are his father,
and his grandfather, and his great grandfather; the co-
inheritors are his brothers, and cousins, and second cousins,"t
· Manners and Customs of the Ancient Irish, Vol. I., p. clxiii.
t Ancient Laws of Wales, Vol II., p. 427.
Iviii
I"TRODLCl'lO
.
proceeds thus: "'V e may observe, I think, a similar case
in the difficult case of the Irish Fine. The ingenuity
of the Brehon professors multiplied distinctions which
are not found in the laws of other countries, and it is
not easy distinctly to understand their writings on this
subject. I venture however to suggest that' Fine,' like
Familia, was used in various senses, and included both the
more limited and wider bodies; that of the six kinds of
Fine enumerated in the Brehon Laws, the first three include
the Sni hC1'cdes and Agnati, and that the remaining three
are subdivisions, how far practically important we cannot
tell, of the Gentiles. The Geil-fine included the fifth
de.<;cent, which, if the Ego were not counted, brings us to
the sixth descent as in other cases. The other three FhlCS
taken together, extend to the scventeenth degree, at which
point all traces of kinship are assumed to be lost."*
If this view be COITect the Geilfine system ig simply a
mode of calculating kinship; the Geilfine has no existence
as a social entity; the particular Pine in which any indi-
vidual should be classed dcpends altogether upon the pcrson,
who is assumed as the sti1'1)s; it would also seem that the
five members of the Gcilfillc class, amI the four members
of the other three classes arc not considered by these authors
as" individuals" but as successive generations, and that the
original ancestor is altogether excluded; and it also must
manifestly follow that the members of the four classes could
not possibly co-cxist.t
. The AQ an 1I0llsehold, p. J 73.
t Authors, who
peak of property as being divisible among relations in the
seventeenth (legree, cannot have considered the difficulty, or impossibility of ascer-
taining kiuships so remote, or the consequences which would probably result could
all the relativcs of this remote degree be once ascertained. It would be nceeSSar)"i
for such purpose, to trace up seventeen male descents for the purpose of discovering
the stirps, and in the second place \0 complete the requisite genealogical table of
all the male descendants of the stirps throughout seventeen generations downward.....
The stirps, upon the ordinary average of human life, must ha\"'e been dead
upwards of 500 years, and there is no e"isting noble or royal family in which this
inquiry could be attempted with any prospect of success.
Thus :he relatives in the seventeenth degree of the Count de Charnbord include
all the descendants of I.ouis, the first Duke of Bourbon, son of Robert of Clare-
mont, and grandson of Saint Louis, who died in A.D. 1341. Those of tbe preseut
ISTRODUCTIOS.
lix
The theory of :1'\11'.
I'Lennan upon this subject is different
in every respect from those of Sir H. S. Maine and Dr. 'V.
K. Sullivan. The two cardinal assumptions upon which he
proceeds are, (1) that the terms geilfine, dcrbhfine, iarfine
and iudfine are correlative, and that, therefore, the four
classes of the system must exist from the inception; (2)
that the arrangement was founded upon the possession,
and intimately connectcd with the distribution of property;
(3) and that the members of the groups included only
certain of the members of the family.
The geilfine system according to this view originated in
the existence of fm
T persons, related in the same degree to
the original stL/'ps; ench of whom was the primary mem-
l)e1' of one of the four classes, and as a necessary result the
Father or stÜ']Js was excluded from the organization, and
the subsequent members of each class were the lineal
descendants of the original member oì that class.
" If we conceive one of the organizations, initiated as in
the case pronounced upon by the lawyers, to be completed
(1) through the death of the Father, and his two sons leaving
a set of four grandsons in their placeR, each as the eldest
member of his division; and (2) through the filling up of
the divisions by the birth of descendants to the several
grandsons, the following table will then represent the
organization :-
Indfine. larfine. Deirbhfine Geilfine.
A' A2 A' At Fathers and Brothers.
ß\ ß2 B" TIt SOliS and First Cousins.
C' C2 C' CI Grandsons and Second Cousins.
D\ D2 D" DI Great Grandsons and Third Cousins.
-- -- - Et Great great Grandsons.
German Emperor include all the descendants of Frederick IV., Burggraf of
Nurnberg, who died in 1332. As to their probable number when discovered, it is
a matter of geometrical progreasion. If we consuIt the pedigree of David it will
appear that, as seventeenth in descent from Ren, he counted among his relatives
within the seventeenth degree the entire nations of the Jews, Edomiteø, Ishmaelites,
IIIoabitea, AlDlllonites, Midianitcs, and several others.
Ix
INTRODUCTIO
.
"The seniors of the division are AI, A 2 , &c., the brother.:!
who constituted the 'family of the full number, i.e., four';
and the other men in the divisions along with them respec-
tinly, are their first-born suns, gmndsons, &c. Al is the
eldest of the four brothers, A 2 t.he llð t eldest, and A 4 is the
youngest. The following features of the system now
become intelligible:-
"1. It is at once obvious why it is said the geilfine divi-
sion is the youngest, and the indfine division is the oldest.
"2. 'Ve can see a reason why, as a rule, there should be
four men only in a divi'!ion, and why there should be a fifth
man in the geilfine division. The age of marriage among
the ancient Iri::;h was seventeen years-the age for finishing
fosteragè. Thus Al would be at least fifty-four years old
before his great grandson DI would be born; he would be
between eighty and ninety years old before E
could have
a son; which would be the signal to Al to 'go out. of the
community.' As a rule then, there could be only four
generations of 'men in exi8tence at a time, and represented
in the divisions. The fifth man, or rather boy, in the
geilfine division must have been added to postpone the
going out 'into the community' of the senior of the indfine.
'Yhen he went out, he became, as we shall see, a pensioner
on his division, and were he to go out when E 4 was born, he
might be a charge on that division for a term of years.
Before E4 could have a son, however, Al would be a very
old man. Indeed, the 'going out' must have been rare.
The law, however, provided for it, as it did for the divisions
not being full, and even for their becoming extinct. What-
ever the purposes of the organization were, the existencé of
the whole number of t.he seventeen lIlen was not. essential
to t.hem, and in the eye of the law a divi
ion existed so long
as there was one man in it (Senchus Mol', Vol. III., p. 333).
"3. So far as the organization was an artificial institution,
it may have been a suHicient reason for limiting the number
of divisions to four, that there were four men only in a
division. 1I10re probably the reason was that four was, on
t.he average, the fullllumber of ::;ons in a family.
"4. \Ve have a clue to the 'self-acting principle,' as Sir
I
TROD{;CTIOX.
lxi
Henry S. :Maine aptly calls it, according to which the oldest
member of each division passed into the ne-..:t, on a new
man (coming up' into the geilfine division. Among the
Irish the next brother, or other nearest male agnate next in
seniority to a deceased chief, succeeded to the chieftaincy in
preference to a son. \Ye can, therefore, understand how
they should provide for the succession of brother to brother,
in order of seniority, in the headships of divisions; and
failing brothers for the succession of cousin. to cousin (of
the same class) in order of seniority. It accords with this
succession law that when Al (went out,' .A 2 should succeed
to him as head of the indfine division, that A 3 should
sucC'eed A 2 as head of the iarfine, and A 4 succeed A 3 as
head of the derbhfine. But we saw that before Al went
out he would be very old. Before another (going out'
could occur through the birth of a grand
on to E4 the
lll'others would certainly be all deaù, and the first cousins,
B\ &c., would be the heads of divisions. It would be next
BPs turn to go out, and he would be succeeded in the
headship of the indfine division by B2 as the cousin ne:JI..t.
in ::;eniority; and W being succeeded by W, and B3 by W all
the seniors would be promoted as before. By the fourth occur-
rence of such an occasion it would he DI's turn to go out; if, in-
Ileed, before then the organization had not collapsed through
the extinction of divisions and want of men to reform them.".
In a suhsequent passage :111'. 1.1'Lennan explains the mode
in which this system would work as a quasi-entail of the
family lands. " The most simple way of regarding the rules
estahlished for the fourfold organization, in order to see how
tl1ey operated as a succession law, is to conceive it to be
8tarted by four brothers, AI, A2, &c., on the death of their
f.'tther; leaving to them ancestral lands, which had come to
him as next-of-kin, and which, at common law, they were
entitled to divide equally between them. Thus regarded,
the arrangement operated, in the first instance, as a settle-
ment of the respective shares of the brothers on their heirs of
line, the survivors, or sun-i VOl' of them, as far as great grand-
sons. When a son B appeared, A shared the division lands
.. Primitive Marriage, 2nd edition, page H2.
!xii
I
TROD{;"CTIO
.
with him; when a grandson appeared, they were shared
again between the father, son, anù grandson; and they were
finally redistributed on the appearance of a great grandson.
Mter this there were redivisions as the men in turn died,
till, they all being dead, the land was shared in the propor-
tions specified between the remaining divisions. The chief
peculiarities of the system, it will be seen, are (1) that it
stopped succession in the direct line, except in the geilfine
divisi.on at great grandsons; (2) that the principle of primo-
geniture appears in the fOrInation of the groups of co-inheri-
tors and parceners; and (3) that a Jife-tenancy only was
given to any heir. To comprphend the working of the
system, we must think of the four brothers as having one
or more brothers who shared with them the lands on the
death of their father, but remained outside the organization.
These, I conceive, were the men of the family with their
descendants, or whose descendants, if they were dead, might,
on the extinction of one or more divIsions, enter the organ-
ization by forming new divisions. If the indfine, for
example, bccame extinct, the iarfine would become the
indfine in the reformed organization, the deirbfine, the iar-
fine, tho geilfine, dropping the odd man, would become the
deirbfine, and the next eldcst brother to A 4, with his de-
scendants, would become the new geilfine division. The
new divisions would enter with a share of the anccstral
lands equal to that possessed hy the others, except so far as
the others had their shares increased by the distribution
between them of the lands of the indfine. And thus the
organization would continue, confining the lands to great
grandsons, till it collapsed through the extinction of two of
the lines and the failure of men of the family to reform it.
The succession law acting no longer, the lands oÎ the extinct
groups would then go to the next-of-kin, and be
mbject to
the common law of sl]ccession, whatever that was, till the
lands were again resettled by the formation of a divisional
organization.".
It is to be observed that :Mr, :1l'Lennan clearly distin-
.. Primitive lIIarriage, 21111 edition, page 496. It is to be obsen'ed that the
technical terms used are those of Scotch, not of Engli
h, law.
I
TnOD L"CTIO
.
lxiii
guishes between the actual existing form of any legal organ-
ization, and the legal theory by which such form is deter-
mined. He does not assert that the Irish C fine,' as a rule,
was organized as a complete gcilfine system, but proposes
his theory as the abstract system of the Brehon lawyers,
upon which, under certain circumstances, the 'fine' would be
organized so far as it went, and which it should assume if
fnlly developed. The English lawyer knows that the abstract
and complete form of the English manor is as purely ideal as
any Platonic archetype, but that the existing manors do, as f.'tr
as circumstances admit, present more or less resemblance, and
approach more or less nearly, to the theoretical manor de-
scribed in our Real Property text books. Mr. 11'Lennan's
scheme however involves difficulties which he has wholly
failed to explain. 'Yhy should the ordinary rules for the
succession to land be suddenly arrested upon the birth of a
fourth son, and the shares of the several sons thereupon pass
in strict entail for three generations according to the law of
primogeniture? "Yhy should the succession in the case of
the geilfine division be extended to one generation further
than in the case of the other classes? and why should the
head of the indfine division rcmain in the system, although
he had himself a descendant in the fourth degree, but cc go
out" upon the birth of a descendant of his youngest brother
in the same degree? :111'. }'l'LeI1I1an assnmes the four mem-
bers of each class to have held the original share of the first
member of that division, as joint tenants; and if so the
following questions must at once arise. If A l goes out and
A2 must thereupon cease to be head of the iarfine di\-ision
and succeed AI as head of the indfine, and A" pass similarly
from the deibhfille to the iarfine, and N ii'om the geilfine to
derbhfine, does A2 cease to be a joint tenant of his own
original share with B., C', and D', and become a joint tenant
of the original share of AI jointly with BI, CI, and DI, and
is this process repeated in the other classes, so as to leave
the four junior members of the geilfine class sole tenants of
the original share of A
? and further if, upon the entire ex-
tinction of the indfine class, the geilfine class become in the
Jxiv
I
TRODUCTIOY.
"formation of new divisions" the derbhfine class, how is
the fifth man of the geilfine class got rid of? 1\11'. 1\l'Lennan
simply says that in this case the geilfine division drops the
fifth man, but we must confess that such exclusion appears to
us as inexplicable as his original inclusion.
In ùealing with a question such as the present, there is
nothing more misleading than analogies and assumed re-
semblances. Each of the three above-mentioned authors,
who have treated of this subject, has supported his theory
by reference to rules existing in other archæic systems of
law, which are more or less confidently stated as arguments
fOl' the acceptance of the proposed theory as correct. But a
profitable comparison can only be instituted between two
known objects. An attempt to define the qualities of any
thing unknown by reference to the qualities of a known
quantity rests upon antecedent proof (more frequently the
suppressed assumption) of their identity. This argument
from tacitly assumed resemblances hns been often in the
present day too far pressed, frequently with very unfortu-
nate results; in dealing with an inf]uiry like the present, it
would seem to us that the first step is to discover, as far as
possible, what the actual texts with which we are denling
say upon the subject, nnd to draw our conclusions from
them free, as far as may he, from thuse a pj'iori idens of
law, which, as incident to the form of society in which we
live, naturally influence our judgmcnt; and that when we
have arrived at some definite conclusions in this manner,
then, but not until then, the nnnlogies and resemblances of
other system arc useful fur the purpose of testing the probn-
IJility of the corrcctness of the result'3 to which we have
attained, and as. explaining or illustrating many points of
detail which at first failed to attract the attention which
they ùeserved.
'Yhen an attempt is made to deduce, from the existing
remnants of the works of the Brehon lawyers, a consistent
theory of the organization of the ancicnt tribe nnd family,
there arises the obvious difficulty, that the documents, with
which we hnve to deal. nre not the contemporaneous exposi-
INTRODUCTION.
lxv
tion of an existing system, and that we have no means of
arranging them according t.o the date of their production;
even tlle original text and commentary of many of them are
separated by long intervals of t.ime, and exhibit ideas alto-
gether discordant. The earliest date of the original text, or
rather of the customary rules laid down in the original text.,
is not, and probably cannot be, ascertained; the latest
comment.'1,ries and glosses are probably not earlier t.han the
IGth century; they certainly cover a period extending from
the Danish invasion to the reign of Elizabeth, during which
the country was exposed to continued war and confusion,
and subjected t.o all t.he political and social causes which
would naturally lead to the breaking up of the ancient t.ribe
find f.'lmily system, and the substitution of the arbitrary
power of chiefs commanding bands of armed retainers for the
regular action of ancient and established custom. The
analogy of other nations in a similar conrlition would natnr-
filly lead us t.o anticipate that during this period the chiefs
were constantly gaining ground as against the rights of the
individual members of the tribe, and such would appear to
have been t.he case from the days of Conn Cetcorach to that
of t.he chiefs, who, in the IGth century, obtained from the
English Government grants of the tribe lands in fee or fee-
tail with the object of defeating the custom of Tanistry, or
of destroying the rights of the customary holders. The
original constitution of the t.ribe or family during such a
period gradually cease::; to be an existing social fact, and
tends to become merely a rule for the distribution of property
upon death, after a fashion which would be strange and
inexplicable, if we did not understand it to represent a social
system which had for all practical pnrposes disappeared.
The distribution of property according to the Geilfine system,
as expounded in the commentary to the Book of Aicill, bears
the same relation to the original constitution of the < fine,' as
the rules of the English law, relative to the succession of
real estate, bear to the feudal system, or as the distribution
of nropertyaccording to the later Civil Law does to the
early Roman family. Those of tbe Brehon Law tracts, which
deal with thE' geilfine system as a.n arrangement of the tribe
e
lxvi
INTRODUCTION.
or family, would seem therefore the more ancient and
authoritative with regard to the nature of that organization;
and it is worthy of remark that the differences, which exist
between what may be a pl'iol'i assumed to be the earlier
and later tracts, are just what might be anticipated to have
arisen under these circumstances.
The most important document upon the suhject of the
tribe and family organization is the tract entitled "Of the
Divisions of the Tribe of a Territory" published in this
volume, and we desire particular attention both t? the text of
this tract, and the obvious deductions to be drawn therefrom.
The word translated tribe in the title of this tract is
"cinel," which is generally understood to mean a tribe in
the full extension of the term, and containing a greater or
less n umber of " fam ilies."
The word translated" territory" means not a mere extent
of land, but primarily the tribe or people themselves, and
thence a tract inhabited 'by a definite body, and regarded
with reference to the rights of the occupants.
The word "fine," translated variously" tribe" or "family,"
(a circumstance which has been noticed as an error by some
critics of the present translation of the Brehon Laws,)
appears on the face of this document as not having any very
precise or technical meaning, implying any number of per-
sons conceived as forming a class whether from identity of
descent, or similnrity of rights.
This document must not be considered as a description
of the ordinarily existing tribe, but rather as an explana-
tion of the form which a tribe would assume if fully de-
veloped in every direction. It is remarkable that this tract
would appear to consider the tribe and family as commen-
surate, if not identical. It would be, however, an error to
consider that we must, from the tract in question, infer such
to be the case, a result contradictory of many other passages
in the Brehon Law tracts and opposed to all analogy.*
The number of families in the Celtic tribe was never theo-
. The following passage is eonclush'e upon thi$ point: .. An 'ai/.t-fine' be it
known; a man who leads his family ('fine ') when they lire on thllir way to the
ehief ('flaieh ')-"_Po
t. p. M!J.
INTRODUCTION;
Ixvii
reticaUy fixed, as were the number of the Roman gentes
or Greek fpáTtut; anò our author naturally deals with the
simplest case of the tribe consisting of one family, or, which
is perhaps more probable, when he deals with the "family,
he directs his attention to some one supposed instance.
The mode in which the tribe or family was organized
according to this tract, was as fonows :-
(A.) The <<fine" of the chief (flaithe-fine), consisting of-
(1) the chief's f'lddhir tenants; (2) the kinsmen of the
chief; (3) the dependents of the chief:
(B.) The divisions of the "fine" of the territory-(l) the
geilfine; (2) the deirbhfine; (3) the iarfÌne; (4) the
innfÌne; (5) the deirghfine; (G) the duibhfine; (7) the
finetacuir; (8) the glasfine; anò (9) the ingen ar meraibh.
The nature of the five latter divisions, as to which there i'l
no doubt, is of much importance in determining that of the
four first in the second part of this catalogue. The" deirg-
fine" are described as those who have shed blood; from whom
no debadh property comes; who receive no share of the tribe
("fine "), but who nevertheless pay for the crimes of their
kinsfolk. Dr. W. K. Sullivan describes this class as consisting
of those" who killed, or attempted to kill the senior members
of their fine in order to get at their dibad, or property;".
in this he follows Dr. O'Donovan, who states, in the note
annexed .to the text, that they were those who were guilty
of the murder of a brother familyman, i.e., one of the se"\"en-
teen men of the four principal divisions. A permanent
division of murderers is indeed an anomaly in a tribe
organization, and there is a much simpler and more obvious
explanation; in the present volume there is contained a tract
entitled "The Land is forfeited for Crime," in which it is laid
down that the land of one who had committed a crime W38
<<given for his crime;" that his land was the primary fund
for the payment of the" dire "-fin{' and compensation in
exoneration of those who by reason of their kinship, or
family relation, to the criminal, were bound to make good
his default. The deirgfine-man was one who by reason of
.. Manners and Customs, &c., Vol. I., p. clxvi.
e2
lxviii
INTRODUCTION.
a crime had forfeited his share in the property of the "fine,"
but in other respects continued to be recognised as a member.
The" dubhfine " were those whose claims to be members
of the "fine" were under dispute, and who were required
to substantiate their rights by Ol'deal, or by lot.
The" fine-tacuir" were not members by descent, but by
a contract of adoption.
_ The" glasfine" were the children of a female member by
a stranger, defined as the children of an Albanach, and
described as kindred from beyond the sea. .
The" ingen ar meraib" were those commonly believed to
have claims to be members, Imt whose title rested merely
on common repute, and was not the subject of ordeal or lot.
This term "ingen ar meraibh," literally" the nail on the
finger," may be similiar to the word" nagel kyn" as desig-
nating indefinite and indescribable relationship. It is to be
observed that these five latter classes consist of men not flùl
members of the "fine." The "deirghfine," although members
by descent, had suffered a " climinldio ectpitis," and were not
in the enjoyment of full rights. Of the remaining four
classes two were confessedly not members at all, and the
membership of the two remaining classes was either in
supense or unprovable. The four classes of the geilfine,
&c., must therefore represent the members of the "fine" of
admitted descent, and fulll'ights. These classes are in this
tract described as follows:
"The gcilfine extends to five persons; it is they that get the
'clebadh '-property of every kindred chief (concl) wholcaves
'cliùadh' -property.
"The' deirfine' extend to nine persons; their' dibadh ,-
property is not divided according to the number of kindred
heads.
"The' iarfine' extend to thirteen men; they get only the
fourth part of the fines, or of profits, of the ground, or of
labour.
"The 'innfine' extend to seventeen men; they divide
among themselves, as is right, whatever part of the tribe-
land is left as' debadh '-land."
IYTRODtJCTIOY.
!xix
From this tract the following deductions may be safely
made: (1) the organization of the "fine" was ba.sed upon
the exclusive possession of land by the "fine" as a distinct
community, and had direct reference to the mode in which
the land was divided among them.
(
) The four classes of the geilfine, deirbhfine, iarfine, and
'innfine' consisted of seventeen members of the "fine" of
pure descent, and full rightE.
(3) Each of these four classes was complete in itself and
possessed distinct joint rights both as against the other th
'ee
classes as well as against the general members of the "fine."
(4) The four classes of full members do not comprise all
the memLers of the fine. The" dubhfine" man, who had
succeeded in establishing his position in the" fine" Lyordeal
or lot did not enter into the "geilfine" classification, but
received a share of a fixed amount.
With reference to the" deirbhfine" division there is btated
a rule that their property was not divided according to the
number of kindred heads; it is possible that this may be
introduced to point out that as between the" geilfine " and
"deirbhfine" divisions, the two classes were to be considered
as different and equal stocks, and the "geilfìne" had no
advantage in the division of property by reason of the
greater number of its members; it would seem morc
probable that this is a general rule to the effect that property
which passed to the" deirbhfine" class was to be divided
"per stirpes" and not "lJej' capita." This fact is put
beyond doubt by the passage in page 259 describing the
mode of the division of the" dire "-finc payable to the family
(and "fine") of a slain man: "Three cumhulsof" dire"-fine
go to the son and to the father; there are three cll1nhals
of"dire"-fine remaining after that; a cumltal of" cli1'e" -fine of
them goes to a brother collaterally.-There is one 'c'/.urnltal'
of' di1'e' fine then after that-that is to be divided from
the lowest man of the' geilfine' division until it reaches
the uppermost man; and from the uppermost man until it
reaches the lowest, &c."
A man therefore could stand in som
relation to. a
lxx
INTRODUCTION.
"geilfine" class, which did not incJude either his existing
father, son, or brother, and from which we must assume
that he himself also was excluded. The same cönclusion
must bedrawn from the liability to pay fines. Upon this point
.Mr. 1I'Lennan remarks: "That the divisional organization
was one of the divisions of the' fine,' or sept, appears from a
curious passage in the Book of Aicill (Vol. Ill., p. 481) which
discusses the question from whom It forced exaction, as in
payment of a penalty or fine, might lawfully be levied.
Here the 'seventeen
en' are several times referred to as
specially liable to such an exaction if levied on account
of the crime of any man connected with them, in terms
which seem to imply that every tribesman had, necessarily,
a connexion with a divisional organization which was liable
for his defaults. In one place the text, which, as it stands,
reads as nonsense, must have been intended to indicate that
the distant relatives of the criminal were liable for him only
when the divisional organization was incomplete, or had
collapsed-a reading which is confirmed by the text. TJ:te
four nearest tribes bear the crime of each kinsman of their
stock, geilfillE
, &c. (Senchus Mol', Vol. 1., p. 261.) Here
the connexion is disclosed between a tribesman, himself not
the member of a divisional organization, and the organiza-
tion respon:oible for him.".
The seventeen men must have exercised an authority and
rule over the other freemen, of the" fine," or must have
filled some quasi representative position in relation to their
fellows. If the former were the fact it is improbable that
so remarkable a difference of status would have been passed
over by the author of this tract.
(5) The seventeen men are not represented 38 occupying
among them the entire territory of the" fine," for there was
a surplus of land available for members of the "dubhfine"
or of the " glasfine."
(6) The existence of the orgauization of the" fine," does
not seem to have been limited by reference to the life
or lives of any person, or class of persons j the existence
. Primitive Marriage, 2nd ed., p. 480.
INTRODUCTION.
lxxi
of such classes as the "dubhfine" and the "ingen aT mC'1'aiblt,"
the members of whom were contemplated as possiblyincrea.
-
ingin number with the rest of the "fine,". prove that "fine"
so constituted had continued for very long periods.t But
upon the completion of the four classes to their full number an
important change took place as to the rights of the members
of the "fine" in respect of their common property. The
words in thistract" From this forth it is acaseofacommunity
of people, it is then family relations cease," are glossed as
meaning that upon this contingency the subdivisions of land
and liability Reparatf', or that the relationship becomes ex-
tinct, or that the four families become extinct. The meaning
of the glossist is quite clear, not that the previous members
of the "fine" cease to exist as individuals, but that the organ-
ization of the "fine" as far as relates to the mode in which
the common property is held ceases to exist and the commu-
nity i" dissolved into a number of persons holding the land
they occupied independently of each other and without rights
of inheritance to the land::; of each othet.. That this is the
correct interpretation appears from the passage in the first
tract in this volume, "Fro.m seventeen men out they are not
a tribe-community::: and the commentary upon that passage.
(7) The special geilfine class possessed '1 certain superiority
over the other thr
e, and by some such title had an
exclusive right to extern prop
rty faIling in, and as a
natural consequence according to the first principles of
Brehon law was also subject to a primary liability for the
crimes of the members of the << (ine. "
These results may be dupplemented by some other con-
clusions gathered from the tracts contained in the present
and preceding volume.
There was at the head of the "fine" a chief who repre-
sented the "fine" in its collective capacity.
In the Book of Aicill, in discussing the }'ight to property
found upon roads, and the remedy for injuries done to roads,
a distinction is drawn between the king of the territory,
and the geilfine chief, in this passage distinctly described as
· Page 295. t Vol. IV., p. 243. f Page 39.
lxxii
INTRODUCTION.
the" geilfine Raith "; and the latter is treated as represent-
ing the rights of the "fine" as the former those of the entire
community.. The" geilfine" chief of this passage would
appear to be the same as the "fair chief of the tribe" whose
assent was requisite to the validity of contracts dealing with
"coibne-property";t and also with the "head of the tribe"
who had certain rights in the nuptial presents of women of
the tribe, and the gains of an harlot a member of the trihe.t
The "geilfine" chief was not always, it appears, necessarily a
member of the" geilfine" class, for in the second of the pas-
sages referred to, there occurs a curious proviso restrictive of
the power of the" fair-chief of the tribe," viz., "unless he be
the sixth" which, although explained in the gloss in an ob-
scure manner, appears to mean unless he be not one of the
first five, i.e., of the geilfine division properly so called.
There appear allusions to chiefs of the deirbhfine, iarfine, and
indfine divisions, which implies that some one of the class
possessed a seniority, or superiority, over the other members
of the class.1I It would also appear that when a class was
once formed, it continued to subsist as long as anyone
member of the class continued in existence; as we should
now express it, the members of a class were as among them-
selves joint tenants and not tenants in common. The
movement of individual member"! through the different
classes was not caused by the vacancies in the three latter
classes but by a superfluity of members in the first class j
and that the social position and rights of the classes among
themselves was in the inverse order of the seniority. That
there were some connexion of kinship between the membprs
of the four classes is everywhere assumed, but the relation-
ship which may have existed at any time between the
members may not have been that upon which the system
was originally constituted. The existence of a father and
four sons is more than once referred to as the basis of an
.. Vol. III., p. 307. t Vol. IV., p 39. t Id., p. 63.
Another ami slightly different explanation of this passaj;e is sug&ested subse-
quently, see p. Ixxxviii.
II Vol. IV., p. 243.
INTRODUCTION.
lxxii i
ordinary "geilfine" system, but it does not follow that
although the existence of a father and four sons would
result in founding the system, it could not be fonned by five
persons of the same stock, standing in another relationship
to each other; it might, it appears, be formed upon the basis
of five co-existing brothers. That the deirbhfine were
not descended from the geilfine iH shown by the passage,
which describes the property of the geilfine division upon
the death of the five members of that division passing to
a branch extern to the 'geilfi'lle,' viz., the dei1"bhfim divi-
sion.- In the glosses upon this passage there is the follow-
ing : " In this case after the death of the five persons which
are the geilfine division, the land is divided among tþe
three 'fine' divisions, and in this case there is no female
heir." As a female is here assumed to have been entitled
to succeed upon the failure of male heirs, the extinction of
one of the classes implies both the death of the original mem-
bers, and the failure of their issue, and it is therefore neces-
sary in any theory of the system to find room for the succes-
sion of lineal descendants to the land of their ancestors.
:Mr. McLennan after pointing out that such a system
must be primarily founded upon the possession and dis-
tribution of land, and that the liability of the members
for the acts of members of the "fine" is based upon the
rights which they enjoy in respect of the common property,
makes the following important observation: "It is not
difficult to imagine that an-angements of such obvious con-
venience as defining and li:tpiting the liabilities of kinsmen
for one another, if once successfully established among the
superior classes, would in time be imitated by the inferior;
and the peculiar settlement of property, worked through a
divisional organization, as may be easily seen, is nowise in
its nature, initPplicable to movable estate."t
In conformity with this observation of Th. M'Lennan, a
remarkable analogy to the geilfine system in the "fine"
appears to have existed among the families of the "fuidhir"
tenants, which is worthy of much attention in the consider-
· Vol. IV., p. 39. t Primitive Marriage, 2nd ed., p. {92.
lxxiv
IXTRODUCTION.
ation of the present subject. These tenants, settled upon
the chief's share of the tribe lands, were recruited from the
broken men, who had lost land and kinship, and in the tribe
organization were supposed to form portion of the "fine"
of the chief (flaithfine), but at an early pcriod they seemed
to have formed artificial families upon the system of recip-
rocalliability, and to have acquired a right of heredit.'try
transmission of property. The passage to which we refer
lays down as a general principle that" the natural bondman
does not bear the crimes of his relatives," but that if there
were five houses of "fuidhir" tenants, each householder
having a stock of one hunch'ed cattle, and all under one
chief, they formed an association, recognised as a portion
of the tribe, for each thereupon. shared in the common tribe
land (dibadh) and paid for the crimes of the other member
of their separate organization. The phrase "They share the
tribe property," translated as in the last sentence by an
earlier glossist, is translated by a subsequent commentator,
"Each of them shall share the tribe propert
- of each other ;"
according to this view the reciprocal liability for crimes
drew with it common rights and joint ownerships in the
aggregate stock of the five houses.- But whatever rights
the five head men of these "fuidhir" houses acquired in the
common stock, .it must have been subject to the succession
of lineal heirs, as in a subsequcnt passage we -read (;u respect
of the case of fuidhir tenants), "the father does not sell any-
thing to the prejudice of his sons, grandsons, great grand-
sons, or great great grandsons."t. To constitute such a com-
munity there must have been a certain numbcr of persons
belonging to different households, and also possessing an
adequate amount of property. The sons, brothers, &c., of
an household were liable for each others deeds without such
organization, and the addition of impecunious persons into
such an asmciation would create a liability without any
reciprocal guarantee.
.. Post. page 43. The precise meaning is not important, but we are inclined to
prefer the latter translation.
t Post, p. 287.
INTRODUCTION.
lxxv
There must have existed distinct and early laws of
hereditary succession to lands of inheritance (oTba) among
the Irish Celtic tribes, but these rules have in fact been
amalgamated in the "gcilfine" system, and cannot be now
understood apart from it; the 'Velsh rules which may be
assumed to have some general resemblance to those of the
Irish, throw, in our opinion, considerable light upon this
subje()t. The relation of the father and son in the Wehh
law in respect of the family inheritance resemb]ed rather
the civil law substitution, than the English joint-tenancy;
<<neither is the son to deprive his father, during his life, of
land and soil; in like manner the father is not to deprive
the son of land.". Such a rule, if strictly carried out, would
have created a perpetual succession, and the right of the heir
could be barred only in one way, viz., by an agreement
between "father, brothers, cousins, second cousins, and the
lord;" a proceeding the same as the present mode of barring
a Scotch tailzie. Upon the death of the father, the d&ughters
took nothing, unless there was a failure of male heirs; upon
the death of the father .the sons divided the lands between
them in the following manner: "'When brothers share the
patrimony between them, the youngest is to have the
principal tyddyn, and all the buildings of his father, and
eight erws ofland, his boiler, his fuel hatchet, and his coulter;
because a father cannot give these three to any but to the
youngest son; and though they should be pledged, they
never become forfeited. Then let every brother take an
homestead with eight erws of land; and the youngest son
is to share, and they are to choose in succession from the
eldest to the youngest."t
The inheritance baving been thus .divided among the first
generation of descendants, was again divided among the
grandsons, and again among the great granùsons, after which
there was no further apportionment. By this we must
understand that the three first generations of descendants
took "per capita," and that the fourth generation retained
· Ancient Law8 of Wales, VoL I., p. 177.
t Ancient Laws of Wales, VoL I., p. 543.
Ixxvi
INTRODUCTION.
the existing shares by household or pCI' stirpes. The reshar-
ing was subject to the exception that no one should "remove
from his tyddyn to another; because the tyddyns are of such
a num1erthat no one is obliged to be a builder for alll>ther"..
The right to inherit the share of any deceased relative, was
not as collateral heir of the deceased, but as a lineal descend-
ant of the original ancester;t to use the terms of English
law, heirship was claimed not to the last seized, but to the
purchaser; but the right of inheritance stopped short at the
fourth generation of descendnnts; the descendant in the
fifth degree had no hereditary claim through his ancestor to
any portion of the lands of inheritance, and therefore kins-
men more distantly related than third cousins could not be
hrirs to each other in respect of shares in lands of inheritance.
In default of relations within this degree the land escheated
to the king.t It is to be remarked that according to this
system the elder brothers go out of the father's house and
establisl
themselves in separate buildings, upon distinct
portions, cut out for them of the lanùs; and the youngest
son is left in the possession of the original homestead anù
all its gear. The redivisions are not partitions of the land
exhausting the entire, but on thrse occasions each male
descendant acquires a fixed portion as his share; aftcr the
third generation there is no further redistribution of the
land; and after the fourth generation the familyorganiza-
tion is dissolved into separate households, each of which
(for the purpose of inheritance) had no relationship with the
others.*
.. Ancient Laws of 'Vales, Vol. II., p. 291. t Id.
Id., Vol. I., p. 545.
That the hereditary rip;ht of stlcces,ion to property and the claims of kinsllÏp
should cease, or be vel")' much diminished at some particular point in the chain of
descent, is a conception not unknown to ancient law. .. The typical example of
this dh-ision of the clan, as of so many other of our early institutions, is found in
Inliia. In that country the dcgress of kindred, as I have alread)' observed, were
determine,i by the nature of the sacred rigbts in wbicb tbe kinsmen shared. The
nearer relatives offered to their lieceased ancestors the pinda or sacrificial cake. The
more distant relatives made an offering of water. The former were called Sapin-
das, or persons connected witb the cake. Tbe latter were called Samanodocas,
or persons connected by equal oblations of water. The relation of the Sapindas
ceases witb the seventh person, that is, with the sixth degree of kindred. .. (Tbe
INTRODUCTION.
lxxvii
In the following observations it is desirable to use the
term "tribe" and "family" in a techincal sense, treating the
former as indicating the larger organization known as the
"cinel," the latter as equivalent to the "fine;" this distinc-
tion between the "tribe" and the "family" appears in all
degrees of kindred in this passage are <,aIculated accor<1ing to the rules of the
English, not ()f the Civil Law.) .. The.re1ation of the Samanodocas ceases only when
their birth and familJ" name are no longer "nown. The Sapindas have the primary
right of inheritance to a deceased person; and failinK the Sapindas the Samanodocas
succeed. In other words all those persons are Sapindas, who have a common
weat-grandfather, or other nearer ascendant, that is second cousins and all nearer
relath-es. All those persons are Samanodoca., who have a common great-great-
grandfather, or other more remote ascendant, that is third cousins and all more
distant relatives. In the.former ca<e, the common ancestor who marls the limit,
i. the father's grandfather. In the latter case it is the grandfather's grandfather.
Thus the Prince of 'Yales and the Ex-Crown Prince of IIano\'er are Sapindas,
because they trace descent from the same great-grandfather, King George III.,
hut their children fall into the wider circle of Samanodocas, or more remote
kinsmen.-The Aryan HOUIChold, p. 168.
The actual text of the Welsh Law is as follows:-
1. When sons share their patrimony between them, the :roungest is to have the
principal tJ <1dyn, and all the buildings of his father, and eight erws of land, his
boiler, his fuel hatchet, and his coulter; because a father cannot gÏ\'e these three
to anJ one but to the :rounger son; and though they should be pledged, they never
become forfeited. Then let every brother take a homestead", ith eight erws of
land, and the youngest son is to share; and they are to choose in succes.<ion, from
the eldest to the youngest.
2. Three times shall the same patrimony be shared hetween three grades of a
kindred; first between brothers, the second time between cousins, the third time
between second cOllsins; after that there is no propriate share of the land.
3. Ko person is to demand re-sharing, hut one who has not obtained a share by
choosing; thence the proverb, there is no choice in what is settled.
4. Ko person is to ohtain the land of a co-heir, as of a brother, or of a cousin,
or of a second cousin, by claiming it as heir of the one co-lteir "ho shall have died
without lea\ ing an heir of his bodJ-; but by claiming it as heir to one of his own
parents, "ho had been owner of that land until his death without heir, whether a
father, grandfather, or great-grandfather, that land he is to have, Ü he be the
nearest next-of-kin to the deceased.
5. After brothers shall have shared their patrimony between them, if one of
them die without l
a\ ing an heir of his bod:r, or co-heir, to a third cousin, the
king is to be the heir to that laD!L
6. As a brother is rightful heir to his patrimony, 80 is his sister rightful heir
to her gwad<1ol, through which she may obtain a husband entitled to land; that
is to say, from her father, or from her co-iRheritors, if she remain under the
guidance of her parents and co-inheritors.
7. If an owner of land have no other heir than a daughter, the daughter is to
Ixxviii
I
TRODUCTION.
early systems, and correlative terms expressing them are
found in many languages. if.
The "family" came into being under certain circumstances,
and again was dissolved upon the existence of a certain
state of facts; the" tribe" existed before the" family" came
into being and continued to exist after the latter had been
dissolved; the "tribe" consisted of an aggregate of individuals
connected by a real or assumed relationsl1Ïp, and occupying
in separate households a district of which they in some
manner were the common owners.
Let us consider the circumstances under which a" family"
organized upon the geilfine system came into existence;
the mere fact that a member of the tribe had a certain
number of children would be insufficient, for it rested
upon the basis of the possession of a distinct and separate
property; nor again would the baJ:e fact of the possession
of land enable a member even of the" family" to found a
new geilfine group, for there was only one such organiza-
tion in each fumily.
The property upon which a family was formed was not a
right to a share greater or less in the general tribe land to
be allotted from time to time, or a right to depasture the
waste of the tribe, but the exclusive possession of a deiinite
portion of the tribe land, granted out the general mass, and
appropriated as the exclusive and hereditary property of the
descendants of some definite individual, an estate con'e-
sponding to the A.S. bocland, and described in the Brehon
Law as "orba."
.
be heiress to the whole land.-The Dimetian Code, ch. xxiii., A. L. & I., vol. i.,
p.M3.
" Distribution is in the first place to be between brothers. The youngest is to choose
his tyd<1yn with such houses as may be upon the eight erws, if he be an uchelior,
and from oldest to oMest let them ch30se their t
'<1dyn, and to everyone what
houses may be upon his tyddyn. And after that let the youngest son share in e, ery
case; and from eldest to eldest let them choose. Afterwards cousins are entitled
to a re-sharing, but no one shall remove from his tyddyn for another, because the
tyddyns are of such number that no one is obliged to be a builder for another.
And in that manner are second cousins to re-share. And, after the third sharing,
let everyone re-claim his share in his possession lawfully through guardians of
1and-borderers.-Cyoreithian Cym,'U, xxxi., 1, A. L. &. I. of 'Wales, vol. ii., po 291.
... 'The Aryan Household, 161-171.
I
TRODUCTION.
lxxix
If land has thus been dedicated to the use of a separate
family, the claims of its members to enjoy their several
proportions by hereditary right must be traced from the
original acquireI', or in the old English law term" from the
conqueror." This is very clearly shown by the 'Yelsh rule
that heirship is traced back in the first instance to the
ancestor, and not to the deceased. As the family increased,
the additional further accommodation is provided for, not by
the enlargement of the original dwelling, but by the erection
of new buildings with several allotments. The brothers
nnder the 'Velsh Jaw did not upon the father's death take
equal undivided or divided shares, but to each was aJIoted
his homestead with his eight erws of land in severalty. The
existence of the thickly scattered" raths" in Ireland would
of itself prove that the "family" occupied its district in this
manner, and in the tract of the "Crith GabhJach" (also
published in this volume) the several members of the tribe
are assumed to occupy separate houses, classified as to size,
&c., in accordance with the rank of the occupiers; the Celtic
family never seems to have clung together in the peculiar
form of the Sclavonic household.
In considering bow a geiljine system might have been
fonned, the question why the number of seventeen formed
an element in the organization may be postponed for sub-
sequent consideration. Nothing can be more em baITassing
than an attempt to reconstruct a system founded both upon
hereditary descent, and certain assumed arithmetical propor-
tions. A familyaITanged upon some rules of inheritance can
be easily understood, if once the principle of hereditary suc-
cession which underlies it, be ascertained; a political insti-
tution resting upon the selection of a fixed number from the
indefinite mass of the population, can be supposed to have
been an actually working institution. But when we read
of assemblies formed of members selected in certain propor-
tions; or in fixed numbers, out of different stocks, or of
property divided among the descendants of some ancestor,
in a fixed number of shares, it is clear that we are no longer
.. Ancient Laws of Wales, Vol. I., P. I ï7.
Ixxx
INTRODUCTIOX.
dealing with actual facts, but with theoretical descriptions
of what the institution was supposed in the abstract to have
been. The numbers in each family must be uncertain; some
men have many, some few or no descendants. The actual
condition of the population must soon have rendered its
arithmetical classification impossible, if such classification
ever existed in fact. Noone pretends to believe in the actual
existence of the early Roman constitution, with a perma-
nently fixed number of tribes, curiæ, gentes, and familiæ;
and yet upon the assumption of the existence of an almost
impossible state of facts rest the number of the members of
the sen:Lte, and the organization of the legion. Institutions,
as all else, must accommodate themselvcs to existing facts,
and in such cases as those to which we have referred the
principle of hereditary right must shake off the incumbrance
of arithmetical arrangement, or the numerical arrangement
be carried out in disregard of the strict rules of descent.
The original acquireI' of "orba" land establishes upon it
his household, and as the number of his sons increases
beyond the capacity of one common dwelling, they success-
ively go out, take separate allotments, and establish them-
selves in distinct homesteads. This scattering of the original
household must have arisen as a matter of necessity, as the
consequence of an increase in number beyond the accommo-
dation of the paternal dwelling. The eldest would probably
first marry and leave the original home, and the order of
their departure would probably follow that of their seniority.
That the sons took their separate allotments during the life
of the parent, and not upon his death, is the only mode of
explaining the Welsh rule that the youngest and not the
eldest son, succeeded to the father's house and gear; this
must have rested upon the assumption that the youngest
son alone remained in his father's house, which he jointly
occupied with the father, upon whose death he remained in
sole possession by survivorship, rather than succeeded by
inheritance. Each son as he successively lcft his father's
house received his share in the lands of inheritance, and,
having become the head of a distinct household, would
IXTnODLCTIO
.
lxxxi
cease to be a joint owner with his fitther in the original
property; the portion acquired by an elder son who had
thus gone out would pass to his descendants, according to
the ordinary rules of descent, but the undisposed of residue
of the original lands would survive to the youngest son,
who had not gone out, as representing his father in the
manner before mentioned.
The " geilfine" system began to exist
hen there was a
L'tther and four sons; Lut the question arises as to the
particular date at which this happened. That such date
wa.,> that of the birth of the fourth son is in every way
improbable; the members of the system are always spoken
of as "the seventeen men," who have definite rights anel
considerahle liaLilitieH, which could neither be enjoyed
nor perfo1'11led by infant children residing in their father's
house. The members of the geilfinc stood in definite rela-
tion to each other; they had certain rights in each others
property, but what was more important, they were jointly
liable for the wrollgs committed by any of the" family,"
and were guarantors among themselves for the payments to
be made in respect of any such. That a man's four infant
sons, who resided in his house, and possessed no independent
property, were joined with him as security for his debts,
would Le of no advantage to extern creditors, and the father
could not expect any benefit from having joinetl with him-
self as co-securities, his sons, who had no property except a
contingent interest in what he llimsclf possessed. The nature
of the rel:ltion Letween the members of a " geilfine " system
implies that they all are 81/ i jnl'is, and all owners of property
efficient to answer their joint and reciprocal obligations. It
is at this point that the great importance of the mode in
whieh the" findhir" tenants are orgallised into a fictitious
f.'lmily is apparent. This \Va,>, as stated in the passage
before referred to, effected by comlJining into one, five dis-
tinct households, not individuals, each possessing a f-j"ed
minimum of property. 1'he unit here, as is generally the
case in early tribal systems, is not the individual, Lut the
household; when an indi,-idual is spoken of, he is referred
f
lxxxii
HlTRODUCTIOX.
to in his character of the head of an household; his property
is originally the property of the household, of which he is
the manager rather than the ab!'1olute owner. It is remark-
able that the hereditary rights of succession of "findhir"
tcnants is apparently connected with the fact of their being
organised; this would be a natural consequence of such an
arrangement., for the property of any" findhir" house ha,'ing
been caught by the system of mutual guarantee, the house-
hold would be continued for the purpose of the fulfilment
of the guarantee, in the persons of the sons of the original
head as a member of the artificial family. For these reasons
there are considerable grounds for assuming that the four
sons, who jointly with their father formcd a "geilfine," are
four sons who have gone 011t and established themselves in
independent homesteads upon their allotments.
Disregarding agaili for the present the question of
numbers, the father and his sons, who have left the original
home, and estaòlished themselves as the heads of indepen-
dent houses, form the nucleus of the" geilfine" an-angement
of the fa.mily; we have now an organization of households
and a community, or land held by a community (coibne),
instead of land held by an indiyidual as head of an house;
and in place of being" the pa terf.-mlÍlias" tIle father becomes
the "geilfine" chief, or the head (CC'ltd) of the community.
The number of households in the community is fixed by
the number of new homesteads establish cd by the sons
who have gone out, that is, a number equal to the sum
total of the father and his forisfamiliated sons; and if the
union be an union not of individuals, but of householders
representing their separate homesteads, the system will
not be broken up by the death of any leaving issue, but
his successor in the headship of his house will take his
place in the gcilfine system.
The youngest son, succeeding his father as head of the
original household, would at an early period probably
succeed to the headship of the family also. The ancient
religion of the Irish Celts has absolutely disappeared, but if
their religious ideas resembled those of many others of the
IXTRODUCTIO:\".
lxxxiii
early Aryan tribes, among whom the headship of the family
is intimately connected with the performance of the sacred
rites at the original hearth, it would not appear unnatural
that the headship should remain with the son, WllO, although
the youngest, occupied the original home of the family.
The geilfine system having been once originated, it is to
be considered whether the sons of the original acquireI'
represent the branch of system technically known as the
"geilfine" branch, or represent the first members of the
four distinct branches, a"l is the opinion of Mr. MCLennan.
To the latter opinion there appear to be insuperahle
objections. It excludes the ancestor from the system
altogether; it confines the number of households in the
family to four; it certainly fails satisfactorily to account
for the extra mpmber of the geilfine ùranch; it introduces
the wholly foreign theory of primogeniture; and it involves
the fatal difficulty that a large proportion of the member'!
must be infants; as to the extraordinary longevity and
power of I'eproduction he attributes to its members, we take
no objection, as its author throughout treats the geilfine
system, not as an existing social organization, but a specu-
lative theory of descent.
That the geiIiìne class was formed before the deirbfine
began to come into being, must be, in Our opinion, the
conclusion to be arrived at, upon an examination of the
texts, and is the only theory Up011 whic
l the peculiar in-
timate union between the members of each class among
themselves, and the gradations of rank and probable differ-
ence of wealth among the classes can be accounted for.
The creation of the deirbfine class is similar to that ,)f
the geilfine, and would appear to l}ave arisen in the same
manner. If the sons, who leave the original home, take
fixed allotments to which their descendants will be con-
fined, and the original home and the balance of the lands
of inheritance remain with the youngest son, and are
available for the establishment of his descendants, it must
follow that until the lands are completely occupied, the
elder stocks must be constantly lo:-;ing ground in point of
12
lxxxiv
I
TRODUCTIO
.
wealth as compared with the yotlIlger. If a Ron of the
:roungest son can, on leaving the original home, receive an
allotment similar to that which his father's elder brother
received, his position is much better than that of his first
cousins, anel with each successive generation the dislmrity
would become more marked. The answer to this oldection
is, that the existence of this very disparity, is one of the
most peculiar, anù, at first, unaccountable facts of the gcilfine
system, according to which the members of the geilfille
class are, by the introduction of new members, promoted, or
degraded (it is immaterial which term is used) into and
through the three other classes, with a loss upon the occasion
of each removal of position and property, but with a co-
relative diminution of liability.
That the four branches of the geilfine sYRtem represent
four d.i.stinct generations of the descendants of thc original
aCc:luirer must be admitted; the terms descriptive of the
four classes are repeatedly used as expressing the four
successive generations descending from a supposed ances-
tor; but it appeal's equally certain that none of the classes
were the descendants of any other of them. The glosses,
indeed, treat the geilfine braneh as being sons, the deirLfine
branch as being grandsons, &c. j but if the views of the
commentator in the Book of Aicill are not to be actually
discarded, the "indfine" class contained the senior members
of the system, and the geilfine the youngcst j and hence
the anomaly that the word which signifies the junior
members of the class, are supposed to imlicate the sons, and
that which signifies the senior members of the dass the
great great-grandsons of the same person. So far, howeyer,
from treating the " dei1'bfine" as representing the " gÛljÎne "
class, the former is spoken of as a foreign branch taking
only upon the failure of the issue of the geilfine.
The youngest son of the original aCc:luirer, having suc-
ceeded his father, marries in his tuTU, and his sons, beginning
with the eldest, go out successively and settle on their
allotments. The second head with his four forisfamiliated
sons forms a new geilfine lmmch, and that formed by the
IXTROD(;CTIO
;.
lxxxv
four sons of the original acquirer is pushed down into the
de irbfine class; the original house, being that out of which
the successive generations have swarmed, always continuing
as an household of the geilfine, and thus the existing chief
with his forisfamiliateù sons always forming the geilfine
division; the claim of the several branches of the system to
their respective allotment,>, supposing the generations to
have died off evenly, and the whole number seventeen to
have been filled up, would be as follows: the geilfine would
IJe the sons of an existing head or chief; the deirbfine, the
first cousins of the geilfine, would claim as the grandsons
of the previous chief; the iarnne, second cousins of the
geilfine, would chim as great-grandsons of the second last
chief; the i'1dfine, the third cousirts of the geilfine, would
claim as the great great-grandchildren of the original
acquireI'. The senior branch upon this supposition is that
most removed from the chief for the time being, and for
the reasons before stated also the least wealthy. The fonr
divisions, representing four successive generations, woulù,
ii the analogy of the Wclsh Law is of weight, complete the
system; if the right of hereditary succession was nut trans-
missible beyond the fourth generation of the descendants
of the original acquireI', the sons of the fifth chief or head
would have nO right to allutments, and no further inùepen-
dent households coulù be formed.
If the rf'spective classes represent in the manner above
mentioned four successive generations of the descendants of
the original acquin:r, each generation represents either
brothers or the descendants of Lrothers; and each dass,
taken by itself, formed a àistinct subdivision of the family,
the members of which were the nearest relations of each
other.
If each class represents a generation, it, at first sight, is
difficult of explanation how four successive generations re-
main of the same number, neither less, nor more, but this
objection is removed if we admit that each class is in fact
the off.<;pring of a single individual.
We are strongly inclined to believe that in it6 inception
lxxxvi
DiTRODUCTIOX.
the respective classes were not tied down by any fixed
rules as to numbers, although at the date of the commentary
on the Book of Aicill the number of seventeen was con-
sidered as of the essence of the system. The geilfine
organization is frequently spoken of as the" seventeen men,"
which would lead to the supposition that the number was
always kept up by some contrivance to that amount; but
from the rule that a class was not extinguished as long as
there was one member of it in existence, it is clear that the
system could, and must often, have been worked with very
reduced numbers; a circumstance not incompatible with
its successful operation, for the survivorship existing among
the members of each class would concentrate the property
of all in the hands of the last survivor, and leave the
amount of property available for the fulfilment of their
mutual guarantees unaltered.
The numerical form oÎ early institutions aJ'ises from the
desire of half-educated men for an unattainable arithmetical
completeness in their arrangements, and from the wholly
unwarranted assumption, with the view to enable them to
construct theoretical systems, that all the families would be
of some fixed amount, and that the members would be
born or die off in the required order. The lawyers who
reduced to writing the customs of the "fine," assumed that
the number of children in each family would be five, that
is, four who go out, anù one who remains in the original
home, and that, therefore, the system in its complete de-
velopment must consist of seventeen persons, although
probably as a fact it frequently fell short of that amounl
The perfect form of seventeen persons, divisible in the
four classes, each representing four brothers, with the
addition of the head of the household occupying the original
home, became the accepted theoretic form of the institution.
If the number of seventeen members once became the
supposed essence of the arrangement, that, which originally
consisted of four classes, each of which was assumed to bi
four in number, and which, therefore, with the addition of
original houie, made up seventeen individuals, was con-
I.NTRODt'CTIO
.
lxxxvii
.,idered as an organism of seventeen persons, sub-divided
for occult reasons into fúur classes containing each a certain
number.
In the "Bee Judgments" and" Rightß of Water," allu<;;ions
are made to the four geilfine classes, which manifestly prove
that the four classes were regarded as distinct from, and
contrasted with, each other. The geilfine system must
have been familiar to the authors of these tracts, who
illustrate local positions by reference to the relations be-
tween these classes. Nothing can more clearly show that
each class was considered as a complete entity in itself.
Although the rule may have prevailed from an early date
that the four geilfine classes should comprise no more than
seventeen menbers, the number thus theoretically fixed
could not often have corne into conflict with -facts; the
chance of four successive householders in the lineal descent
having each five sons, all of whom marry and have issue. is
very remote, and may be practically dismissed from consider-
ation.
We have already stated our explanation of there being
four classes in geilfine ßystem, and no more, viz., the rule
that hereditary rights were not transmissible through more
than four generations, and that therefore the organization
could not be carried on beyond the great-great-grandsons
of the original acquirer; other results worthy of consider-
ation would arise upon this contingency, which are implied
in the remarkable phra5e; "From this forth it is a case of
a community of people, it is then family relations cease."
At first sight it would appear that the paragraph states that
the innfine clasB divide aIllong themselves the residue of
the lands" of the family" as if it were" common tribe land,"
and that thereupon the organization of the" family," was
ùissolveù. This would imply that the" innfine" class could
at once on coming into being, dissolve the" family," a
conclusion contrary to all the passages, which treat the
"family" with its four classes as a continuing entity; it is
quite impossible to imagine that the completion of the
l:Iystem involved its dissolution. It appears that no further
!xxxviii
DiTRODUCTWN.
generation of SOl1S issuing from the original dwelling could
obtain allotments, because the fourth occupier of the house was
the last who had a right to settlehi'i sons on the "family "land;
his younger son, the fifth occupier of the original holding,
could putout his sons as they married, but was obliged to divide
the original holdi!1g, which up to this would have remained
entire, among all his sons. The peculiar privileges attacherl
to this holding would be lost, anù all the "households"
placed on an equality; the house which up to this had been
the chief's house would become one of the houses of the
ultimate" geilfine" divisior.s, thus permanently raising the
number of members of the class to five; the undisposed
of residue of the land, so much as had I:O
been allotted
to the sixteen members of the four divisions, would he
divisible åmong the households probably per stirpes. The
land of the" family, " which up to this had been regarded
as the undivided property of the community (coibne
land), is broken up among the variou" members in
independent properties. This explains the expression relat-
i ve to covenants dealing with coibne property, "which
the fair chief of the tribe ("family') confirms 'l.l1lless Ite be tlte
sixth;" for the sixth chief of the "f
nniIy, " however elected,
would be the first who did not represent the rights of the
original acquireI'. 'Ve have no infol'mationhowthe "geilfine"
chief was subsequently appointed; the note prefixed to the
commencement of the Tract" On Succession" prove:; that
the succession to the headship of the" family" was an open
question, and that the lawyers were inclined to support the
doctrine of seniority as against some previously established
rule.
It is necessary to consider the rules of succession laid
down in the commentary in the Book of Aicill, with the
object of ascertaining how far they agree with the theory
of the origin of the gei{fine system which has been here
suggested. The well known pas&'tge in the Book of Aicill
appears to treat of the question how the property of a
household should be divided among its members, and would
therefore deal with a much later stage of the Erehon Law,
IXTRODGCTIOY.
lxxxix
when the property of the originally united household WM
subject to distribution among its members. The principle
that this property should be divided among se\Tenteen per-
sons at most, was then accepted, but the reason for such a
number being fixed upon nad at that time been forgotten, as
there are no definite groulllls shown for the distribution of the
members into the four classes, and the essential and distinct
unity of each class has been abandoned by the supposition that
an individual of one elMs can be passed on into another class
by the increasing number of junior members, and that, when
the nu
ber of possible members exceeds seventeen, the senior
member of the" innfine" class passes out of the organization.
It was, of course, impossible, when dealing with the mere
distribution of property among the members of the house-
hold to suppose the system broken up when - the number
exceeded seventeen, anù the extrusion of the senior member
was a devise to avoid this difficulty. Sir H. S. Maine's
e
planation of this pa
sage, supposing it simply to express
a late mode uf dividing household lroperty upon the
analogy of the plioI' distribution of family property, may be
adopted with the exception of the continuance of the parent
in the geilfine division.- The addition member of that
division ,,-as, it seems, introduced from the older system,
and retained after the reason for the fact had been forgotten.
Assuming the original geilfìne system to have been such
as has been suggested, the principle for the division of the
property of the household laid down in the Book of Aicill
is clear anù consistent.
The actual relationship of the members of a funy devel-
It _\Ithough great weight is to be attributed to the opinion of Sir H. S. Maine,
it may be fairly conjcctured that at the date of the Commentary upon the Book
lIf Aicill the rules for the di.tribution of property in the case dealt with were a
mere suniva1 of an orguruzation which had practically ceased to exist, and that
the seventeen clln.i,teù of the seventeen junior male descendanti of the stirps,
without reference to the original number of sons, and tliat these Be, enteen were
arranged in das
es after the analogy of the ancient dh i,ions of the fumil)'. The
unomalous results which would follow in BOrne ca-es ,\hcre the number of male
descendants exceeded -e.enteen would not be more extruordinary than those
which in exceptional cases occur under all s)'stems for the distribution of property
alter death.
xc
I
1'RODUCTIOX.
oped geilfine system, if all the members died off at l'egular
intervals, would be as follows. The members of all the four
classes would then be the descendants in the fourth degree
of the original acquireI'; the" geilfine" division would be
the first cousins of the deirbfine division; the second cousins
of the ia1:fine division, and the third cousins of the in11Jine
di\-ision; the dei1'bfine division would be the first cousins
of the geilfine division; the second cousins of the im:fine
division, and the third cousins of the innfirw division; the
iarfine division would be the second cousins of both the
geilfi:ne and cleil'bfine divisions, and the third cousins of the
innftne division; and the innfine division would be the
third cousins of the three other divisions. Their relation-
ship might also be traced by representation, that is by the
relationship which at the first existed between the original
members of each division, in which view the geilfinedivision
would be the nephews of the cleil'bfine division, the great
nephews of the ia1:fine division, and the great great nephews
of the innfine division; the deirbfine division would be the
uncles of the geilfine division, the nephews of the 'ÍcL1:fine
division, and the great nephews of the innfine division; the
iarfine division would be the uncles of the de h'bfi ne division,
the great uncles of the geilfine division, and the nephews of
the in1ifìne division; and the innfi.ne division would be the
uncles of the iarfine division, the great undes of the deÏ1'b-
fine division, and the great great uncles of the geilfine
division. As upon the failure of any class the property is
to be divided among classes and not per capita, their shares
are in the first instance determined hy the assumed natural
relationship of these divisions, and if this does not differ-
entiate the classes, then by their representative relationship;
the nearest dass taking three fourths, the next three six-
teenths, and the most remote taking one sixteenth. On the
extinction of the geilfine, three fourths would pass to their
first cousins the deirbfine, three sixteenths to their second
cousins the iarfine, and one sixteenth to their third cousins
the innfine. On the extinction of the deirbfine three fourths
would pass to their first cousins the geiljine, three sixteenths
IXTRODt:CTIOX.
XCI
to their second cousins the ial:fine, and one sixteenth to their
third cousins the innjÌne. On the extinction of the ia1:fine
division, a difficulty would arise, as both the deil'bfine and
geilfin
divisions would stand in the same relation, viz., that
of second cousins, and their respective portions would have
to be determined by their representative kinship; the
dÛl'bfiM division as representing nephews would take the
precedence of the gei(Tine division as representing great
nephews, and three fourths would go to the deiï'bfine
division, three sixteenths to the geilfine division, and one
sixteenth to the innfin
division. In the case of the extinc-
tion of the innfilW division, all the other divisions stand to
them in same degree of actual kinship, and the division of
the property would follow representati ve kinship exclusively,
three fourths passing to their nephews the ial:fine division,
three sixteenths to their great nephews the dei1'bfine
division, and one sixteenth to their great great nephews the
geilfine di\'i"ion. The distribution of the property of any
two extinct classes follows precisely the same rules; if the
property of each class be separately divided in the propor-
tion of twelve to four between the surviving classes in
accordance with their nearness of kinship. Thus upon the
failure of both the geilfine and deil'bfine division, the pro-
perty of both is divisable between the remaining classes,
their second and third cousins, three fourths to the iarfine,
and one fourth to the innfine division; but upon the ex-
tinction of the iarfine and innfine divisions, the two sur-
viving classes standing in the same degree of actual kinship
to both, the principle of representation is introduced and
three fourths pass to the deil"bfine and one fourth to the
geilfine division.
This mode of explaining the geilfine system gives the key
to the rules laid down in the 39th page of this volume.
The passage referred to is an a.ttempt to lay down the
rules for the succession to a female in the technical terms
used in reference to the organization of the family. It
appears from the gloss that the rules 3 and 4, in page xlii,
deal with the succession to the property of a deceased female,
XCll
IXTRODUCTIOX.
and that. t.he graud-children and great. grand-chik1ren, t.here
referred to, are not those of the deceased female, but of the
original settler, if we m.ay use this modern t.erm. It appears
that t.he hereditary right to the vacant lands did not extend
beyond t.he fourth generation of t.he stirps, and that. descend-
ants of the several generations are conceived as
o-existing.
The existing descendants of the OI.jginal stirps may be classed
in hVfJ modes, either. as constituting a geilfine system, or
classified with reference to t.he relationship wllich tlw
original members of any division of such a system would
ha\"e borne to the original stirps. In a fully formed family
the members of the geiljine class would be the original
members of tlleir division and descendants in the fourth
generation of the stirps; the dei1'ùl
fine class would represent
their fathers, the descendants in the third generation, and
similarly the iwjine and in1
fine v;-onlù represent ancestors
who were the grandsons and sons of the original stirps;
thus the terms gÛlfine and deirbltfine might in a secondmy
sense be used to designate descendants in the fourth and the
third generation. The four generations of the male issue of
the settler seem to have been regarded as forming four classes
equivalent to the classes of the geilfine system, and having
similar rights of property and succession intc1' sC8e.-
Upon the completion of the Gciljine system the "family"
does not appear to have dissolved beyond the extinction of
hereditary rights in the land of the family; the organization
still continued upon the basis of mutual guarantee and
liability; the seventeen houses (or the lesser number actually
in existence) formed the patriciate of the" family," jointly
liable for the compensation for the wrong committed by
members of the family, and jointly entitled to share in
certain proportions in the compensation payable for wrongs
inflicted upon members of the family. TIle chief represented
henceforth the" family;" not the hereditary rights of the
original acquirer, for property falling in from externs vested
not in him but the geil/Ìne class; to the last the distinc-
.. The difficulty in this explanation is the incomprehensible glosses, page 41, lines
30 and 31. It may be Bugge8ted that the glosses in question have been tran
l'osed.
INTRODUCTIO
.
XClll
tion of tlle "tribe" and" family" must have been clearly
marked, the family rested on the lands ofinheI"Ìtance booked
to the original acquirer, and ClS (t f1.7Jlíly had no property
external to that, the tribe possessed the general undivided
tribe lands and the waste pasturage lands; these latter it is
to be obseryed cannot haye been included in the lands of
the "family" which were finally divided upon the completion
of the geilfine system. The claim of an individual to share
in the pasturage was founded upon his being a member of
the tribe, and had no connexion with his membership of
a family, and when, we proceed to consider the Crith
Oabhlach, it will be clear that, in the organization of the
tribe, the family was wholly disregarded, as in the legion,
the individual citizens were equal in the face of the L1,w,
and the paternal authority disregarded.
The conclusions, to which we arri\'e, may be briefly stated
as follows :-(1) the geilfine system waS an ingeniously
contrived organization of the "family" with the object of
keeping it together upon the basis of mutual guarantee,
founded upon the antecedent rules of succession to lands of
inheritance (m'ùa); amI of retaining the lands of inheritance
in the descendants of the original acquirer, as far as the
existing rules as to "remoteness of limitations" permitted;
(2) that it was contrived in the interest of the noble classes,
who possessed sufficient influence to procure portions of the
public tribe land!:! to be granted to them and their families
to the exclusion of the rights of the general body of the
"tribe"; (3) that as the general tribe lands were appropriated
by the noble cla<;s, the system in its earlier stages gradually
became obsolute, and merely a subject of antiquarian en-
quiry; and that the later commentators, especially when
once the idea of seniority as the basis of succession had been
establi<;hed, were unahled clearly to explain its origin alllL
probably found more difficulty in understanding it than does
the modern student; and (4) that the system when existing
in its latest state of survival was adopted as the basis
for a system of rules relative to the distribution of the
property of an household, to which in its origin it had really
no analogy.
XCIV
INTRODUCTION.
IV.
Oy THE ISCIDESCE OJ!' FINES AND CO:\JPENSATION
FOR CRmES.
It is a cardinal principle of the Brehon Law that tlw
liability to pay the fines and compensation for crimes,
committed by a member of a tribe or family, should f,1,ll upon
the persons who would be entitled to his property upon
his death, and in the same proportions.
In this volume there are contained two tract,> as to the
persons by whom, and the proportions in which, such fines
and compensation should be paid, viz., the tract entitled
.. Of the Judgment of every Urime which any Criminal
Commits, &0.:' and that entitled" The Land is forfeited f:n'
Crime." If we could therefore su('ceed in ascertaining the
mode in which such fines and compensation should be
assessed upon persons other than the criminal himself, and
in what proportions the fines and compensation payable fur
the death of any member of a tribe or fitmily should
be divided, we cannot fail to acquire a certain degree
of knowledge as to the distribution of property upon
the death of the owner, and shall be in a position to
understand the otherwise obscure rules as to the succession
to land contained in the first tract published in this volump.
The former of these tracts would appear to be of a very
modern date, and not to be free from the influence of the
principles of English Law. The reasons upon which the
conclusion is arrived at are the following: (1) it distinctly
recognises acts of violence to be crimes, and does not
regard them as merely torts, treating the consequences
uf crimes in the light of punishments for wrongful and
illegal acts; (2) the payments to be made by the criminal
or his guarantors are considered as compromises by which
he may escape the punishment due to his crimes, not as
arrangements by which the quarrel between the parties
is to be compromised; (3) it seems to recognise a coercive
jurisdiction as possessed by the Judge to which the parties
were obliged to yield; (4) it treats the execution of the
criminal, his imprisonment, or his servitude as the possible
INTRODUCTION.
xcv
consequences of his crimes, and, as a logical result, discusses
the contingency of his evasion to escape puni.
bment.
All these ideas are manifestly foreign to archaic law.
The extreme vagueness and uncertainty of the use of the
terms" deirbfine "and "geilfine" in tl)is tract are very
remarkable; an uncertainty very puzzling to the authors
of the glosses and commentary, who have frequently to
correct and explain the manner in which these worùs are
used.
It appears that the former term is indi.scriminate1y
used in three different senses: (1) as descriptive of all the
members of the geilfine organization, (2) as the deirbfine
class as distinguished from the gei{fine, and (3) as a tenn
descriptive of certain relationship merd
'.
The glosses and commentary are especially important in
dealing with this tract, as without a very careful reference
to them erroneous conclusions may be deriveù from an
unaiùed examination of the original text.
The tract commences with a statement of the property
and persons liable to the payment of fines and compensation.
The rules of the priority here laid down may be summarized
as follows :-(1) The criminal himself was primarily liable;
this is to be inferred from the words, "If he absconds,"
commencing the paragraph, and stating thus the contin-
gency upon which the subsequent secondary liabilities arise;
(2) The property moveable or immoveable of the criminal
in the second degree was liable; when we proceed to the
second tract upon the suhject it will appear that this
liability was considered as a charge specifically aftèctiug
the property in question; it may be observed that this rule
invoh'es the idea that the injured pHty had a legal right
to the payment of the fine and compensation, a theory of
anything but an archaic nature. (3) His father was liable
in the third degree, whose liability is obviously founded not
so much upon kinship, as upon his position as the head of the
household of which the criminal was a member; this passage
Ï<i glossed with the explanation, .1 when he has no son, for it
is upon him (the son) it (the c1'ime) should go before it went
upon the father ;" we may conclude therefore that the author
XCVI
I:\TTIODUCTIOY.
of the gloss would introduce the son into the list in priority
to the father; it would appear that the original text
contemplates tho criminal as forming portion of his father's
household, but the author of the gloss perceives that the
case of the criminal being himself the head of an household
has ùeen omitted, and points out that in such case the son
whether as the co-owner of the household, or next in blood
would be primarily liable; the old rule of the" coir-feine"
law cited in the gloss proves that the liability did not affect
ancestors or collateral relations so long as there was in
existence issue of the criminal to be made answerable.
(4) His brothers, in equal shares; with brothers the liability
by reason of kinship here stops short, for the next ch:;:s in
order are (5) his "dci-r
fine" (not deirbfine relations as in
the translation, for there is nO word in the original equivalent
to relations); this word is eXplained in the gloss as equivalent
to " geilfine," and must therefore mean that the liability fell
upon the members of the geilfine organization, falling upon
the several classes successively, and ultimately upon their
default upon the gci{fine chief personally; such at least
is the conclusion we draw from the following gloss; viz.:
"U po nth e chi e f, i. e. the chief who is ovcr the gci{rine
division which happens to be thore; and it is not the chief
of the dei1'ùfine divisions, nor of the i((1:fine division. It is
on them (the !Jcilfine division) the crime is charged bcfJre
he brings it to the" dei,'vfine" di"ision from whom he Lthe
chip} (1)] ha3 taken their pledges." (0) The household in
which is his bed and where he is fOll, which seems to mean that
the liability then falls upon those who have harboured him
and assisted his escape, for these words arc qunlified by the
gloss: ,. if he is not mught upon his bod." (ï) The king, the
head of the tribe, as contrasted with the head of t.he family.
The second paragraph is evidently introduced from the
work of some other author, as it is merely a re-statement of
the rule laid down in the first paragraph, in a much less
satisfactory form. It is remarkable that in the paragraph
there is introduced after the'" deÏ1'bfine" a class described
as the "taoibhfine," glossed as "his brother's side family."
This would lead to the conclucsion tlJat in the latter para-
I
TRODUCTIOY.
xcvii
graph tI1e "deirbfine" meant not the members of the
geilfine organization, but the first-cousins of the criminal.
It is, however, not desirable to embarrass the clear state-
ments of the first paragraph as explained by the glosses, or
to start conjectures resting upon a paragraph so confused as
the latter undoubtedly is.
A mere sojourning stranger, from whom the chief had not
and could not have taken pledges, if guilty of a crime, and
not poss('ssed of property, did not render any of the family
or tribe liaLle to contribute to the fine or compensation pay-
able in respect of his crime; he was simply "put upon the
road," declared ., exlex," and abandoned to his fate.
(The principle that the liability to pay should be com-
mensurate with right to receive is remarkably laid down in
the following rules contained in the Commentary:)
In the case of any unintentional- crime except" killing,"
the eric fine is primarily payable by the criminal; the
compensation (" 'lvhat he O'lVCS beside the e1'ic fine," i.e. the
honour price) is payable by his family" in the proportions
in which they divide his property."
In the case of unintentional "killing" (with certain
exceptions) both the family and criminal contribute to pay
the entire, whether he has means of payment or not, the
criminal paying one "c1tmhal" of the compensation, and
the same share as his father or son in the six c.umhal-s of
dire fine, the family contributing the residue in the shares
in which would divide his property. The reason for this
rule is stated to be that if he himself were killed the entire
family would participate in the compensation.
AB to intentional crimes, the rule was different. In such
cases the criminal, his son, and his fitther were successively
liable to the full extent of their property in exoneration
of the family.
When payments have to be made by the criminal,
they first fall upon his movable, secondly upon his
immo,'able property, and finallJ" upon himself, by which is
· In pllge 249, Ene ], " iltentiollal" is printed br mistllke for" unintentional."
9
XCVlll
INTRODUCTIO
.
meant that he should serve for it until he worked out the
value of six" cumhals."
At page 259 is discussed the proportions in which the
amount payable for" killing" should be divided among the
kin of the deceased. The words of the Commentary are as
follows :-" "Then the man who is dead in this case has a
son, he takes the cumhal of compcnsation alone, if he be
alive; and if he is not alive, his father is to take it; if he
(the fitthc'i') is not alive, his brother is to take it; if he (the
brother) is not alive, it is the nearest person to him that
takes it. It is thus the body-fine is divided-three cumhaZs
of di1'e-fine go to the son and to the father. There are
three cumhals of dil'e-fine remaining after that; a cumhal
of di1'e-fine goes to a brother (thc brothe'i's 1) collaterally.
There are two cumhals of di?'c-fine still after this; a cumhal
of di'i.e fine of these goes to the son and to the father.
There is one cltmhal of eliTe finc there after that. This is
to be divided from the lowest man of the geilfine division
until it reaches the uppermost man, and from the uppermost
man until it reaches the lowcst man," &c.- Thus, of the six
* This pas<age i\1ustrates the connexion between the ather and son which so
often occurs in ancient law. As long as the son forms one of the household of
which thc father is the head, he is ob\ ious1y one of those in the hand of his
fathcr, and a co-owner of the household propert}"; but even after he hns left the
uriginal dwelling and established a hearth fur himself, he does not completely
succeed in shaking off his conne"ion with his parent. Hence the three emancipa-
tions requisite at Uoman law to free the son from the patna potest".. It is with
reference to this principle that we may explain the passage in the last \'olume
\\ hich has produced so much discussiun, yiz. :-" If the father is alh'e and has
two sons, and each of these has a family of the full number - -i.e., four -it is the
ol':nion if !alJ)!Jerø that the father \vould claim a man's share in eyery family of
them, and that in this case they form two geilfinc di\'ioiol18; and if the property
has come from another place--from a family outside, though t
ere shou1<1 be
within in the family a son or a brother of the person whose property came into it,
he shall not obtain it any more than any otlit.. man of the family." (Vol. iii.,
r. 333.) From the present passage it is clear that, although the son established
a separate household (ur himself and his sons, the father took a share in the
money payable for his body fine; and hence it may be inferred that the (ather
was entitled to support in the son's honse. If a son obtaineù orba lanùs, and,
ha, jug fonr son", established an independent" gcilfine" "}'stem, it appears that
hi. father could claim a man's share in it. The point of the qneótion in the
l':hfage referreù to
ecms to be, what was the pooitiun of the father if he had tw.>
I
TRODUCTION.
XCl
cumhals of the dire fine, the father takes two, the son two,
the brother one, the geiIfine division one. Aß to what is
stylcd the compensation (the honour price) none of it passes
to the gcilfine division; this the son, in the first instance, is
entitled to; in def.'lult of a s.on, the filther; in default of
the father, the brother (or brothers); and in default of a
brother, the nearest person to him, by which we must
understand that it passes as a succession to the person or
persons who would be entitled to the brother's prope1"ty
upon his death. This Commentary is appended to a text
which deals with the question, "Who are they who divide
the chattels and the dibadh property (of a deceased person 1).
The answer to this in the original text runs simply thus-
"Four, father and son, b1"other and family." The Com-
mentary, however, upon this text deals with the mode in
which compensation and din fines are di-..isible, and
between whom. Nothing can show more clearly that to
the commentator the persons entitled to "dibadh" pro-
perty and to compensation and dire fine were the same and
in the same proportion; but he has ce1"tainly failed to
explain whether it was in accordance with the rule appli-
cable to the compensation, or according to tllat applicable
to the dire fine, the dibadh property would devolve. It
would seem that the rule applicable to the compensation,
not that applicable to the dire fine, is the analogy to tbe
rule for the devolution of the debaùh property. 'rhe rule
sons, who had both obtained grants of orba land, and sewrally founded distinct
" families" in which of them should the father take his .. man's share" and
how should his riKhts be arranged as between the two families?
The opinion referred to laid down that the father had a distinct and indepen-
dent right to a .. man's share" in both of the families, although they formed hvo
<Ii-tinct geilfine dh-isions. The second portion of the passage points out the
di
tinction bet"een the rights of a father and that of any other mcmber of the
family in the form of an argnment, viz. :._" So different is the position of the
faUler from that of any other member of the family, that in the preceding
case the father has his right to a 'man's share' in both families, although
in the subsequent case no member of a family, whatc\-er be his apparent
equity, has any special rights whatsoever." The father in the supposed case
would occupy the anomalous po
ition of being a member of two incipient
" families."
g2
c
INTRODUCTlO
.
as to the cli1'e fine laiJ down in this passage is wholly in-
consistent with that stated in page 247, line 2. The latter
passage is introduced as explanatory of the rule in page
245, line 26; but it must be observed that the explanation
is inconsistent with the rule which it is supposed to
explain, and that, to make any sense of the passage, we
must read at line 4 of page 247 "share in" for "takc."
Now, the whole explanation is introduced to explain the
apparent anomaly of the family contributing to the payment
of the compensation for an unintentional killing, and no
such explanation would be necessary unless the fact of the
family sharing in the liability to pay, and the right to
receive compensation presented some difficulty which rc-
quired explanation. This difficulty must have been that
the rules as to compensation were in some extent incon-
sistent with what would have been naturally expected to
have been laid down upon the subject-that is, that they
deviated from the fundamental principle of the rule!> as to
liability to payor receive fines and compensation with
those which regulated the devolution of property upon
death.
If the family, by which we must understand the parties
liable in the second degree, paid the amount to which the
criminal himscIf was primarily liable, they acquired a charge
upon his property, which they could enforce to taking
possession and the receipt of the profits. "The limit of the
d.uty of the family which pays his, the kinsman's, trepasses
until they are paid back every 'sed' which they have
paid, together with its profit, the grazing of the grass, nor
the must, nor the corn do not go into account against
them.".
The injmed party appears to have possessed a similar
right as against even the land of the wrongdoer, if he had
land, but the member!> of the family could discharge the
claim against themselves by handing over the criminal, and
retain the land for themselves. "And the family have the
choice whether to hand him over and have the land to
· Page 257.
I
TRODUCTIO
.
Cl
themselves, or whether they will give the land for the crime;
and it is within the choice of the family this lies." It
follows from this passage that the inj
.lred party hall an
acknowledged, and acquiesced in, right to seize even the
larrd of the wrongdoer in payment of his demand, which
would have led to the very inconvenient result of a stranger
being settled upon the tribe or family land: what would
be the legal status of the stranger is difficult to understand,
whether he would be entitled only to the profits of land
held by the wrongdoer in exclusive ownership merely, or
whether the possession of the land would have drawn with
it the accessories of sharing the common tribe land, and tho
depasture of the waste; to avoid this difficulty the family
might surrender the wrongdoer, and themselves acquire his
portion of land.
The second tract entitled "The Land is forfeited for
Crimes," is of a very miscellaneous nature, and of a palpably
late date. The idea of the forfeiture of the lands of a criminal,
irrespective oftheir value and amount, arose in the English and
other feudal systems from the nature of the tenure of land.
The lord possessed the absolute ownership, the tenant only
the usufruct upon the condition of the performance of the
incidents of his tenure; the commission of a felony, in its
nature a quasi-treasonable act, terminated the right of the
tenant to the usufruct, and the land escheatcd to the lord of
whom it was held; the escheat of the land in such a case
restell upon an entirely different basis from tha.t of the
forfeiture of the felons' goods; but when the land was held
in absolute ownership, and the possession of the owner was
that of the head or member of a f:'tmily, although his goods
might be forfeited, the land could not; the law as to the
gavelkind lands of Kent was a survival and illustration of
this principle. In the preceding traet the wrongdoer either
lost the possession of his land temporarily until its profits paid
off the amount to which he was liable, or absolutely as the
result of his loss of status, not as a punishment in the correct
use of that tenn. The author of thii tract has thrown
together a number of loose memoranda and references to
Cll
INTRODUCTION.
authorities upon the subject of the forfeiture of land, and
the fineH payable in respect of theft, in a manner which
would suggest that they represent the heads of some law
argument upon the subject. The case upon which he relies
is the remarkable decision as to the forfeiture of Bregia hy
the tribe' of Aengus Gabhuaidech, in consequence of the
latter having wounded in tht\ eye the King Cormac at his
palace at Tara; the circumstances of the case are fully set
forth at the commencement of the Book of Aicill in the
preceding volume. It is to be observed that in the original
authority there is no allusion to a forfeiture of the land at
all; the decision was that the members of Aenglls' tribe
should undergo a " diminutio capitis," viz., that in a certain
proportion the inhabitants should be reduced to the con-
dition of" dacr " stock tenants; and that which is treated
as a forfeiture of the land arose from their refusal to submit to
the sentence, and emigrating in a body into Munster. Our
author treats the transaction as essentially a forfeiture in the
nature of a punishment for a crime. "For what old Adam
did great things were lost," i.e., as by the transgression" all
the fruits of Paradise were forfeited by Adam, so his lands
were fOlfeited by Acngus."*
Various other passages prove the late date of this tract,
and that it was written either by an ecclesiastic, or under
ecclesiastical influence, such as the following extract
noted down for citation, "God has not formed corruption
nor any particular species of violation, the merciful God
deems such things atrocious; unless land is given DO
umpire can heal them, i.e., unless land is obtained as the
eric-fine the crimes cannot be taken away, though it be
a righteous judge who estimates them, for he would
pronounce no falsehood."t In a subsequent passage we find
an extract from the Gospel of St. John introduced by the
well known phrase of "ut d.ixit lex." It would appear in
'" Page 2G7. 'fhe peculiar judgment upon this occasion may have arisen from
the fact that Aengus, when he wounded King Cormac, was acting in au oflìcid
character as the" ai,'e-echta" of his tribe.
t Page 2G5.
I
TRODUCTIOY.
ciii
one passage that the author was attempting to introduce
the doctrine of the Roman "hære'3."*
Although evidently drawn up for some practical purpose,
the tone and manner of this tract closely resemble portions
of the introduction to the Book of Aicill, which the author
manifestly had before him, and it is probably of the same
and as late a date.
Apart from a few incidental extracts from previous authors,
it cannot be considered as an authority on the Brehon Law,
and is valuable as illustrating the change to w hieh the older
system must have been subjected from the influence of the
Church.
At the date of its composition the Irish lawyers were
perplexed by the conflicting ideas of the old law on the
one hand, and Clnistianity and the Roman Law on the
other, the state of mind so curiously exemplified by the
introduction to the laws of Alfred.
V.
THE SUCCESSION TO LA-xD.
In the preceding section we have endeavoured to ascertain
the proportions in which fines and compensations were
payable by the parties secondarily liable, as affording some
reliable information as the rules of succession to property,
and enabling us thus to explain the passages in the first
tract in this volume dealing with the subject, and as also
explaining the practical effect of the geilfine system upon
the succession to land.
However strongly the rule may be laid down that the
liability to pay the fine or compensation falls upon those
who would be entitled to the property of tIle wrongdoer
upon his death, and in the same proportions, it is clear
that this liability could only fall upon the pellions in esse
at the time, those resembling the class of persons entitled
under an ordinary English settlement of real estate,
whom we should describe as having vested estates in
remÚnder, and must exclude the unborn issue of all suå,
· Page 2Gí.
CIV
I
TRODucrIO
.
although such issue may subsequently come into being, and
succeed to the possession of thé estate. The rules for the
incidence of these payments must have been drawn up to
meet ordinary cases; and the more complicated and unusual
must have been decided according to the principle involved
in these rulea-involved, not expressed-because the Br()hon
lawyer is always dealing with specific concrete ca.,>es, and
howeyer elaborate in his arithmetic calculations, never
attempts any abstract rule or definition. Before discussing
the rules as to the succession of land, it may be observed
that to a large proportion of the triùe land the legal idea
of a succession must have been inapplicable. It is now an
admitted fact that the Irish tribe was not in its organization
an anomalous institution, but was simply one example of
those yillage communities which existed among all the
early Aryan nations, and that the forms of all these com-
munitips resembled each other in their general features. In
all the numerous books published lately upon the subject,
this principle has been laid down; and the difficulty in
dealing with the sul
ect at present is not to discover
analogous cases, Imt to escape being entangled in or misled
by the countless examples of institutions more or less
similar, with which we are now so abundantly furnished.
The district of the tribe was at first as a matter of fact, and
was always in theory considered to be, thc properly of the
tribe; from this are first to be subtracted the dwellings of
the members of the tribe, with their curtilages; next the
chief's share; and lastly, those portions of the general tribe
land which had been in same malineI' (it is immaterial how)
allotted to individuals or families in exclusive ownership.
The residue of the lands, unappropriated to indviduals, con-
sisted of the common tillage and meadow lanù, and the
common pasture or waste. The common tillage and meadow
lands were divided out from time to time in separate pro-
portions, and according to some customary law among all
the members of the tribe who also enjoyed the right to
depasture the waste according to certain fixed rules. It is
clear that to these latter two classes of land the idea of
I
TRODUCTIOX.
cv
succession is wholly impplicable; the right to till or graze
the public lands was a purely personal and temporary right
enjoyed by t11e indiviùual as being a member of the tribe,
and enjoyed by his sons, not by any hert'ditary right,
claimed from or through their father, but in their own right
as themselves being members of the tribe for the time being.
The ownership of these lands was vested in the collecth-e
tribe, Lut the rights of each member were personal, tempo-
rary, and incorporeal. But the nature of the interes
of the
owners in land cut out of the general tribe land, and allotted
in exclusive ownership was entirely different. They claimed
under a grant made to one or more persons, and made their
title through the grantee or grantees;, this title to land is
usually spoken of as being hereditary, and the land in
question described as inheritable land, or land of inheritance;
but it does not follow that although the title must be made
under a particular grant, and through the original grantee,
that the actual owners stand in the relation of" heirs" to
the person through whom they claim. Our modern idt'R.S of
inheritance and heirship are involved with tllOse of the
transmission of property by de5cent and primogeniture;
and much of the confusion which exists upon this subject,
has arisen from the inquiry proceeding upon the assumption
that purely local and arbitrary rules of our own municipal
law are uni\"ersal and eternal principles.
Land might be allotted in separate ownership for a
limited period (e.g., for a life), or in perpetuity; but
although the former class of grants are found among the A.
S. charters, in the case of the Irish tribes we have no reason
to believe that the grants were limited in duration.
'Vhen land was alienated in perpetlwm, it passed upon
the death of the original grantee to the person or
persons entitled, according to the custom, to the succes-
sion to his property; such persons might, or might not,
be identical with his nearest agnates; but even if they
were, it did not folluw that their title to the succession was
founded on descent or even blood relationship. The origin
of all successions appears to be not descent, but co-ownership.
cn
INTRODUCTIO
.
The legal unit is not the indi\'idual but the household; the
head of a house acquires property for his household, and
possesses it as the manager of an implied partnership, not
as an absolute owner. The household need not include all
his descendants, or consist exclusively of them. The
emancipated sons, under the old Roman, would not have
shared in their father's property, which would have passed
to an adopted son. Our ideas a'I to the transmission of
property in ancient times are, perhaps, embarrassed by too
exclusive a reference to the Roman law, in which the
hæres presents a misleading resemblance to the feudal heir j
but in countries in which the technical unity of the family,
exhibited in the existence of the Roman hæres, was not
continued, the succession was manifestly equivalent to
survivorship among joint tenants j and this principle of
survivorshi.p applies not merely to the property of the head
of the household,.but to that of every member of it. Let
us observe how a perfectly simple process is obscured by
the use of words. If a household consists of A, the father,
and Band C', the sons, they are co-tenants or co-partners in
the property of the household, with the father, A, as tIle
manager j if the father, A, dies, the property survives to B
and 0, the sons j in this case the sons would Le commonly
spoken of as taking in the character of their father's heirs.
On the other hand, if B, one of the sons, dies, the property
survives to A, the father, and C, the surviving son j we
should in this case think that no rights to properly had
passed, and speak of the possibility of B succeeding to his
father as having ceased. Again, if a third son, D, is born
no visible change has taken place, but, in fact, a new mem-
ber has been introduced into the joint tenancy or partner-
ship, and the right.'! of the three original joint tenants,
diminished lJro tendo. The extent to which heirship is
traced in the collateral line in any ancient law depends
upon the greater or less magnitude of the original joint
family. If, for any reason, families have hung together for
several generations, continuing to form one household,
the death of each member increasing the shares of all the
I
TRODUCTIOX.
CVll
other member" in the common fund, the extent of collateral
heirship admitted by the customary law may be very wide;
and, on the other hand, it will be probably found that in
the ca<;e of a nation which, from some external reason, has
acquired the custom of inhabiting small and distinct habita-
tions, the degrees of collateral heirship will be contracted,
mùess the idea of relationship be kept up by family religious
rites. The reason for the rule that the liability to pay fines
and compensation falls upon the persons who would take
the property of the criminal, and in the same shares, is that,
as the family has to pay for the wrongs committed by its
members, the payment falls upon the common fund, and
diminishes pm tanto the shares of all who take by survivor-
ship.
This is illustrated by, and explains, a difficulty which
arises as to the incidence of, and the rights to, fines. In
some passages the father is the person primarily liable, in
some the son, and in some they are represented as jointly
entitled to the compensation. Who in any given case were
entitled to the succession, or liable for "Tongs, must
originally have turned upon the question of fact, who, at the
date of the death, or of the crime, were the members of the
household to which the deceased or the wrong-doer belonged.
The rules as to the succession to land have been em-
barrassed hy the use in the Brehon Law of words descrip-
tive of different kinds of interests in lands, or, rather, of
lanJs distinguished by a reference to the nature of the
interests of the possessors; and the terms used are such as
involve a cross division. The primary distinction between
the ger.eral tribe-land and the lands of inheritance is per-
fectly clear; the former are the few'an fine; the latter are
the O1'ba lands. The latter class of lands are subdivided
into those upon" hich the geilfine organization had been.
and those in which it was not. established. The former
lands are described repeatedly as "coibne" land-that is.
land which was the property of an organized association of
persons. The root of the word seems to imply something
like the spreading of branches from a common stock, and it
CV111
INTRODUCTIOY.
is frequently used to denote the association of different
individuals considered as one body in a legal point of view.
Thcre also occurs another term frequently used as dcscriptive
of land, vi7
, "dibadh," the explanation of which involves
much difficulty. It is used, as has been observed, in the
first tract a5 descriptive of common tribe land as contrasted
with coibne land; it is also used to express the property
p3.ssing from a deceased to the parties entitled to the succes-
sion, and it is used in the latter sense evidently to describe
the s}lare of a deceased co-owner in coibne land when it
passed by succession. It woulù appear that the term is
used rather in opposition to the term "coibne" than as
descriptive of any specific class of lands, and desigates land
which is divisible among various parties as tenants in
common, and not as members of an association. The same
land might be described as either "coibne" or "dihadh,"
according to the rights of the individual" then under con-
a:;ideration. The question as to the succession to "cruiLh"
and" I:'liasta," the interests in which were created by express
contract, may be postponed until after that of the two other
classes-viz., (1) land of inheritance not subjected to the
geilfine organi7..'ttion, and (2) lands upon which a gcilfine
organization had been estaLlisllCd
Assuming that the penalty for wrong falls upon the
household of the wrong-doer, and that the succession to his
property would take the foml of a survivorship ofthe other
members of the household, three possible cases would arise-
(1.) If the wrong-d.)er, or deceased, as the case might be,
were a member of his father's household, the liability would
fall upon the father, and the share of the deceased pass to
him, in both cases in his character of head of the household.
(2.) If the son did not go out during his father's lifetime,
and after his death continued in the house in joint possession
with his brothers and their descendants, the latter would
Loth incur the liability and take the succession, in each case
as the co-members of the household, bat the tmnsaction
would apparently be different from the preceding case, for
the fact of the successio:l would be her
apparent.
IXTRODUCTIOY.
CIK
(3.) If the son had gone out and established himself as
the head of an independent household, the liability would
fall upon, and the succession accrue to, his own children or
remoter descendants, the co-members of the household, and
in this case there would appear to be liability and heirship
resting upon descent.
The right to fines or compensation would follow the same
rule as the liability to pay them.
In the latter two cases, if we were to speculate who at any
gi,yen time might be the co-members of the household, our
calculation would include all persons necessarily members of
the house who could come into being during the life of
the wrong-doer, or deceased.
The two tracts in question in various passages state the
persons liable to pay and entitled to receive fines and com-
ppusation. The statements are apparently contradictory,
but a clear idea of the order of priùrity may be obtained by
a careful comparison and analysis. "T e may disregard the
passages in which the general word" family" is used; in all
such ca'3es the liability of the members of the family among
themselves would Le secundum legent, and this must be
necessarily implied. 'Ve may Ûmilarly disregard the pas-
sages in which the term" the nearest hearth" is used; this
term must either mean the household next liable in order
according to law, or refer to cases inapplicable to the question
of succession.
In page 243 the order of liability is thus described :-(a)
the father; (b) the brother; and (c) the geilfine (see the gloss
as to the latter term, and the preceding gloss introducing
the son in priority to the father). In page 245 it is-(a)
the brother; (b) the geilfine division; (c) the deirbfine;
(d) the taoibhfine or the iarfine division; and (e) the iar-
fine. In 247 it is the son. In page 2(jO it is-(a) the son;
and (b) the father; and in pages 240 and 268 it is simply
the geilfine.
As to the right to receive the compensation, in page 245-6
we are told that the body fine for the death of father or son
is payaLIe to the entire family. In page 255 the father and
ex
I!':"TRODUCTION.
the son of the slain take half the eric fine between them.
In the page 259 the body fine of six cumhals is divided in
the following proportions :-1'0 the father, two; to the son,
two; to the brother, one; anù to the geilfine, one.
These fluctuating dicta involve no real contradiction.
There is no statement in any of them inconsistent with the
others, if we suppose that on each occasion the author is
dealing with some specific case, asserting the liability of some
individual defendant, but not defining the order of liability
of the persons secondarily liaùle as among themselves.
Bearing in mind the principle, "As long as there is a
family before him, it is not backward,; he sues," there can
be no difficulty in stating the order of liability and the
reasons for it.
The liability falls first upon the persons who would ùe
the members of his hom;ehold; if he were the head of an
household, its members would be his own sons, and, there-
fore, upon the son the liability first faUs.
H he has not left his father's family, tIle liability falls
upon the father as the head of the household; if he were
dead, those next liable are the brothers who would have been
joint owners with the crimiual.
Thus the liability is confined to the persons who were, or
had been, members of the same household with the wrong-
doer; but at this point the liability of relations stops, and
the geilfine division of the "fine" assumes the liability.
There was no intervening liability between that of brothers
amI that of the general" family."
If we now attempt to translate this priority of liability
into a theory of the succession, the following observations
appear of importance:-
(1.) The rule that the parties liable pay the fine in the
proportions ill which they would divide his property, does
not imply that eo instunti upon death the propcrty woulJ
have been divided among the parties named; it means that
the liability, as a clanmosa heJ'eclitas, or ncgative quantity,
pursues the same line of succession as the actual inhe1"Ïtanee
would have pursued.
INTRODUCTION.
eXI
c
.) The term son must be read as "sons," and inclusive
of the descendants of sons, and the observation applies to
the term " brother" also.
The sons of the deceased take in prim ity to his brothers; but
of such a rule, when once admitteù to exist, there are two
possible explanations, either (a.) that the brothers succeed
if the deceased die without leaving sons or lineal descendants
surviving him, or (b.) that the brothers, or their descen-
dants claiming through them, succeed to the inheritance upon
the general failure of the sons or their descendants, as we
should express it, upon the general failure of the male issue
of the purchaser; or, as it might be put, whether upon
failure of male issue of the original acquirer, his brothers or
their descendants would claim as his heirs, or as the collateral
heirs of the last of the issue. This involves the question
what wag the nature of the interest taken by the sons of
the deceased in his lands. At the present day, and in the
English L:tw, the eldest son, succeeding as heir to an estate
in fee, takes the estate absolutely without any obligation to
transmit it to his own heir; according to the old French
law of substitutions the eldest son took the estate, but was
deprived of all power of alienation, so that the succession upon
his death passed to his heir; and the principle of the Scotch
tailzie is similar.
In all early systems of law the iùea of primogeniture is
absent, and the laud pa.<;ses to aU the sons; supposing it
thus to pass, the practical working of the rule of descent
hinges upon the question whether these sons take as abso-
lütc owners, with full powers of alienation, or whether all
the male descendants of the ancestor have a claim to a
portion in the lands which eannot be defeated by their
predecessors; and if so, how long does this right exist, or at
what date is it extinguished?
Although the tribe may be considered as perpetual, and
its members, at however remote a date, retain their rights
in the common land, there is no indication that the bnds of
inheritance were subject to such a rule, which, if it existed,
would have bounù property in a perpetual entail, and pro-
CXIl
I
TROD"C"CTIOX.
hibited alienation. It is to be remarked that in no passage
is there allusion to land passing to the descendants of an
owner generally, and in pC11.Jctnllm,. on the other hand,
there are frequently allusions to the four tÌrst generations of
the descendants of the deceased, and the clea,rest intimation
that the head of a family, who was an owner of property,
could not alien for his own purposes, to the injury of his
descendants, and that there existed in the sons a certain
right to the father's land, sufficient, at least, to restrain tIle
latter's power of alienation. The residue of the land of the
"fi11e" remains undivided until the constitution of the
"innfine" class, which fixes a date connected with existence of
a fourth generation of descendants.- Lands were estimated
"according to the amount of their property from great-grand-
"on to the great-great-grandson ;"t this passage is explained
as stating the moùe in whieh land is divided upon the death
of a daughter (who must be a daughter, not of the original
ancestor, but of the survivor of his sons-although this is
immaterial), upon whose deatl] the latest descendants en-
titled, are specified as the great-great-grand-children of a
common ancestor.
A remarkable passage occurs in page 28i, which, whether
it refers to estates of "fnidhi1"S," or separate property in
land generally, expresses the author's idea of hereditary
succession. "The son is enriched in the same ratio as his
father, and the father does not sell anything to the pl'eju-
dice of his SOD'>, grandsons, great-granùsons, or great-great-
grandsons." 'rhus, an owner of land was restrained from
alienation in favour of his four next generations of descen-
dants, which implies that all the members of these four
generations took an interest in the lands of their anc<,stor;
and, if these four generations had thus joint rights in the
land, as quasi-joint tenants, the death of anyone would
operate as a sllIvivorship for the benefit of all the existing
members of the class, and the shares in the land would vary,
from time to time, according as new members were intro-
duced upon their birth; and if this heredita.ry right was
· Pages 283-281.
t Page 33.
INTRODUCTlOY.
CXlll
not transmissible beyond the fourth generation, all the
existing members of the class at the date of the last division
(the date of the introduction of the last member into the
class) would hold in severalty, and form respectively new
hereditary stocks. It may be suggested that the reason for
the assumption of four generations as the basis of this
system of descent, was as follows :-the land vested in the
original acquirer, as head of his household, and as a portion
of the joint property, which he could not alien during his
life, and the rights of those who succeeded to the land were
based upon the theory of their being the surviving members
of his húusehold. When the fact of succession passed into
a theory for succession, the right of succession would be
given to all those who could possibly have been existing
members of the household at date of the death of the head,
and descendants of the fourth degree were com,idcred as
the most remote who could stand in that position. A law
of heirship founded upon such a basis would draw the limit
of coHectoral heirship at third cousins; this may seem to
some a velT narrow and imperfect scheme of title by des-
cent, but the difficulty seems to us not to reduce it to this limit,
but to extend it so far. The succession, in default of sons,
passed first to the f.'lther, and then to the uncles of deceased,
but manifestly all more remote collateral relations were ex-
cluded, and the succession of the geilfine class was equiva-
lent to a succession to the family to which the deceased
belonged. The rights of the heir-at-Iaw, however remote
his relationship to the deceased, is a purely English and
modern idea, imported into the feudal law by a very trans-
parent fiction, and almost within the present generation,
systematized by recent statutes. Àq against the father or
the brothers, there does not seem to have been any restraint
upon alienation, and naturaUy because they could not have
been members of the household of the deceased, and they
could not be considered, except by a fiction, as having any
joint ownership with the deceased in the subject matter of
the succession. The" alienation" applied to the ownership
of land, such as we are dealing with, must be understood as
h
CXIV
IN'fRODUCTION.
alienation in accordance with the local custom, and so far
as it was thereby permitted, and is not to be confounded
with the unrestricted rights of disposal, which we now asso-
ciate with absolute ownership.
In considering any rules of dc.<;cent, it must be remem-
bered that the terms son, brother, &c., are correlatives, and
possess no meaning until we have ascertained who is the
father, brother, &c., to whom they refer-until we have fixed
the stirps, the relationship to which determines the succes-
sion. The original stirps must manifestly be the head of
the household, when the land in question was granted in
several ownership out of the common tribe land; but if the
right by descent were always traced back to the first
acquiter, the extent to which coUateral successions would
exist must have been far wider than the text authorizes us
in concluding it to have been. If we are right in our
opinion that the general rule of all male descendants to a share
in the inheritance ceased with the fourth generation, it
follows that the members of the family who then acquired
separate, not undivided shares, each became a new stirps
for a fresh line of descendants.
"\\"'hen land has been granted out of the common tribe
land in severalty, and as the property of an individual, if
the inheritance become vacant by the failure of heirs to the
grantee, the land thus left without an owner fa1l5 back into
the general trib
land out of which it was taken. Whether
in such a case it becomes the property of the chief, or of the
members of the tribe, depends upon the question whether
the chief has, as was ultimately in most European countries
the case, succeeded in substituting himself for the general
body of the members of the tribe as the representative of
the State. That lands of inheritance, upon which no geil-
fine system had been established, did so revert, is proved by
the special rule relative to extern inheritance in the case of
a fully organized "fine," in which latter case the geilfine
division were entitled to a succession, in the nature of an
escheat, in vacant inheritances. This we take to be the
meaning of the passage in page 285 :-" The geil1ìne extends
INTRODUCTIOY.
cxv
to five persons, and it is they that get the dibadh of every
kindred chief who leaves' dibadh 'property." The phrase
"who leaves" is glossed "who becomes extinct of." The
geilfine division are here described as five co-existing
persons, who take jointly an inheritance under certain
circumstances. There would be no necessity for the obser-
vation, if the" dibadh" property in question passed to them
as those primarily entitled to the succession; their right to
succeed is a privilege connected with their official or local
position as the five men of the geilfine division. The pro-
perty in question cannot have been the" dibadh " property
of any of the seventeen men, for it would then have survived
to the men of the division of the deceased. This implies
that the five men of the "geilfine" division }'epresent the
entire" fine "for the purpose of receiving successions, as
they represent the community in being ultimately liable in
certain ca.qes for the wrong committed by the members of
the "fine." If an allotment made to a member of the
"fine," other than the seventeen men, became vacant by
failure of heirs, the land fell not into the commOn property
of the" fine," but became the exclusive property of the five
men. If brothers, however, take a succession next to the
BOns of a deceased, this rule cOlùd not (subject to the excep-
tion subsequently noticed) apply until the" geilfine" I>ystem
had been completed, and the land divided among the
members, because every member of the "fine" must in that
case have left a brother or nephews surviving him, except a
sixth or younger son of the first geilfine chief,and a son of such
son, or a sixth or younger son of the second "geilfine " chief,
&c. Successions so very rare as these could not be considered
as in the nature of a privilege or the subject ofa special rule,
and, 8.8 up to the date of the final partition the " geilfine "
chief is assumed to be the owner of the waste, there would
be little object in such a regulation j but its meaning is
evident if it implies that the fifth "geilfine" chief,
and his four brothers, who jointly form the last and
permanent" geilfine " division, continuing to represent the
" fine " for the purpose of liability, continue also to repre-
h2
CXVI
INTRODUCTIO
.
sent it beneficially as entitled to the succession to vacant
inheritances. Their position would in this ease be very
similar to that of the lord of a manor in the English law.
It is stated in the introduction to Mr. Curry's Lecturcs
that the succession was at first to the sons or remoter
male issue exclusively, but that ultimately the daughters
became entitled if there were no sons.- Although the
authorities cited to support this seem to the cases and rules
dealing with anib and sliasta land, there is no reason to
doubt the general accuracy of the statemcnt.
There are, undoubtedly, in the glosses to the first tract in
this volume, indications that at the date of the glosses,
daughters had succeeded in acquiring a right to succession
upon the death of their brothers, and that the later law,yers
altered the original text, by the introduction of words sup-
posed to have been omitted, and thus corrected the law to
make it accord with the later usage; thus, in the original text
at page 39, line 23, there is the passage, " an extern branch
stops it (i.e., the property) if the five persons of the gcilfine-
division perish." This is glossed as follows-" and in this
case there is no female heir." This gloss manifestly follows
up that in page 41, line
4, referring to page 3D, line 16, " all
the geilfinc-division have become extinct, and aU the land is
obtained by the daughter in right of her female' coarb '-
ship, or as I have to tell concerning the dibadh-Iand of the
head (cm-o) to whom the land belonged, i.e., the daughter;
it is then the land is divided among the three tribes." The
right of females to a succession would be manifestly sug-
gested by the feudal law ; tlle first English settlement was
founded upon the assertion of this principle; and such a
doctrine would be popular among the owners of land, natur-
ally desirous to transmit their property to their female
issue. The principle of female succession to lands other
than crnibh and sliasta, docs not exist in the original
text, and appears as struggling into existence at the date of
the latest commentators; such a theory of succession is in
contradiction to the old conception of the household, and
. Mannel1l and Customs, YO!. 1., p. clxx.
ISTRODUCTIO
.
('xvii
that it wa.'3 repugnant to the opinions of the older school of
lawyers is shown by the restrictions by which it was limited
even in the case of cl'Uibh and sliasta land.
The obvious objection in a system of tribe law to female
succession is that it naturally leads to alienate the lands of
the family, and by intermarriages with externs to transfer
them to members of a foreign tribe. This difficulty arose in
the days of Moses. Thus, on the petition of the daughters
of Zelophedad, of the tribe of Manasseh, who had died in
the wilderness, :Moses laid down the rule that the daughters
should succeed to their father's inheritance if there was no
son;* but the objection to this rule was soon perceived and
stated by the fathers ofthe family of Gilead, viz., " ifthey be
married to any of the sons of the other tribes of the children
of Israel, then shall their inheritance be taken awa.y from
tIle inheritance of our fathers, and b
put to the inheritance
of the tribe whereunto they are received; so shall it be
bken from the lot of our inheritance."t The rule, as origin-
ally laid down, had to be modified by the annexed proviso,
" every daughter that possesseth an inheritance in any tribe
of the children of J srael, shan be wife unto one of the family
of the tribe of her father, that the children of Israel may
enjoy every man the inheritance of his father. Neither
shall the inheritance remove from one tribe to another tribe,
but everyone of the tribes of the children of Israel shall
keep himself to his own inheritance."t
At whatever date female succession W:).'3 established, it
appears to have been subject to a restriction similar in
effect to the later Mosaic rule. "A female heir is here reJC'lTed
to who has had the father's and the grandfather's land for a
time, and though she should desire to give it to her sons, she
shall not give it."
The introduction of female successioll to
land is contemporary with the birth of the idea of absolute
ownership, and fixes the date at which the idea of the family
and tribe is finally broken up. Although the rule of
female succession existed under the Brehon Law it may
·
um. 2i, I. t 1<1., ch. 3/ì, 1. : 1<1., "f". 8.
S Page 3!), see gloss, p. 41, line 4.
...
CXVlll
INTRODUCTION.
..
be regarded a.9 a proof of the late date of the author who
asserts it as a rule, and must be rejected from any state-
ment of the ancient law of succession.
The succession to the cruibh and sHasta land rested upon
express contract, and this class of lands consisted of those
which, to use a modern term, were settled upon the mar-
riage of a daughter of the house; that this form of succee-
sion was considered as an infringement of the common
right of the family is proved by the necessity of obtaining
the consent of the geilfine-chief to the contract. The effect
of this contract, it would appear, was to introduce the
daughter into the class entitled to the succession upon the
death of the father. It must be presumed that the daughter
during her life was entitled to the possession, as in the
Welsh law in analogous case it is stated, "her gwaddol
constitutes her proprietorship if she abide by her kindred.".
The succession of her children was, however, much restricted;
if she were married to a native freeman, her sons would be
themselves entitled to the rights of fun members of the tribe
and upon the obvious principle that they could not claim
at once under and against the custom, they lost, for the
general benefit of the family, two-thirds of the lands; if her
sons were, through their father, " exiles and foreigners," i.e.,
if they had no claim to any portion of the family land under
the customary law, they were left in possession of the
entire at the will of the family, "while they are doing good
with it." If the only is:me of the marriage were daughters,
there appears to have been a question whether they were
entitled to a succession. Their right to the land was estab-
lished by a leading case decided by Brigh, probably the
wife of the Brehon Sencha previously referred to,t :Illd it
would seem that the passage introduced in page 41, line 16,
is intended to be a report of the judgment. The case is
thus stated-" The mother had died, and left no sou, and
there are no sons, but daughters only And the daughters
shall obtain an the land \\ith obligation to perform service
of attack and defence, or the half of it, without oLligation to
· Ancient Laws,.&c., of Walcs, "01.2, p. 60i. f Page 17.
IXTRODUCTION.
ex IX
perform service of attack and defence ; and there is power over
them to compel them to restore the land after their time."
Hence it would appear that they were bound to indemnify
the tribe against loss by reason of their incapacity to
serve, or to compound for this liability by surrender of half
the land, as a. tenant of a lease, perpetually renewable,
may, upon obtaining a fee-farm grant, free his holding from
future liability to rent by releasing to the landlord a pro-
portionate part of the lands; and that the interest taken
by the daughters was for their own lives, and upon their
death the lands fell back into the common fund of land out
of which it had been taken.
VI.
JUDGMENTS OF CO-TENANCY.-
The subject of this tract may be more correctly described
as the rules regulating the mode of the partition of lands
held by joint tenants, and the rights which, upon the parti-
tion, arise between the owners of the several portions.
The composition of the tract is remarkably consecutive,
and, from the author's point of view, logically developed.
The commentary is unusually clear and intelligible, although
in some instances explanations are introduced which antici-
pate. or are merely copied from, subsequent passages of the
original text; thus the comment:lry in page 77 is identical
with the text at page 113; and towards the end of the
tract passages evidently taken from other writings are intro-
· The word translated in the text" co-tenancy" is translated by Dr. O'Donovan
as .. joint-tenancy." This is a Tery remarkable error not as to the meaning of
the Irish word, but of its presumed En{;lish cquivalent. The subject discussed
in the tract is the rights arising between persons, who have ceased to be joint-
tenants bJ' a severance of their joint-tenancy, and become owners in severalty of
their separate holdings. We have no English term expressing snch a legal
relation, and the words .. co-tenancy" and "co-tenants" have been used as
the nearest equivalent expression. The lcarned translators did not profess to
be skilled in the terms of English law, but they grievously embarrassed their
translations by the use of technical words which they could not be expected to
understand. The present editors have carefully removed from the translation
every English term, the uqe of which could lead only to a misconception of the
original text.
CXx.
I:-ITRODUCTION.
duced, some of which are difficult to understand, and others
directly contradict the leading principles laid down in the
body of the work. A remarkable instance of the latter case
occur'3 in page 147, from line 6 to line 19.
This tract does not apply to any process similar to the
modern enclosure of a common. That the general tribeland
or public pasture should be cut up into separate lots, and
di vided among the members of the tribe in absolute owner-
ship, was foreign to the ideas of any early community, and the
author, at the commencement of the tract, carefuUy points
to the circumstances under which the relationship described
by 11Ím as "co-tenancy" arose. ""\Vhence does co-tenancy
arise!" he asks; and to this question himselfreplies-" From
several heirs." 'Ye "are here reminded of the important
statements rcferable to the land of the "fine" in pages 2
7
and 285, the former of which states that the lanù of a family
was not at aU ùivided, and the latter states that in certain
circumstances the members of the geilfine organization
divided among themselves the residue of the t.ribe land as
dibadh land, and that thereupon the family relations ceased,
and there was henceforth what was called a community
of people. The partition of the lands need not be confined
to the case of a "fi1le," but must be extended to the breaking
up of any inheritance among several heirs, which, if the
theory of the rules regulating the succession to land herein-
before proposed be correct, necessarily took place on the
completion of the fourth generation of the descendants of
the founder of the household or first acquireI'.
The author understands that the pre-existing rights, which
depended upon joint ownership, are determined by the fact
of the partition, and that the owners of the several lots
must henceforth deal with each other individual1y, and
that their mutuall'ights depend upon an agreement contem-
porary with the division of the lands. "The heirs, in the
first place, partition their shares and their possessions, and
each of them guards against the other of them, and each of
them gives << lJleclge of indemnity to the Gtller."* The re-
· Pnge 69
IXTIlODeCTION.
ex Xl
ciprocal rights between the adjoining and now independent
owners, which are to be thus secured by mutual pledges,
would in the civil or English law be inferred in the case of
any adjoining owners, and the transaction takes the form of
the mutual covenants, which are sometimes necessary, to
meet reculiar circumstances, in our deeds of partition. It is,
however, to be observed that the giving of the indemnity
was not accompanied with any detail of the extent anù
nature of the indemnity itself, which was defined and ex-
plained by reference to the custom, and that the material
pledge given and preserved was not the C01'[>US out of which
the compensation or damages was to be paid, but rather the
evidence of the existence of a contract the nature of which
was assumed. " Each cotenant shall place a pledge of the
vcdue of two · screpulls' on one of the raek pins of each
other's at the foot of the bed as secw'ity for the fulfilment of
the dzdies of co-tenancy; and though he should not fulfil
them, this is not the pledge that shall be forfeited for it, but
the · smacht '-fine which we have mentioned before, or sacks,
or fines for man trespass according to the nature of the tres-
pass, if trðspass has taken place therefrom.". The subse-
quent relation of the parties is clearly expressed in the phrase
-" the new custom avoids the security,"t meaning that the
relations which had previously existed between the parties,
arising by implication from their position as joint owners,
had come to an end, and that their subsequent mutual rights
rested upon the le 6 al consequences of the interchange of
pledges.
The several lots in the hmd to be divided having been
ascertained, the duty of sufficiently fencing their respective
shares fell upon the several parties. There are no rules given
for the extent of fencing, w
lÌch each se,-eral owner was to
execute, and as each fence was common to two properties, it
must in every case have been a matter of arrangement be-
tween the parties; but.very specific directions are given as to
to the size and materials of the fences to be erected. There are
four kinds of fence specified; (1) a trench, corresponding with
· Page 7';. t Page 74.
CXXll
INTRODUCTION.
what is now usually called in Ireland a" ditch j" a trench with
the earth dug out of it, piled on one side of it in the fashion
of a wall or mount j the trench was to be three feet deep,
three feet wide at the top, one at the bottom, and two at the
middle. The mound corresponded with the form of the
trench out of which it was excavated, being three feet in
height, three feet wide at the base, and one foot at the top.
(2) A stone wall of six feet in height, three feet wide at the base,
and one at the summit: this was evidently a dry stone wall
like those now common in the 'Nest of Ireland, because the
only instrument specified as necessary for their erection is
an iron bar, and there is no allusion to the use of mortar.
(3 & 4) The other two kinds of fences, described as a <<strong"
or << close" fence, or a <<felmadh" (otherwise a naked) fence,
were of wood or timbers set together j the details of these
are elaborately given, but must appear to the modern reader
rather obscure. The former is thus described: <<the top of
the one tree shall be on the trunk of the other tree, and so
as that the smallest sucking pig could not pass through it
for its closeness, nor the ox pass over it for its height." The
latter class (If fence was not of so substantial a nature.
<<The naked fence should be thus rnade j the length of a
foot to the articulation (or sepamtion) of the big toe is to
be between every two stakes, and six feet in its height, or
twelve hands, if it be measured by hands j and three bands
of interwoven twigs upon it, a band on it at the bottom,
another ill the middle, and another at the top, and a certain
space between every two bands; and a hand is the length
of the pole (the inte1'weavilJg) from that out, and a black-
thorn crest upon it at the top; and every stake shoulJ be
flattened at top by three blows struck on its head, after
being first thrust by the hand in the g1'ound as well as you
can.". The nature of the fence depended l!pon the nature
of the place in which it Wag to be erected, which is thus
explained-<< a trench or a stone wall in the plain; and the
naked fence in the half plain, and the close fence in the
· Page 71.
INTRODUCTION.
...
CXXlll
wood."" It appears from this that the right of separate
ownership was not confined to arable or eyen grazing lands,
but in Borne cases included what would have been expected
to have formed portion of the waste of the tribe; this separate
ownership of forest accounts for wbat would be otherwise
difficult to understand, the liability of owners of lands for
trespasses committed by wild animal
.t The constant and
regular attendance of all the parties engaged in the fenc-
ing was attempted to be secured by the very naif rule;
"each of them shall give his victuals illto the hand of the
other at night, that he may remember to come in the
morning to his share of the cotenancy w01'k j and the
victuals of the person that will not come may be safely
used, and if the victuals of any ofthem be used, he shall pay
fine for overuse."t
The whole theory of the damages paid in respect of the
most usual form of trespass, the trespass of a neighbour's
cattle, was calculated after the usual Brehon fashion, every
possible form and incident of the trespass being intro-
duced, as an arithmetical quantity, influencing the ultimate
result. In a passage in a later portion of the tract
the
actual amount of damage done is suggested as the basis
to calculate the sum of the compensation to be paid.
" A worthy neighbour is brought to appraise the tre
pass,
and grass of equal value is given at the decision of
the neighbours j" this matter-of-fact mode of estimating
the damage was probably considered unscientific by our
author who proceeds to lay down every possible element in
estimating compensation, and to annex to each a fixed value.
These distinctions, if stated at length, would occupy much
space j and the actual amount payable in respect of any
supposed trespass, or the possible number of results which
might be produced by varying the elements of the calcu-
lation, is of little practical importance. This desire to
reduce matters necessarily fluctuating to certain results,
this wholly misapplied pretension to arithmetical accuracy,
was the essential vice of the Brehon law, and the glory of
. Page j7. t Page 121. t Page n.
Page IH.
CX"{IV
INTRODUCTION.
its professors; the working of this system was so fully
explained in the introduction to the last volume, that it is
unnecessary here to recapitulate it, and it is not needful on
the present occasion to do more than to summarize what were
the chief elements in their calculations upon this subject. The
personal responsibility of the defendant, either by wilful acts
or culpable negligence, divided all trespasses into "man" tres-
pass, and ordinary or "cattle" trespass. The extent of the
trespass, whether t11e cattle had merely run in and upon the
lands, or walked about thereon and eaten the verdure and
crop; or had spent some time there not only eating but
lying down, was also defined; and technical names were
given to the,;e species of trespass, viz., "tairsce," "airlim,"
and "feis;" and the proportion of damages payable in
respect of each fixed, as so constantly occurs in these calcu-
lations, in the geometrical ratio of two.- The time at which
the trlJspass took place, whether by day or night, had to be
taken into account; the former involving twice the compen-
sation of the latter. The season of the :year could not be
overlooked; we are told, "that the year is divided into two
parts for regulating 'smacht '-fines, for the 'smacht '-fines
of each quarter are not alike, veea'use it is difficult to 7'eguZate
the' smaeht '-fines of the winter season, and of the spring
cold, for saved provisions are more precious than growing
grass."t The nature of the crop upon the land was obviously
the principal element in the damage; the questions of the
existence or sufficiency of the fence, the period of the
duration of the trespass, the number of cattle which tres-
passed, the number of gaps they cro::;sed the fence, all
affected the result in fixed ratios. As a specimen the
· See the ca1culation as to the extent of the precinct, PO!t, page 227.
t rage 79. The di\ision of the year, stated in the text, into two unequal parts,
viz., the summer period comprising fin months, being the last month of spring,
the three months of summer, and the first month of autumn, and the wiuter period
comprising the last two mOl"1ths of autumn, the three months of winter, and the fir<t
two months of spring, was made, in the opinion of Dr. O'Donovan, with the object
solely of regulating the price of grazing lands.
&< That the Pagan Irish divided the )'ear into four quarters is quite evident from
the terms EaI'rach, 8amhradh, FfJuhmhal', and Gri,"hridh, which are undoubtedly
ancient Irish words, not derived from the Latin through Christianity; and that
IXTROD{;,CTIO
.
cxxv
following rules may be taken, as to cases really simple, and
involving only four of the above elements. "Four sacks
a1'e due for jeis trespass in a winter grass field oyer a full
fence, two sacks for 'aÜ'lim' -trespass, and a sack for
, taÏl'sce '-trespass. If it be trespass upon a pastured field of
winter grass land, or upon an inclosed field of winter moun-
tain lanù, or winter wooù, or an old winter milking place, or
into an inclosed field of summer grass land, two sacks are
due for' feis '-trespass, and a sack for' airlim '-trespass, and
half a sack for' tairsce '-trespass. If it be trespass upon a
pastured field of winter mountain, or winter wood, or an
old winter milking place, or a pastured field of summer
grass land, or into an inclosed field of summer mountain or
summer wood, a sack is due for 'leis '-trespass, half a sack
for airlirn trespass, and a quarter of a sack for' tai/'see '-
trespass. If it be trespass upon a pastured field of summer
mountain, or summer wood, or summer old milking place,
half a sack is due for' feis '-trespass, and a quarter of a sack
for' airlim ' trespass, and the eighth of a sack for' tairsce '-
trespass. The eighth of the eigllth is tlte fine upon eyery
trespassing animal, for every beast is a trespasser in a co-
tenancy. For the' tairsce' -trespass of one animal upon a
pastured field of summer mountain pasture, whatever an imal
commits it, the sixth part of the half of one sack is due,".
&c. The liability for the trespass is very clearly based upon
the neglect of the owner, as appears from the exceptions,
viz., the cattle being driven over hy a man or dog; or
straying in consequence of heat or fear, or owing to any kind
of violence; but these exceptions yery properly extend only
to "airlim" trespass, for if the cattle be left on the land to
.
each of these begnn "ith a stated day, three of which dnys are still known, namely,
BraUMine,otherv.ise calle<l Ceideamhaill, or beginning of summer, when they
lighted the fires at UiJnach at the beginning of Samhradh; LughnasaJh, the
games of Lughaidh Lamh-fhada, "hich commenced at TaiIlte on the first <lay of
lòghmhm', the hanest; aml Samhain, i.e., Samh-/l.uin, or summer end, when
they lighted the fires at Tlachtgha.
Introduction to the "Book of Rightp," p. \iiL, but see the gloss which Dr.
O'Dono,'an himself cites in the subsequent page.
· Page 81.
CXXVI
INTROD UCTION.
eat and lie down, there is neglect on the part of the owner,
and the trespass becomes" feis "-trespass.
In the case of lands not in cultivation or grass the fine
for trespass takes a pecuniary form; thus in the case of the
church of a "nemadh" person it is stated to be an ounce of
silver, and the estimation of the amount is combined with
the number of eigh ty-four cattle, in a manner which i" far from
clear; in the case of a king's dun fort, or a churchyard there
is no money fine fixed but" every hole made in the place is
to be filled up with eric-sod and the place pressed, stamped
and levelled..
The trespass of' horses involved a different question from
that of cattle; the mere halting of travellers on their road
could scarcely be considered in the light of a wrong, and at the
same time an entry with horse3 upon land might result in
an action for the recovery of the premises, and it was the
duty of all the members of the tribe or family to prevent
thus, inan indirect manner, theinstitutionoflegal proceedings.
Hence arose the two forms of horse-trespass, technically
known as " fothla " and" tothla " trespass. The former arose
when travellers unharnessed their horses upon the land of
an absent man, and asked a neighbour accidentally present
where they had unharnessed their horses; it was the
neighbour's duty to tell them that the land wa." the private
property of the absent owner, and to warn them off, where-
upon if they did not leave the place they were liable for
the trespasses of their horses; on the other hand if the
neighbour saw them with the bridles in their hands, as if
in the act of making a legal entry in assertion of a right of
ownership, he was bound to question them as to their object,
and in default of so doing, became himself liable for the
trespass, if the strangers were ignorant that they were in-
truding upon a separate property. The second case arose
if unknown strangers unyoked their horses in the land of
a separate owner, and the neighbour, accidentally present,
either expressly informed them, or by his silence permitted
them to believe, that they were not committing a trespass,
· Page 87.
INTRODUCTIOX.
CXXVll
in which case he was himself personally liable forthedamages.
This passage would lead to the conclusion that the elaborate
fences, directed in this tract to be erected about the lands
allotted in severalty, very frequently, if not ordinarily, had
no existence.
The trespasses of swine naturally were the subject of
cm;tomary rules j "if they eat the grass they are trespassers
like other grazing cattle. If they root up the land, other
land shall be given until proof of the restoration of the land
is completed; that is until two horses in yoke are brought
and left there, and it is seen that no part of the earth stick
to their teeth while grazing it.". The damages for the
trespass of swine were of course fixed with reference to the
supposed size and age of the pigs, but in a preceding
passage reference is made to an old and purely fanciful rule
that the hole made by the pigs should be filled up with
com and butter j if such a rule existed it must be refen-ed
to some religious origin.t
The young and troublí'some pet pig, a constant source of
mischief, wa3 a subject of special rules; it was evidently
regarded as the prime cause of breaches in the fence and the
ringleader of the cattle in the homestead j "the young pig
which first breaks through the feme, and shows the way
to the herd, there is a' srnacht' fine upon him equal to that
of one animal. The second time that he goes, there is a.
, smacltt' fine upon him equal to that of four animals, and
compensation equal to that of two animals. The third
time that he goes, there is compensation upon him equal
to that of three animals, and a 'smacht' fine equal to that
of seven animals. The fourth time that he goes, there is a.
, smacht ' fine upon him equal to that upon the whole Hock,
and compensation equal to that upon four animals.":!:
The rules having bcen fixed as to ordinary trespasses, our
author proceeds to discuss what must be considered as
purely imaginary cases j it is difficult to see where the rules
of practical importance end, and where merely legal specu-
lations, and vain distinctions and discussions commence;
· Page 97.
t Page 9:1.
* Page 109.
cxxviii
INTRODUCTIO
.
but when the amount of" smacht" fine and compensation for
the trespasses of pet herons, hens, pet deer, pet wolves,
pet old birds (hawks), pet foxes, and bees becomes the
subject of quasi-serious discussion we surely have left the
regions of practicality behind, and are witnesses of useless
displays of pure dialectic subtility.
As to bees it is very naturally remarked that their owner
cannot prevent their leaving his premises and flying i11t-o
those of his neighbour," for they are swift, and there is no
restraint upon them, and because they do not fly all to-
gether ;". in this case the owner was not guilty of a
wrong as incilient to their trespasses, and therefore there was
no' smacht '-fine payable in respect of it, but merely compen-
sation. The only occasion upon which the bees of a neighbour
can be undeIstood to commit trespass is when they swarm
into the adjoining land; the sole injury incident to this
trespass is occupation by the swarm of some infinitesimal
portion of the neighbour's land, and the trespass involves
its own compensation, for the swarm fix their nest and makQ
their honey on the spot they thus wrongfully occupy. Thus
the compensation for this trespass resolves itself into a
joint ownership of the honey produced by the swarm:-
"How is the fine of their produce paid? At the time of
smothering the bees, the man who sues makes a seizure of
that honey, and it goes into the keeping of safe hands,
and it is afterwards submitted to award. The decision
which is right to make afterwards concerning it i'i to
divide the honey between them into three parts, i.e., a
third for attendance, and a tlJird for the bees, and a third
for the owner of the land. And the third allottcd for the
land is itself divided into three parts, i.e. a third is given
to the man who owns the bees on account of the land from
which they come, the other two thirds are divitled between
the four nearest farms, i.e. where the food is. If this dis-
tribution of it every year shaH be deemed tiresome, each
nearest farm takes a swarm."
This passage affords us a means of understanding the
.. Page 105.
IXTRODUCTIOX.
CXXIX
manner in which these Brehon tracts are composed. The
whole question of bees is discussed in a subsequent tract in
this volume, and, upon a comparison of these rules with the
httter tract, it is evident that there were subsisting certain
simple well-known customs as to swarms of bees, anti that
each aut.hor simply uses the sul
ect-matter a<> a means of
di:-;playing his tlialectic powers in the elaboration of rights
and rules wlJÌch never were attended to or expected to be
observed.
The question of the bees having been dismissed, the next
which is discussetl at great length is that of hens. The
trespasses of hens may involve negligence on the part of the
owner, for hy proper rag-boots fowl may be restrained from
wanùering; the absence therefore of rag-boots bring hen
trespasses within the class of man-trespassés, as resulting
directly from the negligence of their owner, and Con-
Setluenlly within a higher scale of damages. Great ingenuity
was displayed ill cla'>Sifying the nature of hen trespasses;
first, the trespasses of a hen within a house, which art) sUù-
divided into three classes, viz., snatching away, spilling, anù
wasting, fùr which respectively different compensations were
fix:cd; seeondly, trespasses outside of the house in the garùen,
su hdivided again into soft swallowing of bees, injuring
roidh-plants, amI injuring garlic; and further in such case
arose the further questions whether thc bird were a cock or
a hen, and if the latter whether it were or were not h:trren.
The inconsistent repetitions in the commentary relative to
this case prove that it wa.s a favourite subject of discu'Ssiun
in the schools.
The most extraordinary discussion is resenTed for the
case of dugs, the authors of which were certainly devoid
of any Rense of the ridiculous. The feeding of a dog
naturally involves responsibility for its acts, but the dog
trespass, which particularly attracts the notice of the author
of the original tract is that involved in his depositing his
orùure on the land of an adjoining owner. The commentator
remarks that there are four trespa
ses of hounds, viz. man-
tre
pa,ss (i.e. trc."pa.%t::s against mcn), mangling of cattle,
'l-
cxxx
I
TRODUCTIO
.
breaking of dwellings, and committing nuisance on land.
The threc formcr he passes over without notice, and proceeds
to cnnsider thc intf'resting questions which arise under the
last head; "what is required by law is to remove the dog's
ordure out of the ground as far as its juice is found, and it
(the gronncl) is to be pressed and stamped upon with the
heel, :1nll fine clay of the same nature is to be put thm'e as
eomp811sation. This is the test of reparation; that two
hor::;es of a chariot in yoke come there and graze there, and
if no part of the sod of grass stick to their teeth in grazing
on it the 1'epa}'(ttion is complete. And three times the size of
the ordure is clue for compensation, and its size of butter
and its size of dough and its size of curds; and the part of
them that is not obtained in the one is to be claimed in the
other afterwanls. And if it be in the presence of the owner
that the hound has committed nuisancc on the grass, a
fine for man trespass shan bc paid by him for it.".
"Man-trcspas
es, properly 80 called, wrongful acts committed
hy the defendant himself in respect of the land of an all-
joining owner, are divided into various classes, and describcd
by specific technical names; but as no explanation is given
of these terms, with the exception of" fothla "and" tothla "
trespasses, it is impossible to explain the distinctions to
which they refer.t
Thc subjcct of" man-trespass" is resumed at a subsequent
page,t and treated of at considerable length and in the
usual manner. The first wrongful act discusseJ is that of
cutting down trees or underwood upon the land of another.
Thc various species of trees and shrubs are divided by the
original writer, ancl more in detail by his commentator,
into various cla<;ses, founded upon some nobleness inherent
in the trees themselves, and the extent to which the tree
is injured forms of course an clement in the calculation.
The following extract is sufficient to illustrate thesc rules :-
"For the cutting of trees or stripping them, full' di1'e' fine
is paid for each, i.e., a pcrfcct compensation for the portion
of thcm which is damagc,I, and five 'Bcds' as 'cli1'e' -fine.
.. rage 123. t rage !)!). :I: rage Hi,
IXTRODUCTION.
CXXXI
But an trees are not equally noble, for there are seven
chieftain trees and seven common trees, and seven shruh
trees, and seven bramble trees, and the 'dii'e'-fine for each is
different. The chieftain trees are oak, hazel, holJy, ash,
yew, pine, apple. The' cli/':3 '-fine of the oak; a cow-hide
is clue for st/'Ípping off it the barking for a pair of woman's
shoes; and an ox-hide for the barking of a pair of man's
shoes; and also to cover it until the test of its recovery is
had, i.e., smooth clay and cow-dung and new milk are to be
put upon it until thcy extend two fingers beyond the wound
on both sides, and half fine shall be for it uutil it is whole.
For cutting the trunk a cow is pa it!, and five seds are its
'dii'e' -fine. A colpaeh-heifer is the fine for their great armc;,
or for their small oaklings; a 'daÏ7't' heifer for their branches.
The' cZil'e ' fine of every chieftain tree of them i:-; such."-
The only cla,>s of man-trespass (lcalt with is the breaking
down and pa;,sing through a fencet (the English tre:-;pass
quâ/,c claUSlon fregit). As to this, distinctiuns are drawn
ha,-ing reference to the extent of the breach and the status
of the wrongdoer, and in the latter case the compensation
to be paid by the native freeman in every case is double of that
payable by a stranger, probably because the payment of
compensation arises from an implied contract, and is not
founded in theory upon the tort.
There are four exceptional cases in whieh it was justifi-
able to make gaps or breaches in private fences :-(1) a
breach before the hosts, which is glossed to mean "in
flying before an host," but which reference seems rather
to mean" to permit the advance of the hust"; (2) before
provisions, glossed "of the host," which would mean,
for the purpose of bringing up supplies to the host; in both
these cases the host must mean the armed array of the
inhabitants of the district in which the fence is situated;
(3) for the passage of chieftains" if they had found no other
passage," and (4) for the conVf'yance of materials for the
* Page 149. See the notes appendç,! to the text as to the meaning of this
difficult and obscure passage.
t rage 1.33
i 2
CXX.Xll
I
TRODl;CTIO
.
erertion of any of the following buildings, (a) a mill, (b) an
oratory, (c) a shrine, and (d) a king's dun fort.
The principle of a right of way of necessity is clearly
stated; such rights must have immediately come into
existence upon the division of joint tenancies into separate
lots; this right is however fenced in with peculiar restrictions
which prove the exclusive possession by its owner of the
servient tenement, and the anxiety of proprietors to prevent
the acquisition by their neighbours of easements by continued
user; " There is one stay (q1wre, restriction on full enjoyment,
or easemcnt) which every co-tcnant is entitled to from the
other, i.c. in It land without an opening, without a road,
witl10ut n way; he is entitled to full passage over every
co-tenant's land that is next to him, but the manner in which
he is bound to P(/.
.'I is with six persons about him, three
persons from the owner of the land, and three persons from
the man who seeks the passage shall attend to keep them
(the cetitlc) close to the fence in order that they may not
pread over the land. If he hns a way, this may be omitted;
if there be two mounds to it, or two stone walls, he is
restrained by them, for they are witnesses. "*
The liabilities or duties annexed to lands held in several
ownership are expressly laid down in this tract; this
subject has been already noticed with reference to the rights
of women to land, but the enumeration in the following
passage is worthy of a reference :-
"The liabilities of land now, i.e., service of attack and
defence against wolves and pirates, nml attcndancc to the
law of the territory, both as to the hosting and feeding and
service of defcnce."
"The liabilities as regards roads, i.e., a fence is 'i'equi-J'cel
for it alone, and it is 'iWCCSSW'y to cut them and cleanse them,
and remove their weeds and mire in time of war and of a
fair; and because it is expected that each should assist the
other. t
Very interesting information is given incidentaJly in
the commentary on this tract, which proves the exi
tence
.. rage 157.
t Page U5.
INl'ROD(JCTIO
.
-CXXXUl
at the date of its composition of tenants in the modern sense
of the term, holding land for periods either fixed or uncertain,
and paying rent in kind. The details as to this mode of
land arise incidentally from the discussion of the liabilities
and rights of the owner of a several lot, who is absent at the
date of the partition anrl as a necessary consequence does not
erect the fences between his portion and those of the adjoining
owners, or who leaves the district to escape the fulfilment of
his duties in this respect. In such a case the two adjoining
owners wouIJ have no complete fence to their portions, as
far as they meared the lot of the absent man, and his
abandoned lot would lie between them, enabling their cattle
to trespa.,>s across upon their respective holdings. In such
case the adjoining owners can distrain upon his property,
if he has any, until he makes the fence; if he has no property
they can distrain the" next of kin to him of his family,"
until they fulfil his duties on his behalf. This is explained
in the commentary as fullows :-" Let them distrain his family
until they fence their brother's land,". showing that the lia-
bilitywould fall on the members ofthe household to which the
absent man had previously belonged. If his fitmily were
unwilling to fulfil this obligation, they could escape it by
conceding the right of grazing the land to the two adjoining
proprietors, who in consideration of the year's grass them-
seJ..'es complete the fencing of the land, and occupy the
derelict lot with their cattle in equal proportions. If thc
absent man return in the course of the year, and find that,
his family having refused to fulfil his duties on his behalf:
his lands are in the possessiun of his neighbours, he was held
to have a claim upon his family, who by their failure to
perform their duties to him had cau,>ed him to lJe tempormny
left without home or farm. His rights under these circum-
stances against his family are explained in the following
rather obscure passage :-" If the deserter }Jas comejl"071
out-
Riùe into the tel"l'itOl'Y after this, his fitmily s]Jall give him
land duriIlg the term of the hire (lit. loan), and they shaH
obtain the hire, and the part of his farm-buildings wHeh
*P.lgc 131.
cxx:xi v
mTRODUCTIOS.
he may have found on his coming back shall be obtained
by the deserter. If his family have land, and they give not
of it to him, the hire is to be obtained by those 'who a1'C
outside, and the pOl'Eon of the erections which the law has
not declared forfeited, the family shall furchase for him. If
the family had no land at all, they equally divide the hire
between the time and the labour, and he himself purchases
the portion of the erections which the law 1ms not confiscated.
If the family have land, and he would not accept of it,
the hire shall be divided equally between time and labour,
and he shall obtain no portion of the erections."- The
explanation which we suggest for this passage (the general
meaning of which is not obscure) is that notwithstanding
the division of the land in several lots, there still survived
certain obligations among the members of the several houses,
both towards third parties, and intCl' scsc, to aid in carrying
out the works incidental to a partition, and therefore if the
family failed to fulfil their duty to an absent member, and per-
mitted the adjoining owners, in consideration of fencing the
land, to occupy it for a year, they were bound specifically to
compensate the owner on his return for the temporary loss
of his holding. If the word translate!l "hire" is taken in the
double sense as meaning both a" letting," and the" sul:jcct-
matter of the letting," the rules may be read tlms :-
A. On his return his family must provide an equivalent in
land during the residue of the year; his family shall be
entitled to receive from him the letting value of the land,
and at the eml of the year 110 shall be entitled to w1mtever
t. improvements" shall have been made by him on the
portion of land so allotted to him.
B (1). If his family have land of their own and do nut
allot to him an equivalent therein during the residue of the
year, land must be procured for him from a third party
dm-iug the period, amI his family pay the rent of it for him,
and all the "improvements" which he shall have eflèeted
on the land at the end of the year must be purchased by
the family fur him.
.. I'ase 131.
IXTRODUCTIOX.
cxx.xv
(2). If the family have no land, they must give him in
time and laòour an equivalent to the value of his land
during the residue of the year, and he must in this case
himself bUJT in what in the preceding case the family were
bound to purchase for him.
(3). If his family offer him a compensation out of their
lands, and he refuse it, they are bound to compensate him
in time and labour equimlent to the value of the land for
the resiùue of the year, and he loses all right to the im-
provements.-
The difficulty in understanding this passage arises specially
frolll the mode in which the rights of third parties are
made apparently to depend upon the dealings between the
Owner and his family and as was before &tated this explan-
ation is very uncertain and not perh'lps more than conjec-
tural in its details. t
Some commentator upon this passage, fortunately for us,
has had his attention directed to the question as to the
rights to the "erections" upon the land, anù not Vel'y
logically proceeds to explain the rules on this subject as
between landlords and tenants in the modern sense of th(:
term. From this passage we conclude that there were two
modes of letting land, viz., for an indefinite term, and for a
fixed period, but that in both cases the lessor could resume
possession, and that the fact of the period of the holding
being ascertained bound the tenant and not the landlord.
The terms "\\ith necessity" and "without necessity"
in this passage, applied to the act of either landlord or
tenant in determining the tenancy, arc the same as arc
used in reference to wrongful acts in the other portions of
these laws, and in such passages they have been translated
as "intentional" and "unintentional ;" the meaning of the
word" necessary" as qualifying an act may be taken to lJe
· See the explanation of this passage given at page 13;;.
t The subsequent commentator 5ees tbe difficulty of explaining t1,ese rules amI
suggests the following key to their meaning, viz :--" It is the lant1 of another man
that he ha5 in tbis case let out on hire" (p. 13;;); tbat is, tl.at wllcn tbe family
procure land from a thir,) puty for the uSe of a "de5ertcr n thc
' (I{'cup
' thl'
I)ouble po
ilion of tcnant anù lamUort1.
CXXXVl
n";l'RODUCTIO
.
that the act III question was the natural result of the
circumstances in which thc person who did it was then
placed; thus a "killing with necessity" would inelude
justifiaUe homicide or mansL'mghter, and a "kjJling wWwut
necessity" would be equivalent to our term munier, meaning
the slaying of another wrongfully and" with malice aÎore-
thought;" the best translation of these terms in relation
to thc determination of a tcnancy would seem to be" reason-
ably" and "unreasonably," a qualification of an act not
very logical, and probably expressing the general opinion of
the neighbourhood upon the moral aspect of the transaction.
The rulcs laid down 011 this subject are as follows :-
A. If the letting be for an uncertain period, in all case's
the tenant, if he Iletcrmine the tenancy, leaves the erections
IJchind him; but if the landlord determine the tenancy for
any rcason whatsoever, the tenant may carry away the
erections with him.
n (1). If the letting be for a term certain, on the e""l{piration
of the term, the tenant must leave the erections behind
him.
(2). If the tenant determine (surrender) the tenancy for rea-
sonablecause, the value of his erections is apportioned between
(having reference to) "time and labour;" but, if without
reasonable cause, he must leave them behind.
(3). If the lnndlord, even on the last day, unreasonably dc-
termine the tenancy, the tenant may remove 11Ïs erections;
but if reasonably, there is a division of their value having
reference to time and labour.
c. If the lands ha\"e been let for agricultural purposes, with
all agreement to manure aud dung them, and a period has been
fixed fur the determination of the tenancy, the case follows
the ordinary rule; but if no period }Jas bccn fixed, it sllalJ,
nevertheless, be considered as a tenaney for a fixed period-
such period to be ascertained by the award of " the neigh-
bours ;" the grounds upon which it would proceed may be
gathered fr0m the commentary, at page 137. "If he has
specified no particular time between them at all, the land
shall belong to the 'man without' (i,e., the tenant, as con-
IX I'RODGC'fIOè\.
CXXXYll
trasted with the owner), until the time of his manure or
dung has heen taken out of it."
D. If the letting he for grazing, anù "for forming erec-
tions" (with a covenant to erect buildings), the rent is "one-
third of every animal on which there is increase;" but if
fur grazing only, every seventh cow is left for payment of
the rent, but thc tenant is allowed for every seven cows to
pasturc without further payment, in adJition to every sevPII
cows, as many shcep as were consiJered the equivalent of a
cow.
E. If the tenant has agreed not to break up the land, and
has ploughcJ it in violation of his agreement, the" tillage
and secd" are forfeited, and he pays five" seds" as damages;
hut he can always hreak up the land if there was no agree-
ment to the contrary_
F. Farm huilJings found upon the land by the tenant,
are, at the determination of the tenancy, to be treated as
having been erected hy him..
Some information as to the rent of land may be ohtaineJ
.. Page 133. The.e equitable doctrines applied onl)" to free contractual tenant..
The uu/ree customary tenants" ere' ery differentl)" treated.
" The free triLut(.., as I have heard,
Are they "hi
h we ha\e aoon mentioned;
Of the noble trihes these are dne,
\\"ho are upon lands external [to the mcn.allaud.].
.. The unfree triLes,-a con(lition not opprc-si \'C,
The)" are iu his (the kinA'"'] o"n laud. ;
Sen Hc rent by them, it is the truth,
I< to be supplie!1 to the palaces of the chief king.
"The tribute \\ hich is due of t he<e
[I 'J i. of fire Lote and wood;
[al-o] the rene" ing of hi. eloaJ.s, constant the practice,
A triLute in "a,hing and iu cleaning.
" This i. due of the Lcst part of them
Hun and purple of fine strength,
Red thread, "hite wnol, I \\ ill not conceal it,
Yellow blaan and Linnean.
.. From the unfi'ee trihu ojïJnoll
co.n'enance,
IVhoß!/ ,Ûlh the renlJrom th" lod,
Tu:ice lU much iø due
As theyllGd cal1"ied off fi-om tile;.' fatherland. '
J::o
k of Ri:;T.ts," p. 223-4.
CXXXVlll
IXTRODGCrrON.
from an earlier passage in this tract dealing with the mode
in which land-trespasses are cstimated; the answer which
it gives to this question is as follows :-" From its rents; if
it be winter grass that is injured, two-thirds of its rent is
thc fine fOI. the trespass; if summcr grass, it; the fine, is one-
third."- On this passage the gloss says :-" Two-thirds of
the fair rent,O/' l)j'ice that is lJaid for its' feis '-trcspass
and 'airlim '-trespass is what is pnid for its 'airlim'-
trespass only, for it is four sacks that are lJaÙl for its' feis'-
trespass, and two sacks for its 'airlim '-trespass. Two-
thirds of the rcnt which is paid for a" Tir-Cumhaile" of
the best land to the end of three quarters of a YC(t1' is what
is due for' feig'-trespass in a meadow of winter grass-land
over a full fcnce, i.e., three 'screpalls' for the three quar-
ters; i.e., two 'screpalls' for 'feis '-trespass in winter,
and one' screpall' for' feis '-trcRpass in summer, and this
is the third of the three ' scrcpalls.'t
Those who are desirous to work out qucstions of thi::;
nature, are referred to the Tract entitlcd "Divisions of
Land," containcd in this volume, in which the measures of
land are explained, and the addition or diminution in the
value of land produced by the presence or absence of
various qualities.
The letting of land, as eXplained in this tract, was car-
ried on upon essentially mercantile and equitable principles,
and was wholly unconnected with any feudal tenure.
Sir H. S. Maine has successfully shown that the feudal
relation of Lord and Vassal among the Irish (so far as it was
developed) rested upon the hiring out to the less wealthy
classes of cattle and not of land. The benefice which t}JC
tenant received as the consideration of his services, must l
ave
been of value, and not otlwrwise easily attainable; and Sir
H. S. Maine therefore points out that in the earlier stages of
society there was a superabundance of land in proportion to
the amount of cattle available for cultivation and manure, and
that what the vassal desired and obtained was not land to
till or pasture his cat.tle upon, but cattle for the purpose ()f
'" Page !J..
t Page !J,.
IsrROD"t'"CTION.
CXXXIX
utilising his otherwise va1ueless lands. This tract, however,
exhibits to us a condition of society altogether different from
that in which the ' saer' and' daer '-stock tenancy took their
rise. 'Ye find tenants paying very substantial rent under
grazing leases, tenants willing to expend money in " erec-
tions," and manuring their holdings, and also that the
custom of tenants hiking land for agricultural and grazing
purpose, had existed sufficiently long for the development
of a custom determining the duration an!l incidents of the
tenancies, and the respective rights of landlord and tenant
as to future and permanent improvemcnts. The manifest
ineonsistcncy between cattle-tenure and the rules laid
down in this tract on the relation of landlord and tenant, is
one of the ruany proofs of the social changes which must
have occurred between the date at which the older Celtic
customs were in force, as being in accordance with, and
springing from, the daily needs of an existing society, and
the period when the latter and speculative commentaricR
were composed; and, therefore, of the impossibility of ex-
tracting anyone uniform system of jmi,;prudence from the
mass of Brehon Law Tracts of unknown authorship and un-
certain date.
The contents of this tract are sufficient to put an end,
once and for ever, to an assertion, which seems to lmvc
become an axiom adopted by all authors on Irish history and
antiquities, and which has also gained considerable political
notoriety, namely, that the ancient Irish had not attained
to the idea of exclusive ownership in land, and that all the
land, until the influence of English law prevailed, was con.
sidered as the joint property of the tribe or fan1ily. It is
evident that the several and individual ownership of land
was perfectly familiar to the Irish lawyers, and that the
most advanced applications oÎ this doctrine, such as hiring
of land for limited periods and under specific covenants, and
also the doctrine of servitudes, were not unknown. The
question of importance upon this branch of I1Ìsh antiquities,
is not whether several property in laml was known to the
Irish Brehons, but what was the proportion which, in the
c'l:l
]XTnODUCTIO
.
historical period, the lands held by the hody of the tribe
bore to those appropriated to individual and separate owners.
III an introduction, such as the present, many interesting,
although incidental, statements, which are of mueh antiqua-
rian value, must necessarily be left unnoticed.
None of the BrellOn tracts gives more complete materials
for estimating the merits amI demerits of thc early Irish
lawyers tlJaIl docs the present. This may bc attributccl to
the f.1.ct that thc work in question, being probably of a late
date, contained few difficuUies in its construction, or re-
ference!'! to ancient and antiquateù customs. The glosscs
prove that the subsequent COlJlJnent,ator felt no difficulty in
understamling the original text. Thc subject matter was
also practical in its nature, and remarkably adapted for the
mode in which the Breholl school dealt with legal subjectf'.
In despite of a style singularly wearisome and confused, it
is impossible not to oLserve that they have worked up into
a consistent form a mass of local and varying customs;
that they lJave laitl1101J of important legal principles, though
in an uncertain and illogical fashion; and that in the selec-
tion of their rules they have exhibited an honest and
equitable spirit; on the other hand, this tract illustrates
their incapacity to arrive at legal abstract propositions, and
thü extreme indefiniteness or mistiness of expression to which
they were habituated; their prevailing error of mistaking
arithmetic conclusions for definite propositious; and, lastly,
their predclection to wander away from the practical appli-
cation of their rules into the discussion of imaginary and
fimtastic cases, which were elaborated in the nature of
scholastic speculations. The wisdom, for which thc Brehon
la.wyers obtained sUt:h undeserved credit, rested upon the
feeblest, not the most important, portion of their work. The
vulgar of the day may have listened with amazement and
admiration to discussions as to the various liabilities of
hens, or the trespasses of dogs; and most of their modern
translators anù students, confessedly ignorant of jurispru-
dence. seem to have been struck with astonishment at these
dialectic performances; but the test of the merit of every
IXTRODC"CTIOX.
cxli
legal school is its success in the application of its scientific
conclusions to the practical affh,irs of life. That the Brehon
lawyers reduced the mass of customary rules into a tolerably
definite form, and contrived to base their doctrines upon a
foundation more or less logical, and that, although possessing
no original jurisdiction, by the general equity of their
decisions, they succeeded in establishing their judicial
power, are merits which the cursory student of the present
day, repelled by the form of their works, is perhaps too slow
1::> admit.
YII.
BEE-JuDmIEXTs.
The culture of bees in the middle ages possessed an
importance which, in our modern days, it has altogether
lost. Until the introduction of sugar into 'Western Europe
at so cheap a rate as to admit of being considered an article
of ordinary use, honey wa"! largely employed as the only
means of sweetening the food; and almost until our own
days the consumption of wax for candle was very extensive.
At whatever date the sugar-cane was first cultivated in
Europe, (the western nations first became acquainted "ith
it shortly after the date of the first crusade), the extensi\-e
use uf thi.s article in Ireland cannot have arisen before the
introduction of West Indian sugar at the enJ of the lüth
century, up to which date the cultivation of bees must
have continued to bc a matter of considerahle importance
in IrelanJ.
The import.:'mce of hee-culture in IrelanJ is proved
by the well-known legend relative to their introduction
into tho island. This is printed in Colgan's" Acta Sanc-
torum," under the date of the 13th of February, the feast of
81. Dominicus, or
lodonlllicus. As the book is not easily
accessible, the passage is here transcribed :-" Narratur
ibidem et aliud de ipso 8. l\lodomnico seu Dominico
miraculum vere l>rodigiosum, universæ patriæ continuâ
veritate proficium, et perenni famâ viro sancto gloriosum.
Traditur enim primus esse, qui vel apes absolute, vel
cxlii
IXTRoDucrrox.
saltern certi generis apes in Hiberniam transvexerit; unde
magna deinceps in illo regno, quå ante carnit, apum ct
melIis allUndantia remansit. Sed quia hæe periodus, ut
fahulosa, a duræ ccrvicis hereticis irridetur, et quihusdem
cmunctrn naris Catholicis tanquam parum fundata minimé
arridcat, plaeuit plures, eosque graves et vetustos, ejus
proùucere testes. Cum S.
Iodomnieus, discipulus sancti
Patris (S. Davidis) ad Hebcrniam revcrteretur, et navem
ad transfretandum ascenderet, ecce omnis multitudo apum
tcrræ illius, unde exierat, consequens cum, in navi cum eo
cOllsedit. Ipse enim examiniLus arum nutriendis atque
servandis, diligentem CUI'am de Patris David mandato
dabat, ut indigentibus aliqmt ciba suavioris oblectamenti
ministraret. Discipulus vcro nolens tanto beneficio fratres
deframlare, Ïtel'um ad Patris presentiam rcdiit, sequente
tam en eum turhâ arum, quæ ad alvearia propria prorexerunt.
Cum secunda ,alcfaceret fratribus, ct viam suam carperet,
ecce apes, ut prius, cum insequuntur; quod cum videret,
iternm ad fratres revertitur; et similiter emn apes omnes
concomitantur. CUIll tertift vice hoc factum itcrassent, et
vir Dei nullatcnus velIeL eas a fratribus abducere, cum
omnium fratrulll benedictionc et Patris David, lieentialll
transfretalldi cum apibus accepit; apes quoque S. David
bencdicens, ait; terram, ad quam properati::;, vestro abundet
semine, nee unquam deficiat vestrum inibi semen vel
germer' nostra autem civitas a voLis in perpetuum im-
munis, ICe ultra semen vestrum in eâ l'xerescat. Quod
usque in prcsens tempus completum es::;e ccrnimus; nam
si aliundc in illam civitatem deferantur, nequttquam durare
po::ösunt. Hibernia autcm insula, in quâ usque tunc apes
vivere nequcLant, postea magnâ melIi::; et apmll fertilitate
110rebat. Quod cnim ibi apes autea vivere nequebant, ex
hoc colIigitur, qnoll si pulnres vel lapilli de Hiberniâ inter
apes aliarum terrarum projicerentur, fugientes tanquam
nocivam devitahunt.
"Hujus historiæ veritatem confirmat nomcn loci, quo
apes illæ in Hibcrniam derectæ primo collocatæ sunt, ab
ipso eventu dcsumptum; is cnim locus in regiollc Fingalliæ
I
TRODt:'CTIO
.
cxliii
sive comitatu Dubliniensi situs, Lann-lJeaclwÏ1'c, id est,
Ecclesia Apiarii adpellatur, &c.".
The present tract must he considered as an exercise in
which the question of the ownership of bees, their swarms,
and their honey, is selected as a subject for dialectic
suhtility. From the pa.<;::;ages in the preceding tract dealing
with bee trespasses, and incidental passages in the present,
it is evident that questions rela.ting to the ownership of
bees were, in the ordinary course of life, dcalt with on much
less refined principles than are here suggested; hut the
present tract is valuable as illustrating the modes of thought,
and the logical abilities of the Irish lawyers. For the
purpose of raising all possible questions as to ownership and
possession, no subject could have been more ingeniously
selecte(l than that of the rights to hees and their produce;
and upon this point some few obselTations are necessary.
The ownership of bees raises at once the question ufwhat
is meant by possession. This term is generally defined as
expressing the simple notion of a physical capacity to deal
with a thing as we like, to the exclusion of everybody else,
and the possession continues, even without pIlysil:al cont.:'1.ct,
if the physical force to retake the object can be reproduced
at will.
The most remarkable illustrations of the legal conception
of possession arise in the consideration of the possession of
live animals. The animals which ordinarily exist in a
domesticated state, such as cows and horses, hardly differ
.. The good father, who deals 80 hardly with thick headed heretics and
sceptical Catholics, is howe,'er himself embarrassed by eyidence as to the e,<istence
of bees before the date of SI. lIIo{lomnicus: .. Quod autem in IIiberniû ante
sanctnm hunc Dominicum natni:1 apes et mella fnerint constat ex irrcfragabiJi
testimonià rpgulæ S. Ailbci, in <!uà num. 37 ita Icgitur, '{'um sidenl ad mcn,am,
adferantur herbæ, sive radices, aquâ lot." in mnndis scalellis; item poma, cen'i,ia,
el ex alnario mellis ad latitudinem pollicis, id est, aliquod ['I\"i: S. aulem
Ailbeus floruit in I1iberniâ simul cum S Patricia, et ali(IUol etiam annis ante ejus
adventum, sive ante annum 431. Ad auctorilates S. Ængus,ii el aliorum qui
dicunt S. Dominicum pnmmn fuisse, qui apes in I1iberniam attulerat, dicendum
hoc esse intelligendum de c,rto genere lJpum: sunt enim in Hiberniû el don" eslicæ
el silvestres, ac diyersi coloris el generis apes; præcipuarum autcm ex his genus
et semen ,'iJetur S. Duminicus prilIlus advexisqe." (Vita: Sanctol"Um, p. 328,
n. j -3.) The legend therefore affords no mcans of fixing thc date of this tract.
cxliv
INl'ItODUCTIOX.
from other property. Animals, on the other band, which are
in a wild state, arc only in our possession so long as they
are so completely in our power that we can immediately
lay hold of them. The meaning of the distinction is, that
the tame animal will naturally, amI of itself, remain within
the possession of the owner; the wild animal will as cer-
tainly attempt to escape, and will most probably succeed in
doing so.
"T e do not possess the fish in a river, although the several
right of fishing belongs to ns; but we do possess fish when
once they are placed in a receptacle, whencp we can at any
time take them. According to the civil law, the ownership
of wila animals is founded upon the fact of capture, and
exists only so fitI' as they are actually or constructively in
rc><traint. The Institutes are clear upon this point :-" Fera
i;;itur bestiæ, et volucres, et pisces, et omnia animalia, quæ
mari, crelo, et terrâ nascuntur, :simul atqne ab aliq'110 capta
fuerint, jure gentium st.<ltim mius esse incipiunt. Quod
enim ante nullius est, id naturali ratione conceditur, 'i1CC
intm'cst, {cms bcstins ct rolncl"es 1dl"U1n in suo flWdo qu is
capi.ut, ctn in alieno.".
The ownership of the locus in quo of the capture is here
cntirely excluded from the consideration of the vesting
of ownership.
This law has been in Englaml very considerably modified,
by reason of the exclusive privileges generally conceded to
owners of land. There is not the least difficulty in a man
having possession of that of which he is not the owner, and
it was consistent with the idea, which attaches to our word
"close," to treat the person entitled to the possession of
inclosed land as in possession of all the game \\ hich at any
time happen to be there. It was, therefore, obviously cor-
rect to decide that, when a trespasser kill
game upon the
land in my possession, the game is mine. It is, however,
very difficult to apply these principles to the case of bees;
the hives, the boney in them, and the bees in the hives, are
manifestly in the possession of the owner, but as to the bees
.. lust., Lib. ii., Tit. I, De occupatione fer.mull.
IXTRODUCTIUY.
cxlv
who flyaway or s\\ arm uut, he has no mpans of identify-
ing or recapturing thcm, unless by close and illlme
diate pursuit; bees which lea\-e the hive are in the same
position a<; wild animal..; which escape from their cage- In
the case of wild bces, according to the Ruman Law, the
owner of the soil would have neither property nor possession
until he physically possessed himself of their nest and
honey; in this latter case, according to the geIwral principles
of English lltw, the possessor of the land should have, in
right of such possession, a possession in the bees and their
nests upon his land, and he alone, by actually spcuring
them, should become their owner. The trespasser who
secured a swarm or bees' nest upon the land of another, had,
under the civil law, both property and possession; under
the English law he should have the possession, but the pro-
perty should vest in the Owner of the land_ The law as to
bees is thus laid down in the Roman law :-" Apium quoque
fera natura est. Haque apes, quæ in arbore tuâ censederint,
antequam-a te in alveo incluJantur, non magis tuæ intelli-
guntur esse, quam volucres, quæ in arbore tuâ nidum
fccerint. Ideoque si alius eas incluserit dominus eorum erit.
Favos quoque si quos effecerint, eximere quilibet p(.test.
Plane integrâ re, si prævideris ingredientem fundum tuum,
poteris cum jure prohibere ne ingrediatur. Examen quoque,
quod ex alveo tuo exvolaverit, eousque intelligitur esse
tuum, donee in conspectu tuo est, nec difficilis persecutio
ejus est, alioquin occupantis est."'"
Bracton, as might be expected, adopts the passage of the
Institutes; but in quoting his authority, Blackstone adds
the following observations :-" But it hath been also said that
with us the only ownership in bees is 1'atione soli; and the
charter of the forest, which allows every freeman to be en-
titled to the honey found within his own woods, affords
great countenance to this doctrine, that a qualified property
may be had in bees, on consideration of the property of the
oil whereon they are found."t
* lust., Lib. ii., Tit. 1, De apibus.
t Black. Corn. B. II., P. II., Ch.lp. 1.
k
exl vi
I
TRODUCTION.
The mode in which the ownership of bees, their honey,
and their swarms, is discussed in the present tract, and the
principles applied by its authors, are a very fair test of the
extent to which the Brehon Lawyers were acquainted with,
and influenced by, the Civil Law, of which the rule of
ownership rpsting on possession was one of the primary
doctrines.
The rights to the produce and swarms of a hive of bees
upon the farm of any proprietor are, according to the theory
of the authors of the present tract, founded upon an implied
contract between him and the adjoining owners of land.
The holding of the owner of the bees is assumed by them to
be square, or at lea.<;t four sided, and each of the sicles to be
l11eare<l by the lands of a distant owner. The bees are sup-
posed to enter into and gather honey on the four adjoining
farms, the owners of which, by reason of the sustenance thus
afforded to the bees, acquire definite rights in their increa..,e
and produce. The unpractical nature ofthis treatise is shown
by the fact that the author believed that bees did not breed,
or throw off swarms, until the third year, awl it is upon
this assumption that their calculations are based. They
allow the hive what i:s styled, " three years of exemption,
one year for their production, one year 'while they are
few,''' and the year of their breeding, which must mean
the year of their tirst swarming. During this period the
adjoining owners have no right to the swarms, but only to
a certain definite proportion of the honey produced. Four
vessels of different sizes are assumed as the measure of the
quantity of the honey produced, and these vessels are them-
selves arranged by reference to the size of cattle at different
periods of their growth, (1) the milch cow vessel, which
when full a man of ordinary strength coukl raise to his
knee, (2) a "samlwil:ic" heifer vessel, which a man could
mise to his navel, (3) a "colpach" heifer vessel, which a
man could raise as high as his loins (or wai
t), and (4) a
" dai1't" heifer vessel, which a man could raise over his
head; the several proportions out of thcse respective quan-
tities of honey to which the adjoining owners were (or per-
lXTlWDGC'fIO
.
cxlvii
haps each of them was) entitled, was one-half, one-third, one-
fourth, and one-fifth of an esera, or drinking cup; this was
the amount fixed by the onlinary rule, but there were also
contingent claims for a supply uf honey in the case of an
entertainment to a person of rank, or upon the occasion of
sickness. The swarms of the third year must be assumed
to have belonged to the owner of the hive, for upon the
expiration of the three years, "the period of exemption,"
the four adjoining owners became each entitled to a swarm
out of thc hive. III the distIibution of the swarms the
author assumes that bees thro'IV out three swarms in the
year; the first assumeò to be the best, the second swarm
also of good quality, and a third inferior swarm, described
as the "m,craig!w" swarm. Three only of the adjuining
proprietors could get their swarm in the third year, and the
fourth had to wait for the foHowing season, when he was
entitlcd to the first amI best swarm of the year.
The lands in question were assumed to hear the same
relation to each other as the divisions of the geiHine, and
they We1"e entitleù to their swarms.in a rotation founded upon
the supposed relationship existing between these four classes.
As the number of the geilfine divisions were four, and that
of the lands, inclusive of the original farm, entitled to swarms,
was five, the theory could not be completely carried out.
The original f.'lrm, which obtained the swarm of the thirù
year, must have been considered as the geilfine class ;. the
other lands were classeù with reference to the pruximity of
the hive, and the degree to which the bees would, therefore,
be supposed to resort to it for their honey; the nearest land
was described as the "deirbfine" land; the next nearest
must have been the "iarfine," and the thirJ the "innfine."
The rcmaining adjoining farm could not have had any name
derived from the geilfi.n
relation, but must ha"e been intro-
duced as a consequence of the a5sumption that the original
farm was a square. That the original farm was the geilfine
faI'ill foJIows from the fact tbat the second was the deirbh-
fine, as othm'wise the geilfine must h
we been postponed to
. See Gloss, page I í8, line 22.
k2
cxl viii
IXTRODCCTION.
two remaining classeH, or introduced after the deirbhfine ;
but the order of the four classes must be observed, which is
a matter of importance in considering a passage in the next
tract in this volume dealing with the rights to water.
The owners of the adjoining lands were Lound to set a
watch" in the bright times, when the bees send out a 8warm,"
and, if a swarm escaped tluough their negligence, they
" shall support the bees until the end of another year," that
is, the further distribution of swarms was adjourned to the
next season. The case of swarms, which were nut allot.ted
to, and taken possession of by, one of the four adjoining
owners, is next discussed; if a swarm, not the property of
one of the adjoining uwners, swarmed within the farm of the
owner of the llive, no question could arise; a rule determining
the ownership of a swarm could only arise, wlll'n it had left
the farm of the original owner, and settled upon the lands of
a third party. For the purpose of deciding this question our
author refers to the analogous case of the rights to the fruit
of a tree, bclO1lging to one person, but planted in and grow-
ing out of the land of another.- Such a question is foreign
to any European 8ystem of law, but it frequently arises in
the Courts of Ceylon, where not only the owners of the tree
are different, but even the tree and its produce are held by
many persons in joint, and necessarily undivided, owner-
ship. It is easy to understand how such a question might
arise in a country such as Ceylon, where a farm uf:\ed for the
cultivation of large trees, such as a cocoa-nut plantation or
mango-grove, has, in the course of several generations, been
split up into innumerable shares among the descendants of
the original proprietor, but, considering the small size and
insignificant value uf thc fruit trees in Ireland at the date
of this tract, and the anundance of land, it is difficult to
believe that the case is aught but imaginary, unless wc
a.<;sume thc existence of the letting of land for garden pur-
poses, with a custonuuy rent reserved out of the produce.
The general rule on this subject was that the bottom (the
land) was entitled to the fruit of the top (the tree) every
. ra;;
] G7.
. t Page JG
.
IXTRODUCTIOX.
cxlix
fuurth year, and that in the other three years it was divided
iutu t\\ 0 parts between the respecti ve owners; the text then
refers to the contingency of bees swarming upon such a
tree, and treats the swarm as if it were portion of the natural
produce of the tree itself. The general rule as to such
swarms of unclaimed bees is statediu the commentarythus:-
"It ü to the land out of which it (the tree) grows
originally, that its produce belongs every fourth year; until
(then 1) the produce of the bees is divided into two partR to
the end of three years between the owner of the bottom of
the tree and the owner of the top, and its produce every
fourth rear is due to the owner of the bottom, in the same
way as the owner of the top gets the produce of the t.ree
eYCry fourth year, so the owner of the bottom of the trees
obt.ains the produce of the bees every fourth year. This is
when the original owner of the bees is not known."" This
rule refers to the divisiun of the ownership of a stray swarm
between the owners of the land and of the tree. The r
les
as to swarms, the o\Vner
hip of which was either admitted
or asserted, is stated subsequently in the commentary, and
it is to be remarked that in the decision of such questions,
two additional elements are introduced, the greater or less
certainty of the owner",hip of the swarm, and the rank of
the owner of the tree.
(1.) ".As to known bees in the trunk of the tree of a noble
( nemedh,' two-thirds of thei r produce a'i'e due to the owner
of the tree, and one-third to the owner of the bees, to the
end of three years, and they (the becs) are the property of the
owner of the tree from that out.
(2.) ".ils to doubtful bees in the trunk of tÌJ.e tree ofa noble
(nemedh; three-quarters of thei1' prodltce (lI'e duæ to the
owner of the tree, and one-fourth to the dOltbtful owner of
the bees, to the end of three years, and they belong to the
owner of the tree from that out.
(3.) ".A.s to the kno" n bees in the top of the tree of a
noble < nemedh,' one-third of theil' produce Ù3 due to the
· P. 171. The punctuation of this pas
age has been altered from thBt in the
te'-t.
cl
n,TRODUCTIO
.
owner of the tree, and two-thir(h to the owner of the bees,
to the end of a year, and they belong excZLLS'iæZy to the
original owner of the bees from that out.
(4.) "As to duubtful bees in the top of the tree of a noble
< nemedh,' one-half ot their pl'Odl.lce is due to the owner of
the tree, and one half to the owner of the bees, to the end of
a year, and they belong to the owner of the bees from that
out; or, accOi'ding to others, it is to the owner of the tree
they belong.-
(5.) <.As to known bees in the trunk of the tree of an
humble < nemedh,' one-half of their In'odl.lce is d-ue to the
owner of the tree, and one-half to the owner of the bees, to
the end of three years, and they belong to the 0\\ I
er of the
tree from that out.
(6.) "As to doubtful bees in the trunk of the tree of an
humble < nemedh,' one-half their produce and one-eighth go
to the owner of the tree, and one-half except, one-eighth to
the owner of the bees, to the end of three years, and they are
the property of the owner of the tree from that out."t
The two further rules which should correspond to rules 3
and 4, are omitted in this part of the commentary, but in a
subsequent passage the further rule occurs :t-"As tv known
bees in the top of the tree of an humble < nemedh,' the fourth
portion oj their produce belongs to the owner of the tree,
and three-fourths to the original owner of the bees, to the end
of a year, and they are the property of the owner of the
bees from that out."t
There is a passage in the original text which puts the
rights of the "nemedh" -pelson upon an entirely different
footing, and classes a swarm of bees as one of the seven
fugitives not entitled to the protection of his house, and
therefore in this case the "nemedh" -person, being obliged
to yield up the fugitives to the pursuing 0\\ ner, receives but
one-third of one year's produce as a gratuity. This passage
is quite inconsistent \\ ith the rest of the text, and the de-
tailed rules of the commentary, and proves how much <Jf the
· This rule is vnriously given in page 189.
t Page 183.
Page 18
.
I
THOD("CTIOX.
cli
reguJations laid down in this tract are purely dialectic, and
what different conclusions may be arrived at by shifting the
point of view from which the question is regarded.
The question'3 are then discu"sed which deal with the
conflicting rights of the man who finds a btmy swarm, and
the owner of the land on which the swann is found; these
may be summarised as follows :-
(a.) If the swarm is found in a green, that is, the open
grassland immediately bUTI"ounding an house, one-fourth of
<Jne year's produce to the finder, and three-fourths to the
owner of the house.
(b.) If in a tree in a green, if the bees have been there a
year, one-half to the finder, and one-half to the owner of the
house.
(c.) If in the land between the green and the waste, one-
third to the finder, and two-thirds to the owner of the land.
(d.) If in waste unappropriated land (land not separate
private property), the finder takes all, subject to a claim by
the chief, if it be public land of a lay-tribe, or by the
church, if it be public land of a cleric-tribe to " one-third of
every third."
The position of the" daa," and" sae1." -tenants, and their
personal connection with a superior, is marked by the rule
that " daa "-tenants of a church give oyer to the church
one-third of their finding; "d(ler" -tenants of a chief give to
their chief one-third, except in the æse of bees found in the
"fu:ite land, and in that æse one-ninth; the "saer" -tenant
of the church gin
s 0\ er one-fourtb, except in tbe æse of
bees found in the waste land, and in this case one-twelfth;
the" saer" -tenant of a chief gives no portion to the chief. Two
other subjects are discu
ed in the tract, but neither of them
are of such importance as to deserve a special analysis. The
first is with reference to injuries inflicted by bee
. The mode
in which this question is considered i" much less detailed than
in the text and commentary of the Book {)f Aicill, and the
matter is referred to the judgement passed upon the occasion
of the bleeding of Congal Caecb; the passage referred to in
the original text is as follows :-" It happened on a certain
clii
INTRODUCTION.
day that I was left alone in the garden, without anyone to
take care of me, and the little hees of the garden rose up
with the heat of the sun, and one of them put its poisonous
venom in one of my eyes, so that my eye became awry,
for which I have been namcd Congal Claen.". It may
be reasonalJly conjectured that the tale of Congal Claen
had rendered the question of damages arising from the sting
of a bee a favourite subject for legal speculation.t
In the latter portion of the tract are considered the damages
payable on account of the stealing of a hive, which only
deserve notice as proving that property in the bees when
confined in an artificial nest was recogniseù by these lawyers.
We are no,,' in a position to considc'I" the mode in which the
ownership of bees, their honey, and their 8warms,are discu8se(1
in the present treatise. \Vhat is most obvious is the absence
of any general principle applicable to the consiùeration of the
questions rai8ed. The rights of adjoining owners are referred
to a state of things purely imaginary, viz., the supposition
that every farm is meared by four neighbouring farms, which
are the nearest to the premises in question, an assumption
geometrically impossible; the consiùeration of the rights uf
the parties stawling in this impossible relation is then con-
sidered upon the assumption of a fact actually incorrect,
.. The Battle of lIragh Rath, p. 35.
t Ancient law-givers appear to have entertained 8erious apprehensions of the
injuries which might be inflicted b
' bees, of which the fullowing examples
suffiee:-
.. Si quis apiaria in civitate, aut in vi\1â forsitan eonstru,<erit, et alii rlampnum
intulerit, statim moneatur, ut eas iu abditis locis tran
ferre debeat, ne furte in eorlem
loco hominibus aut animalibus dalllpnum inferraut. Et qui hæe præcepta aut
testationem nep;lexerit, et dampnum suffocationis in quarlrupedes intulerit, quod
mortuum fuerit, duplum re<tituat: quod vero debilitatum, ille obtineat, et simile
,lampno reddat: et pro judicis contestatione, quam audire neglexit, v solidos
eoaetus exsolvat."-" Leges JI"isegothur",,.," Lib. viii, tet. vi., 2.
"Apes si uecidunt hominem, ipsa
quoque occidi fcstinanter oportet; mel
tamen"expendatur in medicinam et in aliis neeessariis."-" Tlleod.," Pocn. xxxi.,
II!.
"Apes si occiderint Rominem, statim oecidantur, antequam ad me1 perveniant,
ita saltem ut non per noetem ibi rc,tent; et mel quod fecerint eomedatur."--
" Ecgb." Coni. 3G.
.. Apes si aliquem oeciderint, statim oC"d,lantur. et me! quod aulpa fcperint
f'dalur."-" Frtjb.' Pren., Lib. iv., s. :lin"
INTRODUCTION;
cliii
viz., that bees do not swarm until the third year; and the
distribution of their swarms i., regulated by reference to the
false analogy of the divisions of the family in such a manner
as to im olve an arithmetical error. In considering the
ownership of swarms not included in the preceding rules, the
author fails to grasp the clear rule of the civil law, that
ownership depends upon the reduction into possession, and
the equally clear principle of the English law that a tres-
passer cannot take any a(h-antage arising from his 0\\ n
wrong. The mode in which our author proceeded was this :-
he observed that on all
uch occasions a contest as to the
ownership arose between certain definite parties, the finùer
of the bees, the original owner of the bees, and the owner of
the land in which the bees had swarmed; he never applied
any general principle to the rights of any of them, but
finding them, or at lea..,t two of them, in conflict as to
the ownership, he admitted that all had rights, and strove
to regulate their rights in an arithmetical form. The
analogy upon which he at first proceeded, that of a tree
planted by one in the land of another, he after a time
abandons, and the subsequent statements are referable
to analogies, which he has not disclosed. There is an
entire absence of any scientific mode of thought, but the
a<!Count between the various parties is taken, having refer-
ence to the circumstances in the case, which would strike
the mind of an unprofessional arbitrator when attempting
to make up the quarrel on ground,; calculated to satisfy the
contending parties; howe,.er long and apparently elaborate
the treatise may be, it does not, except in the detail and
elaboration of its numerical calculations, rise over the level
of ordinary ancient regulations upon the subject.
The \V elsh law dealt with the subject in the same, though in
a more prcfunctory manner. "On whatever boundary a wild
swarm is found, the law says that it is right for the owner
to hew the tree on each side; and he on whose land the
tree may fall, is to have the swarm i". and again, " 'Vhúever
· \Ilci
nt Lß"g of "-alc<, Y 01. I., p. 9ï.
cliv
I
TRODUCTlOX.
shall find a swann of wild bees is to have a penny or the
wax; and the owner of the land is to have the swarm."if.
No clearer example can be desired of the essential differ-
ence between the Celtic mode of thought, apparently clear,
y.et really indefinite, when dealing with a practical question,
and the hard and logical habits of thought of the Norman
lawyers (who were equally ignorant of the civil law), than
the following enactment of the Assise of Jerusalem upon
the subject of bees :_U Sel avien che per avcntura Ie ape che
sonno nelle mie casse vanno fora, et restano in altrui casse
de voluntà di esse, la ra.<;on vol ch'io non habbia action
alcuna de andar a prenderle per forza de la casse d'altri; per
che sonno ucelli salvatichi, per che tosto che Ie usciranno
da Ie rnie casse, io no hò piu signoria in queUe, se non
tornano iterum ne Ie mie casse, et sonno mie mentre sonno in
ditte mie casse, et non piu; la rason de simil ucelli e che vanno
ogni zorno fora per viver de Ii beni de fora, et però quelli
che Ii .hanno chiusi in Ie sue casse sono sui patroni, mentre
voranno stare, ò ritornare; ma se alcun vi en al mio loco
dove tegno Ie ape, et porta una cassa onta di dentro di
qualche odore, per el quale intrano dentro tutte, 0 parte de
Ie mie ape, et Ie porta via, la rason commanda che que! che
farà questo sia tenuto di tornar indrieto Ie mie ape con
tutto el frutto che haverà fatto, et poi esscr condanato
personalmente secondo che Ii judici stimaranno che valevan
quelle ape, et che potevan lavorar per quel anno, et restituir
altro tanto a la justitia de jure; et similimente se Ie mie ape
fanno miel in altrui arbore, la rason judica ch'io non habbia
alcuna rason, nè alcun altro del qual fosseno Ie ape, ma
quello deve esseI' del patron del arbore; et questo è dl
justitia, perche nessun non puo segnar Ie sue ape che non
somegliono à Ie aItre, et cosi come Ie viveno de Ii fiori, et
beni d'aItrui, cosi deve esseI' il miel di colui, nell' arbor, 0
terreni del quale voluntariamente vanno a farIo; parimente
se Ie mie ape a far el suo miel a qualche arb oro salvatico
che non ha patron, la rason vole che cadauno possa pronder
di qucl miel senza erra1'e verso alcuno, perche è loco COIl1-
* .\ncient Laws of 'Vales, Vol. II., p. 28ll.
I
TRODCCTIO
.
clv
lllune, dal quale de ra<;on ogni homo puo pigliar, etiam Ie
ape, ct portarle, dove Ii piace senza errare, de jure, et per
l'assisa de Hierusalem."
It is impossible to believe that the author or authors of
this tract and commentary (which has been manifestly
altered from time to time, amended, and enlarged), bad any
aC<tuaintallce with the civil law, and it must be admitted
that, in its present condition, it is a remarkable and most
unfavourable specimen of the manner in which the Brehon
teachers approved and discussed legal questions.
.. Assise of Jerusalem. see 215. What is moot remarkable in this section of the
Assize of Jerusalem is the distiuct manner in which actual possession is laid down
as the only grolllld for the ownership of bees, and the clear argument upon" hich
it is founded-viz., that the ownership consist
in simply ret.lining them in actual
l'o
sessiun, and is not founded upon an) c"'<penditure of laoonr and food in their
maintenance. The doctrine of constructive possession which appears in the section
of the In-titutes is here disregarded, and thcreby the difficult), is a,oided \I hieh
ari<es from the limitations of the constructh e possession introdnced into the Homan
text, .. Donec in conspectu est, nec difficilis persecutio ejus est." Also, when no
actual re"uction into possession has taken place, it is presumed to have bt,en made
by the owner of the soil, as no one else cowd enter upon his lands for the purpose;
and the case of the bees being fraudwentIy induced to escape from the possession
of their 0\\ ner is anticipated and pro, ided for. How difficult it was to form clear
ideas as to this matter appears for other attempB at legislation npon this subject.
Thus, in the laws of the Wisegoths was contained the following section :-
"Si quis apes in silvâ suâ, aut in rnpibus, ,el in saxo, aut in arooribus in-
venerit, faciat tres dccurias, qu
,ocantur caracteres; llllde potius non per unum
caracterem fraus nascatur. Et si quis contra hoc fecerit, atque alienum signatum
in, enerit et irruperit, duplum restituat iIIi cui fraus illata est, et præterea xx
t1agclla su-cipiat."--" Legu lI"isigotho,,"m," Lib. viii., sit. vi., I.
The o\\nership is here founded upon the disco, ery simply of the swarm, and
no reductiun into actual possession \I as rcqUÏIed; and the q uestiun \I hether
the person who so found them was rightfull)' or not upon the place where the
bcen had s\\ armed is altogcther 0' erIooked.
In the present tract the Brehon lawyer has seen the two distinct grounds upon
\I hich the 0\\ nership might be founded, bnt has ''''rked ont logically neither
train of ideas, and conclnded by compromising both, with reference to a snPl'u,cd
un.llogons case, and in an arithmetie.ll manner.
clvi
I
TRODUCTlO
.
VIII.
RIGHT OF .W ATER.
The subjects discussed in this treatise are neither riparian
ownership of nmning water, nor servitmles connected with
the use of water, hut the right to conduct water courses
for the construction of mills, and the right of the a,ljoining
owners to use such mills, and to draw water from the mill
course and pond. The Brehon lawyers permitted anyone
desirous of constructing a mill to bring the necessary supply
of water through the lands of his neigh buurs,and to acquire by
compulsory purchase the ground necessary for the purpose
upon the terms of paying a fixed legal compensation for the
same. "Every co-tenant is bound to perrllit the other (co-
tenants) to con/luct drawn water across his horder ;"* and,
" this is the second instance in the' Berla ' speech where the
law commands a person to sell his land though he should not
like to du so."t The process in question was a ,.ery archæic
anticipation of the modern "Land Clauses Consolidation
Act," specifying the terms upon which the necessary land may
be purchased, the amount to be paid, the matters to be taken
into consideration upon the occasion of the purchase, and
the rights arising by implication of law in the work when
completed. Certain lands, from their nature, could not be
compulsorily acquired for the purpose of the erection of a
mill, viz., the" nemed "-land of a church, or (
) of a dun, or
(3) the circuit of a fair-green. The author understood that
the right of acquiring lan<l for a work of public utility
must be restricted by rules which would pre\Tent a dis-
proportionate violation of private right, Or an excessive
inconvenience to the public itself. The amount of the
purchase-money for the land to be taken was not, as may
be easily anticipated, the suhject of valuation, hut was fixed
in every case by a an expres.c; rule, and the price was not
measured by reference to the extent taken, but the fact of
the compulsory taking was to be compensated for as a quasi-
tort. Thus, a "sed" of ten "serepalls" \\ as raya11le for
· Page 213.
t Page 215.
Iè'iTROD{JCTIO
.
clvii
every farm through which the water course was carried;
Home variation in the price was, however, permitted, having
reference to the nature and value of the land itself: "If it
be arable land, though it (the water) should pass through
only half a step of it, it shall be paid for after this manner
(that is, the price shall be one" sed "); but if it be unprofit-
able land, half a "sed" is its price, otherwise it is a day at
the nÚll for every land over which it passes that is due for
it.".
Three cla.<;ses of land are enumerated for which no
compensation was payable, either on the ground that the
owner of the land was benefited, not injured, by the construc-
tion of the water course, or because it was evident that he
incurred no damage whatsoever; these are (1)," lands on
which a mill stands, so that it yields produce," which is
explained in the gloss as meaning the land used for the con-
struction of the mill pond, which afforded to the owner of
the land a constant anù abundant supply of water, or,
according to another commentator, of fish; (2), a house and
clo::;e previously without a supply of water, and which,
therefore, was benefited by the miU-stream being constructed
close to it; and (3), a trench usually dry, and used only to
carry off the winter drainage, the owner of which wa<;
obliged to permit its use without compensation.t It would
have been fortunate for the English public if the equitable
considerations which in the Brehon law deprived the owners
of land taken for public works of any compensation, if the
construction of these works resulted in a profit, not a loss, to
the owners of the land required, had been taken into con-
sideration by modern legislators. 'Vhatever bargain or
arrangement had been made by any owner of land in con-
nexion with the construction of a mill, a dam, or a bridge,
hecame absolutely binding if acquiesced in during the lives
of two subsequent owners:t "If they have been so acknow-
ledged, it is right that they should remain so for ever, gratis
or for payment, according to the Brehon."
This passage
v
ry fully expresses the archaic iùea of ownership; the
. ra;:-. :!I:l.
t Pa;., 2).,
t rag(' 211.
Page 213.
cl viii
INTRODUC1'1O
.
owner was owner merely for the term of his own life, as be-
tween him!>elf and his family he was in some sort only It
tenant for life, whose contract as to the subject matter was
not binding upon his successor. This idea of ownership is
quite foreign to the English law, but is exactly what existed
in the case of tt su bstitutions" in the old French law, or in
tbat of a Scotch tailzie. The English law ha.'3 superaùded
to the power of dealing with property which is incidenbl
to ownership, the conception of absolute ownership being
perpetual in its duration, a fallacy which has exercised
immense influence upon our real property law, and is the
basis of our whole system of conveyancing. This rule
also is an instance of the application of the principle of
" limitation" of actions, which within only recent times has
Leen recognized as of paramount importance in our juris-
prudence. The period of limitation fixed by this rule is
during the life of the father and grandfather of the person
affected by it, and as the normal period of limitation in the
Brehon laws is the space of three generations, a subject
subsequently discussed, it may be reasonably concluded that
the party who entered into the original agreement was the
great grandfather of the person whose right to oLjcct to the
transaction was barred, and that the father and grandfather
had acquiesced in the acts of their predecessor. In a very
obscure passage of the commentary we haye an express
statement that the period of limitation was such as we have
mentioned, and the assertion that the period of limitation
did not run as against a minor: "If they w
re recognized
during the lives of three persons, they are lawful from that
forth. But if the son of the third man did not acknowledge
them jointly with his father, he being an infant, and in case
he was so, they shall not be lawful, until he shall have
acknowleJged them, for the same period after he has come
to the age of reason.". The only explanation which can be
suggested for this passage is, that the acquiescence during
the three continuous lives was not the simple acquiescence
of the sllccessive ownerH whose lives are taken into account
· Pa;;e 213.
I'\TRODUCTIO
.
cli x.
in the computation of the time, but the acquiescence of their
families during their successive lives; thus, if the owner (so
called) had a son, both father and son must acquiesce during
the life of the former, and the son, who was an infant at his
f."lther's death, having been unable during his infancy to do
any act to bind his rights, W3ß entitled after his father's
death, and for the same period 3ß he had lived 3ß a minor
during his father's life, to elect whether he would or would
not confirm the acts of his father; and if he allowed this
space of time to elapse without insisting that, by reason of
his infancy, there had not been any legal acquiescence
during his father's life, he was estopped from relJing upon
the fact of his infancy, and the imperfect acquiescence during
the father's life was validated by reason of the retrospective
effect of the son's subsequent acquiescenc9.
If the owners of the lands required fOl' the construction of
the race or pond preferred to take certain rights in connexion
with the watercourse and the mill in lieu of pecuniary com-
pensation, they were at liberty to do so.
Mr. O'Donovan has stated his opinion on this subject in
his note, which is appended to page 220 of the text, but he
does not appeH,r to have realized the difficulty of applying
the first paragraph of the text to the right to grind corn at
the mill, or to have attempted to reconcile this passage with
the very explicit and detailed statements of the commentator
in pa
e 217. The tract commences thus: "There is equal
right to the water drawn through the tribe lands due to the
lands out of which it i-; drawn."* What is the particular
right dealt with in this passH.ge? Does it refer to the right
of grinding corn in the mill, or to some other right incident
to the water course? and is the mode in which this right is
to be exercised, or are the persons by whom it is to be
exercised, compatible with such a supposition? The rights
of theadjoiningownersareregulated in reference to thegeilfine
system, and the lands are divided into four classes correspond-
ing to the four geilfine divisions. Mr. O'Donovan describes
this theoretical division of the land to have been as fo11ows:-
· Page 209.
ch
I
TRODrCTIOX.
The land in which the mill-race was first turned off, "the
course," was geilfine land; the land on both sides of the mill-
race, down to the mill-pond, was deirbhfine land; the lan,l
surrounding the pond was iarfine land; and the land on both
sides of the race, fi'om the pond to tlle land, was the innfine
land. It is clear in the text that the innfine-land was the
pond itself in which the water was contained, and that the
deirbfine land was somewhere between the source and the
pond, and it is not certain that the author of the passage in
the original text contemplated any water-course mnning
from the pond down to the mill. It is quite true that the
author of the commentary at page 217, divides the lands into
four classes corresponding with Mr. O'Donovan's; but the
question may be asked whether he is dealing with the same
subject matter as the author of the first paragraph of the
orif,rinal text. The authors of the glosses evidently did not
understand the distribution of the lands contemplated in the
original texts; one gloss describes the deirbhfine land as the
pond, and another apparently describes the pond as the iarfine
land. But the patent objection to the first paragraph being
considered as describing the rights of adjoining owners of
land to grind their corn at the mill, is, that thereby there
would be no surplus time left at the disposal of the owner of
the mill house, whose rights could not well be excluded from
consideration. The computation of time in this tract has
reference to the working days of the week, and Sunday is
kept out of the account as an holiday; if, therefore, each first
day (i. e., Monday) belong to the land out of which the water
is drawn, and three days are allotted to the pond, and one day
to each of the remaining classes, viz., the dei1'Ú/ifine and ia1'-
fine lanòs, the entire week would be divisible among the
owners of the adjoining lands exclusively. This objef'tion
does not apply to the scheme regulating the mode of work-
iner such a mill contained in the commentar y .* Accordiner
o 0
to this rule the right to work the min is divisible between
six classes: (1) the well, (2) the owners of land from the
weU to the pond, (3) the pond, (4) the owners of land from
* Page 217.
IXTROD UCTION.
chi
the pond down, (5) the artizans, and (6) the attendance;
, one-third goes to the land, and the things which belong to
it, and one-third to the science of the artizans, and one-
third to food and rude labour." The two latter classes, the
artizans and attendance, represent the proportion allotted to
the owners of the mill, for capital invested and current
expenditure; the rotation is arranged with reference to a
period of three weeks, containing eighteen working days,
distributed thus :_
1st Week. 2nd Week. 3rd Week.
The Well, .
fonday. - -
"-ell tl> Pond, - Tuesdav -
Poud, Tuesday. Jllundaÿ. lIfondav.
Pond down, - - TUl'sdå,-.
ArtiZ&1s, Wednesday and Wedneoday and Wedne;dav and
Thursdav. Thur..la,_ Thnr.,la ;"
Attendance, . Friday and Satur- Friday and Satur- Friday and Satur-
day. day. day.
It is clear that if the author of the first paragraph of the
tract had considered the adjoining lands to have been
divided upon this system, the pond should have been de-
scribed, not as the innfine, but as the utrfine lands; and in
one of the glosses we, in fact, find this correction made; if
the pond was the ia1:fine lands, the two intermediate classes,
viz. :-the deirbltfine and the ia1JÌne lands must have been
plaeed between the source of the water and the pond; and,
as before remarked, we find in the first passage no allusion
to any race nom the pond to the mill. It may be suggested
that the first passage refers, not to the right to use the miIJ,
but to draw water from the mill-course and pond-a privi-
lege perhaps not of much value in Ireland, but one which
the Brehon lawyers, to whom the rule" De minimis non
curat lex," was unknown, would not disref,rard in their cal-
culations.
The present tract concludes with the following remark-
able passage :-" There are seven ditche!':, according to the
Feini, the injuriec; done by which are not paid for (though
such should be done by them), for every person shall be
corrected (restrained 1) by_ his security, unless they have
l
clxii
I
TROD{;CTlO
.
ne('n madc free; the ditch of It' dun '-fort, the ditch of a
, cill '-church, the ditch of a fair green, the ditch of a mill-
mce, the embankment of a mill-pond, the ditch of a turf
hog (the hole caused by the cutting of turf), a dit('h which
is at a bridge; for, from this out (i.c., with the exception of
these specified cases), each one pays for the injury sued for,
or caused by each ditch which one has made in his land,
to him who has sustained the injury, for every surety shall
he sued unless these exceptions have been established as
regards water. [t was thus that the common right to con-
ductino- water was established bv the Feini.".
ð .
This passage states that ditches (or constructions of any
kind) are divisible into two classes, viz.; those the owners
of which are responsible for the accidents arising from thcir
construction, and those the owners of which are exempt from
(lamages in that respect; the reason why mill-courses fall
within the latter and the former class, is stated in the gloss,
viz. :_" They are erections, concerning the construction of
which authors have laid down no defin('d mode of con-
struction." AU the ditches refelTed to are made in the exercise
of legal right; and all, except the cutting of the bog, may
he considered in some dcgree as public works; the cutting
in the bog would be an exercise of a right in common land
in the ordinary manner. Now the very principle of damages
in the English law, which would be applicable to snch cases,
would be, that a person who had constructed any work of
such a nature in the exercise of a legal right, and with due
care and precaution, would not be liable for damages in re-
spect of an injury which occurred to a third party, caused
by the existence of the work in question, or the legitimate
mode of using it. This is the point which was applicd to
Railway Companies, in the case of the King v. Pease, 4 B
& Ad. 30; the question in such case is always one of negli-
gence in the construction or using of the work. This
appcars to the point taken by the author of the gloss, viz. :
_that there was no established rule regulating the mode
in which the mill-course should be constructed-and that
.. Page 221.
INTRODUCTION.
clxiii
the construction being in itself legal, it was impossible to
consider the mode of construction a ground for damages.
The obvious mode of deciding the question by an issue of
fact as to whether the construction in question was or was
not properly constructed, and with all ordinary care, was a
course which would not recommend itself to the Brehon
la\V}-er accustomed to the use of diRtinct arithmetical formulæ.
This passage is interesting, as illustrating how the Brehon
law was taught; in any modern sJ'stem the author would
have laid down an abstract proposition, illustrated it by
particular examples, and fortified it by previous dccisions;
and, thus having established his general proposition, would
have applied it to the facts of the case, then the sul
ect of
consideration. The Brehon lawyer must have had in his
mind, however vaguely, some abstract rule with reference
to which he classified a number of individual C<'Lses; having
made his classification, he then instructed his pupils by
specifying the result of the analysis, without communicating
the principle upon which it proceeded. It is this mode of
dealing with legal questions, which, in the case of the Brehon
law, creates such difficulty and obscurity. Their works are
neither simple statements of antecedent customs, nor a
teaching by deductions from expressed general principles;
the logical process may be described as a series of enthymemes
with the major premiss suppressed; but a careful examina-
tion of many of these passages will di&close the general rule
upon which the author proceeded. The form of their works
must have been determined by their original function, as the
professional witnesses of unwritten custom; the decisions
pronounced by them in cases of the first instance, would
naturally fall within Sir H. S.
raine's definition of The-
mistes, clearly illustrated in the following passage :-" It is
certain that in the infancy of mankind, no act of legislature,
nor even a distinct author of law, is contemplated or con-
ceived of. Law has scarcely reached the footing of a cus-
tom-it is rather a habit. It is, to use the French phrase,
'in the air.' The only authoritative statement of right
and wrong, is a judicial decision after the fact,>-not one
l 2
clxiv
INTRODUCTION.
pre-supposing a law which has been violated, but one which
is breathed for the first time by a higher power into the
judge's mind at the moment of adjudication."
The present tract is a curious instance of this mode of
dealing with novel questions. 'Vater mills were introduced
into Ireland by Cormac Mac Art, probably in the course of
the third century, and the rules referable to them could not
have grown up until the use of these constructions had be-
come common, and question,> had arisen upon the su
ject.
There was therefore no antecedent custom; nor was there
any sovereign power capable of establishing a law, in the
proper sense of the term, upon the subject. The Brehon
Judf,'C must have proceeded in such ('ases precisely as the
English Common Law Judges in a similar position; they
referred to a supposed antecedent custom their decisions
upon the novel cases arising before them, and by a series of
decisions upon particular instances, ultimately created the
materials from which general legal principles might be de-
duced. In the case of the Brehon Judges the form of their
decisions continued unaltered, which the writers of their
law tracts embarrassed themselves by adopting. The
scholastic logic was known to, and taught in the schools of
the Irish ecclesiastics in the middle ages, but in the Brehon
law tracts there is not a trace of its influence. This fact
may be attributed either to the natural opposition of the
representatives of the old customary law to the schools in
which the Canon or Civil Law would be considered as
authoritative, or to the mode of teaching natural to an
hereditary class of lawyers, influenced by traditional forms,
and desirous to retain as a monopoly the secrets of their
law.
IX.
PRECINCTS.
The open space around a dwelling, which was assumed to
be within the peace of the owner of the house, has been
referred to in the Book of Aicill, published in the preceding
volume, with reference to tlle compensation payable by
I
TRODUCTION.
clxv
third parties for acts of violence committed within it. *" The
author of the present tract proposes to state the extent of
the precinct with reference to every grade, both lay and
clerical, and to discuss cert.ain questions connected with the
subject. The determination of the precise extent of each
precinct he attributes to the decisions of a convention of
the bishops, "ollamhs," chiefs, poets, sages, and seniors of
Ireland, held at Sliath Fuaid in Magh Bregh, and alleges
that the extent of the precinct fixed for each class, for the
violation of which fines should be paid to the owner of the
house, was written by the men of Erin in the great" Cas" of
the ancients. The unit in this calculation is the extent of
the prec.inct of the lowest grade, entitled to enjoy the
privilege of sanctuary, that is the "bo-aire" chief, which
was fixed in simple and archaic fashion. Let him be placed
at the door of his house in his customary seat, with a spear,
twelve hanJs bren.dth long, from the iron head to the horn
ferule; so far as he could cast it did his precinct extend.
This measurement of the limit of the precinct to which the
owner of the house was entitled, rests upon the same
principle of the well-known rule of the "maritime league"
in international law, viz., that external combatants must
suspend hostilities when their further prosecution would
endanger a neutral in his usual and legal place of residence.
The ordinary spear cast having been assumed as an unit it
is doubled for the next higher grade in social rank, and so
proceeds by geometric progression through the five remain-
ing ranks to the King, whm;e precinct is consequently a
circle with a radius of sixty-four spear casts.
A King of King, i.e., either a provincial, or the national
King, had, by virtue of his rank, a precinct, independent of
measurement, inclusive of the entire plain, or meadow,
within which his dwelling stood; and the same privilege
was conceded to the Archbishop of Armagh, as "Coarb" of
St. Patrick. A different method was adopted in fi.xing the
extent of the precincts of the dwellings of ecclesiastics; in
this case the calculation is based upon the extent of the
· Ånt
Y vI. III., Page 119-1-1;;.
clxvi
INTRODI;CTION.
greatest, and not the smallest, precinct; to a ehurcll, "in
which were the three grades of bishop, profe.3sor, anù arehin-
neeh," approximately translated in the text, a "eatheùral."
belonged a precinct with a radius of two thousand paces; to
a bishop, a saint, or a hermit, one of one thousand paces, "if
it be in a plain," that is, inclusive of all the open surrounding
spae'.) to the maximum extent of one thousand paces; the
precincts of the lower ecclesiastics diminished in the same
ratio as their respective" honor-prices." The right of pro-
tection was one accorded to the owner of the house for his
own benefit and security; it was not a right of the fugitive
who required protection; it might, therefore, be waiveù by
the owner of the house, who was not bound to concede its
benefit to a stranger, and if it were violated the result woul<<l
be that damages shoulù be paid to the owner of the house
solely. The position of the two extern hostile parties was not
altered by the fact that the fugitive succeeded in getting
within the precinct of a third party, and therefore the owner
of a precinct, as the condition of the inviolabilit)> of his own
household, was bound to secure to the pursuer the legal re-
dress to which he was entitled ;. this appears in the following
passage, "'What is protection as to reciprocal rights 1 be-
cause there is no protection without offer of law.". The
right to the benefit of the rule as to the precinct was there-
fore suspended if the owner of the house refused to give to
the pursuer the necessary guarantee. The protection
afforded by the precinct naturally extended not only to the
fugitive, but also to the property brought by him within
the limit. Damages for the violation of the precinct did not
arise sole!y from the fact of violation, but notice that the
place in which a person was seizeù, or property recaptured,
was within the limits of the precinct of a third plU"ty,
was requisite to make the act otherwise justifiable a wrong
as against the owner of the house; for among the cases of
exemption is placed that of "ignorance," which is defined
(with reference to some known case) as the seizme of cattle
* Page 233.
I
TRODCCTIOK.
cIxvii
under protection, in the belief that they were not under
protection; which must mean, in ignorance of the fact that
they were within a precinct.-
The two other cases of what is called" exemption," that
is, non-liability to damages for actual violation of the pro-
tection, are unlawful protection, and forcible violation; the
former exception is free from difficulty, and applies to the
ca.se of the owner of the house refusing to fulfil his recipro-
cal duty of guaranteeing to the pursuer his legal rights; the
laUeI' is, however, not so clear; "forcible violation" of the
protection of a precinct is the very act for which damages
are payable, and, if this expression be referred to the pur-
suer, it would follow that the most aggravated cases would be
exceptions to the rule. The only other to whom the
" forcible violation" could be referred would be the fugitive
himself, and it is suggested that the case contemplated is
that of a fugitive refused protection, and himself forcibly
entering the precinct. The construction put upon this last
mentioned p
t.">sage is strengthened by the fact that the
succeeding paragraph llliSumes that the protection to be legal
must be assented to by the. owner of the house, or some one
on his behalf. t
The assent to the entry of a fugitive within the limits of
the precinct must have been given by the head of the house-
hold himself, or by some member of the family as his agent,
and on his behalf. Hence his first wife and his unemanci-
pated son,t or even an emancipated son or any person of the
family could receive a fugitive. A very clear distinction as
between express and implied agency is drawn in the text
with regard to the reception of fugitives by persons other
than the head of the house. If the protection is accorded
to the fugitive by any member of the family by the express
direction of the head of the household, full honor-price was
payable for its violation; but if there were no express
direction given for the reception of the fugitive, and a mem-
ber of the family acting on behalf of the head of the hou8c-
. Page 229. t Page 229.
t Page 231, ùut see note on this p.15sage.
clx\ iii
IXTRODL'CTION.
hold received him within the protection of the precinct, the
amount of the honor-price payable for the violation of the
protection was diminished, in accordance with the more or
less intimate relation of the head of the house to the person
who had assumed to act on his behalf. The pcrson, who, on
bchalf of the head of the household, as his agent either express
or implied, received a fugitive, was never entitled personally
to any damages for the violation of that protection, which
he could not have given in individual capacity. This implied
agency extended only to those members of the household
" who had no expectation uf separation from the head of tt1e
house,". thus a mere armed retainer or mercenary soldier
temporarily resident in the house could not act on behalf
of the head, nor could a person himself a fugitive under pro-
tection; as to these cases then is cited in the text the old
rule: "Sanctuary of sanctuary; one pilgrim does not pro-
tect another; no one is entitled to fines for the violation of
the '[J1'Otcction of his hired soldiers." It would be attributing
perhaps too much ingenuity to the Brehun Lawyers to believe
that they worked out these rules by reference to the doctrine
(If implied agency; it would be more safe to conjecture
that at an eady period a fugitive might have been receiv'('(l
into the protection of the householù by any of its memhers,
and subsequently their action was eXplained as being as
that uf imp Ii cd agents (If the head of the household.
The amount of da,mages payahle in respect of a violation
was varied with reference to the elements which entered into
all such calculations, such as the extent of the violence useù
towards the fugitive, and the ranks of the fugitive and of
the person whose protection was violated.
The number of the persons who could at the one time be
received into sanctuary was necessarily limited; the pursuer
eould not be expected to yield to the claim to protect
fugitives, unless the owner of the precinct could himself
rcstrain them from departing, fiS otherwise his guarantee
that justice should be done would be nugatory. The
.. I'a;e 231, butsee note on this passage.
IXTRODUCTION.
clxix
numher of fugitives who could at one time he received into
protection was therefore limited to twenty-seven.
The church claimed to exercise a more extended protection
than was accorded to the laity: "It is safe for her to protect
before the terms (specific{l t'imcs) without offer of law ill
either of them, and to protect after the terms with ottcr of
law, and to protect against death and unjust fines always.".
The rules with regard to the precinct, and the protection
thrown over fugitives by the head of the household, would
xeem to be a survival of earlier ideas modified to meet
the circumst.'tnces of a denser population, and the claims
of the ministers of the Christian religion. There must
have been originally some distinct and symbolical act
by which the fugitive was removed into the protection of
the house; if this was connected with the ancient pagan re-
ligion, it may have faHen into disuse after the intruduetion
of Christianity. 'The original position of the fugitive is thus
described by Mr. Hearn: "Another division of the same
class (the depenùents of the family) consisted of rcfugees,
especiaJly refugees for homicide. It seems to have been an
ancient belief that the stain of human blood, however in-
curred, relp1Ìred puritication. There was also the ùanger of
the blood feud fi'om the kinsmen of the deceased. The
homicide, therefore, gl'neraHy fled from his home, and sought
a person who could purify him from his sin, and also protect
him from tIle avenger of blood. If such a suppliant applied
to the House Father in the. proper form, as recognized by the
House Father's worship, and addressed him 1y the proper
adjuration, such a request could not be refuseù. The stranger
had brought himself within the protection of the House
Spirits, and they would resent any wrong done to their
suppliant. A way from his hearth indeed, and without the
appropriate ceremonial, the House Father might at his
pleasure grant or refuse the mercy to any person who sued
fOl' it. But the suppliant in the technical sense of the word,
the íl.:iT'I{; ur the Illan who came to the holy hearth was a
* P.
g2
3';:;.
clxx
11" rUODUCTlOK
different case. Him the Honse Father was bound to receive,
and when he had received him, the Rtrallger was initiated,
and became, at leaRt for the time, a member of the house-
hold".
X.
DIVISIONS OF LANDS.
This tract is an attempt to fix arithmetically the value of
a cumhal of land (t;lp cummte), having rpfprence to the
quality and advantages of the land in question. Arable
land is divided into three classes-(l) first-class arable land,
(2) hilly arable land, (3) labour-requiring at'ahle land. A
cumhal of the first class is valued at twenty-fimr milch
cows, of the second class at twenty milch cows, and of the
third-class at sixteen milch cows. 'Weak land, whil"h IlIay
lIe understood to mean land fit only for grazing, is also
divided into three classes, viz.,-coarse land, weak land, and
deep land, a cumhal of which respectively is valued at twelve
dry cows, twelve (q. ten) dry cows, and eight dry cows. The
tract then considers the extent to which the value of any
cumhal of land is increased by what were considered as its
accidental and extrinsic advantages, such as the existence of
a wood or mine upon the land, its fitness for the erection of a
mill, or its facility of approach, or nearness to a highway,
Each of these accidents is taken into account to increase the
value in a certain ratio, and the value of any given cumhal
of land is to be estimated, having reference to both the
quality of the land and its accidental advantages.
Upon the first view it might appear that the whole tract is
but a piece of solemn arithmetical trifling, such as the Brehon
.. The Aryan Household, p. 109. The term" de,'gg.fine," which occurs in "The
Divisions of the Trihe of a Territory," (page 285, I. 15), has been previously c,,-
plained in accordance with the gloss upon that passage; but the existence of a class
of members of a family, deprived of their laml as a consec,uence of homicide, is so
unusual a fact that it might be plausibly suggested that the" dergr,.fine" included
ori 6 in811y the 'ICETUI aJmitted into the family, and v. hen the original rights
connected with their admission had become obsolete, and the cu-tom, which
lUust have been a late one, of forfeiting (to use this very inaccurate phrase),
the lands of a wrongdoer had been introduced, the term (derggfine) Wa. applied in
the way in which the authors of the glosses understood it to be used.
I
TRODCCTION.
clxxi
lawyers loved to exercise their ingenuity upon; but a little
consideration will prove that there is a practical basis for
this apparently fantw;;tic estimate. That the estimate is not
of the character of a modern tenement valuation is obvious,
for it applies to a state of society in which taxation was
unknown, and not even its author could have anticipated
that the price of land, when actually sold, could be regu-
lated in this manner. To understand the meaning of this
tract, it must not be forgotten that in ancient Ireland there
was no currency or established standard of value, and that
all mercantile transactions were carried on upon the tooting
of simple barter. In such a condition of the market how
are the relative prices {If articles quoted 1 The existence
of a fixed standard of value means that the value of all other
articles is estimated by the amount of thcm which can be
purchased by fi
ed quantities of some one selected com-
modity. Any commodity may be selected as the normal
stanùard, our habit of selecting gold or silver simply arising
from the fact of their indestructible nature, and the assump-
tion that their value in exchange is invariaLle.
"'hen we speak of the penny loaf being larger or smaller,
we mean that the amount of bread which a penny will pur-
chase has increased or has diminished. When we state that
a pound of tea costs two shillings or five shiHings, we mean
that the amount of silver which is equivalent in exchange
to one pound of tea is greater or less. Both statements
merely express the ratio which the value of a commodity
fluctuating in the market bears to the value of ascertained
quantities of a commodity assumed to be fixed in value. If,
however, there exists no fixed standard of value, how is the
price of any commodity to be stated? This difficulty was
Ulet by the ancient Irish, as by evCIY other people under
similar circumstances, in the following manner :-the actual
amount of any article brought to market, or handed over to
another person, is fixed by a certain unit which depends
upon the mode in which the article is dealt in. Slaves and
cattle would be counted by the head; metal by the usual
weight of the bars; and farm proùucc by the form in which
clxxii
HiTRODUCTIOX.
it was offered for sale. Thus at the present day we deal in
so many head of cattle, barrels of potatoes, or sacks of corn.
Here the difficulty arises how to express the ratio which the
value of any number of cattle bears to any given numLer
of sacks of corn. For this pnrpose an abstract measure of
value is invented, which is roughly estimated to be repre-
sentedLy a certain amount of each of the articles ordinarily
brought to sale, and a given quantity of each mticle having
Leen fixed as representing this value in exchange, the several
quantities of the different articles are supposed to be equal
in value to each other in the normal condition of the market.
As in the present day, in remote country districts, a man
who pays for the grazing of so many cows may take it out
in the grazing of sheep or geese, each cow being re1->rescnted
by a customary number of the smaller animals, so in ancient
times the value of a cow would be considered as equivalent,
for the purpose of exchange under ordinary circumRtances,
to so many sheep, geese, &c.
It has been frequently remarked that in primitive societies
the rule of supply and demand has almost no existence,
and that the same price will continue to be paid for the
same mticle during very long periods of time, and without
regard to what are callcd mercantile considerations. As long
as this mode of dealing is applicd to articles which can ùe
sold by nlPasure and weight, and are of the same average
quality, there is no difficulty in working the system; but as
Roon as an attempt is made to apply it to land, the difficultics
involved become apparent. Lanù can only be sold by re-
ference to its superficial extent, but the qualities of any
two pieces of land of the same acreage are very different,
and therefl)re their value in exchange cannot be the same.
How, therefore, can the "alue of any piece of land be ex-
pressed with reference to the ima;rinary standard of value
to which all other articles are referreù? This is the question
which the author of this tract attempts to solve, viz. :-
'Vhat is the par of exchange of land in the market with
reference to the other subjects of cxchange 1 That he
should fail in doing so in any practical manner was inevi-
IXTRODUCTION.
clxxiii
table, for the question was, in its essence, insoluble; but he
adopts the only ren.sonable mode of approaching the question,
and handles the matter with considerable acutene
s. He
assumes as the base of his calculation a fixed measure of
land, which he defines as the land-cumhal; he then
divides lr.nd with reference to fertility or fitness for
pasturage, and brings out the result in cattle; he then
considers the acciùental qualities of any particular land, and
treats them as raising the value in a certain ratio; the
value of any land in exchange would thus be represented
by a certain number of cumhals in cattle, ilTespective of
the actual acreage of the land.
The basis of the whole calculation rests upon the super-
ficial extent of a cumhal of land; and the comment.'ttor
naturally appends a table of the superficial measurements
upon which his calculation is founded. "How is a tir-
cum aile measured?" By grains; three grains in a proper
inch; six inches in the hand; and two hands in a foot;
six feet in a pace; six paces in an "intritt" measure; six
" intritts" in a" lait " measure; six "laits" in a " forach "
measure.
The tir-cumaile would seem to be seventy-two square
fomeh-measures. The following table represents the state-
ment of the text:-
inch.
1 band.-!.
6 1 I feet.
12 2 1 paces.
--
72 12 6 1 intritt
.
432 ï2 36 6 1 lait..
2,t39
432 216 36 6 1 fOr"lchs.
15.552 2,5!i2 1,296 216 36 6 1
If we assume the foot measure to be practically equiva-
lent to the modern foot, the "tir-cumaile" would be about
21);) acres; on the other hand, if the foraeh-measure were
clxxi v
IXTlWDUCTlON.
equal only to 144 feet, as would appear to be stated in the
passage referred to in the note to the text, it would be
equivalent to about 10 acres. There are no means afforded
by the text to enable us to express any definite opinion as
to which of these quantities is the correct result, and it would
lw inconsistent with the object of the preface to discuss the
question generally with reference to other and extraneous
authorities; nor, perhaps, could such inquiries lead to any
definite result.
The ingenious mode of calculating the value of land
ùevised by our author, coulcl never have been practically
appliell; the term "tir-cumaile" originally meant, and
probably always continued to mean," the land of a
c1Lmhal," and when so useù, necessarily excluded the as-
sumption of the land heing of any fixed acreage. :Mr.
O'Curry considers the phrase "tir-cumhaile," as much land
as would suffice for the grazing of a cumhal of cattle, and
this may have been the ordinary sense in which the terlll
was used.
Xl.
THE CRITH GAnHLACII..
This tract has received especial attention from Irish Anti-
cluarians, inasmuch as it professes to give a detailed dcsCI'ip-
tion of the several social ranks and organization of the
Irish tribe. Drr. O'Curry has, in his Lectures on the Manners
and Customs of the Ancient Irish, adopted this trentise as an
authentic and archæic work, and without hesitation ac-
cepted its statements as a sufficient authority for his detailed
account of the earliest form of the Celtic tribe system. Dr.
'V. K. Sullivan, adopting the views of 1\1 r. O'Cuuy upon
this sul
ect, attributes the date of its composition to the
middle or end of the seventh century. Before any discussion
a<; to the nature of the work and the conclusions which may
.. I11r. O'CIIJTy, shortly before bis dmtb, re.'ised and corrected bis previolls trans-
lation of this tract, making many important alterations and emend"tions. This
re> ised addition has beell entru>ted to tbe present editors, and On aU occasions the
latcr and more matured text of }lr. O'Curry's translation ha, beell followed in the
present pdition.
INTRODUCTlO
.
clxxv
be fairly drawn from its statements, it is necessary to con-
sider the probahle date of its composition. It must be first
remarked that it òoes not consist of an ancient text with
an annexerl commentary and explan atory glosses, but is mani-
festly written throughout by an author according to a definite
plan, and that to the later lawyers who may havc made
use of it, it presented no archæisms, either of custom or lan-
guage, which required special comment or explanation. The
most important passage, as indicating the probable date of
the composition, is the statement relative to the four rights
to which it was proper that a king should pledge his people,
the first of which L'! stated to be "a right to help him to
drive out foreign races, i.e. against the Saxons.". Assuming
that these latter words are not a glos'! which has crept into
the text (and there is no reason to believe that they are),
the date of the work must coincide with a period at which
the Saxons were regarded a!' the enemies par excellence of
the Irish people, and not merely as a hostile, but as an in-
vading race. It is obvious that no Irish writer would have
singled out the Saxons as the special enemies of the Irish
during the period covered by the Danish invasions, nor after
that date until the Sa..-..:on had, in the mind of the people,
been substituted for the Dane as their natural enemy. The
date of the work must therefore be either before the end of
the eighth century, or after the English invasion, the period
covered by tne Danish invasions being absolutely excluded.
The early relations of the Irish and Saxons were of the most
friendly character, and naturally so as the Irish were then
busily employed in plundering, and perhaps to some extent,
conquering, their christian and Celtic neighbours across the
channel. This point is thus discussed by Dr. W. K. Sullivan,
in the following passage of his preface to the Lectures of .Mr.
O'Curry :-" The common object of attack, Roman Britain,
brought the Irish and
axons in contact at an early period.
And this intercourse \\ as, on the whole, of a most friendly
character. The hostility of the two peoples appears to
have first arisen in consequence of the quarrels between the
* r,'gl' 335.
ch"vi
IXTRODUCTIO
.
Irish and Saxon churches. Political causes helped to de-
velop this. hostilit.y as soon a,> the Saxon dominion extended
to the north of England, and the Saxon kings of .Northum-
bria came into direct contact with the Scotic kingdom es-
tablished in Scotland. The wars carried on hy the Sa..'wn
kings against the Scots and Picts involvc!] the Irisll in t!w
quarrels of their brethren in Scotland, and led to the ravag-
ing of the coasts of Ireland by the .Saxons. Venerable Bede
records an expedition of this kind sent in the year A.D. 684,
by Ecfrid, King of the N orthumbrians, under a commandpr
named Beort, . which miserahly wasted that harmless nation,
which had been always most friendly to the English, inas-
much as in their hostile rage they spared not even the
churches or monasteries.' It is in the seventh century that
we find mention for the first time of the Saxons as enemies.
The first notice of the Danes or Norsemen occurs in 790, or
more cOlTeetly in 795. Mter that date, and until thc arrival
of the Norman,>, the Danes alone arc mentioned as hostile
foreigners. This circumstance is of very great importance
in connexion with the date of the law tract, the C;'ith Gabh-
filch." After citing the passage ahove refelTcd to, he pro-
ceeds :_U If this example be not an interpolation of much
later times, it shows, taken in connexion with other circum-
stances, that the important document in question bclongs to
the period anterior to the Viking expeditions, and in all
probability to the middlc or erid of the seventh century.".
[f this view of the meaning of the pa.c;sage be correct, it fol-
lows that one plundering expedition against the Irish sea-
board so profoundly affected the national mind, that the
Saxon was held by the people a.'! a national enemy to be ex-
pelled from the island which he had invaded. No allusions
to the Saxons as such enemies are cited from any of the early
Brehon Law tracts or popular romances; no act of hostility
save one isolated plundering cxpe(]ition is refelTed to; and
it is to be remarked that after this event the SaxonR at least
were ignorant of any hostile relations existing between them
and the Irish; Bede reprobates the expeùition as a wanton
*l\Ianncrs and Customs, &c., TO\. i., p. XXXyi.
I
TRODUCTIO
.
clxxvii
attack on a friendly nation; anti at a later date Alcuin was
()f the same opinion, when, in a passage quoted by Dr. \V.
K. Sullivan, he described the Irish as "gentes Scotorum in-
nocuas Anglis, et semper amicas."- The passage of the tract
referred to would rather lead to the conclusion that the date
.. The details of this raid, as related by the original authorities, are a proof rather
of the friendly terms which always subsisted between the two nation., than that
its result was to establish permanently hostile relations. The entire passage in
Bede is as follows: "In the year of our Lord's incarnation 684, Egfrid, King of
the Korthumbnans, sending Beort, his general, with an army into Ireland, miser-
ably wasted that harmles. natiou, which had always been most friendly to the
Engli.h; insomuch that in their hostile rage they spared not even the churches or
the mona<teries. The islanders to the utmost of their power repelled force w1th
force, and, imploring the a<<i.tance of the Divine mercy, prayed long and fen'ently
for vengeance; and though <uch as curse cannot pos.e<< the kingdom of God, it
is belie\"ed that those who were justl)" curi!ed on acconnt of their impiety, did
Soon suffer the penalty of their guilt from the a\ enging hand of God; for the
ver}' next year that same king, rashly leading his army to ravage the pro\ inces of
the Picts, mneh again.t the advice of his friend., and particularly of Cuthbert of
ble<<e.l memory, who ha'] been lately orrta;ned bishop, the enemy made show as
if the}' fled, and the king- was drawn into the straits of inaccessible mountain.,
and slain with the greater part of his forces, on the 20th of May, in the 40th year
of his age, and the 15th of his rei
rn. Ilis friends, as has been said, advised him not
to engag'e in this war; but he ha\ ing the year before refused to listen to tbe most
reverend father, Egbert, a,h ising him not to attack the Scots, who did him no
harm, it was laid on him as a punishment for his sin, that he !lhou1d not now
regard those, who would have prevented his death. "_u Eccleøw.tical IIi_tory,"
Lib. IV., c.
6.
The Saxon Chronicle states -" A. D. 684. Here in this
ear Egfrid sent an army
llgainst the Scots, and Beorc, his alderman" ith it, and miserably they plundered
11m! burned the churches of God."
The Saxons at least considered this raid a _in, and believed the king's subsequent
death was a signa! Dh ine chastisement.
The foHowing is the statement in the Four Masters: "The age of Christ 683,
the 10th year of Finachta. The de\a..tation of l\Iagh.Bre
gh, both churches
and territories by the Saxons, in the month of J nne precisely; and they carried
off "ith them many hostages, with many other spoils, and afterwards went to
their ships."
The same raid is mentioned in the Annals of Ulster under the ye'V Gael, an,l in
the Annals of Clonmacnoise under the year 680.
The captives taken upon the occa.ion of this raid were restored by the Saxons:
" Adamnan went unto the Saxons to request [a reotitution of] the prisoners, whom
the Korth Saxons had carried off from 1I1agh Breagh the year before mentioned;
he ohtained a restitution of them, after ha\ ing performed miracles and wonders
before the hosts; and they afterwards gave him great honour and respect, together
with a fun restitntion of everything he a.ke'] of them." The Four Masters, Vol I.,
p. 291. The Annal. of Clonmacnoise, um!er the year G8G, ,tates that, " Adamnan
m
clxxviii
I
TltODCCTIOX.
of the wurk must be brought down to some date after the
English invasion, lmlpss there be internal evidence which
would render such a conclusion improbable; and, if the date
be so far postponed, it must be referred to a period consider-
ably suhielluent to the first invasion, to that at which all the
Irish tribes stood in a hOHtile position to the English king,
and the invasion was at length successfully checked, or at
the earliest date, to the first quarter of the fourteenth cen-
tury.
There is also internal evidence which, indepeIlflently of the
passage refened to, wmùd lead to the same conclusion.
The must remarkable change in the organization of the
early Irish Church was the substitution of an episcopal for the
monastic system. In the earlier form of church government
the abbot, not the bishop, was the ruling ecclesiastic; the
.. coarb " of the original saint was the head of the ecclesiastical
tribe; the pre-eminence and territorial jurisdiction of bishops
arose at a date long subsequent to the commencement of the
Danish invasion. Is it probable that a treatise descriptive
of the ranks of society, if written during the life of Adamnan,
and the vigorous existence of the Columban monasteries,
wuuld omit any allusion to an abbot, and speak uf the bishop
as travelling" for the good of the church and the territory,"
and as of rank equal, if not superior, to the king of the
tribe? There is furt.her no allusion whatsoever to the
geilfine system, nor to the geilfine fiaith as representing his
" fine," and therefore an important item in the social system
brought back sixt)' captives to Ireland." In the Annals of Ulster, under the same
year, there is a similar statement.
It thDrdore appears that this invasion of the Sa"mn amounted merely to a raid
a ong the coast between the rh ers Lilley and Boyne; that all the restitution
suught by Adamnan on behalf of his country was freel)' accorded; and that the
inroad was regarded b)' the English as a sinful ,iolation of their friendship with
an allied nation, And it the more remarkable that upon his retnrn to Ireland
Adamnan sucæeded in introducing into Ireland the Roman mode of computing
Easter, which pro,'es that at that .Iate the lri<h cherished no peeuliar feelings of
animosity tmvafll tile English or their ecclesiastical usages. (Se. Be
Eee. llist.,
].ib. V., c. 1:;.)
All the aho\ e rderences are contained in the nutes to Dr. O'Dono"an's editiun
"I the" Four
I.lsters:'
I
TRODUCTIO
;.
clxxix
-a very remarkable omission in a treatise of the character
of the present. The condition of society exhibited in this
work is that of the tribe system in state of decay and
decadence, and rapidly tending to russume a feudal form.
The simple freeman has sunk to the condition of the Saxon
ceorl; the tribe lands have, to a great extent, if Hot altogether,
been monopolized by the noble classes; the political power
has passed into the hands of the chiefs and greater nobles;
all classes, from the highest to the lowest, are bound together
by the semi-feudal bond, founded upon the system of lending
out cattle; all classes are rated for the payment of tribute to
their superiors; and the basis of society seems rather to be
personal service than the common rights of the members of
the tribe. Except for the survival of ancient terms, and some
archæic rules and peculiarities arising from the absence of a
circulating medium and the material conditions of the
people, the condition of the country, as thus described, was
not very different from that it exhibited in the last century.
This is the opinion of lIIr. O'CUITY, as expressed in the
following prussage :-" It is not very easy to translate into
modern language the technical terms of the ancient law of
Landlord and Tenant; but a very well matured system
existed at a very early period indeed, under which, although
there was no such thing as absolute property in land in any
individual, still, within the tribe, individuals held exclusive
property in land, and entered into relations with tenants for
the use of the land, and these again with undertenants, and
so on, much as we see in our own days. Now these relations
constitute the first test of rank and condition. The Flaith
-a word in some sense may be translated the Lord or
Nobleman-was distinguished by being the absolute owner
(within his tribe) ofland for which he paid no rent, so that,
if a man possessed but a single acre in this way, he was a
Flaith. All other persons holding land held it either from
a Flaith or from some tenant of his; and the rank and
precedency of these persons depended upon the amount of
their possessions."- Although there are many statements in
· Manners and Customs of tile Anci"lIt Irbh, vol. ii., page 34.
'lYL 2
clxxx
I
TlWDV\JTION.
this description to which exception may be taken, it fairly rc-
presents the practical condition of the Irish as depicted in the
Crith Gabhlach,!>ubject to the materialcorrtction that such was
not the original system of the Celtic tribe, but rather the
condition to which the tribe had been reduced at the date of
the composition of this work. The same causes were at
work in Ireland as elsewhere, and with the same results.
The chief" and nobles had succeeded in crushing the lower
orders, and had converted into their own separate property
the land originally the common property of the tribe. The
Crith Gabhlach might fairly be described as a compendium
of the rights and emolument.'.; of the higher classes, of their
house tributes, rents, cuttings, and costeIÍngs, and is not
dissimilar from the old law IJook of the Brehon whereby the
English commissioners "perceivell how nmnyvesseb of butter,
and how many measures of meal, and how many porks, and
other such gross duties did arise unto M'Guire out of his
mensal lands.".
It is not to be concluded that any Irish tribe or province
was ever actually organized in strict conformity with
the rules laid down in this tract. It is impossible to
believe that a nation so mobile and turbulent as the Irish
Celts lived under a system so rigid in its laws and pedantic
in its minutiæ; that the di.tft'rent classes possessed so much
and no more than the amount of pr0perty herein set down
against them; inhabited houses of precisely the prescrihcJ
size, furnished in the manncr described, and supplied with
the farming instruments directed; that the occupiers of thcm
paid so much and no more than their custonl:lry rents; and
that the whole society, from the provincial King downwarrls,
were bound, and acquiesced in, a complete system of semi-
feudal service. The work must be considered a'.; a description
.Æ society fully organized according to the current legal
theory at the date of its composition; hut it can no more be
assulDed that the e""\:isting community accurately corresponded
to the legal theory, than that the condition of England in the
· ..\ntc, '01. \ii., l.\gc
G.
IXTROD"GCTI.JN.
clxxxi
twelfth century, was such as Blackstone's sketch of the feudal
ISystem assumes it to have been.
The Crith GabhhlCh treats of the various ranks of the
freemen of the tribe, their mutual rights and duties, and
the power and privileges of the King; the unfree classes
of the community are only refeITed to in connexion with
the rights and qualification,> of the free.
The author lays down as the cardinal principle that the
proper grade of the layman among the people is determined
by the amount of his property. The number of cla&ses of
men is stated to be sewn. That this number was select
d
as the sacred number, and was not in accordance with the
actual state of facts, appears ii'om the statement of the
author himself, and the mode in which the division in
classes is varied in different passages. The grades of a
people are stated to be as follows :-(]) the" fer mbidboth "
man, (
) the "bo-aire" chief, (3) the "aire-desa" chief,
(-t) the" aire-ard" chief, (3) the "aire-tui:òc" chief, (G) the
" aire-forgaill" chief, and (7) the king. This sevenfold
division is stated to be derived from the similitude of the
ecclesiastical orders, "for it is proper that for every order
'" hich is in the Church, there should be a corresponding one
among the people.".
The two first classes rcpre&ent the iree but not noble, tbe
latter five the free and noble.
The divisions of the noble class are then slJecified, and the
number of them is again seven, viz. :-(1) the" aire-desa," (2)
the" aire-echta," (3) the" aire-ard," (4) the" aire-tuisc," (,j)
the" aire-forgaill," (6) the "tamaise" of a king, and (7) the
king. To complete the number seven in this, two further
classes are introduced, the" aire-echta" and the tanist; the
latter of these was an official person and not a class of indivi-
duals, and the same observation is applicable to the "aire-
echta." The non-noble classes are classed as folIo\\ 8:-(1) the
two grades of "fcr-mbidba" men, (2) the" og-aire," (:
) au
"aithech" per:-.on, (4) the "bo-aire febhsa," (5) the "mbruigh-
fher" man,(G)the "fer-futhla" man, amI (7) the " ail'e-coisring "
* rage 2
J9.
clxxxii
I:\TRODUCTIO
.
man. The seven classes arc here again completed, first
by the introductiun of the "aithech," a very anomalous
dass, as subsequently explained in the text, and by the
addition of the last three, viz., the" mbruigh-fer," the" fer-
fothla," and the" aire-coisring," two of which are the names
of officers, and not of classes.
The :o1cheme of classiticatiun used by the author of the
tract on Precinct.,>, must have been different from that
of the author of this tract; for he also, tlividing the
society into seven classes, states the two luwest to be the
" bo-aire" and the "aire-desa," and the highest to be the
king, omitting to give the llames of the four intermediate
divisions, and, with reference to the extent of theil' pre-
cincts, he fixes their rank upon the ba::;is of a geometric
progression, a gradation inconsistent with the ratio of thcir
properties and honor-prices as fixed in this treatise.
The several ranks are divided with reference to the amount
of property requisite to qualify for cach respectively, and
from and in the proportion to the requisite amount of pro-
perty follow their right.,> and privileges (some of which we
should now class as duties): (I) the legal value attributed
to their oath, contract, guarantee, and evidence; (2) the
honor-price; (3) refcctions, or the nature and amount of
food they should receive from a host; (4) sick maintenance;
(5) the extent to which they could give protection to a third
party who claimed it; (G) the" taurcreie," or the amount of
stock to be delivered to them by the superior to whom they
commended themselves (the commendation to a lord in Con-
sideration of the" taurcreic" might be oppressive or advan-
tageous to the inferior, according to the circumstances of the
time); and (7) the "bes tigi " or house tribute, payable in
kind by the inferior to the superior to whom he had
commended. himself.
The following analysis of the necessary qualifìmtions and
rights of the several classes will render the relative positions
of the respective ranks clear.
I
TnoDucrlOX.
c1xxxiii
A.-THE l'ÇoK-KoBLE CLASSES.
1. The "m bidboth" man. This class is sub-divided into
two sub-classes, viz., the" mbidboth " man who had attained
the age of fourteen years, but not yet that of sennteen years,
" unless he has taken pos:;;ession or succession before that, or a
man of the Feini g1'ade be a co-occupant with him," i.e., unless
he is himself in possession of a house, or be the joint occu-
pant of one with a free man oHull age (?), and the "mbidboth"
man who had attained the age of seventeen years. The oath,
contract, or guarantee of the fm mer extended to the value of a
" clairt " heifer; his refection was milk and stirabout; his
protection extended to one of his own grade over the terri-
tory; his honor-price was a "dairt" heifer. The value of
the oa th, &c., of the latter was a "col pach " heifer; his pro-
tection extends to one of his own rank until he has given
him double food (two meals?); his refection was milk and
stirabout; his honor-price a " colpach " heifer; his propor-
tionate stock (taurcreic) was four " s
ds" in value; his food
rent (bes tigi) a wether; his sick maintenance for himself
and his mother new unskimmed milk every third, fifth, ninth,
and tenth day, and also on Sunday.
It appears from this that the very luwest elass of freemen
were not, as has been stated, wholly devoid of property;
they are prcsumed to possess a Louse, in respect of which they
may be required to pay food rent to a superior, and they had
a :;;hare, however small, in the common pasture, otherwise
they could not Lave availed them:o,elves of the proportionate
stock (taurcreic) they might receive.
2. The Bo-aire or enriched churl. The "mbidboth"-man,
upon acquiring the necessary amount of property, became
ipso facto a " bo-aire " chief, because, in this cruse, there was
no change of status, rus in the transaction afterwards nlell-
tioned from the non-noble to the noLle class. This increase
is attributed tú the profit" made by stock recei\wl from a
lord in the first instance; for he is assumed to have com-
mended himself to a lord; such would seem to be implied
11)' the rule :-" In three days after notice half a portion
clxxxiv
niTRODUCTIO
.
(of fencing 1) is due from him for a field; a third part of
the fee for his theft, and his drunkenness, and his laming,
and of ' eric' fine for killing him. goes to his chief ;" the
chief, hi
lord, has a right to a certain amount of his labour,
and a share in all damages for injuries done to him.
A. The lowest grade of the general class of "bo-aires" is
the" og-aire," that is a young-aire, one who lately acquired
the rank of a "bo-aire ;" his property must, therefore, be
assumed to be the minimum sufficient to quality for that
rank. His property consists" of sevens;" seven cows and
a bull; seven pigs anù a hoar; seven sheep, and one horse.
The change in his position is markcd by the statement that
"He has laml of tl1l'ee seven (21) cumhal value." The rigM
to the land is connected with the possession of stock; but
if a cumhal of land means enough land to graze a cumhal
of cattle, or three cows, it would follow that he obtained
f<razinn' land far in excess of that which was necessar y for
b 0
his assumed stock. That the lands of a " bo-aire " may have
far exceeded what was requisite for the grazing of a stock
of "sevens," appears from the statement that there might
be four or five "aitLechs" on the land of one" bo-aire ;"
and as each" aitbech " is defined as possessing ten cows, ten
pigs, &c., the author must have contemplated the case of a
" bo-aire's " lanùs being sufficient to graze fifty head of cattle,
besides lesser beasts. The land held by the" bo-aire" was
not his separate property, for there is a distinct reference to
his paying one out of seven cows for the use of the land.
The difficulty in understanùing the "bo-aire's" position
arises fmIll their being no explanation of how or from whom
he obtains the thrice seven cumhals of land. Stock, not
land, is what the lord gave to the man who commenùed
himself to him; thnt it was stock which was given pre-sup-
poses that the inferior receiving the stock had, inùepenùently
of his lord, the means of grazing them. It. may be assumed
that the proportionate stock given to tbe freeman not pos-
sessing other cattle, i.e., the "mibdboth"-man fixes the share
in the pasturage lands of a tribe to which each freeman
was absolutely entitled, and that the right to put a larger
I
TRODUCTIOX.
clxxxv
amount of stock upon the common pasture land, was connected
with the actual amount ûf f;tock possessed by their owner j
but that for every additional seven cattle put upon the lands,
one was left as the payment for the year's grazing-the
profits of the waste grazing lands would probahly in the
end be monopolized by the chief, as the English feudal lords
of manors contri ved to possess themsel yes of the waste. The
" og-aire" also possessed one-fourth share in a plough, an ox,
a plough-share, a goad, and a bridle, and a share (qneTe, one-
fourth) in a kiln, a mill, and a barn. His house was nine-
teen feet in length, with an out-house of thirteen. His
proportionate stock was eight cows; his food-rent was a
" dartaidh" heifer. His refection extended to two men,
who were entitled to no more than milk and stirabout, and
a certain amount of new or SOur milk and cakes. The pas-
sage which describes the extent of his evidence, &c., and
the amount of his honor-price, is very remarkable. It
appears from a su hsequent passage that the normal amount
of the honor-price, and legal value of the oath, &c., of a
bo-aire, was five sed'! ;if. but in the case of an "oc-aire," this
was reduced to three sedS' which fact is thus explained:-
" And the two seds, which are wanting to it (Itislw1t01'-price)
(tJ'e
canting, because the stability of his house is not per-
fect, and he is not competent to undertake liabilities for
them, like every other "bo-aire" for the smallness of his
property,t from which we must conclude that the new" bo-
aire" was not a full" bo-aire," anù did not obtain the full
rights incident to his rank until some subsequent period.
B. Theseeond sub-division of the "bo-aire" is the "aithech,"
who is distinctly stated by our author not to be a " bo-aire,"
hut why he was not so considered it is difficult to discover,
His property exceeded that of the" og-aire;" his stock was
" ten," i.e., ten cows, ten pigs, ten sheep, &c.; his house was
twenty feet in length, with a kitchen of fourteen; the value
of his oath, &c., anù his honor-price was four seds; his pro-
portionate stock was ten cows, and his food-rent the choiccst
of a herd of cows, and a bacon, four sacks of malt, and a
· Page :::09.
t Page 307.
clxxxvi
INTRODUCTIO
.
wooden vessel of salt; hew3s entitled to refection for two,milk
and stirabout, butter on Sunday, venison, sea-grass (1), onions
and salt. His property and social position was superior to that
ùf the" og-aire," and he was not considered as of the" bo-
aire" rank, but what was styled" an inllnovalJle tenant." The
rcason given for this is as follows :-" What is it that puts
this man from Leing in the mnk of a ' Lo-aire l' BecauHe
it may be that four or five such may occupy the land of a
I bo-aire,' and it could not 1)e easy for each of them to be a
, bo-aire.' ". What is very noteworthy as to this class is
the disproportion of the food-rent to the other incidcnts of
his position, and proves some uncertainty as to his status.
He, although possessing cattle, is described as grazing them
upon the land of a "bo-aire;" hut as a ." bo-aire " is not
described as having any land of his OWll, it must mean that
he was some kinù of sub-asHignee of the" bo-aire's" grazing
rights, and that the transaction bore somc resemblance to
the grazing partnerships refeITed to in the Book of Aicill.t
c. The" bo-aire" febhsa, or the wealthy" bo-aire," is one
who has acquired the full rights of his class. His property
is larger than that of the "og-aire"-he has twelve
ows and
twice seven cumhals of land, a house of twenty-seven feet
and a back-house of fifteen, a share in a mill and a kiln,
barn, sheep-house, calf-house, and pig-stye. As before
remarked, the value of his oath and his honor-price were five
seds, his proportional stock twelve cows, and his food-rent a
male" colpach" heifer with its accompaniments.:
D. The next class, the "mhruighfhcr" is evidently an
official of the" bo-aire" rank, not an independent sub-division
of the entire class. He is "the I 10-aire' for obedience to
judgment." His property is reprei'ented as twenty cows,
two bulls, six bullocks, twenty hogs, twenty shepp, four
house-fed hogs, two sows, and a horse, and he has also six-
teen sacks of seed in the ground; he has a lawn for sheep
ahout his house, a house of twenty-seven feet, and It
back-house of seventeen feet, and outhouses. The value of
his oath, &c., and his honor-price, ar
six seds. His )lropor-
to Page 309. t Ante, Vol. III., page U:!. t Page 311.
I
TRODLCl'lO
.
clxxx vii
tionate stock was two cumhals, and his foot-rent a cow with
its accompaniments.- The very peculiar enumeration of
fines for all conceivable injuries to himself and his property
prove that he occupied an exceptional position. It would
seem that he was in some way bound to offer hospitality
to a' king, a bishop, a poet, or a judge " from off the road,"
and that his supply of eatables for such purpose was por-
tion of his" obedience to judgment."
E. The highest uf the members of the "bo-aire" class is
described under the title of the" fer-fothla chief," and was
so called because his cattle having become too numerous for
the grazing which he himself possessed, he had commenced
to give them out to others as taurcreic, or additional stock.
There is no amount of property fixed as the necessary quali-
fimtiou for this rank, the test of the qualification for which
was that his property was in excess of his means of supplying
necessary grazing. The amount of his honor-price and the
value of his oath, &c., is eight seds, his house was twenty-
seven feet in length, with a back-hou'le of seventeen. His
proportionate stock was four cumhaIs, and his food-rent a
cow with accompaniments one year, and a male colpach
heifer the other.
A "fer-fothla" chief manifestly stood at the head of the
" bo-aire" class, fur it was the" fer-fothla" who is described
as passing from the non-noble to the noble grade in the
manner subsequently discus<;ed.
F. The" aire-coisring" chief is evidently an official person,
and not a sub-division ofthe " bo-aire" class. He is described
thus :-" \Yhy is the' aire-coisring' (i.e., the binding' aire')
so called? Because that he Linùs people, king, and synod
on behalf of his tribe (cenel), in their rights of safety by
verLal engagements; but they concede to him leadership,
and a right to speak before (or for) them. He is the family
chief then. He gives a pledge for his family to king, aIllI
synod, and professional men, to restrain them in obedience."t
His honor-price and the value of his oath, &c., were fixed at
eight seds. His house was thirty feet in length, and the
· P
'6e :.H 1-
t Page 3] 7.
clxxxviii
HiTRODCCTION.
outhouse nineteen. His proportionate stock was five cum-
hala, and his food-rent a cow with its accompaniments, amI
a male" culpal:h" heifer, with its proportion of other food.
No amount of property is fixed as a necessary qualification..
The" aire-fothla" pmssed undcr pcculiar circumstances from
the" bo-aire" cIa,>:;; into the noble cIa:>s-that of the" flaiths."
These are eXplained in the following pa
sage of the teÜ :-
"'Vhen docs the' Aithech' -tenant become a chief ha viug the
bo-airich-ship 1 Upon going into a true green (the extent
of precinct suitable to the rank of a flaith). When he has
as much as the' aire-desa,' it is then he is an aire-desa, &c."t
'Yhen we turn to the explanation of an "aire-desa" dlÏef's
qualifications in a subsequent page, the following passage
occurs :-" And he is the son of an ' aire,' and the grandson
of an ' aire.' "t The" bo-airc-fothla" chief did not atbtÏn the
rank of a" flaith" by merely purchasing an acre uf land, for
there is no reference to land in the transaction; nor did he
acquire it by virtue of posscssing merely the }Jroperty of a
" fiaith," for his property was required to be double of that
at which a "flaith-desa" was valued, nor again could he be
considered a" fiaith," unless both his father and grandfitthcrs
were" aires," which must mean something more than they
had been" bo-aires." That there was some element of here-
ditary descent requisite to fix the social position of a " flaith"
all analogy leads us to expect. 'rhe elevation of a .. bo-aire"
to the rank of a flaith was not simply cqui valent to his being
rated at a higher valuation. He acquired what was called
the" deis" -right, which is thus defined in the text :-" What
is the deis-right of a 'Haith' 1 The goodly right to protect
his office 0/' Tanl
. There are four' deis'-rights prescriùed
for the ' Haith' -chief. The ancient prutection of the people
(or territory) is his office in the territory, together with the
office of leader, or 'tanist'-leader of the lLi'lny, whichever
office it may be, of his' giallna'-tenants, his 'suer-tenants,
his' sen-cIeithe' -tenants, the punishment of every imperfect
service, the following of cottier tenants and' fuidhcr'-tcnallts
.. l'aj;e 31f1.
t Page 317.
t I'a
e :t!l.
IXTRODGCTIO
.
clxxxix
whom he brings upon his land, because his wealth is the
greater and better."- And again, " 'Yhy is the' aire-desa'
so called? Because of the fact that it is on account of his
'deis'-rights that he is paid' dire-'fine. Xot so the' bo-aire'
chief; it is in right of his cows he is paid' dire' -fine."t
Upon this subject Mr. Hearn makes the following ob-
servations :-" Among the members of the cJan itself, within
the 'cinel,' in the striet sense of the term, and apart from
the exeeptional privileges of the royal house, there was a
well-marked difference. That difference was between the
noble and the free, or, as it may otherwise be expressed, be-
bvpen the gentle and simple. Both classes were equally
members of the clan, and, to a certain extent had equal
rights. But both by public opinion, and by the custom
which supplied the place of law, certain sections of the
community possessed, in comparison with other sections
thereof, an acknowledged superiority. Their deseent wac;;
purer; their wealth was greater; their wer.geld was higher;
their share in the public lands, or in the distribution of
booty, was larger; they were the natural leaders of the
community in war, and its natural councillors in peace.
Accordingly, we observe in the eady history of all Aryan
nations, the presence of what may be called a natural
aristocracy, as the leaders and kinsmen of a natural demo-
cracy. It is not difficult to understand that some households
should be mure prosperous, more numerous, and more
wealthy than the others. Yet these advantages are rather
the effects than the cuuses of such a difference as that
which we are considering. Even if there were no evidence,
that in at least certain societies, land was distrihuted accord-
ing to the rank of its holders, they are inadequate to explain
all the facts of the case. They may account for the differ-
ence in modern society, where individuals rise and fall with
a rapidity unknown to archaic nations; but they do not
explain the strongly marked lines, which intersect the
society of the ancient world. The preceding inquiries point,
for the cause of the difference, to some sentiment connected
. Page 3:?1. t Page 3
1.
cxc
IXl'UODUcrlO
.
with the peculiar religion of our forefathers, and conse!] uentl y
aflècting their descent. The facts correspond with the ex-
pectation. A certain series of pure descents was sufficient
to estaLlish freedom, and a share in the government of the
community, and in the distribution of lands; but another
and a larger series was necessary for the full enjoyment of
all the honours and all the consideration which the com-
munity could give." " The rule of nobility seems to be the
result of two other rules. One is that fundamental
principle of taking the common great-f.'l.'andfather as the
stock or founder of the joint family or :Mæg; the other is
the rule of the Three Descents. The effect of the latter rule
was, that for the purpose of acquiIing full rank in any par-
ticubr status, the claimant must Hhow that his father and
Loth (1) his grandfathers had held that status. Oonsequently,
a man who claimed to belong to the nobility of the clan must
show that his grandfather was noLle-that is, that his grand-
father had a kin, or in other words, had a great-great-grand-
father who was a freeman." After refen-ing to various other
archaic systems of law, :Mr. Hearn makes the following re-
marks upon the existence of this rule among the Celtic
nations :-"The Celtic nations also exhibit traces of a
similar custom. In Cymric law, the descendant of the
original Altud or stranger to the district, was, after the lapse
of three generations, ranked as a" Briodwr j" and thence-
forth became irremovable, and was entitled to his share in
the lands of the 'vicinity.' In Scotland a similar rule ap-
plied to serfs, although it is possible that in this case the
rule may have been introduced from England. In Ireland
the descendants of a Bo-aire, or CeOl'I, might aspire, when
they possessed land (1) for three genemtions, to become
Flaths.". So, too, ., A' FuidldT' Dunilyt in the fourth gene-
ration-indeed, in the third, for the Door Botaeh had also
right of settlement-could not be ejected from the land.
That is, the third tlùscendant was capable of transmitting
heritable right, and the fourth of ltC!ll1Ïsition by virtue of
such right." As a curious exemplification of this principle,
.. !\IanncTs and Cn
toms, &c., Vol. I., p. cix. t lb., p. cxxi.
.
IX fnODUCTION.
CXCI
Mr. Hearn refers to a passage in the Introduction of the
preceding volume relative to the c1aims of his original
church upon the property of a former member.- Upon the
pr:,ctical working of this rule !1r. Hearn further remarks:
-" These considerations indicate the triple distinction of
the ancient free population. It consisted of freedmen, of
freemen, and of nobles. The distinction rested exc1usively
upon blood, and could not, therefore, be removed by grant
either of people or of King. By the operation of time, if
there were no disturbing influences, each lower dass natur-
ally passed into the one next above it. Each step of the
promotion brought with it increased consideration, additional
strength and influence, by reason of a more numerous
kindred, and more extended alliances, and no small material
advantage, both direct and indirect. At a later period, when
the depemlent portion of the hom,ehold Lecame developed,
and the Gesimlsch1tft was established, other varieties of rank
arose. Nobility was then derived, not from birth, but from
official position, and attendance upon the throne."t
The itlpa of" limitation" in the Irish law was connected with
three successive lives, either of three persons in lineal de-
scent, grandfather, father, and son; or of three successi" e Ovcr
lords, as in the case of Daer Fuidhir tenants,t or of three
successive owners, as in the case of rights of water. The
sallie idea of three, or its multiples, being the basis of such
calculations, also appears in the passage in this tract, stating
that cottiers and .< fuidhir" -tenante;; been "senc1eithe"-
tenants, and irremovaole after serving for Iúne times rune
years.
We may now proceed with the analysis of the remaining
ranks in the tribe.
· Vol. I II., p. lxix.
t These extral'l' are selected from the VIllth Chapter of " The Ar.ran House-
hold," pp. 1!J3 to 209.
::: Up,.n this puint 1I1r. Hearn ,",ems to have fallen into error.- V.S.
CXCll
I:\THODI;CTIOY.
B.-TuE NOBLE CLASSES.
1. The "airc-desa".-The property with refercnce to which
this and the subsequent clasl> are arrangcd, is manifestly
land, as the number of the tenants of each is respectively
stated, as in the non-noble classes the number of their cattle.
The tenants of the" aire-desa" were ten, five " giaUna," and
five" saer "-tenants. The amount of food to be furnished by
the tenants is stated in detail. An incidcnt to the right of
fea<;ting at the houses of his tenants (" coshering ") was thc
number of pcrsons whom hc might take to their houses from
the" Calends" to Shrovetide; tcn couples are the number
specificd in this case; in return he was expected "to pro-
tect his tenants in aU just suits of ' cain' law and 'cairde'-
law, standing towards them in the relation of a p:ttron to his
clients. The legal value of his oath, &c., and honor-price
was tcn ' seds '; the length of his housc twenty-seven feet;
his proportionate stock was six ' cumhals,' amI his food-rent
two cows.".
2. The" aire-echta " was an offieer of the tribc, and does
not represent a class; this is obvious beeause no property,
qualification, rights, or liabilities, are specified in his case.t
The duty of the" aire-echta" was" to avenge the insult offered
to a territory in which a person was lately killed;" he was
an appointed avenger of wrongs. This is illustrated by thc
case of the blinding of Cormac Mae Airt, " Acngus Ga.blmai-
deeh" was an "aire-echta" (translated" champion "), who
was avenging a family quarrcl in the territories of Luighnc,
and he went into a woman's housc there and drank milk in
it by force; and thc woman said, " It were Letter for thee
to avenge the daughter of thy kinsman upon CeUach, son of
Cormac, than to consume my food by forcc."; Aengus there-
upon at once proceeaed to Temhair and slew CeUach; the
point of the story seems to be that the woman reproached
the "aire-echta" for plundering her under colour of avenging
a family quarrel, while hc left unperformed the more im-
portant and dangerous duty of slaying the king's son for thc
abduction of one of thc womcn of the trihc.
.. Page 321. t Page 223. : Ante, VIII. III., page 8;;.
IXTHODGCTION.
CXClll
.
3. The "aire-anl." He had twenty tenants, ten giaIlna,
and ten" saer "-tenants; twenty couple were "his right on
a fea.sting;" his honor-price and the value of his oath, &c.,
was fixed at fifteen seds; his proportionate stock was seven
cc eumhals," and hi
food rent three cows. There is no state-
ment as to the size of his house..
4. The "aire-tuisi," who had twenty-seven tenants, fifteen
" giaUna" tenants, and twelve "saer" tenants; he ha.l
thirty couples at the feasting. The value of his oath, &c.,
and hili! honur-price was fixed at twenty" seds "; his house
was twenty-nine feet in length; his proportionate Rtoek was
eight" cumhals," and four cows his food rent. The aire-
tuisi in the thinl generation participated in the government
of the tribe. "He makes ('lssist:s in making 1) 'corns '-ar-
rangements in the 'raith' right of his father and grand-
fitther."t
5. The" aire-forgaill " stood in rank at the head of tho
nobles, and next to the king and tanist; his position is
marked by the words" he testifies to the cluu'actcl' of the
grades we have enumerate(l, in every case in which a denial
of a charge is sought, because his quality is superior to that
of his companions." This passage might lel,,1 to the conclu-
sion that the cc aire-forgail" was an official who had the
power of deciding the status of the individual members of
the tribe, but ina<;Illuch as the" aire-forgaill " chief is intro-
duced into the list of titles of dignities iT. the Rubsequent
tract, although the" aire-echta " is omitted, it IS probably
that the name indicates a cla<;s, not an office, and that the
right to give evidence as to the status of a member of a tribe
was incident to the position of the first class of the nobles.
He hall forty tenants, twenty "giallna" and twenty "saer"-
tenants; the value of his oath, kc., awl honor-price was
fixed at fifteen sells; his hou<;e was thirty feet in length;
his proportionate stock nine "cumhals," and his food rent
five cows.
6. The" tanist" of the king or his electell successor. He bad
five" seneleithe "-t:mants more than an "aire-forgaill"-chiet
.. Page 32;;.
t P.lge 321.
::: Page 329.
,t,
CXCIV
I
THODUCTION.
from which it may be conjccturCfl that his father and grand-
father must also have been "aire-forgaill" chiefs. His honor-
price and the value of his oath was fixed at thirty seds; ten
" cumhals" were his proportionate stock, and six cows his
food rent. There is no reference as to the Rize of his house,
or his receipts from his tenants, which may be a
sumed to
have heen considered the same as those of the "aire-forgaill"
chief, and it is pTobable that the additional five" sencleithe "-
tenants, which he is stated to have, were not in addition to
the number of the tenants required for the rank of an aire-
forgaill, but are introduced to indicate that his tenants had
acquired the position of "sencleithe "-tenants under his
family, as a pToof of the status of the tanist himself.-
7. The king. This rank is sub-divided into three classes:-
A. A king of hills or of horns; the term is not easy of ex-
planation; it, however, is used to designate the position of
the head of a fully organized tribe. Naturally no property
qualification is annexed to this rank. His honor-price and
the value of his oath, &c., were fi"ed at seven "cumhals ";
his proportionate stock was twelve" eumhals," and his food
rent six eowS. The size of his house is not stated.-
. B. A king of companies, the head king of three or four
reguli. His honor-price and the value of his oath, &c., were
fixcd at eight "cumhals," for which amount his "Rick
maintenance" was to be eommuted; his proportionate stock
was fifteen" cumhals," and his food rent eight cows.t
c. The head king, whose supreme position is indicated by
the passage, "under his control cvery chief is who cannot be
correeted by his lord." His honor-price and the value of
his oath, &c., were fixed at fourteen cumha18; as the supreme
head he could give, but not receive, cattle, and therefore there
is no reference in thi8 case to proportionate stock or food
rent.t His residence is described with much particularity as
a fortified" dun" fort, but the length of his house does not
much exceed tbat of the higher noble classes, being only
thirty feet.
The rank of every freeman determined that of theil' family
.. Pnge 329. t Page 331.
ISTRODUCTION.
cxcv
and dependents, and entitled them to proportionate com-
pensation. "Half the sick maintenance of a man of every
grade is due for his lawful son, and his wife; for it is half
which is due for every lawful pe-rson, one-fourth for every
unlawful one. TIle wives of mercenary soldiers have sick
maintenance in right of their sons and husbands. Stewards
and conriers are- sustained with half the maintenance of thcir
chief. They arrange that their share in the maintcnance
corresponds with their sustenance by their chief. Every
artizan who makes the manufactures of a chief, or a church,
is sustained with half maintenance, according to the rank
of each person whose manufacture he makes.".
The object of the author in fixing the number seven as
the basis of his classification appears in the passage:...J!." The
maintcnance of cvery grade in the church is the same as
that of its co-grade in thc laity.". He desired to treat the
seven grades of the church as corrclative to the seven grades
of thc laity, the oðtico'ÙLS corresponding to the" mbidhoth "_
man, and the Lishop to the King; Or rather, finding the
number of gradcs in the church fixed at seven, he attempts
to classify the laity in seven gradcs, and either omits or
interpolates ranks to produce the required result. This filCt
is conclusive of the extremely unreliablc nature of the
cla.'isification contained in this tract, and the impo..,sibility
of treating it as historical evidence of the organization of
an Irish tribe at any period.
The analysis of this classification is shown in the annexed
table. None of the incidents of any rank are introduced
except such as are more or less Common to all, and capable
of being numerically expressed.
In these tables the names of the r classes printed in Italics
are those which are rejected upon the ultimate analysis.
The introduction of the" aire-echta" to make up the number
is manifest in this table. The series of numbers in all the
columns seem to have been fixed before he was introduced,
and any numerical qualifications attributed to him would
have dcstroyed the regularity of the numerical sequence.
.. P3 b e 333.
n2
.
CXCVl
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THODUCTION.
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INTRODl"CTIOY.
CXCYll
If we turn to the sdleme of the ranks of a tribe contained
in the next tract, we find the arrangement wholly differcnt.
The titles of rank (or of discredit) given here amount to
twenty-six. The arrangement is in the inverse order of that
in the present tract, commencing with the King and pro-
ceeding downwards. The nine last of these classes may be
disregarded as l'epresenting the unfree class. They are
discribed as not p05sessing the right to go into the assembly
who had no dire tine, and were not worthy to enter into
bonds or securities.
There remain therefore seventeen distinct terms, represent-
ing, according to the author, so many classes of the free
members of the community. Their respectivE' grades
are marked solely by the amount of their honor-price,
and the number of persons to free feeding they were eu-
titleù. A reference to the case of the class No. 9 (the
henchman" scidlmid "), and class 21, the" aÍ7'e-tuisi ", will
show that the phrase" free feeding" means the supply of
food to a certain number of individuals, not a right to pas-
ture so many head of cattle. The sequence of the ranks of
the free persons in the tribe, according to the sequel, woulù
be represented as follows :-
Ranko. I Property. I Free.feeding. Honor-price.
The "Uaitne,"
The I second' of a U Eo-aire, n
The" Bo-sire, . .
A "F laethem" of one rQ,8øal,
A half" F laethem .. perøon,
Afull .. Flaeth m" perøon,
A "dae" perlo", .
A,. " amruth ,- per,oR, .
Xone, .
8 cows,.
10 "
An" Whna" ]Jer.oR,
An "aire-fine n ('hief, .
An U aire-desa '. Chief. .
An .. aire-tuiøi" Chief,
An ., aire-ard" C/âif, .
An "sire-forgailI ., Chief,
A King of tbe 3rd rank,
A King of the 2nd rank,
A h.ing of the 3rd r.mk,
2 and a cow,
3
4
5
10
4
5
G
10
:!O
30
30
5 seds.
2
3
4
5
10
4 half cumhals.
1- cumba1 and a
swcrd.
3 thirds of a cum-
hal.
7 cumhals to four.
1 cumhal to se, en.
Ii cumbals.
3i cumhala.
3i cumhals.
ï! ('umh8
8.
14 cumbals.
5 cumhals of gold
and a je..el.
As to the ranks common to Loth, the fúllowing rcsult
CXCVIIl
INTHODUCTIOX.
may ùe arrived at by a comparison of the tests:-The
freeman, without any property, is called in the Crith
GaLhlach a "mbidLoth," and in the sequel an "uiatne"-
man, these two terms reprcscnting the lowcst dass must be
idcntical.
The "og-aire" of the first li:st corresponds partly with
the' second' of a" bo-aire," and partly with the "bo-aire"
of the second list.
The" aire-desa" is common to both, and it appears from
the amount of their hOllor-price, that the "full flaithem"
and the" aire-desa " of the second list are identical.
The titles of the "aire-ard," "aire-tuisi," and "aire-forgail,"
are common to both lists, but the latter tract treats the
"aire-ard" as identical with the" aire-forgaill." The sequel
treats the" aire-ard" (or" airc-forgaill") and the" aire-tuisi,"
as officials simply, and they should, according to this autho-
rity, be struck off the list of the classes of society.
The result will be to reduce the number of the actual
ranks of society to four :-(1) the" m ùidnoth " or "uaitne"
man, thc freeman without property; (2) the" og-aire," or
Lo-aire, the freeman possessing a property qualification;
(3) the" aire-desa," the noblc with property qualification;
and (4) three gr
des of Kingship. It is to be remarked
that at these points the valuation as to honor-price exactly
coincides.
If we refer to the scale of compensation for the death of
any person killed, as sct out in the Book of Aicill, the result
is as follows :-
1. A king, bishop, professor, chief poct,.and every
archmech person, or bcst "aire-forgail"
chicf,
2. A middle or lower "aire-forgaill" chief, or
.. aire-ard" chief,
3. An "aire-tuisi," or " aire-desa" chief, .
4. A" bo-aire," or " og-aire" chief, .
5. A " fer-midbaidh " person, .
6. A" flescach" person, or .. dair "-workman,
14 cumhals.
7 do.
4 do.
3 do.
2 do.
1 do."
.. Vol. iii., 1>.4;5.
INTHODUCl'IOY.
CXC1X
Upon a comparison of these three lists, the following
results follow; that the essential distinctions as to ranks
were five only, viz. :-(a) the Kings of three orders, and those
persons, who, from their official position, were placed in the
same category i (b) the nobles, who were sub-divided into
four classes :-the "aire-forgaill," the" aire-ard," the" aire-
tuisi," and "aire-desa" ; and that the best" aire-forgaill "
filled an official position, which placed him in the same
c
tegory as the king; (c) the freeman possessing property,
the" bo-aire;" ({l) the freeman without property i and (e)
the non-free classes.
That a great proportion of the classes introduced into
the sequel are purely imaginary is evident upon the face
of the tract. As between this tract and the Crith Gabh-
lach, to which it is supposed to be a sequel, the list in
the former appears the more ancient and trustworthy i
the author of the sequel, if he had had the Crith Gabhlach
before him, never would have abandoned the principle of
systemizing the ranks in sevens, nor omitted so many as
seven of the grades. He also ignores the precise directions
as to the sizes of their respecti ve houses, and the amount of
their furniture, which occupy so large a proportion of the
Crith Gabhlach, and he does not allude to the amount of
proportionate stock and food rent, which in the Crith
Gabhlach is stated as an essential mark of rank, upon the
assumption that all classes were bound in a feudal tie to
some superior. The statement in the Book of Aicill is clear
and practical, and is far more valuable as an authority than
the later tracts. It naturally folio" s that we regard the
Crith Gabhlach as, to a great extent, an imaginary work, the
Utopia of a Brehon Lawyer, and, although containing very
numerous fragments of archæic law, not affording any dis-
tinct basis of an historical character; and that a description
of the condition of the ancient Irish nation, if founded upon
a faith in the Crith Gabhlach, as descriptive of an existing
order of society, must be considered as merely imaginary.
The concluding portion of this tract discusses the duties,
rights, and appropriate mode of lifc of a king, according to
cc
I
THODUCTIOX.
the standard of tl1C period; of the ideal king, WllO is des-
cribed as a man full of lawfulness in all respects, consulted
for knowledge, learneù and calm.
Although thcre is difficulty in eÀplaining many of the
details, a definitc picture is given of the mutual relations of
the king and his people, and the mode of life at the date of
the work. The duties and rights of the king are conceived
as resting upon lJÏs reprebentative character; as the" flaith,"
as the patron of his retainers or clientèle, or the head of the
house on behalf of his fhmily, represents in the ai"sembly or
before the judge all those technically "in his lumd," so
the kings stands as the agent of his tribe; "he swears for
them to the king (i.e., to the superior king) on behalf of the
territory. He dellies (or makes oath) on their behalf; he
pro\yes for thcm to the e:dent of seven cumhals. He goes
into co-judgment, into co-evidence, with the king for llis
people.". The relation of the king to the tribe implied
reciprocal rights and duties, as that of head of the house-
llOld to its members :-" They are entitled to righteous judg-
ments. They are entitled to a pledge on their pal t. They
are cntitled to sustenance as they sustain."iI- In three cases
the king is authorized to bind tlle pcople by his promise
made on their behalf; viz., a pledge for hosting, which means
a levy of the armed force for a definite purpose, thrce of which
arc stated in the text; a pledge for right; and a pledge
fin" international regulations. .For three purposes the king
was entitled to call the people together; for a fair, for a
meeting for correction, or making a contract, or fQr the pur-
pose of accompanying himself to the boundary.- The para-
graph commencing in page 33.5 states :-" There arc now
four rights which a king pledges his people to ohserve."
By this, having rcfpl"ence to the passage which follows,
should prûl.aLly be unùerstood the rights which the king is
entitled to exercise as against the people; the measure and
extent of his cxecutive authority. The first right mentioned
is the right of" Ji'pneehus "-law, hut it is added :-" It is the
people who proclaim it. It is the king that proclaims the
* 1'8
C 333.
INTHOD UCTIO
.
CCI
other three rights, and it is the king that enforces them."
The enactment of rules to bind the people rested with the
people themselves; the king had no legislative power; he
enforced obedience to the law, but could not himself enact
one. As the idea of the enactment of a new law, in tþe
correct use of the term, wa..., quite foreign to the state of
society with which we are dealing, this perhaps might be more
correctly expressed by the statement that the people de-
clared the custom, and made the regulations incident thereto,
and that the king carried them out into execution; having
reference to the second right attributed to the king, the
"Fenechus "-law proclaimed by the people dealt with the
division and management of the tribe land, which at the
present day is the all-engrossing business of the Swiss Com-
munes.
The second right of the king is defined as "a right after
they have been defeated in battle, and he consolidates his
people afterwards so that they are not broken up; and a
right after a mortality.". Both of the circumstances under
,vhich this right of the king arose, are cases in which the
tribe had suffered the loss of many of its members, and the
relative proportions of the several households had been
materially altered, and for the stability of the tribe, anI} to
ensure cultivation, it would be requisite to redistribute the
tribe land among the surviving members. The extreme case
of a tribe having been driven out of its original territory,
and establishing itsclfin a new district, would be an instance
of the circumstances under which the exercise of this
unusual authority on the part of the king would be neces-
sary; so also if, by any casualty, a large proportion of the
tribe perished (we frequently read in history of the destruc-
tion or banishment of an entire gens), the result must have
been, to a greater or less extent, a recasting of a mode in
which the tribe land was distributed.
The third right is defined as that of the King of Cashel
in Munster, that is, such well-known rights as the King
of Cashel, taking him as the leading case, is understood
* Page 335.
CCII
INTRODUCTION.
to possess.- Three such are enumerated, the first of
wl1Ìch is obvious enough, "the right to help him to
drive out foreign races." The right secondly mentioned,
"a right for the sowing of seed," is not so simple or easy
of explanation. Dr. O'Donovan eXplained it as a right of
the head king, when the under kings were fig1lting among
themselves and neglecting their legitimate business, to
compel them to abstain from hostilities, and" to sow their
lands." This is a remarkable instance of the habit of
attributing the morals and ideas of the nineteenth century
to the members of a semi-civilized community, and assuming
that they did act as we think that we ourselves ought to
. Thi
passage in the original text manifcstly refers to the celcbrated Psaltcr
of Cashcl, supposed to have been written by St. Benean (or Benignus) to appease
his relations, justl)" indignant that he, being a lIIunsterman, had blessed Con-
nacht, whither he had been sent by St. Patrick to preach Christianity.
"Cognati Sancti Benegni, ut populus Eoganiæ Cas>elcnsis, Olildiana progenics,
et alii 1IIomouicnse., audito prædicto ejus facto, non parulll offcnsi et contra virum
Dei indignati dicuntur. S. autem Benignu", ut ist 1m offcn"am ali'Iuo grato
déIueret obsequio, f.lmosum illud chronicon, quod Psalterium Gcuselense nuncu-
patur, inchoa, it et composuit; in quo non solum tot ius lIiberniæ 1IIonarchorll
l,
scd specialiter :Mumoniæ, acta, jura, prærogath æ, et successio censcriLantur. "--
Colgan, Trias Thaum, c. 33, p" 20;;. If we are to assume that the Book of
Rights practically represents and contains the substance of the Psalter of Cashel,
the U right of a king" refers merely to the amount of food and supplics '" hich he
was entitled to receive from his feudat<>ry chiefs. The Book of Rights is siugu-
larly de,oid of any legal information or value whatsoever. If the author of this
trcatise was acquaiuted with the Psalter of C.lshel, or the Book of Rights, it is
difficult to understand how he ha
placcd the feudal relation of the kings and
their chiefs upon the taking of cattle and food rcut, and not upon the reccipt by
the chiefs of thc extravagant and fabulous gifts stated in the Book of Rights.
The gifts represented in the Book of Rights, as prcscnted by the King of Cashe1
to his feudatorics, arc, of course, imaginary; but that a "king of companies"
should take from the head king fiftecn cumhals of cattle as his proportionate
stock, and pay eight Co" s as the food rcnt of his house, is equally incredible. It
"ould seem that both al1thors, each after his own fashion, "cre de
irous of
stating the relative positions of the King of Cashcl and his unùer kings. Thc
relation wa, created by the receipt by the inferior from the superior of some
benefit, :.Lnd a subsequent rcndcr of service in consideration of it. Thc actual
transaction may have taken a merely B)"Inbulical shape, which the author of the
nook of Rights has exaggerated in a poetic (?) form, and thc author of this tract
described in accordance with thc usage prcvalcnt among the lower classes. As
thcre may be some who be1icve that St. Benean wrote thc l'saltcr of Cashel, I
do not rely upon the reference to that work as a conclusive e' ide nee of the date
of this tract.
I
THODUCTIO
.
CClll
haye acted if placed in their position. If the over-lords had
exercised this right it would have been very fortunate for
the general body of tIle people, and the greater part of the
annals would never have been written. The simplest ex-
planation appears to be that the king could enforce the
cultivation of the tribe-land in the ordinary course of cus-
tomary husbandry. The third right is that" of lighting up
religion, such ru; is found in the right (or law) of Adamnan."-
The historical celebrity of the" Cain-Adamnan" arose from
the rule exempting women from liability to military service;
but this rule was only onc of the clauses, and the reference
IlCre made seems to be to those enacting the performance of
specified religious duties.
The rank of the king was regarded as official, not
personal; if, therefore, he engaged in the labour fit only
for a plebeian, he was for the time being reduced to the
plebeian grade, and his dire fine assessed accordingly.
The four occasions when he thus lost his status were
when he used a clod-mallet, or a shovel, or a spade, or
when he travelled alone. The reason for this latter rule is
remarkable: .. This might be the day upon which a woman
alone (without witnesses) might swear her child upon a king
a day upon which no one could give testimony but herself
alone,"*' a rule not devised for the protection of the moral
character of the king, but to prevent the danger of the
introduction into the family of the king of spurious bastards,
and to guard against such mischief as was caused by the
facility with which Shane O':
lel acknowledged all children
attributed to him. In one other case the king lost his status,
and was entitled to the" dire "-fine of a non-noble person:
when in retreating from battle he was wollnded in the back.
Upon this point the author remarks, with characteristically
trivial accuracy, that the rule did not apply when the
weapon had passed through the body and came out at the
back.-
The days of week are in this treatise portioned out to the
yarious duties and pleasures of the king.*' He abstained
· Page 335.
CCIV
U\TRODUCTlON.
from labour on Sunday, but his" occupation" upon this day
wa'i drinking ale, and di
tributing it to others, "lIe is not a
lawful Flaith who does not distIibute ale every Sunday."
Strange to say there is no allusion to any religious ceremo-
nial, an omission the more remarkable as the author writes
under evident ecclesiastical influence. The remaining days
of the week were appropriated as follows: Monday to public
lJUsiness (" for causes for the adjustment of the people "),
Tuesday to chess, "Tednesday to cOlU"bing, ThuThday to
marriage duties, Friday to horse racing, and Saturday to
announcing his decisions (" giving judgments "). Such a
passage is tJ,lllple proof how much of the details and arrangc-
ments in this treatise are purely fantastic. No one for a
moment imagines that a king spent his time in the absurd
routine here suggcsted; yet it is not, in our opinion, more
imaginary than the preceding specification of the size of the
houses and the amount of thc furniture of the respective
grades of society. Such a work as the present can be relied
upon in its general results only; as to the numerical details
we have no means of distinguishing which are imaginary
and which are exact.
The king was responsible, both to his own people and to
externs, for illegal or irregular seizures or requisitions; this
appears in a negati ve form from the exceptions to his assumed
liability. The three excepted cases are: (1) the requisition
levied upon a rebellious and reconquered territory; (2) a
requisition upon the members of his own tribe when an extern
king was his guest; when there was an unusual demand
upon his hospitality; (3) the seizure of dry cattle which
have trespassed upon the tribe waste. In the two latter
cases the cattle were to be restored, which proves that what
the author was treating was not the return of (or paYIl1ent
for) the goods, but the consequences of theil' illegal seizure.
The duty of hospitality is strongly enforced upon the
king; such is the meaning of the paragraph commencing,
"There are three fastings which bring no offence to a king.".
The fasting alluded to is not the fasting of the king, but tho
,. Page 337.
INTRODGCTIO
.
ccv
fa<;ting of his guests; a failure in the duty of hospitality is
only excused by the absolute want of the means of pro-
viùing the nece
sary food; what we should express in one
general term is here stated in the form of three special ex-
ceptions. At the conclusion of the tract, the author describes
an Irish king sitting in state at the head of his retainers
and court; and in the passage it is certain that he has
omitted no detail which, in his opinion, enhanced the splen-
dor, or testified to the power, wealth, and luxury of a Celtic
prince of the period.- At the south end of the house,
which must be understood to be a large four-sided hall, are
posted the body guards of the king, four in number; these
are not men of his house, or of his tribe, but broken, land-
less men, whom he had freed from dungeon or gallows, or
from seryitude of the lowest grade, men without tribe or
home, who existed only as the hirelings of their masters; the
man, whose life the king had spared in battle, was not con-
sidered as sufficiently in his power, "for he may lay hands
upon him and kill him out of devotion to hi.'I own chief m.
people" -such a man could not be trusted, for he had a tribe
and home to which he might return. The four guards sur-
rOlmd the king-one in front, one in the rere, and one on
either side; to secure the fidelity of these mercenaries, they
are watched by another stranger, one of the hostages fur-
nished by the subject tribes, or the under kings; it is easy
to see that if this man was a hostage for the fidelity of his
tribe, they in turn were securities for his personal fidelity
to the king, to secure which, further, he was allotted land to
the large amount of seven cumhals, equivalent to the honor-
price and judicial value of an under king; he is seated by
the guards behind to watch their actions. From the kina's
b
right hand, along the east wall of the hall, are ranged suc-
cessively his guests, his poets, his harpers, flute-players,
horn-blowers, and jugglers; opposite the king, at the other
end of the hall, sits his champion, who would be described
in an Eastern court as "his chief fighting man;" on the
king's left hand, along the western side of the hall, are
· Page 339.
CCVl
INTRODUCTION.
ranged his wife, his brehon, and his" saer "-tenants, or noLle
vassals; at the door is stationed a "man of deeds," to keep
it; before the champion and the doorward is set up the
spear of each "against the confusion of the ale-house;"
close to the champion, in chains, stand the "unredeemed
hostages," whose appearance in fetters was manifestly an
essential portion of the spectaèle. Having exhibited the
king in fulness of his power and splendour, the author asks:
"Which is greater, a king or a bishop 1 The bishop," he
replies, "is higher, because the king stands up (to salute
hi-m,), by reason of religion. A bishop, however, raises his
knee to a king.".
The impression produced by the Crith Gabhlach as to the
condition of the Irish people at the date of its composition,
is very unfavorable. Their houses must have been small
and ill-furnished; the length of the house of an " og-aire" is
set down as seventeen feet--about the size of the cottage
of poorer class of farmers of the present day-and the house
of the head king is stated to measure only thirty-seven feet
in length; from this we must conclude that the habits and
mode of life of the upper and lower classes were very simi-
lar; the houses would seem to have consisted each of one
room only; the description of a house, as having so many
" bcds," not rooms, in it, shows that they all slept in one
chamber; the houses were wood, or wattle-work, of a very
unsubstantial character; the back hon<;e so often alluded to
was probably a detached kitchen; the furniture described is
of the simplest nature, and in insignificant quantity; al-
though some golden and silver articles are mentioned, there
is scarcely an allusion to rich dresses, jewels, personal orna-
ments, or works of art; the ordinary diet seems to have
been of the coarsest description; and it is remarkable that
there is no allusion to wine throughout; the description of
the king's court must be very much exaggerated, or the size
of his house under-estimated, for it would be impossible to
crowd into a room of thirty-seven feet in length, the number
of persons detailed as fanning hi9 court and retinue; the
,. P .lóC 331).
\
I
TRODU'CTIO
.
CCVll
wnnt of refincment in manners is marked by the fact of the
. champion and man of deeds at the palace retaining their
spears" against the confu",ion of the ale-house."
The old tribal organization continued to be the supposed
form of their social system. We read of the king calling his
people together for various purposes, and of the people them-
selves declaring the "Fenech us "law, but the universal system
of commendation extcnding from the low" mbidboth" man
to the king of companies (everyone of whom received cows
from a superior, and paid his food-rent), and tlw masses of
non-free tenants who swelled the retainers of the "jlaith,"
prove that the new system of perRonal relation was being
rapidly substituted for the bond of tribal union; the tribe
lands had been monopolized by the noble class; whether"hy
grant or force, fairly or unfairly, is unimportant. The
double process is summed in the Latin sentence-" Hæc ferè
pascua data sunt depascenda sed in communi; quæ multi
pCI' potentiærn invaserunt." As a natural consequence, land-
less men and" fuidhirs" abounded; the general instability
is proved by the custom of hostnges, and the presence of the
foreign retainers who sUITound the king; and the rules, as
to the maintf;nance of the wife of the mercenary soldier,
show that the hired gallowglass, the curse of Ireland, was
not unknown.
The Crith Gabhlach may be fairly characterized as the fan-
tnstic production of an antiquarian lawyer of a strong eccles-
iastical bias, composed at a date at which the tribe system
was breaking up, and the condition of the people, both
moral and material, had much deteriorated. The work is
of the highest value as an antiquarian treatise, rather on
account of the general principles which it assumes, and the
incidental statements which it contains, than from the
accuracy of its classification, or the truth of its minute de-
tails; and any deductions founded upon a belief in its
historical value must lead to conclusions involving the too
common elTor of substituting an imaginary, for the actual,
condition of a pcople.
CCVIll
INTRODUCTIUX.
XII.
SEQUEL TO THE CRITH GARHLAl'H.
This tract deals with the same subject as the preceding,
and can be advantageously considered in connexion with it.
In the original manuscript no special title has been prefixed
to the treatise, and for the purpose of the present volume it
has been named the sequel to the Crith Gabhlach, implying
that the subject dealt with in the preceding tract is further
discussed in the present, but not that it was a work by the
same author, or composed by another author as an appendix
or continuation of the Crith Gabhlach; in the last section
of the introduction it hits been sufficiently shown tlJat two
differpnt schemes for the sub-division of the rank of society
are adopted by the respective authors, and that, so far from
being complimentary, the latter tract is contradictory to the
former.
The legal rights with reference to which the several
ranks are classified by this author are specified by him as
nine in number. Aq stated by the author, these appear to
have been as follows :-(1) the greatest and least number of
attendants brought by them to their cosherings upon their
tenants, or accompanying them as their "company in the
tribe" ; (2) their feeding, probably the amount and nature
of the food to be provided for them; and the amount of com-
pensation to be paid to them under the following heads:-
(3) for" esain " ; (4) for wounding; (5) for insulting; (6) for
the violation of their protection; and as (7) their honor-price;
(R) also the obscure fines described as "blush "- and blister-
fines; (9) and their exemptions before and after refections.-
Although the classification may have been originally made
with reference to these several heads, the detailed rights and
duties of each class are very imperfectly stated, and all
reference to some is wholly omitted. It i'3 remarkable that
to a large proportion of the classes specified the alleged
grounds of the cla'3sification, certainly the greater portion
· By .. exemptions ., we
hou1d umlp"taml " prh ileges "in the fuIl extent of
the worel; either special rights or special duties, Ute enjoyment or performance of
which distinguished the individual from the general mass of the nation.
I
THODUCTIOX .
CCIX
of them are inapplicable, and that there is not any reference
made either to their proportionate stock and food rent, or
the sizes of their dwellings, matters dealt with in detail by
the author of the Crith Gabhlach. The twenty-six cla.<;ses
stated in this tract of t.he classes of this tract are enumer-
ated downwards, that is, commencing with the head king,
and proceeding downward to the lowest grade, but itis perhaps
more convenient in considering them to adopt the inverse
order, and to proceed from the unfree classes as the natural
basis. The nine last classes are intended to comprise the indi-
viduals, not members of the tribe, either as originally unfree,
or as having lost their original status; they are described as
not possessing a holding,or talent!>, or followers, and therefore
not worthy to form part of the assemblies, or companies of
refection, nor entitled to "dire" fine, or to enter into
securities or give evidence. They are evidently regarded
not as servile, but unfree, having no status, and possessing in
theirown persons no legal rights; it would follow from analogy
that their persons could be protected and their property
secured to them only by the intervention of some member
of the tribe, in whose "hand" they would technically con-
sidered to be.
'Vhen the definitions of these nine classes are considered
it appears that they are not arranged with reference to their
respective rights, for they are all described as po
sessing none,
but rather with reference to the causes whereby they had
lost, or did not possess, any recognised status, and that the
nine clas&es are sub-divisions of one class, di!òtinguished from
each other by purely accidental circumstances. 'r
e ranks
thus enqmerated are as follows :-
(a) A "hencllman,. a soldier of a good race "-the nearest
to the hip of a leader when going to the meeting, who,
with his wife, was entitled to free fepding, and a fine
for certain injuries. This is clearly a description of
the immediate followers of the King; either of the four
personal attendants who surrounded him in his hall,t or
of the mercenaries whose wives had sick maintenance in
· P!'&"e 353. t Page 339.
o
ccx
I
TROD{;CTION.
right of their husbands.- The description in the Crith
Gabhlach of the class of persons with whom the kings sur-
rounded themselves, proves that they were selected precisely
because they were not members of the tribe, and, therefore,
bound to the lord by simply personal interests.
(b)t The freeman who had "lost his patrimony, his lands, and
his stock, and diel not possess anything throughout the terri-
tory visibly or invisibly." By the loss of all his property the
freeman lost also his status. This class must be distin-
guished from the" mbidboth "-man, the lowest class in the
Crith Gabhlach, who, as having cattle lent to him by a lord,
and paying food rent for his house, did pOSSf'SS a certain
amount of property, however small, and therefore retained
his status.
(c) A "cow grazier of a green,"t a term used meta-
phorically to express the case of the freeman who has lost
his status, not from poverty, but by reason of disgraceful
cowardice-a man dishonoured, as the Greeks expressed
it, by having lost his shield; he is described as keeping his
cattle within the green or enclosure near his house, and not
daring to drive them out into the common pasture through
fear of the wolves.
(d) A "BaitRe "t tenant, of whom no description can
be given except that contained in the text :-" A man
who is not freed by profession or residence; that man
does not belong to a company, who has not the deeùs
of a champion in him. He does not go security, nor is he a
pledge with a chief or a church, because it is a sunbeam he
is called."
(e) The fifth class is described as" a man matched with
a bad wife, by whom he is rendered deranged and un-
steady; such a person is defined as an "oinnit."t Extra-
ordinary as are some of the definitions of the Brehon
lawyers, it is impossible to believe that the author of this
tract seriously intenùed to express what these words, in their
plain and ordinary meaning, state, and not to suspect that
an ancient and forgotten rule, either as to the origin or
. Page 331.
t Page 3;;3.
I
THODUCTlO
.
CCXl
some specific acts of the wife, survives In this apparently
absurd description.
(f) A "midhlach". person, an effeminate, unwarlike
man, a coward or an imbecile. .AJ:, the coward has
already been enumerated under the hean of the "cow-
grazier of a green," this class may more properly include
idiots aurl imbeciles; the added words "so that he is the
material of a victim to be given on account of the territory"
(if the translation be correct), might mean that he was a
very fit person to permit to be killed in expiation of a blood
feud. The word" cimbid" admittedly means a man whose
life is forfeited, " a victim," and the text appears to refer to his
being utilized in this fashion, when it speaks of being or
affording the" material for a cimbid."
(g)t A clown, mountebank, or buffoon, not a jester simply,
but what we should can an itinerant tumbler, dishonoured
because he "went out of his shape before hosts and crowds."
(h) A "riM-caire" man,t "a robber whom his race ann
family shun, a violateI' of 'cain' law, and of law, who goes
from marsh to marsh, and from mountain to mountain," or
M it is also explained, exprfJssive of the latter fate of such
an one, "a rath-builder who is enslaved to a chief and a
church."
And lastly, (i)t The person described as "a crumb-fox, who
gets the crumbs of all food natural and unnatural, whatever he
crunches or eats is his;" by which may be meant a starving
roguish outcast ready to appropriate and consume the frag-
ments of other's victuals.
These descriptions of the unfree men throw a light
upon the meaning and intention of the author's classi-
fication; he is not merely stating the legal grades and
acknowledged ranks of society, but arranging the men
of the society in which he lived, with reference both
to their actual rank and supposed respectability, as he ex-
presses it when he says that persons are estimated not only
by form and race, land, tillage, and pJoperty, but also by
their profession and worthiness. It is very natural to speak
· Page 3;;3. t Page 355.
02
CCXll
IX /'RODUCTlON.
with contempt of cowards, fools, mountebanks, &c., but no
one can contend that these various disreputa1le charncters
were acknowledged steps in the social hierarchy, which had
its culminating point in the head king.
If a writer of our own day undertook to describe the
various ranks of English society, and haviug commenced
with the fvllowing :-" Tramps, housebreakers, acrobats,
idiots, henpecked husbands, cashiered officers, insolvents,
&c.," finally concluded with the" bishops, earls, milrquiseR,
dukes, the Lord Chancellor, and the Queen," we should
understand thnt he had confused the ideas of legal rank and
social respectability in a hopeless manner; and yet any such
work, if preserved to a date at which a wholly different form
of society had been substituted for that now existing, would
be valuable to the antiquarian of the future as illustrative
of the gradations of our society; but we may hope that
enough of our literature will remain to prevent the occur-
rence of the mistake that insolvents and acrobats were ranks
in society in the same manner as dukes, or that insolvents
and housebreakers were permanent castes.
Bearing in mind the fashion ?-fter which the classification
of the unfree persons has been constructed, let us turn our
attention to the seventeen classes into which the free mem-
bers of the tribe are di\'ided. If we refer to the table in
page c}..cvii it will be observed that the ranks not common
to both the systems of classification in this tract, and in the
Crith-Gabhlach, are marked in italics. On examination, all
these will appear to be grades of social respectab;lity-not
legal ranks-grades of respectability which gave those who
possessed them su1stantial claims against the members of
their families or third persons, or affected their compensation
for wrong, but did not elevate them in the assembly above
the other freemen, or entitle them to political privileges or
grades in society arising from official position or public ser-
VICes.
These classes among the no11es are as follows :-(a)-
the" aire-fine" the head of a "fine" (probably, as before sug-
· rage 34'.
IXTHODUCTIOX.
CCXlll
gested, the" geilfine-flaith"), a person of consideration and
importance, as representing the members of the" fine," but
no more forming a rank in the tribe than the head of a house
as representing the several members of the household.
(b)* The" idlma"-person, who has a number of sons who are
born to him, and of male relatives (or brethren) to the muuber
of thirty champions. He is entitled to free living of five from
his "fwe." The key to the interpretation of this lies in his
right to free living from the "fine." He must belong to a
" fine," and there must be other households in the" fine," in
which he should have his free feeding for four. His quali-
fication was the possession of sons and brothers, warriors-
thirty in alL He appears to have been the head of a house-
hold (or joint family) within tlle "fine," so numerous that
the household allotment 1eing insufficient to support them,
a certain number were supported by the remaining houses
of the" fine." A person,.the head of a numerous household,
would manifestly be one of much power and influence in the
early stages of society.
(c.) The "ansruth".-person is described as one "who
protects his mansion and his land. He is allowed (lit.
FOI' him is) the wounding a person in each tenn of
the year. He has no fewer than twenty (attendants)
in an extcrn territory. He l)as free feeding for four on
every side, and from every chief in his' tuaith.' He is en-
titled to a trusty sword for his honor-price." As the
"idhma" was entitled to <.;upport from the "family," the
" ansruth" was entitled to it from the tribe. His position
involves the wounding or slaying of his others, and his
absence from the tribe-land with the accompaniment of a
strong escort. His peculiar honor-price, the sword, indicated
his office. He may be ea<;ily identified with the" aire-echta"
of the Crith Gabhlach.t
· Page 3t9.
t Tbe position of the champion or defender of a territor
is well iJIustrated by the
following passage of the Tain Bo Chuailgne :-
.. Cuchulainn then asked his charioteer "here the great road which passed
Emania led to, and he answered that it led to Ath na Foraire (i.e. the Ford of Watch-
ing) at Aliabh Fuaid (a well-known mountain I) ing at the south of ancient Emania,
CCXIV
HìTItODUCTION.
(d) The "dac"-person- is described as one" who for
another goes to fight his Lattle, when he has no help of
his family." The po
ition of this person is determined
by his relation with neither the family nor tribe, but
with some third person or persons, whose qualTel he has
espoused. His position resembles that of a patron with a
client, or a chief to whom a poor and oppressed man com-
mends himself. Perhaps the description is intended to apply
to the leader of hired gallowglasses, the condottiere of the
period, which interpretation is rendered probable by the
phrase, " he is entitled to free feeding and that 01 his sol-
diers."t A character of this description, undoubtedly, never
formed one of the normal ranks of the ancient tribe.
in the present county of Armagh). 'Why is the ford called the Ford of Watch-
ing?' said Cuchulainn. 'Because; said Il,ar, 'there is an Ultoman champion
constantly watching and guarding there, in order that no warriors nor foreigners
should 'unperceived enter into "Clster, without being challenged by him to battle;
and the champion muqt answer for any such challenge on the part of the whole
province.' 'Do
'ou know who is at the ford to-day?' sail1 Cuchulainn. . I do,
indeed; it is the valiant and victorious Conall Cearnach, the J{oyal c;hampion of
Erinn,' said Ibar. '". ell, thcn,' said Cuchuluinn, . you drive on until we reach
that ford.' "-TranÛated by .l/r. O'CUrTY, ".Manners and C"stoms of Ihe
A 1II';eT,1 fri,'h," vol. ii., p. 3/1:>.
· Page 349.
t He, whose caUSê the" dae "-person asserted, can scarcely have been a private
inJh"idual, if any,) stem of tribe law whatsoever existed, nor again can we
understand a private individual supplying free feeding to him and his soldiers.
The emplo) er of the" dae "-man and his mercenaries must ha_ e been at least a
tribe chief, and the sentence," when he has not the help of a family," expresses the
indepcndent position towards his tribesmen, which a chief enjoyed who had
secured mercenary support. The" dae "-man would thus be the leader of the mer-
cenary guard, or head of the housecarls of a chief. Such bodies of m{n were called
"I,
ht Tighe,'. or Household Troops. The Lucht Tighe of Tadhy O'Kelly, King
of Hi Mainé, in Connacht, and of Ferghal O'Ruairc, King of Breefney, were COn-
spicuous at the battle of Clontarf, A.D. 1014. In 15:.13 Hugh 1Il'Guire, Lord of
Flermanagh, marched to battle with the people of his own territory, and a body of
.. Amh..;.," or mercenary household troops drawn from other territories or countries.
The regular organization of these household troops, or bodyguards of the chieftain,
appears from the name8 of divers places; for example, we know that there was
anciently a district in 1I10naghun called Luchl Tighe '/lhie Mathgamll1la, that i8,
l\facl\lahon's Househl.ld. because it was exclusi\"cl
dc_ oted to the maintenance
of the chief's household troops, "ho thus "" ere entitled to free feeding on all
ei,t('s.1I-O'Curry. "J/"'W(Tlf (Iud Cu,fomff of ti,e ...llIcient Iris/,:' YO). ii" p.
3'11-2.
IKTRODUCTIOX.
CCXY
The three classes of the (e)" ogßaithem," if) " lethflaithem,"
and (g) "flaithem of one vassal,". are merely sub-divisions of
the poorer "flaiths," with reference to their income, the
amount of which naturally depended upon the number of
their tenants; but there is no reason to believe that the
rights of a flaith were measured in accordance exactly with
the number of his tenants. Undoubtedly the" flaith," who
had a large number of tenants who swelled the train of his
retainers, and paid him food rent, which enabled him to sup-
port others, was a much more important person than the
"flaith" with few tenants, and that poor broken-down
.. flaiths" with one, two, or tllree old tenants were very little,
if at all, above, in public consideration, the cow-owning
churl, who was rising into the noble class.
It appear
from a passage in the last tract published in
this volume that the descendant of" flaiths" might fall back,
under certain circumstances, probably the want of qualifying
wealth, into the non-noble class ;t but there are no grounds
for considering that the "Raith" below the aire-tuisi were
legilly divided into ranks in the exact ratio of their fortune.
The differences as to this point between this list and that
contained in the Crith Gabhlach are very instructive as to
the mode in which these detailed enumerations were com-
posed, and the reliance to be placed upon their nnmericnl
statements. In both lists the bo-aire takes the highest posi-
tion among the non-noble classes; and the ranks above tImt
are" flaiths " or noble; the entire body of the" Raiths" be-
low the rank of the" aire-ard" (or that of aire-echta 1) are
included, according to the schcme of the Crith Gabhlach, in
the rank of the ., aire-desa "; if the four classes of the" aire-
fine," " idhna" -person, "ansruth "-person, and" dae "-person,
be struck out of this list as not representing classes properly
so called, the three remaining clas!>cs of the "ogflaithem,"
" lethflaithem," and" Raith em " of one vassal remain, who
must fall within the class of the "aire-desa," as defined by
the Crith Gabhlach ; but the qualification of an " aire-desa,"
as defin('d in the Crith Gabhlach, was eleven tenants, amI
. Page 3,,\.
t Page 3Al. I. 9.
CCXVI
I
TIWDUCTION.
he was entitled to feeding for ten couples. It is evident
therefore that many of the" aire-desa" class cannot ha\"e
had the wealth specified in the Crith Gabhlach as the quali-
fication for that rank, and that, despite the diminution of
their wealth, they still con tinued "flaiths," as long, if we rely
on the statement in this tract, as they had a single vassal.
This is perhaps what is implied in the definition in this
tract of the" aire-desa," as "a man who had preserved the
patrimony of his father and grandfather in the same condi-
tion as he had fonnd it before him, and who accnmulates.".
The name in this tract of " flaithem" of one tenant may, pro-
bably, at the date of this tract have been equivalent to the
French termofthe last century, which described averyimpecn-
nious nobleman, as the seignenr ot a duck pond, the smallest
conceivable amonnt of real estate which enabled him to assert
his position as a seigneur. The" uaitne " person, as described
in this tract, might be supposed to represent an office, and not
a class, but it is clear that there must be interposed between
the" bo-aire" and the members of the unfree classes, a class
representing the freeman without the full property qualifica-
tion of the" bo-aire," and the amount of the honor-price of
the "mbedboth" and the "uaitne" man being identical,
there are sufficient grounds for considering the two names
as different designations of the same class.
It is important to submit the schemes of rank contained in
these two tracts to close examination, as the apparently
anomalous character of the Irish tribe has been chiefly pro-
duced by the assumption that the Crith Gabhlach should be
admitted as an exact and historical document, and its
numerical statements received without reserve as truthful
representations of existing facts; so long as this mode of
treating the Brehon Law tracts holds its ground, the ancient
Irish tribe system must continue to be considered, as it has
unfortunately too long been imagined, as an exception and
an anomaly, a maze of technicalities incapable of disentangle-
ment.
The trac+' next proceeds to deal with the ranks of the
· Page 349.
!;\THODCCTIOX.
ccx va
learned professions, before enumerating those of the church;
the mode in which the various ranks in the several scales
are considered equal to each other, and a harmony attempted
to be established throughout, appears in the following intro-
ductory passage :-" The distinctions (or titles) of wisdom
(literary professions) now are different from the titles of the
laity, bec,,'1.use it is a "cumhal" of increase of honor-price,
which each grade of the church takes, from the lighter of
candles up to the psalm singer. It is by seds, however, the
increase of the" fine" grades and poets progress from low to
high. Their proof and their denial too correspond; "a bishop
and a king, the origin of all chiefs," &c.-
The classification of both the Ollamhs and poets is
plainly merely an exercise of the imagination; the
epithets and ranks are founded upon conceits, analogies.
and plays of works. and there is no practical infol1na-
tion to be gleaned from them. F pon the other hand,
the discussion as to the "dire" -fines of ecclesiastics is
one of the most interesting passages of the Brehon Law
tracts, as illustrating the period between the break up of
the Columban s:rstem and the institution of a regular epis-
copal hierarchy. The discussion upon this subject com-
mences with the following extraordinary passage :-
" What is the highest dignity on earth 1 The dignity of
the C'hurch. What is the highest dignity which is in the
Church 1 The dignity of a bishop.
"The highest bishop of these is the Bishop of Peter's
Church, because it is under his subjection the chief.'! of Rome
are; and they are not under the subjection of anyone who
has not virginity, or repentance, or lawful espousal; and it
is to him that seven cumhals are payable for every degree
of the seven degrees (or orders) that are upon him, if there
be eric-fine for him at all; if not' eric '-fine, the1'e is to be
the death of a person for it.
U Where is this to be found? It is in the tract which
Augustine wrote about the degrees of the Church, and of
their dire fines; and of their non-feedings, and the particular
· Page 3.j:).
CCXYlll
INTHODLCTlON.
law of the church of Peter, and the emperor of the whole
world."
The scheme upon which the cleric are ananged is a
double gradation partly connected with the orders in the
church, and partly in connexioIl with the religious condition
ofthe individual. It is needless to observe that the moral and
religious merit of the individual is referable solely to the
one virtue of continence; but it is certainly surprising that
the author arranges all classes of the church, inclusive of
the recluses into the three classes of virgins, married, and
repentant. Every fine must, therefore, be the result of three
quantities :-the official position, the moral state of the
injured cleric, and the nature of the injury inflicted. It is
impossible to construct in a tabular form the amount of
compensation payable in each case, as the results stated in
the text do not all coincide with the theory on which they
are professed to be calculated. The general principle, how-
ever, is clear, viz.:-that the full amount calculated upon the
rank of the injured cleric, and the nature of the injury, is
payable in the case only of the cleric being a virgin; this
amount is reduced by one-third if the cleric be married, and
again by another third if he be penitent;t and that between
· P. 363. Can the author of this passage have heard of the" De Civitati Dei,"
and conceived it to be a work of the character of the Crith Gabhlach?
t The penitence of the bishop may be referable to unchastity, either before or
after his consecration. That charges of this description might be brought against
a bishop, however eminent, appears from the Confe.sion of St. Patrick: "Post
annus triginta invenerunt me, et adver.um verbum quod conCessus fucram
nntequam essem diaconus. Propter anxietatem mesto animo insinuavi amiciasimo
meo que in pueritiô. meâ unâ die gesseram in uno in nnô. horâ; quia nondum
prevalebam nescio, deus seit; et habebam tunc anni" quindecem I't deum vivum
non credebam, neque ex infantiâ meâ sed in morte et incredulitate mansi donee
valde castigatus sum, et in veritate humiliatus sum a fame et nuditate et cotidie
coutra hiberione non sponte pergebnm, &c._ u NationalllISS. of Irdand," Yol. II.,
Ap. BLI.
The Drehon lawyers evidently ('ontemplated tbe cnse of a bishop falling into sin:
"There are four dignitaries of a territory who may be degraded: a faJse-judging
king, a .tumbliny bi.hop, a fraudulent poet, an unworthy chieftain who does not
fulfil his duties. Dire-fine is not due to these II (ante, Vol. I., p. ó5). See also the
gloss upon this passage, the meaning of whicb is denr, although the translation is
qnestionable. It may be inferred that the sinful and unrepentent hishop sutiered
a .. diminutio capitis, ,. as did the king when engaged in servile occupations.
I
TRODUCTION'.
CCXIX
the payments on account of injuries to clerics of various
ranks, there is to be made a deduction of one cumhal for each
grade in the ecclesiastical orders. It is very doubtful if the
seven grades referred to in the text are the same as the usual
ecclesiastical Ol'ders, as the clerical student and the recluse
would seem to be included in the computation. The author
appears to have considered that, in some cases of exceptional
iniquity, the process of compensation by eric-fines was in-
sufficient.
"What is the penalty (lit. debt) of wounding a virgin
bishop? Three victims (cunidh) are to be hanged for every
hand that wounded him; half the debt of wounding is paid
for insulting him." ".A.... to every person who sees, and who
does not protect him by all his strength, by all his deeds,
and that the guilty person escapes, it is seven cumhals that
(ue to be paid for his sick maintenance and his eric fine.".
Again-" So it is with every grade of virginity until it
comes to the case of a virgin cleric, so that there are seven
, cumhals' for wounding him, or a victim."t
These passages prove that the author not only imagined that
an aggravated injury of this class would entail the punish-
ment of the guilty parties, but would also require "blood" eÀ-
piation. These passages explain the expressions used in
reference to the" midhlach " person in this treatise, viz., that
he would naturally afford the material for a victim. Such a
mode of punishing or avenging crime is inconsistent with
the whole tenor of the Brehon law, and perhaps indicates
that the author was a cleric, or of clerical sympathies, who
enunciated principles for the benefit of the church which
never formed portion of the customary law.t
· Page 363. t Page 36';.
The doctrine of the early Irish Church of the nece,;eity of blood-shedding as
an expiation for blood is fully set out in the poem of Dubhtach l\Iac ua Lugair,
supposed to have heen recited in the presence of St. Patrick, and under the
immc,liate inspiration of the Holy Ghost;
.. The truth of the Lord,
The testimony of the New Law,
" arrant that N uada shall die; I duree it.
Divine lnowledge, it is known, decides
(To whkh ,-eneration is due),
cexx
HìTHODl"CTIOX.
The following passage is remarkable as a proof of the
re1igious ideas which existed at the date of the composition
of this treatise :-
" There are three 1.inds of recluses in a church, i.e., a lay
recluse, upun whom a soul-friend pronounces his character
of appmml, and who goes to the sacrament, who is in the
true unity of the church, without power of foot or hand.
It is as a gmrle of \irginity he is paidfinc8. He is of equal
. dire '-value with a virgin clerical student; so that there
are seVf'n cumhals for wounding, and he is of equal' dire '-
fine with him in every dignity besides, and sheddi.ng of
blood, and white blow.
.. A lay recluse upon he pronounces his character, who
does nut go to the sacrament, it is but two-thirds he reaches
to the first lay recluse.
That each man for his crime
Shall depart unto dcath."-
.. rhere was in the First Law of the men of Erin
That which God has not vouchsand in His New La".
The Trinity did not vouchsafe mercy,
Thruugh heavenly stren
th to save Adam,
I'or it was perpetual e'tistence
God gave him of Ilis merc)',
Until otherwise he merited
By deserving death.
Let everyone who kills a human being;
E, en the king who seeks a wreath with his hosts,
'Vho inflicts red wounds intentionally,
Of "hich any person dies;
Every powerle-s insignificant person,
Or noblest of the learned;
Y
a, every living person who inflicts death,
Whose misdeeds are judged, shall suffcr death.
He who lets a criminal escape is himself a culprit;
He shall suffer the death of a criminal.
In the judgment of the law, which I, as a poet, have received,
It is evil to kill by a foul deed;
I pronounce the judgment of death,
Of death for his crime to everyone 'U:ho l-ilu.
<..uada is adjudged to Heaven,
And it is not to death he is adjudged."
'It was thus that the two laws were fulfilled; the culprit was put to death for
his crime, and his soul was pardoned and sent to heann. 'Vhat was agreed upon
hv the men of Erin was, that everyone ,hould be git'en up for his crime, that sill
ight not otherwhe increase in the island.' Ante, Vol. III., pp. 1l-I3 & xx-xxiv.
I
TRODLCTlO
.
CCXXI
" Another lay recluse is he who puts bounds to his passions,
and who goes to the clergy this day, upon whom a soul-friend
ùoes not pronounce his character, or recommendation. To
the extent of two-thirds he reaches unto the middle lay
recluse."
"A person should not wonder that there should be an equal
" dire" -fine for the lay recluses who are without virginity, if
they be beloved of God, and their works great, if their
miracles are as numerous, or if they are more numerous in
the same way that Peter and Paul were to John, and in the
same way that Anthony and )Iartin were; ut dixit Sciptura,
"ubi habundabit dilechtum, super habundabit gratia.".
The author manifestly regards St. Peter as having been a
married man, and, with reference to Paul, puts a well-
known construction upon the twelfth verse of the ninth
chapter of the First Epistle to the Corinthians.
The peculiar views put forward in this tract as to the posi-
tion and duties of the clerics are remarkable, and are of import-
ance in fixing an approximate date for the composition of this
tract. The bishop, not the abbot, is the highest known
ecclesiastic, indeed of the abbot there is no mention whatso-
ever; the marriage of the clerics is assumed as permissible,
although discountenanced, inasmuch as the married cleric
thereby to a certain extent lost caste, as proved hy the pro-
portionate diminution of his "dire" -fine; the recluse is
treated as an acknowledged order in the Church, and he is
intimately connected, for the purpose of the amount of his
" dire "-fine, with his soul-friend (" anmchara "); the Pope
was recognized as the highest bishop of the Church, and as
'ruling over Rome; and in the reference to the imaginary
work of St. Augustine, there is an allusion to "the emperor
of the whole world." These indicationq point to the transi-
tional and obscure state of the Celtic Church after the break-
ing up of the CQlumban monastic system, and before its
complete reorganizatiun under continental influence, to the
latest period of the existence of the Culdees, a remarkable
era in Celtic ecclesiastical history, which haq been lately
. I'age 367.
CCXXll
I
TlWDCCTIO
,
fully dealt with, so far as the scanty existing materials
permit, by )11'. Skene.- The allusion to "the emperor of the
whole world" may help in some degree in fixing the date of
the work. A Celtic pilgrim returning from Rome would
state the impressions which the existing state of facts pro-
duced upon him; he certainly would not be influenced by
the legal theories of the civil lawyers ; the abstract idea of
the all-ruling emperor would not occur to him unless the
power of an existing emperor were brought home to his
mind by what he saw with his eyes and heard with his ears
among the public of the city. A pilgrim to Rome during
the interval between the disappearance of the influence of
the Eastern emperors and the date at which the Culdees
finally ceased to exist, could have his attention drawn to the
imperial power, as a universal dominion, only at two distinct
periods-either during the :reigns of Karl the Great and his
son Ludwig, that is, between A.D. 800 and A.D. 840, or after
the resuscitation of the imperial power by the Emperor
Otto in A.D. 951. The expression of the Bishop of Peter's
Church "having under his subjection the chiefs of Rome"
(unless this be merely a Celtic phrase expressing sovereignty),
would exactly describe the position of the Popes after the
later date. This would point to the end of the tenth or
beginning of the eleventh century as the probable date of
the composition of this tract.
From these, and the various remarkable points of differ-
ence between this tract and the Crith Gabhlach, already
alluded to, it may be inferred that the present treatise is the
more ancient of the two, and represents an older condition
of Irish society. A considerable portion of it, so much as
deals with ollamhs and poets, is purely fantastic, full of the
false discussions and quibbling classification so much in
vogue with Brehon lawyers, and valueless except as a
monument of misspent time and ingenuity; another portion,
so much as deals with the clerics, although most valuahle
from an historical point of view, cannot be considered as a
practical statement of existing law, but ratlwr as a covert
* .. Celtic Scotland," vol. 2, chap. vi. amI ix.
I
TRODUCTIO
.
CCXXUI
attempt to introduce legal innovations in favour of the
Church; the residue, which treats of tbe classes of tbe tribe,
is most valuable in every respect, although in dealing with
it, and discussing the princi!Jle of the scheme upon which the
ranks of the tribe are classified, it cannot be forgotten that
it was written by the author of, or at least has been com-
bined into one production with, the two latter divisions of
the work.
XIII.
SUCCESSION.
The last tract contained in the present has no heading or
title in the original; it has been named, for the purpose of
reference, as a treatise on "Succession," inasmuch as that is
the subject which the author proposed to discuss. This
work is of the fragmentary character, being nothing more
than a collection of unconnected extract8 or references,
thrown together in a note-book as the materials for an
intended work.
To this tract there is prefixed the following extraordinary
head-note :-" By this book, if I can, in the name of God, I
will bring the senior before the junior in every case, as these
laws down here state. Beyond this I will make an inter-
mixture of their law altogether.".
The object of the work was not to state what were
the customary law upon the subject dealt with, but to
collect authorities in support of an argument in favour
of succession by descent and seniority, and, it may be
gathered, in opposition to the rules regulating it by per-
sonal merit, property qualifications, or election. The
author must, for the purpose of extract and reference, have
had before him a considerable number of works, which it
would be now difficult to ascertain or identify. As to the
passage near the commencement of the tract, concerning the
succession of an aLbot,. it appears that the authority refer-
red to is the concluding paragraphs of the Senchus Mor
with the present annexed commentary.t
Although from its form, and the obvious intention of its
· Page 3ï5.
t Vol. 3, page 79.
C(:
XIV
INTRODUCTION.
composition, this work is unsatisfactoTY and of no authority,
many of the extracts contained in it are both interesting and
important. Many of them support the doctrine that the
grade of an individual in the tribe was originally fixed
with reference to property, and that the loss of the qualifying
amount of property involved a climinutio capitis; e.g.,
"Qualification is nobler than age.".
"The senior does not go before the junior, unless he be
wealthier."-
" 'A king without property is nu king,' i.e., as to tenants
and kinc."t
(( 'No unproductive person merits a share with the Feini,'
i.e., the person who is barren, without property, without
worthiness, docs not merit a noble share of 'smacht '-fines
or sick attendance, according to the' Fenechus '-law.":::
" , Let no wandering men pass judgment,' i.e., there shall
lIe no bonor-price for the person who is wandering about
without property.";
" The inferior man with property is put into the land, or
the chieftainf-hip."
Other extracts accord more permanency to the status of
a noble when once estahlished. The" aire-forgaill" chief
deserves a chieftainship or an abbey," even though he had
but his arms or his raiment, he shall have the honor-price
of a king, or of an "aire-forgaill chief "; to which statement
the author prefixes the remark-" I wonder at this," and
possibly considered it Lad law.
Other extracts prove that
among the Celts, as elsewhere, the claim to the hereditary
transmission of property and office was gradually assuming
legal form:-
" The son of an abbot in the present church,
" A fact est-tblished by sense,
"The son of the husbandman in the territory,
" The son of the king to bind the hostages:'
This is obviously a verse of some composition intended to
favour the hereditary succession to the coarbships of the
.. Page 377.
::: PAi'e 887.
+ Page 381.
Pagp 3
3.
I
TRODUCTION. OCXXV
greater monasteries, and even to inferior but profitable
offices. ·
* "In the monastery of Lusk, in the list of the abbots, between the years i31
and 927, we find that the second and third abbots were brothers, and s'ms of the
first abbot named in it; that the fourth abbot and the prior were brothers; that
the son of the second abbot WIIS' econumus,' or house-steward; that the fifth
abbot was son of the third; that the eighth abbot was son of the sixth; and
that the tenth abbot and the Bisht)p of Duleek and Lusk were brothers, and sons
of the eighth abbot. Again, in the monastery of Gleann Uissean, near Carlow,
we find, between 8U and 1016, the names of eigbt abbots and one Ai,"ci'lflech, or
Erenagh. Of thcse, the second and third are brothers, and sons of the first; the
fourth and fifth are brothers, and sons of the third; the sixth was foster-son to
the sec'Jnd, whilc his son was A ircilmech, or Erenagh; the se,"enth abbot was son
of the fourth, amI the eighth grandson of the second. Herc the whole are direct
descendants of the abbot who died in 874. Thus we find that the office of
. economus,' or house-steward of Armagh, was hereclitary from 779, when the
death of Cearnach, son of Ruibhne, who was bishop of Armagh, is recorded,
when he is called economus of Armagh. He is succeeded by three sons, one
after the other. His grandson, by the third son, is bishop and ancborite of
Lann Leire. The son of the latter is abbot of Lann I.eire, and . economus' of
Armagh, whose son again is abbot of Lann Leire. But, perhaps, the most in-
structive example is connected with the celebrate.l mOnH"ter
- of Clonmacnois.
Torbach, abbot or primate of Armagh in 812, was the son of one abbot of Louth,
and the father of another abbot of tbe same place, and from him descended a
family who filled many offices connected with C10nmacnois, and I'mong them we
find that even anchorites married, and were succeeded by SOns. The famil)' were
called the Citlel TOI'buegh. Their connexion "ith r:lonmacnois began with his
son Aedhagan, who died on his pilgrimage at Clonmacnois in 831; and his son
Eoghan, the anchorite, who died in 845. Eughan's son, Luchairen, scribe and
anchorite at Clonmacnois, died in 8G3; amI in f!93 his son, Egertach, the Aircin-
flech, or Erenach of Eaglais-Beg, or the little church of Clunmacnuis, died. In
94 ï, the son of the latter. Acnagan Erenach, of the little church, and bishop and
pure, irgin-that is, unmarried-died; and in 963 his brother, Dunadhach,
hishop of Clonmacnois, whose son, Dunchadh, Ferk'g/,;nn, Or lector of Clonmac-
nois, and its anchorite, afterwards head of its rule and history, died in 1005. He
was father of Joseph, who was unmchara, sunl-friend or confessor of Clonmacnois.
Joseph's son was Conn na-mbocl.t, or of the poor, who appears in the" Annals of
thc Four Masters," in 1031, as .. lIead of tbe Cek De, and anchorite of Clon-
macnois, and who imited a party of the poor of Cluain at Issei Chiaran, and
who presented twenty cows of his own to it. And Con
was father of 1Ilaol-
chiarain, Coarb of Ciaran, or abbot of Clonmacnois. It is nnne
ssary to follow
this further; but it is obVIous how prevalent at this time in Ireland was the
marriage of the clergy of all c1aS'e., and the pl'rpetu8tion of their ecclesiastical
offices in the lines of their descendants, and that it had even broken down the
asceticism of the anchorite, and the canonical rwe of the Cele De in this respect.
In Scûtland we find that the territoQ' of the old monasteries was called Abdaine,
Or Abbacy, a word represented in Latin by AMatia or Abthania, and had, to a
great extent, passed into the hands of laymen, who often retained for ,evers I
p
CCX:x.VI
INTRODUCTIOX.
The most important extracts here contained have refer-
ence to the rule of three descents, before refelTed to, which
determined the status of an individual with reference to
that of his father and grandtà,thcr, viz. :-
" He is a disease of evils after three persons.".
" He is a hill of chieftainship in the third person.".
" For it gives a prescription of acknowledgment; three
heirs have succeeded one another."iI-
generations the name of abbot. Tbe territory termed the Abthania of Dull,
which was of great extent, and included the modern parishes of Dull and Fortin-
gall, seems to have been in tbe hands of Crinan, tbe lay abbot of Dunkeld, and,
along with the possessions of the latter abbacy, must have placed him on a 1J.1r
as to power and position with the great Mormaers of Alban."-Skene: Celtic
Scotland, Vol. II., p. 341.
The causes and the results of the marriage of clerics in Ireland and Scotlaud
is th"s stated by JIIr, Skene:-
" In the early Monastic Church of IreIaml celibacy was enforced upou at least
one elMs of the monks, for the saints of the second order refused the ser' ices of
women, separating them from the munasteries; but still the
e was a succession to
the abbacy, the tribe or family in whom it was vested providing a fit person in
Ordcrs to fill the office; but when the stringency of the monastic rule was broI.en
in upon, nnder the influence of the secular clergy, marriage was gra'
ually per-
mitted and connived at, and at length became general, the rebolln,l tow.ml a
secular state being great in proportion to the enforced strictness of the previous
")stem. The natnra1 con.,equence was that a (lirect descent from the ecclesia,ti-
cal persons themsehes came in place of the older system of succession, and the
Church offices became hereditary in their family. The next step in the down-
ward process was that the Abbots and Superiors did not take Orders, and became
virtually laymen, providing a fit person to perform the ecclesiastical functions,
but retaining the name, and all the secular pridleges ami emoluments of the
abbacy. The performance of the Church service was either intrusted to a secular
priest, who was called the . sacerdos,' or sagar', or it fell to the Cite De, when
there was such a body connected" ith the monastery, or to both combined. The
great ecclesiastical offices thus became hereditary in the persons of laymen in two
ways__either by the usurpation of the benefice by the lay chieftains from whose
family it had been supplied, or in the family of the abbot by whose direct descend-
ants the office was filled. It must be borne in mind that prior to 1139, though
celibaey was e.nforced upon the monks by the monastic rule, and upon the clergy
generally as a matter of discipline, marriage, when it did take place, was not
un1a" fu\. It was not until the second great Council of Lateran, held in that
year, declared all such marriages ipso facto null and void that they became so ;
and the effect of this, whcre the benetice had become hereditary in a particular
family, was, insteß,1 of restoring the former clerical character of its possessor, to
MtereotJ PI' their condition of laymen, and to convert them into a pnrely I.1Y
fnmilJ'."--"Ctltic Scotla.nd," vol. ii., p. 338.
· Page 379.
INTRODCCTIOX.
CCXXVll
"They were once noble, i.e., unlcss his father and granù-
father were chiefs, though he may be of the same race; as
to his origin, his chieftainship is lost to him.".
" 'In which it is stated, that a chieftainship is lost,' i.e.,
during the ages of three persons.""
'" A plebeian chief,' i.e., one of plebeian race, whose
fhther or grandfather Wag not a chief.".
" Question.- What is the 'ansruth' -poet? His fatller
and his grandfather were 'ansruth' -poets; for every grade
whatsoever, whether chief or poet, if he parts with his
qualifications during the ages of three persons, his lot is not
equal to those who are found in possession of their qualifi-
cations during the ages of three persons, until they double
their qualification or their service."t
These extract.
clearly prove the nùe before refen-ed to,
that the possession of the necessary property, through three
generations, was requisite to give the complete status of
the rank to which the qualification was annexed; and that,
taking a negative fOIm, the rule was applied to the case of
those who lost the qualifying property necessary for their
rank, and that the third in descent in such a case lost his
status absolutely, and fen into a lower grade.
But if a person acquired double the amount necessary to
qualify him for a higher grade, he became a funy recognised
member of that grade irrespecti ,'e of descent. This explains
the nùe in page 317, which fixes the amount of stock re-
quisite in the case of a "bo-aire," adjoining the rank of an
"aire-desa," as double the qualification of the latter rank.
The amount specified in this passage was that requisite to
make the" bo-aire" a complete "aire-desa," and it may be
infen-ed that if he acquired the amount of an " aire-desa's"
qualification, he became an "aire-desa " 8ub 'ffWdo. And in
the same way if an "aire-desa" lost his qualification, the
status of that rank was not absolutely lost until after the
death of himself and his son, when his granm,on absolutely
passed into the lower grade. This partial acquisition of
status in the first generation, and its completion in the thirù
,. Page 337. t Page 383.
...
CCXXVIll
I:'\TRODUCTIO
.
generation constantly appears in ancient laws. Thus among
the Scandinavians there were the three gradations of the
Frigiven man, his son, and his grandson, the Bondr.- In
the Sachsell Spiegel, t11e rule is thuR expressly laid down;-
" Si qui in quatuor suis generationibus, hoc est ex duobus
avis et duobus avüs, ac patre et matre indiftàmati juris
est, illum in jure nemo infamare potest." The same principle
is marked in Roman law by the specific names for each step in
the progression toward complete citizenship, viz. :-Libertus,
Libertinus, and Liber j and eÅplains the passage in the
speech of Appius Claudius Crassus, contrasting the full
patrician with the ordinary Quirite :-" An hoc, si Claudiæ
familiæ non siro nec ex patricio sanguine ortus sed unus
Quiritium quilibet, qui modo me duobus ingenuus ortum et
vivere in libera civitate sciam, reticere possim."t
The first phrase quoted from this tract is remarkaUy
expressive, "He is a disease of evils after three persons,"
meaning that when the father and the grandfather have
been evil, thc fulness of the sins are developed in the grand-
son j this is preci:,;ely the expression of Demosthenes, 7rOVl}pÒ'
lK Tpt')'oviu,,tandgivesthe full point tothe line in Sophocles:-
Oápl1u. CTV flìv yåp Ovò' Eåv T(1íTl}' lyw
fll}TPÒ' q,uvw TpívoV}.,.Uf:, lKlþuvlÌ. KaKÍ].
To acquire the full rights of an "aire-desa," the" bo-aire "
must have qualified himself by the possession of land held
by his tenants, although he could acquire a qualified nobility
founded upon the possession ùf cattle simply.
"The law styles that person a plebeian ehief (a flaith-
aithech) who desires to obtain a chieftainship in right of
any other property, except in right of (other than) tenants;
and by tenants is flesh meat supplied to the chief;" and
again" that these kings are not entitled to anything in right
of their property, i.e., their cattle."11
,. Robertson: "ScotJand under her Early Kings," Vol ii., p. 322.
t Livy: Lib. vi., c. 40.
Dem. 1327. 3.
O. T. 1062. For the references the I::,
;tor is indebted to Mr. Hcarn's work,
.. The Aryan Househuld."
II Page 383.
IXTHODUCTIOX.
CCXX1
The qualification, therefore, of the chief, as founded upon
the possession of land, had no reference, apparently, to the
value of the land, or what would be now called his annual
income, but was based upon the numb('r of tenants upon
his land, and the amount of their food rents; that is the
number of his retainer", made up of his tenants and the other
followers, whom the food rents of his tenants enabled him
to maintain.
The right of acquiring rank in the tribe founded upon the
acquisition of property must, of course, be understood as
applicable only to free members of the tribe themselves; as
in all early communities the freedom of the tribe and the
right to acquire or enjoy a portion of the tribe lands may
be taken to have been practically identical.
The several tracts contained in the present volume have
been collected from the following sources :-
(A.)
'Om "Cect:U5a'O; or, Of taking Lawful Possession of Land. Trans-
lated by Dr. O'Donovan. Vol. I., PI). 91-123, of his official
translation, and extracted by him from T.C.D., E 3, 5, and
H 3,17.
(E.)
bllern:;ha comm"Chcera atl'OrO; or, the Judgments of Co-tenancy.
Thi" tract is described by Dr. O'Donovan as "Judgments of
Co-tenancy," and was translated by him. Vol. I., pp. 1-90,
of his official translation, and extracted by him from Rawlinson,
487, and T.C.D., E 3, 5, and H 3,18.
(C.)
bech bp.e"Cha; or, Bee Laws. Translated by Dr. O'Donovan.
Vol. I., pp. 3-16-382, of his official translation, and extr-J.Cted
by him from H 2,15, T.C.D.
(D.)
cOlb1l1ur ulfcl ; or, Right of .Water. This tract is described by
Dr. O'Donovan as" Of 'Vater :Mills, Mill
aces," &c., and
was translated by him. Vol. I., pp. 383-399, of his official
translation, and was extracted by him from H 2,15, T.e.D.
(E.)
ma1;sne; or, Precincts. Described by Dr. O'Donovan as " Of
the in, iolable space,," hich surrounded every man's residence,
.
ccxxx
INTHODU'CTIO
.
8ccording to his rank or dignity," &c., and translated by llim.
Vol. Yll., Pl" 2777-2786 of his official translation, and ex-
tracted from Egerton, 88,54, 8.a.
(F.)
'00 bv.e1teo.nmuf, &c.; or, "Of the Judgment of every crime,"
&c. Translated by 1\11'. O'Curry. VoJ. VI., PI" 902-904,
of his official translation, and extracted from H 3, 17. T.C.D.
(G.)
t:é't> (111 reap.ann a C11lt:<l1b; or, "The Land is forfeited for
crimes." This was translated by Dr. O'Dono'an. VoJ. V.,
Pl" 2320-2369, of his official translation, and extracted froID
Egerton, 88, 22, b.a.
(H.)
fo't>ta np.e; or, "The Divisions of Land." This was translated
by Dr. O'Donovan. Vol. IV., Pl'. 1251 to 1253, of his
official translation, and was extracted by IÜm from H 3,18,
T.C.D.
(I.)
'Oe fO't>ta1b cmea1t 1:umt:1 ; or, Of the Divisions of the Tribe of
8 territory. This was translated by Dr. O'Donovan. VoJ. I.,
Pl" 268 to 277, of his official translation, and extracted by
him from H 2, 15, T.C.D.
(J.)
cp.1t:h EatJtaë. The Crith Gabhlach. This was translated by
Mr. O'Curry; his first translation appears ill Vol. I., Pl'.
1-76, of his official translation; his revised translation is
paged as Pl" 2340-2400, and the text was extracted by him
from H 3, 18, 252, T.C.D.
(K.)
The sequel to the Crith Gabhlach, described by 1\11'. G'Donovan
as an unnamed tract of the different ranks of society and
Ill'ivileges translated by llim. Vol. IV., Pl'. 1300 to 13H,
and extracted by him from H 3, 18, T.C.D.
(L.)
An unnamed tract, entitled by the editors, "Succession."
Described by Dr. O'Donovan flS a Tract on the law of
SuccessioD, or paths of Judgment. 'fran:slatcd by him. Vol.
V., Pl'. 2199-22
0, of his official translation, and extracted by
him from Egprton, 88.
[ CCXXXI ]
SYNOPSIS OF INTRODUCTION.
I. The present volume of tracts selected as illustrating the land
laws of the early Irish, and the constitution of the Celtic family
and tribe, p. i. Whatever abstract legal propositions the Brehons
possessed to be found in the tracts. First inquiry, whether there
is an authentic archaic text, p. viii. Composition of original nrehon
text, p. x. Principle on which a translation ought to be based,
p. xi. 1\Iethod adopted by editors in dealing with the text, p. xii.
II. O
TAKI
G LAWFUL POSSESSION.-A consecutive treatise deal-
ing with the symbolic ceremonial by which an action for recovery of
land was instituted, p. xiii. ; exhibits the mode in which the judicial
authorit,} of the Brehon arose, and the series of legal fictions
necessary to bring a defendant into court. The authority of the
nrehon the Same as that of the judges in other Aryan tribes.
The Brehon system an instance of archaic sur\ ivaI. The Celtic
Irish never formed town communities, p. xiv. All judicial authority
deri ved from a system of voluntary submission to arbitmtion.
The origin and theory uf judicial authority in primitive communi-
ties reconsidered. "Custom" defined as the acquired habit" of
any human community, p. xv. Jurisdiction of judges gradually
established by a series of fictions. Quarrels begin to be submitted
to arbitration of tribe, p. xvii.
Iethod of bringing suit into court,
p. xvüi.
The case of the Romans considered, judicial customs of the
Quirites described and compared, p. xx. The Roman procedure,
symbol its characteristic, manuum consertio. The peculiar analogy
to the nrehon procedure for recovery of land, which is identical
"\\<ith the Roman form up to a certain point, but modified to suit
different cascs, pp. xxi-xxiii.
The case of Ninne, the son of :Matech, considcred. The Brehon
procedure for recovery of land described, p. x'i:iv.
First swp towards the estal.lishment of original judicial power
was the publication of antique formulæ, p. XX\ iii. Inconsistency
between the text and commentary a<; to the form pursucù by a
CCXXXll
SYNOPSIS OF I
TRODUCTlO
.
.
fcmale claimant. The lcading case of the woman Ciannacht.
Se\ en exceptions to the ceremonial oflaying claim to land, p. xxix.
Highly improbahle that the ancient ceremonial was exclusively
applicable to lands let on rents, p. :xxxi. The procedure further
dcscrihed. The system of counter-claim, p. xx>.ii. Amount of
fine paid by unsuccessful claimant. Discussion of the term
" coibhue," and the various classes of tribe lands, p. xxxiii. Defi-
nition of "raitech" persons divided into three classes, p. xxxvi.
Horses llsed at first exclush-cly in the symholical entry, cows
afterward substitutcíl from neccssity. Forms of procedure ended
with reference of dispute to arhitration, p. xxxvii. AUusion
to the mode in which a disputð is decided in an Indian village
community. 1\11'. \Vallace's description of a meeting of a Russian
l\lir to assess taxation, and divide village lands refeITfd to, p.
xxxviii. J udicia1 development among the Irclandic Norse. The
procedure detailed in two trials before the AIthings, related in the
Sagu Burnt Kjal, p. '{x"ix. The foundation of the jurisdiction,
the position and functions of the Celtic Brehon clearly stated, p.
xl. An attempt to express in distinct terms the bllbstance of two
fragments of ancient dicta, pr. xli-iii. The case ofScither illustra-
tive of the nature and the date of the Brehon law, p. xliv.
Passages indicative of the modern and equitable mode of view-
ing the essence of the transfer of property, p. xlvi. Assertion of the
doctrine of purchase for valuable conliideration without notice.
Passages laying down the ancient theory of society, p. xlvii.
Explanation of tlle term" ternal covenants," p. >.lviii.
III. TIlE" FINE" A:'<ID THE" GEILFINE" SYSTEM.-No distinct
explanation of the system anywhere given in these tracts, p. xlix.
A remarkable passage in a preceding volume reprinted, explana-
tory of the mode in which property was divisible among the mem-
hers of a family, pp. l-liii. Three distinct theories published as to
the origin and working of the Geilfine system since date of the last
volume of Brehon Law Tracts, ,-iz., those of Sir H. 8. 1\laine, Dr.
\V. K. Sullh an, 1\Ir. J. F. 1\I'Lennan. The views of Sir H.
Iaine
stated and explained, p. liv. Dr. \V. K. Sullivan's theory quoted;
adoption of it by 1\Ir. \V. E. Hearn. \Velsh rule of inheritance
cited, p. lviii. 1\11'. -;\l'Lennan's theory stated, pp. lix-Ixiv. Im-
portance of the tract entitled "Of the Divisions of the Tribe of a
Territory," p. I xvi. Deductions from the tract entitled "The
Lawl is FOlfeit<'fl for Crim<,," p. I xix. \Y c!l,h rul<,s of inheritance,
SYXOPSIS OF I
TRODUCTIOX.
CCXXXlll
pp. lxxv-vi. Description of the "Geilfine" system, pp.lxxx-lJOD....-ü.i.
The mles of succession laid down in the Book of Âicill considered,
p. lxxxix. Conclusions arrived at, p. xcÏü.
IV. O
THE IXCIDEXCE OF FINES AND C01lPEXSATION FOR
CRIMEs.-The tract" Of the Judgment of every Crime which any
Criminal Commits" considered, pp. xciv-ci The tract" The Land
Forfeited for Crime" considered, Pl" ci-cüi.
V. THE SUCCESSIO
TO LAXD, p. ciii. Description of the first
land system, p. civ. The origin of succession appears to be co-
ownership, p. cv. Illustration of the mles of succession, p. cvi.
Distinctions between various classes of tribe lands explained, p.
cnl. Three cases of liability and heirship stated, p. cviii.
Liability to pay fines, and the custom of compensation explained,
pp. cix-cx. The question of the nature of the interest taken by
the sons in the lands of a deceased discussed, cxi-cxiÏ. Hereditary
succession and rules of descent, Pl" cxiÏ-cxv. Female succession,
Pl'. cxvi-cxvü.
VI. JUDG1IEKTS OF CO-TE
A
CY, p. cxix. The partition of
lands, p. cxx. Fencing, p. cxxi Trespass by cattle and damages,
Pl'. cxxüi-cxxvüi. Trespass by bees, hens, dogs, p. cxxix. l\Ian
trespass, p. cxxx. Ex'stence of ten:\nts in the modern sense of
the tenn, p. cxxxvüi. Rules laid down on the relation of land-
lord and tenant, Pl'. cxxxÜÏ-cx..-u:vüi. Several and individual owner-
ship of land perfectly familiar to Irish lawyers, p. cxxxix. Value of
this tract, p. cx!.
VII. BEE J UDG1IE
S, p. cxli The legend relative to introduc-
tion of bees into Ireland given, p. cxli. This tract valuable IlJJ
illustrating modes of thought and logical abilities of Irish lawyers,
p. cxlüi. Possession of bees considered, p. cxliv. English and
Roman law thereon, p. cxlv. The Brehon law of bees, Pl'. cxlvi-
clio COllJm;Jntary thereon, p. clü. 'Yelsh law, p. cliü. Norman
law, p. cliv.
V III. nIGHT OF 'YATER, p. cl vi. Tracts of the right to con-
stmct watercourses and mills. Compensation, when payable, p.
clvii. The question of ownership, p. clvüi. 1\11'. O'Donovan's
opinion, p. clix.. Ditches di..ideù into two classes, p. clxü. The
reason why Brehon law is difficult and obscure, p. clxiü. 'Vater
mills, when first introduced into Irebnd, p. clxiv.
IX. PRECI
CTS, the extent of each determined by a national cun-
vention held at SLIATH FUAIDH, p. ch:v. Damages for violatioll,
q
CCXXXIV
SYNOPSIS OF INTRODUCTION.
p. clxvi. Protection must be legal, p. clxvii. Amount of damages,
and number of fugitives allowed, p. clxviii. 1\lr. Hearn's descrip-
tion of the original position of the fugitive, p. clxix.
X. DIVISIONS 01' LANDS, the tract an attempt to fix arithmeti-
cally the value of a cumhal of land, p. clxx. In ancient Ireland
no currency or standard of value, p. clxxi. The difficulty o
ex-
pressing the value of land obvious, p. clxxü. How attempted to be
solved, p. clxxiü.
XI. CRITH GABHLACH, the date of its composition attributed by
Dr. Sullivan to the seventh century, p. clxxiv; by the editors to
the eighth century, p. clxxv. The early relations of Irish and
Saxons discussed by Dr Sullivan, p. clxxvi.
Change in the organization of the Irish Church, p. clxxvüi
Opinion of Mr. O'Curryon the then condition of society, p. clxxix.
ThiB traet a compendium of the rights and emoluments of the
higher classes, p. clxxx. The proper grade determined by amount
of property, p. clxxxi. List of classes, p. clxxxü. Analysis of
necessary qualifications and rights of several classes, Pl'. clxxxiii.
:Mr. Hearn upon the subject, p. clxxxix. Extreme unreliable nature
of classification contained in this tract shown, p. cxcv. Tabular
analysis, p. cxlvi. Sequence of ranks shown in table, p. cxcvii.
Scale of compensation for Jeath gi, en in book of Aicill, p. cxcvüi.
The Crith Gabhlach must be regarded, to a great extent, an
imaginary work, though giving a definite picture of mode of life,
p. cxcix. Duties and rights of kings, p. cc. The week, how
portioned, p. cciv. Full description of a king in state, p. ccv.
Condition of Irish people at the date of tbis tract very unfavour-
able, p. ccvi.
XI. SEQUEL TO THE CRITH GABIILACH, p. cc, iii Anothel' classi-
fication given, p. ccix. Dcfinitions of classes, p. ccix., compared
with those in the Crith Gabhlach, and closely examined, p. ccxii.
Discussion on " dire" fine of ecclesiastics a most interesting pas-
sage in Brchon law, p. ccxvü. Important views put forward in
this tract as to position and duties of clerics, p. ccxxi.
XII. SUCCESSION, p. ccxxiü. Although of a fragmentary char-
acter this tract contains some interesting matter, p. ccxxiii. Most
important extracts have referencc to the rules of three descents,
p. ccxxvi.
-o1U "Cec-cuEæo.
OF TAKING LA'VFUL POSSESSION.
vor.. IY.
11
'JnJJ . A ;: E.33". f' 6 ../r- JI-lr ( () '/) ) 2,/- H)
/I.,'d-
,
6 -:::. I/.J.17, 3"- ']2.7 (t/fJ. !.to 9 -42.7)
t
1/.3.13, f.'tq.1.r-3i'1 tN [C ?;L/f-8"6f)
f\ .> ".1. '1 {38 _1;"
o'
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1)11
t;ect;U 'Sa-o.
O
.A
:FK
G t;ocombacht:'fub reatb raep,t;eattwË I
o"OwË mG1p.c
PO
IO:N. mbp.U"sr G1 t:e; bac'G G1 11. C]1.1cha como:-,comot; G1t:heam
,
V
, "V E a1bea r 'GU1f11Ëe'ma"Oon 'Geattach me"Oonach. 01 f1t1.'Geat-
tach 'GU1f11Ëe.
ð vocombacht;(l1b feaLb, .1. If 'C01ch no If LU(l'Ch 'C0Ib51'C na fOr l ft a
reftann 'Cftef m 'Cee'Cu5(('t) 1'0 f1f '00 bftl'Ch ín'O. nlo'Oal15 m!l1ftc
mbftu5fat'C e, .1.11' 'Cfte 5mmfta'O a nech f1ftenm!;tIT';'OOlbr1Um he. bac-
'Catft cftlcha coma comoL.I.cOlÏlcmft'OI.I. bm:aft Lelf fttam naCftlea
.1. felchim no m'Orm5Ím co naccommL'Ceft a reftann 'Oólbf1um amLal'O 1'111.
,oCCI'Cheam 5atbear 'CUlntËe .1.11' m'ChlU aem, If Lum'Chiu 5 abu fnech
'CUlm'Ol m reaftmn'O on 'Cech'Cu5(('t) me'Oonach ma on cé'C 'Cech'Cu5 a 'O.
1TI a'Oon 'CeaLLach me'Oon ach .1. nocha Lmf m reft befter 'Cech'Cu5 a
11' m reftann 'Oa cé'C 'Cee'Cu5a 'Cuml'Õe m reftumn aft !It a cé'C 'Cee'Cmöt;e;
ITer- aftue Clft'C nama Imbl'O. 1TIa ftombe 11' mmt, manu be, anm'O 'Oeaema
,fOCUr If Lmfom 'CUlm'Õe IfUl'ÕIU. 111 f1 ft'CeaLLach 'Ctllnlse .1. nOCO Lelf
m reft beftUf 'Cee'Cu5a'O 11' m reftan'O 'Caft cLa'O m reftmn'O 'Oa "Cee"Cu5 a 'O
'Cuml'Õe m reftam'O aft C(\ 111 cé"C "CeC"CUI!;tI, mana "Cabfta m "CeLLae elLe.
II ' .
. Ib' -t r'
.1. cm pp. belp.ear m 'Ceë'Cai>u5 11' amtam 'DO bep.a'D é; aua'D
reop.a 'Deëmat> 'DO "Caorup,'C Imal1 fep,ul1l1; aucro caë tae 'DO
lo'CUUatllo'C Hne Iloe Iloe l1a cé'C 'Dcë11latt>c, 110 cumat> ar 111 cér. UCur
11' 111 to 'Dq:;cul1aë, OCU1' 11' 111 to 11Ie'Dol1aë; OCur mUl1allo 'CÍncec('t)
hc lur 111 Iloe 1'111,11' 'Dut 'DO a11Utl'D co 11OP. in fep.al1l'D ocur 'Da eaë
il1a tanil, ocuf paTIne tWf, a fOlloua 11a cé'C 'Deëmat'De; ocur
11.0 ba'D C011\ 'Dtl;se'D 'DO a fOlloUCC CU1C1 11' 111 cé'C 'Decmam, OCur a
}bl1111'DI'Ceë'C l1a 'Deëmat'Dc 11Ie'DOl1ël, ocuf bet 'DO taLL p,e loa co l1attCI ;
ocur fllUl1a 'C11lceallo é amI 1'1n, It' 'Dut'DO amach Iloe p,e l1a 'Deëmame
me'Doncí, ocut' 11.0 ba C01P. 'Dtt;se'D 'DO a fop.ba cU1cël 11' 111 'Deëma1'D
me'DOl1at;S; ocur aba'D 'DÓ caé tae <<p. in mbmbatt> p.e Iloe na
I Of taking lawful pOßse8siQII.-The Irish for this is taken from O'D, 409.
tH. 3, 17, col. 311.)
"'Tv .
S1-1.(ff
\ II
?)l41v 7'\l-n<-
.ft I W 4-r
(
tt-
?) I
)
I 'm.{J -1h\o Nll"t '}"fIt
I
,.i. fv;
',J.l, I
j<<
Itwv
td,-7
'1 Iu;Iv
/MtI1v
'1 Aøw1 wh
[(tJ}
i.t
(Jv
ifk
e.
.tw.w,
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-
...U
') þ,
wt.
4 it ./ß,þli.J.,. .
'
, 1fl..,,
"Mfa;
)
(&1. ''1'J
0]' TAKING LAW.FUL POSSESSION.l
N OBLE tribes q uickl y obtain n
ssion oflãñd . OF TAKIl;O
r-
-- , LAWFUL
it i;Secured to them by the work <?f their POSSI:SSICX
horses; lands are.. Irot taken possession of until proof 'f. o:<Jwv ./Z-J.
is given;- h
an sooner get possession if from the
middle entry; it is not true pÖssession.
"
Quickly obtain, i.e. it is soon or quickly that the good men obtain actual pos-
sessionoftheland bybringingthear e<}ll;sitiBÍA.tnkll1 gpossessionintoit. The work. Ir. ft!Jt
'>>( -fv..,.""
of their horses, i.e. it is through the work of their horses it is justified to them. These below
Lands are not taken possession of, &e., i.e. equal . eairde,' i.e. he had the
territories before, i.e. I hoM or I maintain that their land ie not rctaine(] by them after
that manner. He shall sooner get possession, i.e. quicker or sooner does one
obtain poesession of the land from the elate of the middle possession-taking than
from the first possession-taking. If from the middle entry, i.e. it is not to
the man who brings the means of possession-taking into the land for its possession
for the first time that the possession of the land belongs on acconnt of its
first possession-taking; ',e has bnt an inception of right alone respecting it. If it
is, it is well, if not, there is a etay of ten daye and the possession is his then. I t is
not true poeseesion, i.e. it is not to the man who brings the means of tak..ing
possession into the land alld over the fence of the land for its possession that the
possession of the land belongs on acconnt of the first possession, nnless he makes
the second entry.
'Vhatever man brings the means of taking possession it is thus he
shall bring it: he shall give notice for the sl)acc of thirty days upon
the land; he shall serve notice every day respecting it during the
period of the first ten days, or according to OtIW1'S, on the first amI
the last day, and on the middle day; and, mùess he has been
responded to during that time, he is to go over to the border of the
land, having two horses in his hand (by tlw bridles), and having a
witness, at the end of the first ten days; and law is d.ue to hinl
at the end of five days in the first ten days, and at the beginning
of the middle ten days, and hc shall remain within for a day and
a night; and if he is not responded to then, he is to go out during
the period of the middle ten days, and law is due to lùm at the
end of five days of the middle ten days; and he shallserye notice b
upon the defendant during the period of the middle ten days,
VOL. IV. B 2
b Jr.
A n?tice by
him.
4
"Om 'CeëcUEa'Ð 8, ran <x.
b
/'l-
"
OF TAKUi(l 'Oeëma1'Oe me'Oona1 ö e; no, coma'O 1f m cêr; to ocuf 'f m to
1 ,I.AWFUL me'Oonaë ocuf '1' m to 'Oe1öeanae, ocuf muna r;mceap, é, 'Out '00
089--.10:01.
anunn a fup.ba na 'Oeema1'01 me'Oona1Ë" ocuf a nm'Om;eer; na
I 'Oeema1'Oe 'OeI5ena1Ëe, co quan in fep,a1n'O, ocuf celtp,1 hele telf
,rocuf 'Oa f1a'One. C(ba'O '00 cae tae p.e p.e na 'Oeema1'O'
me'Oona1ö ' ; no coma'O If m cér; to ocuf '1' m to me'Oonae ocuf
'1' m to 'OeI5eanae; oeuf muna dneeap. é, '1' 'Out '00 amae, ocuf
aba'O '00 ap. mÙ1'Obaró cae we a1l1U1Ë 11-e p.e na 'Oeema1'01 'OeIË-
anmË1; ocuf muna r:mccap. he, '1' 'Out '00 anun'O a fop.ùa na
IC 'Oeema1'01 'Oe15eanmö', co l\.u1öe tet m fep.amn, ocur OCt; nele
telf OCUf r:P.1 fHrone Le1f, OCUf (1 tet '00 öp.a'Omb ftar:ha,ocuf
<< tet '00 5p.emmb feme; oeuf muna 'Oamrup. 'Ot,.se'O '06 p.e n"Óut
<<n'Óunn, noco nm'Otl1;i:ee '00 öin co t:1 amae no co f1nna in teif no
naê te'f; ocuf 'Oama'O cmm;e telf na 'Oemr:a 'Ot1öe"Ó '00 p.e n'Out
,.an'Oun'O, tlOCO mn'Ot1öteê '00 öm co t;uea abem acr; t:eet::\löem '00
ùp.elt.
I
'<:eattach mp. ap.m, céc
eattach; ai> na ceêca
um1'5e;
eattach 'Ða 'Ðechma'Ð ctan ='p.amap.v;' <X'Ð '00-
c01rte
'
U1tl1i>e.
Ju+cv
'D -r;eattach t;ap. ap.t;a .1. t;ap. cÙrt>; 110 cap.but; I 't;etLuch t;1p.e C1I1
t:'UP.focp.a. (('Òlla t;eët;a t;UII1IEe .'. 't>tIEe'Ò IIU t;eët;un'D t;UII11't>I 111
fep.mn't>'t>Ofomf1l1. -r;euttuch 'Oa 't>ec1lma't> Clal1ll.amap.,.1.1I1
t;echt;uEu't> bep.uf 1I1't> a mt;hte 111 't>u't>echma't> clan p.emUT\ .1. 111 't>eëmcro
me't>onach ocuf111 't>eëmcro 't>el't>enuch. C1Un p.amap.'t , . clan m;ut;hap.
;50CCO a p.emup.. (('t> 't>o cOlftea'O t;ulnl'Òe, .1. If 't>tI5e'Ò foætar
t;uí11l't>í În fep.ulll't> 't>orom f1n.
tg4S"
0'0. 409.
[t1mne mac mar:ech 'Ofemlb tU15 fO r:um'Ó a crt1ch nUtu'O, r:P.1Up.
map.eacn '00 fUö1'O cap.ur;, ocuf fColp.fet; a neocha 1 np. ba
cemwt 'Oomb p.lam, na bo eumee chora m'O: co nelplp.r; m r:1 ba
\þ np., belp.I'Ó bup. neoenu af m np.. Urbep.r; 'Om 1TI 'Olaf baol ta
. l1mne; m 1110 'Oan 'Oume C1fl"Q):or:Q..1"ií fCoP. ap. neoch funn ; na
bu ap. cumee co'Oa an'O. 111 hup.ura fon p.o ba tlbf1 P.lan1; n1 Ù1em
<<noo enÏ1 U1t1.e. 111 te'OUT"Up. c6f1n nap.,<>ma'O teo tuam a t;lp.. 111
CM
C
I The /alt tm daya.- The illS. here reads 'middle' instead . of last;' but the
! anse clearly requircs 'la3t.'
.,.,
.... t..tnv
.,.
<<.f\- U
./TY
M-
^
or V. J"'
Aj,. UIJ\. C g
("
';/.r ....
. _f.
OF TAKING LAWFUL POSSESSION.
5
or, according to otlters, it may be on the first day, and on OF TARISO
the middle day, and on the last day, and unlpss he is responded to, p
:S::
.
he is to go over to t/w land at the end of the middle teIi days, and
at the beginning of the last ten days, into the third of tIle
land, he having wit/t him four horses and two witnesses. He is
to serve notice- during the period of the last ten days;' or according
w others, it may be on the first day, amI on the middle day, and on
the last day; find unless he is responded to, he is to go out, and he
is to serve notice- on the defendant e.very day outside during the
period of the ten last days; and unless he is responded to, he is
to go over at the expiration of the 13.8t ten days until he arrives
at half (middle point of) the land, having eight horses and three
7? J.WL 1 /lrJj,
witnesses with 11Ím, one-half of them of the chieftain rank, and the '-7
other half of the Feini rank; and unless law is offered to him before
going over, it is not unlawful for him not to come out until it is
ascertained wTwther the land is or is not his; and if it be certain
to him that law will not be given to him before going over, it is
not unlawful for him that he has not given notice, provided that
he has brought the means of tlj.king possession.
Entry over a
l1'r: .;,
rst entry; l-a.'f,40es not ")
legalize possession; an entry of twice ten days -eH: 4;r-t
J."..-ké )
laad l.Qng-tiUed; it- is-1a,w that-tak-es possession (>f R/
the land for him from the other l)(l1.ty
t'-/f,
- Ir.
A notice by
kin.
En try over a wall, i.e. over a fence; or, aceo/'ding to ot\e,'s, to bring a chariut
in aD entry upon land without forewarning. Law does not legalize posses-
sion, i.e. that is a law which does not justify pos
ession of the land for him.
t:ntry of twice ten days, &c., i.e. the means of possession-taking which he
brings into it after the two ten days. 'Cion remur,' i.e. the middle ten da
's aud
the last ten days. Long tilled,.i.e. long it has been with him under tillage.
Law that takes possession, i.e. that is law which takes away the possession
of the land for him.
Ninne, son of l\Iatech, one of the Feini, went northwards into
the country of the Uladh -.rith three horsemen to visit friends,
and they unharnessod their horses in a land which had previously
bclonged to their tribe, but it was not to demand a snare therein ;
and the person whose land it was said to thpm, take away your
horses from the land. Then the two who were with Ninne
replied: it does not make our claim greater that we have
:lBharu(;'
p,l o ur horses here; it is not t.o claim a share therp.in.
This is not easy for it was your own beìòre; they shall not
be lift there for that reaiiion. ThPy did not know u
til
h
n
tJ.? D7tV ðff- /
rf W }i.J./h
rk
6
-Om 'Ceët=t1Ea'Ð 81 1'atla.
II
.OJ1ij3lD)
r.
"".iW- MrrJ. -dA,.
!
OF TAKIKO telCfet7 (( tleocha ar. Cap.t7(('Omm t71 ba t711', a tleocha ar ap. Clcm.
LAWFUL ...
POSSFoSSIOY.
05ettrm; 1((l',um Imbl Cotlëobap. mac 11ef<x, ocur bell,t7f1"Oe padl
ecmrtt7echt7(( fOI1.r ffil n ca11.t7Ur a tleocha ar m t71P., ocur comtoË
111 111 cap.t7ar ar. ocur '00 ëombl fetba 'Oolb a come fltl
5"'01 t7eU.aIË.]
4d1J .. "r
I'
C(ß4f) Y'.
'
?
, -t,
.... [1,,] I 7 )
at=Wt= 1'echt= 1'eatba ta feme na Ewbt=ep.
hEabwt,
OIJI
.J")
tla be1p. ceadlp.a 1na t=eattach; 1t= Pt
111v'ÐoJ,omEa'Ðk
'&cúrh '00 bomE a mbach OCU1' a t=eattach ; 'Ðtm cetl r e1tb ;
l,,I. ., iJ
. . ceatt Een fWt=hëe; t=1P. fop.1' a mba1 fO'ÐtwE; bmrteac
. L.JI,.. t. [ff J J t:mJf./A-'
J1"""""" ID bowp.; mt11lt1tl11' m((p.a ma be1p. cem:;hp.((; ulwcomot C11' [tv.. .,,- '-
C. [Il/b) nelml'O; t=1P. 'Oa p.an'Oa ftm;h mp.l1ecu1b m ëe1te, a ctae-
t=ap. pott, 1 cup.mp. tm.
((t:(1It: recllt: reaLba .1. m::;mt: reét: rep.am'O 'Oa nmfne1'Oenn 111
renechuf. oCUf noco 'Otesap. m::;hsubmL If m'OILte '00 bp.1t:h m'Ot:lb 'Oa
,rt:echt:usa'O. 1J a belp. ceut:h1'a .1. noco bep.o:p. cet:hp.a 'Oa t:echt: u 5<ro.
1 t: rl p. .1. If rIp. ímrUlL5111t:ep. no íneILL51t:ep. ín'Ot:lb, no '00 bp.elt:h
't'a t:echt:u5<ro. t:olch '00 bOlns, .1. If t:OIch no If Luat:h t:OIbSlt:ep..
(( t:obach .1. m::;h5abmt. (( t:eaLLach, .1. t:echt:msë;e. "Oun cen relLb,
.1. cen rap.ann mCI, amuIL m::;a 'Dun ap.UlLL. CeaLL sen
mt:hëe .1.
D amUlL rn;a ceLt sa1Jtlín. t:1 p. rop.f a m bm ro'O L!X15 .1. ap. nap. mup.ba
na hm'OILte. bal fLeac .1. toc bUlr Imbl bo ap. .1. baf toc .1. mcrn a moo.
rUlst:ep. I<<t: t:1'e U1' na mho, no toc bUlr 1mb! saLa1" n1 u I P.I n I f m a 1'a
.,. m'f ma1't:anach blf ap. mUlp., no l111a ma1't:anach mUlfl, amUlLm::;a lmf
cm::; hm 5 .1. OTnun a mbatai> CUlcce no umtl .,. a1' annfm::;uf a mb1'lt mt:e.
"na bel1' ceat:h1'a .1. noco bep.ap. cet:hp.a 'Oa t:echt:uscrn cen et:hap.,
Up.acomoL .,. m ní rop. a J'lp.accommLt:ep. a clf '00 nelme'O, amUlL m::;a
t:1}1. mU5mn no 1'ot: m>mUlp.' .1. t:1p. blf La neë, '01<< n'Ote5u1' c'ff' ap. rocolr-
"'
rVJ 'IVrltti,.,Oß 11..S?: MW
fM
,MJI/r '-
r- 8 .()
I IniB Catltaigh.-Scattery Island in the Shannon, near KiJrush.
. Tir-Maghain.-In C., 84G, the following note is given :-Secures the rent,
i.e. land which one possesses of which rent is due, and the cattle of the entry are
distrained for that rent alone, i.e. the tiling by "hich his rent is secured to the
. Nemidh '-person, such as Tir-?tIudhain in Eile to the King of Caise!, or Hot-
Adamair, in Ui-Conaill-Gabhra to the Coarh of Lismor in the samc way, i.c.
According to the ancients all along everything which is found on Fiadh-?tIudhain is
. .
-
.) au
'.1' W">l
1-0 J4"'"
W1.Iv if '" "-'- wøt
I
OF TAKI
G J
AWF\:L POSSESSION.
7
that the land had been tbeirs before. They did not remove their OF TAJæ\G
horses from thence. The person whose land it was then drove P LAWFL"I.
OS8E88IOS.
their horses from it by force. They afterwards applied to
Conchobhar Mac Nessa concerning it, and he awarded a fine for
q:es." f-}47' unlawful
upon the person who drove the horses out of
the land, and an equivalent of what was driven off it, andhe gave
them lands in proportion to their family.
There are seven lands with the Feini into which
dist
ss i
ot taken, i
which
:
I
h t
for entry; it is men that
-Cq,UH' . " . Ie r.f.7k ZCI', 11; IDO-,
f.
..It-.'
""'-L" I ,rc
.....,..1"....<"'. "'" /woOd .,
and Hle -èntl'y a re seIZ ed '.Ipo n; a 'dun-
fort without land; a church without a green; a land .. ,. '-II
on which there arc plunderers; a deadly place o! 4".wk'
1if7'T'1!)
murrain; an island in the
which cattle 'are
brought; Zemd 'l
rts the rent of a 'Nemidh'-
person; land which the chief divides after the death
of the tenant, whel'e a hole is made, where a stone
is put.
There are seven lands, Le. there are se\"en lands which tbe Feinechus men-
tions, and into which it iq not lawful to bring distress in the shape of cattle into them,
to take lawful po_ion. Kot cattle are brought, i.e. cattle are not brought
to take lawful possession of them (the land.). It is men, i.e. it is men that are
suffered or required to be brought into them, or to be brought to take lawful possession
of them. Quickly are seized upon, Le. it is quickly or BOon seizure is made. -7;.ALJ...,..
J,,_,
Exaction,i.e.distress(lawful.e;zul'e). Entry, i.e.leglriieed. A 'dun'-fort f-
WV"'."?f
witbout land, i.e. witbout having land, such as Dun Araill. A cburch
without ø. green, i.e. such BII Cell Gabhrin. A land on which there are '!?'vk
!
.
.P-LJ.l"llt plunderers, i.e. oa v hidl tlls GatUsha' a ""an Idll l'<l. A deadly place, i.e. a place
&
.
of death, where thcre is murrain of cows, i.e. 'bas-loc,' i.e. a place where they are
carried off b)' death through cow-plague or a place of death" here there i
disease.
An illand in the sea, Le.a deadlyislandwhichisÛruatedintheøea,oratwhich
the sea is destructi\"e, such as Inis Cathaigh,1 i.e. tMre ;$ fear of their being droWlled
going to it or coming fyom it, i.e. on account of the difficulty of bring;ng them thither.
To which cattle are brought, i.e. cattle are not brought to take 1a"ful
possession of it without a boat. Secures the rcn" i.e. the thing by which
his rent is truly' secured to a . Xemedh '-person, such as 'fir-?tIaghain,' or Hot-
Adamairi, i.e. land which one has, of which rent is due, for the cattle brought to
l
Ihv w-cÁ.- '"' .)
w...vf h "' ?I-. U Q.I '&-
)
'1/y
3;T'H:/".2.:j
..,
'ot
11<11
t!ù &" >>
'1r'- J..À't
foñeited (due) to the King of Caise1 the day on which he will assume the kingdom,
becaUBe they hall killed a king of CaiseL Rod-Adamair, too, there was a serpent
there, and 1I10chuta expel1ed it thence, and the reward that used to be given to
him for having driven it thence was e\""erything which the Coorb of Mochuta oj
Lu-mor could find on it, the day on which he assumed the abbacy, should be his
propert
, for it is forfeit.
8
'bm '<:eé
ða'O 81fana.
OF TAKING LlI:;e1' ce\t1'a m t:eaLLms La Clf a nelill'Í>. 111 COI1' t:eLLaë cet1'a mn (11'
} ' LAWFUL U11'mlt:lIIlla rLata If a t:1,.. '(:;'1' 't>a 1'an't>a rLat:h .1. m t:1,1. u1'1'alllluf
OBSESSION. ' h b ' , - .
_ In r,-,U1t: , t:I1' 't>1 a't> j no If rp.ec1'a 't>at:hEabU1'-' mb""oEam, .1. con't>U15
rL<I1t a CUlt: all't> .1. coou 't>mi1m1' m a rùntuf e, ocuf 0 11.0ll1nref 111
,"[;11' n't>loo't> nocha neEII1 't>o t:echt:uEa't> 't>o b1'elt: m't>. a: cLaet:a1' poLL
.1. cLæo.I.lcLO:I't>t:e1'poLLlcom1'U1n't> m re1'all1't>. 1 cu1't:a1' Lla .1. co1'-
t:he.l. 1((1'na cWI't>e .1. m CÙJë c1'1che.l. bl poLL ocuf Lla ocur cOl1'ta rLata
ann co reft:a1' a CUlt: an't>.
, ..... ...u..-
(;
-'J"
-
L-f
J_)
1\). c;
'1..)
. ./11, .
1
\:" .1. 'Om mbel1.t::ap.m:;hEabUlt 11' na reèt:: rel1.annU10 reo, ((rat:: CUIC
.} f '" 'e reolt:: CI'O '00 cmnt::aè CI'O '00 inbteoËam j no 'Oono, '1' CUiC feolt::
. \,"
v 1Onf1n '00 inbteoEam, ocuf ni fit ni '00 cmnt::aè co 1'.a ra1'a rOËmt,
ocur 0 rarbuf rOEmt m:;á1t:: CUIC rcolt:: inn '00 cm'O
aé. marl(
11lmtte 11.UE '00 teét::uEa'O runn, 11' flaé n,cht::alEte t::llte co cunn
co co,lJ1le, 110 t::111.e cen cUlIn cen cOlbne. 1n comtlll '00 1O'Oltlb
I! '00 belWI1. '00 t::echt::uEa'O na relwnn e1te C01wb e uelWlt '00 'Oomlb
'00 t::echt::uEa'O na }:e11.ann.
.' '_.:M. D O
?lto)
f
...,.-
l
fcW
'Coëomba1E C1annacht:; c1anbltuIEe; 'Oa a1 an"Q f1tl
V'/J-wl.
b
. fama1E a r; 'Do..1U1'O mp. fea)lt:; a ce'O t:;eatth1Ê ; bach fOlt
p -ø.4rth.>. f.w pne a fO)lcOmat; 1mana 1ap.urn alt feíneachaf co hocht:;
1. fa-e
. iÞr> 2.0 ta 1u1'01l1Ee pa'Dna1re ban a cet:;eattaë, na'D tt6ana'D a
ce'O )lura. Cem:hltuma'O ta at:;haJLach -1fea'O t:;echm
cach ban____t:;eatta1E_ -00 tU1'O wttum '01<1 cean'Oa'O((1E
co n'01abta'O a1)lrne ataJ1.lwë, tora'O, Cfuadwll!. Ceatlt:;-
C- 5o./b); C20b7 fume; CUa1JLt:; fa1Eear a comna1'Om ta featt fOlf1Eeatt
'
40
o.
'-5' pa'Ona1re, Ir Wlwrn adl1tach. 'Own 'Oa ftteaEfla,: 'OatE
'Ot1Ee'O cem;h)lu1mte a ce'O
'Ot1Ee'D a1te a me'Oonaë, t:;t1L-
fUIEeatt $
'OeIEanach.
'M'
01.)
1/
ed- Jeit
(It
)
'(:;oëomloa1E clannacht: .1. 1f t:OIch no If Luat:h 1to t:olb;ssfl:;a,t
C1analt, m5en ':e1'Eura ':Op.cp.al't>, Ila re1'unna p.o bo clan uUIt:he CUfqlU-
1 I Ntimedh '.perøon.-c. 846, add
. .. the chief retains his siulre there.' ·
( ..,.,,-w.) I . L.
!J *
"'" w<A-
...u-
( """" ""- '--"T ""'it' "-"'I""T'V_
1
'
Ø7U-
(Yu
?"Ý
. '
...u.
u
vl#
.---..1/ --- tJ ;...
þraI-
.a.
ttf
-üLhú...
)'f
,ÏjIif
M11....
[1AA-t
J ",
_Ilf
J.o .
wrlvdJj<ftt...M
.J
'0vI/.v
mr;,-[7tþø
,
"7>
OF TAKING LAWFUL POSSESSION.
9
make entry shall be distrained for the rent of tbe . Xeimedh 'I-person. It is not OF TAKUW
right that all elltry by cattle be there on account of the dignity of the chief whose LA WFUJ.
1anll it is. Land which the chief divides, i.e. the land which the chief rnstri- POSSIo.,,;sJOx.
Lutes, a ' dibadh '-land; or it is a responding to the distress of ß kinsman, i.e. the chief
retains his share in it, i.e. he does not cede it during his reign, and when he will
J.ivide the · dibadh '-land he is not obliged to briug the means of taling possession
into it. \Vhere a hole is made, i.e. a mound, i.e. wherein a hole is sunk in the
dh i
ion of thc land. \V here a stone is pu t, i.e. ß pillar-stone, i.e. after its being
d, i.e. the boundary stone, i e. there are a hole alld a stone and the chief's
standing stone there in order that his shore there may be known.
If distress be brought into eitlwr of these seven lands, there are
five 'seds' due either by the guilty person or the kinsman;
or, indeed, according to otlters, it is five 'seds' by the kinsman, and
there is nothing due by the guilty l'erbon until damage arises, and
whcn damage arises, there are five 'seds' due by the guilty person.
If it be cattle that he has brought to take possession in this inst;.l,ncc,
it is fine of
->ll'
11,,1-I>o
of land with chief and tribe,
Or of land without chief or tribe. The same number of cattle which
is brought to take possession of the other lands is the number of
men that shall be bro
t
e !)o
se
o
these lands.
Ciannacht t
k posses::;io
a distant farm; she rf t.....-. f 3l;/,
ãrrX:i'1 g ed two ewes there; she På88ed over the lliound- .1._.
#1..... '-ttA'""'f "'':1'-''
I-Iu- I.H
) 7V
fence as the first entry;
lengoo tne- tFibe to' -
COllie to terms of agreement with her as to hc?' land;
she afterwards remain&l,. according to the Feinechus,
...
; eight
with women witness on the occasion,
d.ø
......a (Ñ4 i"A, 'lÞL""uÚ:)
.
J
oP the first entry, to pnY/:e that she al(l not sell her . Ir. ]...
first modesty. In four days after it is that every fIN. 'fHv
Nu.;
, t . 1 f 1 Sh ;vCOOt r.
'" d io#h
.
-frr
woman s en ry IS aw u . e, aLterwar s
_ _
again to the head of her land with double steek, a
[.r"..It:
kneadiug trough, a sieve, 1(
aking im plemont ; ,
in due ordl3r she claimed her right with a man witness. ,) .
f 1..1" r
-.(
,...,
f - d .. 1 d
I fJi l O 13 a ttö rwa rUs respo Ide to, she IS enÜt e to
four days for her first suit, to two days for her middle,
and for her last, to speedy judt,'l1lent.
Ciannacht took possession, i.e. it is soon or quickly Ciannacht, daughter
of t'crgU5 t'urcraidh took pos.es:;ion of the lands which were l.1tely far from her;
I CiallWlche took possfuion. The following anecdote is given in C. 846 (H. 3, 18,
p.3tiõ a), and in O'D. .-to tll. 3,17, eQl. õ38):-"Cillull.1etlta, i.e. dau
hter Qf
"-
Cf
JI.
.17 t.ut 3/4- ,.,
y /1.)
10
'Om 'Ceë
t1Ea'O 81f(ma.
OF TAKING rea; no 't>ono, cornm> 1 Clannoët:, 111E6n Conn La, mlc '(;m't>E, mlc ((lteLLa
P LAWFUL ULmm. '(;oéombal5 .1. 't>o caom bo111E' Clanbp.U1E6 .1. Clan mop.
OSRES8ION. t.._ .. . b ,
b
_ p.o muuc,ap. C111
5up.p.a't>. no arap.
t: Umt;1 p.om UI {;Ip. .1.0 ....em co
hULt:a. 1)a al an't> r1n ramU1Ear.l.lramÙIrò't>op.omeflmramuEa't>
.rf111 no 111 t:oP.'t>u5m> fin ocuf 't>1 cmp.l:ë;a COp.IIl't> 111a tuím. 1)0 LU1't> t:ap.
-reap.t; .1. 't>0 cum't> fI t;ap. ctu't> 111 \-'eap.mn't> 't>a cet: t:echt:uEa't>. bach
-rop. pne .1. ralE'm no 111't>fm5ím cona't> ap.
p.ann na \-'1ne bep.ur fI ín
pp. accomaLra111. 1mana lap.um .1. em ana't> fl laP. f111 me1t;e fm.
((p. -reínE'achaf' .1. 't>o P.61P. ín -renechmf' Co hocht; La.1- blt:h't>l
10 111a up.p.nm't>l p.e p.é oét; tuítl, ocuf Ce1tP.l cmp.15 't>o bP.lt:h Le a -rop.ba na
cet;hp.amtan me't>onél a hmtLl na cét; cet;hp.amt:han.
I a't>n U1 fe ban a
cet:eaLLaé .1. 't>a ban r1U't>nmre 't>o bp.sreh 't>1 Le a -rop.ba na eet;hp.amt;(!1l
me't>onël a hmtLl na eét; cetp.amtan ; Lo:ë; enech 't>o eeét;ap.'t>e 't>lb ín rep.Ul1't>,
.1. EabaL 111Een n1111't> OCUf e,ehne 1115sn é<<p.pmt: mb111't>. ""1 a't> p.e an a't>,
If.l. noeo p.eemt: eíní:ë; a cet;mu111't>t;Ip.e. Ceat:hp.uma't> La at:h<<p.aeh
.10 p.o bo COIP. 't>LIEe't> 't>o 't>amt:mn 't>1 If 111 cSt;hp.ama't> La 't>on c6t; h t\Um-
t:a111 't>sl't>snm't> a mt;hLl na eet;hp.amt;an me't>onél; crtap.p.aé -reét:uf mLe
, ap.lf' 1rea't> t:eeht;a .1. 'fre't: 111 fO 't>LIES't> eaé t;eét;m1ÇèJban't>a. 1)0
O/J /24,0) LU1't> lap.um .1. laP.f 111 mLe't>éc, .1. 't>o éual't> fl lap.um 't>otm't> a tuta,
troo é111't> a rep.a111't> bo't>é111. Co n't>labLa't> <<1 p.m s, .1. co n't>labÙl't> na
mp.ms p.UCurcap. Le p.elms a -rop.ba na cedlp.amt;an me't>onél 't>o bp.lt 't>1
Le crtap.p.ach reët;af mLe ap.lf' .1. oct; cmp.1Ë;. LOfa't>, cp.lat:hap., .1-
<< Lofrn; ocur a Cf1.1at;hap.. oeur 111 ní -rop. a eep.t:m5enn a -ru111e Leo .1. a tec
-rU111S ap. t:Ofaé UlLe. Cua1}tt; rUlEsaf a comnU1't>m .1. 111 ní -rop.
a n111't>fOl5enn a cuma nafCmp.sét; laP. cae UIP.'t> .1. a cuíceaL oeur a
clp.boLE' L<< -reap. -ro1p.EeaLL .1. La rep. bur 111-rIa't>nmre aca \-'OIP.-
EeaLL; ump. If p.lr 't>o éum't> menma 111 u5't>mp. eonabu 't>01L51Ú t;P.l ban
pa't>nmre 't>a5bmL na aen rep. pa't>nmre. 1 r 1 ap.am a t:h p.aeh .1. If
1<<p.um, afa mt;hL, fin, adlUp.p.ach recht;ur mLI; ap. lr ma't>la -rp.ecmp.t:ep.
,. hl 't>o p.e1P. 't>Ll51'Õ commt;h If amLm'Õ feo p.o bo COIP. a 't>snam, .10 ma
t:1nélf'n öef -rup.p.a fO Cét;OIP., no ap. mea't>an, If ap. éecrtp.ulme a 't>Llt;e'Õ 't>1
ap. 't>uf' oeur It; Emp.'t>1 ap. E<<é I11bm'ÕI caé mo-ö 't>o 001P. fastap. plp.p.a,
ar iAJ.ll,{?) ()
If/v
Fergus Foreraidh and nri Anbui who was wife to mai Briughaidh, but whom
Conchobhar lilac Nessa bought after the death of her first husband, Fergus Foreraidh.
The woman wished to come to her brethren to demand land of th.em, i.e. ConalI
Cernach and Ainrirgin · ..
The daughter inquired of Sencha, son of AileU, "hether it WM right for her to
demand land. lie said at first that it was not right for her to demand land; after
which "the blotchl's'" were raised on his cheek in the night. lIesai!l on the next day
that it was right for her to !Iemamlland; and he told hcr to bring man-posseilSion-
taking into it, so that grain-blotches were raised on his cheeks a second time. His
mother then told him that the means of possession-taking which he should ha, e
decided should have been sheep, a knea!ling-trough, and a sieve.
She then took two worthy female witnesse. with her, namely, Gabhal, <laughter
of Midhe IIIiuu, and Cethra, daughter of III inn, and they took IIIinn's chariot
I The blotchu.-These were said to appear on the face of Kings or nrehons who
had I!ÍVI'.n false judgments. Vide Senehas Mor, vol. i., p. 25.
.'Ç)
(
'
OF TAKING LAWFL"L PO
SESSIO
.
11
or, according to olh/!/'$, it Wll.'! Ciannacht, the daughter of Connla, son of Tadhg, OF TAKIS"O
son of Cian, BOn of Aliell Olum. Took possession, i.e. fairly seized on. Dis- LAWl'UL
f . d ' 1 . b f '.1 . if 1 - POSSESSION.
tan t arm, '.e. they ha been lor a ong time e ore In we lJosse$$'oo 0 'K"
brethren, without goodseettrity; or, accO/'ding to olhe"$, it was far away from her land
was, i.e. from the Feini 1 to madh. Two ewes, &c., i.e. she settled or arranged
them thns, she held two ewes yoked in her hond. She passed over the
mound-fencE', i.e. she went lI\"er the fence of the land to take first possession of
it. She challe.nged the trihe, i.e. I hold or insist that it is on the land of
the tribe (not of drange1'$) she brings this true claim. She afterwards
remained, i.e. she remains
after doing tlms much. The Feinech us, i.e.
according to the Feinechus. For eight days, i.e. she is to be
forthe
space of eight days, ond she is to bring four sheep with her at the end of the middle
fourthday,aftertheexpirationofthefirstfourda)8. 'Vomen witness on the
occasion of. the first entry, i.e. two women witnesses to be brought by . Ir. In.
her at the expiration of the middle four at the end of the first four days; the
1anù is equal to the honor-price of either of them, ,;z., Gabhal, daughter of Menn,
and Eichne, the base b daughter of Menn. That she did not sell, i.e. she did b Ir. ??
not sell the honor
rfirstmarri:.ge. In four da)s after,i.e. it is righttogrant Chariot.
her lhe benefit of law on the fourth day of the last four after the expiration of
the middle four; the time after that again. Is 1 a w f u I, i.e. this is the
law of every. woman possession-taking. She wen t afterwards, i.e. after the
twelfth day, i.e. she afterwards went to the head of her own property, to the head
of her own land. With double stock, i.e. double the stock which she had
brought with her before the expiration of the middle four, are to be brought by her
another time again, i.e. eight sheep. A kneading-trough, a ø ieve, i.e. hcr
kneading-trough and her sieve, and along with them the thing by which she adjnsts
her 9ak.ng, i.e. her baking ßag (griddle) first of all. In due order she claims
her ri g h t, i.e. the thing by which she sues her security in proper order, i.e. her distaff,
and her comb-bag. Witha man witness, i.e. ...-ith a man who is qualifiB!1 to bear
witness, to give testimon:r; for according to the intention of the author of thi.law it
would not be more difficult to find three female witne'.es than one male witness. Is
afterwards, i.e. it is afterwarÙ3, after this, one other tim
; for if she be responùcd
to well according to law, this is the way it should be done, i.e. ü we be responded to
at first, or in the middle, it is after four days that la" should be ceded, at the first
entry, and it is shorter every time, the more she is put to trouble', BII I :1 j''''fÇ''C'l t
"With them. And she took two sheep on the first occasion, amI four on the fourth
da:)", and eight on the eighth day; and she went in this manner at once with two
sheep and two female witnesses" ith her, and remaius afterwards. She brought four
sheep on the eighth day, and eight on the eighth day, and thus took the possession."
I F,'om the Feini. She had to come a long distance from the territory of the
Feini, in the south, to the conntry of UJadh in the north.
Put to 'rouhle.- The following explauntion is given of this passage in
O'D. 410:-" If she is responded to at once or in the middle term it is in
four days that her right is to be ceded to her in the first entry, and it is shorter
every term the more trouble is brought upon her, so that it is" a judgment of
precinct" to herself, i.e. that the term of its arrival to them, i.e. a pledge in the
precinct, or five days to solicit the defendant, i.e. five others if at the middle notice
her offer of law \VII.'! responded to, or she ib to remain for a time, for she is nearer to
the actual p08.
sion each time."
12
\)m l:eé
ða'O 81ratla.
Or TAKING conn:; rUI!'jIU.. 't>1, mmSIn ra't>e015 lUJ1.um. "DL1Ee't> cedlp.Ulmte .1. 1'0
LAWFUL bo C01P. 'VtIEei> 't>1 a rOJ1.ba na cer;hp.U1mte mo't>onêl a hmttl na cer; cer;h-
POSSESSIO
'p.U1mte. "DtIEe't> alte a me't>onaê .1-P.0 bo C01P. 't>tIEei> 't>1 a rop.ha
- (llte't>on cer;hp.amr;mn 't>e1't>enm't> a mttl na cor;hp.amr;an me't>onêl. 'Lu t-
rUIEeatt an 't>elEan ach, .1- t;at ar;a a rU1Eett U1tl 't>11 rop.ba nacedl-
p.mmtl 't>el't>enê1, .1- a CIl.O't> U1te 't>o bp.mr;h In't>.
t, '31-
11 12.(,1 "
dt C I /3
"
I["rl.; \.. I 3
mafa elt)'D1;1 tatI' fla 'Dem1;ap, 'DtIEe'Ò 'DO, 11' tan 'DO 'Duta ammn
co na quI'{) U1te. maru elt)'D1;1 tall' co n'Dem1;ul1, 11' tan paeh
1;eclrcal;SC;1 Ua'O; eona 'Òe fit) a1;a, apa'D 1;eoll,a n'Deehma'Ò, in inuum
/011' eUnn1;UUU1ll1;tatr 1 n'Dem1;a no na 'Dem1;a 'DtIEe'D 'DO, .1. 1;att Ulf
nul' It) p.e om oe eU111nEe reehemun It) feè1; 'DeI;smaè, oca t:1;S
I1JJU1l1W It) feè1; 1;ll1feë oeuf me"Òonaê.
.1. caë Uatll If aua'D 1;e01ta n'Deèma'D 'DO uqwm na Pfl, If
uba'D "Geop,a eem:::hflam1;an 'DO ueflam na nma, oeuf cuqulIlIa
,.;oeëatb'Do Ue1W1'D na fi11. oeuf 'DO Cat11.atU 'DO be11.aI'D na mna;
ocuf in eomfa'D naEam na P11. If 111 r e 11.atl11, 11' 111 eomra'D 1'111
1;IGEa'D na mna. Caè Uat11. If mna uelwm 111 "Leë"Lu5a'D '1' auu"Ò
"Ge011.a eem:::h'1amta 'DO Ue11a'D a11 in mumuari> ann, oeuf 11' amta.l"Ò
'DO be1W'D .1. aba"Ò 'DO "Gaual11.1; 'DOIU ap.. in mumuU1"ò caë tae fle 11.e
'2.' najeea"Lh11.al111te; no 'Dono, eeana, eoma'D 11' 111 ee'D to, oeuf If m to
méli>onaè, oeuf 11' un to 'DeEeanaé; 'Dut 'Di amaè a f011.ua nu
eeatflam"Gan "GulfiEe, oeuf a mn'D1Leè1; Tla cem::hflamun me'Don-
alEe "Gafl reall,"G in feflalt)'D, oeuf 'Da eatfll;S te oeuf ban pa"ÒnUlrc
te, oeuf uet-'D( ann 11.e ta co nal"Òel, oeu1' muna t:1tlea11. hi 'Dut 'DIG
,s-tIE oeuf uet 'Dl ann 11.e fle na eea"Lhflam"Lan m6'DOnUl5e, oeu1'
aua'Ò 'DO "LaUatfl1; cat t[ a]e ap. in mbmuul"ò 11.e 11.e na eem::hrwm"Lall
me'Donat5e ; no, eoma'D af It) eé'D to, oeuf 11' It) to me'Dot)(((:., oeur
lr 111 to 'DeIEanaè. oeuf 'Dut 'Dl amaé ann fin eo quan in p'11.anl'{),
ocuf eeItp.l ea1fl l 5 te oeuf 'Da uan pa'Dnatre, oeuf bet 'Dl annfl'Dc
'011.e ta co namël, oeuf muna 'D ama 11. 'DtIEe"Ò 'Di 11' 'Dut 'Di 'DIG n5
oeuf bet 'Dl ann fin 11.e 11.e na cem:: h 1 wm "Gan 'DeI5It)at;se; oet.õf
aum> 'DO "GabUlfl1; caé tae 'Di afl in mbl"Òbul"ò 11.6 11.e na eea1;h.
flam1;an 'DeIEinca1"Ò; no, eom<rÖ af m ctJ'D to oeu1' 11' It) tó 'DelE-
anaè 'Dut 'Di amaè co 1w15e tet in fCJWIt)'D, ocuf hoè1; call1.1;S tc,
, Fo,' her last, to
J'eedg juJgment. O'D. 411, adds here, "i.e. yonder (within
the land) all the decision is at the expiration of the 1a
t four days, unless law has
been ceded to her until then. Ciannaehta, daughter of Connla, son of Teige, son
of Cian, sued for seven 'Cumhab' for the reward of ber hand-Iabol\r."
OF TAKING LAWFUL POSSESSION 13
.!1) N-# ..it- iø <w--
j<<ÆA
joYlu-
rl for h
iL ia
Jìnally afterwards. She is entitled to OF T.unxo
four days, i.e. it is l"ight to cede her law at the expiration of the middle four LAWFUL
days after the first four. She is entitled to two for her middle, i.e. it is P08SEBSIO
.
l"ight to cede her law at the end of two days of the last four after the middle
fOl,r had
een attended '0. For her laet to speedy judgment,! i.e. within
all the judgment lies for her at the end of the last four da.rs, i.e. she is to bling all
her cattle into it.
If it be certain to him" that law will not be ceded to him, it is
guiltless in him to go over with all hiq cattle. If it be certain to
him that it (law) will be ceded, it is fuIl fine of lawful aettlt\l-poR-
s
that it is to be paid by him; whence is derived tlw rule of
law, "let a notice of thrice ten days be geven, when it is doubtful
to him whether law will be ceded to him or not ceded, " i.e. within
the ten-itory he iq tarrying while he is &upplicatiBg the..-<<@Íendaat JJ./
ß ,
on the last occasion, but at his own house on the first and middle
occasion.
That is, every time that the men give notice of thrice ten d!\'ys
the women give notice of thrice four days, and whatever numùer
of horses the men bring it is the same number of sheep which the
women bring; and the extent to which the men enter into the land,
is the sllme extent to whicJl the women enter. Every time that
it is women who bring the means of taking possession it is a notice
of thrice four days they serve on the defendant, and it is tllUs tlley
serve it, i.e. they serve notice on the defendant every day during
the space of the four days; or, indeed, according w others, it is on
the first day, and on the mi<!..d
day, and on the last day; she is to Jiv In. f
go out at the expiration of the first four days, and in the beginning
of the middle four days sIte is to go again over the mound-fence of the
land, having two sheep with her and a female witness, and she is
to remain" there for a day and a night, and unless she is responded a Ir. Be.
to she is to go to her house, and to remain there during the space
of the four middle days, and to serve notice every day on the
defendant during the period of the four middle days j or, accordirI{J
to otlters, it may be on the first day, and on the middle day, and
on the last day, and she is to go out then as far as the third of
the land, having four sheep with her and two female witnesses,
and she is to remain there for a day and a night, and unleB8law
is ceded to her she iq to go to her house and remain there during
the space of the last four days; and she is to serve notice every
day on the defendant during the space of the last four days; or,
ftccordirI{J to otlte?'s, it may be on the first day and on the last day
shc is to go out as far as half the lanù, having eight sheep with
" To him. There is some elTOI" or defect in the context here.
r If'
,7-- 'I
14
"Om "CeèruEa'D 81rana.
,
Ov TAKING OCUf t;p,; banpa'Onmfe, ocuf bet; '01 ann p.e' ta co nat'Oée. ma
LAWFUL I
POBSESSION. 'Oamap. 'Otl;se'Õ '01 annfel;S, If 'Otl;se'Õ '00 'Oenam 'Oolb mutl fep.ann ;
ocuf muna 'Oamap. 'OL1;se'Õ '01, Iftatl '01 51n co t;1, aét; a cp.o'O UIL1
'00 bp.ert 1n'O anun'O a fop.ba na t;eop.a ceat;hp.amta; ocuf;sema'O
í)te TI'Out anun'O bu'O chin'Ot;e na 'Oemt;a 'OL1;se'Õ '01 51tl co t;uca
'OtI5
'Õ '00 neaé
no
tI5e'Õ t;eém
;st;e 11lle, aét; 'Out cfuun'O '01 cona
cp.o'O ocuf co na 1ll111tlnt;ep, fO cet;OIp..
rtrJv.]V vrJIt.Jl
'1lJrf411JY
r [j 'fSLf
I,
,f1V 4-.t
.-'
1 O
'2-1
O'D.410,
411.
[CCpero nmte 0 nltlatb t;eét; If 1::1p,1 fOIp.cenn na fe tatt;he ; af
a hocht; famta1't>, ocuf ana'O cet;tte ta; t;eét; anunn, 1attful'Olu;sa,
, (If atte 'Oec fa1lltu1't>.
CCpa'Õ t;p.elf1 a n'Oechmu1't>e '00 bep.ult; na pp. 1m a fep.annatb ;
'Out 'Oolb anunn 1 fOP.UUI;5 na cet; 'Oechmat'Õe 'Oap. cta'O 1tl fep.u1tln,
ocuf 'Oa ech telf, OCUf f1a'OtlUIf1 'Ota mb1 to;senech 111 fep.unn ;
OCUf t;m'Õeét: 'Oa 1::1;5 p.e p.e na 'OechmUI'01 me'Õonée, OCUf 'Out anTI
IJUnunn 1tla fop.bm'Õ co quan 1tl fC}W111n, OCUf ceH;hp.e helch tatf,
OCUf a f5uP. If 1tl fep.onn, ocuf 'Oa p!ft)nUIf1 .1. CUttub t05enech
;sach fep. 'Olb 1tl fftwnn; t;((I'Oeët; '00 'Oa t;1;5 p.e p.e na 'Oechmat'Õe
'Oel'Õenée, OCUf 'Out anunn 111U fop.bero 1tl comat; bUf attt tel 1', ocuf
oét; nelch teff, ocuf t;P.IUP. pa"'Òun 'Oap.ab to;5 eltlech cach fep,
lJJ 'Olb 111 f61l.un'O; ocuf b1't> tatt no co n'Oamt;up. 'OL1;se'O '00 U1llUTI
fep.Utl'O.
1f 1 'OetbI1l. 1tl bmnt;ettat;5 OCUf 111 fcnp.t;ettars, .1. anu1'
'Oec11mU1't>e 'OP1l. anu1' cetp.U11lle '00 mnaOI, ((nul' rql. pa'011Ulp
'00 pp. amlf Lan pa'Onulf1 '00 nmaol .1. cur 111 cedllW1I!10
1.
'Oel'Õenul;5 felt pa'Onulf1111'01::1 re1tl; anuf elch 'OfeltUlb If caolt1't>
'00 mnaol. 1n 011La C}tul'O no rtta1'"Ga a 1llat;hap. bell.11' flf1 1tl
t;eét; u 5 a 'O f1ll, ocuf nl fUll., mac aTln; no, 11' a fep.unn at;hup. ocll1'
1'enat;hUlt, ocuf nl flllt comop.ba fep.p.'Õa ann.]
t=
J
beat1.t:a1'D 8enëa cet:bt1.edlach I bam;ettach at1. r e t1.t:et-
10 tach,} com'Datt feftba futachr:a FOtva EtLt1a1'De tatt
cltbp.eta1b.
'fA-'1J:f. LWú;t '-rfA4, -iý- ""i".. If,. Z.
..... I'--+<-.{I>
I · CMlid'-land. Ovcr the · d' of the word . cmid' is written the usual con-
traction for 'no,' 'or,' and the letter · b,' suggesting that the word might be
'cp.u,b,' 'a hand or fist.'
,'J )-/-?>VAo'JM-
\v1rlr.t
lr>',+' MV
io(
j-e-<J...w.
UF TAKI
G LAWFGL POSSESSION.
15
her and three female witnesses, and I'Ihc is to remain there for a OV TAKING
day and a night. If law be ceded to her then, they are to make P
=:N.
regulatiQn8 according to law concerning the land; and if law be not
ceded to her, it is safe for her though she should not come, but she
is to bring all her cattle over at the expiration of the thrice four days;
and even though it should have been certain before going over
that law would not be ceded to her, though law had not been given
to anyone, or law of actual-possession touching it, but she is to go
over with her cattle and with her people at once.
A notice of two days is to be given by women that they will
enter" upon the land at the expiration of the six days; it is · Ir.
accordingly in eight days, and a stay of four days; they go over To come.
accordingly in twelve days.
The men give notice of thrice ten days touching their lands; at
the expiration of t
e first ten days they shall go over the mound-
fence of the land, each having two horses with him, and a wit-
ness who has honor-price equal to the value of the land; and he is
to return to his house within the space of the middle ten days,
and II.t the expiration thereof he is to go OTCr as far as the third
of the land, having four horses with him, and he unharnesses them
in the land, and M has two witnel!ses; i.e. each man of them has
honor-price equal to the '/:alue of the land; he is to return to his
house and remain tlwre during the period of the last ten days, and
at the expiration thereof he is to go over into tlte land as far as he
may think proper, having eight horses with him and three wit-
nesses, each man of whom has honor-price equal to tlw t'alue of the
land; and he shall remain there until law is ceded to him cen-
cerning the land.
The difference between a woman possession-taking and a man
possession-taking is this, thll.t which is ten days for the man is four
for the woman, and what is man witness to the man is woman witness
to the woman, Le. until the lltst four days in which man witDess is
requiredfor botlt; what is horses for men is sheep for a woman. Into
the 'cruid '-land I or 'sliasta'-land of her mother she brings this pos-
session-taking, and there is no son; or according to others, it is into
the land of a fQ.ther or a grandfather, and ther.e is no male heir.
ttrfll...
';f
.
l :t
r,Nl"
Sencha adjudged III his first decision woman pos-
session-taking as riZ/ ossession-takin g , so that there
were blotches' on his cheek after h(lt'Ïng
l)((ssed biased judgments.
t<r71/
(t,.. M ff., o;ð. LJI2.
,)
-
16 "01n "Ceët"uEa'D .s'r ana .
WH
""1U.v
C'''f>:A
K
G h'Cf{{' bp,Q; a pp,1n'De[a pttb1teachG1b); 1f1 COnm1'D1"Òap, ,)
PO
ON. bant"eattach, com'Dap, reap,ba ratEt1t'De r 0 11. a EP,UG1'DG1b
tall- pttbp,eachG1b.
beaf\t;aI'O Senèa .1. f\O bf\elt;hnWEufwf\ Senëa afa cet: bf\elt:hemnuf
. in t:echt;uscro OOn'Oa amUlL in t;echt:usa'O ref\'Oa. Com'Oaf\ ref\ba.1. co
f\o ImfUILn!;1t;ef\ na boL1';a 1'of\ a Ef\uw'Olb laf\ mbf\elt:h na ctaenbp.et .1.
". laP. ctaen bf\et:hlb.
".
1l,cfal bp.,t,. f\o Icuft:af\ bp.ls in1';en t;Sencha fin '00 J1.elf\ 1'1J1.111'01
.
a pf\bp.elt:h. 1f' conml'OI'Óap. .hlfl J1.0 m8lremnaiseft:ap. in t;eët:uso'O ,
t" ,.OOn'Oa. Com'Oaf\ reaf\ba .1. cop. t:uwISret:aJ1. .1. COf\ wisret:op. at:ül- /Jl7IIO;ð4-
to'
v 18 1 ;1 na botSa fOP. a EP.Ua1'Olb laf\ mbf\lt:h na pp.bf\et; ocuf If af fl11 saOOlp. ce
p.o n8lch 'Oume aep. '00 neoch, no fOEwt ((Ite P.lf, 0 J1.0 sena naë cOlb'Oetoch
'00 mota'Ó con'OIEwp. lap. fin, no 0 Eebuf Iman 1-'OswL fin, coma l11an'O '00
ocuf '00 nelch bo'Oel11. t:'atEul'Oe .1. foLslt:hl.
'tt
r c.
nlJtw
v1
"
.1. If 1 bp.et;h p.ucuft:af1. 8eanca m t;ect;u5[ a'O] ban'Oa milll1t m
t;ect; U 5[ (l't)] fep.'Oa, ocuf p.o ep.5eft;ap. bot5a fOP. a Efulm'Olb; ocuf
p.o Icuft:ap" pp.mne bP.15e efec. OCUf If! bp.eadl p.uc, a t;each-
t; u 5[ cro] rem 'Oona mnm b. CCcuf If af fm If fottuf cí'O fOË;at no
fUmbp.ea'O 'Oume '00 'Oenam, 0 bUf cap.a no cOlb'Oelteaë '00 no
, Eebcro ulmpe, cona'O ínann '00 ocuf no 5abcro btl'tJem ímpe.
.. ,
.
/-'A
,.....-!)'.;,.'t).L
-(-
L -('-..>f,I"""'"
1ntotat'D re1cht'Dap, reatba t"echt"G1r a con'D a cenat.
bach be 'DeEabG1t, C1n'D1r ba ßacht"a1 É cp,1ëe, C01ttrca1t fit Cð7.w-(>rl;'i"
bta 0 bermb mO"Ë;a na ron'Da1'D p,att"e. 8ae1tt"G ta pne a
r O t1.comot, ro b1t"h b
(('Dba W1f1C. ..u..J >
(a....
Nú)
-ft(9
1.. 1 n Lo Lal '0 .1. f\O elttsert;Uf\ .1. J1.0 ineltt1';lft:ap. SIt1p., inssn ml11'D,oeuf
'babmp., inEen cap.pmt: n1m'O na rep.onna p.o t:eët:msr1t:op. co'OnmË a
'lIimtleif.-In O'D., 413, the )"eading runs
omewhat differently, as follows:-
" So that the blotches disappeared from his cheeks afte)" the passing of the true
jadgment b}' her, and from this is derived the CUI/urn; thllt if a man should pass 8
false sentence, whene,'er a friend or 8 relative of his shou1ù pass the true jud{,rrnent
after it, it is the same to him as if he himself had pa'scd it, and it frees him
fmm the fines of falJiC judgment after it, i.e. as he is bound to pa}' fines fOJ" him to
another ereditor, so is he to have the benefit of the judgment delivered in this case.
I Seither. Fa)"' Seiehidar' of O'D. ]2G3, O'D.4]3, reads 'Seithir,' and C.
848, . Sithir.'
. IJ-.
j;....-- /ú--.... -I""
,,
.h;t-.t-e
-tJ-
,v6s
r;;:;
"'
' l t
ilz-_
d)
_
Fl- rY!J
1-
./..",,^-
/'Uii H
Iú eø
(1}fNi }o
M1N M#.
""''I. """... d'
OF TAKl
G LAWJ.TL posstsSIO:Y.
17
BriO'h in her truth by-her tl",l0 jaàbPfilout s cured OF TAKI
G
o LAWF(;L
him; it is she that established the woman possession- PO
'E8
IO:i.
taking, so that the blotches on his cheeks were -
concealed after the true judgments we're passed.
Sencha adjudged, i.e. Sencha adju!lged in hislìrst judgment that the fern/lie
pos"",.ion-taking .hould be the same as the male posse
sion_taking. So tha t
there were blotches, i.e., so that the blotches were mised on his cheeks after
h/n-ing passed the biased jUllgment, i.e. after partial judgments.
n righ cured, i.e. Brigh, daughter of Sencha, cure!l him according to the tmth
of her true judgment. -Is it she that established, i.e. it is she that con-
certed the female possession-taking. So that the blotches, i.e. that they
snnk down, i.e. that the s"elling of the blotches disappeared after the passing of tile
tJf" l/Æ)
true judgment; and hence is derived the '"/lie, that though a peroron may compose a
aalire, or do othe)- injury to another, if any relatin of his should compose a eulogium
after that, the latle,' u:ill nullify the &alire; or if he should make good the injur,',
that is the same as if he had done so himself.' Concealed, i.e. hidden.
$
T}rat is, the judgment which Scncha passed Wag that the female
possession-taking should he like the male possession-taking, and
Llotches did rise on his cheeks; and tIle truth of Brigh cured hinl.
And tIle judgment she passed was that the women 5hould lraye
a possession-taking of their own. And from this it is evident
that whatever damage a person attempts to do, if a fl'icnd or a
relative should undo it, it is the same as if he llimself should
repair it.
k'i..u.r
Seither 2 cl-a-i--tHcd the lands which the chiefs of her
tribe had taken Im:
8e8sÏOR of.
She was a woman of Z C I/3} 3b-O. cJðí/ktN.//:>
two races, who was entitled to the land, and she
sought that it should not be after the custOlll of
slaves, or dispossessed persons. She was freed by E;rflu
J
her tribe from obligation, because female possession
1- (
)
reverts. (.-
1-ø
fW- ý41.r
Claimed, i.e. she clmll
nged, i.e. Sithir,' t!aughter of !\Ielln Ilnd GaLhair, the a Jr.
base a daughter of lIIcnn, dllimel1 the 1and9 which the chiefs of her tril,e had taken Cha,.iot,
· Silhi,..-In C. R4R, and in O'D. 413, the following note is given 1__
.. Sithir c1aimcll the land<, i.c. the daughter of Fergus, Bon of Ledi, ,,"ho wae
man-ied tab Anluan, Bon (If IIIIIl!ach, one of the Feini, and she had a son by him,
Kia lIIaeAnluain. Sithir daimed a possession from her brother.!, i.e. from Aililtl
I.ethdherg ani! from Aengu9 Aigle, i.e. the face of that Ailell WIIS half red, and
it was in Aigle Aengus ,,"as fostere'l, i.e. Meitbea5 ill the territory of Ulai!b,"
roLl
a
\.
1/ C/
.
b Jr. W:lh.
J.Iu.
Ik
Q..,.)' d.L
a..
wit,.
l"-
)
-}tHlo
. . -C" e. Jð
. .A ) . ,
.
_""'
.:... __ Î_.L- '"l-1:;y. CArI-SI/r 4.
,.. - 0
ct
,.is> o-}-a-
7 V'_
_ --
v
........,.. "'""'" L' - _ .
. J.ø L ø-nW Ð w.H-
. '_
-1J ) .
.",f
l
- ?LL.
onHt-rf1.wM'J)
-
-fv'
p' <'(1'''-' , ro I. .
).. L_ . ..I 1,
?W' -t.unJ<J. Þ
.iú- l
,....
!)
k
c""."ffl"
1I" ,.., .,...............
í - ,
01-/1J..
'
I
J. J "0111 'Ceët:'uEa'i') 811'ana.
or,..f P" ....tM ,
0.' TAKISG cencOlL. 'Cc c h t; ((I f .1. 11.0 COltttttl;SIf1:((tt, no t1OL(( COttt(( 111'0. b acll bc
l'LAWFUL 'O fJ 5((Ù((IL .1.reIChllll no lI1'OfmSIIll con(('O ùen ttO cm'Ouft;((lt 0 'OI Ù 5((ÙÙUÙ,
IOS. If 'OC (( m::hmtt 'OuLLt;atù ocuf (( l1Iad1U11t '00 f(Jilllb 'Celll1'((ch. b ((1'((cll-
t;((I"S c1'lèc .1. Ù(( 1'el't)l1'och If 1 ((1' 111 qtlè 1'0 èaltuft;((ft, no ttO b((
óC((1't;C!ll((ch Le, .1. p.ob 1I1'01'ISt:l '\-'Ott III c1'lch 1'0 C((1'Uft;((1" 1-11 Ùl a
o bCf((lb 11105(( .1. noco bta'O '1'0 bar1f 511((C 110 atblll'O oc fub(( OCUf oc
f\uba 'Oa cum U1Le, .1. ni bl((tr(( ((151 rmc 11(( ncè 1t;11'. ((èt; a 'Out1'((è(;
bU'013I11, .1. 111 blatra flU OCUf t;((LL I CUlIl t;11'C .1. III bt(( Clf na con5 b ((lL
fU11'1'U, n(( bl((t;h(('Ò ((I'Oe'Ò t;uattln(( 'Ouna, ((ët; t;1Il'Ot;att;hcp. fact;h. 1-t ((
"r OI1 'O((I'O ttUlt;c .1. noco ronn((bt(( af no hI ro1' in 1'0t; c((n (( Let '01 CCI1
fUÙ(( ocuf cen ttuba. 8((c1'(;(( La rl n c .1. fOttat'Ot;cp. a ptt ((ccol1loL a
r e l tUn 'O n(( rinc ((1llWI't) fill.
oùlt;h ban(('Oùa (;UlfIC .1. ron fC!t;h
If (('I>bu '0(11' COI1' mrec 111 relt((11l'O hI 1((1' '1'11'. 1111 a t;((Ù((lltt; U1Le '01 co
r UÙ (( ocuf co ttub((, no 1111 (( Let '01 cell fub(( OCl1f CCI1 1'ub((; no '1'011 rctt;11
It' a'l>b(( '0((1' COIlt atfec 111 rC1'((111'O umdl1 1((l t f na 1'e, .1. ltO bUI t;1'ebUl1'1
rltl h((1fec.
18
"OOIËm ap,..íLrel1'eat1, befu t:ettw5' 1 t: eo l w 'Deachma-
'Dwb 'Dtrse'D, ma'D nU(Ewr comml1,fel1,; 0 t:a cumat co
qtlc1lQ'D, a'Ò nae11 bercna t:ettmË C1'D 'D1Qbat JX>'D r Ol 1 1 S e .
t,.I/L<t;
tf:i
l.s]
2t Oa each a twm teach aeft featba, pa'Dnmr e m-
[H.]
'DftlC, rOl11,Clr 'Dt1Ee'D ,CU1Cp 'DO TIt1Ee'D, 'D1Qna'D ùe r e111e -
achar. 111u11a be remeacna1', t:ettwf 1uttfl11'D1U 11n1'D
p.a1n'D\111 'Dechma1'D, cen:;hp.l helch mt1uf 1'CUltLml1, f Utè l t
featba 'DelEe re1t pa'Dan trn::;; lwn'Dm cormmt1r;
1.\ t:p.elfe 'DO 'DbEe'D 'D1QJlo'Q be re1nech((f. nhma L òe
()
,5"
f remeéuf, t:ettwr 1U1t1'111'D1U a 11'D1EeJ111'D 'Deém(('D, ocnt:
nelch mte((r 1m qtelb mlw11la, t:p.elEe rel1, pa'D((11 t((t: 'DO
EtW'Dwb r eine . Ra1111m COpl1wt1Ur' 'Cu
f111Ee((tt
l1a'Dwb, 'D1a11((Rbe reme((ch((r. nlu11a"Q. be remc((ch((r
I Shall not fted.-Thc IllS. bere blls only · Ùlat}",' wbich Dr. O'Donovan
lcngthpned out into b1Utr((; . r' with the Slime mark of contraction el
ewhere
i
lcn
thened out into · '1'01'"
. .11 the lJm'der of ti,e land.-Fur . Leat;h ((e1' fe((Lba,' of the text, the frsg-
ments of this t)'aet found in O'D. 414, 7 U; an<I in C. 8:;0, have .. Let f uo l t
fCt.Ù((, i.e. an half free po"scssion." The different IIISS. vary 115 usual in the
Bl'elliug of the word..
::-
Y'A1
'" .... rf/...-
J
.
')o
- Þ.Jl.=i i/,.or:uJNVt)
,)
[H.iJ i}M" > Hu. jýflv
i,.
YØ. If
IÁL
(..uJ
l-C _ I'l- ::.:
.,c k)
û"-1k
e JNu-
N..t
(-rtJÙ
- r -!f.it-]
"I
W>c-)
-MýtfL
1_... w-chJ
,II:':t
Joh-4
' ) - /i.<.
-(ðT-
;f.Ht /ht.-
(10' JlWUto _ ðf/w- MSJ "'" "
w*A JA..u, -
t
- kw- "1
M.J-'J1Ø N...l.-
('T- @ M
/vfJs) 1- _....) Jh.-3
dw;
'^1 >y# V
I/u.. _ _ _.
. 'Jl-muJ
- A.L.
:Ikn- 4.-l B' M.-.u..
IÁ'
'
....u..d
AJ..H
,J-
"I .,.... .
.
4Mtf
"'f'V.--- -
....".". OF TAKING LAWFUl, POSSESSION. 19
possession of. Taken possession of, i.e., erectc<l boundaries, or they p1ac!!(lOF TAKLXG
pilla)'-stones there. She wa
a woman of two races, i.e., I hold or iusistthat p L-\WFl'L
she was descended from two races, her father being of the Ult.a, and her mother of O
KS
IOX.
thc Feini of Teamhair. Entitled to the land, i.e., she Was directly entitled to
the land which she loved, or which wag dear to hcr, i.e., she Wag entitled justly
to the land "wch she loved. That it should not be after the custom of
sla v es, i.e., that she should not, sccOl'ding to the ple8.3alit or delightful knowledge,
he bound to perform the servicei of attack and defence for the cntiJ'e of it, i.e., sho
sh:111 not feed I the head 'of the tribe or any other person, but according to her own
"ish, i.e., she shall not feed here and there for the sake of the territory, i.e., there
shall be neither rent nor keeping upon her, nor refection for the guests of the terri-
tor
' nor of the' Dun '-fort, but every impost is remove,) ./i'om her. Or di s-
possessed persons, i.e., she was not )'emo,ed from it upon the road without
receiving the one-half thereof without llf:i"!l obliged to perfol'm the senices of attack
and defence. She was freed by her tribe, ie., she was freed from the true
obligation of the lands of the tribe in that manner. Because female posses-
aion )'everts, i.e., because it ia a property of "wch the land is to be restored in
truth, for giving it all to her with the obligation of pe,:formi1l!J the sen ices of
attack and defence, or of giving the half of it without perfo,.",ifI!J the services of
attack and defence; or because it is a property of which the land is to revert from
her after the term, i.e., there was security for reJtoring it.
/"bÍ>"
Doighin, dost thou know the customs of an entry?'
In thrice ten days 1
v1'tâue, if thou commIt wisdolll ;
from land of _the va
It fjne 'cumhal' to thirty,
itì
íu
ni':;r entl:y, though the length of the
, Foirge '-llleasure
be doubled. fI.Jf' "I
Two horses ill hand;a t tho border of the-I attd,2 'with
1
witnes
,(Jh
llland!:! that his legal right a be .Ir. Lmo.
ceded to him, if there be 'Feinechus.' If there be
not' Feinechus,' he returns until the middle of the
ten days, when he should bring four horses which are
unharnessed in the free land in the presence of" two b I
. Witll
t/
et.
male witnesses. There is a similar division; in three
days afterwards his right law is to be ceded to him,
if there be 'Feinechus.' If there be not' Feinechus,'
he returns after this at the end of ten days with eight
horses which he is obliged to have to relieve the
house, with three man-witnesses of the' Feini ' grade.
There is a similar division. If there be ' Feinechus,'
specdy judgment is passcd in his favour. If therc
VOL. IV. c 2 . w. fI,.,u..
oJrv",.r t-4
'?lffl.. HW j. /4ú. jU'
/.LJHot k #J..
.!) i
l. . u
&trt- l '1u It.-
t4. fM.I/"IIMV
s.
['" La
: , i..- /'#
.
f><I"-
1.r,,'I. IN. I...w
20
'Om 'Ceët;uEa'O 81rat1<1.
OF T:\K.INO t;eèt;a t;U1n1'Oe;:- 1 tor '00 G1 t tr r ean CO Fe1 r , cona'Ooi;, CO
I.A\\F!:I. () 0
vk
I'''S.
''SSIOS. t:em CO nG1t; O elb, CO t:onmme cem;htta, acht: t:ltt cum'i')
'* ,'II') - ."."
f cet:eop,G1E, no 1mt:etEa'i) mòtWEa noeh Ir nemea'O. 1r
ar In t:eattach ro '00 bonEatt cae reatb La Feme.
<: U'1I!-
>
'>W
L/I
"yJ
t" Cp.m np,e '00 t:ettach, maenan mam mOG1i;t:eatt 1
" 1
M5
r e t:G1b
'OQ ttlp,t:att,4 ma'O ta buap. bmp.e, eumat are
q.,r;
Off 1
rtG1n'Ot:ett. munab FO reltb t;echt:a tltt Een cun'O Een
c01bne, 'Oltf1 bUG1p, betWltt.
.rf-Lr Mu
r
'1
,
.
dL,wJ4 , LftLor/lll!
$<1\1
1)015111 ap. a relfeall.."a mac; a11. NIIl11.e"OO1sell, cOfelfell.f1u 110 co
.. flO1b acm:; bapf Sllae 110 cublIl'l> III t;eët:;CUst;1 '1>0 Tl.EIP.1Il fellechmf, .1. }Jill
'1>0 11.CU'l> allll fO f11.l "0015111 .1oT1u mac P11. smt'l>ULLt:;cub. 1 t:;eo11.a 'I> each-
III a'l>U7 b, .,. If Ila t:;eop.a 'I>eChIllam at:;a 'I>Ltse'Ò III t;eët:;cust;e, 110 ({f a
mtLt na t:;eop.a n'l>l'chmam 'I>LeSCU11. 'I>e
. C11.O'l> U1Le '1>0 Ùll.elt 111'1>. 111 a'l>
f11.lf SU7f' .1. mU'l>IU c01m11.lf _
f11.l cuI' felIl, no 'I>IU mmcomcu11.ct:;cp.
,<11.e F;aetcub, If am Lam feo '1>0 'I>ella. t:;a cumaL .1.0 t:;a CI1fIlelf 'I>am
'tJ01l np. CUIllCULe co 11.uicI III 1-'e11.allll If flU t:;11.lëat:; cumuL, ocuf CIIl'l>t:;eë
011. elclIl'l>t:;ech fill, .,. CI'I> t:;I11. cUIl1cuLe CI'þ t:;1P. t:;p.lëcut:; cumaL, Ife'l> oen
ùerella allll fO fUlL '1>0 t:;eLtach. C('Ò naell ùefclla .1.11' malln 'I>011.ü1P.
1JapfaSllaeno a1ÙIIl'l> 'I>hse'Òat;eët:;cust;l. CI'I>'I>labaL fO'l> rOI11.se.l.
b cm 'I>labLa'l> r011.se a11. rut:; bef all 11 , If mi1Lm'Ò fill blUf'
"Oa each a LU7m .1. 'I>a I'ëh I Lmm COIllCI Let eoc1lUlp. III teP.UIIl'(),
oeuf 1l0CO faep. 'I>01b a FOP. U1l11f1'1>1, ocuf ùelt; CUIC fe01t:; 'I>IU feu11.t:;a11. ro
cet:;0111.IIll in t:;I11.e .,. Let:;h fU111. Ila feaLba, 110 If III rem [fØILb] Let:;hfU1P., 1m
t:;omcuLt:; a remp. llama, LallI' 01'11. IIllU11.11.O m feuLb '1>0 IlleLap. re11. ocur
,
({11.bu11.; Let:;fao11. IIl1U11.11.O m t:;feoLb Ila t:;oIlleÙlf\ oët:; fe11. no a11.bup. llama.
Leot:;h ae11. .1.1t:;I11. a cLa'() ocuf aa11.' rla'l>llalfe III 'I> 11.1 C 1'1-'1a'l>nalfe
m'l>p.Ulc aco p11.echcull cOlla 'I>LIst;ech '1>0 ëu{{m Ifill reap.all'l>. CUlce '()o
'I> LIse'l>, '1>1 ana'l> be reI neach af .,. Illa'l>la 11.OIÙ 11.1011. '()LtSI'Ò In renø-
I Food.-' t:;eIll . may also mean' fire.'
I Doighin.-A some" hat difflrent commentar)' is given in O'D., 413, as foIlows:-
.. Doiclhiu, said Xin to her son, to Doidhin, that thou maJcst know the good or
pleasant knowledge of the po,sc<sion.taldng; or Doidhin was the name of the
llrehon. She was a female' CoarL;' and she oLtains all her land with obligation
to perform services of attack and defence for a time, and the half of it \\ ithout
obligation to perform service of attack and service of ddence." .. ((p.a relfea11."
means eithel", .. (lost thou know," or ., that thou ma)"st know."
.\
-
-'tr I/ur>i.
'W"f ÛMr
\-
t".r
lJt 1f wi#..-
L
tfoJ'J
..riHL,
"J-
.J-JwiH..
.
la-.v; '" t,""""
l
M-l,,,
ZlP )1N"
{cf
Xi'7J
'4-
'
,.,..1b- ur ". "
1# L4I J.. t.,
.,,
.,..
J
klL
.Ñ-",
fM;v"Jr;,
II't?
'1
.
.I.. ..,., Lf.<.,.,J
OF TAKING L
WFUL POSSESSION.
21
L t ' F ' h ' 1 fì 1 '" . '><L-
lie no
emec us, aw u possesslOn 1S gwen; Its OF TAKI:SO
. . t b æ d . h h d I,AWn'l.
pnce IS 0 e ouere WIt s e s, COWS, food, I habi- P"'
E"-'IOY.
tation, with attendance of cattle, except in the case of -.
the laud of Conn Cetcorach, or ifland devoted to the
support of a mansion which is a 'Nemeadh'-person's.
It is by means ora this kind of entry every land is · Ir. O"t
seized 011 by the Feini. of.
In an entry on land which has fences, it is not
equally the property increases in ' sods' ; it is decided
if it be with kine he takes the possession, it is a ' CÜlli-
hal' that is mentioned. e nless it be in a lawful
possession in a land without a chief, without a tribe,
the cows which are brought are forfeited.
Doighin 2 dost thou know, i.e. her son; sl\id Nin to Doighill, thnt thou
mayest know, or that thou ma)'est have pleasant or delightful knowle<lge of lawIul
possession-taking according to the Feinechus; i.e., Kin said this to Doighin, i.e., to a
son of a wise man of the I VIta'. In thrice t en da)" s, i.e., in three times ten da)'s
the legal right of possession is to be conceded, OJ" it is nfter the three tcn dn)'s it is
required of him to bring all his cattle there. If thou consult wisdom, i.e., if
tll0U
thy own wi8dom, or if thou confer with "ise men, it is thu, thou
wilt do. From land olone 'cumhal,' i.e., as I am treating of land from
the land of the valne of one' cumhal' to the land which is \\orth thirt)' . cumhals,
and this is a ca,e of" c
for u ucertain t)'," i.e., whether it is a land of the
,'alm of one · cumhal,' or a laml of the vallie ofU,irty 'cumh,lls,. it is one custom
that is for the entry. It is one custom, i.e. the law of the possession is the same
according to the plensant or delightful knowledge. Though the length of the
'foirge'-measure should be douLled, i.e., though the douLlillg of the
. f;;jrge'-mel\,ure should take plnce throughout, it is so it will Le.
Two horses iu hand, i.e., he i, to lUlve two horses, '/Cld by'"'' [,,'idla, in
his hand uutil he re8.Che
the border of tile laud, and it is not free for them to
unharness them there, and if ther be unharnessed at once in thiland there will be -I.t.".rt
a line of five' seds,' i.e., half the freedom of the laml, or it is the old land half free,
fur eating its grass alone, but fully free is the lau(l of whieh the grass and the corn
lire eaten; but the land is half free of which the gra'S or com wone is eaten
lJ order, i.e., between the moun,l and the tillage. \V orthy wi tness, i.c, pure
witness to see tbat he entered la\\fully into the land. That his legal right
\Je eeded to him, if there be Feinechus, i.e., if the usage of the law
iøv. J..,
."..at wJ+.,
InC. 849, the reading is as follows :-" Dodill, dost tholl know the customs of a
I1raking entl')" on land? Ninè said these words to his son. A wise man of the
Ultonians sRid so to his s?n, i.e., Dodin, to teach \\ isdom unto him j 80 that he said,
Dodin, sRid he, dost thou know the customs of the making entry on land with the
Feini? What 10." does he mention here? Answer, the law of ca
tle p088
ssiol).
Quer)', what is the right fOfm of this la,,", &c.?"
.. ;.
"1
Jri--wrf&
v
H
t-t
fIt'"...ñJ.;..,
i úr -.y IN, lAitrlo
"" cMI1'W 1
1If
ÏI
If.MI
)
l-o rw.,
k..
N.M
t7t/f4 /t"rjt;
r
.
1/-'
t.,
'-
. JfJ.Y
ü I
1;O'IfM 12),7
(J.,L
(
)
4. '}(
sJ'
f::. i"J'1 3'-1
22
l)m '(;eë
u'5crn 81rana.
OF T \KINGchmr '00 'Oo:mto:m '00, 110 bo COI11 'Otl15e'Ô' '00 fOll.bo: CUlctl 'Oon 'Ocèmm'O
P LAWFUL me'Oona1'O 0: hardltl no: cet:; 'Oech m am. nluna be relneacha r .1.
OSSESSION. b . 1..
_ mo:no: 11.01 1110:11 '01..151'0 m rene
harr '00 'Oamt:;am '00. '[;e tmr
la11rul'O'u, .I.<t:;att o:t:;a ter 'Oult:;la11.raní<roa rln 0: me'O,) 11.01n'O III
s'Oa 'Oecmo:'O, .1. a r011.ba na 'Oeèmu1'01 me'Oonèl ocur I nm'O(!mèt:; na
'Oecmm'Ol 'Oemenche. Ce1t;h11.1 helch .1. celt:;h11.1 e1ch a111.ltt:;tl115Ur no
'Otlsur '00 b11.lt:;h telr m'O I r011ba no: 'OeèmO:1'01 me'OoocI, .1. Irae11. 'OO1b
0: rco11. Irm re11.ann o:nnr1'Oe, ocur noco rae11. 11.omam'O. "Oel15'e re11.
rw'Oan .1. 'Oe1'01 'Ore11arb lf1n p<ronmre '00 b11e1t:;h teo:t:; .10 t:;11.e1'01o
,. Ro:n 'Ot:;a corm artl r .1. u11.11.annt:;m11. cormaltur na 1-'111.m'Ol accu, no m
t-'111ln'Ol acucocormart. '[;11.elre '00 'Otl15e'O 'Ola no'O be relnechar
.1. mo:'Oro: 11mb 1110:11. 'OtlS!'Ô In reneèmr '00 'Oamt:;am 'Oart:;, 11.obu COI11.'Otl15e'O
'00 I f011.bo: t:;11.e1f1 'Oon 'Oecmam 'Oemenm15, a l1mt:;htlna 't>eèma1'01 me'Oonèl,
ut:; rUp11.a.1o amart=a 11.omam'O, ocur t:;elt:; a na111lrl1 apari>, muno: t:;ap.t;a11.
6 fOIl. t-'Ultte'O r11 1 t b U 11. ub 'OeèmCJ:l). MJ: f::"s)
CCpa"O nalte 0 JÍmo:01, OCur t:erur 'r LIP. a fOlp.cel1"O l1a ha01te,
OCur al1at> re to: 1al1.rUI"ÒIU, OCur t:eët: Ir LIP. 1 fOlp.cel1l1 l1a re to:.
1r 0: hoë"G rmilta1"O OCur al1a"Ò ceri;yu ta, t:eë"G at1UI1"O 1ap.rUI"ÒIU If
mte 'Oéc ramta1"O '00110:.
1D '[;ettruf 10:11. rUI 'OIU, .1. 12..00t
qt;<!..
r .:?
t:;_1Il o:'Obut cm'Oíu'O no: t;11.'
n'Oecm<ro. CC n'OI15e o:n'O 'Oecma'O, I. I r011.bo: no: 'Oecmm'Ol 'Oel'Omè1.
Ocht; nelch artecrr,.I.oct;nelch 'reníar11.ltL1l1ser no 'Otl15er'Oob11elt:;h
telrcot:;11.elbnom'Oinre11.am'O 'Oa t:;OI11.ltm. '[;11.el15e re11. po:'Oan,.I.
t:;11.el'Ol 'Ore11.mblrm p<ronarre 'Oob,1.ldl an'O. tat:; '00 1511.a'Oarb reInE',
1.5"".1. tet;'OonO:1511.a'Ombulte'O '00 11e111.m renecharr. Ran nt:;a corm art1uf
.1. ut:; rup11a. '[;ut rUI15eo:tt, .1. mo:'01o: 11.01b 111("(11 'Otl15e'O in renechmr
'00 'Oamt;am 'OUlt; t:;att, =a rUI15eatt Ultt 'Oart:; I t-'011ba no: 'Oecmaml
'Oemenè1. muna'O be relneacl10:r. .1. Ut;fuP11.a. '[;ect;o: t:;UI1l1'Oe,
.1. t;ect:;arsr:;e11. t:;uíní'Ol ín re11.mn'O 'Omt; tos bIt aco: rl11'Oechro:m co 'Otlstec
".11.1r m 11e rm. Co relr, .1. co tenS! 'Oolb ann, .1. co mbíu'O cot:;to'O.
Con 0:'00"& .1. nít;e/rp11e'O. Co t:;el n. .1. a hm11.bro:t:;ha'Ô no: fP11 eml f1n.
Co nmt:;11.elb, .':'Co[
11e1banmt;'Oo t;1S!b '00 'Oenam 'Omb. Co t;o11. ulm e r/
.1.cet;h11.a'00 b11e1t1..= m'O'00 t:;0111.It;hm. CCcht; t;111. CU111'O cet;co11ars
.1.lre cet;a 11.uc t;111o:n 'Olba a nel11e, .1.ln re11ann 0:11. 0:11. taeret:;u11naco'Onm15
3S" a cet; CU11U re1ttrllle .1. t:111 'Olbc{'t) C01t:;cm'O, Ua111. noco ne1cen o:pa'O t:;eo11.a
n'Oecmo:'O Imerem, na t;echt;u15<ro '00 b11.elt 1tl'Ot:;I, act; 0: 11.om'O fO cet:;ol11., no
comm11lum '00 b11,t m'Ot;I; act; In re11an'O '00 be11a11. a11. 6m no a11. roch11mc,
Ir1tl'Obe11m111tlt;ect:;u15<ro. 1-10 Imt;et15a'O mb11.o):;o:,.,.'OuncenreIU,no
cett cen rartel GC na bl b11u15 '010: 1l1mt:;et15u'O, .1. m re11o:nn ac na bl rmctl
/j..11e b11elt cet;h11a m'O 'Oa t;eèl:;u15<ro, alilUlt =a "Oun CC11.mtt, um11. Ir 'Oame
I TIDO male tI,itnu$eø. In O'D. 414, the following is added :-" The honor price
of each of whom is equal to the value of the land."
. Three. ' '(;11.e1'Oe . is an underlined gloss apparently by the same hand as that
whirh wrote' 'Oel'Oe . oyer the line.
S T>rel'Je days. This paragraph is fouml in the 10lTer margin of eol. 2, page 7,
of the IllS. E. 3,5, in the hand of one Donnehadh, dated at mom na cao11, 1542.
. The land o/Conn Cet-COI'ach.-InC.851, this is explained "'[;'11. 11.'Ë, lheland of
a !ling." In O'D. 415, it is called the ' ,1ibadh' -land of the' daer-stoek tenant,' and it
is there added, "the force of 'act;' , except' here i-. it is not cattle that are brought
')
; l'r
- .
'1
of the Feinechus be granted to him, the bem:jit of law should be given to him at the end OF TAIUXG
of fivedan of the middle ten after the first ten. If there be not Feinechus, LAWF!:L
&co, i.e.; lithe usage ofthe Feinechus law has not been ceded to him. He returns P06SESSIOY.
after t hat, i.e., within thy welfare lies after that point oftime, f r^,,"'1 \\js \Ii, i'i<<n of t< J4,- I/... 1)f. L4. tI
the two ten., i.e., from the end of the middle ten and the beginning of tbe last ten days.
Four horses, i.e., he is bouud or ob1igcd by law to bring four horses with him
into it, at the end of the middle ten days, i.e., it is free for them to unharness them
in the land in this case, and it is not free in the former instance.. Two m a Ie. Ir. Bifore
witnesses,' i.e., to bring with thee two men to bear testimony, i.e., thrcc:. u..
There is a similar division, i.e. the)' divide what seems like the truth, or
they have the truth to all appearauce. b In three days to be conceded b Ir. Si7lli-
to hi m, if the Feinech usb e su bm i tted to, i.e., if the custom of the larlyo
law of the Feinechus be ceded to by thee, it is right to give him the bC11t!jit of the
law at the end of three days of the last ten, after the middle teu, ut supra, i.e., a. it
is before, and the notice goes into tile reckoning, unless it is given as an addition
mentioned in the now.'e to it that it is ten days.
A notice of two days is given by a woman, and she comes int.o tIle
land at the end of the two days, and there is a stay of six days after
this, so that she enters upon the land at the expiration of the six
days. It is thus eight days and a stay of four da) s, she goes over
after this, it is thus twelve days.3
He return s after this, i.e., within the tarit(l1'!/ th)O welfare lies
g the
full determination of the three ten days. At th e en d of ten, i.e., at the expiration
of the last ten da)'s. Eight horses he is ohliged to have, i.e., eight horses
is what he is bound or obliged by law to bring with him to the house or end of the
land to ugaiD it. Three men witnesses, i.e., three men as testimon)' to be
broughtthither. "ïth thee of the Feini grade, i.e., with thee, ofthe grades
which are according to the F,'inechus. There is a similar division, i.e.,
ut supra. Spe e dy j u d gm e n t, i.c., i[ the custom of the law ofthe Feinechus be cedcd
to thee, within tM territ01'!J, e' ery decision lies for thee at the end of the last ten da)'s.
If there be not Feinechus, i.e., ut supra. Lawful possession, i.e.,
the pOl'SCSSion of the land becomes legal for thee when thou hast been legally
viewing it during that time. Wit h she d s, i.e., for their lying there, i.e., that
they may sleep. With cows, i.e., the cattle. With food, i.e., the fceding
('f that cattle. Wit h b a bitation, i.e., to erect a habitation of housesjfor them
in which tbe)' mayr<<:main. With attend an ce, i.e" to hringcattle wit
theeinto
it for relief. Except the land of Conn Cetcorach,'i.e.,hewasthefirstthat
obtained the third of the' dibadh '-land in Eirin, i.e., the land on which the aensible
adults sent their first obligations of tenancy. i.e., a common 'dihadh'-lallll, for a notice
of three ten days is not necessary concerniug it, or to bring requisites for taking
possession into it, but it is to be divided at ouce, or equal stock is to be brought into it;
hut aa to the land which is lent or let for rent, it is into it the reqnisites for taking
po.session are brought. Support of a mansion, i.e., a 'duu'-fort without
laud, or a church without a green, which has no mansion to support it, i.e., the
land which has no green into which cattle might be brought to take possession of it,
OF TAKING LAWFCL POSSESSIO
.
here to take pO!!Øcssion of it, but per"Ons, i.e., a 'dun. -fort without land, or a cburch
without a green." 'Conn Cet-Corach,' appears to mean. .. Conn of the first con-
tract," i.e., who pnt the first contract, or en
a!rement (' cor') upon the tenant.
0'"
.....i>
út.-
.
/.1tlf0.L-
1-
*
.' cWJ M{1hU
W M
?P"
-
(þ
oJMu
tð 7'r1
n BS 2.
OF T.
KIII"Obep.ap. Nt
ect:usat:> r l'Oe. 110ch ' r 1lcmea'O. .,.)ltlO m ,:ep.atl'O a r a
J.AWFUL
PO
E"SION. flp.acomwtt:ep. Clf '00 nelme'O, amlllt ant LIlt 111u5((111 no Rot; (('Om((lp.I.
11' af In t:eattach fn, .1. Ifaf111 t:;cèt:u5a'O fat:0Ib51t:ep. cach fep.atln
i moop.ap. cedlp.a 'Oa t:eèt:u5a'O '00 p.elp. 111 rencèwf'
CP.UI t:lp.e, .1. t:ett((ch 'fm t:lp"11at:;wt:cpuí. 1naenan matn .1.
m hinan'O m05W5uf t1lwne '00 neoch t:ett((ch I t:1P. co CP.lllbJocuf I t:lp. cen
CP.U .1. noeo noen Inan'O tl111 '00 belp. mou5a'O ma111eè ap. ,:ep. 111 ,:ep.ntnn 1m
íc fet: P.lf 1m t:eèt:usa'O 111 f"pa111'O co cp.lllb Ime WCI ocur cen CP.UI b l1HC,
aèt: If mo '00 bep.wlt co cplllb l111e mCI; no noeo naennn 111((11'0 Um '00 bellt
c 1II0U5 a 'O ap. 111 ,:ep. bep.uf
echt:;u5r{'l) '00 upelt:;h 111'0 co qUllb ech WCI ocuf
cenep.lllbec11,aèt:lfmo'Oobepntp.coclunbec11 HlC1- 11la'O ta uuall, .1.
ma'O telf 111 bu,,-p. '00 ni 111 U5 bOlp. bepuf 1111 t:eeht:u5u'O, Cu m at a fe
rtatn'Ot:ep., .1. wfllel'Ot:ep cumat re wooa t:eèt:;u5u'O t:;1p.e cen cuntl eel1
cOlbni. 111unab,:0 feltb, .1. ( man ab(( p. 'fe'Õ\
,:ep.am'O bo'Oem p.o
,.1AJèt: w 5 e ft: a p. he, If anll at:a fin. 'b en cu"iï'O';-:-rten eunn cOlbmtuffa.
'ben co,bnp
,. cen cOIbmt:e'Owf .1. naem úCUf pp.en. "(htf' buul1"'.
bepUl p, .1. 'Oltr' 111 buwp. bep.wp. If m t;echt:;usu'O nm'Ðtt5teè p.e
aeo na
cumwLe p.omamn.
M IU
,+"
I
{O'Aw
8,'Ð1
. .11
O/>>-J qbi
1I{;,ð.,'fÞ, /.fILf'
1'/J Z
1h-1
"h '
tq")
24
"Om 'CecLUEa'O 81rana.
.1. Cumat re muo ro, ocu1' '1' CU111C! m::a 1"n a "Cec1rcu;su"O Lllle
,. co cun"O co cOlbne, no CI"O a "Ceër;u5a"O Llp.e ;sen cllnn ;sen eOlune;
no "Oono, '1' cumat fe 111UO 1 "Cer:r;u;sa"O "C111.e cen cunn cen c01une,
oeur cumat "CP.1 mbo l1'1n r;echr;u;sa"O atL"
ma"O "Cap. tan ;me "00 na lIU<<11'LIU, oeu1' '1' "C1P. ;sen eunn ;sen
cOlbne, If cumat ocu1' "Oltfl 11 at l1nle. ma"O all. Lcrt í111(" If q1.1
ls' eerhllUlmte eU111arLe oeu1'q1.1 eer:hllulmte na hmp.me. 1na"O Ecm
;me ILlP., If let eumut oeuf Let n<<11l111e. (ClllHt111 na111a "Ou e0111)'u-
5 mt , amUlt 11.0 llar"01"u111,"Oo n(( hl)"trU, oCll1' Let eumut 111a"O a cam.
lTIa"O r: l l1. co dlUn"O co cOlune, '1' "Oll)'l) 11(( harll1llC CU cumat "O U 11.
tan hue, r;11.1 cear:hr.wmte "C((11. Let íme ueu1' Leat een íme 1t::111. ;
, ocu1' If 111ann a"C(( 1'0 "00 '1'Llb ocu1' "00 Uatrtmu.
ma"O anpf"Oo nallOu LIlt co eunn, '1' let par: l1(("o, no anJlut
tilt co chun"O.
I Which is n 'Ne7l1headh '-per.o,,'.. The reading in C. 8:;1, i, "no C1f neIl1l1'Í>, or
the rent of a Neimidh, i.e., land of which it is due."
2 With fence. ",'mmd it. 'C)"lU Ime,' may mean also" 0 fence, ".hick i. 0 paling."
8 Of ll.Oru.. The word' ech . was not translated!.>)' Dr. O'DonO\':1n: it is here
rendered "horses," its meaning in modern Irish, :1 meaning ..1so found frequentl).
in the Brehon Laws-vi,l. C. ] ,248, 1,
90; O'D. 2,085. That horses were require,l
for taking possession in
ome ca'e
i
evident from this and several other pnssage.
ill the present tract.
OF TAKING LAWFUL POSSESSION.
25
!uchas Dun Arail1, Coritisper
onBthat are brought to take posse<:sion of it. W h i ch OF TAKlftG
is a 'X em head h'-person's,' i.e., or the land bv which the rent ofthe 'Xeimhedh'- LAWFUL
pcr.on is truly secured to him, such as Tir IIlu
hain or Rot Admairi. It is by P08SE8B'ON.
means of this entry, i.e., it is by this form of takillg po,<"Cssion every land is
taken posseøsion of into which cottle are brought to legali:r:e the possession aecord-
illg to the Feinechus.
Lan d whi ch has I en ces, i.e., an entry on the land about which there areCences.
I t is 1I0t equally the property increase&, i.e., it is not equa1ly pro-
r
rt
- illcreases lor one ,oho has ..,atk entry into a land with fences and into a
I,,"d without fence.., i.e., I do not deem that thillg the same which brings increase.
of wealth to the owner of the land as to paying' seds. to him for taking lawful
possession of the land" ith fences around it. and a land without fences around it, but
more is gÏ\'en for land \I ith fellces around it; or, I do not deem that the same ....hich
bring. increase to the man" ho brill
means of taking possession into it with cattle
of horses and without cattle of horsc.,' but it is more when he has cottle of horses.
If it be with kine, i.e., if it be with cows he enters to take lawful possession.
It is a 'eumha1' that -is mentioned, i.e., a 'cumhal' worth six cows is
mentioned as b/"Ought to t.ake possession of a lalld without chief or tribe
alliance. Unless it be in a lawful possesBion, i.e., if he says it is his
own land that he has taken possession of, it is in that case thi! is so. Without
a chief, i.e., without a chief of the 88me tribe. \\ïthou t a tribe, i.e., without
agreement,i.e.,ofsaiutsalldjustmen. The cows which are brought are
forfeited, i.e., the cows which are brought as unla"fll1 mellDs 01 taking posses-
siou are forfeited, together with the' cumhal' afore>ai..J.- . Ir. &for
....
That is, this is a ' cumhal ' of tlte value oj six cows, and this is
equally gÏt'en as tlte fine for taking possession of land which has b a b Ir. Willi.
chief and a tribe, or for taking Jlossession of land which has
note a chief and a tribe; or, according to otlters, it is a ' cumhal ' of . Ir. With-
the value of si..x cows for the taking Jlossession of land which has out.
not a chief and a tribe, and a ' cumhal ' worth three cows for the
uthcr l1osscssion.takillg.
If the nohlcs lun'c cntcrcll d o\"er a full fence, and it is a land d Ir. For
which has not a chief and a tribe, it (the fine) is a ' cumhal,' and for- 'he Robks.
feiture of stock. If they hare ente7'ed over a half fence, it (thefine)
is three-qnarters of a' cumhal,' and three-fourths of the stock. If
tlLC!Jlwve entered on lalld "hich has not any fence at all, it (tlce
fille) is half ,t 'cumhal,' and half the stock. The stock only is to he
l"lually divided as we have said, by the plebeians, and half a 'cumlml'
is tlte fine if it be in ' Cain '-law. If it be land that has a chief and
a tribe, it (tlce ]Jtm.alty) is r.ll-feiture of the stock "ith a 'cumhal'
fine, if entTance be 'lIwde over a full fence, thref'-quarters if over a
half r.>nce, and one-half if there be no fence at all; and this is the
same "ith respcct to þlebeians and nuLlcs. . Ir. For.
Ifithe unknown to him who entered that it"as not a land that had a
chicf, it is half fine that is paid by l1im, or, as in land that had a chief.
'f o
lfbfr
71<<. I;. O
,. <M
'"""""ï ''t 1<1-1
O'D (17.
26
"Om "Ceèr;usa'O 8trana.
OJ' TAIU!rG 'bne mte: ma-ö np, co cunn co c01bnp, '01a mbe'O qla1, '1' cumnl;
LAWFUL .
rO""BSBION. muna be'O '1' tet cumat, ocur '1' COI'CCEann m'Orm 1'Cltt 'reat Ocur
uar at . "01a mbcp,a mtîaín fOP, mttím 'Ceaë'Ca '00 'Omnmb OC\1r
eaëalb ocur bUalb, '1' 'Olt1'f \lite CÓ ttO t05 cumalte '01a mbe'O CJtat.
S" muna be'O, '1' let cumaL ma'O ba beltH'ar ocur mch ó5a, oCllr
'1' tU5a mm tO b cummte, '1' 'Oltf1 nu hal)une '00 qtocmp,e, '01U
rnbe'O C)1a1; muna be1), '1' tet 'Oltf1 nmttme ocur cumat a eqlO-
cmp,e, '01a mbe'O C)tal. muna be'O C)1.<U, '1' tet cumat.
'(;1p, cen cunn cen c01bne, '01a mbe'O CJla1, 11' cumat ocur 'Ollp
/0 nmttme '00 umrbb, ocur tet cumnt ocur tet 'Oltrl muttme, tllUlIn
be'O cp,m. m<rò '00 1rbb co C)lOatb, '1' tan 'Oltf1 nmt1.me. mUll a
be'O cp,m, '1' tel'Ch 'Oltf1 nalp,me.
[munup fO te1tb t:;ecfJr:a1'O.
20.7-'l
.1. munup a tt1ch'C a fettum'O fem 'Ceë'Cur 1 'Ceë'CuË;a ntte Cen
,ç conn Clll c01fme, l'C1tt cam ocur Uttp,u"Òur, .1. munup '00 rmË;e reWa
aë'C fOP, e1dn.
"C1p. cen conn cen cotbne, 'Ottf1 bum)'\. bep.uft.
.1. '(;,t\ cen cunn comflatura p,lr, .1. tera, .1. fine, .1. cm COI
-
nep:;a, ate 'Ce'CnU1r ocur buttba, .1. 'Oltf1 m bump, bettUltt 1fm
')l! 'Cech'Cu5 a 'O nmn'Ot1Ëtech tte 'Caob na cummte ttomumn, C1"Ò 1yi1p
C1"Ò umrt1t), .1. '1' '0 1te r m buatt Ulte, .1. 1tl 'Can 1)' 'Cltt em cunn
cm cOlbne, '1' '01tf1 nmp,me ocur na 'Cp,1 re01'C a nm'Ch5m m
fé01p,: no 'Oono, '1' 'C)u reol'C nama m 'Can na retctep, 'Cp,1 1fItt
n'Oe)\ur cc co nat tmr m dtt, ocur '1' tO b tal]:;e fO 'Oep,a amnrm :
J m r;an 1mUp,tto 1r; '0 1t r l nmttme ocuf na 'C)u re01r;, 1me nm'Op,u1C
1 ro"Òultl: ma'O ter;h 1me 1mup,p,0, '1' tet '01lfl nmtlme 1 ro"Òum. ]
llJtkere be cattle. Owing to the ambiguity of the term .1 CJ1.II1," or .. crUll,"
it is 'Very difficult to decide in some instances whether it should be rendered" caUle "
or U a fence. It
t .Ar,forfeill-d. Aft
r" bcJ1.uJ1." in the 1\IS. the words" mecuJ1. nec1lt:u',
follow. They were not translated hy Dr. O'DouoV'an, and their meaning is ver.'"
obscure.
-t!.d.
4
OF TAKING LAWFUL POSSESSION.
27
Another version-If it be a land that has" a chief and a tribe, and OF TAKIKG
if there are Ð&We, it (the fine) is a 'eumhal;' if there be not cattle, it P:;:::ø
.
(the fine) is a half' cumhal,' and this is common in this case both to -
plebeian and noble. Should he 1'Ie
8
IH
day Up81i -.Q. lawful a Ir. With.
number of people, and horses, amI cows, they are all forfeit as far
as the value of a 'cumbal ' if there be s.:a.ttJ.e.' on the land.
If there be not cattle, it (the fine) is half a 'cumhal.' If it be
cows he brings, and he has horses, and it is less than the yalue
of a ' cumhal,' the forfeiture of the stock is the leniency of the case,
if there be cattle; if there be not, it (the penalty) is Lalf forfeiture
of thf' stock and a ' cumhal ' in severity of law, if there be cattle. If
there be not cattle, it (the penalty) is a half' cumhal.'
In tlte case of land that has not b a chief and a tribe, if there be b Ir. With-
ca.tt1e, it (the penalty) is a 'cumhal '-fine and forfeiture of stock by out.
nobles, and a half' cumhal ' and forfeiture of half the stock, if there
be not caUle. If the entry was made by plebeians with -8teek, it (the
penalty) is full forfeiture ofthe
k. If there be not cattle;- it is
forfeiture of one-half the stock.
Unless it be into lawful land.
That is, unless it be on the suppesition of its being his own land
he brings his requisiws for taking possession of land that has not"
It chief and a tribe, both in 'Cain '-law and in ' Urradhus '-law, i.e.,
unless he seizes land by force only.
In the case of land that has not a chief and a tribe,
the kine which are brought thither are forfeited. 2
That is, land which has not a head of a tribe, i.e., 1&:elLwislres, i.e.,
ûf the tribe, i.e., without relatives, but fierce and lawless people, i.e.,
the forfeiture of the kine which are brought to take \mlawful
possession, together with the' eumhal ' aforesaicl, whether they (the
lJeopk) be plebeians 01" nobles, i.e., all the kine are forfeited, i.e.,
when it is a land without a chief without a tribe, it (tIle penalty) is
furfeiture of stock and the three' seds ' as eompensatioll for the
grass; or, according to others, it is three' seds' only when three
days are not allowed afwr the proof being had that the land is not
his (the claimant's), and the price of theft is the cause of this; hut
when it is forfeiture of cattle and the three 'seds,' there waø a
perfect fence then; if, however, there was only half fence, it (the
penaltg) is forfeiture of one-half of the stock then.
vb,., It J 'Mf ,AÞh
,,:>,
::Z.N...
28
"010 1::eèLUEa'O $'rana.
/( o
1'f1
" /0// C. 2b7
01' TA".IYO ".'ÇU101'Oe 11.aH:;
a qt1t.1n fe({Lba co 'OIL no 'Oep.ofc.
I.AWFt:L I'-
0 Jl
rOS
ION. 'GellEea'û atl qte.I}1' 1TIUf1no lwr f.90P:.w.:t> co Le1n co -Jo
f1wqtelb! co pccèa' fmtèe. ke felc11 fwdtëe Ptl Lellw"f)
lO'ûlIEwE; CLldleart reL, rlWf1'ûL8 fOtlEu na f1U1le ; 'û1"f)U od-Q/r..;.JC/JI
j r eL rom clIne, la cornam con 'Oeldlblt1.6 Ptl Ï>èra-hal Et l1atl . 'M.<
t.u7
-; /1,.8.
r j 1. ).'t'l-.17
1Y Jo-7
It: -
.,.(.#
.1.co'01Lo'Quf. 1.10 'Oep.ofc .1. cO'Qe1p.bcín'Oiu'Q U 0.1 p.'fm 0 o.n-o. l:eIL-
"8S"2 /0 :;OU'Q up. t::p.e'fe .1. t::elt1;lIólP. he uf ap. t::p.elf mo.no.b Lelf bO'Qem in
./...1-.:'... "'. 'OO1;<;rep.ann pn, .1. H!Jl. mbp.e1t::hemnoét::.
obp.aI'Q'.I. bp.u:; rU1L rue.
.'.
ï."'''1't/@-<lUb Co t::eln .1. CO t::eini'Q '00 'Oonom ann P.lf 111 p.e fIn. Co no.lt::p.elb .1. J
CSSZ co t::p.eo.bmb 1110.1t:: '00 "[;15.'U 'Vo 'Qbnmh ann P.lf 111 p.e pn. Cop aé 0. r
rattëo, .1. COf na pacmb b,t:: atCI rop. aro.1tée ua'Q, 'Qa 11'Qcp.na 111'QLISo'Ö
1S"t::oét::ms"t'. 1t::e relch ralt::hëe .1. If lat:: fO l1a relë U1tet:: uo.'Q ar
a rmtël '00. n'Qop.l1o.111'Q'Qttsei> t::echt::mstJ. CLlt::heap. rot::, .1. d
lt::he 4J'J'1Z.Jlj-
ap. ret:: .1. L01Lscch.
OP.EU n a n u ILe .1. m ret:: '1' PP.t::OEat'QI blf o.c 110.
llU1tlb, In t::ralilmrc. "lhsu pJt:: rom o.ino .1.111 fe;:; 'r'Q't::oEm'Ql romame
o.nn .1. 'Oo.ltt::at'Q '00. p'ltepaLt. to. cornu'n co l1'Qelt::hblll.e.!.'Qon
). p.m;:;och .1. La 'Qe1tblp.ur mCI '00. cofnmh an rep.o.m'Q 'Qon fIP. bora hm ho
.1. t::cch;:;uS<ro t::lp.e cen cunn cen c01bm pl1, ocur '00 éuo.m IIi Ipo.'Q 111(
co nice "[;Juan in1-'eo.p.alll'tJ. ,:'IP. uera hUl 5p.lo.n .1. 'Oon rIp. Ucf<:1 0.1
111 @llUn '00 bop.ap. na 1-'elch ro U1Le.
L:ull11'Oe 11-al t::UlS .1. 11-U1t::ec11 arcnama met::hmf .1. In t::en'OU1'Vl u('J'-I11'
In "[;1 '00.J'-0. t::es 111 11-0t:: Ifm reJ'-wm co nice 0. q).'an, oCIl.f q1.OCU1J'-01 '00
p.ona'O J'-lf 1m a Lecu'Q co t::p.tan 111 reJ'-o.m'O. Co 'OIL .ðfco 'OILu'Q J<ro,
(O'/J 1:t7D'
12-
1. '1'e wdme 11) lHlIt:w]:j; 'Dume tUlr f1.u bClI rec1n:;alt fine
1> amulch COrt:f1.Clf'DCl, ocur nl }'I'Dll\. naë ttatbl rqtann arse, OCUf "GIC
I · Raitech '-peuon. That is IiteralI
' · a road man.'
. On the point. In C. 8;;1, the gloss is "co 'OIL .1. co. 11-ucta}t up.et Imml, until
judgmcnt, i.e. until sentence is given rcspecting it."
3 Gorxlland. O\'cr the' '0' of thc wort! . robltU1'Q' is writtcn the contraction for
. no ' . or,' and' b' intimating that the last leller might be 5.
4 Under him. This gloss in the MS. scems rather to bclong to thc preceding
c1anse. Dr. O'Donovan however placed it as here givelL .
. The but øed: · cLlio.p. rat::' is exp1ainclt in C. 852, .. .1. LauLso.ë, 110 'O(tum
t::l1nceLta o.p.((tap.. no buo 1I1La05e, a milch cow, a ploughing ox, or an incalf
cow."
. Had not land. O'D., 418, add
here: "he is to give notice of tcn days, and to
go with 1\11 his property onr to tM land at the eÄpiration of th(lse tcn days i and a,
:JNi't
:J. C4/Ll;7' oû .1t fÑ.
"f ftu.1,J-
ú
It;",
k
Pv
W ./r) ÿk
I..L-
",
-It;",'1'-CM....
nv..h Mt- 'u
' U<4.I- k 'JI.Lth,"*t f&V:!- Ik
L
z:;íI:.
.'J
or TÁKHW LAWFUL POSSESSION. 29
(
' -
.
/.L
The p ossession ofa 'raitech'- p erson 1 in the third of OJ!' TAKIJ.l.t.
2.J.>
"7 "01"\
fu LAWFUL J
the land holds until JUdgment or decision is had. He is POSSESSION. .
.J'"'M.-. nnv -
(I
ejected aftertÞ.ree days, unless he has good land with
fire and h
tion, with fines of a green. These
are the fines of a green to be paid by the man t,1ho
makes
ri) unlawful entry: a 'sed' of the greatest
w 'I
U'l
-wf,4
y1ed the choicest ot:Jl
seds '; the worst
'sed' for profit
, with the costs of the necessary de-
r:;::::::'J
fonce of the man whose property the ground is. 14_
'.r
6e..
The possession of a 'raitech'-person, i.e. a 'raitech'-person suing lost
pr"perty, i.e. the bold advance which a man whose honse the road is, makes into the
blill until he reaches the third part of it, and it is mercy that has been extended
to him in pennitting him to enler a.
far as the third of the land. Until judg-
In
n t, i.e. until judgment is given respecting him, i.e., until judgment is ginn
on the point.' Or decision, i.e. a certain decision of his
e there. Ejected
aftcr th ree days, i.e. he is cast out after three days unless that good land
belongs to himself, i.e. after judgment. Good land,' i.e. the land which is
n.ller him.- With fire, Le. together with fire which has been made there dnring
t'llt time. An ù h a bit a t ion, i.e. with habitations in place of h"uses which
h ,,'e been bnilt there dnring that time. With fi n e s 0 fag r e en, i.e. with
t:,e fines which he has on his green t" be pai.1 by him, if he has made an
iIIc.;al entry. The sea r e
h e fi nes of a green, i.e. these are the fines
w:.ich are recove.-ed from him ont of thc green if he ha.
made an illegal
entry. The best 'sed," i.e. the best among 'seds,' i.e. a milch cow. The "(
choicest of all, i.e. the 'séd' which is most to be choscn by all, i.e. the
'samhaisc'-heifer. The worst 'sed' for profits, ie. the 'se,l' which is
lea.
t to be chosen for profits, i.e. the 'dartaid '-heifer worth. two screpnl1s. · Ir. Or.
\V i t h the n ec ess a ry def e n C e, i.e. 10 be paid by the · raitech '-person, i.e. M,
the man whose property it is, is un.1er the necessity of contesting the land against
him (tm 'raitech '-perøon), i.e. taking possession of land that had not b a chief b Ir. Wilh-
that hall not b a tribe, and he went farther than as far a.
the third part of the out.
lan,\. The man whose property the gronnd is, i.e. to the man whose
property the ground is all these fines are ginn.
Thus may the' raitech '-person be known; a man who was up
to this (the time of the action) abroad, living apart from the tribe,
find who does not know that he had not land,. and he comes with
l1lerc
' is sho" n unto him at his going o\"er, so mercy is likewise shown nnto him
Ioy gi\'ing him three days for departing, when it ü a.termined thell the laml is not his
property sccording to law, and whatc\ erpart of hi. duty he neglects, there is no fine for
actnal-poS8(j8Sion upun him, except these' seds,' namely, an incalf cow, a milch cow,
and a 'dartaidh '-heifer it · ..
When it is caltlefor taking possession the' raitech '-penon brings, mercy is ex-
teUllcd unto him in permitting him to enter a.
far as the third of the land the first
da)'; and when it Ihe penalty) is a 'cumhaI' and forfeiture of stock from another for
30
'Om 'CeéruEa'D 81fana.
)
Oll' TAKING co na h111't11tlb, oeur a'tlberta'O 11a commëWE 1r tmr 1n nIt, co
. b
POSSESSION. nabmll. bl ten :;he a 'Out co qUatl 111 P;IW111't1. U OCur ramlrc OCur
'Oaf1:Ca1E 1rre'O 1cm'O a tOb a fOEeatca in np.e; ocur celtEm'tl ap.
C}1.e1f1 1Cl 1t 11Eam ellt a Clltc; ocur If np. co cOlbne '00, ap. 1r 'DOlE
j tmr 'r tatr; ma'tl nIt
cOlbne ImUll.1W, If 'Dltf1 natttme, amult
t W Il.at'tlf1um.
, TMv.1' J.9
'
7, '\
-,.tJIV..V, C .,Q3
Q,. ?.-.e1i.wJ
1J1.2.7
CCCatc ql.1 ttatcmE ann; Itmceach arcnam:a mear;hur, ocur
p.wceaë 'tIellt5e a meatar, ocur tl.mceë 1l.1b; ocur If attte a'tlell.ap.
'p.wceë p.er 111 11.1, UCl1tt 'r telr a CUIC rT1.1tëe a tlOlC, ocur ap. a
COIL"C111't1e. 1n can 'r m:hEaomt af wt 'DO Enbmt 'DO na tta1ccaëmb,
Eenmoca in 1t1E, aba"Ò nmt1 ap. in p.mceach Etl.m'tl Ftacha, ocur
aba'O naen te all. 1n p.mceaë Ep.al'Ó fC111e, uc fupp.a 'DIXlmUr.
II C qq3-1j
1n can 'r 'Dltear an mp.lm 0 caë, 'r qt1 1'eOIC 0 na ttmceaëmb.
a: e'tlclwcculte fin; a cp.oca1p.e Immull.ll.o, 1n1 'De af tUEa, 'Dltfl 11a
Ó hmp.me 110 CP.1 re01c, co ttabea'tl ber ua'Óa. 110, qtl reOIC 0 11a
p.a1ceachwb, ocur 'Dltrl an U1ltme 0 caë a t;eëcuEa'O co t;p.lun 1' c -
<\tba. 7
()
::9'1'(
O'D. n9. [stan 'Don ttatcech C1Cl celr co cp.lan na reatba a np. co con'tl co
COlune, ceTl co 't;ucca apa'Ö, uUllt Tlach cú dlt 'tit(( futU1l5 fltl ll. e
tl> 11npul'Ó; ql.1 reolc flUlt 'tit(( r;e 111 'r r1a, 110 'tIla CWIt1f1 tntt calt
qtelf1 t((lt n'Óelr;tn 'DtI51'Ó 'tIú. Ocur Ifr;ap. ët1.0, OCur '1' teth mU1la
bet C1lUl.
111a r;1lt cen con'tl cen cOltne, '1' 'Dltrl natluiw Ua"Ò amult ëuch :
no 'Dono, 111 EIl.enT! EaoUILt: TIC! q1.1 fCOIC lf1n cumult 're Ellclm
I
Enuuf a n;p.eliJr01il 1 Tlúlp.eliJ. 110 'Dono, 111 umt '1' 'Dltlra a11l.C111 0
ëach 11' CP.1 reon:; 011 p.a1r;ech. CC eqtoccull.e, a cp..ocmtte1mult1l.0,
unlawful pðssession-taking it is three · øeds' that are paid by the · rnitech '-persons;
or rather the proportion which the three' seds' bears to the . cumha1 . is the same
proportion which his stock bears to the stock of all others. Or, indeed, according
to otherø, when it (the pellalty) is forfeiture of stock from all others, it is three sed.
from the · raitech . -persulli; thb is the severity of the case, but its clemency is
OF TAKI
G LAWI<TL POSSESSION.
31
his cattle, and his neighbours say the land is his, and judges OF TAKlSO
.' LA,nUl.
tell hIm to go as far as the thll'd of the land. He shall pay a cow PO
SK8.'IUS.
and a 'samhaifJ/' -heifer and a 'dartaigh '-heifer as the price for
gra.zing the land; and he sha.ll be ejected after three days after
failing to establish his claim; and it is a. land to which he thinks
he has a hereditary right, 1 for he thinks it is his; but if it be a
land to which he has not a hereditary right it is forfeiture of stock
,
as we have said before.
There are three sorts of' raitech '-persons; a' raitecll '-person who
gets into failure, and a ' raitech '-person who deserts at failure, and
the king' raitech' ; and the reason that the king is called 'raitech' is
because he owns his sbare of waifs of his road, and also from his
generosity. .When it is distress it is thought fit to take from the
'raitech '-persons, except the king, a notice of two days is served
on the 'raitech' -person of the chieftain grade, and a notice of one
day on the' raitech '-person of the Feini grade, ut supra diximns.
.When the stock is forfeited by all others, it is three' seds' that are
paid by the' raitech '-persons. This is the severty of the case; but
the leniency of it is, the part of it which is less, the fOlfeiture of
the stock, or three' seds,' it is it he shall pay. 01', according to
others, three' seds' are due from the 'raitech '-persons, and forfeiture
of the stock from all others for ltaving come to take possession as
far as the third of the land.
It is safe for the ' raitech '-person though he goes as far as the third
of the land in a territory that has. a chief and a tribe, even though . Ir. Jrith.
he may not have given notice, becanse the land is not Sllppro:ting
him during the period of the notice; there are three' seds 'flue upon
him if he goes farther, or if he remains within beyond tIIree da)' s aftcr
RttendWg
J:eq uirpmAnt.<.(....r .la w. And lItis is wlten Ite goes over
a fence,and it (theflne) is one-half of tltree '8eds' if there be no fence.
If it be a land that has not a b chief and a tribe, it is for- b Ir. Witl.-
0111.
feiture of stock tltat is incurred by him as by everyone else;
or, according to otlters, the proportion which the three · seds' bear
to the' cumhal ' is the proportion which his stock bears to the stock
of all. Or, according to others, where the stock is forfeited by
e\ eryone else it is three' seds' tltat arc recovered from the' raitech ,-
person. This is the stJverity of tlte case, but its clemency is the
/:t I
lùf
F ISt'/I' r(
&uv
Url.
that part of it which is less, the forfeiture of stock, or three' seds, ' ü due from the
'raitech '-person for coming a.
far as one-third of the land, and forfeiture of the
stock' from all others."
'lIe,'edilary ,.;.ght._' Coibhne,' seems here to mcan a right to the land by descent.
'Slock.-The stock nece
sary in waking a legal CDtry.
L ðí"J
-nMJ.v (
pft"J,Nv
r.t4
7 7I..tI .t,.. rM-Ù".fx 'Altu J
/fHv.k rlu
?1Þ C,I"vt
A
,-Ie.. w.n
-hi
t 'l
1fIJ/ ,-
32
1)111 'Geè(;usa'ô 8Ir((f}((.
()F TAKING In r;í tie If tusa .1. tlltf1 nuí)uile; no, n<< t:rt! feOlt:; no tlO1l0, It: q1.f
LA.WFUL " tb t .. . . ]
POSSESSIO". feolt: 0 p.alt:ee 1 t:eet: co t:p.mn rea a, OCUf tli f1 llalp.lIIe 0 cae.
- J WI..../' ftJ
:.---- .... .._H. J,..,wrl. f
V-+<. -
7"' 1" -
....JJ
l
J1UW6:
amn:; mOlta mmret1,u njreasmp. él'ùechm ta feme:
m;hsabmt émecnm;
ettach 1n'ùtIELech, comtws sen
ð Ctlt1.U bet, no Ean èto'Ò cn n'ùbEe'ù. 'So
tlm
he, EO
bp.el
heamCún na'ù belp. pacha cach ae.
. ((cau: t:eoJla almf e Jla.1- am, Jle,ocufPJlfutam; m:a1t:ciJOf\af\e
,,7!,
.,. t.1J1,
CtS"..z,-utame i nm'Of<I15enn neë ni If 11l'Otl5teë '00 'Oenam '00 Jle1Jl In r enea -
cl1mf' ((t:h5abalL .1. CUIC fe01t: 1n'Oe. '0ettach In'OLI5t:e
h .1-
e t:echt: u 5 a 'O 1n'O LI 5"Cech '00 bf\lch 'f11l }:el"an'O .1. ba t:aJl elf eoëu, ocuf JlO
5 eb a eoëu .1- cumat, no 'O,tfl bUalJl, no t:JlI re01t: 1n'O. COmJl U 5 sen _
cUJlu bel, .1. coml"uc
0:ß11U '00 }:of\ necll cen t:JlebU1Jle co COIJl 0 betmb 1Y.. !f16.18
mCI f\e mfec no Jle 'Otep::11l '00 111 nelë ImaJlocU1Jl. 1)0 san eLoi> .1.
no can eum '00 teco'O 1m a CÚ11l 'OLI5e'O, .1. apaI'D na CJlOlfcl ce '00 'OechaI'D
,frJl'f' 'So t:ualt:he .1. If 50 '00 t:uU1t:h .1. na mOJl t:uCtlt:he, ocuf 'Oon
b)1eltemam na beJla Clf\IC nn cai: nac im caë no;sae 'Olb fin, cm bo 'Olb cUf
a JlO1 p::cp..
::t
t:oBccch bescucc SO.
I
1n L1 '00 be1p. na
echLa re1tb. ar e 'ùO t1.On CO pacmb ::
mse. 1n n CJl.eanar cen
eot 1;en
mS" CO nstmne Cl11Ùr e ,
)0 'ùltear 'ùOrume 0 'ùta OCtlr 'ùuÎne ; 'ùtam rtan a ctlbur ùm
rtan a anum.
, c \1\"\\
eml1'ùe 'ùono 'ùtana'D rOll.seattmp., all.Ct re1reat"!. COltt
I The tl.ird of Zanel.-C. 1<52 read
, .. i.c. the ninth, i.e. the tllird of the thir,l of
the tribe: he does not ellter into the sharc of the chief or the church."
· For.feit..re of .toek.-Thc 'airem' is the stock of cattlc brought intn lanl1 to
legalize the possession.
· The beginning of' Buena' hn'e._In the 1IIS. there seems to be no break be-
tween this passage and that immediatel)" preceding, but on the margin the Irish
for this heading is given. In other places in the same 1IIS. similar marginal notes
are found, where the original seem. to h2 a continuou
snbject.
· Rigltt of covenallto.-In C. o;.;:J, there is a glos;; on this text, and it is
I
')'IfM" 19 (ÆJ ?>4ðf,
(.La JI
) IJý
l
fr'''' .
I
c.Jo
).
OF T.\KIXO LA WFrI, POSSESSIOY.
33
smaller of these, i.e. fOlfeiture of stock, or the three 'seds'; or, OF TAU"'"
" "IAWFn.
according to otl,ers, it is three 'st!ds' from a 'raltech -person, lor POg"E
SIOS.
'ill"!f all !/ coming as far as the third of the land" and forfeiture of
stock 2 frum all others.
iJ.Ì4
u..
There are three occaRions on which illegalities are
prosecuted. by the Feini: unlawful distress; illegal
.
entry; combat without Ye
agemcIlts, QL
:J
departing according to law.!> It is falsehood for the
hMI-.. laity, it is fül:;ehood. for thc jud.gc who does not award
fines for each.
There are three occnsionq, i.e. 'am', time, IInd 'sir' fixed; there are
three fixed periods at which one sues the thing which is unlnwful to do according
to the Feinechuo. Distress, i.e. five' seds' (1r
thefi7le for it. Illegal entry,
i.e. to bring illegal means of taking po,,"'es<ion into the land, i.e.. cows after horses,
"hen he could find horses, .Ï.e. the fi1le for it is a 'cumhsl,' or forfeiture of stock, or
three'seds.' Co mha t wi thout "erbal engagemen Is, i.e. to proclaim a battle
8
ainst. one without proper security by word of mouth for restoring or righting . Ir. [i,ol/.
the thing about which he gins the challenge. Or not departing", i.e, or
\\ ithout departure from the rule of law, i.e. warning or fasting thon
h he was
fairly met b by all n.ff
" cifm'bitl"lltio1l. Falsehood for the Iait
', i.e. it is a lie b Ir.Tholl!lh
for the countr)', i.e. the great territory, and for the judge "ho does not award "e U'O' come
'eric '-fine for each an,1 eyery one of these ca8e8, whieheyer of them they come to (lgaill8t.
decide upon.
1>.
1; 0\hVo&>-- Tyt
TIlE BEGIXXrXG OF 'BESCXA' HEHE.' (J
"""o..th ir'-
h< fJ-t->tkv.ft
-
) /?;adf'!
He who gives property which is not lawfully his
own shall pay the fines for stealing. As to the person
who buys without stea]ing or conceallllent, with
purity of con
cicnce, it (wlwt he buys) is his lawful
property according to God and. man; if his con-
sciencc be free, his soul i
free.
Thou dcsen"est whatever is ad.judgcd.; that thou
mayest knuw the right of covcnants;4 that thou
YOLo IV.
D
-
r)) t/Ii.
k.d
o.,
J
(pJ' f';1 1
o. )
snill that "l!llU F('feft COlft comna'7)mann .. \\n< spoken b
' Fergll<, tI,e poet,
n, equall
' applicahle fur e\"C
' Hreholl.
"1- tM'-O./
. f. ?l.<- 114M fw +:1 rk?\tt,
, fA}.ut "'i"tý 7
C g 5::>
34
"Om 'Cecrtrsa'i) 81 rana.
1/ Cg 53-IJ.
OF TAK,YXG comna'D . JHlj11 (
IW 11.1uce pp. ríp.enm ra1-sr:e ractì, rarsam
LAWFUL U1, """VtIt(
Coo1A" CliP I
Pl>S
ION.11l me
am ;011. Coma'Dmr caell CfnC(1C
1'Dr:eat1. ap.a r:aeb-
, ?Ii,
?\Ov
' mnmr; ap.111 rea'i)alt na"O a11lt1-sr:eap. ta feme 'Do Et1.er,
'DmE ríne OCt1r PttE1attna na mmdl11.1 O1tqtear; att (f(.-
.5 e a q1.1 11.0 rU1E1'D 'DO 1mrodla1E COIl.
r.
.= WT
?
, Jo -
r)
-lo-þ;cIv!
.
- m<uiV Ð.1 .q. (..
- - Q
q.:..o
1
In t:1 'tIO bel)1. n<< t:ecllt:("{ relLb, .1. ín t:1 'tIO bel)1. ní 'tIO neoch, ocur
noco na rmLb bouém t:echr;uj', aer; 0 rmLb Emr;1 In Ear;m'tle. CCr e 'tI 0
)1.on co fl acmb, .1. Ire Icul'lle co paemb E("{I1""1- 1 n r;1 c)1.ean ar, .1-
In r;1 cennm5er. Cen r;eoL, .1. cen SUlr; .1. cen r;eoL, t:01bteJ1(
_
.J
<<n::;
to bun<<1't> ro ce"Collt. ðf>n r;aIEI, .1. cen 'tIlceILr;, ,I- 'tIlceLr; a Emr;1 1a)1.'tImn:-
Co nEtalne cUlbre, .1. r;ltl rLan, EUlbr;ep. runn
In
r;, no'tlla mb e
r;)1.ebUl)1.
, .1. cen enectumn, cen r maer; cen alr;1'Em maní r;al)1.I..-!r; e l ú V
I' IIP. I
o 'tI1<<, .1.nahecLmfl' Ocur 'tIuíne, .1. na "Cumtl. "01<<m rLan a
cu uu 1" .1. can PI' cuuur bltm"Ch alCl-
., e-Iml'tle 'tIono, ,I- f01m'tlenalE, no u)1.j::01chLI ma ,?Ia r;1p:;a)1. a rUlEI'LL
lO'JJ r
73) 'tIO b)1.elr;hemnmr' (e)1.a felr e a)1., .1. co fmre)1.f1UinO co )1.olb a fir acur;
o)1.'tIu5a'tl na cuma narcm)1.eer;a 'tIO )1.elll. eOI)1.. CC)1.)1.ulce fl)1., .1. CO)1.-
ub e m be)1.a'tlo neoch 'tIuL <<narCal)1.eer; 11' 'tI1)1. 'tIO 'tIuL l1e toE enech.
rí)1.eam ralEr;e rae)1., .1- 11' Pll. Lím fmEI't> <<hm'tlfmstt fin ro)1. na
)0 r O j::e)1.mu; no Ifl'e'Ò Ir((e)1.'tIUlr; 'tIuL V)1.1 toË telwch. 1 n me((fllm, .1. Ire
ní 110 me1f!mmmEe'tl a hm'tle 'tIolb 'tIuL 1111' In 1)1 110 co-caímrlEe'tl 'tI0 't
llt
(01)1., 'tIuLl1e tosan enech. CCn<<1cal'tlr;ea)1.. .1. 11' e ní Vonmrcear In cae
fin a)1. In r;aeu )1.0 hucmrce'tl 'tI0 'tIuL, r;(I)1. cenn a comEI1U1't1. lC)1. m
rea'tla)1., .1. umltno con In'tlrmStt 'tIO neoch 'tIO!;lter 'tIO l1el)1. In venf>chmj'
1.pn ní na)1. e)1.aLumseu 'tIo'tluL, 1te l1í 11' mo na 11f> tos enech. "O<<1E Ví nl',
.1. L1Cral'tl In pne rq cop.mb, um)1. 11' mlCho)1. 'tIO 'tIuL )1.e ní 11' mo na l1 e
t();:;a ene.:h,.I.ma 100 naLoEa pnee, r;mr;n115 pne ocur mmr;hp.e ocur fLata.
l.d.uvn<>-d,
_C/.<II- Ocur fl)1.S1<<LLna, .1. na VI)1.coana'tla)m ElatLa'tl no íl1 cmLLl'l11e .1.1111
vtar;ha r;lcvmr; vo cOltmb. 11 a 10 <<1 r;h )1.1, .1. 11' UlLLI't>I In r;p.l'r((n'tl víne
0omar;ha)1., acr;a1't>eer; fOCo)1.mb. CC)1. ar;e a r;,I, .I-a)1.lrla'tlrOmr;)1.m'tll
,to rammEeu no )1.0 hop.'tImse'tl 'tIemvumr;)1.e'tl na COIl. mn'tlLI:;teé 'tIO 'tIena
l1!'ch. 111 ara m'tleltbl)1. 110 nuc ua'tl, 110 l1í VUl5ueu Cia )1.0 EeLL, ní 5((balt
Jg-.
!.. Los ua'tl In'tl 1L1)1.. 1n r;an nmrcr;e)1. In Viae, ocur 11' 'tIOIS Lmr Voscbu'tl, 110
) Ita nuc 'tIeltbl)1. ua'tl, a tos 'tIO íc mon.
I Fi,-giallna.-In C. R.j4, this term is glos<",1 .. cc,1- g iallnai."
· The third.-In C.8;;4, "oltres" is explained "a mmtlte quoll tertium est." The
tran.lation llere given of the term is only conjccturul; the text uppears defeeti\"C,
and the gloss
ecms to be u merc etymological unalysis of the wonl . O1tr;lteu)'.'
OF TAKI:ya LAWFUL POSSESSION.
35
ma y est reach the truth, thou shalt sue the nobles, OF TAKIXf'
LA WFUI.
thou shalt sue for what is estimated in a meet POSSF-.\;IOX.
covenant from all who are bound as sureties for their
. .
l--e- .LwÀ.
l.,n. '-Ý # C
nel
boprs; for no one ove.r cu es. t or mOFe {;nl1 n ìS
n().J' pn'ee by the Feini, for the tribe
and the r Fir-giallna,'l çcnd the mother's tribe shall
interfere; for these are the three parties who are
appointed to dissolve covenants.
He who gives property which is not lawfully his own, i.c. thc
person who gives a tl1Íng to an)" one which was not lawfully in his own possession,
but in the possession Df the thief by theft. S hall pay the fi n e s, i.e. it is he
shall pay for it with fines for stealing besides. Who buy s , i.e. he who purchases.
'Vithout stealing, i.e. without thievery, i.e. without secrecy, i.e. w
-
es, (i.e. disdo,..) t he originaItheft at once. 'Vithout concealment, i.e.
without secrecy, i.e. cOßcealin
the theft aftcrwards. Wit h pur it Y 0 f con-
science, i.e. three suretics, ill. he takes here the 'sed,' or if there be security,
i.c. without honor-price, without' smacht '-fine, without compcnsation, unless he
has taken it. God, i.e. of the church. And man, i.e. the laity. I f his con-
science be free, i.e. having nO knowlerlge of a hetra
-ing conscience.
est, i.e. thou meritest or thou earnest if they have come to
the decision of thc judgment. T hat tho 11 may est k now, i.e. that thon
maycst know, or have a knowlcdge of the or(ler or form of covenants according to
justice. That thou mayest reach the truth, i.e. that it is the thing
which gives one the ,'i9ht to enter into covenant that 8110u1<1 go as his honor.
price. Tho u s h a It 8 U e, i.e. I deem it true that thou followest up thy suit
upon the goodly men; or ",hat is free to thee is to go secw'it!! as far as th? honor-
price. W hat is C' t i mat ed, i.e. the thing that was estimated originally for
them is to go security for" the thing" hich was fi"ed according to right, i.e. to go
slirety as far as his honor-price. Are bon nd, i.e. tbat is what all bind on the person
who wa. permitted to gos1ll'ety for his equal grade. For no onc ever snes, i.c.
for no one is to sue at any time according to the Feinechus for a thing which is not
pcrmitted him to go security/m', i.e. for anything which is grcatcr than his honor-
price. For the t rib e, i.e. the tribe shall impugn b the compacts, for it is a false
cO\-enant for him to go securit!! for an
.thing which is
,'rcatcr than his honor-price,
i.e. if it be greater than his honor-price, the tribe amI
s and chiefs dissolve
it (the contract). And . Fir g i a 11 n a', i.c. the men to whom is due the service
or the vassalage, i.e. the chiefs shall oppose the compacts. Thc mother's, i.e.
the third" party are more numerous, i.e. thc mother's trihe impngning a the compacts.
For these are the three, i.e. for these are the thrce who Wcre appointeel
or oi"(laincd to distnrb the unlawful contrncts which one sh,dl make. If it
was without necessity he gave a thing away, or hc does not proclU"e ft t"ill9
though be promised, no price is got from him for it at all. When the debt i
fastencd, and he thinks he will get it, or b
gave it awa)' of neccssity, its prk-e is
paid then. .
VOL. IV. D i
f4., IN
?
k
..
y
a Jr. TO:f)
wit".
b Ir. Come
(t9ftillst.
a Ir. COlli'
ing o!/(Ûud.
:3G "0111 t:eënl'Su"O 8trUl1U.
_ (//f'tZ-(), b8i.t
U
. 12.....
. O
.A.::
'1G ""U, 11mI' 11m(( 11(( hmftEect'i) 11(( hoft, ((ë{;oJ'Olt mat; 111
I
IO
. ncur buall'
ba Ch'111"01({ f 0 11. 1Ieach tlur 11(( bta"O ba; 111
'-
5'1 ncur t;t1 t foft 1tU1WtU((ch, mUl1((r fOdm reatb; 111 ncur
r
' I'> ') e"O((ch f01t l1((ch 110cht;, mUl1(( mt1.ma t;t((ët;; 'r e Eftet;he
'
Ç(Cf r cel1 m1w"O "00 En1 11.0 cott ùttet;h. ke me((n1.(( (("O_Eett((
a cumul1E "00 c((ë.
, r/tt rl.,7 Lt )
.utfl<# Iv f.
h itn., - #vI'1N;v '!
---
:r f
t Yllh\Å .
"'-.,
1111 n aJ r, .1. ní ,to ronwfCf1U In WJt5e'O no m 01\ no 1fl uma aèt; roJt 111
IIU((faL, umJt If mce bo '0015 a mb1t:;h, nOIre bo 'OOIc1t 'Oa rw.:;bmt. 1
í
n aIr bu a1\,.1- ni 1\0 ronmfCf1u buaJt mi1U1L in mbuaJt '00 beJta'D ba
t" ch1ll'D1a cennal'òe Lmf t;mJt'f aJt 111 t;1 ((C na blat; ba. no na ba'D c Ulm 5 eè
arasbmL co 1Iul\ufa. Ui nalr t;11\,.1.111 1\0 ronmrclf1u r p 1\ann 1-'01\
1fl t;1 blf roJt imJtama a m(('D 'D1Il(('D, mana rot;hw5"CeJt reJtann mCI, no
mana Jtolbreal\ann mC1'Darot;hu5a'D. r01\ ImJtumach, ,'.roJtr oen -
'OLesac1t. 11í naIf e'D((cll .1. ni Jto ronmfcf1u et;ac1t roJt in 'Oume blf
,>Lomnaèt;, mana JtOlb et;ac1t mce 'Da t;OIJtlt;hin. tl1 un a t;oJtma t;taèt;,
.,. mani
o.!r- et;ac1t co
eí.!1
: 1 fe 5 Jtet;1t e cen t;01\a'D, .I-Ife ni at;a. 'DO
J1.elJt 1\0 c1aLLamena mbJt13t;1t; amUlL 'r et;aJtbac1t 51\ec1t na cno rmr' cen
coJtIl'O WC1, 'r amLm'Ò 'r et;aJtbac11 na IH'lc1te fin 'DO 'Denam. 1 t;e
m eaf1\a a'D 51' LLa, .1. 're ni Jto melremnm5e'O 'DO 5eU.{('D 'DO caè m ni
)ð ima cumt;aJt 1te ifl151LL, 1fl ni blar mce .1. 'rre'Ò mer1\m5ur L1\eltem a
cumaè 'DO bILL 'D O caè.
.1. mar 'Oa pr no 'Oa anpr .1. PI' ac relc1leamam t::olc1le'Oa, OCl1f
. . PI' ac t:p.ebmTte, no anpr ac rCldlemam t:OIëea'Oa na p.aùa'Oap.
fo'-tftA#" O'bIf UJ na reltb na TeOlt: 1ì.OLÍn5ettt:a ann, Ir'ton.. 11mt appa atW11pa.1J
" 1T1arra anpfOc relchem t:olc11e'Oa ocur prac -t::p.é"'bmp.e, artp.enal1.
. I I
0'011P. mp.tlct:ep..
O'D.420. [.1. caë paë Inbettur 'Oume ocur Ù1'O ma fa1'oùp.e, no If '0 01 5
tmr a PX5((1t 0 neoell elte, ocur 'Ow n 'Oetùlp., no
'Oò mùel11ua'Ö AI
..., UI. '1.7 ff HiP. fin, 'I' annlrCFop.elt al 1 p.a un((p.1 w ? aët: nnt::o ca
cf>Jnntnile.
:Sð Caë pad1 In5ettuf na bl'Ö m<t rm"Òbp.e, no naë '0015 trur a
rU5a1t, '1'1 élp.lc anltllt 110 bett .1. m ran nu bi I rC1tú m j.'eldu:lIIun
I Cinnia, the mlrchclllt. In C. 1'54, the reading is bua1\ bat ('mma, and the
gloss ad,ls "Cinnia, for he was the first who bronght cows into },rinn."
· Blilld nut. .. eni;r\1se .. is the reading in C. 8;i4, ullCl it i. gl(1ssecl .. cnu ('(({'c:-'
x
-:::
Q,f
íJL /(/
. 13{. ?
---
OF TAKING L.\WFUL POSSESSIOX.
37
CfOM IJS1
.,..r Iflf."
Thou shalt not bind anyone to pay ÙL copper, or sil- OF TAKISG
LA WFVI.
ver, or gold 7 but a chief; thou shalt not bind anyone P.."s.."sws.
to pay in kine like those of Cinnia, who has not kine; -
thou shalt not bind anyone to pety in land, who is
wandering
unless
landi; thou shalt not
bind a naked person to pay in clothes, unless -he has').
got raiment; it is as a nut without fruit to adjudicate 1- M}
J38
iflthis nmmler. The pl"fHuiserof all she-uld be
adjttsted tü..their ability.
Thou shalt not bind, i.e. thou shalt not impose tile paym('1lt of sih'er. or
gold, or copper, except upon the noble, for it is" ith him thc)" are likely to be, or
it is he that is likely to get them. Thou shalt not bind, &c., kine, i.e. thou
shalt not impose the pa!lmellt tifkine like the kine "hich Cinnia the merchant I nse,1
to bring across with him, npon the person who has not got kine, or who cannot easily
procure them. Thou shalt not bin d land, i.e. thou shaltnotfastenpaymenC in
bnd upon the person who is moying from plnce to plnce, unless it is found thnt he has
land, or unless he has land to snpport him. "'ho is wnndering, i.e. upon a
wanderer. Thou shalt not bin<;l clothes, i.e. thon shalt not bindpay".ent i..
raiment npon themllnwho is bare naked, nnl"," he has clothes to relieve him. U nle ss
he has got raimen t, i.e. unles, h
finds clothes quickly. It is as a nut
withont frn it, i.e. it is a thing which is according to the wisdom of judgments;
ns the shell of the blind nnt. withont fruit is profitless, it is likewbe profitless
to do these things. The promises should be adjnsted, i.e. the thing by
which the promises of all are to be estimated is the thing by which he is kept to
his promise, i.e. the thing which he has, i.e. the IIrehon estimates e\-ery one's promise
by his power Co fulfil it.
If by his knowlellge, or by his ignorance, i.e. if the plaintit}" have
knowledge, and the surety have knowleùge, or the plaintiff have
not knowlpùge that the' seds ' wl
î
,
r r
wed on
he occasion _
were not in his possession, it is "1"'" ii9
'1I.lt
' '1tI'i'tI.' g()OlI s <I-!!l. ,n. 2-'"7 r.I
)
CHI" 'anio1.l"""'-<YOo,]s ."s If the plaintit}, be ignorant, aUlI the surety has
knowleùae O if
tlte fi uct the--thiUJ.L-"dHch Ïi; 1,le. 1 'Yl'rI j" pnid . f4"frJ.JJ., i,ð
/ etIM,
o ' #.0 .. 0 - -
That is, every debt which a man promises when ho is in his
rich condition, or he thinks he will get it from another, and if
necessity should arise, or if it shoulù be afterwarùs taken from him,
it is then it f"ll
'lll'le r '" arm. '-goods for' anarra '-goods." J..
In every case of deht which one promises -who is not in a riC'h con-
dition, or which he does not expect to get, the' cric '-fine is as he
II blind nut; for it is of no profit to him who breaks it. It is so with a person
who binds npon one a thing which he has not. For no one should promi8e a thing
which he has not."
I' .hlarro'-goods. Vid. vol. 3, p. 150, n. 'Arra' means the thing promised or
a bÏJuilar one, 'Anarrn,' a different thin:;. as e.!;. a 'Ç\\P' inbtead of a 'co,.,...'
38
'D,ll 'Leët:t15(("O -8'ral1((.
d /I.
l
,, -'1-0
T f>>'#V OF TAKING OCUf nocha '001;5 a tCI5wt '00, ocuf 1"1.0 flL111. 111 11.cut, a icc
LAWFUL
PUSSESSIOS. amUlt 11.0 narCa1l ral1t co tor ocur ar.
m<rõ 11.0 tjU1 aI;se 111 ran '00 1t1l1ne 111 cunn1l<rõ, ocur '00 ëucu"Ò
f1\1 'OetblP. IU r, '1' f01le1t a1 l 1 w ana1t1tU, .1. 111 ran nwrcre1t 111
11-, 9
tt 5paë, OCUf '1' '001;5 twr fO;5ebl"Ò, no tto nuc 'OetbI1t1Uf ua"Ò, a to;5
'Olach1l1'O.
Iv MÞ 1rlLnctwy I" Ff"
j,
II..Pf-
mar 1I1'Oetbl1l1Ur 1WC u<rõ, no nl rUI;5tJe'Ö cIa 1to ;sett, nl ;SabU1t
toi; ua"Ò 1I1n 1r11t].
.)Jt MS.) p-ukJ"o
U/,i,I-H.;.,
1"
.
111 t0115a"O bC(tl"OWI5 bc(tlCOlW a c01bl1e COlt"!. comaf1"Oa,
,0 ap.a l1a1rC pl1nnl.t1dl pl1"OLfsa [ma1l1p re reI mber-((.]
'Do bet1.t: bp.I at1. bc(tlcot1.C(. Oll.b(( m((111e mer COlt"l.Ce
o t:a c((ch cm"O comrOCa1r;
o t111 ma1ne ml'Ò1"Oe((t1. 0 L((
hln"Oua co 111cqullt1U, 11l5e cum((t renop.ba;
o 1ll1a"O 5t Ua11
5 eI11 t:hep.. Fmnt"1t1
Ot"!. cut ctlmëtt:hep.; qle1l1b pile
,)
o5t((1Eteatt; 5((but ((rt:(( edrqWI1"Oa; m(('D "01 CUlcte
t:op.mota. 1mt:(( 11U cín COm
OCC(1r, 111a"O -
ettadl
-----
"Oettechmch; ac1lt: cem::htl.t11me "00 pl1"Opl1e. 0 recht: "Oec
"Oelt!t:he((l t co fiach 'Dut"hars "00
1ne. Ft11"Oet"l. 111 belt1.
cm COm
OCa1r, 1lltln(( CUIC qteab(( t:01tlbec(tlc(\)cqt. ma
1.0 CUIC qteba1b COmrtc(tla1b cont WI1 "O((t: a pnnt:ea"Ou.
1n Lon5 a 'tl ban'tlt;al!; .1.eILL!;It;amIC ocufanin1;ena111 ni roft aft
aLf((t; cUJ1.u a mQ1t;hJ1.e, .1. 111eILL51t;eJ1. na mna t;echt;u!;a'O '00 bJ1.elt;h If
I. Coibne '-prope,.ty, vid. p.81. Supra, n. 1.
· U..1MI he be the .inh. This clause in the Iri,h is supplied from the lower margin
of the first column, in E. 3, 5, p. 9.
· Bi"tZ. In thc IllS. the letters a and L of · aLrat; , are marked in a way" hich
seems to denote that they should be transposed.
OF l'AKIXG L.HYFUL POSSESSIO
.
39
promised, that is, when it is not in thê possession of the debtor, and OF TAKII<G
it is not likely to be got by him, and thc security kncw it, it is to P
:;;:
K.
be paid a.s it was bound upon him, with addition and increase.
If he had it (the property) when he made the contl
,
d it
passed away f1'O'm ltim by necessity, it (the case), is :!
nttgn>r-- r re'
'-" arm' geoíkf01' , ;onqrra!... goods j" i.e., when the debt is fa.steneù,
and he tIúnks that he "ill procure it (tIle tltill[j promiseá), or neces-
sity has carried it from him, he is forgiven the value.
If it be not necessity that carried it away from him, or he
cannot procure it though he promised, no value is t"..-lli:en from him
for it at all.
Heirs of females claim on rightful covenants of
equal value made with a female allcest01', relative to
, coibne '-property1 for the fair-chief of the tribe COll-
firms the subject matter, unless he be thesixth. 2 Brigh
pronounced judgment on female covenants. Lands
are estimated by their stock from every related head;
they are estimated according to the amount of their
property from the great-grandson to the great great-
grandson, except in regard to the' cumhal senorba'; e.! tcr ""-70 ð't y,
according to the size of the land it (the 'cmnhal-
senorba') i
produced. The tribe property is claimed
backwards; it i
divided between three tribes; all
extern branch stops it, if the five persons of the
, Gcilfine' -division peri:::;h. Except as regards the
liability of relationship, if the family become extinct;
except a fourth part to the I Findfine.' From seventeen
men out it is decided that they are not a tribe-com-
munity. The' fuidhir '-tenant does not bear the
liability of relationship, unle
there be five houses to
relieve each other. If there be five houses with
comolete stock, they share the property of the tribe.
Rein of females clai m, i.e. their SODS and their daughters claim the thing
which the contracts of thdr mothers bind,8 i.e. the "omen claim to bring meane
40
"Om t:eëruEcm 81fcma.
OF' TAKIXO In t:e)1ann a)1 a)1 taeret; na mna mb a r')1 ëU)1u. CC COI bn e COI)1
LAWF{:L coma)1'Da.1. amtal'ò 110 COIb11l'Dt;lse'D a coma)1'Dusa'D rO)1 Cop.rt1Ù 'DO
POSSESSIOS. . CC h . h b
)1e1)1 COI}\. }\a nalrc pnnr}\Ut; .1.11' I' 111 r}\Ult; t;H1t;nemac '1"
.1. rtatm se1tp1l1 're t-'On(1)'Cer 111 t;)1!an mara o}\ba c}\lI1b no rt!ap:a
fhe, nOire t:Qnmrcer in re}\an'D U1te mara t:e}\an'D t;uca'D. 111 alllp
1'1' rei m bep.u. ,. mannp e 111 ré're'Ò re}\'r I' be}\ur 111 'Dlha'D.1. mrmaù
1'111 reire'D re}\'Deë a se,tpne, 111 'Del)1bpne ronmrcer cOlmS' an t;eltpnf',
aët; neë 'DO cII1CJ:e}\ na )':e,Lf1ne. "Do be}\t; Or1.1 ay1. hanco}\a .,. r:et-
tach 11l'D .1. 'DO ÙI1.et;hemnm5C'D 'DO O}\,S III rel1.ann ((11. (()1 t((eret; na 11111(( mLe
loa r'}\ ëuy1.u. OY1.ùa 111 ai n e mer cOlltce .1. 111 ):I'lul11n ap, ((It melrem
COI1.ach a mU11l a mat;hm}\, no mH1}\ a madlml1., .1. n]((el1. IIlSl'n Coútms
CQ.1tbl1.eS .1. }\15 el)1en'D.
.1. Ottba qWI'O ocur rttJap:;a na mm:h(qt runn, ocur 'O, bu 5 a 'O
1'0 'Olba1;S1 in nJa1dl11', ocur nl }:ultJr IIIÎc al'r IIlEeuna 11((1l1a.
,j-OClir bqtan'J in i11Eea11 In }:eattann Ultl co }:uba OCl1r cu tt1l1,a, no
a Let 5an }:uba Ean ttUba; ocur COlnJ'OE }:UltltlE 1'e a1p'ac ua1te
Jatlf na 1'e.
o t;a cach Cln'D com j:OCai l' .1. 0 ta H1rnelr 'Dam 'DO 'Dlùa'Ò cach CIII'D
'{J((lt COmrOICr'e'D III r e l1.ml1l ; III 5c1tpne lilt I YlO 'DIÙ'D((((n'D, ((CUr III r e )1rtnn
2.0 U1te 'DO b)1e1t;11 'Don IIlsin u 'DUutEur hH11ComaytÙmr; no 0 t;a mpwlf
'Dam 'DO 'Dlba'D III C11l'D TI((}\ com).'OIcf1e'D III relwn'D, in inSIll, '1' ann C01l1-
11 01n 'Dt;I)1 ill rel1.an'D ro na r:eol1.a ri1l1b.
o t1l1 lJiaine .1. melre1l1-
nmsr:ep,mallle III re)1mn'D).'o Imat; na rine!a}\ n'Dlbu'D nahinsine. 0 t;u
hln'Dua .,. na seltrine .1. If !at;}\0 'Dlh'Da ((n'D, no '1' !at; C0111Y1.011l'Dr C r
t(111 r e )1((nn. Co hWI1.IllU((, .I.lla 'Dell1.hrine. 1n5eCum((t renop,hu
.1.1115 ' al1. ((ët;. at;a aët; Lím an'D, aët; 111 cumat)'enmSt;eyt'Don opùa r U1I1 , f S"',,..,j
'
feët;ma'D t;1p,e 'DIÙal't>, ocur a hlt;h relC a LanH rtuta seltpne ((C u)1Ttnm'Ul
I Of e'lval valve.-In C. 8,i4-the foJ\owin
exp!auation is gÏ\en: "Collla)1T1((,
.1. dieunt alii 'eomorhe,' i.e. the thing whieh 11a.. in the possession of the
mother is "hat the daughter cI..ims. or the thing" "hieh the moth('r gh es allll
hequ"aths to her."
· Thefa;,' chiifQ/ the t,'ibe cOI!f;,'ms.-In C. I',j,j-the f"J\()l1in
reuding of thb
gloss is given. .. CC1tJt;e}\ a}\I nUlrC, J.'1I1J1fp,ut;h. i.e. the' }Innsrnth Feineehnb,'
of the 'Geilfine '-dh-ision, are as the five hrothers, like n< the fi,'e fingers of the
hn11ll, eueh of them ohtains the' dihnl1h'-land of the other.
For it hinds, i.e. no one shall take nnto himself to 7Iw/;e up the 'Geilfine'-
division anyone of his tribe in general, although there shonld be hut one man of
the five brothers ali,'e exeept himself. i.e. the son of the man who 11113 the' ,IiLudh ,_
land shall not oLt.Lin it, i.e. he is the sixth in relation to the fi,'e; hc sl1111 not
alone ohtain the 'dibaclh '-land which his father holds, hut the sons of his Lrothers
sltall øhm'e it will. him, hut it shall Le dh ide<l nß10ng all ufter the (kath oi the
man who obtains the lanlls of his extinct brother. The' ùiLudh' .Iund of the
dct"'ased shall be shared Ly the sons of his other hrothers. for the right to it
OF TAKIYG LAWFUL POSSESSION.
41
of taking posses-ion into the land about which the other women made true contracts. OF T A KIYO
Rightful covenant3 of equal yalue l relative to 'coibne'-propert
'. LA"Fn.
& c., i.e. according as it Wft.. stipulated that it shall be adjusted br compacts accord- POSSES.
IOY.
ingtojustice. The fair chief of the tribe confirms, I i.e. it is the pleasant
senior, i.e. the chief of the' geil6ue '-dh'i.ion is he that confirms the one-third, if
it be 'cruibh '-land or 'sHasta '-lund, or it is he thut confirms all the land, if it be
land thatwasgi\"l'n. L"nless he be the sixth, i.e. unless he be the sixth man,
it is he that will obtain the' dibadh '-lund, i.e. unl
<. he be the si,<tecnth (..c)
lIIan remm'ed from the 'geil6ne'-dh'ision, it i. not the 'deirbh6ne'-division shall
confirm the power of the' geilfine '-dh'ision, but one of the fiye men of the · geil6ne'-
diyision, Brigh pronounced on female covenants, i.e. there was fin
entr
' in the case, i.e. judgment waS pa.sed by Drigh touching the land about which
the other women made their true contrads. Lan!ls are estimated, i.e the land
about" hich contract was made br her mother Main, or her me.ther was lIIoor, i.e.
Iaer, the daughter of Cobhthach Caelbregh, i.e. King of Erin.
The' eruidh . amI · sliasta '-land of the mother is here ?'eferred to,
aud the mother llad died and left no sons, and there are no
bons, but daughters only. Aml tùe daughters shall obt:lin all the
land with obligation to perform service of attack and defence, or
the half of it without obligation to }J81f01"l1t service of attack and
defence; and there is power over them to cO'In2:>el tltem to restore
the land after their time."
From eYer}' related head, i.e. as I am about to tell concerlÓlg the'dibaùh '-
laul! of each chief to whom the land belonged; all the' geilfine' -divi
ion here became
e,<tiuct, and all the laud is obtainel! b}' the daughter in ri
htof her female 'coarb ,-
ship; or as I have to tell concerning the' dihadh '-land of the head (chief) to whom
the laml belonged, i.e. the daUl
hter, it is then the lal1<! is dh'ided among the three
triòes To the amount of their property, i.e. the propert}. on the land is
estimate!l acconling to the number of the tribe after the extinction of the daughter.
From the grea t gran d so n, i.e. ofthe 'geilfine'-dh'ision, i.e. it is the
' who ha\'e
b
eome extinet,or it is the
'sh.lll dh'idc the land. To the great grea t-gran dson,
i.c. of the 'deirbh-fine'-dhision. Except the 'eumha1 senorba", i.e..:
' ))
f"r' except,' I make.J!1 Ix
p.H(),!_h.ere, but the' cumhal' which is
UtlÍäl- CCF fJ 70
land, the se\'cnth of
'tnd this is in the posse'sion of a ' geilfine .-chid
is not more inherent in his 50n than in all, as i. set forth in the' Corns }'ine'.
luw.
· .If/e,' th,i,' fime.-O'D. 4:H, add. here, "ocuf If é rtmt :;eltreme nan)-
mer e; and it i. the chief of the' geiltine'-division, who Limls it" (oUiYe3 the
"fll1ghk,' to give back the lamls).
· TI.e crm.hal 3t7w,.ba.-In C. P.3G, the following note is arlde(l, which is not
f<HlIld in any other of the copies:
I::xcept a 'cumha1 tsenorba,'i.c.al-hiefhea<1ofafamilywhosustainsthe
('ompanies attendill
the king anrl thc bi<hop and who is substantial to bear liabili-
ties. "'hen the' deirbhfine' obtains the' dibadh '-lan<1 of the' geiltine,' all their
number pre'ent give the w9rth of a 'cnmhal' of lam! to this man, and to every othcr
head of a family whate\'er, one aftcr another, who is not nellr enough to be one
of the tribe. The reason thut it is given to this man is because hI' is bound to
pay for the liabilities of the lamily. See alsu C. 218;;,
42
"Om 'Ceét7t1Ea'D 81T'ana.
OF TAKING fU1't>)11 OCUf sOtl,mlC. OCl1f If e CU1t: 111 aët: an'O, um)1 noco bla comp.o111't1
P
=
N. uI)1)11fme, no noco bla 1t:1)11n no CO)1 '0100a 111 pne U1Le; ocuf If af 1"1n
_ 5aua)1 cona belt: 111 cumaL t:feno)1ba no cop. 'tI100a 111 pne U1Le.
"11101p.fel1"1up. nOfbel)1 co muum'Í>,
s" CumaL t:renop.ua ni rUa1LL;
"n11C l1a t;tl,l Cet;mU111nt:lt\ caom,
" If mlc ai>aLt:p.mse 111lQp.aon ;
"l?U1't11P. ocuf );o)1mac sLan,
"Ocur 'tIaof\ rUIi>1f\, 111 feët:mai>.
IC ,:'0 m 1 a'tl Sp. 1 an sen 1 t; h ep.." Iroa sel1l1t;relC 1-'0 Ua1fLct;a1'O 111 fetla1l1n
fO melt: no t:'O Lmset:. l?lnnt:lu rap. cuL .1. CU1l1SIt;ep. 'OUt;hCUf na
hCILpne fO)1 cuLu 'tI0 cum n'Oeltlb1-'1ne a CUlt: 'tie 111 t:an COml10111't1t:ltl he
t:'o na t:eop.a rl1l1b. "Cf\en 1 b fl n e .,. t:'0'tlelb5Ót1.11I 'Olba'tl 1t;1P. na t:eolHl
pine .1. 'tIelp.bríne oCUf lap.fine OCUf111'Oríne. 'SauuL art:a echt:p.an'tl a
,s' .1. If sabuL Ir echt;)1mn'tl Curt;)1ar,a 'tI0 selLpne 111 sabaL 'Oa naft:mt;ell
111 fep.an'tl." 111 'tIelp.bpne. 111 a'tl 'tI1 cU1cte ." Ir ann fO ma'tl laP. nec
CU1CpP. na 5elLpne, If ann comp.011l'Ot;IP. 111 rep.an'tl fO na t:eop.a fi1l1h,
ocur ni rU1L bancomap.ba ann. 1 mt;a fP.1 cln comfocalf .1. If
amLm'tl 1"1n at:a1t:)1e hlC C111a'tl a comfocmf, Ua1P. amuIL com)101n'tllt; in
)D'Olba'tl If (UllLaI'D Icfalt: ín C11Ia1'O. ma'tl 'tIon t:eLLach .,. ma'tl Inp.
n'tlet\C1ch t;eLLU15 na );elLpne af a pp.t:, .1. af a fep.ann, If ann com-
p.01n'tlt:ep. he .1. 111 rep.ann fO na t:eOtla rí1l1b. acht: ceadl p.u 1111 e '00
fln'Oflne." nocon rUIL ni 'tIín'tlfine aët:ceat:hllama'tl '00 'tIlba'tl SelLpne,
1.111 fClfe'tl llan'tl 'Oec. 0 fecht: 'Oec .1.0 ta na rec11t: P)1U "DeC anunn,
')çlf an 'tIeILIsr;e)11at:, conaë 'tIut:hmS pne lat: 0 ta pn amach aët: 'tIut:hm);
n'Daine. ,:'ul't1ep. ní uelp. Cln comrOCQ1r.I'hUbùx7p.L,.I-1nt:'O'tIaefl.,
1fI'tIaefl.a1c1l1t:a,nocoueI1lennclnm'Oacomt:'Ocmf' muna CUIC t:p.eaua
t:olp.beana'tlafl.." mana fl.abat: CU1C t:)1eaba (lICI 'tIa t:01)11tín, .1. 111 CUIC
t\U1t;h ce'tlach, ocuf munuu ac oen fLmt;h belt:. m a CUI C t:p.ebal U
locomrLanalb, .1. ma eomLana1ï;t;efl. CUIC qlebt:a caëa 'tIU1P. 'Olb 111 Ct11C
P.a1t cet:aeh; 'tI1a mbe CU1C re)1 'tIIU oeuf cet; 'tI111't11LLI6 0 cach pp., belllm
caë 'tIIUa'tl ocur CI1Ia1't1 afl.mLI, amUlL cach nUfl.)1am, 0 blUf in CUIC tWIt:h
cet:aeh aeu ocuf 0 bur uc oen rLmt:h belt:; OCUf cet:hfl.amtu C111a1't1 ufl.f1.am
"Gormac,.'-That is, eons who support their fathers in old age, or sons of a
sister.
. Seventh. The Irish of this passage is found in the left margin of p. 9, co!. I,
of the l'IIS. E. 3, 5.
3 Th.-ee tribu.-C. S;;G-adds; "the three we mention here, i.e. the chief, the
church, and the tribe."
. Except afoUl.th.-In C. 8;;7-where there is a running commentary on thi<
test., the following note is added here:-
.. Except the fourth of the' innfine '-division, i.e. after the extinction of Ihe
, geilfine '-division, so th8t their abode i. desert, then the' deirbhfine '-division
obwins 1111 their' dibadh'-land; but the' innfinc '.division gete a fourth part from
OF TAKI
G LA WFL'L POSSESSION.
43
"
.<4.I--ølMJ
w heR p etitiGBiR g 'fuidher '-temmts and' gorml1cs.'1 And the force of 'except' OF TAKL'IG
here is, because there is no division of this cumhal, or it shall not exist at nl1 LAWFUL
until all the tribe shall have become extinct; and from this is derived the ,aying POSòE6SIOY.
that there shall be no . eumal senorba' until all the tribe is extinct. -
Seven persons obtain, with trium ph,
The . cumhal senorba,' not liCanty ;
The sons of the three first "ives fair,
And the lions of the' adaltrach'-woman likewise;
A . fuidhir '-tcnant and a fine . gormac,'
And a . daer-fuidhir '-tenant the seventh.'
According to the size of the land, i.e. this is produced according to the
nobleness of the land as to greatness or smallness. The tri be-property iø
claimed backwards, i.e. thehereditary right of the 'geilfine'-dhision back-
wards to the 'deirbhfine '-division who have thcir share of it when it is divided
among the three tribes." The three tribes, i.e. the 'dibadh'-land is divided be-
tween the three' fine '-divisions, i.e. the 'deirbhfine'-division, and the' i.lrfine '-divi-
sion, and the 'innfine '-,livision. A n ex ter n branc h stops it, i.e. the branch
by \\hich the land is detained is a branch that is hitherto extern to the' geilfine'-
division, i.e. the 'deirbhfine '-division. 1ft he fi v e, & c., i.e. in this case, if
after the death of the five persons which are the 'geilfine'-division, the land isdivide,1
among the three' fine '-division., ami in thiø ca,e there is no female heir. Except
as regards the liability of relationship, i.e. it is thus tlley are as regards
the pa)'ing for the crimesoCtheir relatives, for as they share the' dibadh '-land so they
shall pay for their crime-. If th e family, i.e. after the removal of the f.mÜlyof
the' geilfine '-division out of their land, i.e. out of their territory, it is then it, i.e. the
land is divided among the three" fine '-divisions. Except a fourth' part to the
'fi nd-fine '-division, i.e. there is nothing for the 'innfine '-dhisiun except the
fourth of the' dibadh ' land of the' geilfine '-division, i.e. the sixteenth part. Fro III
seventeen,' i.e. from the seventeen men out, it is theu they are distinguished, so
th.t they are not a tribe community from that out, but a community of people.
The' fuidher'-tenant does not bear the liability of relationship,
i.e. the 'fuidher gabhla'-tenant, &c., i.e. the 'fo-daer'-person, i.e. the uatur.\I
bondmau does not bear the crimes of his relative3. Unless" there be five
houses to re lieve, i.e. unless he has five houses to relieve him, i.e. the five who
have stock c01llioting of a hundred Mad of cattle, and uu1e>s they be1ung to one chief.
If there be fi ve houses with complete stock, i.e. if the five houses, the five
who han stock consisting of a hundred head I!! cattle, of each' daer '-man of them
be complete; if there be five men of them each man having a hundred of cattle,
every one of them obtains his Ilw.,'e of the 'dibadh' land and pays for the crimes of
the others, like every free nati..-e, i.e. when they have thc five stocks of a hundred
head of cattle and are under one chief; and they shall pay the one-fourth of the
crime of the free native, and the fourth part of the' dire '-fine of the native free-
them of everything which is di\ ided, both lands and 'seds.' In like manner are
their crimea paid for.
. From ,eventeen.-From this out they do not obtain any share; for the' geil-
fine '-division extends to five, the 'deirbhfine '-division to twelve, the. innfine ,-
division to levCIlteen men.
1'Aj
44
"Om "Ceët"tJEa'D 81rana.
OF TAKING ICUf' OCUf cedlflamtu 'Ðlt\e 'Ðuta tlt'TWI'Ð '00 ma 'ÐtI1t. Con t\an'Ðat; (t
LAWFUL P nnt;ea'Ða .1. If t;alt;nemadl ut\t'an'Ðuf caë 'Ðlb 'ÐUt;hms 1-'1I1e a celLe.
POSSFSSIOY.
111 rnac bJla'Dar pnnt"1Ea pne rrU J'O'D rrud1meara,
rntJnab neara pp. cOlbnear rnad1a1)t adwlp. m o)lba.
" hoJtba rnm;ha)t rntJllCOI)lChe a rn1C 0 rta1dla1b a a)tTI-
dl11nn((. "00 a1}'1C a te((d11mU)t)lO 'DO cum F11te 1'1)1, E)ucm;
a tead1 ana1tt a p)l Ù)tet"ha1Ù fit a reota FO'DtaTELea)l.
fme 0 CI)lt" cob)wmlle. nIl' t"IC 'DO ce1tt" comfOCU1r ac1lt"
ce)tt" oltùa rnbO(1)teè 'Da rccht" curnat; comcqtTIa o)tb((
It> ùwt"uch rnbow)te((ch; o)tùa }-'O)t ret" t11111Faebw)t; ar TI((
)wna)t te1d1 'D1)te.
111 mal' bt'(('Ðaf pnnn)';((.1- noco ne in mal' fo:x:taf'Ðutcuft:me
a-madwl1 tIIte, ni If mo na feb:mH'Ð t;1J1e 'ÐllJU'Õ.
111a"O oll,ba qWlù no rLwfì::;a, no '01tpEt1 'Oadwll1, 'Ow it!5111 ((It
'.f"'OuThp,aèT, II' 'OILer 0 pne '00 rnacalb 'Oeop,OI1) ocu1' 1I1ul1CClIptl,
cem belTI oc Fo;snu1I1 'Oe, co a n"Olba'O no a n"Oelrt;se 0 pne. 111(('0
1IIac 11IIUltl1,O ÙelWr cennum"Onlt '00 uI1Iu1i>, II' 'Oltur 'La quat!
na n011ba ra '00, UU111 ùqlalT 1I11C tla t11l1111a"O C11IaI'O; 1I!U'O
mac II11UI111O a"OaLqwlEI, 11' LEt na n011ùa 1'0 '00.
)D rt'l fO'Ð 1-'ftlt;hmcafa, .1. 0 fIt' mel1'omnmSt;I't' 1.'1110 mmtt\1 lJet u
fmt;ëJuf t'lf'
.1. banc01l1allÙa pL run"O OCur rClwnn m:h('11 OCur rcnm:llult
U1ce 11e p,e, OCur Eemai> aiL '01 a TUÙalI1"C '01(( 1I1acalù tli nùl1ca.
1n unab neafa 1-'lft cOllJne<<f' .1. maníp nera a ë01lJnef 111 retunn'Ð
'1.ç 'Ða madmlt' mna'ÐadWlfl, mamb ot'ba q\tI1b ocuf ft1U}'t;a'Ðon murlnr. hI';
umll !nufre'Õ. bet'm'Ð 111 mal' t'ann 'Ðe fO mcne'Ð cet;mu1I1'Ðt;lt'e ut\na'Dl11u
no a'Ðatt;t'mse.
I The troejud9mellta. In C. fi,j!)--the following note is added here:-
.. A female heir i
here referred to, and her tribe are not bound to re
torc to her.
It is lifter ber death it is divided Lctween sons and brothers. for if the tribe were
01<' 'rAKING L.\ WFUL POSSESSiON.
45
man's beast shall be paid to each of them for his beast. T hey share the tri be OF TAKING
pro per t)", i.e. it is delightfully each of them shall share the tribe property of each LAWFUL
I PoSSE.'>SIOS.
ot ler. -
It is not a son that obtain:,; the property of a tribe
in ground to be valued, unless the title to the land
be nearer to his mother than to his father.
As to a mother's land her sons shall divide it from
the days of her public testament. But the half of it
reverts to the tribe of the original owner of the land;
the other half according to the true judgments,1 the
seed of her flesh divide. The tribe divide llteÏ1' pm'-
lion by just partition. There comes not by right of
relationship but the right land of a 'bo-aire '-chief
to the extent of twic.e seven 'cumhals;' similar are
the' biatn,ch '-lands of the' bo-aire '-chief: as to land
given up for a road and respecting which there are
obligations, it is to be restored; half' dire '-fine is
paid out of it.
It is not a Bon that obtainB, i.e. it is not the Bon who takes thepatri-
many of the whole tribe of the mother, he take8 no more than a seventh of 'dibadh '.
I.md.
Hit be 'cruib' or' Bliasta'-land, or land appropriated by the father
for his daughter out of affection, it is fmfeited by the tribe to the
Bons of tILe husbands, being exiles and foreigners, while they are
doing good with it; they also have what the tribe leave vacant or
desert. H it be a son that a first wife hears to a native free-
man, the two-thirds of these lands are forfeit, because the Bons
of native freemen ùear (pay for) liabilities; but if he be the Bon
of an 'adaltrach '-woman, half these lands lLTe due to him.
In gr ou nd to be val u ed, i.e. when it is truly estimated that the tribe of
the mother are cognizant of it.
A female heir is here referred to who has had the father's and
the grandfather's land for a time, and though Bhe should desire to
give it to her sons Bhe Bllall not give it.
Unless the title to the land be nearer, &c., i.e. unless the claim to the
land be nearer to the mother than to the father, unless it be 'crudh ' and' sliasta '-
land of the mother; for, if it be ,uch, the Bon sha1\ take a share of it accordil1g to
the nature of hi, mother', contract, i.e. whether ,he be a first wife of contract or
an 'adaltrach '-woman.
houml to restore the laud from her, uo portion of it woul<! be gin'u to the sons
a
t('rward9. "
46
"Om "Ceèt::u5C(ù 8'ra nu .
OF TAKING h o1'ba mm::ha1' mUIlCOI1'che, .1. ín fep,anl1 ap, a1' ml'lre m coywch
LAWFUL a main amat:hmp" Ifmail1 'Oolleach fP,I ) 'CUlp,et:hap, cop.. CCmlc 0 fLmt:-
I'OS8K.SSIOY.
- hm b a ap,'Ot:hlmll a.1- bu'OLea macmbf1 a CUlt: 'Oeon Lo '00 p,15ne a t:lmlla
co ha1''O, .1. If La a macu 0 L<I1tmb a bmf .1. op,ba c1'Ulb ocuf fLta
rt
p,allllt:m1' iful1ll amUiL p,anl1t:mp, clnal'tJ p,01lla111'O, .1. ballcomap,ba '00110
C. 859. anif1u, ocuf 111 'OLIS [a pne t:mf1c 11'01], ma'O fleaf<< 111 fln'Ot:1U '00 mat:hmp,
111 mlc ap, ballcomap.buf 111a '01({ m::hlJ1., If an'O 111ap,bella'Ofm'Oe a pile 0
a CIp,t: comp,a111'Oe, up, IffA'Í> a ceruTom a f111'Ot:1'tJ '00 bp,eIt:h att pile.
1)0 l11f1c a Leat:h, .1- mfICt;1p, a Let Imup.p,o ill f1p' 1SP,1({11 '01({ pne.
I. Ocu)' If e CUlt: ill Imup.p.o anll, l1mp. fep.rtnn na pne reo, ocuf op,ba CTtuib
ocuf fLwft:a Twmaln'O, .1. If e CUlt: in I 11lUflTW, noco nmfcenn ni 'Ofep.ann
a at:hap. 1'0 bI111(( Lmm, ocnf mfc' a fep.ann 'OILl1f fen. CC Leat:h an ({1 Lt.,
.1. a Let a,L, '00 P.eIp, na flp.bp.eta no Ila pp.bp,et:heman. ÆI1 L a feo La
ro'OLmï;t:eap. .1- fo'OeILI5t:ep. elfelc '00 flL a feoLa, 'Oa eLaln'O. mac
i,(U'OaLq1.atË;1 up.na'Oma oCl1f pne fin, ocuf a P.0111'O ap. '00 et:up.p.u. fine
o C1Jtt: cobp.a1nl1e, .1. 111 fíne tic 'Ow cumap.0111'O '00 p.elp. CIp,t:, OCUf
1)'1 fl1l a cOIbp,mn'O 0 pne np. 'Oa feet: cumaL '00 111sin 111 bomap.ech If
rep.p.. 11, r t:IC '00 cep.t: com rOcm f' I. ni t;IC '00 comOlcf1Su'O 'Oe'Oo p.mtt
ÜIP.t:. CCch t: ce1't: op,l)(( mbom p.ee .1. act: ma'O rap.ann in bomp,eë,
,..1. Let nop.ba an m::hap, '01({ inS111w1'n'Olba'Í>,cen fLolsa'O,cen c1f,cen consbmL
.1. t:1P. CÐltP.1 fl'Ct; cumaL p.o bUi oc an bomp,IS If rep.p. an'O. 1)a feet:
pumaL comap.'Oa .1. '00 comap.'Omse'O p.e 'Oa reet: '00 cumaLmb cona'O
he rep.ann 'Oa n'Oenann in bomp.e me'OOl1ae, 110 in bomp,e If t:mp.e a
batl1lS a 'O. {at 111 op.ba 111 adJatt '0011 111sin laP. nec 111n at:hap.; cen r ubrt
1 cen p.ubaf1n. Op.ba rop. fet: 111mraebm1', .1.rep.anl1 '00 bep.ap. rop.
conmp. .1. Ime aT>a raebu1', t-'Oebp.a La r111e a CU111SI'O cucu, roebp.aé lelf1 a
m)'l'c l1mtl.
.1.
ep.ann 'DO berta)1, ap. canal)1, Wflf', octJr aemaeu(!)1, tal)'
m <::1 na ;selben'D fOP. 11,at ftJI'Dp.e; ((1' m;se CI11,1\I1::611, tc<::h cnectann
",'DO neach, tem:h 'Don <::1 'DO bel11" octJr t"p.mn 'Don t::1 'Da <::aù(1)1,.
encctann 'Don <::1 'Dombelp. CInmot:a In relre'6 p.an'D 'Déc cnc-
1 The CJ--Lme, i.e. the' eric '-fine for crime.
..11 female hej,'.-Thisgloss is an addition by II later hand, an,l in smaller letters.
· The half of it revtl"t..-In O'D. 422, the following somewhat different explana-
tion of this is given :-
.. Bnt the one half of it is restored to the tribe whose property the land is b)'
right, i.e. it is divided into two parts, like every other ',libadh'-laml, when there are
80ns in question, and if there were only daughters they take the one-half of it during
their time (the tnm of tl" ir "alw'al liu.) with an obligation of restoIing it after
OF TAKIXG LAWFl:L POSSESSIO
.
47
A mother's land, &1'., i.e. the land to which claim is estimated from the OF TAKING
wealth of the mother, it is wealth to the person by whom the contract is made. H er LAWFUL
f h d f bl ' . h h II PO"E'<hIOX.
sons rom teays 0 her pu II' testament, I.e. er sons s a own
her share of it from the day that she made her will openly, i.e. her sons shall own
it from the day of her death, i.e. . crubh ' and' sliastn '-land is here divided as
the crime I is dh-ided before, i.e. a female heir! is here ,'iferred to, and her tribe is
not obliged to restore to her, if the tribe property be nearer to the mother of the
son in female succession than to the father, it is then the tribe claim by their
right of partition, for it is her duty to bring her tribe-propert)" to the tribe.
But the half of it reyerts,' i.e. butthehnlfbelongingto the owner ofthe land · Ir. Of-
is restored to his tribe. And the force of the particle . but' here is, because this
is the land of the tribe, and' crudh' and · sliasta '-land are riferred to before, i.e.
thc force of . but' is, that no part of the land of the fatIIer which was his pO'!8eS-
sion reverts, but his own proper land doth revert. The other half, i.e. the
other moiety according to the true judgment, or according to the true judges. The
seed of her flesh divide, i.e. it is partitioned to the seed of her flesh, i.e. her
children. The son of an 'adaltrach '-woman of coutract and the tribe are here
,'efel'I'ed to, and it is dh-ided into t"o equal pm.ts between them. The tribe b)"
just partition, i.e. the tribe come to make partition of it according to right, and
in this partition the tribe gi\ es a land of twice .seven . eumhals' to the daughter of
thehighest'bo-airech'-chief. There comes not by right of relationship,
i.e. there comes not of relationship according to "hat is right. But the right
Inn ,\ of a . boa ir I' '- I' hi I' f, i.e. except the laud of the 'bo-aire'-chief,
i.e. half the land of the father goes to his daughter after his decease, without
tM sert7ice of hostings, without rent, without refection; i.e. a land of twenty-eight
. cumhals' had been in the possession of the' bo-aire '-chief of best rank. in this
case. Twice seven' I' umhals,' &1'., &1'., i.e. it was adjustcd by twice
seven'cumhals,' so that it is the land by which the mi,ldle 'bo-aire '-chief or
the lowest' bo.aire '-chief fec<ls her. Half the land of the father devolves to the
daughtcr aftcr the death of the father; this is without the se."Vices qf attack and de-
fcnce. Land given up for a road, and respecting which there are
o!.Jligations, i.e. land which is given for a road, i.e. concerning which there Are
two obligations, an obligation upon the tribe to demand it back, and anobligatioll
upon her to give it up.
That is, land' "hich is givf'n fQj
rmul j" ti"> h" ,'p>rln red, and the
obligation is on the l>erson who does not r
ceiye it for the stock of
the · fuidhir '-tenant; it is by him half honor-price is paid to one,
half to the person who gives, and one-third to the person to whom
it is given. Honor-price to the person who gives it except the
their time, i.e. the force of the' but' here is, he docs not restore the laud of his
father which be had in his han<ls (occupation) but he restores his own proper land;
or, indeed, their true land is restored to its tribe, and the forcc of the' but' here
is, for this is the land of the tribe, and it was' crudh ' and' sliasta '-land" I' spoke
of before.
".A land of se,'en . cumhals' she hAil here and the half of it goes to her sons, and
the half to her tribe, and she is an ' adaltrach '-woman Omt is here treated of-"
. Land.-This commentary is found u a note on the lower margin of col. 2, p. 9,
of the MS. E. 3. 5.
". Tf4j-do
hM fu 7
rbJM,{J
J;
i..kt, t
-NJ
;-tj"M-
Ci"Yf
V" /"t. ""V\oow ^^" '\.N'V
48
"0111 lelTUE({'O S'rana.
ÛF TAKING ctam'Dl 'Don n 'Da {"(:tùaI11, cmmoi:a relf1'D .1. nl J'0Il1i: a Ol le t;
LA \VFUI.. .
POSSESSION. ocur a "Cabatlu; amU1t p.o Eab nIL foqlatce 110 WltÙlm::(( .1. opha
Ealb"Cel 1o ftati: 1100 ectalI" belln Imul111.O, munalWEb((t;CUl1'. 111
oancomallou tatf1n pne j oqln pne man 11.0 Eabat; cu111 teo. 1 r
t;"lmaebul1 fin ar 'Da 11enall. tei:'Dllle.
CC l' '()(I l' a n a l' t e H; h '0' l' e .1. If urre1C e11'mdle1' tet íne1ch '00
1'Olch "Oon t:I1' 'Ðenecta1l1n '011'1 .1. tet a t:llle; a teat 1I1mtt ar a t:oëur.
oÌJ IHI)
CU1ë m 1maeoup. a 'De111 ann? .1. faebup. tWf1n ínEm oCllr
f aebu ll. ta1rm pne. 1rre'D a 'Delp. 'Dt1Ee"Ò, faebup. tatf1n PIle 1111
( I. CI.1f1c 'Don mElO 111 Uatl1 na bl mac an'D "Cap.elr 10 ar1lap., orur
raebup. tmr m 111ElO a atr1C ap.1r 'Don pne.
Cg),
t(!
,l
I1C W:f)
8tan Fatp.Ere rnbp.OEa11:> rnbll.l11'Dp.ec1n::a 11lEtW1'De t:: 1 t 1e
COrn1:>1'Dan Coím1teach. 11í 1:>ITteanap. Wp. rno bí bt1a1)((1n,
((c11t:: bermb FOchtlt1cm, ap. nach mea'O bertC(fi l1.e rnera 1b
l< '1' 1:>(ca111Eean ta Feme.
, éC;
'
C.
.I-
.1.
1W
v "d...1itf fÚj JJi...
Stan
al 1'5re, .1. rtam::! ((\chsena a feol1' a
e1'alll'Ð on t:l blr ac
fl1''Ðechr lll III b1'UI5 J:1l1r nl1 COI1' 'Ð'fl5I, 'Dla cm'Ð call ac1'a CO p.o apt a
f\1Il'Ð 1'01' a
eo1" In51'U7'De {;11'e, .1.\1151'<<1'D 11 hlll'ÐI a comm(;lclll
III c01l1<<1chël lIla tip., .1- 'Ða <<1ël no a t:1'i et:ap.baí 1(;11' '00 celtl- 11 í
10 '01 1'ean ap., .1. noco na'Ðbut elp.mcep. el1'lc 1Il'Ð laP. f111blt '00 I nmclnl1
Ir m btlU'Ðam cen acp.a co1' ((ra a P.1Il'Ð
op.r III
ell. rill a1'ir. CC c 11 t:
beralb r OCl1 1'ucca, .1. aëc 111
('Il. '00 bel1' ap. rocp.mc '00 }WI1' ùa
era
5 nae no ((Iùm'Ð, U((I1' ce belt nech a n((lClt:m a rochp.eca cell a acp.a cop.
ara a 1'1ll'Ð
o1' a
eo1', noco tUþQ1L1 'ÐtlSUr a fochp.((Ic 'ÐIC 11.11'. ((p.
,s nach C l1ea'Ð .,. ap. naë"cain '1(((
eOlp. ùertan p.e melra1l111aCC a aC)l.a
aca 'ÐlUtt:({'Ð. conac COl1' cml1E;1Il Ime '00 p.el1' III reinectwlr, .1. ICIP.
c1'echc ocur
ep. m hlcca1' all ((Ich5111 aëc 'Ðlp.e na 50m( ocur r 11laëc .
Illaif 'dire':fine.-In O'D. "
2-3, the fullowillg note is nd.led:-"Th:1t is,
"aU the thing which pertains to the l.m<1, i.e. half the part whi,'h is given to
her out of her land, by the tribe, or indeed it is half to her Ollt of her land
property. i.e. it is out of that the one-half is paid by the person who gives, amI
one-third by the person to whom hOllor-price is given, except one-eighth to the
person who gives hunor-price, Hn,1 one-sixth to the person to whom it is givrn,
so that it ie twu-thirds of one-fourth of honur-price that is \muting to the person
tu whom it is given, which is equal tu the one-sixth of the whule.
.. Full honor-price ia !livut tu oue fur pnrit). and worthiness and property, i.e. one
half for purity and \\orthiness, and one half for property, hoth Ii\"{> cattle Hnd deaa
chattels. The one-hnlf which is on acconnt of lin cattle, i.e. the one-fOl.rth of
tf(;.t'3"1. 'l\l.M"o.ÅJM
.
b
7tt. 'Þ.-wlw f.{V
. . - . J' V'
(,
,u, "'
m,
,
:
,
.
0 '"fCXA Q,-NIf'# -r
""
v
I
OF 1'AKI
G LAWFUL POSSESSION.
40
I
sLxteenth part of honor-price to the person to whom it is given, except OF TJ.B:ING
. th ' O t t k . I . t " d t l ' k h fh ' d LAWFUL
one-SIX ,I.e. 1 s a -mg all( 1 s glVll1g 0 no run 1 e t ose 0 Ire POSSESSION.
land, or refection land, i.e. land which is rented a from a chief or -
f h H ( ) k . h I a Ir. Taken.
rom a c urch. e tile Bon ta es It, owever, un ess the covenants
of the female heir affect the tribe; the tÜbe take it unless they have
verhal covenants. That is the obligation out of which half' dire '.
fine is paid.
Out of which half 'dire.-fine, iR paid, i.e. it is out of tLisispaid
half the part of the land" llÍch comes to her as honor-price, i.e. half her land; thc
other half out of her property.
'Yllat ohlig:ttion is mentioned here
i.e. an ohligation 011 the
daughter and all ohligation on the tribe. 'V1lat tIle law says is,
"let there be an ohligatioll on the tribe as to restoring to the
daughter when there is no son after tlw deatlt of the father, and an
oLJigation 011 the daughter to restore it (the land) again to the tribe.
In the 'Bruighrechta'-laws it is guiltless to look on uf'
(.,36o_
cattle grazin
; on the jointly-fenced land of a co-
occupant. Nothing shall be paid after the lapse of a
year, but after the custom of hire, for every wound that
l:t
is healed by arbitrators is
bc sctt ledl?ythe Feini.
It is guiltless to look on, i.e. re.titution (>f the grass of his land need not be
made by th(' person who is truly looking on the land, for whom it is not right to correct
it, ifit remain without being claimed until the top grows on the grass. Grazing
on a farm, i.e. they graze the top of the grail in the land, the neighbour being
cognizant of it, i.e. for two !tight. or three u nprolit.abl y On thy partner's land. 4. t..
Nothing shall be paid, i.e. 'eric .-fine shall not be paid for it after bis being
cognizant of it for a year without claiming, until its top grOmi upon that grass
again. ß u t after the custom of hire,' .e. but the grass which he lets for
hire according to the good or pleasant custom, for though one should be cognizant of
the hire without claiming it until the top grows on the grass, he is not the lellS
entitled to have his hire paid to him. For every wound, i.e. forevery
cfr,M-
' ofr
to grass that is repaired by arbitration cannot be further sued for; 'de' is a negative,
80 that there is no further claim for it, according to the' Feinechus '-law,- i.e. as
regards b wound and gra8s, compensation is not paid, but the' dire '-fine of tLe wound b Ir. B,-
and' smacht '-fine. tween.
hon.r-price, one-fourth for land am\ dea,\ chattels, the half of that for land alone,
80 that it is the one-half of this i8 given to her, i.e. the sixteenth part. Or, indeed,
it i8 a balance that i. at"llch between land and dead chattels, or the one-sixteenth
for either unleøø they are equalized according to arbitration."
· Bllt after the cuatom of hi"e. In C. 859, the following note is given:-"ß u t
after the manner of hire. The custom of thi8 is, whatever is contracted i8
enforæd, but if no contract has been made, no payment i8 made, MI the trespasse8
in the ea!e of co-occnpanc), unless they !lre claimed for" ithin the year after the
tre'pas
, 8ha11 not be enforced."
.' FeinechUl'-law. That is, whatever is submitted to arbitration and decided h) it
must be considered a8 finally settled. There c;m be no furlher appeal to the
. Feinechus'-law.
VOL. IV.
};
50
"Om t:eëCU5a1:> 81fana:.
OF TAKING .1. tla ctle'Óa 'OOtlO, t1Iunab aCUt1t:up. rU(( rtalln:::I, ocur nt tlO
P
:S';::
N b ab 'Oeltbltl.e, nll11CC!p. ((1<:;h5111 ai:-r; cotonn quc nama.
Oið"lf23
. ---
ma tlO t-'Ottarse'O 111 featl. C111 aEtl.a cutl. f((r 1t1 faep. elte na
1t1a'Õ, 11' '011..1'1 n(( 11w WdI51t1((, ocur -r;wf1c 111 rmaë"La 11' 1t1 t11 1'111 ;
ia-r;a etuc a fo;sta '00 'Out a p.up.a'Ó 0 'Oume, ocur 11' an"D a-r;a w-r;hS1t1
'00 -r;ul-r;lm 0 'OU111e 1:1l.e na fwtt.
(D'lr IU2-) J .1. 1r ea 'O fUll.. r unn , 'OUI118 tlO bal a nW'OI-r;am f05ta comlëeara
'00 'Oenam flur, ocur tlO bw a fwtt 5en a t:aqw COtl. far a fctl. ;
fc-r;a1p. melë fll.lr, ocur nl 111C-r;atl. ((1t:115m, ocur 11' e fin ael1 íne(('ò
'0 a tl"Dltf15eann w-r;115111 0 "Duíne a fwtt '00 'Oenam, ocur ni 11fc-r;ap.
o-r;l1p.ur 11'111 fwtt.
c..."OlP,. JJ 'J{)',fr683
...
\ fu 'I'
C8
7 ,( 81t1. each fen1:> L1 5 e 'Òjeacha quée eon1:> eaL s. 1n ran
-w WO.,o if'D1eOm1:>et ö each quch, 1r an1:> bettap. each 'D1Eean'D
f - co 11.1;S. wrJC" .
If .sIP. cach ren'IJLI5eiJ, .1.lrutam caë ren'IJeILI5U'IJ, caë 'lJeltI5u'IJ 'lJlb
ro I'll' 1'e celte, no caë 'lJL15eiJ ren 'lJlb 1'e celLe, no caë 'lJLl5eiJ 'lJ0 1'elTt
na ran. 1n t::all II' 'lJICOln'IJeIL5,.I. ín t::all na bl bTteJt::hem acm bl'IJ-
bU1"Òno acmfelchemumt::01che'IJa. 11' all'IJ be1'aTt cach 'lJ15ean'IJ co
P.15, .1. If ann beTtal1' cach 'lJlcenn cín(('IJwr ocur bTtelt::hemllalr ap. amur
loIn 1'1s,ump.lr alCI If 'lJ01Ë ín t::amcearach 'lJOblt::h. '015ean'IJ, .1. na
'IJ<<5abap. 'lJa 5teo'IJ.
fi1 P.1;S ta1f 11a b1a1:> ;se1tt 1 115tafa1b, 1:>0 11a tabat1.
eh1f Ftadm, 7)0 11a e11"t;ét1e1:>ap. Fe1ch cana. 1n wn
5e1b1Uf 111 P.15 111a mama fO, If an1:> 1:>0 p.anap. 1:>1p.e ru;s,
'hen öae, 'hen earbp.at, een e1f1n1:>tWCUr F111 a dlUCfCha.
t,'h IU;')
n I 1'15, .1. noco p.151r p.mt::1 1'ír ma111 1'abat:: 5ettL alce 1\e comatta'IJ
a 1'I5e no a celLtfme. 11 a t::aba1' chII' fLat::ha, .1.''lJaep.mcILtneët::a,
.1.b1'alch. relch cana,.I.rmacht::cana. In t::an
elblur 111 1'15,
.1. m t::an 5a1ber In moamu5a'IJ 110 m 51'e1m a 'lJubp.ama1' 1'oma111'IJ. 1 l'
'Iv an'IJ '00 1\anap. 'lJI1'e, .1.11' an'IJ el1'111t::eTt enectann 1'15 'lJ0 co comtan,
.1. na momO'lJu'IJ ra, .1. SlaLL, ocuf cír, ocur rmaët::. 'ben 5ae .1. 1m
bTtelt::hemnur. no 1m 5upa'IJnmf1. no 1m 0lrm'IJTtaCur 'lJ0 'lJenam 'lJ0.
I The w01lnlÙ. 'The Irish of these two paragraphs is found in the right mnrgin
of eol. 2, p. 9, near the bottom.
I Hi,people. See V8118neey Collect., vol. III., p. 89, for an attempt to trans-
late this and other passages of the Drehon La wso
OF TAKING L.\WFGL POSSESSION.
51
That is, as to the woundR,1 indeed, unless they are claimed for OF TAKING
before they are healed, and no necessity interferes, no compensa- P
:
:
s.
tion is paid except body' eric '-fine alone.
If it has been neglected to sue for the grass until other grass
grew in its place, it is a case of forfeiture of the compensation, and
a repayment of the' smacht '-fine for that thing; the' eric '-fine for
the damage becomes obsolete to a person, and in this case compen-
sation is lost to. a person through his neglect. . Ir. Falla
That is, the case here is çf a man who was cognizant ofthe com- from.
mission of a trespass of co-occupancy against him, and he neglected
suing for it until the gra<;s grew; sacks Ilre paid for it, and com-
pensation is not paid, and this is the only instance in which com-
pensation is forfeited by a person through his neglect, and sick-
maintenance is not paid for the neglect.
Constant is every old law, ò.f every territory eJ..ti
covenants. When any territory is uncovenanted, it is
then every disputed case is brought before the king.
Constant is every old law, i.e. perpetual is every old arrangement, every
decision of those which follow with each other, or every old law of them with each
other, or every law according to the ancients. When uncovenanted, i.e. when
the defendant or the plaintiff has not a Drehon. It is then every disputed
case is brought before the king, i.e. it is then every disputed case of crime
and judgment is brought before the king, for it is with him the aol!ltioo of every -I.
difficuItyislikelytobe. Disputed case, i.e. t lteihiÐghrQygàU obeøettIed.
!A-
He is not a king who has not hostages in fetters, 4:4: p /J
to whom the rent of a king is not given, to whom the
fines of law are not paid. But when the king geis
these submissions, it is then the' dire' -fine of a king is
paid, if he is free from b falsehood, from hetFayal-of-his b Ir. With-
--rutWes; from un worthy conduct toward s his people. 2 out.
He is not a king, i.e. he is not to be styled king unlcss he has hostages for
preserving his kingship or his tenancy. Towhom the rentof akingisnot
given, i.c. the rent paid on 'daer'-stock tenancy, i.e. malt. Fines of law, i.e.
the 'sm/lcht'-fine of the law. 'Vhen the kiug gets, i.e. when he receives
the "ubmissiou or allegiance which we have mentioned before. It is the n
the 'd ire '-f i n e is pa i d, i.e. it is then the honor-price of a king is completely
paill to him, i.e. thesesuLmission., i.e. hostage, rent, and' smacht '-fine. Free from
false hood, i.e. respecting judgmentpasaed, or false witness bo"l'W!, or impropriety
VOL, IV. E 2
52 "Om "Ceëi:aöal> 81ratla.
Jl'
_'?
OF TAKING'Sen earb1'm';, .1. cen
1'
_h_n.g: n
arC!.t; ocur noco 'Otls"Cecha '00 b1'a"Ch
r LAWFUI. na níreat. Cen el 1'1 n'01'UCUr;.I. IIn surOl1'sett a 'OtISl'Í>,110 1111 t;um
OSSESSIOS. .
_ nOlm sm"C ro1' a "Cua"Chalb; um1' 'Oa 1'01b III 'Olb rm mce, noco b1U'O enect((l1n
1'15 '00 co comtan.
1'"
r aWn:; rechr; pal>tlWre FotlEeattal> Eae each tl1E;
renal> l>o rOl>a'i:> ar a nwtlt1f1 ; cen pr, CEnl>t1Eel>, l>11:>e I
d'
WtLe, mEe mal> r;cqt cettr; ; ma11:>m cad1a Fat]t ; tluna ma O:6lfZt;.
Ftatr;h1Ur ; l>lrCe 1llbteëw; m1tteal> meara; reot
tleadl((. 1r;e red1r; 1llbeOCa1nl>te C{tll> ro f01LOf11al> Eae
10 cadl 1uE.
I
)
"I
,J4 v -t" "}
1 t.
'\
",
rtvCA
Q,-
.&tf
4"
(O'þ l2..ilJ-)
Cf"Ca1 "C recht:: r' a'On ({1 re, .,. a"Cau; a rec1l"C amUlLrw'Onmre 1'o1'sLor
a s((e 1'ort ín cach '1' 1'is. Sena'O '00 1'o'Oa'Í>. .1. 1'en(('O l1a hect((1f1
'0111IpO'Í> arr a uaraL tlr. Cen rl l' .1. 1111 pachmb CI1l'O"C' .1. cen ce1't::
C en 'Otlse'O, .1. 1m rl((chmb elccm'O"C1 '00 'O((1nta11l 'OO1b. 1),'Oe al1te
,) .1. co hm'Otlstec. 1 n se 111 a '0 "Ca1' ce1'"C .1. mse a1' ac"C, a"Ca ac"C tím al1'O,
ma'O a1' "Cm1'cf1n 'OtISI'Í> '00, I10con m'Otls"Ccch elf1um an'?rame. rll a1'0111 _
cudl a ra11'/.I. 1'
c
I1.!.L
_a Jl
:?
I
, .1. tet tos enec "C1'edmmr a11W' '6 Y- ''/If 8
11 una .10 bet can ana, .1. S01'"Ca '00 bl"Ch 11la rtm:;hurr. lh rc e m bLec"Ca
.1. 'Olrccae .1. òld, can t((cht;.I. 'OlrcmLar in 1 ((c11"Ca. 1111 LLe a '0 meara,
:L
.1.l((lt na "Cmbf1n,ocur mlttn1" ScoL n eadl a,.1 reot(('O ar11l11edl<<,
111naltbu, no rumLL bec 'Oon ((1'òult '00 bl"Ch an '0. 1"C ere c 11"C m b e 0-
c a in '0 Le .1. 1"c1(("c ro anuar 111 rech"Ca amUlL caÎml1L mlJ1 rll1'ran'Our no
1'mttf1Ser a sae 1'01' ín cach ír 1'15,
"
f;v /,t.<-o.i....d{t, 8.M J.
ßv..r'f
. JCÐ 3
"Ceo]ta Eua m:a moam 'Da pch l>1a Fott cach r;Uatdl ;
H FUltteam EU tlGl>ma; ForEeatt Et1pal>nWre; 5ub]lear;h
atl Foch1lwc.
'C e 0 l' a 5 u a, .1. "Ceolta Su(( eí11l 11' 1Ilpra 111'Oechar 'Ola 1'01' na t;ua"C-
hmb. fUILLea1l\ SU l1a'Oma .1. }'U1LLem LOIF;IT>cchn{ '00 sabmL al"\.
sunarc((11'ec"C, ocur 110CO 'Otp5alt (( sat.mL CI'Í> a1' rí1'narCU11'eC"C .1. tos
30 '00 ar a 1'a'O a"Ca a na'Ommm cln co be. 1) a 1'1 c h '0 I a, . ,. '00 1'1st((n'O '01<<
fo 1'5 e aLL SU 1'1 a '0 n a 're, .1. m SU1-'1u'Onmre 'Or01yt;<;etL '00. i; u b-
1'e((t;h a1' foch1'alc .1. ua b1'e"Cha: SU(( '00 bltCldl '00 ((1' 'OelC]telC
toISI'Oec"Ca, ocu1' noco 'OteS((1' CI'O a 1Ilb1'Ol"Ch ((11 mrC1.
I For hi,'e.-Vide Vall. CoHeet., p. flO, v"l. Hi. (Ko. X.)
OF TAKING L.\WFUL POSSESSIO
.
53
ùone by him. Fro m bet ray ai, i.e. without betrayal of the nobles; and it OF TAKIXG
is not more la"fu1 for him to betray the plebeians. Fro m un worth y c on- LAWFlL
d u c t , i.e. with respect to false decision of his law, or with respect to wounding Or POS."S
IOY.
robbing his people; for if he had been guilty of any of these, he shall not have the
honor-price of a king completely.
There are seven proofs which attest the false- rj- -V 1/r
hood of every king; to turn a synod out of their
noLle' lis '-fort
without truth, without law,
, dide aire,' unless they (the dClnands of the pct1,tics)
were beyond right; defeat in hattle ; dearth in his
reign; dryness of cows; blight of fruit; scarcity of
corn. These are the sC\-en live candles which expose
the falsehood of eyery king.
The rea res eve n wit n e sse s, i.e. there are seven things as it were wit-
nes, s which attest his falsehood againlit every king. Tot urn a s y nod 0 u t.
i.e. to turn the synod of the church ont of their noble 'lis '.fort (meetillg-phIce.)
Wit h 0 u t t rut h, i e. respecting certain fines, i. e. without jnstice. Wit h 0 n t
1 a w, i.e. respecting ceding to them uncertain debts. 'D id e- aire,' i.e. unlaw-
fully. Unless. &c., beyond right, i.e. "unless" for 'but: i.e. I make an
exception here, if it is after offering of law by him, it is not unlawful for him then.
De f eat in bat tie, i.e. by an equal number in a lawful battle fre
" i.e. half his
price of honor is takenawa\"" on acconnt of it. Dca r t h, i.e. to be without wcaIth,
i.e. thatfamine should be in his reign. Dr) nes s 0 f cow s, i.e. failure, i.e. to be tf ð
"2Iz '7,
without milk, i.e. ,le<:truction of the milk. Blight of fruit, i.e. after its
appearance, and it is aftertl'al'{ú destroyed in the bull. Sea r ci t Y 0 f COr n,
i.e. the dis'Ippearance of the corn. the vanishing of it, or a small qnantity of corn
being in e",i.tence. These are the seven lh e candlc., i.e. thc<e
above are the seven things, as if living candles, which expose or exhibit to view hi.
falsehood against every one who is a king.
There are three falsehoorls ,
;hich God most
ayenges upon every territory; additi
l gain by
" a false
ct; oocidiell by false witness; false
judgment given for hire. l
Three falseh 0 ods, i.e. there are indeed three falsehoods for which God takes f oiðM )6/
worst vengeance l
n the c ritories. Add i t i 'L 'J.a} g.:.<] }
Ju:,_aJ.a I s e con t r act,
i.e. to receivl .. ,.-
t;t.
ãcï;m'léñiïis-nõth
ul to receÏ\c it
f . d .. V' ...", ")-,...
,o"V
even or,: tru
ontract, I.e. to get rewar by hIS saymg that re
nt
where there..is neIle. \V h i c h God a v e n g e s, i.e. for" hich God showers down
his vengeance. Dec is ion by fa I se " it ness, i.e. to
f false witness.
}' a Is e j u d g m en t for hi r e, i.e. false judgments to be passed by him for a
payment or hire, when it is not lawful e
en to pass them grati..
.
, 8. GM: 4/.
54 "Om Geë"CUF;a"O S1rana.
;-J [
1 e t
OF TAKING Cf"Cat"C cen::;ntu na"Dm nero rea'ùa"O C 1 a'ùJ"t01rcat"Oeap. ;
'f; e.f-
LAWFUL L 1.- 1.- 1.-
POSSESSION. mu"O fOP. a f at"ClI; mac fOP. a m::llwtt; manacli Fott a
aba1"O; utacn FOtt attwLe ma'ù an aencqt. att fop:tafLwce
fLan::;n, octlr FIne, octlr eacLaf cacn rocnal"t OCt1f cacn
-t- ? >nocnatt Focet"t"Ocatt Fotta meamtta, ache 111 Fottconsrw"O ;
- [
J
att rn::e t::;eotta na"Oman'ù afpa mnf1n nWfcat'ùt::;eatt ta
feme: COtt fOP. meamlw: eacaLra, cop. rOtt fOEnamte
ftrn::na, COtt fott FaenteUbacnwb .flne. att"Oo mntw/lC ,z'fç
ftwt::;n, OCur pne, ocur eacLwf cach cop. na mLt::;nWEL"ett; rYl15b':J
1/ ap. "OteEatt "Oo1bf1tlm na be Lobt::;a1"S COtt, att "01a mba'ù
tob"CWE reon cop" 1f an'ù nt t::;mn"Cat:"fom Ctlttu a memott.
<f øl4v.1". f' q
ap' If annfom 1 mbp.e1t::;neamaëi::: COtt La Fe1ne CU1tt
. C
60
"Cp.ene. att rn::e CU1P. i:::p.emeacha La Feme cach La Featt
/I L,. z'JJ1 ü }
5"11 "Ow UttEattte, aLwtt "01a fOttnF;wp.e, ap. af "00 ftl1"Oe rn::a
""" c. Ø70 lí fOt"tCOHF; a1 tt nc["OuttEfUtt Inn tt111"0 coni::: t1a1 r e .
'VJtW
.,.
k F
.;,
6-
.-
W: {pi ,'
IltfJ v.Jt !
CCt:al1:; celt:hfl.1 11 a't> J:11 , .1. ut:mt: a cct:hfl.afl. 't>011IfOnu1'tJm,oCUr
110CO 11111't>fU15t:Cfl. 0f1.fl.0 cln;,.
10"",,<;u1'tJe't> 11I't> Iat:, .1. COfl. fOfl. memfl.u 1 11ec-
maír a cenn; t:((It:hIl1151t: 11U CIIl't> 11a CUfl.U rem mum bet: t:ota 't>olb,.1 11'
umWI'Í> 1'111 l1t:a, 110 ímml rmuèt: 't>IC an11fO ccn co hlCUfl. 111 mdlS111.
o Cla't> fl.OlfcUI't>eUfl.,.I.C1Ufl.Oafl.S1t:cfl.fOI\fl.O. 1l1u't> fOfl.aftalt:h
.1. rcnfU1't> í11 ftU1t:h mu't> mL w'f. 11111 C f 0 fl. U U t: 11 u 1 I', .1. flC OC.
111 anuch fOfl. a abal't>, .1. co fl.aICUt: accnna, .1. ((II' If lIl'Ofa 't>on
memofl. cacht:æt> 111 cí11't> smb1'tJ Ima fott:a 't>lb con't>((fl.l15but: a 'Ffl.ltfott:u.
" U La C h fO 11. a fl. aILe, .1. 't>ms renf((l't> Ime, .10 utactl blf cell fJa't>nu CI't>
'l-f1 maèU1fl.6 belt:lfamwl't> 1'111 blUr.... CCfl. fOfuaftulce, .1. 11a't>blI't>
macht:a't> cell t:obach 't>01b 't>lb, U((Ifl. fOfuaftmcc't> caè COfl. 't>o smut:.
Cach rOChafl.,.I. cOfl.COmwIS1' Cach 1l0Chafl.,.I.'t>1Ubal,t:a. 1.'0-
cefl.'t>cafl. fOfl. a meamfl.a .1. u't>ucul\t:afl.fofl.a mûmol,It11echmb,
fOf\ a memf\mb j CI't> 't>ono afl. 11U t:U1tmeS't>mf 110 11a renpl't>íf 111 CUI1't>1W't>
'C't>o 't>en't>U1f f1.íu bo't>é111. CCcht: 111 fO}lCOI1Sf\a't>, .1. aèt: íní fOf1.Con-
1\A .0 ct-.
There are four ceverumts whiéh
W-nding OF TAKING
1 h ( I . )
<W'Vtrwx:.. }
"':::- LAWFUL
t lOUg they t'!:
.l!.
ws f\.re
st;
POSSKBSION.
_wwßP"'.
bondman
ïhischie
; ufason =-his father; r4 B.Äñ .:!./ Ikwl-J?
'Of a monk
his abbot; ö,f an 'ulach'-person with
another if alone. For the chief, and the tribe, and the
church, will redeem (rescind) every good contract and
every bad contract which are made with their sub-
jects, except wbat t.hey, themselves order them; for
these are the three dërêCtwe
na;;
m
i
a by ß..ip(.,. f' 33
the F eini; the covenant with a subject of a church,
the covenant
servitou of a chief, a covenant
with fugitives from a tribe. For the chief, aud the
tribe, and the church, may aunul every covenant of
this kind to which they -did not consent; for they cI--v
are bound not to be remiss about covenants, because
if they should be remis
about covenants, then they
do not annul the covenants of their subjects.
For in the judgment uf covenants with the F eini the
covenants of three are difficult. The ternal c
venants
-M?
with the Feini are where one man commands it (the 1{
cOL'Cnant) and another forbids, for to him io th
co m-
mtttrd who has not forbidl
t}1 what he has heard. 1.t
,.(1 (c.-pf)
The re ar e fou r covenan t8, i.c. there are four persons who makea
ant,
L
\ '7
and proceellings cannot be maintained .ucc
.rully against them though they are
.&..J
for it, viz. :-a covenant with subjects in the absence of their chiefs; the
chiefs llissohoe thesc covenants liW n .. they h...",c iP-ven..!!!.eir consent to thæ fllilTcülg
..}-them, i.e. it is thus it is, or' smacht '-finc is paid in this case, though com-
pensationisnotpl\ill. Though they are proceeded against, i.e. though
if
{
...... t ilt,. 1\1 C !'li ed. A h ondm an with hi s chief, i.e. the chief may repudiate it,
ifitsop1easehim. Ason with his father, i.e.sicoc. A monk with his
a h hot, i.e. u
hi
1!WI,. for it. is dHlìcult for
ccUíLBervc
the chi c' fr . is .., ns. An
. u 1 a c h '_ per son, i.e. hecause he will deny all ahout it, i.e. an · ulach 'who is
without a witness, even though they be in the plain, it shall be so. ,,- i 11 rede e m,
i.e it is no wonder tbat they should rIOt distrain them, for they redeem every con-
tract which they make. Every good contract. i.e. every contract of full
value. EverÝ bad contract, i.e. frauds. 'Vhich are made with
the i r 8 ubi e c ts, i.e. which are put upon their dependants, npon their subjects;
why then should they not dissoh e or deny the contracli which they sbould make with
themselve. (the chid.). Except what they themselvcs order, i.e. but
OF TAKIXG LAWFCL POS::;ESSIOX.
55
if
I-
"
-/' CtW tit 'NJv -I. [;",
-.M fà<< C 8bt]
II t
Lo
.
J
H 'tU/Ù
._ ISl _
, <t
2-11f- 1.1
5G
"O,n 'Ceë
UEa'O Slrana.
OF TAXING 5P.atC bo'tlem 'tIOIb'tlo 'tIenum p.e nech atLe, ual1t noco cU1m5ech a t:attme-
LAWFUL Chrl't1e, aëe amUiL 'tIO senae a cunnp.a'tl fen. (Cp. aee eeop.a na'tl-
POS
ION. man 'tI, .1. ap. <ree cru na"Omann ínf1n fOnatrcleep. 'tIa natflll'menn ín
f.enechar, ocur 11' el'Q.a"Oach a ba a matt on 1:1 'tIO IIi lae. (' 0 P. fOP.
r meamp.a eacaLra, .1
(n
ênÏ
ír' Cop. f01t fosnamte fLaeha,'I.
cunnp.a'tl 'tIO 'tIenam p.lr 10 LUl:1: Ùlr ac f05nam 'tIon fLat1:h. Cop. fO p.
fa en Le a5ach a I b, .1. cop.cup.1:ap. ap.nafannew"Oachmb bif'tlon fine. (Cp.
'00 Inn tal fL a I e h 0 cu r fin e, .1. ulUp.lmpat;::;I"O 111 ftU1t:h, ocur 111 ectatr,
ocur 111 pne caë cunnp.mJ naë t:ot1:anach a memalp., ocur Ire cuie in
,. ap. ffil'tl, UU1P. I 'tIubp.amap. p.oma111"O at:a t:P.1 na'tlmanna e}'pa, .1. r e01e
UlL 11:1P. fOchat'tle an'tl 1'1n, ocur 111 t:1 p.o p.ec a cUle"Oe I)' 'D1tur ua"O he,
ocur 111 el na p.o p.ec noco "OlLur ua"O he. (Cp. "Ote5ap. "Oolb, .1. UU1P.
"Otf'.:;ap. 'tI01 brlUm nap. ab Len1:U1;::; no nap. LlceU1;::; ac eobach nu COp. 111n"OLIS-
cech "00 nia1: a mematp., .1. nup.ùae bun1:U15 eoùat5 lap. pr Cop.. (( p.
ç'tllulllba"O Lobeul;::;, .1. ap. "OlUlllbae taeùt:U15 f1um no "01UIllÙae Llct:at;::;
cpn 1:ameët: fO na COP.UIÙ. 1r an'O nl 1:'lnneaerOIll, .\.11' ann f1nni
1:1I1"Ot:a1:}'ulll, no noco
enn"OO1p.elr ar na CU1P. "00 nine a lllemU1p. 1m
ran>el'r, flldlO1b. - - - - --
CCp. 1 r an n 1'0111, .1. UUlP. 11' 'tIO l1a nelchlb 11' 'tIoILSI a Illbp.elehemnur
2P na cop. 'tIO p.elp. in fenechU1r. CUI p. 1:p.en e .1. cuip. rp.ll1ech 110 1:P. 1110 5. ?
CCLalLi 'tIla fop.n5a1p.e, .1. ac fOP.C0115atP. a'tlenllla .1. U1111cup.5 U1 p.e U ;. QAI1v ac.
l1elll"Oel1lllU. CCp. 11' 'tIOrUI't1e ueu fOP.COI1SUIP., .1. ap. if 'tIO 111U-
'tI U1 r m at:a conu"O 111an'tl 'tIO neOl: ocur 'tIO nElë fùp.consmp. a 'tIen%
m_una 'tIep.na up.Satp.e U l1em'tlellma.
'1S aWn; qu na'01I1an'Oa ta reme na'O p.olçhea'O 111
an a1ca1'O'Cep., "015a1b '00 WE eneac11 elfleach 110 reasQ'O,'
na1'Om rop. neacn P.O pnnwp. rOf1. UflrOCfla; na1'Om
'J..; ""'-/
cop.ufa Ea1'Oe ta EQ'Oa1Ee Em nt Ea'Oa r(mepn ; fOflCflal'O
cOlbëe rp.1 eac1Jtam ; \al1 aWI'C 'Va acnta1'V cop. ta r eme , t. tCh.
_
30 bean rp.1f 'Cabap. c01bëe '.:I
I'Pnarsea'D, 0('111' rep. '00 be1l1
cOlbcne mOIl FJu ba1'Vf1E rOfl na fcap.a 'Oltf1. (fIla aLe
;: frl-'tv
'"
I The tfiTial covenants._J n C. EGO, the follo1\ ing note is added:-
.. Terna1 covenants, i.e. of three per.ons, i.e. three contracts upon him, i.e. with a
chief, with the church, and with an extern tribe, whicbenr it be bis sbare is forfeit.
· Forbi/Ù. Dr. O'Donovan read as in tbe text the first syllable of the word
· uIl11cup.5atp.e'; in tbe l\IS. there is simply 'a' 1\ itb h\ 0 diagonal strokea over
it; tbe usual contraction for . 11 ' being a horizontal stroke over the letter which
'11' should follow. The reading would thus III' "ac up.5 U1 p.e." The reading in
C. 860 is II J:Op.l'OC0115 at p....
OF TAKtYG LAWFUL POSSESSION.
57
what they themqeh'es order them to make with another person, for they are not able OF rAJ;:I"G
to dissolve these but as they would their own contract. For the sea r e the LA \\ FrL
'. hi h POSSESSIOS.
t h r ee defictive co v e n ant S, I.e. for these are the three covenants weare con-
tracted of which the · Fenechus '-law makes mention, and their' ba' i.e. their
good is defecti..-e from the persolli! .,.-ho make them. The co v e n ant wit h a
subject of a church, i.e. in the absence cifthe hearL. The covenant
of a s erv i tor 0 f a chi ef, i.e. a covenant which is made with those
people who are doing senice to a chief. A covenant with fugitives
"'om at,. i be, i.e. a contract made with the fugitives who are of the tribe. For
the chief and the tribe, &c., may annul, i.e. for the chief, and the
church, and the tribe, abrogate every contract with which their subjects are not
satisfied; and the force of the . for' here is, for we said before there are three
defective covenants, i.e. a . led' which is between (olCned by) many persons is here
refe/'/'ed to, and the person who sold his share of it, forfeits it, and as to the person
who did not sell it, it is not forfeited by him. For the y are b 0 u n d , i.e. for
it is right for them that they he not remiss or negligent in setting aside the unlawful
contracts which their subjects make, i.e. that they be not remiss in setting them aside
after knowledge of the contracts. Beca us e if the y s h 0 u1 d be r e-
m is", i.e. for if they should be negligent, or if they should be remiss, and not
impugn the co\enants. Then they do not annul the covenants, >
c.d;;...d. _..il,ut
i.e. it is then they do not set aside, or they do not
thecontractswhich --..',vr..,.........,
their subjects make, by opposing them.
For they are d i ffi c u it, i.e. for t hey are among the things that are
most difficult in the judgment of the covenants according to the' Fenechus '-law.
The t ern a I c 0 v e n ant s, 1 i.e. the contracts of three persons or three parties.
One man com man d sit, i.e. commands the doing of it, i.e. forbids' the non-
doing of it. For to him is the com mand, i.e. for it ill from that principle
is tkr."ed that it is the "ame to one to command its doing and to forbid its non-
doing.
There are three C OV-ØBan ts with the Feini, which
do not amount to the thing sti
ed. It takes .... t1
from the honor price of
: a
covenant with a person who is k1mw.n to be pro- Juu,J'I,d.
claimed; a covenant concerning stolen property with
a thief, although he did not steal it himself; to gÙ:e
too great a nuptial present to an 'eachlach '-person;
for there are two '8,:chlaidh' covenants with the
Feini, the case if a woman with whom the nuptial It!
pre::>ent of a married woman is giverX and the case of
a man who gives a large nuptial present to a harlot
fo.Ùler--lmvfut divorce. For these are the covenants
I! C860
i/ O'
q:zx
r<j-1--g.s
fr1\. t
.,J: t1t/}V!
rDþ'1Ar
ì
tf ßo4v- P-/$ f 5'1 ft-
I
5S
"Om "'Ceë"C1JEa"O S'rana.
0.. 1'AKISO C111tt mnpn na"OtW1tea"O co quan {to rU1"01Eeu"O ant11-
I.AWFUL
POs5E
STON. bap."Cwb COtt ta Feme.
adH:; l1p.Eut1.ta cop. ta Feme, nt "01tear nt Een Wt1.1t-
t111"O, ap. nacn qW1"Oe 'r eartan
n!c!:!:9 a c01bche, "OttE1"O
[" rtan cp.w'Òe a fte1tt bp.e1dleaman, ach"C uwr no l1ttE W t1."C
no eEmacn"C.
i
0'/)+2..
(("Cat"C "CP.1 t\U'tl111ut\'tIa. .1. 'tIO t\1
0t\m'tl111 'tIa t\mft\e1't>e
'l 1t\
et\e-
ëUf. OCUf 110CO p.o 1t\'t>fmse"C 1t\1 ít\ ap.ucefce'tl 1<I"C, 110 11V(]>. ca:"CosUl"C.
"OISatb 'tIO LOE ell each, .1. 'tIISbat't>'tIoLosaet\ech 1t\ mp.ec 1t\'tIrUlSef
I. HI"C co
ír 'tIO 1Hxëa 'tILlsenn, 110 If "Cp.orca't> "Cap. 'tILlse'Ò,
I. 1t\ "CUP.roCP.UI'tI;
t;1CFat"C 1t\ FlIle
o ëOP.Ulb, .1. Pf Fup.
ocp.a ac "Cp.ebU1p.1 ín up.p.a'tlulf; 110
s1t\ "CU1LLml'tleët:a a ca1t\, ocuf 11í U1L, ac t:elchemu1t\ t:OIche'tla; UI"ChSI11 'tIIC
'tIO t:p.ebU1, P.I ocur noco 11íc"Cap. 11í'P.lflll "Cp.ebU1p.1 110 co "CUlp.lf"Cap. Í11
c1t\t:aë. nm'tlm
op. 11each .1 nJI't>111 'tIorae"C'tIOë1t\'tI111't1 aen'tltea5U1'Ò
,< co mcaml; 'tIISbat'Ò 'tI1<I e1t\eCLal1111 111 mel"C p.o 'tIlbaf"Cap. 'tI1<I t:ochUf.
nat'tl111 cop.ufa fjat"Oe, .1. If elfln"Op.acuf a 'FIr COlP. 'tIut a "Cp.ebU1p.1
1'e 'tIILfl 111 "CreOl"C Sat"CI t:crp. ce1111 ín SU"Cat"01 cín cob sat:UI'tIí he bO't>é1t\.
.1. n, uf'Ounn t:p.eubmp.e 111 001'<> 1'111, oeuf ee t:ap,p.m5t:eap.
5u'Dm5e 111 hlCUTltl tll p.e 'Fep. me'Dotl Em'De tun ITltl'DtI5tuë, uët:
to munu 'FUll. t:p.ebmp.e 'DO p.e 'D15bmt u tanu 'DIe 'FlUf.
op.cp.at"O cOlbëe .1. Imap.cp.at"O cOlbël 'tI0I1"CI ap. a l1eILtSI"Cep., atilU1L
alp.e
op. each, UatP.lffOP.CP.at'Ò 11íp.la I"CIP. aë"C LoS acellbalp.llo a catLte.
((p. at:at"C 'tIa achLat'tl cop. .1. m:a 'tIeml ap. a 'lelU,s'"Cep.cop., amuIL
Ulp.e fOP. ech, 'tIa 11atrne1't1en't> 1n t:enechaIT' .1. 'tIa cop. }.'ocep.'tIat"Cep. }.'P.I
:5"heêLacha. beatl }.'P.lf "Cabap. cOlbêe .1. ín "CUP.llU1"Otll 11í"Onal'Ò17ItL.
ep. 'tIO belp. cOlbche mop., .1. bat't>rech caê be "Cat'tle. 110caëben 'tIelp.se
tan.!la .1. up.nat'tltll cen Im}.'oL"Ca ap. acen'tl. fop. 11 U fcup.a, .10 Cla}.'0I1atr-
clrep. a 'tIltfl'tll. CCp.a a"Ce CUIP. 111111'111, .1. ap. í"Ce CU1P. ínfl11 ocur
noco 1'0 1t\'tIfmE;t:ep. cí't> co "Cp.1<In 11a cop.ll"OLIE;teë. Ro fUI'tIIEeu't>, .1.
p." ratllatse'D, 110 p.o hop.'DatEe't> a 11up.an elpelt"CUlb 11a cop. 't>a)1Ulfllel'DeIl11
ín renechaf' CCch"C up.sap.ta .1. aê"C na CU1P. up.5atp.te rea Ul1ucrr'Da
IHUrnel'Dellll 111 }.'enechur, UUIP. "CUlt:1lml"Cep. UILe 1U"Cf<u't>e, .1. ach"C 11a
CU1P. uP.Satp.tt reo, III 'Dltef cen 111 'DOll atP.ILt1U'Ò 'DO
acbatL 'fJ1.1 cup.u beL
'DOP.I'IP. na
el11e .1. "CP.latl. 'bell mp.ILLlu't> .1. '10CO'D'ter'lí 1t:tP. cell a
1 in case oj pove,'!!!. In C. 2,742, 'uUlr,' as a degree of pon>rty, is distinguished
from' ansboch"C,' · extreme poverty.'
.' Eachl(]Æ;h-pe7'son.' In C. 8GO, 'hechtcrsh' is glossed '" mep.'Dp.ech,' a
woman to whom a I nuptial '-prescnt is given, .1. If echtU1S cop. 1t\fln. she is
an 'echlach' of engagements then," 'nlep.'t>p.ech' is the Latin 'meretrix.'
ride also, C. 2G4.
. Forbidden COfÚracts. In O'D. 425, these forbidden contracts are said to be:-
that of the son of a living father, that of a person without property, &c.
'1 o.-
/M" <:vA.-
i.tCw-wswt 1M
OF TAKIXG LAWFUL POSSESSION. 59
J..J
"hich,\3mount enly to one-third of what has been OF T.urw
ordained in fraudulent covenants by the Feini. P
':s
.
Except the covenants which are forbidden by the
Feini, nothing is due without deserving it, for every _., .
property which is unsafe is----entìtled, after nuptial
wI.d fA tl1
pres.en.t.,..-tbe---Bafe---according to the Brehon, except Ajfu it;
-b j, Ø"h t
in case of
t y l or prohibition or want orluuful :
rl.
"__..._.._.J
L ..r..: J
1,J.,,-.. f v q.u.
l
'4'7VVTWNt.
.
-------
.tf - 'fHi')
There are three covenants, i.e. there m'e three who make contracts men- .
lioned by the Feirú, and they do not attain to the thing wJoi
h 'h
.gpee Ið r, or -{tr
,
3& te w.ài eh '''8Y
t a Glw ice. It takes from the honor-price, i.e. it sub-
Q
.t
tracts from the price of the honour of the chief who sues for them, knowing that
he is not entitled to do 10, or it is fasting in excess of what is legal," i.e. the "Ir. Beyond
proclaimed person; the tribe will oppose his contracts, i.e. the surety in . urradhus' - 100c.
law having knowledge of the proclamation; or he being without merits in · cain ,-
law, and the defendant has not lcnou:lw!Je thereof, compenoation is to be paid by the
surety, but nothing is to be paid by the surety until the guilty perMn is apprehended.
A covenant ';'lith a person proclaimed, i.e. a covenant which is made for
a fugili
'e until he pays; it lessens his'.ccic'-eIaiflT as much as it Bubtracts from his
wealth. A covenant with a thief, i.e.itisimpropriet
foronewhohas'true 'Ir. In.
knowledge to go security for the lawfulness of stolen property for a thief although
he is not a thief himself.
The surety does not bind anything here, and though the thief be
apprehended, he does not pay to the fully unlawful middle theft
man, unless he has security for the payment of the emptying of
his hand to him.
Too great a nuptial present to an 'eachlach'-pe,'.on,2 i.e. too great
a nuptial present by the person of whom it is demanded, as · a load on a horse,. for
anything given to heris o
ermuch, except the price of-her head (lress or co\\l. For
there arc two' ach1aÏllh' covcnan t" i.e. the.eare two of wlwm contracts are
sncd,like ' a load on a horse,' whit-h the Fenechus mentions, i.e. two contraçts which
are made with 'ech1ach'-per"Ons. A woman with whom the nuptinl
present is given, i.e. the *"þ
f".J..c ontract, &c. A man who givel a 1ar!\,e e{.! :<-111./>
nul' t i a 1 presen t, i.e. every secret woman isa harlot, or ever} woman who deserts
her
s a strumpet, i.e. t !:lf ro i.. a e^v
ðI1t..Y>
ing her_
. or
her divorce, i.e.v.henherrightisdnetoherb} contract. For these are the
covenants, i.e. for these are the compacts which do IIQt 9111/,..1
to one-third of ('
r"" Itl
the lawful contracts. Wh at has been ordained, i.e. what has been settled or !^U\,
ordained in t e 0 es 1mB l
na of which the Fenechus treats. Ex-
ccpt the covenanh whi are forbidden, i.e. except the above forbidden
contracts whieh the Fenechus mentions, for they IIrc all dif3Bolved, i.e. except these
forbidden contracts, 3 it is not lawful not to bave a part of tbe thing detlCn-ed under
e:a:p'esBl/d contracts according to the Feini, i.e. one-tbird. With ou t des ervin g
it, i.e. nothing is Inwfu1 at all for which its full value has not been paid. For
Lo
/1-8')
60
"Otn 'Ceê1;uEa"O S'rana.
OF TAIUXO tuaTI rota ùmtolSI 't>ap. a ëen't>. ap' naC11/cp.al"Oe, .1. eacn CP.W"OI ber
LAwFJ:L ertan íníaí"O a CObOlSI CUiP. ocur cun"Oap.ta. "'OtlSl"O rtan CP.aI i>e, .1.
rOSSE
IO:V . ,
. 't>tI51"O_rtmm:1U5US<1"O a cp.m"01 amUit Ir P.1Ull 't>o bp.en:;hemam, no amUit a
't>ep.aínbp.el1::hemap.allelp.. ((cnt:; UaIf no uP.SaIP.t:;, .1. t:;abwp.t:;,.I.
r 11w't>m
op. 11ecn p.o flt:;lP. rop.
6cp.a, .,. 11 ((1 "Om cop.ura SWt:;1 ta sm:;w-De.
1-10 esm acn t:;, .1.
op.cp.al't> cOlbël
P.I heëtws, uwp.nw"Om 111't>tIsteë fIn,
ocuf 11OCO nart:;({1t:; 11í, .1. ap. e1CI11, 110
((t pp. cp.enur I mbectuas, .1. cop.
't>a rOCnOl1"O co fIf co t:;p.ebUlp.I, 110 't>ono, COIl
op. me1llllu.
9
"J.
C, f.O, I
",8.
rrttJit+ 1
(ffb/7,?Ð)
O'Ð. 426.
Ur:atr: qu '0011'0 11a.'Om 11 at rCa1'Or:ell' ta.
e111e 'D1cea.n-
10 Etcm a. fe1ëeamna: bean W' r:a.bap, c01hche, 1n'01c1ILtË.
r eac11 a ar:hatp,; mcm art '01ëea.tt an ((dlCfp., 0.1' adlatlt irt &íI OJJ. '1U-
C!..e!l_ "QQ.11 1n c01bche pn; cop. focep:ùçcqt rea.ch 0.50. J?
ftne cma c011.o. '00 ùC1r:h oEa; co]1,
a.eí'TIla focep,'Ocolt
r 60 c1l pne nUll11atEe. aJ1. ar:e 'ùonc(ù11lC(f1'ù tnnrO 'ù1cean-
Is-Eecm a fC1cheamna na'Oa'ù cor1.o. '00 llcm1TIC(1'011l.
((t:;au:; "CP.I 't>on't> na't>m, .1. "CJ1.1 11a't>man"Oa fOnalrClt:;ep. It:;W 't>a
I1Wrne1"Oenn ín renecnur' "'OICeaI1sta"O, .1. 't>1 aco: 't>IUtt:;<1"O, cona cen-
stat:; na t:;p.ebUlp.ll1a relcneamna 't>ap.a t:;ecalt:; cen't>, .1. cIa rocep.'t>wt:;ep.
't>o,::,wt:;nb1Up.. bean rp.1 t:;abap. cOlbcna .1. 111anab e01llcíneot, 110
10 mal1ab cOlbël1::ecnt:;a, CI"O comceneOlt. 111 a't> ap. 't>1 ëeatt, .1. m<1"O ap.
rat:;n 't>lcnteín 11at:;nap."Oo net:;ep. fIn. CCr at:;nalp. aen, .1. Irtwr 111
m:;nwp. a oenrep. In C'OlbëI fill, ocur Ir "Oltur In ben 't>ono on t:;1 't>la t:;abap..
h ir
1. 1 . nla'O p.o p'Olp. 1n 1n5ean cona'Ò ap, 'O((1i;a1n '01t:hte an m::hall
,\>0 5net:e1t ronal'Om a c01bëe '01, CI'Ò U1l1'l1nnUr no 'Ote1rea'O 111
,<' r-m:: hftI 1 t 'Oon c01bëe, t:Ulttt:f1l 1l11' '00 reLlu b 110 'OIl fib na nlTW
r e1T1 , co 11.U1b cOlbëe com tan ((fin; ocuf C1U '00 5ne in bean C1T1nt:a
1tl'Otelf'Oea cOlbëe no u1l1wnnur '00 c01bëe, nl hlcann in t:adJU1tl
11i 'Oe; mutla p'OlP. 1mu1lp.0, ill 1n5ean com ap. fat '01t:hte '00
Enetea, [If) rtaT! '01, ocur ICa1'Ò in LÍ '00 p.1T1e in t:up.11a1'Om.
I Con trace and covenant. In O'Ð. 425 "a CObOlSI cunnup.ta" is glossed thus:
".,. Ima 't>lbulP."C a111rera 110 t:;p.ebUifle "00 t:;wtm1Ucn amUit If fl1UP. 't>o
bflelt:;nemul11 .1. 111 t:;p.J(J:11 cop. mbet, oc 111 flfl cflew1uf racabaflln t:;P.1U11.
Fraudu1ent contracts as regards ignorance or security are to be dissolved as is the
rule with the Brehon, i.e. the third of express contracts, with thc man who buys
the third is left."
OF TAKIXG LAWFCL POSSESSIO
.
Gl
eve r y pr operty, i.e. e.,-ery property which is unsafe after her perfect rlower of OJ' TAKlJ(O
contractandcovenant.' Is entitled, &c., to be safe, i.e. her propertyisentitlerl LAWFL'L
to be made secure according to the sentence of the Drehon, or as the Drehon shall P088
JO:f.
say respecting it. Except poverty or prohibition, i.e. a.roghing, i.e. a
co.,-enant with one who knõws the proclamation, i.e. a covenant concerning stolen
property with a thief. Or want of power, i.e. giving overmuch nuptial
present to a harlot, for that is an unla"fu1 covenant, and nothing }' e.,dus it 9+1 111-
.iJ:Ig, i.e. by violence, or the har (bm'/.;e/') of a mau who purchases for small value,
i.e. the co\enant of two sane persons with knowledge and warranty, or accOI'di,lg
to oiliers, a covenant with subjects.
.Ylf'l-8
f02.
z..
r
There are three covenants entered into by the
Feini which the parties who have claims 2 dissolve-
that of a woman to whom a nuptial present is given,
if concealed from her father, ( if concealed from the
father, it is to the father alone this nuptial present is
due); a covenant which is made without the know-
ledge of the chief of a tribe, who ought to be ]J1'csent
with them; a contract of adoption which is made
unknown to the EBi!tionif!g tribe. For these are the
bad covenants which the parties having claims dis-
solve, and which are not binding.
There are three coven an ts, i.e. tbree covenants there are wbich are
fastened, as mentioned in the' Fenechus '-law. D i ssol ve, i.e. . di' is a negative,
i.e. the sureties do not bind the parties for whom they enter into security, i.e. a1tbough
I it
on ,1>0'" 00 0 roprnach . A woman to whom a nuptial
pre sen tis gi v e n, i.e. unless she be of equal family, or unless it be a lawful
nuptial present though she may be of equal family. If concealed, i.e. if it
be for the purpose of defrauding the father this is done. I tis tot he fat her
alone, i.e. it is to the father alone this nuptial present belongs, and the woman is
fnrfeited by the person by whom it is given.
If tbe daughter knows tbat it is for the sake of defrauding the
fatht>r the covenant of her nuptial present is made with her,
whatever proportion of the nuptial present the father is entitled
to, he is to be paid it in 'seds' out of the woman's own lawful
property, until a complete nuptial present is made up ; and though
the woman should commit a crime for which her nuptial present, or
a portion of her nuptial present is liable, the father pays no part of
it; but if the daughter does not know that it was done for the
purpose of defrauding, she is guiltless, and the person who makes
the contract oj marriage shall pay.
8 The pm.tifs who have claims. The term · relëemn . means either creditor or
rlebtor. It is found also in the sense of an advocatc or pleader. Here it seems to
mean the persons who!'e autburity waS necessary to render these contracts binding.
62
"0111 'CeëLUEa'D 81rana.
OF TAKI:fG COp. rocep.'tIcap. reach asa pIle, .1. ín cop.cup.t::ap. redl in osae
P LAWFUL blr'tlon ríne, .1. rtmt:;h beltrine. a:'tIa cop.a 'tIO belt:;h osa, .1. 'r cop.u
OSSE'i!ION. b h C '
a It:; aca'tlenam. 01' raerm a .1. In cop. cUl't:;al' p. l r l11 mac raer ma
-:: tetM'.tl"'""" an rine, ocur 11í
r61
S((11'e 0 s61tríne. 8eoch r'ne 11up.nUlse
cf!fIfO.
7 .I.rechmrínebíracup.nun>eacína'tl. ((p. at:;e 'tIOna'tlmUll't1 1nnrO
'OlceaI1sta'tl, .1. ump. Ir lat:; TO 11a nu'tlmunn ronmrCIt::ep. ro:;m; OC\1r'tle
aCa'tl1Utt:;a'tl, co 1m censtat:; 11a t:;p.ebulp.l11a relchemaín t:;al' a t:;ecmt:; cenTI.
n u'tla-o cOl'a, .1. noco COIl' a ronm'tlm.
I O
tfÚi
rtJ3 ç
..
" fj IVlI
N.
,,-
1ÍÍ ,lit..}
./'
em;h cacha ce
c01bche cacna mna 'Dla hOËa pne,
,. ma'D lap, neEmb a æ:nal'., ma'D ne roto a c1lma17>; quun
'Don t:an1 f'De, cea
hp.U1me 'Don qtearr c01bche. nlc('()
cumrca1l>eë co n'Del
hbfl'.e 0
a rume, conroEtm
ealt a
comrtecn
fC1b reme ; ap, Ka CUI
a c01bëe cacha mna 'D1a
h<<E a pne, ammt pt a CUI
a nabal> bm'Df1l>e. 1r FOP.
,srun'D 'Do felf1'Deap. bp.eata buaín ocur ambuaín ta
feme.
(.,eat:;h cach a cet:; COI bch e, .1. 11í bep.(ll' ínro cap.ab 'tI 1tu r 'tI011 ml1m.
'r mp.e 'r tusu bel'mp. on mnm 0 mencnís"(;ep. a Lecu-o, cOl'ab Lusm'tli
telc"(;ep. ímu-o a al11't1ILte. "0, a h aËa r' n e, .1. 'tIon osae blr 'tI011
ne.
")þ .t. muna map.at1n in t:an::;hlp. a tei; al.t:p.um on mEe fine, 110
telt: lap.p.a1"Ó te ocur up.nm'Dm 'DO comchineot, ocur t:p.mn dnolt
te 'DO cum caë f'1p. bur a p.aëa; ocur cm mink 'DO nkeap. a hup,-
namm p.e haen feJt, noco 'Dte5aJt t:p.1an t:inólt te aèr aen feaët:.
ma mmp.m"Ó Imup.p.o In t;<rr;hmp., a tet laJu"Ó no teat atqtum
,ç on m;hmp., ocur uJtnamm 'DO comcmot; ocur t:p.1an t:m01t te 'DO
cum-caë f'1p. bur a p.aëa 7P.t; atÎlUlt am a_1l!.b
e
m\j ,:!'D5 1 "::
J To thekad of the tribe.-The Irish gloss may also mean, 'to the most perfect
person who is of the trihe.'
.' Tinol'-marriage collection._' Tinol' was the collection of gifts which the
relatives and friends presented to the woman on her marriage. Vide vol. 2,
page 84G, n.8-
S But once. That is, if she was divorced and afterwards married to the same man.
In O'D. 425, it is added that it is lawful to marry her to the seventh person; from
that out, she is conaidered a 'gnUu1 baidbe.'
· Judgment. qf , Eid,qedll" Vid. vol. 8, pp. 8R-!J7.
01<' TAKING LAWFUL POSSESSIO
.
63
1 'l'?8' ut :
A contract which ÌI made without the knrm:le'lge of the chief of OF TAKIXG
a tribe, i.e. the contract which is made without the knowledge of the head r LA"YUL
of the tribe, i.e. the 'geilfine'-chief. "Who ought to be with them, i.e. OS.=IOX.
it is right that he should be at the making of it. A contract of adoption, . /
i.e. & covenant which is m
.tlc with the adoptetl son of the tribe, and it is not
e
M1"t- of;
Q maintenance from the 'geilfine'-tlhision. Unknown to the peti-
tio ning t ri be, i.e. without the tribe which is petitioning for the payment of his
crimes. For these are the bad covenants, &c., i.e. for these are the
co,.enants which being made &r<J again dissolved; and 'de' is a negative, i.So
the sureties do not bind the debtore for whom they enter into security. W h i c h
a re no t bin ding, i.e. it ie not right to fasten them.
. c{ IISit-. IZ L cJ<4 ""
Half of each first nuptIal present of eyery woman .11-
is due to the head of her tribe, if 'l1w?'1"icd after the fr ..:---
death of her father, if it be he that had sustained
(paid fo'l')
OOmes; one-third of the second, and '-/4
t\.-
one-fourth of the third nuptial present. If she
goes away of necessity from that out, it (the mtptial
present) shall be distributed according to the arrange-
ments of the Feini; for a share of the nuptial present
of every woman is due to the head of her tribe, as
he has his share in the' abad '-gains of a harlot. It is IÞ
by this the judgments of every proper and improper
rhJ
?,
vomaru are know n among the Feini.
Half of each first nuptial present, i.e. this is not given until it is
1a"fully due to the woman. The reason that lesa is taken from the woman
because she has been put away frequelltl.r is that the quantity of her cattle is left
fewer. To the head of her tribe, i.e. to the head of the tribe. 1
If the father is not living half tM price of her fostemge is paid
by the chief of the tribe, or, according to otlwrs, SM shall bring"' .
. With
one-half price of fostemge in man-iagewith one of the same tribe, and
one-third of the' tinol '-marriage-collection 2 to everyman to whom
she goes; and however often she may have been contracted to
one man, it is not required hy law that she RhouM bring the third
of the 'tinol '-marriage-collection wÏt;h her but once. a But if the
father is living, her half fosterage-price, or half the expense of lwr
fosterage is paid byb the father, in case of" marriage v. ith one of L Jr. F.-on..
equal family; and one-third of the 'tinol '-man-iage-collectionis . Jr. hld.
brougl.t by her to every man to whom she goes, &c., as it is Bet
forth in the judgments of' Eidgedh." 1. 14.tu-u..fM ß ir
IJ I> TiT l+r
ouJ..v..h "N/J
fJ'ßltq
n O
.307
6-1
"0111 "Ceécu5a'O 81ra11a.
"-'-
'f O'J).HI,
l, 0
. 7)
1k.J./f
1M- It. 3./'6" f(8"bI) K
Jvf.J.s LO'/J,1,,/1r) lA,
.3,'7 LO
4t. 1
. J^ I/J- o!iJ -
,ð.;
cØt L. f 11 'l-I) If )
þ--<.td IAt/
W Lð
V"
_
, . J f cI,11;r
. :'j.-";:Vil Cl
)
...f
.
'
OF TAilING n1 a'O 1 af1. n esm b a at;h af1., .1- ín n If nefa If ann at;a fin. 111 a'O
P LAWFUL he roLo a chlnQl'O, .1. ma'O he In t;mSI pne Im
U1LnSf'f a cmt;a.
OBSES8IO
. 'T" h Ö .
'-'f1.1an 'Oon t;anlf'Oe,.I.aflncOlbc It;anmft;e,.l-lflnCOI cet;anmft;e
If 'Oá t;f1.1an no belf1.ea'Ò a m:;hmf1. ann; ocuf If Ctlf1.e If Lusa be1f1.eaf
. bpffi;mf1. oL'Oaf at;11mp., umf1. If LU5a If 'OlëTW LCtlf uf1.CtlL na hínsme 1m
t;f1.1an nnoL 'Oa rp.elfCI a t;ochufumte. 111 a'O C umfCQI'Oeë.l. í mbaf, no
cOf1..tmroarcap.a, .1. umf1. If e CUlt; m maët;nmst1,'Oama'O t;p.enahm'Oelt;h-
[- t 'Þ\.C)
blP;luf '00 nelt;hea In t;ímfcaf1. na mfceba'O ua'Ofum In cut;f1.uma '00 bef1.a'O
'Oon c01bche. 0 t;a fUI'Oe, .1. 0 t;a Ctlfmf 'Oam '00 nílI"t>mtrm, .1. 'Oon
m'Orcucha'Ò co n'061tblfle. Con
05La15t;eafl, .1. If cain rdvelL1s-r;efl hI
a ç,u!!11! rl:?I.!l
9b in renechCtlf Ima 'OuL Ir In flom'O If nefa. CCfl lr,a
CUlt; a COI bëe, .1. afl at;a CU1t; 1 C01bël caëa mna 'Oon 05ae blf 'Oon pne,
amU1L ín CU1t; at;a '00 a n"t>uL cUf m mnm mbun:;h cUf a tllIsafl t;ap. apa"Õ;
ocuf If af fin sabmfl, a blt:h '00 conkl In aenma'Ò flann PChlt:, uCtlfllfe"O
, fm at:a '00 If m melfl"OfllS a n'OuL CU1CI afl elcm, CI'O melfl"t>fleë aeer, CI"t>
melfl"t>p.f'ch na'O aeeann; ocuf rO"OCtlL enecLamm '00
o mcne'Ò ã collroe-
Laëmf ma ro'OLaibmLI. CC CUlt:, .1. '00 rmacht:. If
Ofl fun'O '00
reI f1 '0 a fl, .1. If rop. fUnn t:mf1.1r{;ef1. bfleta buam ocuf amùumn na
mban 'OLIstech, ocufambuam na mban mn'OLlstech. bual n, .1. mmt:h,
..Ð.I. 'Oa;sban. CCmbuQI n, .1. oLc 10 'Of1.Ochban.
JI
OF TAKIXG LAWFUL POSSESSIOX.
65
[f a Her the death of her fa ther, i.e. in the case of him who is the next OF TAKING
persontothechiefthisidso. If it be he that had sustained his crimes, LAWl"CL
i.e. if it be tbe head of the tribe that bears the u'ei!Jht of biÀ,crimes. One-third POSSESSIOX.
of the second, i.e. of the second nuptial present, it is of the second nuptial
present her father, if living, would have had two-thirds; and a brother gets le
than a father became he is less anxious to command the girl respecting the third of
her 'tino1'-marriage-eollection, i Hre, Ì'1l'I''''" t
'
from her. If she goes
away ofneceuit!J, i.e. hL de.th; or;.rli\'= d; for the foreeofthe doubt is, ifit
be without nee
sit1 she separates, it shall not take away from him the proportion of
the nuptial present which he would get. Fro m t hat 0 u t, i.e. as I am treating of
this caRe, i.e. the going ILway with necessity. It shall be distributed, i.e.itis
fairly distributed according to the arrangements of the' }'enechud '-law with respect
to its going to the nearestdiviRion. For a share of the nuptial present,i.e.
for there is a share of the nuptial present of every woman due to the head of the tribe,
as he has a share for going to the lewd woman, to whom approach is had notwith-
standing notice; and from this is derived the cmtOTll that he has it (a ,hm'c) to
the twenty-first cæe, for thid is his right in the calC of the harlot, for going in
unto her by foree, whether she be a harlot who
or a harlot" ho does not
; and the honor-priee is divided by him aeeorlIing to the nature of her re1ath'cs,
into other distributions. II is s h are, i.e. of the' smacht . -fine. I tis by t his
are k-n-tnVn, i.e. it is by this the judgments of. the good and bad women are
ed, i.e. of the lamul aud unlawful wo
,en. Proper, i.e. good, i.e. of good
-women. Improper, i.e. of bad, i.e. of bad women.
VOl,. IV.
F
\
.,(-k
. .'1),,'"''''.
..f(..".
bReccr:na comarr:;ncesa awoso.
JUDGl\lENTS OF CO-TENANCY HERE.
VOL. IY.
F 2
A.
6.
C.
h.
F
I'1Ss
Iletwl.'A.417, frt. '4-f"fA, - '7-r.Øv.
D!.ð.
/)-!>--.2,ft'iS) k!f I)",t 10
IIw. W, $"l:.
E.3.5".,./Iv-,.tr -,'/, .s
1-.2.9) IYl/b 17 --W.
fr- IV
8/
)-
H. ,. '7, Jf)
- 311 l Ó'h. 400- 40 lJ)
1/.3. 18'. 1'.10 -Ir -II./.fr. ( G. 2. 3 - 3S-)
" f' '13f--3tllA/ (C. tLiZ.-
(4)
lI.n} f.Zl.!.- (o
ISf
f-)
ß-,-vH"-"'^' c.
I)
(h/J.M/ .,J t
bRead1a comarchcesa
, <<ko f- f!tA1 (e /y-z.o), PP./J 1 r1 (C2/.J- / )
l)
aw-oso.
..,t
tra.
A 'jUDG- I em all. a 11 e1bel1a11. comaH
hcer 1 CumCTEllmr al1"Or11l,
Hé
ap:"'111111 'r comaH
h EllWr cwch "OwltwLt "00 tomrw"O
A"CY. rm aéLa 0.9!f cá1che; a1twt1 'r coma1Lhcer a1î1t.111 'r
cuma 11
5atb wll,e FlU aKhech, OCur wttc11l"Oech ftU
5" bachtaé.
rt.
2-1,8. 1-z,
bp,eat:ha comalt:hcefa .1. bp,
temt1l1f fO bep,ap, umun cummt-
ecuf' umun mteëuf cumul'ö
, no umun cumasnaf' umun 5nuf cumm'Oe,
(.1. um an
natu5a'Ò cumm'Oe.)
CI'O ap, a nelbenap, comatt:hcef' .1.CI'O ap, a p,mt:ep, no ap, a
,. nmrnel'Ot:
10 t:mtechuf cumm'Oe. Cumasn atf an'Oftn .1. 511utuS
cumUl'oeannf1n. CCp, In 111 If comatt:h 511atf calc:tJ 'Ota p,alLI .1, up,
If commmt snatusa'Ò Cúlë 'Olbp,e ëé1LI. .8m aët:a .10 na mélc1l. CÚlch e
.1. ín pach '0111ne cmtè;
I. muna 1j'Oent:
o 'OLI5'ê
10 commtccf
CCp,atLllf comutt:hcef .1.5ne elLelfmtechuf cumm'Oe. CC,,, In 111
,\ 1 f cu man 0 '00 Sat b .1. ap, ín rut If commélt;t;, no If cut:ß.uma 'O Le 51..!1!-
'Oon mp,e
p,m'Ò tL%ia a 5abmL p,lrm mM SP,ut'Ò reme, OCbr mp.cm-
lIech na C1LLI a sabmL p,e baëLach IfJn bU"
fJ'b
/5b)
l
eW11,-call fOp,be1tt C01mWLhcer? ah
comap,bur.
ew qwLh'rWEe? Con 11.<111 1) at; comrcttba cemmur a p.an'Da
I
1.0 ocur a reatba, ocur 1mFen cach "01b flU al1.atte, ocur
'DO bel1\. cach "01bl "01EU11l 't>wJla1te.
Ii C tfoJ 1 o'lJ"kfCJ
Catp..-can rop,belp, cOlmalt:hcef' .1. cornmp.clm,canafarQ11J.bp.e J.:
",r"1"A 10 t:alteëuf cumm'Ò e. CqILyomap,buf' .I.crfm ëaol'no,,,bu umf, afm
r
Ull1n. CI a cp,ut:hfU1se, .1. cm ;<;ne p'Òe. Conp.an'Oat: com ap.bu,
1.> .10 If ca01n up,p,annmt:t:na c01m écu l'Òe op,bu m rep,unn 'Oon cécna hamuf
LIU1l1 mf1le'f no mnrr,1Il 'Oe. CC p, an '0 a, .1. np, n'Olbul'Ò. (( fe a L b a,
.I.r
ann ach!!}"t otOf renm:hup,. 1mren cach 'Olb rp,1 ap,aILe, .1. CC<<hj
4,( J1 1\ 'Olbl nmSI'Òá ëf;IL!.. "Do belp, cach 'Olb 'Olsuln,.10 seLL'Oa rcp.elPuLL
p.e comaLL m commtcera, .1. '01 ró '01l1Lt:a'Ò, conach p,01ë cm m'Old êmch
,l 't){) ëum a ëelLt.
1 Ai,'chillnech.-The steward of the church lands, or tile ecclesiastical holder of
the church lands. He was a layman, but had primam tonsZlTam.
JUDGMENTS OF CO-TENANCY HERE.
\VIIY is co-tenancy so called? That is equal customs
(' cmnaguais '), because the customs are equally good
for all reciprocally to levy' smacht'-filles and penal-
ties; 01', otherwise, it is co-tenancy, because it affects
the chief equally ('cuma') with the plebeian ('aithech'),
and the 'airchinnech' I the same as the shcpheI: d.
JI:II(;-
:aIE';:J"
()fl'
CO-Tt.S-
ASCY
'I" (I M-v 12--1-
Judgments of co-tenancy, i.e. theøe are judgments that are pll8ied con-
cerning the common tenancy, concerning the holding in common, or concerniug
the common cUotom, the commQn usage, i.e. concerning the common custom Q/
holding land. .
Why is co - te nancy so call ed? i.e. why is the holding in common so
called or denominated. E qua I c u s tom a, i.e. that ia common ussge. Be-
c a use the c ustoma are equ all y goo d for all, i.e. becau
e the usage
Is equall)' good ('commaith') for all reciprocally. 'Smacht'-fines, i.e. the
sacks. Pen a 1 tie s, i.e. the fine for man-trespass, i.e. ,chich aI'e imposed, unless
the common custom C' comaithces") is lawfu1ly obsen-ed. Or, oth er w is e it is
c o-t e n a n c y, i.e. another reason wI,!! it is so called Ï3, it is a commou holding.
B e c a use ita f f e c t S, & c., ie. for the reason that it is in an equal degree,
or in the aame proportion that the chief of lorJly grade and the chief of the Feini
grade are bound to receive it, "and the' airchinnech' of the church is to receive it
the same as a
in the church.
Question-Whence does co-tenancy arise ?-From
several heirs. In what manner is this ?- The heirs,
in the first place, partition their slmres and their
possessions, and each of them g'uards against the
other, and each of them gives (t pledge of iudemnifi-
cation to the other.
Question-Whence does co-tenancy arise? i.e. I ask whence
does the common custom arise?-Fro m several heirs, i.e. from the noble /."t.;."
he+u e1l61'YJ8.i"
the land. In what manner is this? i.e. in what wa)' )
isthiÛ-The heirs partition, i.e. the lan,lholders faIrly divide the land
in the first place, of which I shall relate or tell. The i r s h are s, i.e. their
'diIJadh '-land. The i r po sse a s ion s, i.e. the father'a or the grand-father's
bnds. Each of them guards against the other, i.e. each of them
ngllinsttheother. Each of t.hem gives apled!Je of indemnification,
i.eo a pledge of two' screpalls' to observe the law of the co-tenancy; i e. 'di ' is a
ncgative, that II,e finefor the injury done b) the cattle of each wou1d not fall upon
the other.'
'To the Qther'.-There seems to bc some error or defect in the MS. here,
\
.
70
bp.ero:;ha eoma1t
hcera an'Dro.
T UDG-
1.Ut..'ilTS OF
t;O-TF.N-
ANCY.
a.virrII iI C[O:QifOO)-
A.pt 61t#v"z,.
Catp.-e1'D 'DOrec a comatcer? "Oorec lwn'D tme.
Cach tme co na rmaçcmb, cach cutf1;5tttt cona catche;
ap.....LJ11bt<rG rmaçca nt btac catche; t mbtro:; cmche fit
bwclrmaëcu. 1m'D1nEmb nat'Dm naermb. [
-(
.EJ
Á<j R, ,"-y.l. -t>..dí'..-fu f ç,,)
-
7vf'tð<,v E [C-S'4Z-)
Af..t Li." 2. .
ç CalP.-CI'O 'Ooret; a comalcer, .1. commp.clm C1't> 'r p,emteécaé11
'rm mtech1!f cumal'Oe. "Doret; p,a'h'O 1 m e, .,. If p.emceécms''Ò t1Um
p.omnmr
mn'Onalme'Oo'Oenam. Cach Ime co na rmaécalb,.I.cac
Ime 5ufln ni rmaccmst!m< aSa 'Oenam, .1. p,amu rp,1 ctmr, roc '1-'1'1.1 C01lG1'O.
b'mt'l-ì" 'OU1p,lme, p'Oba nJJ. retma. Cach CalP,51ttl cona cmche,
'0.1. na me1é .,. caé sett c'olp,ltnech 1lQ In rmé 'Oum(!'tmte. Con a ca 1 çh e
.1. EeLt 'Oa rcp.epg1L. CCp. 1 mÙlac rmaéca nl b,at; calche,.I.in
ump, bmrmi rmatcmstep, ann, in p,milU ocuf in roc rP,1 cop,m'O, f]Qéa bla'Ò
im '00 b
ap, 'r",na cmcmb .1. l1a melë no 111 rmch 'Oume cmëe. 1 m blac
calche nl bwc rmaét;a, .1. in ump, b
c na melé no in rmé 'Ol11ne-
c11mte l!Qéa bm'Ò 1II1p.ama'Ò 1111 ctmf OCUf m roc rp,1 cop,a'Ò. 1 m'O!n5a1 b
n aI'Om n aeralb, .1. 'r elm 'Omsbmchep,'Oo p'61p' nuareara conaé nal'Om
nafCmrLe Ult p.e comatta'Ò in commtcera, aëc ma seatL.
J.H In-
......"l i'/r)
Catp.-CO'Dencup. cotmmcer 1 anflan'i')CUfl atte a11
cP.etr!; 1nEmhw11 mte tme 'Uta ct1tcn; tmr011ctn'Dmlt
u) mte 'Uta 'DechmÇQ'De; tncomattwp, 05 tme 'Dta mtr.
^ O/f
Calp,-Co'Oencap, comalcer, .1. commp.clm cmnur '00 nkhep, 111
cmteéurcumm'Oe. Unp,an'Ocap, alte at' cp,elre, .1. up,p,anncap,in
reap,ann uma n'Ocncap, 111 cmLe ap, cp,élfl. 1 n Sa1!Jcap, aI te 1 m e '01 a
cu 1 CC 1,.1. sa!J!!p.mLe 'Oo'Oen
m 1 fOJlbu
t1 úlme, o2':r'Oa tú 'Oúlbp,e bua1l1
1J reu'Òa, 1mrU1LC11l-oCUp, mLe 'Om 'Oechma1'Oe, .1. r i 1 Lcm 'Ocqllm
^1l0CC UlLe 'Oó cop,aéc 1 rop,!Ju 'Oeëmmde, c1l1múta 111 éip, 'Op,al51n. 111 c 0-
muttt;ap, 0;:; Ime 'Ola mlr. .1. ccmt.unG1Etu} 111 ime com tan '00 cop,a
-
mn a F
bu in mif'
I Pletlgf.-' TargilIe' here signifies a pledge of two · serepalls' lodged with a
neighbour for the !}II)'ment of d..mages.
. Compltteil in a motlth.-Dr. O'DonoTnn haa made the follo"ÍIlg remark on thia
point :-" The 11U1b'll8ge ia here vcr
' rude cDd un
atisfa(tor;)', It could be im-
JGDGMENTS OF CO-TENA
CY HERE.
71
Wr
j..>.. ...v .
.fr
Questioll- What is the first thing in the co- JUDO-
J\(E
TS OF
tenancy?- The divi
ion prececles fences. Every CO-TE
-
fence is liable tu" legal conditions; every pledgel to AXCY.
d 1 h " . Ù J b 1 & Ir With
amages; W lOre t e requuntes comman e y aw . .
are obJerved there are no penalties; where there
. '4
--.., 't>-<L,
are fines, the thmgs commanded by law are not ob- f? / ð . "7
served. T-hB--new cus tom--ttwids socucit y. . ..
c.h1
(/
399.
q _ d' L . " dd- --,,( 7- c-w-I. ", ,
"
"
?oUu.-
"
Q uestion-Wha t i8 the first th i ng, i.e. I ask what comes foremost in .
the common co-tcnancy?-The division precede8 fences, i.e. I deem it
foremost that the division of the land should be made before the fences. Eve r }"
fence, is Ii ab Ie to Ie g al COil d i t ion 8, i.e. everJ fence should be made by
"What the law commands, i.e. a spade for maki"!J a trench, a bar for a stone
fence, a hatchet for a strong fence, a billhook for a 'felma'-fence. Every
pIe ,I get 0 dam age 8, i.e. the sacks, every relieving pledge, or the fine for
man-trespass. To damages, a pledge of two 'screpalls.' Where the
requisites commandcd by law are obse,'ved, i.e. where the thing
commandcd is ob<crvcd, i.e. the spa,Ie for a trench, and the bar for a stone wall,
the things to be paid in for the faults arl' not to be gh en, i.e. the sacks or the fines
for man-trespr.ss. ""here there arc fines the things commanded Ly
law are not obscr"ed, i.e. when the iMs or the penaltie'l for man-tres-
pass are dlle, the spade has not been brO!J!fht for maLin!J the _tren';"h, amI the Lar
for the stone-fence. The new custom, i.e. it iswe1l
by (accordill!J
to)
ew know1cdg
that it is not the
of a
hat is iJiven to observe
,.,,,I1.1. -lAw<
the co-tenancy lmc,
t a pledge. I'" ..
Question-How is a co-tcnancy made ?-It is di-
vided in three days for the stakes; the fencing is
becnlll in five days; the fence is finishecl in ten days;
o ff;..-J /.6At-
the perfect fence is completed lR--ii. month. \I
.
Question-How is a co-tenancy made, i.e. I as}. how is the common
tenancy made?-Itis ,livided in three days, i.e. the land on which the
stake (palisade) fence is to Le made is divided in three days. The fen c in g
is be gu n in five day s, i.e. the fcnce is commenced to be made at theendof th e
da}'8, and two da} s are allowed to them to cut its wood. The fen c e is fi Il ish e d
in ten days, i.e, it is truly finished a, to its reaching the condition ora naked
palisading at the end of ten daJs, excepting the L1ackthorn crest at fop. T I: c
perfcct fence is completed in a month, i.e. the complcte fence is
brought to its completion at the expiratiun of the mouth.
proved thus: Quære--How is a farm of common occupancy formeù ?-In thrce <1ap
the lamI is mark!',} out for feneing. The feneing must be commence,) in fh e ').iys
(of which two dSJs are allo\\e,I for cntting.the tim\.ler). In tcn d.IJs
e fenccs
must \.Ilset up and tinished, with the exccption of the b1ackthurn crest at tOI', "hkh
must \.Ie completed a month after the" ork has been cOlllmenced."
72 l )JH'(ft"ha Comwrhcpra an"Or o .
t
t "';'W.8
1
I
H' eU1'L
ell'D1Uï:; J1l1uehr((
1I1eoÇ!!.J'C01llU1ce!,a? -Smudlw
CO-TE
- 1me, llama f1u clWf, roc f1u C01tat'D, blatt f1u 'Dmlume,
A
(". ""c...- I ..
oh. t (7/.-)
'l,.O'.r._.IIf-q'
}-'1'Dba'D .j1t! Felma"O. -"Omp.c^caç!Ja q161f1 na'DlmC01ttl;m.Goe.- .
-to
!tt- tlã11Ì:O
ltóreota FatP.
Ce1d111.e 1me 'DO
ctl1f1n: etm!,
1/0'h lS5"bf } (.1.-4-, e- 5"col1.a, 'DtI11t11ne, retma'D. al1 a1te , 'r o 'D at t lc cacha qlC1f1 ' GJþlj lÞ
,;,D
11Cl'D1mC01tt ll.atfi,toe FJu cach 111me. ,fC,Z j/4 it
5)
C{
,
'p-,
Cal p.-C a '0 I at: fmacn t:a Ime? .1. commp.clm ca'Ol
nanete fmag;-
Ulst.!J.1). ac 'OenÇ!!ll na 11ímelfìn mtecnurcummi>e. Sm acn t: a 1m e,.1- If e
l1í rmaët:mstep. acu ac 'Oenum na Mme. fl'Oba'O fP.1 fetma'O, .1.
10 nUf 10 rat mmt, fP.lf 10 nocnt:mte. felf oduf mp.tlman'Oa co LOP.Ui;.-
ç;al1l laP. mm'0111, OCUf tí51 1 t6 OCUf P.l11P.IU U1i>ël, paë fe1f1 m'O{;lb
U1tl, mp.tlm tm oluf P.U1111l1 tm, oluf t:mp.rce mi>ë" oluf mp.bm mi>ël,tet
pacn f!'lfI m'O{;lb l11tl- "OalP.t: cacha t:p.elfl na'Olmcolp. p.a1n'Oe
p.o feota fal p., .1. 'Omp.r; caëa t:p.e'fl p.o"metar ml1, munub 1 ín íme
'(If elm C01P. 'OÚ '00 p.mne um a p.omn. C el t:h p.e 1 m e '00 cu 1 r' n, .1.
ce'i
jl't híme 'Olrcnms{;hep.1lQ tal1p.tur{;up.. ctalf, cop.a, .1. ctmf no
cup.u IfÎn noët:machmp.e. "OUlp.lme, .1. 1f\T1 ëmtt,I.I. T1oë
mte,{l1o)lf 10
tet maèmp.e. "" ".("" II
-J-
"7
c.f Ill."
. .
Cv>
:t!3 0 1j LD'hlj
)
t
CAUVw-..v 1iL
I/7V 1/ wI': .1
ma'O fe'O a 'Oelp. an fep. amt11Ë, If cumtLe cé
cm
ach, otuf
z01re'Ö a 'Oe1P. an fep.
atL ní 'Oel1.na em 1
1'1., If nech '01a mbl LoS
1 , Feis' -If'espas&, i.e. the IJing down of 0. beaqt in a tield after beiDg filled to
satiety. This was a definite trespaa8. All this is apparently misplaced. For
definitions oftrespasse., ,'ide rr. 1
4, I
G.
.' Ruiri.. '-ll'upa88, i.e. po.osing" over fieMs. See p. 124, et .eq., infra.
· The man out.ride, i.e. the suer or plaintiff. Dr. O'Donovan remarks here, II It
is very difficult to express these ideas neatly in English. The following maJ con-
vey to the English reader a fair idea of the meaning :_
"If the suer 68ye, 'This 8t..1.e ha" injured my bpsst ollcr; it is unla\\fully con-
.
JCDG)IEXTS OF Co-TE
A
CY HERE. 7a
'-r W- f 3/5'
-ft.-
<<--
Questiull-'Vhat arc the r e
ui. itü s C4-IHHI1R1H1,éd h y JLL'V-
lart".a of fcnc
w
ttrlla ncy ?-The req uÜ;Ïtes for the
Z;
"
E
'
fences are a spade fur making a trench, a bar for a A
CY.
stone wall, a hakhet for a
!J5?ng fence, a billhouk '
;
rkt'
for a ' felmadh '-fence. .A'
r Ù the fine for fi"e..
cyerythree days that he (the. co-tenant)
dttto
the prop61' portion1
hich had fallen to him. {
7.i:::!:::
There are four ki?
ds of fences w hieh-lnigh t--be-re- IX <-/1
..qtrired-a trench, a stone wall, a strong fence, a 'fel-
rnadh '-fence; or else, according to others, it (the fine)
is a 'dairt '-heifer for every three Jays during which
he (the joint tenaitt), has not made the proper portion
of every fence.
Question-What are the requisites commanded by law of
fen c e s? i.e. I ask what are the things which are commanded for making the
hedge in the common usage. The requisites commanded for the
fen c e s, i.e. it is the thing which is peremptorily ordere<l for making the fence.
A b i IIh 00 k for a 'felm ad h '-fe nee, i.e. for making the good fence (' fa1
maith '), i.e. for the naked fence. (' Feis '-trespass I and leaping onr fences, 80
that they are caught in the morniug and I) ing in the day, . ruiriu '-trespass'
by night, and the fine for' feis '-trespass;3 paid for them all; a.r to' airlim '-trespass
by day and' ruiriu '-tre<pa'-" by day and' tair<ce '-trespa<s by night and . airlim'-
trespass by night, hnlf the fine for' feis '-trespass ;3 due for them all) A 'd ai rt '.
heifer for every three days during which he has neglected
to mak
tJ,r9
H.,$'g
!
n",,
, i.e. a
'4
irt'-heifer for everytbree
dan' that h
, iÏii be nnt the fence which is
r him he bas made
his
n. Four fences which might be required, i.e. four
lcind3 of fences are prescribed or required. A tr e n c h, a s ton e w a 11, i.
. a
trench or wall on the bare plain. A strong fence i.e. in the wood,/i.e.
a naked fence, or in the halI-cltared plain. "
A
f-
;'.{
ð'-)
If what the man outside" says i'i, it i'i a stake of first fault, and
what the man within says is, it is not in fault at all, the com-
'I C:I.J3 I-{-
etrncted, ami I demand satisfaction for the injury,' and if the defendant deni
that his stake is nnlawfully forme<l or fixed, or that it could ha\e done any injury
uuless unlawfully meddled with, then any person who has sufficient honour-
price to qualify him may settle the diqpute, Rnd decide the satisfaction to be made
for the first injury done by the unlawIul stake, or declare that the stake is lawful,
and th'1t no injll1:r has occurred by means of it.
"If the suer Ba)S, · The stake is unlawfully made and fixed, and has now in-
jure,l my he..-t for the -p,', 11<\ timp, or the tl,ir,l time,' aud the defend.m! replies,
74
bp,em;ha Comwt;hcera an'OfO.
J UDG-
IENTS OF
CO-T:EN-
,A'IOJCY.
émeeh an at
hEm y1.O bla'Ó ua'Óa ma eéCema1'o; eona 'Oeytna em
1
1P., Irtan '00.
oÆJZIIj'1)
ma'O,re'Ó a 'Oell" an rep. amUI"S, 11' eUa1tte 'Oeem
aé no
p.eem-
ach h
, oeur a 'OeI111tl fep.
att 11' eUa1tte eé
em
, 11' t.en:h f1P.
5" no tan
Pl1 '00 feu11 tet '0111e no tan_'DIp.e 'Oe; oeu1' att:h5m ua'Ó
ina e
i: ema1'Ó, oZUf noêa Eaban'O Ep.enll Ime 'Olb "LajÍelr 'OuI111me,
Ua111 tina'Ó 'Oulttebu11m et.alr, oeuf b111f1'O ep.am'O an eop.a'Ó.
Cin
a '00 ma'O na eetp.a i11 eém betap. ea fa111cf1n, tet a mbw
ma na1p.Ì1m Ire'Ó blaf ma
a1P.1'CI, 11' é a111é
el
m 111
h co P.UIEI
'0 q11 'Oa1p.n, ama1t <rea rmaé
a1b.
I
-(
cluJtwr- ')þ 1/-0/
.3 A
CCft<<1te, 11' 'D al 1'1:: cacl1 a 1::1'611'1 na'Dlmcol1' 1'aln'De f1' l
caell 111 me, .1. J;ne 6:te, .," '1' 'D<<11'1:: aft eael1 l::1'elf1' munab 1111 1'om'D If
elm C01ft 'DO 'DO 1'15ne 'Dlm,.õ.
"C''J
'" A
CI'O fa'Oa co 110-Eab\!!.'Ó 'Oume '00 ta1m r111'Orat:am U eo'Oa '00
/r; 'Oenu1I1 '0011 eonllatëer, 1l0cha 11fult rmat
fWP. muna 'O e 1 uw
fo t;(ut , ocur 'Oa n'Oep.na, lea e1111e Q fOEtQ:. 0 EebY.f 1m!:!ru1o, 011
'Oume '00 t.wm t;mnra
a111 a eo'Oa 'Oon eomwéer '00 'Oenam, at:Ú
rmaé
ralp., .1. 'Oa1P.
eaêa qtelf1, muna i:a1mc; no ee tamlE,
muna 'Oelma hue; no ee '00 p.m'Ol, muna be a p.omn bo'Oem p.o
101mlr
al1; no e1'O h1 a l1an'O bo'Oe111 p.o Imer<:ap., munab i in ime 11'
C01P. 110 1mep::ap.; no CI'O hI 111 Ime 11' COIP. '00 p.ln'Oe ime, ma 110
C11111.
Lt:({I1. rel1 U1t1 OCur ren w11.be'Ò co "Laba1p.
raeb a'Ò 1-1 1111 .
Ocur in pnaë"f: 1'111 '01c '00 co ccn'O mil', olu1' can ni 'OIC 0 fm
amach co cen'O 11111' ci;'t1 . OCUf Eeatt 'Oa n;p.epgLt 6 caé COTJ1U1'Ó
2( tech a11 'Od5am "L1"S1 a ce1t1 fO COfa1b a tepta 11e comat.lm'>
'Ot1"S
an comwéëera; otu1' cin co C0111U1tt
,
êo ne an Eeutt
1'111 'CUIt;1r an'O, a
an rma
a 'Oub11am':!11. '11Oma111'O, no meleh,
,rnJ
IJ.f'A
cfJlqv!
I No, this is the fhst instance t113t it hll9 caused any iujury,' the neighbours will
then decide bJ" compurgation, which has the truth on his side. If the
' decide in
favour of the defendant, he shall make compensation for the Drst injurJ' whid. i
technically called the first crime of the stake.
,I ]<"jnes do not lie for injuries dOlle hy any of the other fences from the firm or
close wooden fence np, . becau. " says the commentator, 'the fali.lge fil!s the
trench, antI the trec
brea1. the stone wall.'"
l e. t1"J
Hv.1'J
-
J: (j),
J.
}L
'.È'!"iL = Mt Uvlfl. rJ cf 1'ty/-) Jv 'IJ 1f#l -tJ.
"'"
ffit cÞ1L
1\AirY'J
-tÞ (
,y,.Ju',,) -jrrJ 1f'MJ- l t St, i -} f/vJ J; I'w'! t
/1,
JUDm{E
TS OF CO-TE
ANCY HEHE. f1-.dt
' .,s1ftr.>>-, (rwi
MM
IV ftrtl",
'11I4)
) k fu
pensation that is obtained from him for its first fault is for one JUDG-
that has honor-price to decide;' if no fault at all has been commit- ME'iTS OF
Co-T.,:s-
ted, he is freefrorn blame. AXCY.
If what the man outside says is, "it is a stake of two faults
or three faults," and the man within says, "it is a stake of first
fault," it is half proof or full proof that removes half' dire '-fine
or full' dire '-fine from him; and compensation is obtained from
him for its first fault, and none of these fences
the 1!Itrong
m':lii 9
, t;t1r<:
heM (cktim3 df!;IÒf!tJ
, for foliage fills the trench,
and trees break the stone wall.
As to the trespasi>es which the cattle commit while they are
seen, half of that fine which lies for their' airlim '-trespass shall be
for their' tairsci '-trespass, and the extent of its increase is to three
'dairt '-heifers, as it is in other' smaeht '-fines.
W t-I Q,.
Or else, it is a 'dairt'-heifer for every three days during
which he has not made the prOper portion of every fence, i.e.
another Hrsion, i.e. it is a 'dairt '.heifer for enry three da)'s, nnle<s it bc the
division that is right fur him, he has made of the rent.
Huwever 10Jlg a person may h.wp delayed taking iJl hand to
cummeJlce the l'erformiJlg of Iris share of the co-tcm'acy duties, there
is JlO 'smacht' -fine UpOJl him unless trespass has been committed, but
if it has beeJl committed, he shalll'ay the' eric '-fiJle of the trespass.
But, from the time that the man has takeJl iJl hand to begin to do
his sharc of the eo-teJlaJlcy duties, he is liable to 'smacht '-fine,
i.e. a 'dairt '-heifer for every three days of delay, unlcss he has
come; or, though he ha'! come, if he has Jlot made a feJlce; or
though he has made it, unless it be his OWJl portioJl hc has feJlced ;
or though it be his 0" Jl share he has fenced, tmle
he has made
the propcr kind of fCJlce; or though it be thc proper feJlce he has
made UpOJl it, if he has put up old o.akes or old pdC8, trusting
to them for a fence. And he bhall paya this 'smaclit' -t1Jle to aIr. ra!l8.
the eJld of a mOJlth, but shall pay JlothiJlg afterwards till the expira-
tion of another month. And each cu-tenant · shalll'lace it pledge of
tlw value cif two' screpalls' on onc of the rack pins of each other's
houses at the feet of the bed as security for the fulfilment of the a"
duties of co-tenancy; and though he shoulll not fulfil them, thia.i.8 "
not the l pledge that shall be forfeited for it, but the' smacht '-fine
",hich we ha,e mentioned before, or s..c1.s, or fines for man-
, To decide.-- 'There is
ome defect in the IllS. here. 1'o/Þ
· Ca-teml7lt, . comarótech ' mC.llls alsu co-tiller, or eo-grazier, or co-occupant.
76
bp,em:11(( eommt;hce)'(( ((111'))'0.
.J UDG-
110 fI((ch 'Dulllccwr;he fO (i1cnc'O nn: F05t
, 111a rw far f05a1t ann.
ulur 11' la'D WIlIli Lír
u ac 'DC11alll U COU( 'D011 CúlllwÜ'r tlO ((11
ll11e, l1atiJa 1111 ctalr, roc 111,1 C011ill..'Ò, Ul((1t 111,1 'DU1111me, f1'D
f1l.1
retma. oéur
Znaë CWc11 'DIU (( hum a celblr m a1'Òëe, co flo
5" cumn,s, tur L1aër;alll n:fl' 11la1'D1f! 'DO 'Oenn:1lI (( cora 'Don COIII((1-
chcer; OCl1r m n na nl1('l'
lrtn:n (( ((11.f1n:ë '00 cmrh!:.1)l, ()('ur}'D1U.
('mn-qt al1.f1((c nClch, m:a paì' r0111l11111le ua'Ò. 061)' 11' P C0111.
7!Cl1l1la na ct((raë q
i L)W1"St! ma t
ter;_ WI1. f1lWÜ:al1., OCur 'Da
L)W1È al1. me'ÒOI1, Ocur "{;)W1È WI1. 111ër((I1., oeur L}t! "{;)Wlbt1 ma
I
t;ul1."Obe, Ocur "{;)1i rflolÈt! (( tetet: an 11lU1P. cUIl.t:al1. WI'Ll WIt
mët:al1., oeur 'Da qWI5 (q1. 11le'Òon, oeur "{;)w15 1((lt 11Uaëral1., ocur
.>1"
q<.1 ql.01Ëtl111 a111.'Dl 11111lU111., eomro ré "{;)wl;ste 111 atfl'DI na etarach
ra111 oeur m atfl'De 111 mUlp. ar a cm'D.
(o;!.2./ 60)
:r.....
.,:r;-; ..}o'
Cu-Tt.
-
ASCY.
If 0'4' 2.lb 7
1r COlla Imup.p.o, "{;)1.1 t;p.Olte mu tetat; laP. f11l:t:ap., oeur '00:
's <11015 al1. meo'Òal1, oeur L}W1È laP. nuaëral1., ocur ré "{;)lOrSi1 ma
ha111'DI.
In 'DWI'-111l6 II1l Ull1W , II' ((1lItu'Ò 'Dtftal1. a 'D6nuIÎl fl'6e; bap.p. 1f1
CJlOm'D alt UU1l m qlOm'D 6lte, ocur COl1a t:1ra m ral1.e bee {"flIt!
(q1. 'ÒtU1t!, na m 'Dam t; a l1. m r al1. mlwl. =
L'6- It .v ,,/)
20 lnoëra1tl 11' amta 'Dt
tal1. Irl'Òe; t;P.015 co ll'Dlt nop."Oun It;lP.
.\'1 "'\4.- .J ')(
5aë 'Da eumtte, oeur re t;p.01Ët!111a hmp.'De, no 'Da 'Dol<.n" 'Déc, ma 'DO
'Dop.nU1b t:0111lIrt:ap.; 11' rru bunehulp. fGlP., bunc1lul1. rGlfl tap'
..... rrC j
" I) ..
mërap., oeur ((11elh
((P. 11l6'DOn, oeur ap.mte lap. I1Uaet:aP.,oeur a'D
It:1P. 5ad1 'Dn: bunehup.; ocur 'DOIUlfîrot: in chumtte 0 rfean amu11l,
ts ocur c1)1. 'Dp.015en fmp. lal1. nuaët:al1.; ocuf qli beiIl1m'Da;..a cean'D J.dc f".,.
f
sacha cumtte comap. 1m rá'Òa al1. t:úr ama1t comccra.
laLJt
r
r t .. h
1mroa 11l'Dtetap.lla lme'D 1'111 .1. C ((If no cop.a'l> 11' 1f\ mac mfle,
ocur noët;m
11' m tetmaehmp.e, ocur 'Da1fllme 11'111 CGltt. Ocur
ct1L}Ulma 1 na'11"01 tllte.
I His vic/llClls.-The word 'af1.naë,' here translated, 'yictuals,' occurs under the
forms · e(1)Hmach,' '1'f1.<<nach,' and' l'f1.ll<<ê, in a paragraph on co-tenancy, in
the" Filln,ruth Fithil," (0'0. I:;;;G), \\here it i
added. that if a man's '''f1l1uc.
he u<ed .. he is not entitled to compensation, nor to a fine for oyer use." The term
ma)' mean the metal implements each co-tenant "as obliged to have for the
work of fencing. As a term for the ploughshare and coulter together, it is still II
li\"ing wf>rd in the south of Ireland.
if-: D1
J
i IIZ./f, O'J.k(-.H1(
J{;'DGMENTS OF CO.TE:s'ANCY HERE.
77
trespass, according to the nature of the trespass, if trespass
has taken place therefrom. And the implements which they
shall have in making their shares of the co-tenancy work, or
of the fence, are a spade for a trench, a bar for a stone wall, a
hatchet for a strong fence, awl a billhook for a' felma '-hedge. And
'-Iv
each of them IJh:tH gú;.0 hi8' iebRliL in
the hand of the other
at night, that he may remember to come
' t e moming tp do hÏ.!!1- . JO
-l1.
'" -:rr C< <.or L? c.} _ '-<M': 8
share of the co-tenancy work; and the y 's _'
I'- 36-lt
:;ï
_
_'
1,
-
1
'a,,",J d if h
f f h
JWU!
"'<.H=y
_,an t e'
SO anyo tern' ./
(
) be use
he shall pay fine for over-use. And the true making of the
trcnch 18 three feet in its breadth at the top, and two feet in the
middle, and one foot at the hottom, amI tl1ree feet in its del)th, antI
three feet the thickness of the mound which is placed over it, at
the bottom, and two feet in the middle, and one foot at the top,
(tnd three feet the height of the mound, so that the depth of that
trench and the height of the wall over it make- six feet. aIr. Ar!.
Now as to the stone fence, tltere are three feet in its thick-
ness at the bottom, ami two feet in the middle, and a foot at the
top, and six feet in its height.
But as to the :fence, it is thus it should be made: the top
of the one tree shall be on the trunk of the other tree, and so as
that the smallest suckling pigb could not pass through it for its b Ir. The
closeness, nor the ox pass over it for its height. little pig.
The naked fence should be thus made: t/te lengtlt of a foot.t.o the ,I
articulation (or separat ion) of the big toe is to be between every two
stakes, and six feet in its height, or twelve hands, if it be
measured by hands; and three bands of interwoven twigs2 upon it, a
band on it at the bottom, another in the middle, and another at the
top, and a certain space between every two bands; and a hand is the
length of the pole (tlte interweavillg) from that out,3 and a black-
thorn crest upon it atJ
and every stake should be flatteneJ
at top by three hlows:
truck on its head, after being first thrust úy
the /tand on tlte ground as well as you can.
The places where these fences should be are tltuS, i.p. a trench
or a stone wall in the plain, and the naked fence in the half-plain,
and the close fence in the wood. And the height of them all is equal.
JUDG-
MEST!! OF
Co- TKS-
ASCY.
. Bands oft nterwol1!n twigs.-' bUllcnop.,' literally, 'hntt-settillg,' means a band
of oziers interwoven between the standards or stakes.
8 For 'amum ' here which seems to male no sense, Dr. O'Donovan conjectured
. anunn,' and translated accordingly. Professor O'Curry translated "0 r ean 1tt
amum," "above the wickerwork." The MS. Hawlinson,
87, fol. 64 a, col. 2,
bas "amum." tI'A - ð,
liD L Cs4:t f- )
.J UDG-
'78
b1 tead w Comwt;ncera an 'Oro.
A t.blt.t.,
ME:ST;; OF
CO-TEN-
ANCY.
8ma cht; a m'ltE,tt, caçþ lW1tt 1L'Qt ram1ta'Ò OCl1r
e"C\1Jtrc a l1. a 'O ocur caomL aét; ; ach r n1 Cl1ma c<tn ,m t;ta;Satt;
ocur et;ap.fcalWt;, 1 1an 'OL'ap. "Dono 1n bLta'Oatn 1 n'Oe flU
rm a c11t;a, cqt n1 COrmatt rmaëé'
cacha 1 ta1 t;he"ann rom
-\..
r- a rm ach t;a Eatmruaëm ocur e1p,11acn EP,1t, all. 't1W,t;ne '1- 8
.:tb
beoJ>et;hu t;011t;na. G1"1.e1'01b mtacn m1t;ep. ('(tcn neLne-
mam, mtacn {"'nat;ntttmpat1te, t
mtach 11u monat a1 t
at1tt1m ; bep.a 'Oe 'Oaru:;atE artre1r, at11r"re1r cacn LtEe' C,J''1(DþLJH)
caë t;ap,p,a1'De, at11Ltm aët; na 'Oe1tret; naë t;ap,t;w'6e, aët;
I t;ap.t;a1'Oe an'O 1at1 nat'Òe.
()..uJ tJ.v'
vO
1c
p/tciWt-
..sJi. tf
w
1
z.t 51lJ-
fj f.bll 1,.,
8maét:a t:altl5lLLI each tlaltl, ." In 111 fmaët:m
etlt:atlcenn na
n5 eLL t:oltl ltne é each tlmte. 1 t:1P. famp.a'Ò. .1.111 etllc. et:up.fcap.a'O
." 1111 et:1!Jlfcatluf P.lf 111 5eimp.e 'Oon etltl<<ch. Caomt:aét:, .1.11li blf
111acholm1'Oecht:'Oe. N I cum a conlmt:1 a5a1 t: ocuf et:ap.fcatlat:, .1.
I}acht: ni CtIt:ßuma inljblf aC01ml'Og!;t: 1115elmp.I'O 'Oon etlp.ach o
ufi111 et:utl-
fcatluf P.'f 'Oe. Ran 'Ot:ap. 'Oon 0 1 n bLI a'Oal n, .1. up.p.annt:atl'Oono 111
bLta'Oa111 <<p. '06 p.e hlc fmaèt:a. ap' nl cOfma1L fmaét:a cacha
p.alt:he, .1. ump. noea cOfmU1L ini fm(((zmst
an'O in each p.mte.
(Cnnfom a fmacht:a 5a1mfuaét:a,.I.lf'Oonan
lb Ir111nranolr
'.annr a a'Iln 111i rmact:wstetl a fuact: 11l 5eimp.e. elp.p.ach 5P.lt,.1
111 ump. bIT CP.lt ap. na h111111Llb IT 111 ep.p.ach. CCp. 'rp.UIt:he beD
bet:hu .1. atl If umrLe 111i '00 beltl beata '00 na bumb Ifln 5élmp.e na
I E
er!l quarter.-Upon this Dr. O'Donovan obsen'cs :_" A literal translation
of this passage eon1d not be understood by an English reader." The following is
submitted WI the closest that could bp considered intelligihle :__
.. Relieving pledges are ordained for evelJ' quarter of the year, both in summer
and in the parts separated from or added to it, but these parts are not equal, for
the year is (livided in two regn1ations for the' smacht '-regulations of every quarter
are not alike. The' smacht '-rpgulations of the winter. and the cold portion of
spring are more difficult, for living food is more noble than fruit.
"Three sacks are estimated as the fine for trespa&Bing 011. all rich land, half a sack
for pastured land, and half a sack for a mountain.
"Two' dairt '-heifers lire adjudged for lying down satiated after g1"azing, for ev
'
JUDGMEXTS OF CO-TENAKCY HERE.
79
Additional pledges for' smacht '-fines are paY(lvle JLDG-
every quarter I of a year, both in summer and in
the parts of autumn cmd spring, subtracted from or
aJded a to 'winte'r; but the parts added and subtracted. Ir. S pa-
l fi t l . d . . d d . t t ration and
are not equa, 01' lle year IS IVI e 111 0 WO accmnpani-
parts\! for 'regulating 'smacht '-fines, for the' smacht ' - ment.
fines of each quarter are not alike, veca'ltse it is diffi-
cult to regulate the 'smacht' -fines of the winter
season, and of the spring cold,3 for saved provisions
are more precious than growing grass. Three sacks
are estimated 101' damage committed by trespass in
cornlalld, a sack in pastured land, half a sack in a
mountain field; two' dairt '-heifers for' feis '-trespa.."Js,
for every lying down is called' feis '-trespass when
detected; every detection is 'airlim '-trespass if they
(the cattle) have not lain down, but detection therein
after a night.
ltlF..
TS OF
Co-TEN-
^XCY.
-Ivr
...
'T
'fC
66.
cf
l4</t I(
S"D.3
Allditional pledges for 'smacht'-fines every quarter, i.e. the
thing which is ooda: no 'l
the relieving pledges every quarterof a year. In
,'It-
tf
summer, i.e. the 'eric'-fine. Subtracted, i.e. the part of the spring which
i'l detached from winter. Added to, i.e. that part of it which accompanies it.
Uu t the parts added and separated are not equal, i.e but the part
of spring which is added to the winter, and the part wlüch is subtractel! from it
are not equal For the year i'l (livided, i.e. the year is divided into two
IHrta for the ,'e!JtllatiOl.of payment of 'smacht'-fines. For the 'smacht'-
fines of every quarter are not alike, i.e. for tl:1e thing ordained bylaw
in each qunrter is not alike. It is difficult to regulate the 'smacht'-
fines of the winter scason, i.e. the thingcommaDllcd to be given as fines
(luring the cold of the winter is among the difficu1t things of law. S p r i ng-c 0 Id,b b Ir. Sldn,'-
i.e. when the cattle are shivering in the spring. For s a v e d pro vis ion 8 are ing.
111 0 r e pre c i 0 u s, i.e. for more noble is the thing which gives food to the cows
Iring down when detected is a' feis '-tre-pass. It is an 'airlim '-tre-pass if they
.Iid not lie down. No fine for lying-down lies for any detection, except their being
caught in the morning."
. The year is divided into tlCO parts.-According to C. 23, the year was divided
into two unequal parts. The' Samfucht,' or wann season, comprises five montll'l,
\ iz., the last month of spring, the three months of summer, and the first month
of autumn; and the 'Gllmfucht' comprised se\en months, viz., the two last
months of autumn, the three months of winter, and the two first months of spring.
3 Spring cold.-That is, during February and March, wlùch were considered a
part of the winter. See p. 89, infra.
80
bp.e<rrha Com((1t;1!cera al1'DrO.
"' JUDG- mí 'VO bell' t:;o1'U 'Vólb lf1n
t:;raml'o'Ó. 'Gl'el'Vlb mlocn m,t:;el'
lD:ð
/b
C !ENTSOF cocn net:;nemoln, .1. t:;p.e1'Oe '00 mmcn
b If ne ní melfemnmst
o-T
.:s'- I .
, . m t. t.'
. ASC\". I felfocuf In rnl""lm'Olsu1T1feOll'et:;m
10C" I n((t:;""umpOll'e, .1.
.'WfV
/.. _ félfattumpU1)1.eflJ01l'etamuínt:;f((ml'ot:;o. Getmlocn fl" monU!,
'i .1. í nm}1.bm attumpU1J1.e mono selml'et:;o 11e 'Ð15um mono faT11)1.i{n(.
be )1.(( '0 e '00 1't:; 0 's 01' fel f' .1. bp.e...!.temnmst
'Oe '001'""2'
)'Ð0
rcl'epott 0)1. celtl'e mlOémb, .1. I rf"f '015u1T1 reOl1' et((T11Um selT11I'H:a. ".;;jj 'I
""./.
CBlf3 lCI' If felr cocn tlse coé t:;al'l'oli>la;.,. S1)1.1cfelf1foI'1 1U 0
t01'1101S"Cel' on'O 1Ot:;t:; mo t,se. ce111 tl m 0 ét:; no 'Ð I' I t fet:;, .,. eluc
{I ((\I'Llme 01'110 oét:; no J1.O L0I51t:; onn. n 0 é t:; (( l' t:; 0 I 'Ó e 0 é t:; t:; 0 1't:; 0 1'0 e
on'O 101' n 01 'Ó e, .1. noéo t:;((1'1'
0111 éïte oyeJl'lm el"c fI'lfl 01'p.:!! 1110
nOll'bm, oét:; 0 t:;Ol'rmét:;01T1 on'V 101' m01'Oín.
II o'h" '-37 J"
e
CElr-h111 ep,nalL1 eomap:Da m eomwëefa a nícqg:
tanpaë 1'1'11",
.1. fell' tal', oeuf relf aröëe, 1',1111le nu llw'Öëe, oeuf a11lbm 11a
,
hw'Öëe, eona r-oltllaèr-am an a11ltm1 mm ap, mamm. Cet1le hl'l l -
nmte eomall'Da an eomwi-pra ("( mcr-ap, tet paé felfl, .1. p,1111lC an
tael, oeuf a11ttml an tam, r-W1lree na hm'Öèl oel1f ((ll1tl1TI 11a hm'Öée,
eona t;01tp,
r-a1tl an mp,tfffi ann !all mamin. Let f1ueh mp,tfffi1
in tacI a r-Wl1rel an tam, no tet puë r-mltl'cl na hw'Öt;1 a t; w l l fce
'
an tal', ocuf If i fin an aen hep,nwtl cethlta1llan.
"".__
&d'o. I}
''''''''' ow 1I'1.
lt-7_J/!::4
)
"'-'
p t; ) 11J/çç7
ilfW
tM.ø.41.,
.
lo'/J 2/bJ)
Ct"tp,e melt; a relf "015ona reolp, etnmam 5elmp,er-a t;ap, tan
ime, 'Da m!aèma 1l((Ip,tl1l1,OCl1f mwè inn t;mltrcl. mar I attotllp a1 1 1C
rcolp. etamam 5el tlll'.[e t;a) no 'Di511m mona 5elmp,er-a, no cwttc
5em'ijwr-a, no atbl1mt!'Ö .5elmp,e'Da, no I n'D15om fcolll etnmam
.:t,
r-ramp,m'Ö, 'Da mmë ina rell', oCl1f11l1aeh ina nmp.nm, OCl1r tet melt;
ina r-mp,rcl. múr 1 attt1mpolp,e mona 5em1p,er-a, 110 cmUe 5 elm -
p,er-a, no ad1 huwt,'Ö 5el mp, er-a, 110 attomp111p,e reol
etamam r-fUm-
l l m:;n, no a n'DIg111
mona famllm:;a no cmtte famp,m:;a, tnmë ina
1'1'11', tet melch ina f
tïm, ceatp,mme m
,eh ina r-alp,fcl. mÚr I
1" attompl1Ip,e mona famllm:;a no Ca1tte rnmp,m:;a, 110 atbumt,'Ö l' am -
l l m:;a, tet melch ma relf, OCt1f cedlp,t1,!me melch 111a rop.Hm, OCt1f
U o'lJlf!i'l, CtLfI (,
'q
I E"cl
!edfield.-On the term "'Olsum," Dr. O'Donovan, quoting an old gloss,
IIIYS, it meant grass which was not to be ,iolatcd, i.e. a meadow.
JTJDmIEXTS OF CO-TEXAXCY HERE.
81
in winlcr than the thin; which gives produce to them in the summer. T h r I' I'
sacks are estimated for tJ'espass in cornland,i.e.three
acksisthefine
estimated for' feis'-trespass and' airlim '-trespass in an inclosed meadow. A sa I' k
in a pas t u red fi e 1 <1, i.e. for lying in a pa,tured fieM of grn 3 land in the summer.
H a I f a s a I' kin a m 0 u II t a i n fi e 1 (1, i.e. for leaping into a pastured field
of winter l1\!Jllntain land with an inclo<elllieM of summer mountain land. Two
'dairt'-heifers shall be given for 'feis'-tres(lass, i.e. two 'dairt'-
heifers of the mllle of two' .erepalls' "ilh four sacks arc adjudged, i.e. for' feis'-
trespa<s in apI'opt/"Z!/jè'lIced \\inter grassland. Every J yi ng-dow n is ca lled
'feis'-trespass, &1'., i.e. 'eric '-fine for 'feis '-trespass is charged on them when they
are caught there J)ing down. 'Ai dim '-t respass if they h a"\ I' not 1 ai n
d ow n, i.e. 'eric '-fine for' airlim '-trespass ü chm'!Jed on them if they have not lain
down. Every detection, but detection therein after the night, i.e.
it iq not for auy other detection I say that' eeic '-fine f, r 'feis '-trespass is charged
on them for their' airlim '-trespass, but for their being caught there in the morning.
Jt'DC-
IENTS OF
Co- TEN-
ANCY . Cf V
A
'3
There are four equal cases in a the co-tenancy in which full fine a Yr. Of.
for lying down trespass is paid, i.e. lying down by day, and lying
down by night, 'ruire '-trespass by night, and' airlim '-trespass
hy night, and their being detected in their' airlim '-trespass there
in the morning. There are four equal cases in the co-tcnancy for
which halffinc for' feis '-trespass is paid, i.e. 'l'uÏ1'e '-trespass by day,
aad 'airlim '-trespass by day, 'tairsce '-trespass by nigllt, and
, ait'lim '-trespass by night, if they arc detected in theÏ1" airlim '.
trl'<;pass then' in the morning. Half the fine for the 'airlim '-tres-
P'l<;S by day is due in the cc'se of 'tairsce '-trespass by day, or half
the fine for ' t.1Ïrsce '-trespa
& by night in the case if' tairsce' -tres- .
pass by day, and this is tllC only case of a fourth (i.e. of fourtltfine). 7rAJ'fv
'1-
Four sacks are due for' feis '-trespass in a wiuter grass field oyer
a full fence, two sacks for' airlim '-trespass, and a sack for' tairsce ,_
trespass. If it be trespass upon a pastured field of winter grass land,
or upon an Ï1lClosed field of winter mountain land, or winter wood,
or an old winter milking place, or into an inclosed field of summer
grass land, two sacks are due for 'feis' -trespass, and a sack for
'airlim'-trespass, and Iw1f a sack for 'taÏ1'Sce '-treslJ3Ss. If it be
trespass upon a pasturcd field of \\ inter mountain, or winter wood,
or an old winter milking place, or a pa.<;tured field of summer grass
bnd, or into an inclosed field' of summer mOtUltain or summpr
wood, a sack is due for' feis '-trespass, balf a sack for 'airlim '.
trespass, and a quarter of a sack for . taÏ1'Sce '-trespass. If it
be trespass upon a pastured field of summer mountain or sumnH"-
wood, or summer old milking-place, balf a sack is due for' fcis '.
trespass, and a quartcr of a. sack for 'airlim '-trC'spa<;s, and the
, )
:--
VOL. IV.
a
82
bp.em:ha eommdH'era CCtl'ìJr o .
."1/.
J VI" ;;; _\I,"_'?
UDG- oê'Cm<ro melch tna 'Cw1lrCe. OéL1lla'Ö an oêt;ma:'Ö ap. cach naen
anlTlan'O nan5bU1'Ö, uwp. an5b
caê mít a comméer. L((11 1 r CI
((en anmutl't> an attl1l11p
mona ramtwt;a, C1'O bé 'Oa tWlre'Ö,
v, "
_ tn relre'Ö twn'O tete ((enmelch. 1 r e ((l1lst; Clt;a 111 tllt fin co t WICI
( '6?\ .. 'Cflt reêt; nanman'Ou '00 aen 1'eltb a 1l't>Ut amul't> 'Ca1 1 beflna'O((1u
b N 1 U7. J , b . ...
1' ame ; ocur mar 'Cafl aen e11nw '00 cua'Oa1l, rmact; a11 m ce'C
anm\tW, ocur wt;h5m füOlfl 110 a1lú
\ ap. caé natlmunn 0 ta 1'111
amach.
:\n. .......s OF
Co-Tt;'1_
\XCY.
a.JIIÅ,J
"'Oa bw 111 pat 'Oumtmt! C111n'(;1 t;afl tan 1me, ocu1' bo ocur
10 rrnil a1[c 'Cafl tet tme ; bo mar cm 1l11e It;ln; a 1l't>t5 otn feo11 1 5 CUll "
fll'Ö ara 1'111. mar 1 attomp
feolfl etamam 5 em1 fle'Ö, no
a tl'015oín mona 5 elmfll'Ö 110 cwtt
5 e1111.J:1J 'Ö, 110 atutlU1t.!'Ö 5Ç1J]J-
t!!-'O, no a 1l't>t5om reo111 etamam 'Cramt1
, bo an'O ra11 tan
tme, ocUr!-..t;flt cetj1amna t;C!}1 tet Ime; ramwrc mar dn tITle l'(;1fl.
I ^/
I Mtlbl()
IS m aft ca;htompUl11e mona no caltte, no atbtlwtrö 5em1 flct;a , 110
attump\.lfle fCOlfl ctama11l 1'am1lca;a, no a n'Olt;om mona 110
Calttt,110 Cltbl1a1t1 ramflClra, ram11'rC an'O Lat1 tan íme, OC1'r a
rpOfla/ce"(;hflwme t;U11 tet nile, cotpw:' re 1'Qllp UU.. mar C111 tme
1'C111..
Mnt7
2.g 111ara attompalfle m on a no c mt te,no atbumt!.rÇ!!!!Jl
a,cot pu. é
.UI. rc;1.epatt am1 t;at1. tan Ime, oCtlr Cl 'Ccofla cett1amnu t;a1t tct
tme, 'OU111"(; Cct;fll 1'Ql
t mar 5111 íllle In fl.
- ---
bo tn pach 'O umecalt! con'O"(;uua11t;ach 'Oafl t.,l,') 1mc, ocur
cotp<:!f!l fW1" no fU111e 'Catl tet ime. LCl1l tanl1lìC m:4. t r tla mClch,
1, ocur a tet .rafl tet ime, octlr 11Oéon fUlt ní mar cm Ime 1t;11 1 .
Lall tan tme m::a 111 pach 'Otlme cwte ocur a t;e01w cctrtmme Lap.
tei tme, ocur tet, mar 5in line 1t;.!1.'"
Canal' t n5abu11. "(;eo11 a cetflwme 111 felch 'Oulnecwt! "(;a1\ tet
I Re$tilulio7l.-That i8, the o1l"1lcr must muke good th
grass or
orn destro
'cJ
by the animal.
JL'"DmIE
TS OF CO-'l'ENANCY HERE.
83
eighth of a sack for' tairsce'-trespass. The eighth ofthe eighth is the
fine upon every trespassing animal, for every beast is a trespasser
in a co-tenancy. For the' tairsce '-trespass of one animal upon
:t pastured field of summer mountain pasture, whatever animal
commits it, a sixth part of the half of one sack Ùi due, This
extends. to three times seven animals of one henl in their going' Ir. The
} ..., d ' f ' b th h length to
over (IUerent gaps; an I It e over one gap ey went, t ere which t',il1
is C smacht '-fine upon the first animal, amI compensation for grass "/Inis,tillit
. 1 f h 7"eac'tes <fc.
or com upon every amma rom t at out. '
Two cows is the fine for definite man-trespass over a full fence,
and a cow and a ' samhaisc '-heifer if across a half fence; a cow is
tlw fine if there be no fence at all. This is for trespass in a pre-
served field of winter-grass. If it be trespass upon a pastured field
ûf winter-gm<,s land, or upon a preserved field of winter moun-
tain or winter wood, or olll "\... inter milking-place, or upon a pre-
served field of summer gra.';s-Iand, a cow is tlw filw for it if across
:t full fencc, and three-fourths of tile value if a cow across a
half fence; a 's,tmhaisc '-heifer, if there be no fence whatever.
If it be a pastured field of winter motmtttin or wood, or
an old milking-place, or a pastured fielJ of SUIDmer grass-land, or
a presen ell fielJ ûf summer mountain or wood, or an old milking-
place, a 'samhaisc '-heifer is tlte fine for tresp(tss on it over a full
fence, amI three quarters if a cow over a half fence, a 'colpach ,-
heifer worth bLX 'screpalls,' if there be no fence at all.
If it (tile trespass) be
Ipon a pastured field of summer mountain
or wood, or an old milking-place, a C colpach '-heifer of tlw value
of bix C screpalls' is tlwfine for it if across a full fence, and three
quarters if a ' colpacll '-lwifeJ/" across a half fence, a C dairt '-heifer
of the vallie of four' screpalls,' if there be no fence at all,
A cow is the fine for douùtfulman-trespass' if across a full fence,
l1.lul a C colpãeh '-heifer is tlw fine upon him or her (tile trespassing
úeast) across a half fence. For trespass committed across a full
fence' the sacks '. are paul, and the half thereof (i.e. of tile saclf),
across a half-fence, and there is nothing to úe lJaid as fine if thero
be no fence at all.
'Vhence is it (i.e. tile rule or precedent,) derived that it is three-
quarters of the fine for man-trespass tltat is paid for the trespa8s
JUDO-
[hYTS OF
Co- TEN-
AYCY.
. The aacks. The tenn is here technically uscd. It meanB four sacks of oatB
/lml baric)'. See .nFa, p. 119.
. .1ltcn-tl"e.<pa.!a.-Tl1at is, tre-pa-s committeù by cattle with the connÏ\'/lnce of, or
causcd by the owner, or somc pcrson in ch..lrge of them.
VOL. IV. U 2
84
blleadm eOn1((1dH'F-fa al11')fO.
.TunG-
)ft..
TS OF
('0- TE:S-
.\:SCY.
1IIH'. Ocur CO na p11t ((j''C tt't 11(( 1II1((eh? 11' ((1' 5((b!!l1, t
t in
releh -oumeëC!1t1 cm Ime 1<;111-, OCU1' 111 tet elte -oe aro n;at tan
ime; 1Jlard t
t Ime fUll, (111-0, cedl11aniJe ((1'10 rca'Ch t
t Ime ; 'CaùE!11
111 m
"Lm
æ rm (( fUltte'Ò
1l tete fl11t cm Ime, co na LC01ta eet-
ç 1'wme in felch -oumecwt1 "La11 tet illle.
11.2ëon faËab!!1t nác ni -00 na m1((
((1b C1ll i1llc, C0111
-of'lp'Òl m
"Lan a"La tet ill1e an-o, céll1a1> tet na puch -00 ùet a11 (( 1'5Ït"Lh.
-v.
?
l\:JCo/tlr.a
II O'/) /5bb
110ch
fUll, -o
tom 11U1111"Ò na airtime na "("((1111'51, na mé-oC!1Ët1
lIa tC!1Ë-oI
t1 -omnltl a telrh roe -oum
C!1rhl; ocur cn:::a 'tJetùlli
Ii) -o1\Som ocu1' attompall1e, ad)((lm ocu1' anutal1u, ocu1' (\"LU 'tJ
tù.!11.
ill1e ocuf can imej CC"La a n-o
tb
l l11tl r
tll1aëalb.
'"
^
III Ib
')
-
CI'Ò 1'0 -oe11a 111 'Can If melch -ot
U11. Ifm fOÉ;alt co na fUll, ni
C1I1 Ime 1'(;111; OCur 111 "Can If paë -o!,!!!!.eëalt111Jl!!1!jlO, co fUll, a tet
1'1'Òe cm 1fTle 1"C1p? 11' é 111 rát 1'o-oeroa, 111 cOI1Jlé'C -00 Op-oa1Ë -o t1 5 1
If ((1'. na hm-01t1 (ka ac P11 na nm-olt1 011110, ocuf 11I-ot1sreë -opr o
1
an fC11am-o 5an 1me al51; OCUf C0111 cm co be_t ni -00 na mlgëalù
'tJó m "Lan na ùla'Ò 1me al51. 11..Q.ëon FUll, a C01me'C -dtlsreë Imuppo,
uc P11 na m-01t1 01111a 111 "Lan a'Ca pach -o
ec
ua'Ò, ocuf co11 1
ce 119 ù
t a t!:.t Ua1> cm Ime KID, CI-O m-otl öCeë -opro an fqtam-o
,
5an Ime -00 bet C!15e, Ualp con11an-om: bait baebat e'Cu1 1 1 w .
( 01l.l/bS)
"Oetblp -0150111 ocur attompl!!11e, ocuf al'Ch1m ocuf ancí1thml,
ocuf ime ocuf can Ime a tet pe paë -ol!!!!.ecglt
; ocuf nocon
fUll, -oetblp felf1 na a111t1me, na P.UI1U'Ò, na 'CC!111fC1 a tet 1 1e
pach -oumeca1t1; ocuf m:a an -oetblp U1t1 a tet 11e m1acha1b.
I t 1-Y/'
}
rp J
t.
Ii.')./ .
f 11' ann m:an; na meldl Op11.0 m mbC!1-o 110 fa5a1b -oume 1m:
1 ftelb no a n-olroam-o, ocuf 110 fa5a1b buachaltt cotmaë p.e cOif;
I One-ei,?hth.-This is wrong, it should be · one-fourth.'
JUDGlIEXTS OF CO-TE
ANCY HElm.
85
committed by going across a half hedge, and that it is only half
, the sacks
' It is derived from this, tlwt it is halfthe fine for man-
trespass Í8 dzu when there is no fence at all, and the other half of it Ayry.
for trespass ove1' full fence; if it be a half fence that is there, there
i'l a fourth of 'the sacks' for half fence; carry that one-eighth, I and
add it to&the half which is for the ease ofno fence at all,and it makes' Ir. b.
I fì 1._ f h fi fì h If fì addition to.
t lree- ourtUl> 0 t e ne or man-trespass across a a ence.
No portion of 'thc sacks' is obtained without the fence, it is
proper for this reason, that when tllere is a half fence, it should be
half the fines that are due for it.
There is no diftèrence of 'ruiridh '-trespass, or 'airlim '-trespass,
or 'tairsgi '-trespass, or increaÆ!e or decrease of cattle with respect
to man-trespass; hut there is a difference of meadow and pastured
bnd, of profitahle land and unprofitable, ami there is a difference
of fence and non-fence. All these differences are observed with
respect to ' the sacks.'
'Vh:tt is the reason, when it is 'sacks' that are due for the
trespass, that there is nothing due where there is no fence at
all; but" hen there is fine for man-tresI'aEs, that the half thereof
is dzu where there is no fence whatev<,r 1 The reason is, the llerding
which the law ha'! ordered for the cattle is prot'ÙlÆd by the o"\\ner
of the cattle for them, and it is unlawful for the owner of the land
llot to ha,-e a fence; and it is right that he should have no portion
of 'the sacks' when he .has not a fence. The owner of the cattlc
has not prorÙled the lawful herding for them wIlen he pays fines
for man-trespn -, and it is in suclt case l'i
ht that he should pay tIlC
one-half when there is no fence at all, e' en thougll it is unlawful for
the owner of the land not to have a fence, for "fools divide the
. hetween them."
Tltere is a difference between presen-eù grass. land and pastured
land, and bet" een profitable and unprofitable land, and between
fence and non-fence, .WitIl respect to fines for man-trespass; and there
i'l no difference between 'feis '-trespass and 'airlim '-trespass, or
, rll.iri& '-trespass, or 't..'\irsce '-trespass, with respect to fines for
man-trcbpasses; and there is a difference between them all with
respect to sacks.
'Vhere they are fined 'the sacks' is where a person hM left
thern (tlte cattle) in a mountain Ol' a wood, and left a sensible adult
J\;no-
IIIE'1TI< OF
Co-TF.Y-
· rid. yoJ. 3, p. 30:;. "Every Judge is pWli.haLle for lü. neglect."
8 Xonjt",a.-The MS. here has 'ca' with a Btroke over the . a,' such as usually is
emploJ'cd to mark 'ë.' The meaning requires that the word should be read a:> "can. "
*
I/O
/b71f
W
Q
r
f....t if' rkftw
?IÑ hJt em rJ, -e.rliiJ.
86
bfteadlG eommrhn'f(( atl'()fo.
. Ic-
;i ðiJ ,
ÇK, \"2.'-1" Jt"DG-
.IF.
TS OF
Co- TEN-
.AXCY.
1..;,...., 0/
J
' - /s-f8
no 1n coimé
a 'Oelp, 'Ot1ËI op,po I f11.atap, ((P, na 1llucmb; coèott
1m na cepcl; bl1.05a 1m na5abpa1b; lq1.ëott rôna 5anmmb; ae'Ò-
a1pe a5 na ca1plb; buacha1tt aj; na blla1b.
11.f",,>,'.1
(D:e./rrct)
11' an'O ara m p
'O
eF a1Ö cm'O
eë, m mbari> po fa5mb 1(("L
S a J'ap,
'Ò an ËUlp
J'eolp, !!.O apù!!tA, ocu1' L1n'On tell' cona p.ac1l-
'Ornr -In';: 11' ann m;a m paë 'O\11!}!J c<!!.n conn raù ap
ach, 111
Ua111, 11' conn
aba1p,
tel1' m pach'Ow1' no na pach'OUlr m'O.
/
+f <ltk IIf-
111 a
Llr, ratt 1ll
a'Ò ll1r
l"Ul1lf' a raùal11.
1'0 qlf amach,
11' tan pach 'O u1n e nl1Ö ; IlIll
a1
a'Ò ll1J'1
rol11.p'Ò a rar)Wll
I'U
Ie 'Oú, '1' 'Oa q lwn all }'Elè 'Ou111eCa1Ö ; 1IIa 11.Où((ral1. ratt a'Ò 1uP
olllP' a
ab
aenf eè
, 11' ql1an 111 }'elch '01
ec UlÖ .
(:().
)
'f: CC J'Ult ara 'Olana
t:5 neml
, ni he'Ò an cena, um51 'Oa1p,5e
a
"LUlÖnech an'O, ocu1' 5a ap,
pi 1'eë
namnan'Oa fO ceLhUlp, '00 aen
reltb a
ú rm co na n'Out .o:nun'O rame feè
all, raíne ùep,na'Ò ;
,') t10 all,
p,i reë
nanlllanuwb fO cetUll1. '00 raine rctba co na n'Out
anunn aen feë
ap, ralne ùelUla; ocu1' 'Oa1lla'Ö L((P aen ùqwcu}<,
ni blQ'Ò aë
r1llaë"L al1. 111 cé
Imt, ocur a1dI5111 fe01P no al1.baI11.
ua"Lha lIItl.
-='
tff
2..qf;.II.
..,.J-.
.J,L CC J'a1t a
a 'Oun 11.15, tel' map,q:!,a'Ò ni a1'Òtt5, tm
ap, 1)Ull1.5e
"
".[) caë 'Oep,c 'Oon_a1t1'u, 'OÓ uip, caè 'Oep,c 11.0
Ult1ll1'Ò1 ann .1. a 1'on'Oa
ocur a rat@, ocur U111, min a C01llUlCInra
ap, a lWlp; ocur 11' c
al11.e
m;a m 1ut, co lWICI reë
nan1llan'Oa '00 lien rreltb.
.,t tLl h
. C.
os' L\)'þqo It
. ,..,.". C ..J.C,
'G a1 ftE1tte. rmaém m1llCe'D Ç!1!Çt1 1ap. rOEa1t 11a'DU1ù
-
?
I When it Í8 n king'6 'dun '-fort, 9"c.-The text is ob
cure here, nn(1 seems
c1efeeti,e in the original. The paragraph" ith
ome variatiun is given in O'D.,
1 Gï4, as a commentar)" on the clause, .. Uooting the enrth in (Iistinguishec1 places."
· t 'li6 nUlI"lradh '-fOl.t.-Probably a churchyard; 'mnrt) res' appear to bave
meant 'relics'. Vid. O'D., 1674.
'I O.ð-lb7"(. cW.,v 'f'1t I uJL
de
CA</v
'1"
'1.
Ì't111'"Ì 1
'r
YVU.I.,,f: ./.'1M t f- -J. ,.f.. ./,MtCl.-
t' .t '" .(, f-wJ \01 ) -r tN(VfV
JLDmIE
TS OF CO-TEXANCY HERE.
87
a;; henhman with them, or the care-taking which the law requires"' J
DO-
over them; a yoke. for the pigs; a hood for the hens; ties of
leather for the goats; a spancel for the yearling calves; a shep- A"CY.
herd with the sheep; a herdsman with the cows. aIr. /S1I9"
The case where the fine for definite man-trespass is due is when
he (tlte trespasser) left them (tIll' mttle) near the field of grass or
corn, and he is certain tllitt they would go into it. The fine for
douMful man-trespass is due when he is doubtful whether they
,\Ould go or would not go into it.
If they arc váthin tltefield as long as that they might be driven b b Ir.
out thrice, it (tlte pfJnalt!/) is full fine for man-trespass; if tlley are Brf "!Jllt.
"ithin so long as that they might be dri, cn out t" ice, it is two-
thirds of the fine for mall-trespass; if tlley were l,;itltin tltefield so
long as that they might be driYen out once, it is one-third of the fine
for man-trespass.
trw.Ø
'Vhen it i
a cas" qftllC violation of a 'ncmed '-person's clllt'l'clt ad -t.l4. l- )M
or sanctuary, it (tlrejìne) is not the same, úl,t an ounce of silver Ù;
tIle fine for their rooting there, and this is charged upon 3 X 7 X
4 (84) animals ofthc onc hcrd (cattle úelon!Ji'l[J to one man) after they
h,n I' gone over tlte fence different times ùy different gaps; or
upon three times seven animals 1mtltiplied l)y four (84) of different
herds (possessions) wIlen they ha,e gone over once by different
gaps; and if it be 1>y the onc gap, the 'smacht' -fine shall he
only ul)on the first beast, and compensation for grass or corn from
tlte oumers of them all.
'Vhen it is a king's' dun' -fort, 1 or a 'lis martradh' -fort 2 that
is trespassed upon, let every hole made in the place he filled with
, cric ' sod," so as to be tantaTnount with the clay of each hole that
was made therein, viz., let it be prci01">ed and stamped "ith thc
heel, and let fine clay of thc same nature úe placer[ thcre after-
wards, and the ext-cnt to "hich it runs, is as f,u' as sen:n animals
of the same pas ion (Ilad).
The additional 'smacht'-fines for instigation are to
bc paid.ïn five days after damage, for tres!las:; without
. '.E;ric'-30d.-The Iri.h w(,nl which Dr. O'Oono"l'"nn has
translnte
i8
þNJf.
Þ Ik
. ("(11'51'"[;,' the usualworc1 for' oilnr,' eyen in the spû\.en Inngunge ofTIle present
..
da). In O'D., IGi-l, the reac1ing is . nrgat,' which nppear> to have the same -
IDem1ing, Loth terms being Celtic form" "r the Latin' nrgelltum'.
JlDG-
. Irità !\IF.S"TS OF
(
Cn-T
.s-
,.., VIv lðkI ANCY.
bp.eadla eOtllaH
hcefa Utl'DfO.
r
a can'he cen na1'Dtll tlaefwb. 'bamy:>11.5wn L mb t1.t115-
t techráJ 'D(( quan a fochp.H1ce 1f e ({ rmaët".
'Cm 1'SILLe rill aét;a .,. anai> t;1'e1f1 ocur '01t1m C
tl 1.'01' in
rmnCt;, .1. no na rmatt;a nUfi t;Úl'rH>U na seLLa t;011Ut116C11Q. '00 t; 0 I'gft;a1l1
.r ((1' cù
è t1; no 111 ni rmgft;mst!,U.t I'e hell'J.e 111 cmml'; 1'1f1 t;al''O!!!>na seLt!!
t;011'1t;11n6c11a '00 t;0I' a(;t; a111 ual'Ï> alt
tl, ill t;an 11' arl) UlL a emas r ém
'Oú cín a 1'Ulb.
88
.1. 111 Ua1t1 If arilulL a C111aI'Ò p
11l 'Oó he, '1' ana'Ò t:)1.e1f1 fOtt 111
Pll ad!" !:", ocur 'Oltí1ll C ÚIC t1. 1n r:an 11' wÌlulL C11lwË nínbLe.Q5aín
'0 11llUtttto, '1' ana'Ò CÚICt1 fott 111 f1naër: ocuf 'Olt11l1 r:p.elf1 fOtt ín
pnalT. OCUf '1' ann 11' ati hl1L a C11l
p:11l '00 C11l a t1Utb, 111 r:an
m:::a 'OIL 111 C11IWb '1' 111 tl. ob feln j ocu)' If ann '1' mÍÎU1t C11lU1b c'T-
n111bL
5a11l 'Oó, cuI}. tlatt111a puL
7) Cen nal'Om naefalb, .1. cm nm'Om narCa1l'e 1'11''00 J1.ü11,-nuarcafa
t/h't/b ,,,I 1'e comaLLm commtc6fa. 'bat mo1'SUlIl, .1. 01'5um in b1W5(( ltlf na CUII'
'0 1 1\S6t;m'Oe Ifln 5e1l111te. '"Oa t;1'1<<1l na 'O e 5 C I'61ce, pnaccu UlL 111(( relrocur
1I1a mIlUm, Iffei> fUlL 1I1a relr nama.
l/otr4"1 otJlrLD'b40t) i\.5.nw
D
{)
t s"""",,,"
[)C.
C'-3.,. X
- - - __ .---tJc-
"0 ? _ A [)tJ.IO
111((ët"a cffë(( tWId1e,ltll CUtlla tDono,'rm((ër ratllFuaët"a
- ) I T 71.0
4<
,^a,. OC)( 1\
OCUf 5((11llFuaèt"a ;1'11 cutlla 'DOtlO c1'D c ((è tlllf 'D1fUI'D1t1.
'-ð CCrùep.(qt 7)ono fec1l{; mlfa 'Dlb 1-11.1 fatllFua{t", ocur ({
CÚIC FJu 5 mtll FuaÜ;; ((11 ml 'nt1'Dltlac11 'Do etLtuuch, ocur
LJL1
tlllf1 r a111 t W 1'D, ocuf q1.C1111fa a11 f05tllt111l FJu r((tll-
-. 'J,
c. I f1wèr ; CÚIC tlllf(( 1tll t111.1lO , 1-11.1 5a1llFuatr,r qu tlllf(( 111
5 U1tll 1 tl 'Ò, OCUf 1n 'Da 1111 t"a1fec1l
'DO e1l1 wc1 I FJll 5 a1111 -
'oS' fuag;. k qtutlla r111a
w 5eltll11.1'D Ot'DWt"1 ftll((chw
r((tllt W1 'D,
1. 1rtltl1t"h
beo beadl(( tla mbo ot'D((f a d. Ii. 'IR I)
'rr"....dj .- 6"<t-"f) -u
I r",'m-Law..-The word" mb!W1;::;l'ecl1t;a" hM been written oVer the words
"'0(( q\1an .. in the :illS. by a much I.lter hand than that of the original scribe.
· 'Smacltt'-jìlle.-SLe p. 31 (0'0., 2171), andeompnre wilhO'D.,402. "Qucstion
- How arc land tre'pa"es caleulatcd? -From the rents, i.e. from the full rent given for
the I..ml itself, the prolitaLle or unprofit ILle gra's-]and "hich is injured is estimated.
T" o-thirds of the rent is the fine, i.e. hi o-thirds of the rent which is charged for
a 'tir eumhaile' of the best land, for three-quarters is the fine for I feis '-trespass in
n meadow of winter grass laud 0\ er n r ull feuee, i.e. three I Bcrepalls' upon it for the
three-quarters, and t" 0 'eerepalls . for ' feis '-trespass in "iuter, and one for' feis ,_
trespass in the summer, i.e. the one-third of t!.e three 'serepalls.' (II. 3, 17,
01.30G.)
A pa
lillge similar to th,s very obscure one occurs in C, 2;;.-treating of the trcs-
JIJDGMEXTS OF CO-TEKANCY HERE.
89
giving further legal security. For. winter trespass in
the farm-laws 1 two-thirds of the rent is the' smacht'-
fine'.
The addition a1 'smacbt'-fines, i.e. thereis a Bt
y ofthree days, and a delay
in pound of five daYB for the paymeril of the' smacht '-fine, i.e. or tbE' ' smacht ,-
fines witb wbicb are given the addItional pledges are to be brought in five days; or
the thing wbich is commanded b!llalD as '",ie '-fine for the crime for which the
additional pledges are given, is to be br.:>ught by him in five days, wben tbe crime
of rus beast is aB his own crime.
J UDG-
IIE
'"TS OF
CO-TEX-
AXCl".
That is, when it is to him like his O"wn crime, there is a stay
of three days for tlw paYllU'nt of the' smacht '-fine, and a delay
in pound of five days. "YJlen however, it is as the crime of a
kinsman,. there is a stay of five days, and a delay in pound of
five (l.t.ys for the payment of the' smacht '-fine. And the case in
which his beast's crime is to him like his own crime is, when the
beast itself is value sufficient to pay for the damage:- and it is' as . Ir. When
the crime of his kinsman, whenever it i'l not of tltat 'CalUÆ. the vo
ue 0/
the mme IS
Without gifJi..gfu,.the,' legal security,.i. "ithouttheguarantyof a
" the bead
coutract-binder, according \0 new knowledge f(or oboerring the lau's 'If co-tenancy. Itself.
'Vin ter trespasB, i.e. trespass upon the farm "ith the prop<'r regulations
in the "inter. T" o-thirds of the fair reI1t, the 'smacht '-fines" hich are paid fo'
'feis'-trespass and 'airlim"-trcspaSi!, is that which is due for 'feis'-trespassalone.
There are difJacnt 'smacht '-fines every quarter of
(/ yca]",
ut the' smacht '-fine in the hot season is not
the same as that of the cold season; even every month
of these scasons is not alike.
Seven months of them t/ E 78'
are included b in the hot season, and five in the cold b Ir. .A,'e
season; the last month of spring, and the three months sa,dfø r .
of summer, and the three months of autumn, are called c Ir. For.
the hot season; but the five months of the cold sea-
SOli are, the three months of winter, and the two first
months of spring. The' smacht '-fines of winter
are heavier than the' smacht '-fines of summer, fur
passes committed by s"ine. It runs asfoIIowq:-"What "as in the old judgment.?
-Every pit that was rooted b!l8wineto befiIIed respectivel)'" ithcorn, otherasaywith
bntter, for the)" deemed it lawful to make good the damage done to tbe earth by its 0\\ n
produce. llut this was after\\ardschanged tocompeusation for the thing injured."
· A l..imman.-' Inb1eogban' means a man's 60n, grandoon, relative, or an)" per
on
for" hose erimes he is re'ponsible.
'It is.-Literal1y " and where it is the Bame as the crime of tbe kinsman i
" hen-
eYer it is not,"
.
:l-l3.u.JiIJv tt3;' 1
y
t,
Of )k
-\ t"l'4- t .
I<Jll;"'1
L o
2-Ibg-)
A:
C
l/J
s
(tJ'JJ
/b9)
90
b J 1.eadla eoman:;11cera atl'Dr o .
Jnm-
II
rs OF
<';U-TES-
A
CY.
1l5 ea p;t;, Ul1. 1t:......5e1111t:hel1. Felt 1 rWlJl1.(CD, lI(,t:ha 1m11Jll1.O
111 a tl5elmp.e.
8m act:a caca p.al t:h e, .1. íní rmaÇ.t:wp;el' m sac I'wt:he. tJI
cu m a 'Oon 0 rmact:, .1. !locacuq!:umallli rmai:t:W5t
I1='05wL'00'Oenam
,.. at:eafmq'amp.wi> ocuraruact: in Ee1mp.li>. 111 cum a 'OOI1Q CI'O cac
11111' 'O l r UI 'OIU,.1- noca cut:l'uma t:famm5l'Ocac mil' 'OOl1a hlbc('õahlfin,
.1- mi t:eafa m t:faml'm'Õ ocurmi ruact:a 111 5elml'e. 1 t: t:p. U m a 1'm act: a
Eel m P.I '0, .1. 11' t:l'uma il1i 1'mact:m!';tsp. Ifln r05Ç!!.L '00 111m; na l111înlLe
11)'111 5 e1m l'e oL'Omt:e na ne1cl1e pllact:m!';tpp. Ifill rosmL '00 mat: l1a
'OhIllIl1ÙJlfl n t:r a111 I'm'Õ. CCp.lrl'ult:he beo beat:ha l1a111bo uL'Oar
a n 5 e ({ l' t: .1. If umfLe 1111 '00 bell' beta 'Oolla bumb Ifill 5e111111.1i> i1H(f
ini '00 belp. Lact: 'Oolb Ifln ,t:Ta111I'm5' C( It It: 5 e 1111 t: h e l' re 1t I
l' amp. a i> .10 i)' he 1'0 in rálJ a'OlI5slmi> relt Ifill t:fw;ll'ul'O. NIt: h a
1111 u p. P. 0 n i a n 5 elm It e .1. nQ!:a nei> a p.ata bum ill rep. '00 rar If 111
W 1)eI1111'15'
ec..urL''Þ U '-') Q.,,
'''' ,
c ....#
f}.,1 0 arbellal1. r maën ( r am l la 1'D ;"'" m1uë caë a111.L1me Ul1.
u._ '?\oV". c.o þ., I;
recht: nanmatl'Dwb" FlU erham 11'01"51.1111; L
t melch ma
n u achbp.on'D(('l) ; Let melch FIll m011l FIUll'Dlr ; Letmwch
caë çgyt5wb 0 'Dam co 'ì)altt:a1t
ìU felr. k 'Da m1((ch
v 1mWllO, Fl1.1 5eamFuaër;.
.- 4MM1I (!
t. ?) CMJ.., 4yiJr 0 d4.m, C4
C 15"63
1. 11" 10,-#. I
lD'{, lR)
'Ð"."I/II
Urbep.ap. rmact:a f am p.Qli>,.1o 1tal'Ot:Wno wf11el'Ot:ftl.lní rmact:-
mstw 11' m r 0 5IQ.L '00 mat: na 11111111Le 11'111 q'aml'!!!:P' 1111 ac cac QlI'-
LI me, .10 mlUcl1 If e ni mrnel'Olt:l1
ap. f6ct: nanman'Omb 'Oaon
reILb co
l1a n'OuL allunn aon rect: t:alt aon bel'1jíi> I nmltbm '015um reOllt etmÏ1ull1
h t:ra111 p. m i> . Let melch ma rp.1 at:hbp.ol1'Oa'O. .1. nl(ci> rl'l bp.om>ai>
5\1 héilt,.I. ((Ip.Llm at:hLU1mpul'e reúlp. etama11l r:1'amp.((Ii>. Let m elc11 rp.1
m0111 rltln'Olr, .10 I r81r atLumpU11le mon<< ramllllt:<<, 110 c((lLLe ralll-
I w t:f!. Letl111acl1 cac cuLSQlb 0 'Oam co 'Oaltt:Ql5, .1. ap. fect:
11<<
nJ111U1l'Omb a r61r '015UIl1 remp. etamull1 5I!íml'et:a, ocur r ect: mg:g Let
o me1ch '00 CUI'O 5ac <<nmun'O((I5 na t:U!) ap. ((11''0 ml'O. 1 t: 'Oa nll ach
II1lUP.P.O rp.1 5eamruact:, .1. I r61f m;hLumpU1JlJ remp. et:hamull1
S61mp.e, no I nail'Llm '015UIl1 reúlp. etal1l!!!.n 5emlp.et:
. '
t.lM>\ÞI c..
11' eum
t rmaë'(; eaë mít 1 eomm
I'[' oeur 1 'Lo<<;at nadrs abata ,
mìlÇ!!t lfb
1 l1'1n }::mnn1U'Lh }::1'Lhit; eo....n5elt 1115en t-111 paeml.,
h . t . 1
c.. h
cL""1T I".
t
oeuf eOnH>lp.e cae naer a 1 rose 'LalJ, eOn5elA.lL 't>a 't>Cq1L
1't> 1'ee
11 J!.. 74.
2.L\O
. w+r..
A IS '7 I Food.-The "ord 'beta,' means also life.
,. 1.' O'/V IJ )
L, 'I
, 0 · Finns/'uth Fithil-law.-A trnct on the manner of passing judgments.
1{ \\)Ð. v
......
JUUmIEl'\TS OF CO-TE!:\ANCY HEllE.
91
that which supports the
ows in 'lcinter is more pre-
cious than their produce, for grass is produced in
Sllmmer, but none at all in winter.
,T"DH-
U
T
OF
Co- TEs-
^SCY.
There are 'smacht'-fines every quarter, i.e. the thing which is
commande,l 10 be paid as 'smacht '-fine in every quarter of a ) ear. The
, _ m a c h t '-fi n e is not the sam e. i.e. the thing which is or,lained to be
plid as 'smacht '-fine for trespass committed in the heat of the summer an,l in the
coM of the "inter is not equal. Even every montb of tbese is not
a I i k e. i.e. it is not alike that each of tbese months is regulated, i.e. a montI,
01 summer heat and a mouth of winter cold. The's m a e h t ' -fi u e s 0 f
win t era r e he a vie r, i.e. the tbing which is eommm1l1e(1 I" be ]",id as
'>macht '-fine, for tbe trespass which the cattle commit in tbe "inter is heavier
than the thing orl1ered to be paid for trespass which the cattle commit iu the sum-
mer. For that \\h;eh supports the CO\\8, & , i.e.moreva
uableis
the tbing which gives foolÌ\ to the cows in the ,,-inter than the thing which
(.;ivesthemmilkinthesnmmer. For grass is produced in summer,i.e.
tbis is the reason, i.e. grass is produced in the summer. nut 11 0 n eat all i u
win t e r, i.e. it is not that I say that .;rass grows in the winter.
Let the summer' smacht '-fines be statcd; a sack is
charged for every 'airlim '-trespass upon seven
animals into a profitable meadow; half a sack if into
after-grass; half a sack if into a mountain; half a
:-;ack for the' feis '-trespass of every sort of cow from
an ox down to a ' dartaid '-heifer. There are, how-
ever, two sacks in the cold season.
Let the summer 'smaeht'-fines be sta ted, i.e. the thing ,\hich is
,'nnmanded as' smaeht '-fine for trespa,s ,\hie'. the cattle commit in the summer
i. to be told or relate(l. A sack for
very 'airlim '-trespass, i.e. a
.ack is tbe fine \\ hieb is mentioned a
imposed upon seven animals of one herd
.\ftcr going over by leapinJ:: onle across one gap into a mea,low of snmmer grass-
l.\I1d. II a If a sa c1. if in to aft e r-g r ass, i.e. if to trespa<s quickly, i.e.
by leapin(.; into a pasture,l field of summer grass-land. Hal f a sac k if
iuto a mountain, i.e. for 'feis'-tre"pass in a pastured field of summer
\I1ount.1Ìn or Sll1nmer \\ood.' Half a sack, &e., from an ox to a
, .1 art aid '-h e i fer, i.e. upon se, en animals for' fei, '-trespa's in a meal10w of
":
lter gra<
s-IRnd,
e
th;f
ack is the portion ofthefille for each
animal, which he IH
t t
en:'7"''Thére are, howe' cr, two sacks
i n the co Ids e a son, i.e. for' feis '-trespass in a pastured field of ,\ inter grass-
l.\I1d, or fo
'air\i
spass into a meadow of winter grass-land.
..l 'cum hal- if! tlw ' smacht '-fine for e\-ery beast in a co-tenancy,
au' I in taking forcible distress, as is said in the 'Fillllsruth Fithil'-
la\\ 2-Anail l'at
"'it1
a tooth, amI equal 'dire'-fine is pai(l fur cattle
of c\ cry age for fecdllig, fur h\ u 'dart-aicl' -heifers ea.t beyund (more
<14/1í
-
14.- J
92
bttem:;ha eomwdlccrCl U11'Dr O .
JUDO-
3[E
TS OF
CO-TEX-
ASCY.
tW't>mil. 1 Llt1- 't>lbçt!'> m:;a ill cOmeClItl fill, 06 11 , I cOI1la1êear, !lÇ>
1 conWClIt1- aLa r UIl 't>. e
t
"""C "'-. ..
o a5 ro,sJwnaJt t:Tjt CO cen'D mbL1(('Dna; t:att61)'1 n5 em -
. . . b i ....., c l ..w<<t-Ce .I'
U((CL((, no ((E ep flU 'DC( qu((n ((
oc Jtwca {;((1 t61 f1,
r; ocur u ntl Lmr In FCUtt oJtSCatt U1l"D.
o C!lbl{O'IIIGJ)
o t 101 L. .. )
01
'1' .
CCI; ):0 cll.en (()1 \:; I It co cen'O n1 bLI a'On a, .1. a5 'Oe't>cennm;s'r 111
):
)1UIl1I (IJt ): Oc1l ltuIC co cen'O mbLw'O'!!:!, .1. In "[;ranlUlrC 'OlÙJe)1a1' I ):Uc1I-
1' U IC,.j. ):Ud1ltUlc fe011' o lt 1:1)1 "[;1'í cumoL. lU)1elr' ns:elmfuac"[;a,
.1. "[;a1'clfI na ):o;:;La '00 nk;n
0 fuac"[; an Fjt7Î11'L'Ò, a L
t ):e1cnf1'Ò(', .1. Let;
O'D. 403. 'Oml ):elch 'Ot1111efU1tJ conll"[;aba1'"[;U1i; ((1) "[;rUn1
C íf1n
olt Lall
nle, [OCt1r u
L6"[;n mar ;san Imme], .,. rm at;LQ1IIpUl}te 1-'eUllt Fr;l1eanlmll 5é"III!
, 110 ((
lI'OI
U1ll 1I10na 5e1ll1)11'Ò, 110 cU1Lt
ï=;e11l1IH', no m:hbUU1Le 5C1nl1'1'Ò. 11u as
bel'l flu 'Oa "[;)11((n a ):ocll1'('(;a "[;((Jlelf1' .1. oi; bel' f1U '0(( "[;j!1Q1I
IHr ):oC)t('ca, .1. n(( rUm
<, fUlL all, "[;11' "[;)11 cUllla!.., .j. ín cotvac oc"[; r
llC-
IS" v uLL ):UlL "[;a)1 e1 f1 tl)10 'Oa cU1l1gL ílla ):oCfle1C; I
aTI vel' pu '0(( "[;ll1all IIll
rúlll
ce a"[;Ú Ir ín foc)1e1C, 'rr
'Ò ([\:;a '1'111 f05c:!lL 'bO
lIídJelt lur 11((
r e l t ((n'OU1b c
lIa 1 ):uaf."[; Oil 5e1ll1It!.-D, .1. all "[;eolW c6t}Wlme na rum!!ij:ce
UII'Or1'DeIC hí, uc"[; 0('11 rCju'p
llama no: I:U;S
u1' U1ll'O ((11'0; 122 'Ou!!Q.
C,J\1U, dn co pilL ochl: aer coLpa
OL"[; rSlteop aLL 1Il'O"[;I, II' 'OÍlI1UllCjuu"Ö
to Lprmï=;tJ nu b'r'TI (Ii"" ( 1;'1HJ ní )1'1' 11(( pu Ú'Ölta cQtlll.l1l1le 11(( rlln1!!!.rCe
hí. (lcur <1 nIt 1,((11' III relqt oTl5"[;ajt ((n'O, .j.are)1an"DLUlríll relt
'OOll1l:hql all'O '00 o1';:;UI11, .1. IUI' 1'6 I1(l ):OC)!CClr, íll "[;<1n 'I' all rOCJHJIC
"[;!!Ça"Ö lIe; no (( relwn'O ac III ):111, '00 \lIdle)1 an'O I ):05 mL , .,. 1Q1' níc e}1Cll
(( f 0 5 L a 1'11"
!)
\S
tf
t.zrJ
II (J 'høt.r. "1' Lf )
-Ikt: t.tf"V
",Ç" At;at{; atttbmení1a ltl1a"OIc11et; rm((chm; caë ("(lttL1m
t ua com no 'Dtl1ne; no H1Jtbm nmblL no omna, no aqtbm
nelcne Clp(1.
I JOillt-S'o,'''illg._ That is putting an equal stock ou the land.
· Rellf.-' ]:OCJ!U1C' i. here use!! to denote the awa,,1 or pdce, hire or eompens
tion
pail
or contracted to be gh en, for the use of Ihe lalld for one )'e.lr.
· Against whom t,.csl'uss i.. co.nmitfed.- The following seems to be the meaning
of this very obscure text :-" A calf is the rent payable for land taken IIl1til the
('lid of the rear; ill the case of a tre'pass committed from the eommPII"emcnt rof
the cold season on to the en<1 of the yenr, a calf is the fillE' p
yabJe, or a c.llf whit-h
is worlh t\\ o-thirds of the value of such a calf as ,houl..!. be pai<1 for the re.JI,
(which wouM at that t;:ne be a 'smnhai
e '-heifer); and the bUill upon slleh )la)-
ment becomes the property of the Illan agaillst "h0m the tre'pass LS comlJlitte<1, or
of the roan" ho pays the fine.'
JrDmrEXTS OF CO-TI:
A
Cí HERE.
!):J
tlwn) the Im.gc:"t ox. In a 'tliLulh '-I:11111 thi<: juint-! .ocking I is
made, and in a co-tenancy, or in joint--stocking it is 11Cre.
A calf is the rent which i
paid for land t(/l;en till
the end of the year; in the case of t1'CS}Jass commit-
'I'd after the cornmenc('1n('lIt qf the cold season to the
('lid of the !fN(J', a calf is the .fine, or a calf which iR
worth two-third:::; uf the rent afterward:::;; and the land
1'eJlwins with the man against whom trc
pass i8 COlll-
mitted in the case.
A calf, &c.,,, hich is pai,l for the lan,l till the en,l of the year,
i.e. a calf (the p,'ice I)f a ca{f) pays fur the land which i. ltf for hire (/'mt) to the end
of the ye:lr, i.e. the' samhai.c' -heifer" h;ch i< hÎ\ en as relIt,' i.e. as the hire for the
grassofalamlof (worfl.)three'cumha!s.' After the cold season, i.e. after
the trcsp.'l<swhich is committe,! in the cold of the" inter,I..,li the fine fur this, i.e. th:lt
'.amhaise '-heifer is half the fine for douLtfu!mnn-tre<pass over a full fence, amI the
half thereof if there be a no fence, i.e. into a pastured field of "intcr grass-land, or n Ir. With.
into " meadow of "inter mountain, or of winter wood, or a winter old mi1king- Otlt.
place. Or a calf which is worth two-thin!s of the rent after-
wards, i_e. a calf w!lieh i< "orth t"o-thir,!s of the rent, i.e. of the'samhai.e'-
hcifu which is paid for a lan,l of three' eumha!s,' i.e. the ' eo!pach '-heifer of the
mllle of eight.' serepalls ' "hich is t<> be paid for a l.md of two' cumha!s ' for its
r, nt; or, 8 ealf ,,!1idl is worth two-thin19 of the' ,;tmhaisc '-heifer" hid, is !)aid
fur the rent, it is it that is ,)(<Ïd for the trespass "hkh is committe,l on the ":lme
1.tn'!s in the eo1<1 of the" inter, i e. it is !Jit'fIt for three-quarters of the value of the
.
.mhaiBC '-heifer in this case, e"-cept one' screpall' only "hich "as not brought
f"rward here; or iJU!eed, accordin!J to others, although it (the calf) has Lut the age of
a' colpach '-heifer of eight' screpalls' value, it is from theexce<sof the improvement
rr ,ncrease that i
upon it that it is wort.h three-quarters "f the '
amhaise '-heifer.
An,l the 1an,l remains with the man against "hOln trespass
i< eommitted,- i.e. the lam1 ,',,,wills with the man who is trespassed upon in this
case, i.e. after the term of the rent, "hen it is for rent that it (the lantI) was given;
IIr, accordin!J to others, t.he laml belongs to the man whohaS LOwwitt
d thp trp"pa.' 8, ItVAv
i.e. after his pa)-ingthe 'erie'-fine of his trespass.
There are three 'airlim '-trespa;:;ses fw.' which i!9-
'smacht'-fines
.aid: every 'airlim '-trespass before
a dog or a man; or an 'airlim' -trespass Ù/, consequence
of heat or fear, or an ' airlim '-trespass owing td any b Ir. Of
kind of violence.
Jt-lIG-
:r.1E
'I'S OF
Co-TEN-
.A
CY.
In O'D. 403, the foUo"ing condition is aIMed:-
"If it be winter grass that is trespassed upon, two-t1.ir<h of the rent shall be
the fine, i.e. of the rent which is paid for a I Tir-eum!JI1ile' of the be
t land .chich
is /,;,'ed for three-quarters of a year. There are three heifers as ,'ent upon it for
the three quarters; and h, 0 heifers, i.e. the two-thir<ls of the three heifers are the
fine for' fds '-trespa<s in a mcadow of snmmer grass oyer a fun hedge."
94
b l lead1(( C01TIc(H:;hcefa an'ûfo.
Jl'DG-
["-STS OF
Co- T....s_
ASCY.
c)e'l'ðZ 4J.f1 4,')fe.fr
'Can:: alP.tl m en'Da, .1. m::a1t: tmmenna 'DO 1l1m::rop. aI' m 1-'ep. no ap.
m ap.ùap. OCUrelm'Dlttm::reI5 wt: can rmaët: op.p.a an'O. Caë alp.tlm
p.la COIn, .1. a5 t:elte p.la co,n. 110 'DUlne, .1. as rete p.la n'Damlù.
(('P.t, m n mÙI t, .1. ín t:an ùlr U1uett op.p.(( p.et:e/rnSl,émc. 11 0 011111 a
!) .1. p.w cp.elch, no p.ec01b'Om. 110 ((11,t,m nelcne CIPf1, .1. clùe'Ò eISEn,
.1. t:op.unn no t:ene 1 rosnen.
8maç"L '01(( Ct11Ct1 lúp, PEmt cona rOC((t cona CJuwf
, 1- tt;A OCt1f a tom'O((l:a. GFClnlÙ fmlJ:Ç."La caë/cOlll., L)l1a11 fon
'01 COltlce wtle.
Jo
C.e!f3
10 ma'þ'
rOrCc(1tt arttClat1. an'O a "Laeb no a nc(1tlcen'ë',
[ ''''':\.. M.C- t .J).",C
,.r o.....n.Pma rep, ro,m'O, no relt f((mta, 1Catl a cmclle C( tle1t1 nn
commc1í1J2.) t-wA-4
fo1Jt/7i)
maët: 'OIU CUICtl, .1. 1111 f1naët:rostep. uai> 1 rOl'
CÚICtt Wtt
I l11)enam na r05t.!!, .1. 11([ melë, .1. (!1l(('Ò t:J1Rlf1 rOlt ín rm((ét:, OClIr 'Dlttm
If c;[ic t1. COlla rocat, .1. 11(1:I111ach, .1. n((f1.uù re(qtù 1Ut:e;. Con(( cp.uar,
.1. n((p.uù t:ror. l om'Oat:a, .1. Sltan toÑJ5"t: ton:C01l'Da....re1l1a rtere, .1.
5!!p.uù 'Dm:a he ocur 11e t I, .1. cm (.t1';' 'Ctielnlù rmaét:a c((ë
COIP., .1, qte\1l1ll5a'O ap. 111 rm((Lt: 'DO p.elp. COIP.' 'l:p.lan ron '01
COI p.ce al p.e, .1. t:p.wn a mÙI'Ò ap. m COIP.CI ocur ap. m'6 eop.l1ros, 'r re'Ò
2Þ ((ra up. 111 C01p.ce aonup., ocur '00 t:p.lun Losa
il'
111 a rep. rOlt ((I t t, .1. ma rep. 'DO OOp.ap. 1f'11 rep. elts ap. pm U1dl-
1';11)((, .1. ma reI' edlUnn p.o'yp.on'O(('O an'O, 'D1(lùtu'Ò '00 reOlt unet:lllflln t:((ll
a elf' munabfUlt et:h((m U151- C( t:((eb, .1. proa. 110 (( nUlp.cel1'O, .1.
5((1P.1'D. n1 a rep. rotal'O, .1. na cmtts. 11 0 rep. r((m t((, .1- n((
2.("mona, .1. ín <ftélùe. (C P.CIP. l1a commchl'D,
.,. mt:h5!!! ((11 CÎ1l((15 rín ....
((mUll, 'r P.1UP. l u r Ill[ commc1l1ù, .1. ap.'Omer 'DO;Ura n<< c01m((1chl'D mp.,
mUl1a J.'UÉt:gn relt a commmt:h m'O ap. ron mdl5enu, ocur neniJoot remIt
(( commcl11t:a m51 ro'Oep.o:.
'f.C6{,t
D,.IIP. LGJ-4)
'O"'Ij'&')
'tit!.
ø COoA/ftk- Þ
.
)t Ca1fl.-can ml"('elt cmchQ. LItle 1 af a rochttacmb; ma
"""'"1-4 c '"
I Fea".-Dr. O'Donovan remarks upon this-"The glos
is here trausposed, and
should be restored to its proper or,Jer \hus:-
.. Fea f, i.e. of thunder or lightning. Or a n 'a i rI i m '-t.respass owing
to any kin d 0 f ,. iI)' c n c e, i.e. before a foray, or before plundereri) or nny
violence whatsoe,-er."
JUDG)IEXTS OF CO-TEXAKCY HERE.
95
Th ere are thre e 'ai rl i m'- t r e spa sses, i.e. there are three leaps
which are made upon the grass or upon the corn, and they are freed from paying
'smacht'-nne for them. Every 'airlim'-trespa o 5 before a dog, i.e. in
runningoff before a hound. 0 ram an, i.e. in flying before men. An' a i rl i 01'-
tre8pass in con,eque..ce of heat, i.e. when they (the call1e), are run-
ning from the heat of the
un. 0 r fear,' i.e. before a plundering party,. or a. Ir. Prey.
band of depredator'. 0 ran 'a i rl i 01' - tres p ass owing to any k in,l
of v i ole u c e, i.e." hatenr yio1ence it may be, -i.e. thun,Jer or lightning.
JI:DO-
lIDii"N OF
CO-TEX-
AM'Y.
'/.fT}1Aa),- a;... tvJ4
- )
Iia<- ttt.
'Smacht '-fine is paid in five days after tresp3.
'"
with testing of the grain as to hardness and bare-
ness. 'Smacht '-fines are thl'OO fo ld by }'ight, the
third of which is set aside for oats.
If it be one kind of grass that is paid for another
at the side or at the ex.tremity of the field, whether it
be hidden grass or coar
e grass, let the fines be paid
96 'I, ýl:J r
according to the ærbitration of the co-tenants.
'Smaeht'-fine i, paid in five daY8, i.e. the thing "hieh is com-
mall{l
d by laID to be paid by him b is to be ,'ellde/'ed at the expiration of fiye l1a
"S b Jr. F..om
nfter the commission of the trespao
, i.e. 'thesacko,'i.e. there is a stay' of three days him.
upon (for thepaynunt of) the 'smacht'-fìne, ami a delay in pound of fi\"e dayS'.
""ith testing, i.e. of 'the sacks,' i.e. thnt they arc not bitter (folll or maze-
1..;.h). As to
rdness, i.e.thattheybenotmoist. ßarenes.s,i.e.thegrain't< . ß.M"
Art ,L.
"hich they cat bare, t
at it be not dirty or charrl fi.e. that it be well coloured and
} ...,
Lare, i.e. "ithout chaff. ' S macht ' -fines are threefold by right,
,,
!'?3
i.p. there is a threefold division of the' smacht '-fine by right. The t hi r d 0 f
which is ,et aside for oat8, i.e. the third of \\hat is for oats and for
b.nley, is for the o..ts onl). and its value is one-third.. . Jr. For a
If it be one ti..d of grass that is paid for another, i.e. third of il$
if it be grass that is given for another grass as eompens.\tion, i.e. if it be ri,"h t'alue.
grass that has been spoiled in this case, let him (Ihe tr",plUse.') give t\\ ice the
quantity of poor grass in return for it, if lao has not rich grass. A t the
s i ,I e, i.E'. long. 0 rat the ext rem i t y, i.e. short. If it L e hid den
g r a s 8, i.e. of the wood. 0 r co a r s e g r ass, i.e. of the monntain, i.e. of
the moor. Ac cord i n g to the co - te n
n ts, i.e. the compensation for
that trespass ü according to the opinion of the neighbours, i.e. the
n of fH""I' ,,
the neighbours /Ùcides upon i
, unless grass equally {,'Ood is obtained for it as com-
pensation, and his not ha\ ing grass of the same nature is the reason of ils being
decided by ar[,jtratio...
Question-How are land trespasses estimated
-
From its rent::;; if it be winter gra:;s that is injured,
. A slay, i.e. the period during which cattle distraille,l remain upon security in
the hllUlls of the owner j but the' stay' comes first, then ' ,lelay iu pound' follows
it, and then three ,Jays of gmce called U t:p.elJ'1 uncc1mmste," in the Irbh
Laws: I'ide Senchus IIIor, vol. 1, p. 79, et It'}.
"1t -tc
tf.tJ
1)
. /; 'I J
96 bJ1.eadm Coman:;hcera afl'Dr O .
J ....
c "",c.
}O'.F.
F 5mmt
!: l lO hOl1;snqt cm'D,c''D(( quan (( 'I'ochp.ac-I 1fe a
'C"oL [Ð'blf ov ) c
:.
:- cm
;øm((r f((mfep" 1r qucm.
- Cmp.-cal1 111n:;ep. calcne t:lp.e? .1- comWttCl111 carfr
a me1rem-
. . P.:.
,J.J.r.., 11U1SZ:;f'P. 11(( clnt:a '00 mdlelt P.lfll1 rep.al1'O. cCra focnp.acmb, .,.vap.
W'j"'-
"111 r
_al111 rem P.0f111IH:;(!)t mrep. pt:n am 110 al1et:n
mlttt:!J.t al1'Oo II't ((
'I smmrep., .1. ma'O ne relt 'II F;elmp.11"I olp.sz:;ep. al11). "'Oa t:p.lal1 a
^ (o'b 2../12-) rol'lqt((CU 're a ('mclle, .1. 'OfI t:p.mI1I1U 'OeI5cp.ell'l ar(( 'l1a!relr, oc 'r
111 a lI<!1llL1m 'rfr.D at:(( I1lfI mtttl11111fIma; uUlp.cmtp.1 melë at:a I1d r('lr, OCur
'Oa minch lIfI 11U1lttlm. "Oa t:tual1 rocp.eca at:a ap. t:1P. cum!!!Le 'OOjlet:nam
10 'r rep.tt co cell II t:P.1 P.Ult! 'rre"Ö uIL I relr 'OIEull1 ramp. et:n
UlI1 581m-
it ''''I:- A lwt:a"{;
t
1 1I11e, .1. t:P.1 rCT1.IÙultt p.lr I1U "["p., p.mtl,.1- 'Oa rcp.eputtl felr
115 elln p.e, ocur rcp.ebuLL I felr UI1 ramp.al'ò, oCl1r '1' P fill t:P.1((11 l1a t:P.1
rcp.epoLL. n1 u}\ rClIll)?ep., .1. j:e1t In t:fUlIlIWI'Ò, 'f t:P.lnl1 a ùUlL l1a felr, ocur '
l1a Ulp.tJm a"{;(( l1a Ulp.Ll111 l1al11((, .1. 'Oa m1((ch ma )?e'f' ocur mlucn I
's" llUllltlnl.
LO'# atil J ')
. Co .,0" C,
))
,,
)e" IDf"II..- L
( e
tl-.,e,l2 ....c.. 1 Cð-,ch
'"
'r.''''
X Co:rche m11C. O11la..Etcl' r..}'e1l cmc11((c11 crm 111t ('(f1c1H
(
...<Á-
I",e,";'8)'D.,I
G. CeL' h l l (( otcefln. ("111(( mc ltm'D np.e [nPT
oJ1,,-",(f1lt co
.,AN...," t
[ ß-.,
B
.
'" ,......... .1- 8
ß
(rD., I
:?r,.1lOJ)tomnm Cl 7'!HQU!fC' 1.J co.n
1f'(qt 'DCl ech Cl cop.cm:;"
1\13
d.A-; P VI.:.
)15 .. A "'" 6
O'D..I
r.. 0?U)' telccqiëm'D, colflnlLOrsten fl1 ((
1((cta Clr oc a Etelt.
""
ß to}
e.4." Ij ',"-04':8 0)-13 tI ß
,LTV,.z..'l-.f
olr nfl'D 11' 'Dealwrc.
_
'1 -- 1 ;;"", 8 r. Fi\-,^,,!Jv B' . ... 9 "t..o.K.
'
f, CAJ::-&
' , B F)ð ,h 4
\.;
t cmchac1!. a LW1trce, 0 Ca1ChClCh mCl cmchaë tla1che. rt<$ ß
-) j{ ., Dvro..I1
8 .." B Z. ttQ.tr-.j"" 1C
1D (hi Q.,-ß a1 t (Ira 1 flÛt:IEe' flC( f elfïe buac1wltt oc caë c eL' /11t
ce.ó:t 13
o'n., I
:Jr.. 1-11,1 'De [r ceJ
Ú]"; If 'De at:C( COfl'D bo b11((chwtt 1 '1,bafl-
t ' b . b t ". . . ,.. ..
. . n owl' ..7)
".ro.
IJH>.CV-"
p 1'01 Lf1 ; a mere 1 m 11m e -çO
ICl'DU cm 01'Dce; 1fl(( moca "
)' ",p ",P. . 'It h Ju;' .r
'1 -çelf 1 rOlt (( nCl1'üCe; 111Cl bm bre Cl mbo'DmnEen ; e1c 1 !J I
" ...
ct11b.....1lcch -ceClchL'Cl'flO a 11111'De ; cm 1 t6 a t<<.rr. . l"r..l. >,.j-
, t-MrJ..ir", n ;
sAliM D
rndb.
) ..
D
B ,.,lr
L JA io )
uJ..... Wn- ....-v
- (
?"""'
.
I Fail' rfnt.-' "i)Plsrp.eIC 'is glos.ed 'cemlaeh' in Rawlinson, 487 (O'D. 21Iõ.)
· ' Tir-cltmhaile.' A piece of land measuring ] 2 . forroehs ' in length, and 6 in
breadth, Vide C. 252, and O'D. I4G2. Vide IIlso vol. 3, p. 335.
J[,DG
fENTS uF CO-TE
AXCY HERE.
9ï
two-thirds of its rent is the fi ne fi m' the tres p ass' if .TUDO-
, 3'E
TS OF
summer grass, it (the fine) is one-third. CO-TE
-
ANCT.
Question-How are Innd trespa8
es regulated? i.e. I ask whence are estimated -c
the trespasses that are commit'p(\ upon the land. From its rcnts, i.e.þ.. -/r-fAb
'1
the Ian!! it'eIf it is
wh.....1er it is profitable or unprofitable grass tháfis WrJ,,
-Jw-..
injure!! on thc occasion. If it be win t erg r ass, i.e. if it be the grass of "-
the wintcrthatisinjure<1 therein. Two-thirds of its rent is the fine
for the trcspass, i.e. two-thinls of the fair rent 'or pl"ice that is paid for its
, feis '-trc<pa>s, IIn,1 'airlim '-tre'l'a-s is "hat is paid for its' airIim '-trespass only;
fo" it is founBcks that are ]laid for its' fcis '-tre<pass aud two sacks for its 'airIim'-
tre<pas3. Two-thirds of the rent "hich is paid for a 'Tir-cumllaile" of
the best land to the end of three-quarters of a year is \\ hat is dtle for' feis'-
trespass in a meadow of "inter gras,-Iand o\"er a fnll fence, i.e. three' BcrepaUs' for
the three-quarters, i.e. two' screpal1s ' for' feis '-trespass in winter and one' Bcrc-
paU' for 'feis'-trespa<s in summer, and thi
is the thinl of the three'screpall...'
If it be summer grass, i.e. the grass of the summer, it is one-third of "hat is dlle
fnr its 'feis '-trespass ami for its' airlim '-trespass that is dlle for its' airlim '_tres-
p.
ss only, i e. two sacI.s Cor its 'feis '-trespas., IIn!! one 8ack for its' airlim '-trespass.
..J- w
The trespasses of swine. If they eat the grass, (;jvs
e trespass
like otlH
r fjrozi ?Ig cattle in ::;, t.J.Jý Ii ')
general. If they
up the land, o ther,-þn(! .-4wll
be y' Ù
n tinhe pFDof of
ion
e land c.j. CC.F,. 7'
i:;
llpW od ;. that is, until two ri.Orses in yoke are
Ir. U
.,
b h d 1 f h d .. h t .ts led.n!}
roug t an e t t ere, all 'it lS seen t a no part is 8<<n.
of the earth stick to their teeth while grazing on it.
Thus is it t-e:4etP
Half fine i:-.: due for' tairsce '-trespass vy day and
.<Mþ.tw full fine if it be trespass committed by night. For
it is a 'Jna.Ú1rL in the law of the Feini that every
kind of cattle should have a herdsman by dayj.nd
lligfiJJ; from \vhich is derived the s(lyin!1 " the cow'::;
sense carrier is her hen1sman in the bright light;"
that they should he in an enclosure at the fall of
night; that the s\\ ine should be in their stye by
llight; that the cows should be in a cow-fastness;
horses in their proper fetters or in a stable; sheep
in their fold.
f-6
.
1IJ,,
WJl.
,
'5YN.
. Thlls it i8 tf
l<d.-The original seems to lJe llcCective here.
VOL. IV. H
98
bp.el1L"ha eomarrhrera an'õr o ,
JUDG- C ((11:; lIe m U C, .1. C1Ilt:(( 1Ja muc. ((n111\ 1, CUI C h C C6t:1l P. (( 0 tcell 0:,
'U:"TS OF .1. WÏ1111tC1I1t:a 110: cetltaOUel1O: últei:eno: um f1<<c11 '01I1Ilecrni:1 op.p.u. 111 ("(
J Co-Tt.s- ,c ,r 1
'l.O'1'L<,(; B AS'('\". rocll tUl 'Ù t:1 p.e, .1. mo:'O t:oëa:ttt: 111 t:rltmun '00111'. VOlt ((11,1" .1. nl1. t"'U;P t- 11
J f '
_ 1 .2.
_, -=-0" elte 1I1n 0:11. r on a:rc11:';1I1("(. Co,, 0 '01, 0 111 r a 11., .1. Lcu
p._no 5 u '''-' !>
r'
'J'&" -_O/',o.,4,u>Ç.o.,,, . WoI"ð - ...
._ ç na:trn el 'Olt:llep.
elp.tJC1I1Ile 1'Ul1m:
n rep.r mïn p.o t:oët o:i> ann. 1) a
acl1 -nrlvJ...J
.
O'D., 1226. 0: cop.((1t: [.1. cop.ae5d
, .1. na 11<'1c111!!"O.If1!l rep.ml'O IÇffi'OunlJ.
cu1'
fT'Y\' B tet C((P. an '0, .1. lf11l rep.an'O 11("( 1161
'" Con (( t: 0 I E 1,1' n ..Ill a \:1 aJ; ta 8
tio?,Y'\tl.clrA
l
_
Dr '\.<1 V -""""'ß or,..o....
Ie ((1' oca !:;telt, .1. cOlla 'Oe5(,el1(( 111 'Oon ,
I\f1a1l1l(( r mcta aIT <<E a ..{
8
Ii' A f.",.. B1-'OI!:;eltc 1 l' an'O 'I' 'Oeo:p.u1'c, .1. l1'an'O;'l1' 'OMC j ;1'Oß x;1;ilnn "'ú
A
s-Ct 2-. 1...,0 AI .;?}7 3) '0 [.1. 'Oon 'Oe((p.].
It
ÞTV l ro;\8' .8 s.I.4.
:' '7'10 ß
r./I""..(rtA"]!,..I'v-"/15
{j;.;,.
kØ 9'. /1, .;.,
!
O'D., 1226. [CC 'OCJl.OfC; )(
cUll1np. \)(( edl ((1111 a copat'O 1 rat 111 COlla '(" 01 5- "p "..;......
B p.lw teat1 fO'O t((1'1111151 crt 1'111, '1' atl11 'Otonrnt1j1. a 'OeTtorc. 111a'Ò :-;tcrt
1to 5et1'O 11a muc((, 'I' ((Illatt ccat1\,(( a cutarb,' C1(( l' 0 ùat 1 rem
ù11eltatù Euë ctar p.o cta1'Oe(rò '00 Hna'Ò '00 al1ùatm ((tmtt '00
/) ímblm, ((1'.. t,(( heú'Ò Ù(( ,("fën( teo VI' ceol' celLLe 111 '("at1l1U11 '01(( '("011(('0
r a 'O e r 111 ; '00 'Oeoëa.!Q ql.a 1((11U111 rop. at'("h5111 11elë hp.on 11 at 11 ((1111. >-
íJ '4
. '. "OUt11ecatte <:11((,lmentm1 '("((11. L111. '00 céltf' .1. ((l wñ ocuf alqteÙ(fÒ
fottrcu"Ö ocur fottu ocuf LOtt(( ocur ((11 ocur ((l1 l 5f1U.j
,. .
CIw t.þ .ç 6 r.
.
U,,
(. .;,.J'Ht".
i!J.: 11lwd1 ((11. mU1C mo'11., telt melc" C((Cha_ Ce' r ' , celt}].! 1lH111l!
.to cach bmnb; 110 ÚJ1i:tI tet melë ((11. cai' mU1C mÓlp, ce d1 l 1 ((1lItu
melch cacþa CIOlfI, ocuf 'Of( 1111'11 WÇ. b
'
'il::' éO.j
I1Cl celtw ret'-L 'V}I
11((n m(( 11
m:ú 1
-Â1.1dl 1'0; 111'("h fOll.f 11a muw mOlw ce111 bIn
m 1 !l.... 'rJ1 1 1 11 lr
ltuEu fOl1.f l1a b((11nu 11l((.r?\lf 11
. ((IEC, u
If
tU5u a 11uLmmt
T?c
h'1.1b.
rn
" (,'iJ )
tS- Leat:h cat:l,ach a t:alp.fcl.,.tetpaëmp.tHllemtue,t:atp.f51111tao;
to:n paë mp.tlmp tae no at'Oëe I 1:U1p.1'ce nat'Oclle; cuqwm(( 1-"'1' ocuf P.11I-
p.e'O 110: h((t'Oclle. Cut:p.uma mp.bm ocu1' p.Ulp.e'O 111 Lae t:ap. tan íme co:ë
nae; rf'1' na at'Oclleocuf (( p.ulp.ea'O con a t:ap.p.aët:ml1mp.l1at'Oc11e 1I1U tatFc,
UUl po:ë'rt'f1 tn'Oob; atp.Um U1'Oclle ocur a t:atTtr5 e , tet paé fe1'l111'Olu;
) v p.1I11tea'O tae ocu1' <<1P.tl111 to:e It: l11an'Oa j t6t:hpac11 atlltlme I 1:at}t1'!:;e tUB.
I An eqllirulenf.-' CC1tS111 , p!"operly means a re
toration of the same thing to the
original owner, but it is frequently, as in this instance, applied to "the mal.ing
gool1," or giving an equivalent for allY loss, damage, or illjnry.
. Tv'o ho,'ses in yokF.-The greater p<lrt of the remainder of tilis tract i. taken
from the 1I1S. E. 35, in the library of Trinity College, Duhlin. Ea" lin<on,4S7, want
the glosses ou the second part of the preceding te,<t. They arc taken from E. 3 5.
3 Cnrryin!J.-For 'Imem:::al1' of the text, the meaning of whidl is doubtful, C.
1"1 32, reads ' Im :r. ea 'O((1n,' which meallB 'dra'ling,' 'puJling,' &c.
.TGDGME
TS OF CO-TE
AN(,Y HERE.
99
The trespa ses of swine, i. the crimes of the pig<!. Like the trespasses
of cattle in general, i.e. IiI,e the tre
passes of e\Cry other (leseription of cattle
"henthcfiuefnrman-tr . ßisch /"9-duponthem. If the) root up the land,
i.e. if rooting of the land be what they do. 0 the I' I a n (1, i.e. when other land is
[jÏl'en for it by "ay of on equiyalent' oj the lalld .chich thf' /'ooted up. Un t i 1 the
proof of the restoration, &c., is completer], i.e. until the certain
redamation of the land which they 1'0 led up is announced, Two horses in
yo k e,' i.e. they are yoke(l [?] i.e. the horses on it, on the land afterwarùs. And
are left there. i.e., the hor.es on the land. That no part stick to their
tee t h, i.e. so that no part of the earth stick in their teeth in grazing on it. Th us
it is t est e d, i.e. it is then it certainly is determined that it is rcstore(l to it:!
11C"llthy state, i e. the land.
I ü;
: let t" 0 horses be unharnessed and placed there yoked
together to gmze, when in grazing they do not pull up a sod, it is then
the test is .....en. If the swine haye eaten the grass by grazing, theil'
.
trespass is like that of other cattle. Although in the old judgment<;
it .is ordered that every furrow which they should root 8hould be
filled respectively with corn amI hutter, for they deemed it just
that the land should receivefor tll'3 injw'y done it an equivalent in
it<; own produce; yet it afterwards was exchanged for restoratión
of tIle thing which wa<; damaged therein. :r.lan-trespasses are, q AfI1(,N
p.
/t
carrying" (loads) oyer your neighbour's land, i.e., 'aradh '-trespass,
'aitrehadh '-tres]'" .' follscudh '-trespass, 'fothla '-trespass, 'tothla ,-
trespass; 'an '-1.1 'spass, and' airgsiu '-tre<:pa<:s.'
A sack is tlw fine upon a large pig, lwlf a sack upon eyery slip
(young pig), four handfuls 5 for a farrow pig; or, ((ccm'ding to otlters,
half a sack upon every large pig, a quarter of a sack upon each &Jip,
amI two handful<; upon e\'ery farrow pig. 6 This addition extends
to four times seyen animals; hut it e"temh to the entire number" a II'. While
r;f the large pigs. The l'ca<;on that it is less on the farrow pigs thp!! are
J l ht " 1 1 . . hl . 1 h lh
e.
t lan upon t lf' 1;";(; I .c;;.' IS, .ecause t leII' DIm ene<:s IS ess t an
fl!(lt of cattle.
JCDG-
"K
Tg OF
r
Co-TÐI-
A'i'CY,
II alf fiDe is for '1:1 i rsee'-tres pass, i.e. balf tl.' fine of the' airlim'-trespaog
loy d"lY for' toirsee '-trespo
9 by day; the full fine of 'airlim '-trespass by day or
ni;;ht for' tairsce '-treopass hy night; the . feis '-tre.rass nnd 'ruirimlh .-tre'pa<<
hy night are eqnaI. The' airlim .-tre. . anlt 'ruirimlh '-trespa
by day oyer a fnll
fence of IIn) person are c<]'1al; for the · feis '-treopa" b) ni
ht amI the' ruirindh '-
trespass .chen the callIe fI1 foun I after the night lying. there is fnll fine for' feis '-
h'
pa , due for them; for' oirlim '-trL<pa s by night amI' hi..,.e" '-trespa
' there is
half the fine for' feis '-tn ," OJ 'ruirindh '-treopa.. by day an,l 'llirlim '-tre'pas. by
day are e([ual; half the fine for' airli:n '-trespnss is a',e for' tair"ne'-tre'pa.s b) day.
e 'Airg.iu '-II' "pass.-Thi
I' .11 rk ah.I'1 maa-1 es appears to be quite out
of place hcre. It is not ea.y to d t(rmille the different ourls of trespass mentioned.
6 Ilundful..-' ?tIam . is as much as clln be tahen IIp ÌJ{>tween the t\\ 0 palms of
the hands held together.
6 Far/'ow ]Jig.-That is, a YOl\Ilg suekin!! pi
.
VOJ.. IV. H 2
100
bfl.em:ha ComaH:;hcefa a'1'Dfo.
JUDO"
!\lENT!! OF
Co-TEN-
"'XCY.
O'Ocm::nucn mu cutucn ul'Oëe .1. OSF1Ucn mltLlme 111 tGe t:H1P.fSe I1U
nm'Oche. C(lt ut:u G n"DLIJ'ie'Ò nG Feme .1. up. Gt:u ul1'OLlsei>m Fene-
chmr. rltl 'Oe ",lrmLo. Sceo GI'Oëe.I.Ulp.p.ebO'Oem.
t!v J
()
c'i''''''$ D
8/A/
. f) r-" "c - f-I) . .1. Comil15U1p.e qla: eta qlutrame a hUl1Lam11 cwtl1a ocu.f
a.fl{D 5"" reaLu? .1. '019-. ua 'Ot;C 1'011 aLa, ocur rei;-r;
5anl1laOcurreét:: muca
:J
ocur reét:: qUn1"b. Hi dU"bf1'O 0111C t
ln
cBI1 a comm;S("(111e co
LUl1arai>. 111 110 Ull1((tfill La cai; in ttã all C0111 ocur ceaéwl1 ocu1'
U'n'V I] ø.A-''"TJ-r''lJV....... .0 -
ceatpar, ocur 1;t:t)E;t;tJ1tcn.l ua'O 'Ota celtte ;Áa'OlwD1I1a'O a COIll111-
S ß!JA
ðJM 'B "'(<-'
5 U1 1 1e pa pa'Ol1U1b amU1L '00 COlrCa'O 1'011 t1(('01I1-J:m11 ocur l wt ((. .
,
l:t:: mc('O all COI1WU aLLt::a l1amaj- R011C(ral1 a c01l1in5U111e, l1i t::t;m
cm Ce(({-11a t1(( ce((i;lHt fUll1t\J tcqwm, ai;t:: '00 u111fe11a in 1I1a111t:: '00
" """ ,. JJ
pa'Ol1
!.
<L
.(....è
........1J
.....
-IJ
· t;JJ
D"
r
c:.í 13
(A,."r;
-"
Cerc.-Cta Un raell
(111 '00 comm5wpc? 11í1J.:
ell npe
tlama, all 'OLI51't>f1'Òe La CC(l:a ce(({;l'.a '00 m5wl1e '00; C1U 1.Ji.:t 'Oone(
'f'tYf) . ,.._
AM
;- UÓ 110 ((LL((u fUll'., no Call11U, no ;>'O01!.2 5amc(1n no aUau,
V"j
J tI1 L01UIIUl5 tð.; Ctot:: 1'111 bam 'Oe, t)i 'Olba1'Ò La. 'A.t.>s;
ï .
D
IMrv tl,uf.-
0
[O!J I-Z-'l-g)
tt.r).c."rp...1 r'\1"..o."'Ð
cLø h-r /)
COlll1l15cul1e 'Oo
, no UllulIl fQ1.11llC1'O rcaL1j(( cwi; 'OÎ 'OÎIt;lIlel'O
UlluJlC .1. 110 co coLpaë. 1'011. ma'Ò 'Oal1l1; cotp w(- 0 1I1C1'O 'OUll1m((lt ?>;',cl) D
"E.',(v'S.o...,i:ì) tY'"rAJC H c..' e. Ð r", [) 1
11' 1'011 mu'D bo t::lcQ:;am; CI
rlJeI1U'O ul',J:lte ['OWI1 ] fQD mc'O I1'OC(1111,
b 0/ 0,.. "'.. I! o.<L t J "". '.'
...
o 1-'01111lC'D uo, a5 1'011 me'D wEe, Cql bCI( W'D '01(( u0111 re((c 110'Oa1l1. "ðlò-f)ol'}o'
lit "J!';;1.::"..w'
I D 'hlf''' .
111 CIU1UU'D conl1\j((ç 111 1'el1'Oam 1'1'11' ((11 U11tlre, nil' '01(( ceaqu(
D_Ð
D .
1-'ll'Oepl
P)11U a bnlx( ((11 allU1I1 'ObEpm::el'- Tie; lIl1 (( 'OC( p:'D 1'<21 1
w. þ
f'lþ,C. 0 c;."J" M
tJ 1)411'-1:. D ....
D
..4 u/!.7";' c>' 11Iet> C((l1leë, ocu('Dla ('Ull1a'1'Olt 111a'6 'O((lu::a, Tli 'OJ.tll1t:: ]:011. 11lC'D
_ D ' L . ..
D L . ---.p,. 1. 1 1 f
""'''''l>. . .
elp
co pC!!5.e, 'Ow co p
1'011 me'D uO, uO co coq;((C ) 1'Olt 11I(('D n'D((III1.
L) Ro-nql1.J, ruarp((umh((, ocur 'Oamconcha1'D, ni t:w"ba'D a C01J\ltu11l'D.
r."'r ""'",A- [J
dc>
Cm fc> 'Oepa ron? HÎ!]: 111 t::((11b cet::amur, 11' cuma 'O a1 1 11
rl'Oe a ceat
a f
'Def1n, ocur ce(({;lw wi; aill blr ow 1 11Ibua1te.
'Dam concUl'Ò 'O
, 11' cuma inmltrme a cearp_a oeur ceatl1a a
.
O
I Comm01l pastUl'age.-This commentary is not in 11.3,17, nor in na"linson, 487.
. No engagement iø !Jive.. by one to the oth-r. There is no contract between thc
parties ("commoner..") as to ordinar
' a.:ciùents i they are in the same position as if
JUDGMEXTS OF CO-TE
AXCY I1EHE.
101
Full fine if the trespass has been committed by night, i.e,
the full fine for 'air\im '-trespass b)' <la)' for 'tairsee '-trespass by night. For
it is a maxim in the law of the Fe ini, i.e. for it is in the Jaw
of the Feineehus. By day, i.e.intherl
)'. And night, i.e. in the ..ight
itself.
J UDG-
IE
TS OF
Co-T
-
ANCT.
Common pasturage 1 : what is its nature as to the green of cattle
and flocks 1 i.e. h\ eh e cuws in a herd, and seven yearling calves,
and seven pigs and se," en sheep. Rtrrow pigs or lambs do ItA
not come into the commun pasturage until Lammas-day. No
w!t.,q.,
w
e R;;l
gBU*lIl.t is ";"'11 1.y Qfu:; 1,0 the et1lC l. 2 with respect to protectin g
'1 ltuJv 61c
JAN I
. .,
.,
tlte herd from
, quagmirps, or cattle gorings, or from what th
y ...-'11' L
f>t
. I. 1
. ,,-<.t.
"'
I.
,.,.,.
nmy do to one another; theu' common pasturage
as at'ffifiged "^ "If
hefore ,\itnesses, as if upon securities and guarantees, excepting
protection against ,\ ilù dogs only. .As to what is legally place.l in
the common prn.turage, no trespass òf cattle or quagmires is con-
sidered \\ ith respect to it afterwards, but the carcass of tlte animal
wltÏch is hilled shall be sbov.n to witnesses.
Question.-lIow many are freed from t!terespoll$ibilitiesoftbe com-
mon P
\"tUl'age1 Answer-The ownCl' of the land only, for he is en-
titled to a d,tY's herding for every head of cattle on !tis land; for al-
though there should be a cow or its value (f''luivalellt) dupfrom him, or
a sheep or a
-earling calf or its ('(plÏ valent, and it does not add a day;
though these should 1,(. scpar,ltl'd from him, it docs not lessen a day.
Now, in It cOll1mon pa"tUl'
e there is a calç
lation made of the
Rize of each per!'oll'scattle a
fJ
,tìrI3"r
j
áity,i.e. acow \\Ïth a!r. Foo,u-
n heifer in lieu of an ox; bl"ifers frol11 the size at ,\ hich they at c '10 t.
1.ulled pass in the pl.tce of CO"\\ s; though others say it is an ox in
place of an 0", a cow for a cow, a citlf ill place of a calf, fOl' two
CO"\\S graze more than b the great ox. T4e equiyalcnt of the bull is bJr.Beycmd. í- 9o.3r
not put in this enumeration, there i<; not of his own .'pedes of cattle <1
-rf/I
any evcn num1Jer that would fill up the number which woultl be
required for him; for two ge('<;p arc in lieu of a !:>lu'cp, two sheep
ill lieu of 11 'dairt '-heifer, two' dairt '-heifers in licu of 11 'colpach'-
heifer , t" 0 'cul l ,,\Ch '-heifer!' in lieu of a cow, one eow with a
d4r u
'eolpach '-hci
e1'Ï
Jþ1
l
rcilt bull, the' suasùamha ,_ du .
f..r .I I:,..l
,..
ox, and the 'd
lh-conehaitlh -ox do not come into the enumeration. c-,. p. Jut
'Yhat is the reason of this 1 Alls,\er-The bull, in the first
place, 1mlls p{Plally his own cattle, and the c.attle of all
which arC with him in thc endosurp. The' damh-conchaidh '-ox
equally prowets his own cattle and the cattle of his neighbours.
the)' ha(l come to an agreement reciprocally to th:< effect, e"-eepting ah\ ays the
case of wiM dogs (the property of one of the 1"trtil.).
,
.
8.L
)'
'IJ
102
bp,em:h(( eomarchcf'fa ((n'õfo.
J{;J)O-
MI':'i rs OF
CO- Tt:s-
A'iCT.
c01l1wi;eué. 1 l' wrte 1'111 n1 naðu1'O cortm5te a nmrU1I1, altY-ï
cU1l1a lwn1c cai; a tear. o "O t1 51.:Q. cui; bu((i;mtt a b1Clta'Ò..c [) tlÑt- (),ø
t !
- k f;" t>
muca 'O
a, n1 "GlUða'O Inlt c01l1wp.me aë"G muca all" 1n5c nIt
F1'O bw 5 e co meal'. Comra 'OBt1a, rtall cai; c01l1ra cai; cumarD cai;
com1n5U11te, al"G 11I'Olta'Ò no 111'O)tat 110 atsu 111.
'A.fJ
rÑ; Þ
)m..J.'t' . L"
CIU 1'211.U1 ccatl1.U céui; Flu ltalte aÜ:; Faqtb1'Oe 110 S1111\I'Oe, ':!.9 l.Ðuv
con(( a rUttÙU1'Ò alCdr'ltUr cai;"(( c1l1n Fui;"G'O l r uI5U1b"'l 111a'O mi iI.IJ
'^'
-T;<f"/fl 'f". ' -
0
l to "G01P. ((n((\tt, 0lt5alt '00110 ((n as no n011t5. OCllr 11.((llna1'O 111 'Oa
1IIap."G lIc"GUltlto 1 n'Oe, roblt Ùcr 'F111r
l"G lw5alt
1l0 c01l1m((p."G ((n ...
rt"
,. a5 'Ola t((\te; ai;"G ní e"Galt (( lwY!J1."G a nep."G 11e"Galtp.0. 110, 111((
F ea l t l t tU1r, 1'ocelt'Oa"G qWlIn 1111 ((n ((5 mùeo 'Our CI 'Oa Una
ette_n '00 atwte!!f: 1I;e
""ì1
bp.e((ta annro q1.((, 11Iuna }:'eal"O((p.
5uín1'Oe r O l t r 111 na"b lua1l1; 'OIU 1'caf'Oal1., ùeltea'Ò 111 Felt bel' ae
lIJ((lt"G a U15e, ocur ((f11.ean (( celte a"b 1'0 twtt '00: ucur 11Ia'Ò t
m
/I lto frilh an a5, }:'o celt'OcaP. q1.ann }:'011.11.0 a hup.tann r eatú 'Our
CIU 'Olb '00 "Got b1'Oba '00 "Gabwlu:, ocur '0011l0Cll1. lalulm 111 d '31((
"G111"G, ocur anelp.111e'O a celte '00 1111.tun'O reatb ocur CC((tIW. Ùlt
1II(!tt"G ((11 m"be a"Gal1.11."Gu, OCl1r
nl1t FO'OU1tl"G an cqtce '1' Wflt U1'Ò
l1.C!Ilnw'O tll(!tt"G an w"be (Kaltlw. )(
",
, ,.;..J;J.
"
D
l't.o
?
J)
t/.
P 21
7lfOv 7\1.'
6 If. - "" -rL-
((1' '()o at;a con'O bo (( buachaltL.I. 'I' '()o 'I' co'Onach '00 na bum!>
{( mbuac11U1tt. IT m b u al t {( 1"D .1. l1a mùo:1o a ram)1.a'O. "HI a 'O"m u c a' /Y)A1J
.1.1 J:U1t I J:aem:; na muca '1'111 11U1'Ot:I.
",'1.-... (Co n) JI .1. muca 11ll11l t I W ; muc 01 t l1.O cui;u Ff1P, ocur bunb cai; ((111.tl1I1C,
ocur a"b a nlJllte FeOI11.; (qt 'OtI5 ''Ò in f05cutw'Ò 1'111 a 1111COtllt-'O co
2r U;llt. c.c FClr a FOIt 1'0 cc,t1!:,b1 to1'Ocut) in a'ÒU1"b,OCUr tllU1CW'OC ocwh
Flu 'Oe. 11' 'OC '1' beltt '1'111 COI11. r(;111e ùíc;
O1(( mbclJ nmcu
11I0CUlJ"GCft,(!twr q1.U cU1hmltalt reII' rClJ((lJ ùClt 11IílJùu'Ò l'ltll1 11((1'0
1I1ínp.a111'O naëcp.analt nm!lCnlt 1111 CUC(( ctmrc cui; acn COll1Ultba
(0
1. COl1t"Lner tll1tmíser. "
!>.<
B"
'.
H1 a'() bu, b 1'0 I In ùO'O ((I n se a n .1. bl;:; a n'<Jal1lS8n n(( mbo, I mùuat.
trò 1101 mbO"l:151Ù.
I COllln,nns.-The ,\(.nl 'Lomfu' hlte tralhl,!ted 'commons,' lltay mcan a
'litter of pigs.' If so, thc Ivholeþl\ssage wouldsignif
', "A,to BlillcrQf l,igs, every
J{;DmIE
T
OF CO-TENAXCY I1ERE.
103
'l. !Å;.A" P 'iff
For thi::; reason' coslaithe '-mUle do not come into the enumeration,
for all stand in neell of them ellually. Every herdsman is required
to fee(l them.
. '.
It. Pigs, too, d? not Olll
into the enumerati
n of land stock lwess
1"""'''''''' [fjo.;ç. they be old lllgs, eÀct'ptmg un "ood laml WIth mash!. .As tn com-
mons, I every commons is free to m, ery grazier of the common
pasturage, except for plunùer, or trer,pass, or knowledge of crime.
\Vhy are the eattle of all placell together, except gorers amI
fierce cattle, or that a Ì.\ò tì-tnu the 'WoIUl ding that--everyooe-Bfta-H
L
cffltm the HnE for hi" ..LL<,,,1. [,om- him 1-If it be a calf that has e.j.
-- .........
llnJ.Qtller, lpt tl,p gtliel' thl!.t has killed it be slaughtered, and
let them (tlte owners) divide tbe flesb of both between them into two
equal parts, because of the killing by tbc former; or, let the flesh of
the killeù calf be divilled hetween them; but this cannot be enforce(l
het" een them. Or, if it be prefen
d, let them cast lots for the live
calf to know which of the t" 0 r,hould P'IY the other for him. These
are their judgment:; here, unless the calf had never neen known
before as a gnrer; úut if he hall \Jeen kno" n w; suclt, let the man
whose property he is take the flesh 0f the calf, and his neighbour
shall gi.. e him another 'llf; amI if he slaughters the calf, lots sball
he cast upon them on the green of the cattle to know to "bieh of
them the guilty party hy right should be given; and the man to
whom it has fallen aften....n-ds obtains bim, and his neighbour gives
him away in tbe green of tbe flocks and cattle. Tbe flesh of tbe
lâlled calf sball be between tbem, amI as they di\ ide tJH:) , 01 ie' Hlle ,
Y<-<"
130 tbey divide tbe flesh of the calf be1\\ een them.
From which is dcrived the saying "the cow's sense is
her h er<h III a n." i.e. it is from this it is "lid that their herd.man iiJ the sense-
e.uricr to the CO" 5. In a
.Jf)...c I 0 s
j,
...i.e. of the cows, i.e. in the summer.
If l' i g s, i.e. into a st) c^,he ."ine
o in the night,
That iB, as to pigs: a pig is tlte fine upon them for C"ery , feis '-tres-
pass,aml a farrow pig for e\ery' :lÍrliIll '-tre::;paðs,and a calf as 'dire '- .
tine for grass; for it is right tbat pasture ðboulLl be wbolly guarded.
They ::;hould lie in a stye at fuur roads by night, amI tbey shoul<<l
have a swinebenl by day. :Frolll whence it iB said in the law
called' Coir Feine Bee ;" "If there be a sv.incbcrd, it (tltefine) i
increased, for their ::.tye should ùe at tbe meeting of rmuls tbat leall
into the middle of farm::; whicb are partitioned into small divisions,
each 'coal'b's' di..i8ionlJeillg m.u'1.cd and di..ided byflll'rows."
If cows, 1ct them ùe in a CO" fastn 5S, i.e. let th
m ùe in the
fa:,tness [":Jall!! el'ectedfor tlte prul<ction of the cows, in an inclosure or in cow-houses.
JlDG-
IF.'TS OF
CO-TES-
ANCT.
litter of pigs Ì:! free 10 graze on every comlllon., e\ cry common ra<turage," &c.
. Coir F<ine Bec.--A tract not 111'1\\ n no", The trausl.1tion of the extract is
only conjeclllT.1L
ß'
J
b l tcadlG eoma1dlccrc( atl'ûr o .
, C 7-57
D L
Z4 jt;DG- .1. CHI 1"0 ba'Darl rmaët::a marw ann, certrl1 ta ImVe'D na 11111-
::\IESTS nil'
ft
-kv C, W Co-TEN- 'Dltte, Ocur caemna in t::ll"e aUrtt1.Ol, na lIe'DlI' Ipn cg; reiI', a t::un-
J.. _ J_. t2.S1 A.'I'CY. airelI' 'Data reiI', t
tD1tre ñel'C - ã'tJltoÍle7rf'tJa 11' 111 Tl"Htr reiI',
- _
_I
oi>1tr e 11f1ë a'DllOlwr'tJall '1'111 ceaT
a
m Fir; ((lull'
I
(
ë ocur ='ØlUV 'It.,'!
} m::llat) HIfl I'm. 11' amne TJla arrWntl'tJair rmaënt cet:: amur, aët::
na11elltímeanìla 'DOrtHI 'tJltre.
C2.'f
'i:: J_"
/I,t-
-
C
'1
C'l.9-
Ca'tJHI'D ral'tJe? l1m-e'1ltím ne1Ene llw com no 'Dume; elltím
, ua t::oTwm'D no wveatt, no ellltlll1 g!;J; a'tJlwllllf'Daill a n'tJlam
r lHI f1U 11 0 'DIlenEa'D t::all'r. 1t::é el11tllueanna im..J1'Djcea'D pnaë"La.
Cw
/0 CO 'DUCO'D t::fla FOIl 'DalKa ocuf 'Dallt::w5c La caemna il1 tl11C
ocur mel'tJ in p.e, conai> é rnwët:: rOIl({
ucl!!3> Q rE
l
C
"Í!' Cwr- hMt
D
bEl1a'D atalte
rÓ5E11lt111l aët:: 'DO COlrEa'D- 'Da tHlË 'DEC il1'D. let
melë caë'
t5.a!.1?o 'Dum co 'Dall"Cati> rlU reiI', aët:: 11' fEll' .:aë tlËe
caë t::allTtaIËe. O
a'D be5 il1 LIlt 11.0 1I01lrall ann Imbl ni VI
,r }'ealll" tnwë no
cn'leae
, t::olwi> blr anl1, mlrCJl ani VEl' pu, ocur
'DO VCI11 'Diabut roël1a1ce t::al" a elp;.
::; fv..M J-
1>
tt-D
J>
... MM IqÐ.19)
"'
.
ro.J'
..Y'
.
l"WS'J
.-' p.11 "" " Cerc-Cm ar a 11l1t:'CJl ron? 11111:- LI11 1'0 cp.ean bom co ceann
;,t
1) mbt1a'Dna, !'Q.
tllwë 'Dec 'Dono rOCJlEal1
'Q ron; ocr: melë all -tIk b
5eamruaët::, OCl1r a cEtwll ((p. rW11Fuaët::. nla'tJ EEmpwët:: oË 11.0
;to oP.t::all ann, afTl.Eanl'tJall a 11oët:: m'D, OCl1r a;S a tmi'le I.2.!Jl.. nlai> ê
ratnt!!ët:: 1" 0 11op. to ll ann, anlEnmEall CEltP.1 11lE1ë mn, ocur aË
a n'Dlp.e a r eol 1 l . )l
tqqA'"qAd DIC
)
CCfTl.eatl1'tJap. qw na pllaët::a 'DHI q1Clp HIll fOEwt 0 t::alëap.wr,.
WI
muna ellltlËt::Ell qw 1 C011atb vet; aen puaët:: all caë ceatlw(r!'tJ .<>M..t....,.;-.
t.
tcoEma)foll dll. 1re in puaët:: pI., ap. caë cEatlla 'Dib, tll1aë cala
r..1>
fEIf1, ocur tet mClë caë e111tíme all caë reët:: mbuwb.
F
M'dt..
1
I.,
O
etcll 1 CU 1 uf\each t;ectl t;U Il 0 Il (( 11111 'Oe .1. IlU helch ma
) cUIOlf\ech 'Otlsteë, ÎIl cellll Vf\1 Lac ílla Il!'chmtvb.
...W>1-' ... 1 e 11 . 1., "
"V n .. IC, a rmaet::a wnal cae ceaq1u r05eatn:m rp.1 na hup.Ea-
30 bata "OIQna1ll rell. CC'l 'DO EalV na 11eoëo OClir ëUÎ11lniLlur, OCl1r m::a-
dA.o".,
('t.
.tq.o/., 1 3 0.'1)
1 The fr(Spasstr. . CU1IH ui-,' may T,osóiLly mcan "II tre"I'a<ser" or "criminnl,"
but, from the context, it is bard to see bow it can bem- sllch a S(,II
C here.
_IM<.
wf þ,
_
Ik )
t
CZ4-
Y OJ" #v
'ffk
4f
C)
That is, though there were great 'bmacht '-fines therein, four sacl.:s In'G-
MF:STS OF
with the increase of the cattle, and Nie P
'8tOOt.ie1J. gf the c{nmtry ; Cn-T..:s-
jhrfJf 00.'1,., Dt;c
O r tho fir;;t 'feis '-trespass, :l second in A:Sl'Y.
. thc case ofa sccond 'feis'-trespa..<;'\, forfeiture of half "\\hat
d
t'" fn-r thc thir,l' feis '-trespa,>s, entire forfeiture of what ani"Ii'] ff}1'
the fourth' felli'-trespabs; for it is:hing :lIllllh\elling' after that. c..f "f8"./7
Thus they u
ed to diÜde the' slllacht '-fines at first, except in case
vf the' airlim '-trcspasses, which
'e.
"
hat are these 1 Answer.-Forced leaping before a dog or a
man; leaping on account of tlnmdol' or sultrine"". or a le:1ping, Imt
so as they are
before they could get over. Such are the
leaping
icr whichk smaeht '-fine
e.
1;j J..
Until it amounts to a 'dairt '-heifer and a yearling wit]l tlwfi'le
imposed ú!J the protection of the pl.tee and length of the
, -tire
, I!macht '-tine to \\ hich it amount" i" to be proved. Though others
S'lY that fullieaping-t/"espa s is committed, if twelve cah-es have
g\\1lf' into it (tlt",field). A half>>ack is tllP fine for every animal from
the ox to the' dartaidh '-heifer for' fpis '-trespass, but emery lyiug II
do\\ n in which it (tlte ani/lud) is caught is 'feis.') If the e.};tent of
land \\ hich had IJCEn damaged on the occasion be so small that
the produce \\hich is there is not better (more vabl(lble) tban a sack
or
tr c:;pl\I,!:It;l' ,' let tbe value of it be estimated, and be shall
obtain double tbe bire (rent) afterwards.
Question.-Fl"Om what is thatestilllatedJ Answer.-Land wbich
=+,:ty.
.Eor to tbe end of a year, it is twelve backs that would
pnrcha..,>e this; eight b.teks for tlle cold season, and four sacks f01'
the bot season. If the damage has been committed in full winter,
cight s:lcks bhall be paid for it, and a calf as 'ùire '-fine -for grass.
If it be in the summer that the damage ha..
been committed, four
sacks shall he paid for it, and a calf as 'dire '-fine for its gras.'1.
Tbe,} bball pay the' smacht '-fines in three da,}s after the trespa
s
has been cOIllll1Ïtted
Nuless indeed by verbal engagements it L'I
otltenvise arranged; it is tbe saIDe 'smaeht '-tine tbat sball be paid
for every kind ofmttle that i.! B"l
t upon the lanll. The 'srnacht'.
fine that is UpOIl e"\ ery cattle of them is a sack for every 'feis'.
trespabs, aIllI a balf sack for C\ ery 'aÏ1'lim '-trespass llpon e\"ery
I;e\'en CO\'!;
Horses in thf'ir lawful fetters Or in their stables, i.e. the horses
in their la" {ul (euer., lhe head to the staple in tlleir stables.
That if!, ((,8 fOI" hOl"! 3, the 'i>I1laebt' tincs are like those of any
other c:\ttle which conbUllle fotllier after tbeir being taken in t1'espasB.
a!"y,. ,For the bOl'Seb ...... t,[kcn aud detained (i.p. impounded), anù notice
-
'.,
a-
r{" IJP
f.4.
(þ
.JUDG)(E"'iTS OF CO-TE
_\XCY HERE.
105
ho.t-. L z.>r J...aa
DÚva..d"'f1'"J
f, "Vi
fl.)
- '
... -d.rtd,;.
1116- /6
o
Df
'
6W' IAÅo ;, IN-}UM 'fj ...,..
J.tJV..,'J.fI-t ..,...-J'
I..t-
LJ.
-f
.. CoOl> It. (Dy-ul.beA- [""-""'''"'if"'' Li;"foF)"!)'JIÑ] B tD"tA1i...."J COl1)rv'7)e D
W
.Ur.lo.
D
tn.'...
4<f1v
l..- oiú
1'A ?n(.ð
.D
lOG
btleadJa eoman::hcera atJ'Dr o .
Jl:DG-
MEXT
OF
CO-TEX-
ANCY.
banH> 'DO pt1- be'De nelë, 'D1U11 reafDat1; mUl1a rear'Da}1, m:;aban1'D
b A.. 8 1. .
ac 'DUll t:;JEetUla er THJ.fom, oeur oc 'DUll vl1.elt:;ea1llal1 l1a t:;Ua1L1,
Boc..o.." .
oeur oe eel1,'Dea Eobal1l1, oeur oe Ptll11Jeltt l1a t:;uwt:;e; oeur at:;a-
banH> ramtw;s FO l1a qllëa oteeana oeur eoml1kur eo.t,8 /II>
5"* * · 1'011 'Dla eUle ta 'Dée, 110 penlt:; aröi'e, 110 mír, Or'DWI1 'DO
LI vet1 bí'DC nflch t1e l1anl1Pt1 a I1rcma.
t
Cia FOEeatr:a'Ò pt ""..;?
'Dolb? 11m :-mmë caëa 1Ilír 'DO bUa1b oeu1' eacllUlb,1IIíaë ocur tét
111e1"(;h 'DO 'Do.111, 11111lla eUlblll;S<TP. ; 'Dla ëU1vl1í;Sr:etll11JUtlfl.O, '1' 1111aë
caë tw co l1amël. '[;em ín t:;Jat1Fw;se ro eOllllll11tllee Flul' a roo.r e ,
lC)lamla1'D a F05eatca'D m::at1tWI í l1'De; mUl1a d IIllUtl1lO.l. '1' 0;5 a
t . b ,. 11 . ,.
.,,!J D
r05ea t:;a'D 'DOH pt1- CUI 1115r:et1. a tlO meat:;a a Fare fOp.r 111 Vt1 f\'I4, /,0""11'"
cU1bl1ls<;et1-, oeur 'DW 'D1 a celte co níatW1p. t:;eët:;a, oeur co pa'D-
tla1re ín'Dtl1C, oeu1' co l1aeta1U, rOt1Ua1rt1eeC!1t ín eOlm'De
, vetlw'Ò-
rme a ceatp.a, oeur anteat1 rOEeatr:a'D.
bl",",
.".o,z,í ()
rJ 'rf,A1q)
z.
/j
t/.-
't71,.l.3
,ç Cwra rOEeatr:a'D rOil? .1. 111wë eaëa mlr, <it1 ul' FOEeatt:;a'D
eeatp.a pt 'D01b al'U1be, ní ro;r;eatt:;a'D at:;hEabata.
(n'lJ /1..,z..)
ma'Ò 011 mí 1'111 ín 110nn, tlí hactw;s Cia FOEnw;Sr:ep.11111wb .1.
a l1'Òa11Ja1U oeur eaëa1b oeur va bteët:;a 'Do bteo;sal1 ; laët:; tlí r:elt:;
rOEeatt:;a'D FOt1t10 íl1 11é rO;Sl1a'D.
'l.0 -8ma(;"(;a roi:ta OCUr mtt([.
Ç"",MN D
_
c.2..
(D)
_
D
otta 'D1Il, 'DWll 'DO t:;.h!S oetlr reUlfl.ea'D anl1 a Llt1 a eelte, í1ll-
comlp.e 'Doíb daru hWP.111 ín110 fetllfl.f1'D. no retllP.r"1l1 "p. íl1'D
P1 1 r eó . ma F011con"S11
'OtTl a r:avw11t:; or naë Fuel.!!.!!rotll, Iré --rnJ'")
urp.eul1a'D ewëe a neaen 1U1t
\Jl' 110 {(ltUlte 'Dono, {('Dcíputll tlo.
l.S'Yfl.1Ul1a teo, oeur tlí íme0111!J
_a 'DOlb, 11' t:;
ra {(l'1te{(n ín cucw;S
1'111, ma'D aínupr 'Dono 'D{(ítll í I d11 ín 1'.0 feulfl.feat:; a neoëo.
.
'[;ot:;nta 'D0110; arbelttr'UIll Ffl. ' 'Daí1ll 'a1lltta rcofl. ín ntte
'1'
1 Are delainul.-There is all erasure here in the :M.S.
. The keepill!l.-Thut is, of the mttle out at gra
s under the cate of proper herds-
men.
a' Tolltla '-tl'CffJOSS.-' t'olhla' usnally meliliS 'eluwng,' " eVUlling,' &c., .lIld
'Tothla,' 'l\clllnlltl; 'cl.1Ïm,' 'requegt.'
JUDmlE
TS OF CO-TENAXCY HERE.
107
n to the man whose horses they are, ifhe be known; if he is
not known, notice
at the' dun' -fort of the nearest lord, and
at the 'ùtm'-fort of tIle Brehon of the territory, anll at the fOl-ge of AXCY .
the smith, and at the lU"incipal church of the territory; and notice
is likewise giyeu throughout the nei!1húouring territories, and they
(the lwrses) are detained' till the expiration of fifteen da) s or twenty
nights, or n, month, if the lUan whose horses they are does not arrive
hefore that period v:lâclt is that of their delay in pound. Aud
what expeuse of fpeding is due for them
Answer.-A sack e\ er)
month for cows aIllI horses, a sack and half a saek for an ox, unless
he has heen impounded; hut if he has heen imlJoumled, it is a sack
fora day and night. 'l' hc kel
comes under the same estimatiou
as the impounding; they shall dÏ\-ide the e>"IJenses of feeding in
t\\O between them; if he (tlte OWler oj tlte cattle) does not come, the
expenses of feeding are entire to the person who has impounded.
H the man \\ ho has impounded has failell to giye the notice, and
if his neighbour should come with the la\\ful follo\\ing, amI
with \\orthy witnesses, and with oaths, tl;Q--H,..nl "t...a.il relm e
4 'I"
-hHtl, he shall obtain his cattle, and he shall pay the expenses of
feeding.
\Vhat are these expenses of feeding
A &ack every month, for
it is feeding for cattle that is due for them in this inst,mce, not
expense of feeding for distress. fhIh;.l
Ii<> .w-
Hit be after this month llf1Tlfiig :
...m ,,,ç1 el+H sen ice Ñ1 obtained
from them, i.e., from oxen, and horses, and milch cows which arc
d; but no expense of fceding is charged" upon them \, hile . Jr. Goe..
they render senice, i.e., do w()rk 0/' gÜ'e milk.
, Smach t '-fines for 'fothla' -trespa:ss and 'tothla':
trespass. 3
, Fothh '-trebpass is committed 1/.1.e,t a party of people come and
unharness their horses iu the land of a neighbour, asking what place
it is in which tbey haye unharnessed. X e h,n e unharnessed iu the W
htnds of this mml. H he has ordpred them to
ctake them
from thence, and th:It they do not comply, they shall pay for the
trespa%es of their hOlses after\\:.lrds c01llmitted. Or-it is other-
\\ise, indeed, iJ
seest"the bridles with them, aUlI
lu,.t Jil'1's:t;,," thC' lU, it is thou who shalt pay fur that trespass if
the party are ignorant of what laud they ha, e unharnesbcd their
hOlses in.
As to 'tothht '-tre"pabs, now; t hi... if< ",,;,1 of LUl Hl:lkuown lmrlJ
who k,.,:c _uHj
kcd- their Jw
the-büd; and thou hast f:,'Íven
JI:DO-
MESTS OF
Co- TE..'i-
a!Qad
Calp.IS In a LIar, .1. nacUlp.IF;'OolJlt;hmacp.u.
[.1. Callt15 mlOplW, It; pnaët;a alpt11lle '00 rUI'01b, ap nl pt
Fer a '001 b, .1. 'Oanl1la FelltLre eaëa a11tbme Ft1' tom, 'Oamna eept:te
'Oe 'OlEum.]
'II._
,"\ '0'.0. ,)7)
8 .., L f""W"'""'/ c CN7\
C. "
'.2-
c or-c.A -..t\,C.I",,-
1j o{.t 71'1 (,''1 0 -r-
A
u' I., (,( D'CI<DIo)CCn( 'õ01l0AOltCC COllWt:11'i)(( Clll'Utn nU qtm:;,OOCt1}' <1b
_A J )
. "- <I . OI'\-C.p
-cA.-A ,L
U">' 2.J7 ('OIl1l((ll()(( [(,In'õnù
' } t1 lwê; 011l CC pEm:n ÒI}' (( ttr no a: u flQ':U68
FA.'lt.l;&e A IS
"'I
l'Je.I)1)-" o.nsC71"L
It
e If
loff!1t1li'p, t1tlEE((}' elpll1H (( nEOllt' 1-'((ltëe fa 'U1, f(( ql1,
fU cearhm1l, e(11 ((En tmL'he; nj HnE 1m tltlJtO , 1n t:p.et: aët:
6-41"''' 1: A
A ,
((En e1lttm; con1l((n'Ua'U chln'UL'a leqtum 1 n'De.
........w II
1'11-
t'IJ ,b7[--t
11 (,!,-N- ,
o If i.f
'C ,., LO'Þ &4 13)
,
v.. .
(C'þ/23J)
108
bll.eadlG eom((1t:hcera CCn'Dr o .
Jt:DG- C(I]l1le ín
colree 'Oolb fCOlt ann, aët; na'O nÞlblw '00'0 betalb nama;
IE:STS OF r
Co-Tu- (11' LUra aT1tcan í11 eatars pn 1altum amult bl'O a eeatlta Fa'Oerm
ANC\. t:o pOlpi> ímbe'O f111aën( FartC1 bCIL1 a qtelb.
D
6t..tL?) W """'It D.
C.28.
.:.c.
.1.-" C-"!">,A,I)",A. II i II ../;II -f.rW...
.d ?,I. -,.- II tt-U- t
aË 'õono, conrwnna Clnm'D f1l1 11e'õ,tr01l1lE1'D Eootear
W1l Eelæ
ín'D1
1ë,.no nqt 1me llín'D1 uc . t/ !J4v ru
1)1"1""",c..JI
'I"' C(t;a 'Oono op.cc .,. m::a 'Oono op.c U111wnnar CI1la1'O 1111' m t:p.et: p.'r
111 nmLLin I fU1L!t; ff'ët; nanmanna
P.I t;p.et; .1. 1m eut;p.uma op.p.o.
(Jeur as .1. as u11p.annar emf!!1) p.lr 111 t;p.et; p.lr m nmLLin 1 fU1Ln:; reë'C
nanmannaforímegt:p.uma. Olp.ee J)eat;a.,. 111 per;ap.oLIm(!l'p.c.
I .1. 111 t;oll tC pe((ra bplrear alt
:r Ocur bettear eotur per m
20 rpeL, euqtuma 1-1U 'Oa nanmann(( '00 pnaét; FalP, ocur Ft11 lmen
nnmann 'OatLhE11l. 1n 1-'eét; t;anlr'Oe Lel'O. euqU1mu 1-'PI eeltpl
hanmannatb FalP '00 pnalT, oeur euqwma Ft1' 'Oa ((nm((nna
'Oatt; h 5 11l . 1n qtear 1-'caët; "Celt;, euqwma 'Flu rpí hannwnna
'OaI"Ch5 m , ocur 1-1).1 reét; 1wnmanna '00 rmuët; }'wp. 1n ceat-
L, plmLe Fcët; Lel"C, euqtuma Ft1'r 111 qtf't: U1te raqt '00 pnul:"C, oeur
eut:puma FPI CCltpl h((nmmma 'OalLh5m, ocnr ar e 111 qtet;
be pear cuë FeaëL.
I Sheep ill their fold.-The text here is from O'D., 122G (F.. 3. Ó, p. 2, eol. I).
The reading in O'D., 2172 (Rawlinson 487, fol. Cj, p. I, col. b), is "eaíp.e ((
twp" and that in C. 28 (II. 3. 18, p. 12), is .. emp.lF; ILLmr;" the orthography
yarying as usual in the different 11188. in uearly e\ ery Bin
le word.
2 The litte,'.--O'D., 2173, has here, "There is as large a fiue upon the pet young
pig, as upon seven animals, '" ho goes if/to the !Ja,.de" the fk,t time. . . There
JUDmlEXTS OF CO-TEN.\NCY HERE.
109
""!
JUDG- fjt !-y-Oç
I\IF"TS OF
CO- TEN-
AXCY.
them to understand that it L'> allowable to unyoke there, although
thou hast not said so by word of mouth; it ÍJ3 thou who payest for
that trespass afterwards as if it were :!Jty. own cattle tl
at It(t(''-CC!l1!-
"!.ti
tecJ jt. It m"y Tench th" \1WQ'lRt Qf 'smacht '-fine payable for
trespass in a green aòJoiMiR
It"trot1 Së. '?
Sheep in their fold,' i.e., the sheep to be in their foM.
The sheep have fines for' airlim '-trespass impose,l upon then:,
for there is no fine for' feÍJ3 '-trespass, i.e., the makings of a spindle
(of wool) for every' airlim '-trespass into bare grass, the makings
of a ball into preserved grass.
There is a small pig that shares the fines with the
herd, and a heifer which shares the fines with the
herd; a pet young pig which is kept in an enclosure, or
in a green, which makes 'airlim '-trespasses into the
garden of the green twice, thrice, four times in one
day, but the herd makes but one 'airlim '-trespass;
they divide the liability afterwards between them
into two equal parts.
The calf, too, pays equaJ fine with that of the herd
where he is a trespasser that passes over the lawful
pasture, or over the lawful fence.
The rei s a s In all pig, i.e. there is a young pig which shares the fine" ith
the herd, "ith the flock in \\ hich there are se\'en animals. ,,- i t h a her d, i.e.
the same upon tIlcm. And a calf, i.e., a calf .....hich shares the crime \\ith the
/Jock Or the herd in "hich there are seven animals, in equal part< I'e t young
pig, i.e.,thepet
That is, the pet young l,ig whieh first breaks tltTOlIglt the felice,
and shows the way to the herd, there is a 'smaeht '-fine 2 upon him
uqual to that upon h\ 0 animal'!, and compensation equal to that
of one animal. The second time that he goes, there is It 'smacht '-
fine upon him equal to that of four animals, and compensation
equal to that of two animals. The third time that he goes, there
is compenl;,ation upon him equal to that of three animals, and a
'smacht '-fine equal to that of seven animals. The fourth time
that he goes, there is a ' smacht' -fine upon him equal to that npon
the whole flock, and compensation equal to that upon four animals.
And he leads the herd each time.
"M-.J-t.Ø<.'
"tJJa.;TJ M
wva.HL
Ï3 on him only the same fine as on every other animal the first time, the Bame as.
on hvo, however, e\ery time from that out."
.' S"vlcht ':fine.-That is a fine for violating the law; 'aithghin' is com-
pensation for the actual trespass committed in injuring the corn, grass, &.c.
110
bp,eaLh(( eOfl1mrhrer(( af1"ùr o .
.TUDO-
IFSTS OF
Co-TKs-
A....CY.
nla '00 cuam a aCIlulL fa L)Li pa pa'Onalb, oeur 1"w híc)'ca'O
caè na, ocur lwe qLe
111 cetJ1-uma'O feèr, cuqUlma flu 'Oa nal1-
mQ1l1lmb fallt '00 1'ma;;
veur fill llm:n UUma1l1l 'Oa1<::115111.
ma '00 Cuam na haencqL fO t:}u fla fla'Onmb oeur 1lilL hlcau
> 1laè na, ocur 11,ue t:}l,e-c 1ap, 1'111, cuqluma nul' 111 qle
fWP, '00
rm aët , oeur eu-cp,uma flu ce1tp,1 hanmanna 'OmdI5111; 110, ma '00
CUal'O a aenul" fa Ql', oeur nl p,o ll1ea'O, oeur lule qle
111 L)l.EUr
feaè-c, eU
J1-uma fILl re lwmnmm(( falP, '00 rmaè
, oeur euqwma
1-1\' t;J1-1 hanmmma 'Ow-cllE111.
10 111a 710 eua1'6 co fa 'Oi a aenUll, ocur ni 110 )l1ea'O In cet; fClT,
oeur p,o hlea'O in feèt; -canlrue, euqwma flu 'Oa lwnmanna fall"
'00 fmaè
oeur fp'1 llafn anmann 'Om-ch"S111.
'c:ð,t7,4- '\
111a '00 euam co fa '01 a aenU)l, oeur p,o )l1ca'Ò in ce
feër, oeur
1)i 110 ll1ca'O 111 feèt; ranir'Oe, eut:"J1-uma 1-T' 1'eè-c nanmannwb ral)L
'{'OO pnaè
, ocur cuql.uma flu 'Oa allmanna 'OwdrS111. .samtal'Ò
'Oono ill rat;.
J blf 0: tlf' .1. t;att. 110 (! frrlt;hëe, .1. o:mUlch. t1UseO:f elp,Lim.
. . tínS1"O f elc al' 0: telm ml', op, in f('P, no ap, in o:p,bo:l" ro: '01, .1. co ra '00.
ro: t;p,I,.I.COfo:t;1'1. ra ceo:t;halp".I.COfo:C('t;hml" ('(n o:en to:1t;h(',
.ù>.1. 1 no:en to t;Slt; Inunn he In t;an If CUt;l'uma mp, ocuf mtbin 1 rUltlt; 1'eët;
no:nmcmno:. 11í tins Imul'l'() In t;11.et;,.I.noco Llnsenn In t;mtbln o:ët;
((en teull mp, In t;m) '1' cut;p,uma op,l'o. Con I'an '00:'0 Cl11 n 'Ot; 0: 1 rrp,u 01
í n'Oe, .1.11' cain up,p,anmt; 0: Clnt;U et;o:l'p,u 1al'um ap, '00,101 cut;p,umo:
mP,rlum 1 n'Out o:nunn co ro: Cet;hmp"ocurop,p,ofum 1 n'Out1l1un'O o:('nreo:cht;
z.
CCs 'Oono, COI1p,O:I1I1O: CI11o:1'O, .1.11' e CUlt; in '001100:11'0, '00110: mucmù
p,o mrne1"O p,omml1'O. rOp,P,SI'O Seo:teo:r, .1. rep, mmt OCCI, ocur t;elt;
t;0:1' mp,b1"O 'OO1'msl'O reOlp, mtl; no 'Oono, seltt; Slf1l1I'C(1C 01CI, ocur t;el"(;
t;o:p, íme nín'Op,mc.
'Nì1l
}JvI7'+
.1.
0J1-1l5m ar a!!..lm '00 0 lwc1wr ar a 'Oab felt fem a n'Oat;
')0 FfJl nelè mLe, em all. Ime em cO
'Ò; no ar a 'O)wë t-"'f')l fem a
nua5 fep, nelè aiLe 0 bur -call ime 'Oeaë, no 51'0 rall Imme 5iu co
bea'O 'Oeaè ar a 'OWt; Felt Fem a n'O
tep, nelch mte. 111 p,alre
f O l L l l 5 ' 'O 1-1\1a em no_ 1l1
tC<:ï? ar a 'Ol1.Oeh fEp' Fcm a n'Ow;s telt
ne1Ch mLe, munab ratL Imme 'Oeaè.
I Laltýitl.- The word' 1I1'Op,UIC ' means' worth)". pure, honest, perI
ct, complete
lawful.'
JrDG'[EXTS OF CO-TE
AXCY HERE.
111
If he has gone alone thrice hefore witnesses, and he (ltis tres-
pass) has been paid for each time, and tlmt he has led the herd the
fllurth time, there is a ' smàeht '-fine upon him equal to that of t\\ 0
animals, amI compensation equal to that of one animal.
If he has gone alone thrice before witnesses and has not been
paid for each time, and he has led the herd afterward,>, there is a
, smacht' -fine upon him equal to that of the herd, and compens..'1.-
tion equal to that upon four animals; or, according to others, if
he has gone alone thrice, and bas not been l)àid for, and has lell
the herd the third time, there i,> fl ' smacht '-fine upon him equal
to that of six animals, amI eompen,>ation equal to that of three
animals.
If he lIas gone twice alone, and has not been paid for the first
time, and has heen paid for the second time. there is a 'smacht'.
fine upon him equal to that upon two animab, and coml)ensation
equ'11 to that of one Ilnimal.
If he hac; gone twice alone, and has heen l)aid for the first time,
and he bas not been paid for the second time, there is a 'smacht'-
fine upon him equal to that of seven animals, and compensation
('qual to that of two animals. The calf indeed is similar as to fims.
JUDG-
IE"TS OF
Co-TI!X-
AXCY.
"-hich iq kept in an enclosure, i.e., within. Or in a green, i.e., outside,
111 akes 'a irli m '-ueqp asses, i.e.. he leaps a leap, a leap OYl'r upon the gra"S
or upon the corn. Twice, i.e., two times. Thrice, i.e., three times. Four
times, i.e., to four times. In one day, i.e.. it is in the one (lay he goes oyer the
fern;e when there is a fille upon him equal to that upon the herd in "hich there are
scyen animal.. But the herd makes but one 'ai,'lim'-tJ'espass, i.e.,
the llenlleaps but one oycr-leap when the fine on them is equal to thai on the p,t
!/ouII!lpig. They diyide the liability afterwards between them into
twO equal pal.ts, i.c., they diyide the fines afterwards fairly bet"ecn them into
two e'Jualpm.ts, ane'lual .hare on him for having!;one over four times, and on them
for going overoncc. The '0
If too pays eq ual fine, i.e. the force of the particle
'too. here is, because it "aBof the pigs we havc o treated before. A trespasser
that passes ove,' the lawful pastur., i.e., he had good grass himseU, and
he goes over a palisade fence into other grass; or, indeed, he has unlawful pa.stura
e,
and he goes over a lawful' fence.
tJ...O'ÅJq. II
A trespas
el' is the name gh'en to hi-)} (lIte C(I{f) when he goes
from his ov.n good grass into the good b'rass of another, whether
over a hedge or not; or from his 0" n hall gra<;s into the good grac;s
of another over a good fence, or whether he has gone O"\-er a fence
or not, he has gone fl'om his own good gra,>s into the gooll grass
of anotlH'r. He should not be styled a trespasser though he should
lht'-e passed from his own haù grass into the go(){1 g'-.lSS of another
unless he ha" l'a
sed over a fence.
113 b 1 leudJ(( eomcudlcer(( all'Dr o .
ep.zt-
"""
"""""'
c
-..
r
1/
. \ 1P5 .1-, 'I;
:
F eWll-cc[1'qe 111 1me 111"011.1(' ?
111c('i) COlter, copo qu
t..-ø...
"'"" III .x
tJA-r>v 1/ )(
Mil
Co-TRY- l1((5, "("H' qW1;5Le 0 le1"("hea"O, 'D(( 'ùOj"ll1l1 'De]:;: 'ù1(( 1lCUlt'De ;
ASCY. """"..LlW 1/ "7"" A 7
m(m ('lor, t" l lt t" 1 wrri:e (( lC1t"he(('i) OC11r. a 'D01ml1e;
A l}.
II o
("
I/
tA
"'ql((l
a te1"("he(('i) nr ta11 1l1c1lLap" qu qlwËje a leldlea'ù
4 -4 .
A
A
ç
a 11101511e a C
r-"Si(ql 111 m111t, OC11
Ill((1;5L(', a I1Wll'De
111 mt111l. 111 (m tloc!
S,.; wle, 5POW'Ò p'De rtl1 'ù(!1ll.s= -J o:ðr;w" J2.-7
!ç) I
4 SIT-on,"
,oft /Z- (t.I,$".(,..Io O'D. 2174. rCU1t"he; 111!'ùlcea"O rctl1dle (ql (( 'ùlt11te, OC111' [tl1J "Oll:eL
",J oø4J1 _II
A,
..,
'ù((m ((11. a Ilwll'Oe, OC11r.a: 'ùwm::1Ie: 'Pa'DOlltl'D 'Dec 'ù1((
..,1\ {l..
JI J<i.4.-11 7 A
- llw l l "Ol'; qu Ù11l1cwll 111"01, 01111(;011. fOIl q: ]11(;((ql, OC11r
ad" ......"
,oJlwle 11l'õe (qw me"Ool1, OC11r a1w1te fWll 1(ql tlt1((c11- o',ð 'fU'1J
rh oA
rUll, CO
lUI5tl"O coch ctlG1lte 101t tlu((Chnlll, O(11)' l((111C111t
1't?"A
'J
'ùolb co tlartl 111 l focma 111 "("otom; 0('111' qu Ùelme((1l1ln 1 IV 71, z.5"
"t I "L,' t""'" [ "' J [ A 0 7 ] ,(
'.'1A
:::e 'J/
O'D. 21ï5. fWll 'Da f 01t(;(( (( Ceal17). C11r ql2i"CO l l11l I)e
rvlll<J-IJ If'ùelt 1101l
I1
l: '()O ('UwUr; rDìL
11'lltl'O for 111 ---I!
L;5wr rr{,x t- O'D.21ï:;.}(;uwlte ltOr C ( UtIOtllWtl, Oellr c1tt 'D1W15011l va'll. '{)1((
. f
" " Þ">><- 8 ").f.,l..,.
Ii
mol' fWlt [111 1me reo 1, '1' 'ùldlfO:-:;U1l Cql ceaqw. 1I-rtJt.
uÂt-A ø,.,... A lC)( It ] "
O'D.21ï:;. 11' omtle C1
111 'ùltI111111l' K11t [(( alfl"Oe OClt)' [0]
O'D. 2175. 'Dtu1dle, OCur [oJ 111'D1 lt1 C' u r. .....t.M"'" II
JM
M /;Ji[
ðP' l5"n
OIJa.,.,. /lftE
t4Mt
4'
M7\4.--ntk
,
'lr/5f"
oJ C.tJ\. F"""", í-r. 32.-
.. Call'-Cal'Oe In i111e 111"'O}l1C? .1. C0I1H11I'CI111 emn (ud,n""na 1111111'
1o'OL1;st15 It;IIl.. 111 a'O Corta, .1. 'OIU ct01ch tlr Ocur cLoch rOll.l'u almar.
lC telt;nea'O, .1. !l(1' nic1n::u1" CC telt;hea'O, .,. wl'l1uacht;ul" l.C
'Ool11111e,.I,wl'llal}l.'Ol. 1((1' 111Cht;O:I',.I-1UI1.1l1cnt:ul' tlr. C(" Le,t;-
I,I' a '0 11 (( 111 a15n e ,.1. ill 1I1U1'O 1 CU11't:el' 111 111UI' WI' nícht;all. a n' Ul ll..
wtC n((1I''Oe In mUlp., .1" fuarr. bI'ÙU1'Ô 1"'01' rru 'Oam, r cu1 t:he,
1.<.1. 5((bCl1'O 1'1'01' p.11'm lI'OllIn oeur 11.11' 111 fcmC1 mbec. 111 'OICHI'O
fCU It; n e, .1. noco t:f'It; 1
' !!i_1
e
c!!C:f 2.1(( f<
o
,! t;11.It; 01' 'OLurcll1. "D II; (' t;
'Oam a I' a I, (1111. '0 P,.1 nocot:elt; In 'Oañ, t:U111.1f ((11. ((111.'01',.1- 111 'Oa '00P.1I-
'Oec. (( '0((1115111', .1. nocu cumfcal5e1ln fe ((It a 'O((in;<;ne. "Da 'Oo11. n 'O
'Oec, .1. na t;1'1 buncol" CQ...11.U5u'O cach cualLte,.1- cop.flb C11.U111 '0.
J o 1o:I' nuacht;u11.,.1-na11.ab ctet l ' ((ma. tam cuI' 'Oolb,.,. acu l''Oo,b
I Bunch01
balld8.-11ands of oziers intenyo\ en beh\ een the standard., or "t..h..s.
· A malkt.-This ,\ a, for the purpose of flattening the bead or point of the
stake to prevent it flOm burting cattle. See O'V. 1:;:;(;.
· [nte"lcea
in!l fl'iel.erll"OI-1i.-For 'uara anama111,' of the text O'D. 217:5 h.ls
'uar .enama111.'
.. BU'II'ho,"-band8.-There is sometbing \Hong here in the illS.
Ç" t) r t
L O
/Çsb) , vl'W !rt k t n lvrx '"" P ..JJw ì " (
Î WJ- t{ 1
\J
'
JCDmIEXTS OF CO-TEXAXCY HEnE. 113
Question-""'hat i
the lawful fence ?-If it be a .hOG-
I
r-; HI"
stone wall, a wall of three stones, its dimensions are Co-Tn"-
three feet in & thickness, twelve hands in height; if
.
I h fì . . d 1 I . d 1 . . d I & Ir. 118.
a trenc 1, t reê eet III WI t 1 all( III ept 1; Its WI t 1
one foot below at the bottom, three feet is the
breadth at the place where the wall is placed, and three c
feet is b the height of the walL Ifit be a naked fence, b Ir. Tn.
it shall bea defence against oxen, and small cattle; the
small cattle could not pass throughitfrom its closeness,
aud an ox could not pass over it from its height and
its firmness; twel.e hands ({re its height; three 'bun-
chor '-bands l in it, a ' bunchor '-band at the bottom,
another in the middle, and another at the top; m IIÞ
'I
Btleh wise tl
at each stak-is rounded at the top, and
they are pushed down by the hand
t the 1Jl,
10.()
ground ftmY recei\'esthem, and they are each strucK
on the head with three blows of a mallet. 2 17u' length
of a foot as far as the joint of the big toe Ù to be
between every two of the stakes; three hands the
lenO'th of each stake , over the interwem'inO' wicker-
o 0
'wod., and a blackthorn crest upon it. If it be thus
made,o it is -a defence-against the trespasses of cattle. .Ir. iflhis
'I ' h I .. , l' " . 1 I fi d be upo.. 1M
e '( UIrIme -lenCe IS SIlllI ar y O}'llW as to fence.
height, and closeness, and lawfulness.
Question-What is the lawful fence? i.e., I ask how is the lawful
fence known. If a wall of th,'ee slonu, i.e., two stones below anti one
stone over upon them. In thickness, i.e., at the bottom. In thicknes.,
i.e., at the top. In depth, i.e., in height. At the b.>ttom, i.e., below at the
bottom. I. the breadth at the place ",here the ",all is placed, i.e.,
of the place where the wall is placed at the bottom of the wall. The he i g h t
of the wall,i.e.,np. It øhall be a defence against oxen,&.c., i.e.. it
shall be a fence aj;aiust the ox and the small cattle. The sma 11 cat tIe, &c.,
i.e., what crops the briars dol'S not pass throngh it in consequence of its cIosene"S.
T hat an 0 x, &.c., Le., the ox does not go O'er it on account of its h,'ight, ie.,
tbetwehehands. Its firmneøs, i.e., it is not remO\edonacconut of its finnness..
Twelve honds, i.e.. the three 'bunchor'-hauds.' Each stake is
rounded at the top, i.e., that they be ro.md. At the top, i.e., tlrat
they be not like oars. Pushed ,Iown by the ha nd, i.e., thrust It,)" the
VOL. IV. I
,TUDG- o tmm, COnar1tlraemann fe'OuLlr1l1 t:atma1n. '(;11a15 co l1U15e 'Oe1L
Mr.X;8.
F nop.'Oan, .1. CO "Oe"OaL na 011"Oan, .1. t:}1015 CO l11C1 111 1I1a'O, 1. CO bun 111
CO- fEX- ., . tte t1
AX("Y.tr 'OelLl5enn 10 Op."OU luf1n t:}lm51'O,It:1P. cac 'Oa cum . afa an amaIn,
'.1. uap:! EI
_f!1'!!. ro Ul1commp. na CIP.1 'Op.m5ín. C111 'Op.al)::aln, .1. lUll
,nu((cllt: u p.. "D, a m be r ((1 p., .1. ma 'OIU 1101b 111 'Oenam fin a111'f '01t:115-
ta1'7)1 "00 na ced111U1b l1e. 1 f amn e, .1. If amtm'Ò fin 'Oono 1n "Ouíp.íme.
1 t:1 P. a1}l'Oe oc U f '0 t U 1"L 11 e, .1. 111 'Oana '0011n'O 'Oec, ocuf co na '015 111
fC l11clle t:P.It: ap. a 'OLU1t:lle. 1 n"O 11 U C u f' .1. cen fæS((' cen bep.a, cen
bf'nna.
p.f.hI,f, Ð e""""";' D C,it"L'f- D
p.t""A
A ...... A ...., A
I. Smadn::: pea"La cht11ltp.e OCt1f. C111C
,xOCt1r peaca 01r,
(H.te...- :l) .IoU1..I.M7V A ".vr.....1l
OCt1r pem::a m1C"L1p.e,
r: peOL(t re1fteolft, oC'ur pca"La
fl11'DG1;S' (" 01p.E1tte ft01f1mb; 1"Le 1ft'Drl11 a can::hëe. C41nlj" Ii-
I3f
"1r' 0 fJ ,rs
0-' 1z.3b
t/'/M.8bE-
. ft
/Cd)
".
7IIO"..
cfo:ðM 1l+1i(
j)
D
D
{M, C/tV1Jí (, 1wJ.dWflv
tÑ1t
114
b 1 teadlG eOrtlO1"Lhcera all'Dr o .
O
.7/)
Smac11t: pea"La C11UI}11>.e, .1. na 11111te en U1te amU1tnaCe}1Ca,.I.
let flnaèt: rOl1f na anmunna fa. peat:a 0If,,10 amulL na bu.
.çpeat:a mlct:l}1e, .1. amU1t n(( cona cenn'Oa. tJeat:a felneoín,
.1. febmcc. '(;al}151tLe n al}1alb, .,. '00 é1l1"O t:<<1}1F;llL11Ca1rl}1 a
pnaé"L((, .1. 5etL t:01111t:llnecll W}11, F;ptt 'Oa fcp.epatL; ocuf If 'Oa}1 a
cpnn Ictm}1 fmaè"L(( 111a r05Lmb commd1cefa. .
D ,,,II" 7C.1. Ccm::êe g."Ch ' .!>e "Cp.a,
j OCl1r Eeol"O, ocur ceap.ca, OCl1f pea-;;-t.c-uv
. .
r'<;i. 'Ca"Ôa ëmp.p.e, ocuf belel, ; a "Oa'p.E,tte mi\\l1t caê ceCltp.a "01<< mòe
"Catp.E,tte 11atp.atÒ; trlU11a òe, a "Cat1'-5,Ue amult caë cem:; 11 11a
ptcea11a.
.;,
D (C.l,1)
Cattëe beach "Cp.a, 1"0 cat"Che pt "00 fl1l"Ômb, 111 "CatP.5 Itte .
'!
MJ.D
CI"Ô FO "Oepa f011^ atp.e ern tuam11ars, OCur fli pt "Catp.ceatta
2-1 FOP.atb, ocur Foblt
a naqtteanEea"O ulte 1 matte, (qul'"Oo eqtU-
Il
qnt:! <:11.'"1_ fin .11a "C
<þILh5111
a fmaêm ta comlttu? .;. ê'1"\.:
tím "01<< 11ap.lf"((11t a '1e1"\.a"O H"\.lf. FO recha"Ofum "C1'.a cattat"Ôa, co
11aê U1"\.ufa cafl hie a ëma"Ô. "Otif cat<1.l"Ô pt "OOIÙ, .1. catam "01<<
"Co I "\.a"Õ. ,p, D
/)
Co he1"\.a11alt ífl catars "OIU "Col"\.a 111m - at1l1fC1t a cOlttGep. fla
belch,"Oo bel It ífl rep. a"Õ5atp coml"\.uc FOI"\.f 111111lt ftn,co "Gem a t((1111
Eabata, ocur FO 5eatta-o 1<<1"\.um. 1ft bl"\.eat If ëOll"\. 1<<1"\.u111 Ime,
1"\.a111"O ín 111cata "OOlb 1 qtí .1. "Cp.1Gn "00 ul"\.E,wm, ocuf "Gp.tan "00
l)caëmb, ocur q1.tan "00 np.. CC quafl ifl dlte )1.anm:ap. fOfl a q"\.i
.io
1 If he deta;,,! all tlwt will be to1<1 him.- This ver
- obscure passage may pos,ibly
mean-" If he (the man injured by bees) rdains in hi, mind all I shall tell
him, in that cnæ he lIlay look after trespassøs by becs in such manner that it will
IIIIt he easy for the owner of the bees to escape pa
'ing him compensntion." Pcr-
JUDGMEXTS OF CO-TEXAXCí IIERE.
113
han<1,so that it cannot hut enter into the ground. A foot as far as the jointl)f
the big toe, i.e., tl) tbe articlliadon of the big toe,i.e., a foot till it reachcs the place,
i.e., tbe point" bere tbe hi,; toe separates from the foot, between l'\ e
- two stakes.
. 0 ve r the in t e r w e a vi n g, i.e., over tbe fine interweaving of oziel"s ......
.....
the"lackthorncrest. Blackthorn crest,i.e.,atthetop. If it be
th liS made', i.e., if it be of thi- make it is impregnable to the cattle. Simila rly,
i.e., the'duirime.-fence is a]oo thus COIlStl=tfd. As to height and
cI 0 s e n e s
, i.e., the twelve hands, and so as tbat the small cattle could not
pass through it on account of its closeness. Law f u In e s s. i.e., withollt spikes,
"ithout spears, witbout points.
JlDO-
MExr, OF' O
ï ç-
(.0- T. ,,-
AXCV.
iII
.,
As to the 'smacht'-fine for pet herons and hens,
and pet deer, and pet wolves, and pet old birds, and
pet foxes; there is an additional pledge upon them;
this is for their trespasses.
The 'smacht'-fine for pet herons, i.e. all linàs of birds are liab'e to
jiMS like the hen o , i e. there is half 'smacht '-fine upon these Iluin,als. Pet deer,
i.e. like the cows. Pet wolves, i.e. like the domestie dog.. Pet old bird.,
i.e. hawks. Additional pledge upon them, i.e. for ad.lition their 'smacht'-
fiues are paid, i.e. there i8 a relie\ ing pledge, a pledge of two' screpall.;' and it
is for tbis 'smacbt'-fiues are.p;ÿ.d for their trespMSesiu co-occupancy.
.
As to the fines upon.!.3.i.tb.ids,' i.e.
and geese, and hens, and pd
herons and bees; their additionallJledge is the same as that of all
animals, if they are liable to additional pledge; if not, their addi-
tional pledge is like that of cattle in general.
As for the trespasses of Lees, it is trespass fines which are due
for these, not additional plcdge.
r;f. Cr.w-. J
(f. 3;U)
a.
Ie
".,.. -tuo.
"
hat is the reason of thÌB,?f
y are swift, amI tbere is no
u. '-1-
restraint upon them, and beca
s
",t!:fY
not all togetber, for tt"is llø /
e 'airlim '-trespasses
do not incur re:ititution or
'smacbrfi
e
h1!
Q
'CHtKm c.rl i.e. 'ai.rlim '-trespass,if 1w
"j ;1
/'(. '<-.-<-ø/ "Y'"!-:rn.
a1
iÙ Le
í(l-illm,l he-ahall now leak to tn'SfJl1U;U;';
it is l-t?! IO'T'
BOt e,'I>J to !tw.i,l P
) ÏD.g-fo r tJleir damage. There are two fines for
them, i.e. a
JI!l 0/) tbeir produce.
How is the
f tbeir produce paid 1 Answer-At the time
of smothering the bees, the man who sues m
kes a seizure of that
honey, and it
into the kceping of safe hands: and
after- . Jr. .IT.arul
\\"rd" ISubmit\'N. to a\Hlrd. The decision which is right to make oisel,w!!.
aftel'warù.s concerning it is, to ill \ ide the ]lOnpy between them into
thrce parts, i.e. a third for attendance, and a third for the Lee,"" anù.
a third for the OW'lCi" of the lan<L The thirel <tl1'Jtted for the land
haps, it should be rendered, i.e., "an' airlim '-trespa
s in \I llich theJ' del..y so long as
to C01nolit rl:mlage, it is not eas,Y to :l\-oid p3).in;; [(If their d..UHac;(',"
YOLo no. I
4
.J UDG-
JlU'XTS OF
CO- TEX-
'}; ./rtÄft D A
n.
-J
11 G bp,ccn::hl( e0111cm::hcera allDr O .
þ (Ct..,)
.1. quan "Oe "Oon flIt be"O a belch 1=0 brdl ín np.e ar a t1"Op. ean 5 a "O,
in qllan nmte 11.a1l1H;cq1. ron 1"L1P. na ee1t11.e COT!1mëmb ue"Oa
neara "00, .1. 1 1IIb.!'IÈ bw"O. 111(( 1:çl,9:-ç.h tmr in LOnWr fin caé
I)
btmòam rmp" 1,
belp. fmëe caé eommëarò bera ner om ."
1.11'
; L:'1.í e111m"O"Oo e1p,e .1. roxa
,oeur"OoIU;a"O,oeur eop.ua"O. 'Leop.a
bm11.5ena r f l1.r ume eona nanntann; oeur 're mel"L 111 anntal1lTJ
r m eomn5m:; eaëa batp'5111e "01b, oeur ({ teta"L; oeur 111 ra11bup. 11'
mo mltt1"O na eel
e, lr"Oe 1e"Lul1. na bmp.511la r11l1r 111 emm"O"Oo
n1m:; na eqlea arrlE. "Damna "Leop.a rel1."Lar bera ríu tetrctleputt
,0 111 a emam 1 t1r .1. maetrtuea"O beë, oeur tor 1101"01 oeur e0111"01,
o('ur noeon amU1t r05wt eommtëer fin, aër ambIt amll1t bltb111ëe. , J" A
(C q1.í emam .1. reërap.
lr [.1. 11.e h((rhatu oeur mUlttennl
J'-
* * . . * .
oeur 11.e "Ompb aI1U((p.; oeur all reë"L ee11emu 1.eor m:-a 1111 11Lh fin,
') oeur noeo rnr rW111r. 11(( per(("Oa en U1tl amU1t na eel1.ea nna
f 0 5 tmb eomwtecru; reol1a. -IF
IO:ð2:Z.7 D
c
J, cue--
(
$i.175. 11a hUlt1 en amult na ee11ea 1m a r05W eOlmeera. '
a ql1
nJI.w
r05
a a LIb' fOX((
, oeureoI1bcr6, oellr "O o l1.rcr6. U: <t1.1 ee r 0 5 ta a CI1v-f
tll" maetrtue@ beeh, oeur to"L 1tórò oeur eamn111ne. ---.!.
L: eo l w ball1.5111a 111a fOE<!!t Cf;"LJb' oeur tetrctlep att a t1r no a
tuu50P.r.; oel1r mélt rOI1.1W a reë"LUI1. t1r,milUlt na l1.uba elte 119
"Oot.!!> ë.ena, eomûf1aeh bltbmël uatlb 11' na bec1lmb oeur ir 111
U1"Lh. 11' ann a"La a tWl111e a "Oubl1amup, 110mamn 0 na eel1.emb
an 11lu m"Ò arú an eOÍ1n
a "Oe111. "Otrb
011.1ta .1. eoëmtt impa,
1.> oeur muna bet, co mblcr6 paé "OlI1fle emtl or-l w .
'<AI
t;:" I
11a pera en Ult1 amU1tna e
lca
ma f05tÇ!!þ commcera. 'L e0 1 w
ball1.E111a a e11lmE, 'I\Q ree"L nan1llunn "01b a rIb, oeur Let rct 1e paU
" Roidh '-plallt8.- rid.e "\012, P. 420 n, 42l.
. ÁlI(17llills.-TweIItJ -five letters have been here cut away with part of the lower
margin of E. 3, 5, page 3.
. Of co-te"a"cy,-The :MS. E. 3, 5, is here defective. What follow8 np to the
article on hound trespasses, p. ] 20, is supplied from O'D., 2176 et Ifq., and C. 29.
See Welsh Laws, p. (j!)2, folio edition.
JCDG:.IE:S-T:3 OF CO-TE
LUICY HERE.
117
is itself divided into tllree parts, i.e. a third of it is [Jiw
to the
man who owns the bees on account of the land from which they
come, the other two-thinh are diÜded between the four nearest
neighbouring farms, i.e. "\
here food (for the bees) is. If this dis-
tt'ibution of it every year should be deemed tiresome, each nearest
farm takes a swarm.
Tlwre are three trespasses of the hen, i.e., snatching a\\ ay, .1-,/,;,,?
spilling, ancb:rastil1g. T/
efine is three cakes of man-baking \\ ith J"
/r
their condiment; and the amount of this condiment is to e']Zwl the
thickness and breadth of each cake of them; and the corn "hich is
more injured than the rest, it is of it these cakes aI'e 'lnade 1c1ticl
are pÚd for the trespass the hens commit in a house. Three cctl.xs
for tlteir trespass in tILe house. The makings of three spindle
(full of wool,) which are worth half a 'screptùl ' i.
paid for their
trespasses in an enclosure if a garden, ie. the soft swallowing of
bees, and the injury of 'roidh '-plants), and garlic, and this is not
as trespass in the co-occupancy, but is reg:u"(led as viciousness.
Their three trf'spa.sses outside the enclosure, i.e. in kilns and c.f b',ð.
z. , C
mills 2 · · -IF and on corn-stacks; and on seven hens this
addition is, and it does not go beyond them \ tlwt number). All the
petbirds are as the hens as regards their trespasses of co-tenancy ;3
three -IF . ií-
All the birds are as the hens, with respect to their trespassE's in
the co-occupn.ncy. The three hen-trespasses in a house are snatch-
ing away, v.asting, and spilling. The three hen-trespasses in an
enclosure are soft swallowing of bees, ailll inj uring 'roidh' -plants amI
gadic.
Three cakes is the fine for their trespass in a house, amI half a
'screpall' in an enclo>>ure or herb-garden; and' the sacks' are clwrged
upon them outside the enclosure, like otller trespassers. Or, indeed,
ctecording to others, it is fine for thievishness' that is paid for their
slV(tllowillgthe bees, and for trespasses in the kiln. "-here the' eric'-
fine which we have mentioned abo\'e is paid for the hens is when
the restmint which the law orders is upon them, i.ees
f rag:9!
upon them, and if they be not upon them, a fine for man-=tI'm;pass
shall be upon them.
Alll'et ùinls are like the hens with respect to their trespasses
in- co-tenancy. Three cakes is tl
e fine for the trespas.. of every - Ir. Of.
se"en birds of them committed in a housE', and half a ' serepall . in an
JUI>O-
MEXTS 0"8
Co- TE'1-
ASCY.
. Tftiet"Ì.lll&csß.-Tbp . bithLinchc' of an animal i3 his acquire<! haLit uf injnring
or trespas.in<,;.
:p,[1.:ST
OF
Co-T",:s-
^:sCY.
1) {1..(r
11[. "g. 'S-
118
bp.eadm eomWt;hcera al1'DfO.
.J IiT>G-
a Llff. ocur Let melch a 1'eé"Lap. Llrr. '(;al1. Lan ime aLa 1'111.
ocura Let "Lap. Let 1l11e, ocurcm ni mar dn Ime ILll". Cu COChtU1b
umpu l'Íl1; no "Oono, p.o cuI1" a mbqlte ar p.o bu dl1n"L1 LeII' a
. . 1 [ I<'e-." ]
nem"LWC"Lam arr; pac 1 "Oume Cal"Le ItJ1UllftO , P!.)..1.p.u muna
I>
.- fUlbL"L coéLa U1llPU, no munap. ta 1a"L conml" arr p.o bu ém"OLI
LeIJ' a nemtmé"Lam.
-&tðQ,VIVJI
'(;eop.a bWN:;ma fell.fume co na nannLunn b1lerUIn caéa pmdl1
ap. p
ba11l51na bWlfume, qu bWl\S111a CUlllCI an"O, Ocur an
cé"Lna "Oeop.lla; ump II' ((int
ictall. melé 111 C01llwtcera, tet "00
10 é0111.CI an"O ocur Let "Òeolwam; ocur nl ClIqluma'i> a tot;. tWlp.
m "Loé"L1Ila'i> lwnn oét:-m05a<:; "00 pmE111n L05 na rpl mbwp.Eln
c01p.ce,oclIpn reé-c1l1a"Ó1Wl11l rerCa"L "OoP11l5111"Oal1. na ql1 bWP5 ma
eOlt11a"Ó. UClIr "Lab1111" na 1'é bmp.Ema rm Olt q1.i bWl1.5ina fep.-
fume, feol1LmE co Let ocur qu lullma "OfC011.t11lE ocur "Oechma'i>
,., in "Oechmm'i> "OreollLm5 L05 ann, no na q1.i mbmll5m Irm. Cin
"00 maLL na ceal"ca Ir m "C15 a"La fm.
'Damna"O "Lplu
;r"LlIr be"Oa 1--1U tet'l'C11.fp aLL ina cmw"O aLII',
tet-,nelch ma c11latl'i>} a 1' eé-c all br. L'''
4
CC qll cmw"Ó a Ll5, foxat, oCllr "Oolu:a oCllr cop.òu. lC qli
2D fOELa aLII', 1llaetrLucu"Ó beaé, ocur LO"L ltól'i> ocuf C011l"Oenn, no
flU beuchu ocur Lur ocur qwacha. (C qu fOEw'ÒJ.I 1' eé "Ca l1. Llr,
.1.1 le húr1Jalb oClIr 1IluILLS!!!! ocur l1.e "Ompb a1lba; no flu rabuLL
ocur flu l1útl11b ocur 1-1'.1 5011.t:ulù; no "Oono, conú úu
o5atc01ll-
wtëer a "OO1hptJ1ll na r05ta 1'111, aé"L a 1Ilbet amuIL ùltb11l51, oClJr co
1.ç 1'eë-c cep.co a"La m 1U"Lh pn. 111wch ap. ë111.C na bl hmmll.lcr, cumu
Let 11Ie1ë al" ëwteé; cuma dn CIT'.CI fill tuù501l"L oClIf befichwb.
i4
, [Cepca; a "CWPEILte ammL caé cetl1a, Wll. nl mpS'Lta"O "Lap. .,.
C.29.
Itl1J1WIC ocur 11111'e nm"Ollwc flur; ocur cua"O "Oa oll"Owë "Oec, "00
El lún , 11' r1llaér. fit "OOlb fPI caé llall1LI1Il; ocur a COI11l1lH
"O ((1" na
lo"OlCCre"O "Cap. m"Ollwc I'm, Im"Olbe a ne"O m 5 oClIr ullcomta f O l lUIÙ .]cJ 1!.!lS- If
o I Enclosure.-' Lis' means bere, tbe elldosure of a gar"en "bere bees are kept.
COl1di7llellt.-' Âllnlanll ' is aD)' tbing tal.en with bread, such as butter, sauce,
bacon. &.e. Dutler and bacon are the hinds of 'annlann' usually referred to in
these 18"s.
J{;"DG.l[E
TS OF CO-TE
A
CY HERE.
llÐ
enclosure, I and half a sack for trespass outside an enclosure. This is
wlLclL they have passed over a full fence, and it is half for trespass
over a half fence, and nothing "if thcre be no fence at all. This is
when they have boo ts of rags upon them; 01', indeed, according
to otlters, Jle(the o
) put them in a place from which he felt certain
they could not come; but fine for man-trespass lies against them
unless rag-boots be upon them, or unless they LA'-e beeR sent by
a way through which he was sure they could not come,a aIr. Th,.i,'
Three cakes of man-baking "" ith their condiment" of butter or non-co""R!1'
b,)con every quarter of a year, are the equivalent for six cakes
of woman-baking, which consist of three cakes of oats; and the
S.-)Dle numúer of barley; for the manner in which the sacks of
the co-tenancy are paid, is one-half in oats amI one-half in barley;
and their price is nut equal, for the eighty-eighth part of a ' ping-
inn' is thc price of the three cakes of oats, and the sixty-sevcnth
part of a 'pinginn' is that of the three cakes of barley. And
taking th('se SLX cakes as equivalent to tlll'ee cakes of man-baking,
their price will amount to a farthing and a half, and three parts
of a f,)rtJáng, and the tenth of the tenth of a farthing is their
}'rice, or that of these three cakes. This isfor theJ:.æspass which
the hens commit in the house.
The makings of three spindles which are worth half a ' screpall '
are due for their trespasses in an enclosure, half a sack for their
trespass outside an enclosure.
Their three trespasses in a hom,e are snatching away, spilling
amI
. 8 Their three t)'espasses in an enclosure are soft
S\\ allowing of bees, and the injuring of' roidh '-plants and garlic, or
of bees, herbs; and corn ricks. Their three trespasses outside the
enclosure, ie., in kilns and mills an(1 stacks of corD; or in a barn,
in kilns and fields; or, according to others, these trespasses are
not tr
spasses of the co-tenancy, but they are to be considered
thieves,b and this fiue runs. to seven hens. A sack for a hen that b Ir. As
L" not ban-en, and hence half a sack for a cock; equal is the thitvish-
ntß8.
fine for trespass of the hen in an herb-garden and for tlte injury. Ir. This
w7âch she does to Lees. run i. "1' ,.
. . . . . 8H"eii he,,;;.
':
LAn As to hens: theil' ad(litJonalvlpdgefine 16 lIkc th,tt of e' ery ki"d J") -
r.
fQf cattle, for t
y
l,
11 not l'
--into a.lawfu ll'lace over a lawful . . rf.J1 /la.. S
fence; and a cUI' of twelve inches, of grain, is the' smacht '-fine
"hich is paid for them for e"\ cry' airlim . -tre!>pass; and this" lien
they arc guarlled so as that they may not pass over a la,\ful
fence, their wings being clipped and spancels upon them.
JCUG-
:)lI:.
TS OF
Co-TES-
A
l'Y.
I Jra"ting.-'C'orb' is gll'ssed 'calt:l'arh,' srending, wllsting, or consuming
'Corl>ao.l' (another form of the word) mcans als{>, dilt
'iI'g, lIe filing. p.J
.
U/.
e-..r- ,. c'<
Þ #w.
/011. 1/,eJ if-
'I' 'D.J;l ,r-114., It.t
Iut.
""7__,. _ ( , ..
Áe 'fl?". n'-
*
-fr
) --
120
brteadla eommt"11cej'a an'Dr o .
J Øl1,T l"DG-
-tvt"tI
iFSTR OF
Co- TF:S-
A
rr.
8ic.
11a com atb:-rr,ocur na f1nnwb, OCt:r na LTwm,no na bp.ulc OCur
na "Oown anullt na conu cenn"Ou um a j:05twu comw"LTJCer a . 11a
ha
att{;a WllUlt na hWb' ceann"Oa um a rObta u commtcera.
11a 1JJuca att{;a "OU mLedr ap. cumur nClë, amult na muca
f" cean n"Oa.
11apa"Óu 1'0 amultna ceann"Oa II' COpllUlt nuu um rmaë{;; nOlI'
tet pach ua"Oulb na nanmann II' cormult T-1'.IU, amalt II' tet pach
m"OLlb 1'111.
t:eolW bW)"lb ma a 1'ma{;{; a LIb; cu P.U151 reé{; tetrCTllpUltt
10 rma{;{; a tlr, ocur melch a reé{;all. tlr.
TV /&1) .
ne elte. 1n cOTlP. ocur m renen, amulé a{;w{; a cmam nnlJln.
HIt m comwtcera cu TWIce Llll rcë{; IJanman"Oa, CI"O Ite rcuU'a
Let ann, ach{; 5u p.aLu1"O a comín5wp.e cona mLet ac "OenulII
na rOb ta ; no 111t rOIl cué rCltb muna rUltl{; a comín5wlle.
-'t;'&W
. "'
I (,\"Z-'18"
lL,( r:/sil/D Uti.H.td) J' "UJ
H.,'tA
I I'Þ/).'"LC.1-1) ,"-Ccuft-ctaj'a cadwc11 FO pch cu FlU LIlt 111 comICW'D?
t,"P\. Jt
.1A,1I belftl'D dl1n cont0111.
ð'
.52.Ç
""...
.t /I
. 'o.w..... 4
It .t.......? It ...
v II
C1'D }'It a rm::a111? buaíne 1n contt1mn 1 mtam, orU f
to..-tøJ.J.iSI
rJto". It
'n. c..Jt...wh"" -......O
K
mt((m 'Dalt a e1j'e ; :.ocuj' q;t::e " olta helme1'De 111 chontuatn,
, __ 11 ' to 'I "lilt .....A
({ l1cumem 'Do 1m, OCUj'
a wmem 'Do J:l1- t dl, ocuf a
i It 0-,.... lit - ....t- A- t'&...c.1:t Grr"f'e.c.kt"w A.
2011e1mem 'DO t::ae)' :tna 'Dl l te
"COlrCea'D caë -ae r 'D l lecllt::
flÞTII.setl -
cona chmnt::cub 'DO neach fOltalj'ea'D, Kll1- -Dlfte OCt1r
an:::115 111 .
c.07J'\.Cc"itA.ce3Q..
lAAb ... el.ol..ft4- It,,"- A
8m((dlLa comlc11
ra came cot
tl'D ((
1r11,
!l 01 ù1
O'D. 21ï8. j'macht:: ad It:: t(( cotal1l'D a Felch? Felt 1 Latb t10 [111 ] atft-
.......""'"It z.>cean'D 1't::e cotan'D a Felch.
i, h, .... Lot...,..". "
1 Oll'nc,'ships.-A 'scilbh' mcans a di-tinct p08se
ion, Ihe stock of a particular
pcrson.
· QIle.<tion.-The te....t in };. 3, 6, is defcctive here.
· The feeding.-The term" conLon," or 'conLuan,' means" dogs' excrement,"
and is so glosscd in C.
ïS3, where this .-cry paragraph is quoted, but in some-
what ,liffHcnt language, thus :-" CaJt'-;-Clrl can:::1 fO pë 111 cu fIll LIt' 111
commteera, en> befle Clll eonto1l1." It is evident, howe,cr, from the gloss on
Ihe passage in the tcxt, that the author of that gloss underòtood it as "hound's
JGDGMEXrS OF CO-TEXAXCY HERE. 1
1
'ðíð','lSb,
'10 ",Ik
?
"Ø(
")
II The wild dogs, and the foxes
or the badgers, and the 'togans,' JI:DG-
. . . "E
TS OF
are as the tame dogs wIth respec to theIr trespasses III the co-ten- Co- TE:S-
ancy. The wi]d fawns are 1ike the tame calves "ith respect to A:SCY.
their trespasses in the co-tenancy. The wiM swine, if they shou]d
be in one's power, are ]ike the tame swine.
The wild deer are 1ike the tame deer which are ]ike them, with
respect to ' smacht '-fine; or, according to others, it is ha]f the fine
of the anima]s which are ]ike them, tlwt is paid for them, as it is
ha]f fine t!tat is obtained for them.
Three cakes i& their' smacht '-fine for trespass in a house; their
, smacht '-fine for trespass in an endosure may amount to seven
ha]f ' screpaHs,' amI sacks are due for trespass outside the endosure.
Another version. .As to the heron and the hawk, their trespasses
are outside on]y. JlAnd the fine in the case of co-occupancy
exti'nds" as far as three times seven anima]s, e\ en though there' Jr. The
shou]d be severa] distinct ownerships,l provided that they are under run.
common herding at the time of committing the trespass; or it extends
to each distinct ownership if they are not under common herding.
Question
--Wbat trespass does a hound commit
on the land of a co-tenant? The feeding 3 of him 1tA
Mt-
-in.v.cl.-v.8fl b fJ.. liability for his
.
b Jr. Bfa/'s.
"That is done in this case ?-To take a"Way the
hound's orddte from the land, and settle the land
after it ; and three times the bulk of the ordure is to
be paid as C its ' dir
'-fine, its bulk of butter, and its.
r. In. Ø'?V-
.{.,
bulk of curds, and Its bulk of dough. The support ...v
fdi"
of all pet animals and their troGpaCßos fall on t he
fw
"t,
i)CI.
ðn ,\ 1JO tn'I1.., tlwrn , both as regards 'dire'-fine
I't
and compensation.
In the 'smacht '-fines of co-tenancy, what is the
substance of the liabilityd incurred by them (i.e., on d Jr. Body
their account), for there is no 'smacht '-fine unless of the debt.
there be a su bsta
tialliability. d The destruction of
the graf':s at the side or at the end of the field is
the substance of the liability. d
IJJAN fV't - û.Jt,...
}o/J-/J1Jf-
.
-
food," taking' ton ' to mean as it does in the modern language, · food,' . provision,.
&c. .. CI'Í> bel\e em con tom," as quoted in the glo.s C. 27r\;J, means" who
bears (or shall bear) the trespass of dogs' ordure," l\hich is probablJ. the true
meaning of the clause in the text, though the glossarist understood it otherwise.
122
bp.eadla eomWt;hcera an'Dr o .
Jl'DG-
1I1F.
TS OF
Co- Tm...-
AXCY.
Calp., .1. c()mmp.clm Cia cm commtc:era }:'uuc1rc;r,al5Cr m cu p.e }:'ef1.unn
tncommd115' belp.I'D Chili, .1. bmp.I'D emt;u m COli m t;1 t;UeUrt;ap. Lon
bI'D'Don ëom.
p
.1. Ca1te con
1. a ceaëa1l1" .1. 'tJumeca1te, OCUf a UlI,bach
r- ceatll,a, fobaè nan::lI,elbe, OCur conton 1 L:IIl.. CWf1-CrD 1 f05am 1
Ouame in contuam I'm 1 "Cata1l1 ocur fOL: in'tJ 'tJ((lW eire, oeur 00-
ëOll. fa1l1, co ceann mil" 1n cmari> a1te 0 L:Ú ín ceL: chinaI'D .1.
a1L:hsm inelë 11,0 bl1.Onna in ceL: cín, Irm l:anlr'tJc, a bar inTI!'
Cn'> fO 'tJef1a ron ,,cap. ni 1::elL: ceaëa1p. a céL: ëm 1 "i [) I].fr (t7-'i)
u.t
D
y. D I""'Cr it z.,}
t
<ÍØ
f)1it-2.67
10 [Cé f1.0 tfra
<::; 1tI cu ap. reaf1.an'O 1tI COlila1:Ö't; noèan i'ult ni ua'Ò
mUna 'tJclI.nna'Ò contuan fa1f1; ocur ma 'tJó'11.0111C, 111",nT1a'Õ 1
ímWlnna1'Ò 'tJo L:0c11UltL:, OCur Ú11t 'tJo bU((1I1 arr 111 a11leL:
11' t
llI.
tmt((dl 1tI con tua1l1, OCur ÚIf1. min a coma1"5111L:(( 11l'tJ. ....
'l
L(?
''It':?'2.1 /
;, f\ '/y'/,z.,
fPJ-y Af
h.
:!lï7-8.
\\ N q
. '7
\...DJ
' n3
ì
1 rre'tJ 'tJtq;uf1. buaill 111 ÇQlltÓ1tl a mt1l1u11l "Epn 'tJO 5((bull. a rÚÊ
,
anll, ocur a ronna'Ò ocur a rút á'Ò , ocur úlf1111in a c011la1"5111L:a ap.
ron a1L:hsma. 11' 'tJef1.11Lc rtú1tln rm; aëL: co n'tJlc11eL: 'tJa e((ch
Ulll.call.PUL:L: hi COllU117G ((nTI olur cOllsteteL: an'tJ, oc11r conamsten
(( pacta ni 'tJon feof1 05a stelt. Oeula t;j11 1111ne17G;m ëae
a a1t
ron a1L:h5m((, olur a méL:'tJlm
OCUr a méL:'tJo taer, oeur a m(L: TIO
"0 Ell.UL:h; oeurin ni 'tJlb 1'111 na f(('t;"Cfttl, 5elbæ 51le1111111 .11. L:((f1.élJ'1.
Oeur ma'tJ 1 paTIna1f1 Pf1 buna'Ò 'tJO l1ét m eu eontu((t] ap, in P'l'M'Î
co mbet paë 'tJumef
lt1 ua'Ò al1'tJ.] -
K., . J IIv Of .
X OJ Wi,
i.I,
: ().,
Ií .to W\I,..IÅv #""",6
ß. CI'D fit a r051:11n? .1. eI'D fILlrmnía'Dalrm,lrmf05mteomalt;hèera.
buaine in tontua1n, .1 buml1 èuea m con ar m t;aLmam. Oeur
.{t;atam 'Dap. a elre..I.t;o:LammLI'DaP.o:elf1,.I.arOllncmOeUraraLo:'D.
CC t;eop.a l1elmel'De..I.inconLom in'Dap.ron'Dlp.e. 1na'Dlp.e\.1-ap.
Iron rmuèt;a. 'C01 ree a'D cuë aer'Dp.ech t; .1. t;mrCe'D cm'[ap.eèt;a t ""
'!-
p' o r Ualf1 'Delrme cona 'Dep.nm:; t-'o5mL. COli a Chili n t; a 1 b, .1. 'VIe, 'Via ll fi
v
(l
] Fow'.-In C. 2U, the real1ing is cetmp., four; v.hich scuns to Le the correct
one. . CeuëCU11.' 'bunUy means . dirt, filth: 11 sense" hich the coutpxt does not
appear to warrant here.
. Four time.o.-The original is defective here. Taking' cent;mp.',' four' or' A
qna<1ruped' to Le the correct reading, the sentence may mean, ""'hat is the reason
of this, for a quaùl'11ped doCt! not go ill lJnyment for its tirst crime?" 'fHking
JGDmIEXTS 01<' CO-TE:\'AXCY HERE.
U3
Question, i.e., I ask "hat tre<pass of co-temlncyùoes the hound commit in the
neighbollr's land? Invol\"'es a liability for his trespass, i.e., the person
who has given sVlre of food to the hound is accountable for the trespasses of the hound.
That is, the trespasses of hounds, i.e., four', i.e., man-trespass, and
mangling of cattle, breaking of d \VeIlings, and committing nuisances
on land. Question-'Vhat is done in this latter case Y-To take
that ordure outof the ground, and place asod thereon Rftcr\Vards, and
cow-dung is to be left over it to the end of a month.
4s to the other
t.respasses from t]Je first trespass out, i.e. compensation is to be made
for the thing injure(l bÿ the first trespass, for the second, the life of
the Iwund is taken. a ?
'- aIr. It. .
"\Vhat is the reason of this; fut., IH\ no". :!lot r epeat
st tres-
.
q-
p
ss fÆJ:!P time s
. Q,.p.v,..
h 7Lf1'
..,..,.
?)
Though the hound should come on the neighbour's land there
is no fine b upon him (tl(e dog), lUlless he has committed nuisance !r..
upon it; and if he has, the spot on which he has done it, is to be llOlhlll!f.
dug up, and the clay to be removed therefrom as long as the
smell of the ordure is )1erceived, and fine clay of the same nature
with tlwt taken away is to be pllLced thereon.
'VIlat is required by law is, to remm-e the dog's ordure out of the
ground as far as its juice is found, and it (tIle ground) is to be
pressed and stamped upon with the heel, and fine clay of the same
nature is to be put tltere as compensation. This is the test of re
n'a-
tion; that two horses of a chariot in yoke come thcre and graze
there, and if no part of the sod of grass stick to their teeth in
gmzing on it the reparation is complete. And three times the size of
the orùure 1'S due for compcnsation, and" its size of bntter, and its
size of dough, and its l:,ÏZe of curds; and the part of them that is
not obtained in the one is to be claimed in the other afterwards.'
And if it be in the presence of thc owner that the hound has
committed nuisance on the grass, a fine for man-trespass shall be
paid by him for it.
What is done in this case? What is the ,'ryaration in this caee, for the
damogein the co-ocr'upancy? To take away the hound's ordure, i.e. to
tahe awa)-thehound's excrement out of the ground. Anlt .etlle the 1an:d after
it, i.e. to put other earth there after it, i.e. to pre.s it and to trample it with the heeL
Three times the bulk, i.e. of the houud's excrement i. to be given for it as
'dire'-fiue. As its 'dire'-fine, i.e. as 'smacht'-fine. The
of all,
pet animals, i.e. e\ery
l is re<trained h) it that they commit
.
not trespas., And their trespasses, i.e. to pay, i.e. if they have committed
J l"DG-
&IE
TS OF
CO-TEX- e
AXC\"'.
'cea cU1 1' to mean' dirt,' or 'excrement,' the meaning would be for" excrement
does not go as a first trespalls."
. The 'ocuf. in the original seems superfluous, :mlells it is meant for .1.
. Afte,'wal.a..-That is, if it be not obtained in butter, it shall be given in dough, &c.
124
OfleadJa eomw
hcera Ul1'Dr O .
J!:'PO-
n't>eJ1.na"C cína1't>. "Do neach rOJ1.alrea't>,.I.'OOneoch ruach"CnmS1"C.
1"C1J1. '01J1.e,.I.na"CeoJ1.amme1"CI. ((I"ChSln,.I. ín teOlJ1..
mach"Ca com 1 ch eara,.I. 10 nírmaë"CmS"CeJ1.lrlO a"Chechurcuma1't>e,
na rmaë"Ca .10 me1ch. Cal't>e cotan'O a reIch, .1. m"Chsm 10 n61ë
í'mltt"CeJ1. ann. ((J1. 01 bí rmaë"C, .1. umJ1. noco bl 10 ní r maë "Cm51=eJ1.
ann aë"C ta "Caeb m"Chsma cotta na rlaë .1 .melch. ,:'e J1. I "Cal b, .1. ín
ra"Ca. 110 alJ1.Cean't>, .1. ín smru"C. l"Ce cotan'O a relch,.I.a
m"Chsm 10 mbm'O II' e J1.0 tOl"Ce't> an't>.
:)IE
rs OF
CO-TES-
.AXCY.
f-LC."" B
" ,,"'2.
.,tþ l1,frl
eM /)
f)
., wv
1! -r"
,(mbflt1;sll!Elrc'
Jl.
1;ç>
fl?)C n,g,ef,xnþflO;sa rOn, ap.
lona hOßfl neach1bflo;S a comíca1'D, an ní bw 1'1'6,(( dne,af1.
",,"1 I
't ""
""""
"'I!
nue oflba, a11- nach alta,af1. nae wq1.eaba; alla L"Wfl;sealla
'Ij 7 A 1/1
each afla ceatlla FOft each nwle, FOfl each LalT1rce, FOlt
....J/" F\ J.
cae flt11p.e.
'l'ln,.r
1Mr4v
"ro..,,,,,,
/I i
i.ñ
J9
n1 bJ1. u SJ1.1 ch"C, .1. J1.ech"C rJ1.1 bJ1.UIS .1. bJ1.UIS, no II' ní't> COlJ1. '01J1.5e"Cu.
.I'Cla J1.0 neI P I'O a ll.?locl't>aJ1.aJ1.m"Cep.,noc;'OaJ1.a nmrne1'O"CeJ1.ereIC.
Raë"C mbJ1.osa, .1. '01J1.W"CU1't>e mreJ1.am'O 111 ní hiI'm. ((J1. na hOI11\
n each bJ1.oS, .1.1"c1J1. r e l1 ocur uJ1.buJ1.,.I. aJ1. na l1a rOll1J1.sea necJ{rep.ann lO
.V?f
a commdl1S' ((J1. ní bla rl'Í> a "CíJ1.e,.I.aJ1.na bomsep'O ar e l1 a m'O.
((J1. n aë oJ1.ba, .1. ml1be'Oa na nmte'Oa .1. "Cise an't>. aJ1. n ach aJ1.a, I
J.<I .1. aJ1. na 'Oe1\na a ap.. ((J1. n aë a1 "CJ1.e ba,.10 a "CIS1, no alte, no a m;,'tte WI
((J1.a "CalJ1.seatta cach.1o co "Cuca caë sett "C0IJ1.1tneë rl11 cach cma1't>
'00 ma"C ace"Chl1a 1m 'Out"Cal1 ín alta. ,:'0J1. cach "CalJ1.r ce , .1. rl1 l r caë
!:..ar:J1.C!t::a
,rp.1 caë cae '00 mm:; "C mI11 r! ,:'0J1. caë J1.uIJ1.e, .1. r O l1cach
J1. o I1 1 "Ch '00 nía"CÂ-" f4.r Wi,
'M
A
f),.,.-It-Lt3D) I
zr
1. ((r:an::: r:eop.a reatba na belp.eQ'{) ba 'Oona Jllb cmtwb reo, . f J '- s.-
Ni.6 . rf
)bO."
.1. p.u'i>, ocurp.oltbe, ocurroaé r:uwtl. 1rrOl1.5Wb i Clnw'i> in
fin,
uwp. Ira níltín'O '00 caé ceatp.a otceana. ::.?V
"I
B
Ju-D
'Ceop.a cwte r ít '00 ceatp.a; ní cOlbelr arp.eana'Oap., .1. cwte
t:ap. wp.be, ocur cwte t:wp.rce, ocur cwtl p.ulp.l'Oa. nla'i> cwte
'0 t:ap. wltbe, ocu)' bi'O anJme 1r:'1t caé 'Oa cOßl1tach, II' Let catw'i>
I Two' øcrepalZ..'- That is, to secure the obsen-ance of tbe common u'age. This
pledge was hung upon a rack in the neighbour's howe at the foot of his bcd.
Vid. P. 75, ant
.
C, 11 -4n: ill -h!r Ir -i r .-.,,.l, &
d..-
l! {/
.,f'h(VI/
JT;DmIEXTS OF CO-TEXAXCY HERE.
1 '1-
...;)
tresp
. To the person who own. them, i.e. to t ha pr88ft 19 whom they
have done damage. 1I0th as regards 'dire'-fine,i.e.the three equal hulks.
Compensatiou, i.e. of the grass.
The 'smacht'-fines of co-tenancy, i.e. the thing which is
in the common tenancy, the 'smacht'-fines, i.e. sacks. What is the
substance of the liability, i.e. compensation for the thing which is
damaged. For there is no . smacht'-fine, &1'., i.e. for the thing which is
commanded for it is only for the sake of compensation for the substance of the
liability, i.e. sacks. Grass at the side, i.e. lengthwise. Or at the end
i.e. shortwise, or in brfadlh. Is the subs ta n 1'1' 0 f the li a bili t
., i.e.
compensation when it is it that has been injured.
Faull-law, why so called 1 That is the law
of farms, that no one ma.y injure the farm of his
neighbour, that he may not cut down the wood of his
land, that he break not, that he maynot plough it, that
he may not inhabit it; for every man shall give
additional pledge for his cattle in rèspect of every
passing o.rer a fence, for every breach, for every
rushing over.
Farm-law, i.e. the law for the farm, i.e. the farm, or the regulations....hich
are required for it. Why so called? i.e. why is it sO called or denominated?
The law of farms, i.e. that is, this is the regulations of the land, Tha t
no one may injure the farm of hi. nei[Jhbour,i.e.eitherinitsgrassor
com, i.e. that no one may injure the land of his neighbour. That he may not
cut do\\n the wood of his Iand,i.e.that he may not cut the wood of his
land. That he break not, i.e. the stakes or pales, i.e. of a house there. That he
may not plough it,i.e. that he ma)'not till it. That he may not inhabit
it, i.e. tlwt hf maynotfix upon it his houses, his kilns, or his mills. For every man
shall give an additional pledge, i.e. that e\ery one may gin a relieving
pledge (a pIfdge u:orth treo . .e,'epall. ') to insm-e ths paY7rU!nt of the fines impo.eá) for
evef)' trespass which his cattle commit by going over the fence. :For every
breach, i.e. for evelJ' cross\\ay, for every passage which they make over it.
:For every r ushi n gover, i.e. for every great running oved! which they make.
That is, there are three landsH1 which etnrna rø not íifted for these
q
/
trespasses, viz., " trss-FRBB iIft a wood, (J, Irp."1'''o. -in a moor, anù a
, foach-tuaithe '..trespass. T Heir trelìpp
'i is cOllù on f>11
l'
ki
f
wilà-place.
There are three t
spa..>ses of cattle; they arc not equally paid
for, viz., a trespass over a palisade, and a trespa.\is by a breach, and
a trespass by rushing over. If it be trespass over a
c, and
that there is a bad
fence between e,ery t\\O neighbours, it is
Jl'DG-
:ME:STS nF
Co-Ty.x-
k'<'"Y.
ft.'.. ,J)
. Ba(I.-}'or 'an' in the Irish of this line, and also of the neJ<t line, C. 30, reads
'a,n. 1
f)
-
j,..k, ')J..li
- '.If'.[' ,.
1Dlt.{CJð)
oc.)I' (D2! qOr)
rf !:! 121/. z.}
.fU-
:tE. #"r II J h. ,..
?$
L' .... ç,.{1 . tt. '" Ii
th f/wr.. f'
oft,
'I
.t
r n?
)
ylt>
/rI
".
e.."
ß
JUDO-
12G b t le((r11a COmC(H:; llce r(( CCn'Dr O . .
tn-fit iJL 4,- tM
fit an"O, all contu! an aníme ín rata1"
. 111ap.01> ap. CI1te ín fill bc"O
a at "Od
'
r1"O, '1' o'ÓcatatÞ.,Flt atll>, (q
J1j }'o5na t([ím a 1 (um
muna "Ocp.na all re111C, nO(!"")lí'omCl1n, nu ql} t]E(]':.!.l
!r. lr"Oc ([1'-
l wb l W "O; ínplCl Ilépu (["05al1([ CU111l"015"Lelt 111a elb e .
D
-t D ""f"M
e. D T
I-JMrJ.Wr II
f "em1l---:-c((1'i)e 7ãnql1'ce?" lm5((dn:; tnp're1Lù no tnfl ((
l(<>-1-
lI ,b
11 nHvt\o
'D1. ,. <';o
J
nrce 'oot1a, 'Dut nqt tlO'D, 'Dut mp. ((Ù1t1'D 11a
be rn am 'D01Ù. "Cwlltlrce Lan FGb ne1reap.tu. D'kvrr9
7
......!-rI.4J<
l') II
])
]\fENTS of
Co-TFx-
AXCY.
Cá1f1., .,. commp.c1m can::1 In
t
r C!!
.,. c
.t::<:,r1r' '0 a1 5 acn r:,
.1. t:[msflcnr:l 't>ap. 't>o: mp.cenn, no 't>((ii C81tP.1 mrlëeln't>. 'Lap. r elLb
10 .,. 't>ap. t:el1.t11ln In bomp.e .1. t:eol1.a t:01P.5e ocur ul'ëap. rLercal'6. 11 0 r:a p.
0: 't>1, .1. r:ap. 't>a t:ep.((n'O. "OuL r:a p. p.O'O, .1. Letpacn t:mp.rc e I n't>uL
t: u l1. LetcL(('O In tWlr: .1. co Let ,me .,. rp.1 tl1me amU1cn. 1) u L r: a p.
abln'O, .1. ap. Ep.Plm Let ,me mni t:((P. a neca'O((p. ann. 11 a be r nam
't>olb, .1- ma'O rnam 't>01b'r rlacn mIlLime In't>. '0UI p.p.rce r:((P. r0:5
"tlelreap.r:a, .,. r:((P. rep.ann in r:1 811'5er ar a pp.r: .1. III t:e1rep.r:.
'0ap. ra5,.1- r:o:p. r'c .1. r:1P..
I
I'
.1. CC"LCI1"L "Oono ql1 "LClll111rCe .1. "LCI1p.rce "Lall p.o"O, ocur "LCI1p.r ce
t"all atj111"O, ocur "LCI111p.rCe "Lap.
0_
1!
' mcrn t"CI111rCe mIl CI1bín"O
'Domam na be rp.e01p., 11' ó5catat:t; fit ann, ar-Ur5telt 'Dap. ín'D111C
20 mn pn. 111a"O "LCI11111rCe "Lap. bel111(1 "Laft 1 110'D, 'DO "LUI"L cem:h- GD./J 12.4')
l1uímte rp. l r m rop. "Latmam, ocur arp.eanal
an Qltt, al1ur tet "00
J.
B(__luo:ð) rattCl1b, an attt'DO
o
'<!.
;_a tet na rwtte p.annml1 amllt!
J
D í n'De. III a'Ó mlp.p.rce mp. conlltac mp.m í m blCl'Ó 'Da.!]H
Q!>
Jl ím
.
4f,
[)
'Q
t)-
l!t.!l!tt,lrre'Ó 111 CC"Lna. 'Dono; l1annw'D a ]:wtt a.mllp.u in'Da5
D 2.(fme; ní J.
:Sl!.'D ime PTJa. n('
-r:.r'
l!.bQP"" l1'1111111'U wp.mow pn;
-3 ocur '1' ca.t<<.15 na. rp.lt;;smb rota., a.p. ní 'Dtesap. Imumlll fota"O
D
D (C )0)
.
!)
i! 1-31..-. t
I Ina eighe.- This phrase may possibly mean, "What exists before it is prf'h,bited
is maintained afterwards."
'AiI'cem..-A piece of land containing ï,íïG fcet, or half a 'tir-cumIJ.lile.'
"Half fince.-In O'D., 2Ií9-the gloss rnns thu!', ""OuL r:ap. p.or:r:
.,. 61P.IC r:((1p.rce r:ap. LFt íJlle 1 n't>uL r:ap. Le((d1 cLUTI 111 P.01't>, &c. Going
over a road, i.e. the 'eric'-fine for ø. Lreach over ø. half fence is dile forgoing
over one wall of the road. Going o"er a river \\ hich they have not to
.wi m, i.e. the' eric '-fine of a breach mer a half fence is due fur this also. "'hat
makes the breaeh here the same as passing over land is, the going across thc rocel
"hich has onl)'I.alf ø. fence, or across a.river "ilhout s"imming, and there is full
JL"DGMEXTS OF CO-TE
AXCY HERE. 1
ï
(SJv.l.vJ ;..'>rN-k "-DJJt..,
ql
r
"d..Vúo
\
estinutted at half trespass, for the bad fence'ressens the trespass. If ![;
::'F
they have come over the fence of the man whose prop<,rty they are, Co- TI-.s- ,.t- <:10.....,
it is full trespass, for" Hand
loes not
; unless it-htts
.
, '>) ,(,,
40/ "7
been done for love, or through fear, o
rdship." It is
t ,vas saiù: "Inpia resiu adgara coimdigther ina eighe."l
Question- 'Vhat is a breach 1 Passing over one
land, or over two. A breach is also going across a
across a river which they (the cattle) do
(l
A breach is going over the land of a '" /
.f1 ZT .
.-
road, going
not swim.
deserter.
(
4'
Question, i.e. I a,k what is 'tarthu5-cae', i.e. the way over it. Passing
o v e r , i.e. passing over two' aircenn '-lands,' or oyer four' aircenn '-lands. 0 v e r
one land, i.e. o\er the land of the 'Boaire'-chief, i.e. three 'forrach'-men'u1'('S. aUlI t . 17
the cast of a ad. Or over two, i.e. o\er two lands. Going across a
r 0 a d, i.e. half the fine for brcach in going oyer one wall of the road, i. e. "ith
l1alfafence,i.e."ilhafenceoutside. Going across a river, i.e. "hattheÿ
ha\'e crossed in this case founds D claim of fine eql/al to that cif half fence.'
": hie h th e y don 0 t 8 w Î;n, i.e. if they have to swim it, it is (amol/nt.. to)
fine for 'airlim'-tre.pass. A brf'ach over the land of a fugitive, i.f'.
o\'er the land of the person "ho has gone av.ay from his land, i.e. the deserter.
O\'er the 1antl, i.e.o\er 'fkh,'i.e.lalld.
.
.,..
Now, there are three kinds of breach, ,iz., a breach across a
road, amI a breach across a river, anù a breach across a neighbour-
hood. 4 If it be a breach across a deep ri, er without guiding, there
is full fine for it, for it is c grazing beyond \
l:n\ fur in that
case. If it be a breach 0' e1' a gap or across a road, the one-fourth of
it (the fine) falls to the ground, and the rest is paid, for half is due
for the neglects, the other fur the claimants; the half for the neglect
is dhided between them in two. If it be a hreach over a neigh-
bourhood of co-tenants \\ here there are t\\ 0 residents and one n
_-
resident, it is the same thing: they divi de the-
eglect bet; een
-
them, of the good fence. K 0 fence is charged upon tIle non-resident.
It is 'ruiriu' -trespass afterwards; and it is a trespass that does
fence to the grass illto which the)' go, or a half fence, for the rivcr or the road is
equal to half fence."
Dr. O'Donovan obsen es here.- -" This gloss is 111so defective, and shou1d run
thns :-Crossing over a road which has only a half fence, to commit trespass, or
0\ er a shallow stream, which the animals can cross without swimming, is equal
to a breach over a half fence i but if the rh er be so deep a' not to be cro,"ed" ith-
out swimming, or the waIl of the road a perfect fpnce, the)' are equal to full fence,
and the breach over them is accordingly e'timated.'"
· A lIeig',bollrho n d._ Th8t i., a settlement of Ch-occurants, or co tenant-.
.q /,j,A- 2-
(
. CF#
A ,,".v,
128
OJtem::fIC( Comwr;hccra allÜro.
JUDfi- "00 conlH::ea(; fPI n1 vel' tla oénlf1- .1. na CCltt1-1 com1tW5 1111(( b1alJ,
r.1F.
T'i OF ocu r na ce1L t 1.1 eC01111t(U-;: a"ða neU t "'an) "Dolb t 'rDe. ,t
Co- TRS- u
A:SCY. -tD
D
- Þ 1JD- (Co '0)
.......It
Jvi II
AD J<
8 _ "'01' atp,m 1 mblC(û "Da comal1,ba I Lneaba:l1. 1m eqrecqlr,
J"
4A
)JI
C1û üQ,En1r;ecq1. t'1l1 helreap,r;? batbe((Ï) 1mme co 111mcua,
/-.(trJ.,1! UA
A- rr
""
r or muna be rneab,Çt.Ï) 1I1FoJW1r twr,Embr;ean/a J:'1ne como-
,.
A i
A
Emr "DO co nlmCl1C((tü elne, 110 conr;((p,"O(("D rE11."Oltre co
....""d, p. "'"'" It " II "Ii A .....11 "' '"'
ceann mbLta"Ona. m((Ü re11.Ï)ltre "DO" oella a pne, :)m-
cv...J...h,..,('" 4ooV" It " -cc..1t
A recm:ceachnqt In "0(( comcqlba ob111me, OCl1r "DO beJw"O
- """,II ",
A ......,11
comatfteam 111"0, OCl1f "DO
1.Ee((tt((1\ cach "D1a-.Jwlte ((I'
'0 1cqwm.
d. TV
o.8 1::
-. -- [G?J J-. '
.;.,.t;A
JI
Or. ma Ï)O n e1reaJ1.r; co q1.e((batne twr a neërwJ1,
.../1 "' f:
A 711
Le1û "OQ,c11l1111 a pne, FotonE(("O co cecm"O mbLta"On((, OCl1r
n1 t)1a r;
Ip,e. r01t11.1E. 1I1<! nfl, (OCl1r) 11' "Oltear "00
l11te.
......... 4r 14 J..:4. ot.a ...;.t,; 4
1IC4
'f 0 I' a I p. ol, .1. or ap. acur, ocar mp.m bmLe n"Oma't>, 1 mblat; 't>a C01Olet;am
op.ba t;p.ebap. I rep.an't> 1..n
,
'r-Fel'_ ar a J-'!
mlOn erep.t; .1. It;e 't>a ep'p.t;
't>e1p.se a met;hur, ocuf elrep.t; 't;arcnàOl!.Oletmr.'" CI't> 't>o Sn1t;eap., .1.
cp.et;'t>omt;ep.p.'r lll eírep.{;. rp'1 helreap.t;,.I. ara }:1p.t;. r;albe(('t>
1m m e, .1. sabmp. ad1submL f!1p.e co n't>ep.na Ime !!!1!f!).IJ1, .1. cop.a Irne In
1-0 cae 11' c01t;echt;a 't>o. Or muna be, .1. mana p.01b t;Tteabmp.e mallUf
mCI. 'ba 1 bt;e a p. a r 1 n e, .1. s<<bap. at;hs((bmL 't>on i,"lf ëoÌ1í'rocur 't>o
't>on fíne. Co nírncuaa't>, .1. co n't>ep.nOt; Ime ernéo,p.. 110 cont;ap.-
't>a't> rep.'t>ILre, .1. co t;ucat; 't>ILrl m re01p. op. rochp.mc, .1.111 pne. Co
ceann mbL1U't>na,.I. ap. p.e na fochp.aca. nla't> p'p.'t>1Lr e , .1. ma
1-, 't>ILf' ín rep.am't>"o bep.((t; ín ríne ap. roép.mc 't>o cmtern ín r e01 p.. 101-
"}:ean ceacht;ap. 10 't>a com allba, .1. ímí't> .1. U1p.I01e't> ceChn(p."06 m
't>a C01met;m't> op.ba rUlL írne, co p.01b írne cornL((n ((nn. "00 bep.a't>, .1.
't>o bep.at; mp.em cumm't>e ín't> ím cUt;p.uma. "00 al p.seaLLa, .1. 't>o b61P.
.{,
7
O
.I1-I.f
Iw,:
WU) ]-iw.trt
1 II T earest to tltfm. 'TLi. c
mmcularJ' i. excrediugJr obscure and difficult.
· A de,el.ter. I Lserl,' i. a laullIess man, a fngitive, or e,'ader of hi. dutiea.
J(;DmIE
rs OF CO'TEX_\XCY HERE.
1
9
not involve reciprocal duties as regarùs good!=:, for reciprocity of Jl'DG-
.1 . I f . Ib I "
m"r
OF
gOOus IS not enforceù by law ill t Ie caRe 0 nPlg I oms excee( mg C,,-T..,,-
eight persons, viz., the fOllr co=tcnants
t, A"U.
anù the four non-co-tenaLts, who are nearest to them.1
And in
place where there are two solven t land-
holders, and a deserter, 2 what is to be done. with the
deserter 1 Let him be di!:,;trained until he fences
(makes his fence), and if he has not a habitab le
residence, let the next of kin to him of his family be
distrained until they make the fence for him, or give
up the right of the grass to the end of a year. If it be
that the family give up the right of the grass, thelliet
each of the two' coarbs' of the families occupying tlte
adjoining lands erect a perfect fence, and they shall
bring equal stock upon it (the lewd), and afterwards
each shall give the additional pledge to the other.
And if the deserter com
lõûtside having with him
I'ð
his cattle-fiumer's requisites, he goes to his family,
(t}ul they sustain him t.o the end of a year, and the
part uf his farmer's requisites which
in the
land
all hi:,; property.
"'-04 -4f
""\.
A nd in a place, i.e., 'os,' for 'aeus' (and), and 'airm,' meaDS place or localit).,
i.e., where there are two solvent landholders in the land of the person "l'"ho goes
away from his land, Or the de
erter, i.e., there are t"o kinds tifdeserters, a deserter
1'\ho deserts his land, and a deserter "ho
' ad
r"8F
n..ibU ities. What is done,
i.e., what is done to the deserter. A deser ter, i.e., 'lIS' (out of), 'a firt' (his land).
Let him be distrainI'd, i.e., let a distress be made upon him, alld ld M..
goOfÙ be distrained, until he makes a proper fence, i.e., until the fence is in the
way that is legitimate for it to be. And if he has not, 8..e.,i.e., if Le has not a
habitable residence. Le t Lis ne x t of kin be d i str aiu ed, i.e., let seizure
be made upon the next of kin to him of the familJ. Un ti I th I' J' m ak I' th e
fen c e,i.e., until they make the legitimate fence. 0 r give up tL I' ri gh t of th I'
grass as the relit, i.e.,thefamily. To the end of a year, i.e., for the term
of the hire. If it be that thefami/y give up the right of the grass, i.e., if
it be the forfeiture of the land that the familJ' consent to. for the hire to consnme the. Ir. Ci,'r.
grass. Let each of the two' coarbs' I' r ec tap I' rf ect fence, i.e., they fence,
i e., both of the two landholders who are adjoining it, shall make afence,Bo thatthere
sball be a perfect fenre there. S h a II b r in g I' q n a I s to c k, i.e., of cattle, i.e.,
they shall bring a common stock there i1/to the desert r's la..d ill eqnaI proportions.
Shall give the additioual pledge:, i.e., each vf thtm gi\CB the relie,in!::
\'OJ.. IV. K
.
13ù
Op.eadJa eú11l(m:1IrerCl ( C1Iu r u .
JUDO-
.'I-.STS O
.
(;0- TKS-
ASCY. Of mu '00 t;, e'feattt;, .,. of aft acuf. ocuf mu '010 t;1 In t; el r e ftt;
_ umUlch '010 nech'OO1ft cOf aní '1' t;fteuuft '00 Lelf '00 ettu'Ó. L e, '0 '00-
r chum u t:ín e, .,. t;e1t aft tic, t;IC '00 cum (( pne bo'Oém. fott'Lonsa'O
co cean'O mbL,u'Ona, .,. I1nr01Lns1't> U fíne he uft fochf1.ulc co cenn
mbLIO'Ona, .,. atl. m 1'e blf 11\ reuftunn a1' fochtl.Ulc, .,. 'Oreo1' ocuf'O U1 I"Ce.
O'D. 2183.11; 'OIU t;1'euba'1'e,.,. [Do'Oent;01b]-Do"DUlf1.beuUlbocufo mLe'OO1b. }:ott
ftlS, .,. Ulft1>1t;eft afta em'O ín reftann. 1 f 'OILeaf '00 uILe, .1. 'Oon
IV erettt;; ocuf aft fte nu fochfteca t;ÚI1l1C amUlch he ann r11l, ocuf 111 fOettUlC
_
O'D. 2183 'Oon pne, OCUf nu 'Oent;u, [nu 1wf1.bunnu OCUf na t;15 e ], 'Oon efef1.t;.
AlOo-')
,cD ø >< .1. 1n r:an vla'O"Óa r:p.eabap, im e'Oqteabap" EUibecrn elp,e, '01((
-z,J
zo, 3>'1 11mltrecrn; 1
J51111.recrn,
mbea'O ap, fine eO"\!1\tleua'O f1l.IU nI"
rJt. - r ii mbp,atap., oeuf co
'O 'OILf1 felt ELelr:he co eeann mVL1C.!'011U,
_
cAJ .." v>rt-c,, """(, 1v#./" , Q.,t""n'i""-
b
. r;:,--
( Þ lS'oeur 'OILp eaë Let ear:ap,ba fIll hUl1e, oeur a'Oap,aEu'O 111"Oa eOIlI-
1taê laJ,um amuIL bl'O Leo fu'Oef1n, oeur r: m ll.EeaLLa eaè fill I wILe .
CC fmaêr:aqw, 1"D F.;eaLLa 'Oure'O, 1'0 fmbe; .1. EeaLL flU hime, l wma
(.1. a np, bUle) fIl,l cLaIr, fep,epaLL a fiu, oeur a l.Ra5 a 'O aell
reaër:; foe f11.l eop,ars, rep,epaLL a pu, oeur a LeC15a'Ó fa r:11.I; bimL
ù>t11.1 'OU1p,-lme, .1. a Lea5a"Ó fa '01, EO 1w fiu fql.epaLL; PEva flu
re Lm C15, no 1-lllr m nmLe, fql.e
aLL a fiu, oeur a LeC15a'O f'.l '01,110
fltmLe 110 beoLeC15a"Ó. 11arca-gxp. lIa rmaêr:a fO W1 WIII . "
-----
D
cach 'Olb seLL t;01tl.ltnech 'OU C61Le, af IOf1.UIll, .1. 1>eLL 'Oa fCftepuLt. C o 1ll-
u'lteam, .1. '00 m"DILL1b. "DIU ftuILe,.,. u t;1ft na e1rettt;a.
ð1
A,,
,
:: W n-imJ,
Jt"
'f)
5
iJ;, D
0/
. I
O'D. 2181. [111 r:elre11.r: '1' he a mtne: 'Oume fan'O VII' 1r:1p, in 'Oa eon101tva
. qteJla r:11.ébU1p,I; Eabu11. ar:h5ubmL 'Oe 1IIa'O r:mr: r e01 r: mee;
vfoEeLLr:a oeuf vl.Rt '01 'OuL 1na eeall'O, oeur ni telr: Lo\)u. muna
t uIL, r: r eOI1 :; mEI, atEabmL '00 EabmL 'Om inbLe05mn, oeuf fObelLr:
oeur bLet '00 'OuL tna eenn, oeur ni theIr: Lo\)u.
1T1u r:amíc in r:efep,r: amulb lap, fill, r:abll.ulr: a fine 1-'Eap,an'O
'00 p,e p,é na foêlterea, oeur bep.mr: ,.-ine ill toehlwlc, oeuf ni 'Om
"\0 tp,ebU1l1.llOlt1c ap. a ê111'O '00 bltelt 'Oon elffeltr:. 1ncrò r:a fep,mm
aeon pne, oeuf n1 r:abll.ulr: 'Oofunr, a foeh11.U1e '00 bttet 'Oon Luêr:
amaeh, oeuf in1 11a p.o 'OILf1b 'OL15e"Ó '00 11a 'Oenr:m\), eennmElr:
I To each other.-The text is very defective here.
I Fased.-' Leagadh' means, literaUy, 'melting.' The inøtruments mcntioned here
were to be prepared by fusing the metal, the harder the material to be operated
(.n, the more numerous were the fusions of the metal forming the implement, allli
consequently the more valuable the instrnment.
. E"pense of tendi 119'- The wages paid to shephenls, or caretakers of the cattle.
JUDGMEXTS OF CO-TEX.-\.
CY HERE.
131
1.5 -!YWO..t
pled.;e to the other out of it afterwards, i.e., a pledge of the value of two'screpalls.'
Eq ual stock, i.e. of cattle. To the other, i.e. out of the land of the deserter.
Aud if the deserter come, i.e., 'os,' for 'acus,'.(aud), and if the deserter
come
ide tl.e lal.d with the number of cattle which renders him solvent. H e
goes 'to his famil
',i.e., 'he goes,' for 'he comes,'i.e. he comes to his own
family. And they sustain him to the end of a )'ear, i.e., his family
.upports him for pa)' to the end of a year, i.e., the term during which the laml
is I t for hire, i.e., with grass and water. The part of his farmer's
req uisites, i.e., of erections, of stakes and of poles. \Vhi ch arrive, i.e.,,, hich
a- J"C
":.
d of him in the land. Are all his property, i.e., of the
deserter; and after the term of the hire he came outside in this case, and the hire is
given to the family, and the erections, the corn crops and the houses. yo to the deserter.
J UDG-
1\(EST::-t OF
Co.TJ.:'i-
A
C\.
!iù 1J"f 'Then there are two men fulfilling their duty, and one who tM.,Gv)
v 'does not fulfil his duty, let them dishain him, if
y; 1Ivr V"1v
if
not 1
1y, let them distrain his family until they
fence their brother's land, or" until they give the right of the aIr. And. . JtJ,
gm.zing to the end of a year, and the right of every half separation "
.r
respecting a fence, and the two co-tenants afterwards I
as ..; ,
if it (tIle land) was their own, and they deliver pledges to each
other.' The 'smacht'-fines now, wltiell tl.e!! pa!!, are the pledges
which precede, i.e., they are these, i.e., a pledge for fence stalæs,
a spaùe, i.e., in soft land, for a trench, a 'screpall' is its worth,
and it is to be fused 2 (melted) once; a 'soc' for a stone wall, a 'screpall'
i" its worth, and it is to he melted thrice; a bill-hook for a hanl
fence, i.e., it is to be fused (melted) twice, so t!mt it is worth a
'dcrepall '; a wood axe fur a 'felma '-fence, or for a palisade, its
worth is a 'screpall,' and it is to be melted t
ice, or to undergo
I..mg-heating, or live-melting is to take place. These' smacht'
tines are made binding afterwards.
The deserter is thus known: a weak person, "ho is situated
hetween the two' coarbs' that do their duty; he is distrained if he
has 'seds;' the grazing and the expense of tending" sllall be
added, but fOifeiture shall not be a allowed. If lIe has not 'seds,' a Ir. Goes
. nolo
distraint shall be made on Lis next of kin, and e2l.pense of grazing
awl temling shall be added, but forfeiture shall not.
If the deser.ter has come from outside i,lto tILe territory after
this, his family shall give him land during the term of the
hire, and the family bhall obtain the hire, and the part of his
farm-buildings "hieh he may have found on his coming hack shall
be obtaineù by the deserter. If the family have land, and they give
not of it to him, the hire is to he o}Jtained hy those lcho are outsidC',
and the portion of the erections which the law has not declan.tI
VOL. IV. K 2
.
.x.
"f- !!1>U It.
ct. II /1..0./'if
fll"
,
13g 0ltead,ú COmWdlCera al1'Dr O .
pne 'DOrum. tT1una fUlt rep.on'D 1l:1P. ac pne, comp.0111n1l: 1np,
p.e OCur faotap, 'Don rOt'pU1C, OCU1' ren'Dca'Dfum p:i111 'DÓ Inl na
1to'Dltfi 'DtIEei> 'DO na 'Denl:wb. 111ú tú: reap.an'D ac rlne, ocur nl
Eabunnfum. 11' comp.0111'D 1np. p.é ocu1' raodlal\ 'Don r Oé p.U1C,
S Ocur nl bell1.f1um nl 'DO na 'Denl:wb.
.Tullo-
).IF
.'s OF
Co-T...s-
A
l'\r.
tT1ár rop. Ó111 'DO 11.m::a"Ò 111 real1.an11, ocu1' nip. cln'Dei> lté Wl1.1
;te
rwp" Cli> ra'Da bel' rwp., CI'D p.e "2..e!:
I
I!!1' cm p.e h111'Detbll1.1Ur
'DeaCa1', 11' a 'Denr:u 'DO rcq:;bwt 'Do. ']1..'" 76)
tllara rUcq:;l1.a"Ò al:a rwp" cm l1.e 'Detblp.IUr cm l1.e 111 n'Dctbl111 1Il'
I. 'DO Enelt, 11' a 'Denr:a 'DO bl1elt 'DO tell"
tT1úi> p.o C111'Dei> p.é ral11, ocu1' r:á1111c1n l1e, 11' a 'Dent:a 'DO fcq:;bfllt
I 1 1 "'.
'DO. tnar he p:i111 'DO coró arr roe 'Detblp.lIr, 11' comp.olnn n111te c.rw
ocur 1'aotap.. tllar a nlt1'Detblp,lIr 'DO COI"Ó ar1', racuult: na'Dénr:a.
mara rl1a511<<"Ó ar:ú r((111., cm '1' 111 tó 'Del"Óenach pWE 1I 1 1La P.
Ie 'Dú I nln'DetbllWr, bell11"Ó tell' a "Óenr:a.
tnúr 11.e 'Detbl11ur 110 rlla51w"Ó 'DÓ, 11' comp.olnn Kll1 p.P ocu1'
r:raor:hup.. lllar 'DO tllalt no 'owtech ra111 'DO lwr:r:a"Ó, ocur ma"Ó
11.0 cl11nei> 1té r<<1p., 11' a belt r O l 1111 l 1é .
tT1u11a P.O cltlne"Ó p.é rwp. 1nl1, 11' Wl1'D1ile1' comwEtec11 r a l1 1 .
lc tT1ar 1té C<<1tem a fe0111 ocur p.Ja r:p.ebulp.e 'DO lwr:r:ai>, '1' rp.lan
each nut rop. a mbl In rur:. f
' t-fS
mú1' p.e cwtenl reólp. nama l:uca"Ó he, '1' felt m-wÉ reë-c muu
1 dl1. a ëélt1, fop.ra5ulo In 1'eér:ma"Ó bOln 'DJa bba'Duln, ocuf to'S bó
'DO ëaoll1.1u nú r:ap.'D 1-'0p. á1P.'D 'DO bet a roe1r:1'eér: w51.
L( 11la"Ó P.O al:l:wÉ c1n ap., ocu1' 110 hWl1e"Ó, 11' 'Dltf1 in a1p. co na
i'lt, OCl1r CUIC reolt:. 111 unal1. aër:<<1'Sei> cm ((P., 11' rtún, acr: In 111
'DJa qtebull11 fUlll11cC ap. a L1n'D In a ril1, 11' 'D1te1' 'DÓ. ·
"Oulne 1'0 11'1' núé ém1p. rubu na 11UUU a rel1al11n 'DO 'Denam,
110 CI"Ó ém111. noca wt té1r a 'Denum; C011l"Ó c"Ó 'DO nír:helt 1111'
I Jnc
/!..e.-That is, wl1ich increnseq in si
c, cn'II1ition, &c.
JGDmlEXTS 01<' CO-TEXAXCY IILUE.
1:3:3
forfeit, the family shall purchase for him (tlte deserter.) If the
family have no land at all, they equally divide the hire between
the time and the labour, amI he himself purchases the portion
of the erections which the law has not confiscated. If the family
ha\'e land, and he (the deserter) would not accept of it, the hire shall
be divided equally between time and labour, and he shall obtain no
portion of the erections.
If the land has been let for hire,' and no time has been "pecified, . Ir. Loan.
whatever length of time he shall be upon it, whether with necesbity
or without necessity he goes, he shall leave behind his erectiuns.
If he is noticed to quit, "hether it is done \\ ith necessity
or without necessity, he may carry away his erections with him.
If a term has been specified for him, and the term has e:1l.pired, b b Ir. C"me.
he shall leave his erections beltind. If it is he himself that went
away of his own accord with necessity, it (tlte value of the úuildings)
is to be divided between time and labour. If he has gone a\\ay
without necessity, he shall leave behind the erections.
If he is noticed to quit, though he should be noticed on the last
day of his term without necessity, he may carry off his erections.
If he has been noticed to quit by necessity, there is to be a di\i-
sion between time and labour. If it (tIle land) \\as given him
for manure or dung, and if a time has been specified for it, it
shall be according to the time.
If a time has not been specified at all, it shall be settler} IJY
the award of the neighbours. If it is to consume its gmss only,
and for forming erections it was given, it is one-thinl of cvcry
animal on which there is increase..
Ifit is to consume its grass only it (tlte land) was gi\en, he is as
"a man who has placed seven cows on the land of his ncighbour;'
the seventh cow shall be left as payment at the end of the year,
and he has in reserve the value of another cow in bheep, which Ill'
doeI'! fiAt bring iato tJHI accoY-Ut .. -4. 'l!ft'
. c Ir. RI';"!!
If he has stipulated not to plough, and it has been ploughcd, the fo,'wm'd.
tillage and the seed are forfeited, and five' seds'. If no condition
has been made as to not ploughing, he is free, but the lJortion of
his farm buildings, which he found on the land before him, becomes
his hy right.
A deserter. This is a person \\ho is not able to perform senice
of attack and defence for his land, or though IIC may bc al,le is noL
\\illing to perfonn them; what is donc to him is to giu' liÍUlnotice
.J, 00-
fE.sT:'i 0 II'
Co- TE'I-
AXCY.
134
bfwm;ha eomaH
hcera ((ní)r O .
Juno-
J\IE"T
OF
C,J- TES-
ASCY..
o _
,
" 0
apa"O OCUr t::ßQrccrò "00 tabalp,t:: mp" OCur m:h5 abúlL "OQ: öabÛIL T>e
tap, I'm ; ocur n oëa núlL cmne m1t1
tI rOlL in m:::h5abmL rin, aër;
m:::h5 abmt "Oa raoltt::eT1. a r;1Uß7ain T1.e "Ob5e'Ô, oeuf' r;ér; F05eltr; oeur
bt et ma eenn, oeur ni telr; Louu.
mana bUlL ep_oi> m5' p
m, r;ahp.crò apai> rop, i nbte0 5C!1n '1'
neara "Of>, oeur m:::h5abá.IL "00 5abmL "Oe 1al1. I'm; oel1r noia
n"Oe1tnna rubu oeur 1wbu in r
amn ; noëa "Oltrme in rep.ann "OOn
n "00 "Oena"O rubu oeur lwbu.
mQ:rei> "00 l"in"Oe in rine m reap,ann "00 r;abmp,r; aT1. roë11UIC,
10 mai> r;á.mic in t::elrel1.r; amú15 1ap, p,é na roël1aca, "Oltp na
roehp,eea "Oon tine, ocur ni "OIU tTtebulp,e fOT111.1CC 111a tilL, '1'
"OiLer "Oóran .1. "Oo;:e'rfe11r;.
H)ar l1.e l1.é na roëT1.mce r;úmic amú15 he, "Oenmr; in rine a
imFutuIl5 5u din 11.é; ocur ma "00 belp, 111 tine feØ"l1Unn "Oó, oeur
,f5eloli>rwm in realtÇ!!!-n, "OILf1 na foc11p,ulce "Oon tine,ocur "Oltf1
nq: n"Otmr;a "Oon elrFer-r;.
m una tabp,m:; in rine in re'lp,ann "00, oeur ar;a real',an"O acu,
('
ur 5eibtf1
rep,ann, mrec na Focp,eca ón pne amaë, ocur
rUarLUICI"(;r; in tine a "Oénr;a ocur a reo"(;r;O: T>01'um.
111a"O r;mp,5,r; 111 pne rep,ann "Oó, ocur ni hÚIL "Oórum a 5abmt,
caë ní p,o "Oltf1
p,e "OOn rOëp,UIC um aea pile; cai' ni nf( 110 "011 fl5
"Oon rOChp,ule iCU[O]ll 11.11' in rea11 a!llaë, ocur belTll'Ó in Fep, a!llC(ë
,"'....,..lJc.A .. ,
na "Oenr;a, no rUarl1J.!.CI
"Oorum la"O. 110 "Oono, ceana, C
X" p,o
"01tr15 p,e "Oon rOëp,UIC bl'Ó aca pne, caë ni IJa p,o "OILn, 1'.é "Oon
2.\ roëp.UIC, '1' a nmr'C on tine amach, ocur b
li> in Feap, amach
na "Oénr;a, no ruartulc1"O 1a"(;r;.
.
muna fUlL repp,ann a5 pne, ocur p,o 5ebu'Ó1'um fep,emn, caè
n{ 110 "Oltr1"5 p,é "Oon foëp..UIC bm oca pne; caé ni na p.o "01tp5
p,é "Oon rOCp,UIC a alr'CC 0 pne amach; cuë ni na 110 "Oltr'5 l1.é
" "00 na "Oénr;alu, bel11.m 111 fep, amaë, no ruartU1Ce'ÓrUlil 1aL"l:::.
./1.
Çcap,ann "OU1!lC elte r;ucufLatt ap.. Fvi-flulC annrin. mar e a
rQ1.an"O bo"Oé111 r;ueuf<::al1 "Ouíne ap, rOëp.UIC, aër; IlW'Ó p,o Ci1l"OU1'nq1.
I Who i8 Qutsidc.-This seems to mean" the man who holUe the land."
JUDmIE
TS OF CO-TEXANCY HERE. 13:>
hy warning amI fasting, and make a distress upon him afterwards,
nnd there is no certain restriction upon this distress, but that it
sllall be such a distress as that it may be thought sufficient to induce
him to come (suúmit) to law, and expense of feeding and tending
shall be a(lded a to it, hut fotfeiture is not added. a aIr. GOC8.
If he hag not cattle himself, let him give notice to his nearest
of kin, and let distress be taken from him afterwards; and he ha'!
not performed the service of attack and defence due of the land;
the land is not more the rightful property of him who should per-
form service of attack and defence.
If what the family llas done is to let out the land on hire, and
if the deserter has come outside after the term of the hire, the hire
is due to the family, and that part of his farm requisites which he
found on his land belongs to him, i.e., to the deserter.
If it is before the term of the hire he has come outside, tIle
[;unily shall support him until the expiration of the time;b and if Jr.. lO"til
the family have given him land, and he accepts of the land, the
/:n:';:lC
family are entitled to the hire, and the deserter is entitled to the
erections.
If the family do not give him the land, when they have land,
and he gets land elsewltere, the family shall return the hire out,
amI the family shall redeem his ereëtions and his C seds' for llim.
If the family have offered him land and he is unwilling to accept
of it, every part of the hire which time has rendered fOlfeit shall
belong to his family; every part of the hire which is not forfeit
shall be paid to the man wltO is outside, and the man wltO
s out
side 1 shall bring away the erections, or they shall be rBdeemed for
him. Or indeed, according to otltCTs, every part of tlle hire which
time has rendered forfeit is due to his family, whatever part of the
hire has not been forfeited hy time shall be returned by the family
out, and the man who is outside takes the erections,2 or they (tlte
otlu3rs) redeem them.
If the family have not land, and he (tlte deserter) obtains land
elsewltere, whatever part of the hire time has fOlfeited belongs to the
family; whatever part of the hire time has not forfeited is to be re-
turned by the family out; v. hatever part of the erections time has not
forfeited the man outside takes; or he (tlte d p sC'/'te1') redeems them.
It is the land of another man that he ha
, in this case, let out
on hire. If it be his own land a man has let out on ]Iire, but so
JUDO-
IF.:S
()l"
Co- TE:oi-
AXCY.
. Ereclio118.-' 'Dém::a ' means houses, fold.. stall., sheels..
13G
btteadm eoman::;11cern an'Dr o .'
ð t.", -'"; H
:
'F
> "'
'.w7 191 II
Co- TF"-
AXC1
.
p.é atr_lr:he ear:1]V-Ttu, cemu'Õ 11'111 'DalW Cét;Jú('De1'Oen((é 'DOn p.é p.o
}'oSl!1!:ta he (("nin'DetbI111Ur' 'Don }'eap.((nn, 111 }'OChr.Ú1C ocur n((
'Denr:a 'DO bp.et'Dô lÉlf, ocuf CH
}1.VJ? lf1n 'Dap.a cér: lél 'De1"6111((eh
'Don 11é 'DO 'De((c1]((fl1t11 a nin'Det151p.IUr 'De, in }'OëP.U1C ocur na
'Dem;(( 'Dó. nla t((111k 'Det b U1.1!!r 'DO neaénql 'De, 11' coml1,oinn
1t:11 1 p.é ocuf "Lfaorhu11 'Don }'OèP.U1C ocur 'DO na 'Dem;CI1u.
CCp. }'oëp.CI1c r:ucufLa11 'DU111e a }'ea11unn ((11111'111, oeur mar '00
'Df'nam 'DÉnr:(( ((111 r:ucur<;ap, he;acr: mú 110 e111nUrnQl11é CI1111r:he
((11 1 ea"Lup.p.u, cm Tle 'Def t1.mr cm 11e 1111 l'Oet b l1lUt' }'0CC!11ta ÉIf1U1Il
10 'Don ret'{1lann, 1(11a 'Den"La ulle 'DO b11
'DÓrUIll lelr.
ma"Ò 1 10 C111'DUrr:((11 p.é ((Ip.lte e}:u1111U, aër: ma'D ra a1 1 in
p'JlCIIlt1 he 1 11 1'111 11é 1'111, 11' 'DILfI na n'Dénr:a 'D}'e11 bun((l"ò in
1-'e1U!111n 1 }'01 1bu na 11é. lle 'Dénum 'Den "La ClIP. r:UCUfL((11 'Dl1111e a
1-
1((!1t1 ((1]'D fin. nlnf 11e 'Denaln "Lua'11 tw ((OIleët&'fl, U(;r:
IS m(("ò 1 10 elln'DeILt5urrap. 1'Æ alp.lte ((Ip., 111 },
1wnn 'DO bet ac on
fl1 1 amui5 1 11 1' 111 11é pn. 111una11 cínnep;u1111é ((Ip.lte enr: U 1 1 1 lU
1t:1P., in }'eu11ann 'Do bet acon fl11 a1llUlb, no 5u r:uca'Õ p.e a tU((I1 1
nó a ((It!b'(IJT.]
l\f,.h.
, I) I
" Lt 31)
c, Co J.J)n., I>
. t
'1l"Þ LilDr. .:..t; D d.
At .....Æ sJ.k.v II J(
l)
· RUltl1Ui) 'D
H::;1L:;
q
'('eOfl({ l;
tba, no celte01l((
) reaU)((. 01ca(::; har s an'D fl11, ap,ur ÓS í11 rottuSU'D.
..,;...(..A,_ I "'"" A 1 l ] ti II ......q
1
}}!.r
1'D lJta1'C
'D 0110 J.,Jl1'Ch nqì LLJl1 1J;cntl (' ea1111 '('eotta
reatba;; If ttUI111U'i), ocur II' rottusa'D, 111una I111S6
.
II
..ti..
1j
'Deldlbw e .
IfII4,.ß
. ..
RUIP.IU'O 'Oono .1. 're CUlt; m 'Oono ann, ump. t;(nI1P.fCG a 'Oubp.amap.
, wm mn"lJ. L:ap. t;Gop.a reatba .1. t;all. ,Gop.a ft'p.onno .1. bomllGch.
110 celteof'.o reotbo .1. t;oll. cmtp.1 fep.onnmb. O'Ocat;hU1s .1.
cm ó5, cín comtcm III 111 hlpn, .1. ((lll.tíme. (Cf'.u r ós ín r ottu sa'1',
.1. If comton m rottusa-o fin '00 na buachmtL1b, If Ime m:;a elp.íc comtan
111-0. RUIP.I'O f'.U1t;e .1. p.lt:h 110 rat;a '00 "lJCn01Tl 'OO1b 'Oono, no f'.elm-
, ." nísu'O "lJOIb 'Oono, co 110 rat;Q. Rlt;h t;ap. t;P.1 halp.[c]eann .1. p.n:h
t:ap. flP. cenn t;eop.a rcp.an"lJ. 1 r p. u 1 P.I U '0 .1. '1' el111C p.umí-oa 11l"lJ. 1 r
foLtusa'O .1.11' fcntL 05 '00 nft buochalUlb. 111una Imse 'Oelt;h-
bl11e .1. mana fl.olb 'OÐlt:hbI11ur ((en nélm-:;/lt:m a mbuochcnUe.
1\ ^
JUDmIE
TS OF CO-TE
A
CY HEHE.
137
as he has specified a certain time between them, even though it Jt:DG-
should be on the second la'it day of the term he has been noticed"Qi
:
necessity to quit the land, he shall bring the rent and the erections Al'ICY.
with him, and though it should be on the second last day of the. Ir . Off the
term that he was warned Offb the land without necessitv, the rent lanrl.
d h . his If . h h d .. h f bIr. Wt'1Il
an t e erectIOns are . necessIty as appent' to elt er 0 off.
them, the rent and erections are equally divided between time and
labour.
It was for hire a llian let out his land in this case, and if he let
it to erect buildings upon it, but in such a manner as that he has
specified a certain time between them concerning it, 'whether it was
of necessity or without necessity he (tlte tenant) has been warned off
the land, he may take all the erections away with him.
If he has specified a cert..Ün time hetween them, but so as he
has been on the land during that time, the erections are the pro-
pertyof the original owner of the land at the expiration of that
time. It was to make buildin
llpon it a man has let his land in
this instance. If it was for the purpose of making manure or dung
npon it, but so as a cert:tin time has been stipulated concerning it,
the land shall belong to the" man ,,-ithout" during that time. If
he has sl)ecified no particular time between them at all, the
land shall belong to the cc man "ithout" until the time of his
manure or of his dung has been taken out of it.
Hunning over now, means running over three hold-
ings, or four holdings. There is full fine for this, for
the neglect is complete. But
ing
names running over the three head-lands of three
holdings; it is running over, and it is neglect, unless "-
necessity excuses it.
Running o\"er now, i.e. the force of the 'now' here is bec
n<e it was of a
'tairsce'-trespass we spoke befure. Tbree holdings, le., oyer the three landi
(farm& 07' hol<Jing8), i.e., of a 'bo-aire'-chief. Or four holdings, i.e., o\er
rour lands (holding8). Full fine, i.e., it is full crime, complete trespas., i.e., of
'airlim'-trespass. For the neglect is complete, i.e., this is complete neglect
on the part of the shepherds, and it is therefore that complete 'eric'-fine lies for it.
A very long running, i.e., a very long running is made by them, or a running
by them to a great length. J:unning over the three head-lands, i.e.,
running o\er the ver)" extremities of three lamis. It is running oyer,
i.e., it is 'eric'-fine for rllnning o\-er, that is paid for it. It is neglect, i.e., it
is perfect neglect on the part of the shepherds. t.nles! necessity, &c., i.e.,
unless there \\ as ncce
ity which
screens the sherhcrtls.
138 bp.eæ:;ha eomm
hcera al1"Or O .
I t- J1 )
V'J" .Tl"I1O-
}t1
'TS OF
Cn-TE"-
Al'oCT.
1. efran: 'tJono "Lp.í lUl1p.1'tJa ann: l1.Ulp.e "Lap. nop.a reatba,
oeur l1U1p.e l1.U1"Le, oeur l1.ulp.e "Lp.aë"La.
c.C
D
Cere-co'tJ a ml'tJí'tJap. Ttulr.e rp.aë"La ocur p.an:e? 11m; Co
p.aba'tJal 1 oë"C nUl1eop.a 'tJec al1l> 'tJO ttea1'caë. 1 r e P.UIP.1u'iJ P.U1t1
, armpn oeur qwëra, ap. ní "LU111"seatta neaë 1-ì'_1 p.U1te 1<<11. 1' m
aë"C roll. Hne ínl>11íe, no abann 'tJomam, no' p..\ no attcro. J<
/.......t1.þ -'v
.
)
lTIa 'tJO CUCI"CUP. na 111n'tJlth rap. aen ml1-cm'tJ, no rap. 'tJa mr--
em'tJ, 1r elp.lc "Cmp.rce ucroU1b al1'tJ; mar "Lap. t:p.1 wl1el'n'tJ 110
"Lap. celtp.1 mp.cenn, 1r elp.lc P.Ulp.1u'tJa op.11.o ann; Oel11' er1lfur ní
lþma fClr ocu1' ma na111tím, ocu1' noeo ne"Lhm"C ní 111a l1Ull1lU'iJ
f)"D. 2IRG. na l11a "CU1r1'Ce. [OCU1' ma 'tJO euan::<:!1l- "Lal 1 Fe
lwnn 51 1U1 'Ö 1!9
" '"'- rnp.l>a fcap.a11n, 11' elp.1c "LU1t)fce op.p.a ann. paë felP 5 e1111 P.11>
a l1UIP.1l1'Ò aoròëe m 5eI111111]2; f1aë mr-tlme tae a ltulP.1l1'Ò m
tCle. ]
A J
A
flDA
I/Cðt.llf A
.lèz.Æ ., Cmp.-ea1"Oe an mrcean"O ?-'Ceor a rmrrSe ocur t1lt-
p...A .."",../'r s"""1,I'r;.;+.;vA
cop. rterc
m:::, 1r eJr1"Oe macc bun"Orm"be, a comta'D ((n"O
H'I."I'V
,Ji.....
""A" ,
,
"""""
..,J;.. f1n "Oono "00 qwc
,"teadl 111 11lTJl1.u1C 1mm
1m rO'D. 1m-
:,..;""'-.....tlv ,l.,r
"'('"S)" r ean each ber f1utocur anatt, 1mr01tl1
a"O 1me 11l"Or 1C
..1\
a
arru ramtm'D.
if (2.41
D r>"'LCJ''I
..--'.'-..1>
IwD <<r7"<W'}"" ..
",!t-: Ii
'If tþ ....",. D
....,,"e1(.J f' Ý -
l.'emp.-ew me1"O rmachm pt a co m1cea r ?7,-a "Oó ;
,
.,.,,
c.-I...tA. I'f
rmach
1me OCt1r CE((tl w , -Senmon;( c((1
h
a.J. .ð L ,..ntf )
^ ,-,,,,,,,,,,,1-1.,,,,
tA.I.f
n fII".(
t- II e.",,,,,,,hH II I-.N. "
q ;,,1)
ea me1"O cm
he pt a comlchear ?-a
eop.a; c((1
he
mte,ocur cmte centra, ocur "Ot:l1ne cm
he.
"l t7{)., I
CI11P. cal'De I1Ip.cel111'D? .1. comlI1p.cím carn lI1"Cnl1e l1a II1p.C1l1'Ue
"j.) I"CIP.? t1p.cop. ]:' te 1' cl11 5, .1.11111 ]:'U1ttíu'U. 11' el1"'Ue mace ùun'U-
, Sl'em"-ca8l8.- That is as far as a · flescach '-) ()Uth could. ca>t a "and or "penr.
'if tT
cattle, <j'c._The Irish for the fi
t part of this parngraph is found on the
!oll"er margin of col. 1. p. 4, of th
MS. E. 3, 5.
.
JCDGlIEXTS OF CO-TESA
CY ilEnE. 13!)
There are iudeed three kinds of running over; running over
three possessions, and ro
running oveJ( and running over a
strand. .
Question-How are the strand running over and the road running
over estimated 1-Answer : "Then there are eighteen spear casts 1 of
a youth on it. That is.road running 0"\ er and strand running over,
for no one shall give additional pledge to the other for this,
cxcept over a lawful fence, or a deep river, or an inlet of the sea,
or a cliff.
If the cattle" have gone Q"I,er one l1cadland, or over two-headlands,
'eric '-fine for breach sltaTl be paid for them therein; if over three
headlands or over four headlands, there shall be 'eric '-fine for
running over due from them for it; and they eat sometl1ing in
their' feis '-trespass and in their' airlim '-trespass, and they eat
nothing in their running over or in their' tairsce' -trespass. And
if they have passed over the land of one of grade (a dignitary),
or over two lands, the fine of 'tairsce '-tresfk'1.ss is charged upon
them for it. There is the fine for winter' feis '-trespass for a
nmning over on a night in winter; and the fine of an 'airlim'-
trespass by day for a running over by day.
JUDO-
IR"TS uP
Co-TES-
A"IriõCY.
l
Question- "That is the headland?-Three'forrach'-
measures,2 and the shot of a rod cast by a ye-mh, i.;., Ce-ÇPi,
the spear-youth, the extent of that of the strand
is equal to half the lawful fence to a road. T-hey
reclron tlte ditch on the one side and the other, so
that it makes the full fence, and thus a lawful fence
is sustained between them.
Question-How many' smacht '-fines are there in
a co-occupancy ?--Two; 'smacht '-fines of fence, and
of cáttle, besides the trespasses.
How many trespasses are there in a co-tenancy?
_ Three. Trespass of palisades, b.'espass of cattle,
and trespass of men.
Question.-What i
a headland, i.e. I ask how is the headland
known? The shot of a rod cast by a )'outh, i.e., in addition to it.
That is the spear-)'outh, i.e., it is th.e 'ßeascach'-)01\Ìh, i.e., the boy who
.' Fo,.,.uch '-Jnm'U1'u.-The 'forrach' .....as a meaHlre of land containing ,j:;
prds. (II. 3, 18, p. 146.)
'I:_C2AfJ
IJ.;-tU
=
!f ,,
1->
".
fi.k/
O'JrIf,l/t "
fJ (C3')
{I) I'.... (Cn.)
:;:',f 44
ØoI'
z..d t:Z-, 3
.
...., .
140
bp,eac;ha .eommdlCetla all'Ur o .
rUlse, .1. If e ín rLefcacn .1. m<<c'Olubftmcef1O mbunnfms. (( comþ<<"O
.1. << cOlmer; no a cur;ftuma 10 ní fin a 't:ft<<cl1r; m<<ft<<, CI'O reftann mb al' a
mbl r;ecr;us<<"O 'Ot'cnf<<r; n<< n1O'OILLI, bl<<1'0 elftlC ftuí'01'Oa 10'0. tear;n ín
í n '0 ft U I C 1m me, .1. rmacr; Let íme 1O'Oftmce a n'OuL r;aft Let cL<<'O 10 1"tOlr;,
ó If Lan Ime roftf 10 'O<<fta cLu'O .1. re 'Oulftn 'fm cLu'O ocuf re 'OU1ftn 11'111
èumLLe, .J. Let íme roft æër;<<ft ín 'Oa cLa'O. 1 mrean, .1. alftlme'O
c<<è 'Oon Let reo ocuf 'Oon Ler;n alLl Iman 11.Or;, co ft01b Lan íme <<n'O.
1mrolLnsea'O Ime In'Oftlc, .1. ImrolLnsn::eft Ime 'OLIstecn er;aftftu
amLm'O fm. CCt;<<ftftu ramLal'O .,.It;Jft ín 'Oa cLa'O.
J UDG-
:M'F;XTS OF
Co- TEN-
AXCY.
(0 Calft-cl am el'O rm acn t;a? .1. cmmelt;fm<<l;t;aUlLlf m commt;necur,
'r 10 nmt;naëuf cummi>e, .1. cm L10 rftlf a t;<<baft rm<<ët;<< I commt:ncer.
Bmacnr; íme .1. 10 ní fmaët;msceft í n'OuL t;aft an mH'. Ceatfta .1.
cet:nfta conb0111S rOft 'Oaínsen, no 'Oono aft nÎItl.mmn .1. 10 'Oa rcftepaLL .1.
In p<<cn 'Ounacmt:ne, no fla melcn. ðenm
t;a c<<lt;ne .1. cenmota 10
IS rmaër; U1L 0 na 'Oaím
'.no ma-c ftlf 10 ,\-'e)wn'O .1. bftlfEJ'O 10 mLe.
Ca mel'O Calt;ne.l. cm mPlr; C1Ot;a '00 m<<t; na 'Oame fir 10 re)"tann
If 10 mt;necuf cUmm'Oe. CUlt;n e UlLi'. 'Oaftt;aJ'O a q"t1 èumLLe. Catt;n e
ceatft'a .1. a cet:nfta '00 CUrt 10'0 .1. na melcn. "Ouln e CUlt;n e .1.
na cl1lr;a alLI '00 mar; na 'Oaíne ftlr 111 reftann ína ecmaíf fin.
:1-Þ .1. Cefc-Ca'Ota'O can:he reaLüa? .1. ca1t:hSi
ta1te cet:amuf,
OCur a Ca1t:h;S1 fa'Oef1n, mmf1p. Imbl 11a1t calch a t:111e all, W11l;S-
reaca1b OCur ap. cona1b attt:a1b, OCur crn:h;Si a p.olt:e.
/)
)( Cerc-Ca-o la-o ca1t:h;se a1Le? a: naroatJ It: telLb cene fota a1te
a nUIp., ocur 1tat:huf aMme foP.t: la}'trU1'OIU, ocur 'OILf1 nelc 1 10
2S o }'tt:ap. foP.t: t:a1p.If1n; OCUf 1n'OILfI nelch }'to op.t:a}'t Ua1t: fU11p.u.
Ci'n 'DO cUa1Ltí foP.t:, OCur '00 Ltac, ocur '00 cta1f1, ocur '00
C)lan'Oce; ocar Cia p.ulbet:, ocur cm p.o op.ar, cm 1 10b 'OU1'O.
CU1te celme t:}'ta; a Let Ca1te foP.t: "Cat ãeñ òlAa'Ona, no o;scatU1;S
cac afla bL1a'Oam.)( 'Do bm'Oet: cmte L1a n'Olba-o fa'Oepn.
I Me""'"
3. J<Cefc, q1.a,-c1'O frura narcmt:hep. clute mte laP. na n'Olbu'O ?
a:'Oamt:et1 fru CUlmne reanca'O 1núp.a1ce '00 'OCl,.a11lP.It:he11. in ime,
co cLan'Oa'O Leo in ime fa "C}'t1 cen rena, >
Jl"DmIE
TS OF CO-TEXA
CY REUE.
141
Calts the rod. The ext e n t i.e. the .ame extent or the same proportion of the
"ea shore, if the cattle should pus over it into another 1an<11a.....fully occupied, there
shall be 'eñc'-ûne for the runnillg over due for it. Half for the 1awflll
fenc
, i.e. the 'smacht'-fine for half the 1a"f1l1 fence is due for going over the
olle monnd I of the road, it is fulljìne for go ill!} OVIJ' the second wall, i.e. six hands is
the height of the moulld and six hands i. that 0 the palisade, i.e. half fence is
,'eck<med for either of the two mounds. '.bt fnr '''0-3 ro,.],nn eac h
on this side and the other of the road, 80 that t or amoun
a fllll fence
A lawfnl fellce is .nstained, i.e. a 1awf1l1 fellce is thus SlIstained betwcen
them. Between them thus, i.e. hetween the two mounds.
Question-how many 'smacht'-fines? i.e. how many 'smacht'-filles are
there in the co-tenallcy, in the commo.> tenancy, i.e. how many things are there
for which 'smacht'-filles are paid in the co-tenancy. 'Smac h t'-fine of fence
i.e. the thillg.....hich is commallded to be puidfor going over the fellce. Of cat tie,
i.e. cattle .....hich break throllgh fastllesses, or illdeed on beillg driven b,'eakfences,
i.e. the two 'screpalls,' i.e. the fine for man-trespass, or the' sacks.' Besides the
trespasses, i.e. besides the 'smacht'-fine which is paid by men for the trespasses
which they commit in the land, i.e. by breaking the palisades. -
Row many trespasses, Le. how many damages do men do to the 1alld in the
commontenancy? Trespasses of palisades, breaking of stakes, i.e. a'dartaidh'-
he1fer for three stakes. Cattle trespasses, i.e. to put cattle into it, i.e. 'the
Racks'. III e n tre.passes, i.e. the other faults "hich men committed regar(lillg
the land besides the'...
J I'DO-
)IESTS OF
Co- TE'i-
ANCY.
Question- "'hat are the damages of possessions
i.e. the tres-
passes of another })erson, in the first instance, and his own tres-
Îmsses, when every ten-itory requires to defend itself against
pirates amI wild dogs, and the trespasses on his road
.
Question- \Vh. t are the trespasSE's of stakes
T
them in
V it-{ 0;, H..- L<
<t<tt- "v .
#-""""
thy p')'iW
w . I, after which
thou art reslJonsible for theA ence, and the right to the thing
damaged is upon thee besides that; and the making good by
thee of the thing 1clâclt has been damaged is upon them. The
default of thy stake is upon thee, and of thy flag-stone, and of thy
trench, and of thy stake-fence; and 1clwtever (
8h(l,1l resul t
t
orÍJlg, QI. iLlJIlaging, or--w<mIHlmg.
As to the trespas>!es in respect of a passage; half the fine upon
thee every year, or full fine every second year. The h'espasses are
merged by the' dibadh' of themselves.
Question-By whom are the trespasses of stakes established
after the 'diLadh' of themselYes
Y"
Ð;:' e restored f1dm the ' I
I . 'èJ b .' , LLJ L H.lt
memory of 11. wort IY antiquary the fenoe WM---Wlct- /1
r-
ftBt;:,e.l,..l!e that the fence was planted by them thrice without denial.
[f
rI21'J
I JJound.-' Cllldh . mealls a wall of earth, a d
.ke, but it is commonly trallslatoo '.J
'Ii ditch,' as in the term, a 'furze ditch.'
.
jvlc ("t.! nc
--r
c.d-
CJfr
l (,
142
b1teadla eoman:::hcep,a Un"Or o .
.- Lt.;;
"þl
.fr_14 luD<'- ]<
Cal l 1--C1'O etanna r alte ? HOlt oeu f 1UalL
IIEX'JS ( F
Co-Tt
- CWI1.-eaÍ"oe 1UWtt? (CIte lil Ime fa rp.1 cen rena. Or mcm
.
" renW5Ce11. elre nOalt no ('tanna?
1Æ5a feanéa mnp.lee fia'D a
7
""-Ì/wI-
111I1leu.)( Or muna ùe'D rt'aneame, 'Da bo-al11.
InTlI UCI 'DO éup.
D f qwm'D, oeur ata hi 'Ow tU5a, oeur al11.e min5ear ICI11. 'O l f, 'rr etJ
etannar alte ipn.
Or ma'D in ep.lé ulte {to tatJ mna feêc naêa 'DIP. 1 5 Ce 11.?
Hîn. (C11. acan:; in 'Oa ùta 'Oee nul" eunmp,15 Ce 11. quê.
fv'Mv D J t..I
Ca'D 1a'O f1m::? 11m. Cta11. bta.. all, bta, pn'O bta, noel' ùta,
J,. D I. 1,ta muenw5e, oeur 5 no 9ta, ùta i1!lf05ta, oeuf tlnn bta, 1 w 'Da1 1e fIt11-
D
ùta, bta nearÙal;Se, ùta p,C1me [eta'O ùta J.
Ctap. bta; cp.lê annrm na'O nmeol r eea'Of1aê eonw11'Oa, oeur na
cumn1u'OL"e11 feaneal'O.
Cere-co rUmaI5L"e1t? (C hlmmlllar I n'Oe,(!)re1tb llIl
.:ÙW'O. fh1t.Þ
,
nlu'O 110 be'O 'Oa eoma11ba, '00 Twnna!'O 1 uam .
J1.I"L
,n)
CÜt bta; ep.lê ineolree all, a'Op.a'Oa, no ait allnreU1te, no ep.ann,
no ti;S, no alt teaéL"a. "Om IIlbe'O feê"C eoma11'Oa 'Olb an'O In "Cuê"C
fin, eaé ae 'I' aJlaltiu, '1" qué ann I'm na eUmreal'O"Cea11.
V
þ
p
ptJota; q11é ron ineolfee bIte rea'Oa, 110 fI'O eotBap.<:a hé,(Jte
D
1. retJa eOIlW11'O aé) eaé ae uar a11altl, no att ooÊ, no fen t OIl,
CU'Dmame '00 telcea'O. Con'OIp.15ceP. 'Oono quêa nUt
!1!..
_t!1 e'O = 1ttM\.I-
reancam co nit..rnorem F01t 111 If 'Oe11b.
])
Þ
110er ota; .1. ep.lé ina eOlree = nOIre no rearea 1 ptJ no
a tllU1S. CC'Orul5e ql1C eaucpn, munur 5tuwp::a'O reanealtJ, a11.
,., 1'0 eonl<<1t'Oa qllée m pn.
bta !!1_u_e!1
..! ; .1. eJllé fon incOIrcf ee"C ùona qwnn no eUaltte 1 f)
L"atam no 'Olbttt mUttlll'O, tlO reanQlal5ea'O ro L"UIU'O. 11' 'Oai am
C}1Ië, muna bé P.Ott con a 1Wtre
.- ;, -
1'Ìð4 V ? r/!Y /ll1I./}
---- -- ,
bta .1'1i t !..O Lta eJlté ine01ree 'Oumae 110 bun nomna, 110 'Oumac -
1 o ep.amn; a'OruI5mn;1t ep.têa J.'Jllf1n.
l>
. D
D
I Shall tltl"u.t in the Btick. The Irish filly also mcuu, "Shun ca't II lot.'
· Vi.lm,bed. The text must Le dcfccli
e I!erc.
JUDmIEXTS OF CO-TEXAXCY I1EUE.
U3
!i.
Question- \Vhat settles the stake 1 . An oath and prescription.
Question- \Vhat is prebcriptiun1 The
ticking of the fence thrice
without denial. And if it be denied, by "\
h..t oa
h shall it
be settled 1 An oath of a worthy anti'luary to be a ,\itness of
the fencing. And if there should not be an antiqnary, two
worthy , bo-aire '-chiefs fillall tllrust in the stick, I and the one
shall take his oath, and th"t' airè '-chief who swpars between two)ï:, j I,li4 Ì4 ...,;,ø
/j
lie ,,1'0
ha..ll tl""l
t in tllf>
t.a ke then. a.,4hrit-
And if the whole territory be divided into seven parts so that
they (the antiquaries) cannot direct them'j Ånswer- For there
are the twelve marks by which a boundary is defined.
\Vhat are these 1 Answer-
.\ flat mark, a stone mark, a tree
mark, a deer mark, a stock mark, and a mound mark, a division
mark, and a water mark, an eye mark, a defect mark, a way mark,
a
mark.
A flat mark: this is a laml which is not distinguished by any
land mark, and which antiquaries callnot define.
Question-How is it settled 1 It is_ measured into two, into
the posses
ion of those aruund it. If there be two' l'Darbs,' tht-y
di
first.
A stone mark: i.e. a district which is marked by a stone of
wor
lúp, or, an imnlO'able stone, or a tree, or a flag, or a Il..!QllU- (''&U^t _
m.ent:rl.. stone. If there be se, en land marks of them therein at
that tiæ
, one over the other, it is a boundary that cannot be
disturbed. 2
A wood mark: this is a district which is marked by an ancient
tree or a tree mark, the one wit/t the other, or an ' all hog' tree,
or
oak 3 which was allowed to futL The boundaries are
.
.
de tined by these, unless there be anti(luaries to.-Lllstrw.:t as to the cf tit m 18
certain thing.
.(,
nv-ft,;,t' ["tin J lk
.i.
A deer mark: that is a district marked by the hair of deer or '7 "'W'Ç
of .lry cows in a wood or in a plain. These determine meers, un-
less the antiquaries remove them, for these are D1.C.CJ;S of a territory.
A stock mark: i.e. this is a district marked by the first trunks
of trees, or a stake in the earth on the ruin of a mill, or an old
bridge under the water.
law} marks which define , un-
.les&- there
so
thing to explain.
A mound mark: i.e. a district marked by a mound or trunk
of an oak, or mound of it tree; meers are defined by these.
JUDG-
)-n:
TS 01-"
CO-TE"-
ASCY.
4,11...
tuú. f..t
t
'In..
".4/1.:i<nloak. See "-e\ab Law!!, p. 3ï3, tor ml'Cr-timlJer.
\
...
IN LO
)
J''t
J L"I>G-
ltlEXTS or
Co- TE'i'-
AW'Y.
D
f)
Sic.
1I.1C)1 Sic.
.-
M"
tÁ.A1
atf
Þ
.Þ J"){,Lc,,
fiv
-l1>fi..u,; D
144
Ùtlead,a Comwd!cftW at1 "0 rO.
lA11'O bta, .1. Cfuë incolrce Ulrce ((ua 110 lûèa 110 npfWH7.
CCr-rUI5ann:t'P. cp'l'a ropfltI 1IIa 'Oilleaè all 11I'Our t:1ar'Oa.
Ro'Óapc uta .1. què íncolrce comap.'Oa rea'Óa 110 IUUlbC' qU!t1l'O
no t1a5. no comap'Oa r-atman. 11'1 CplC '00 mí'015t'afl flOrC, ocur
a'OruI;sa1'Ot:ep cplëe f111rm, ma p.o relreap. 111 'Oa ?
$Ð 'Ot'I1.ba ul'Oé
111la11 pa111'O 1'111.
.D
bta earba1'Óe j cplch ínCOlrCe earUa1É ratman .1. fan, 110 ft'lfe,
no t:a1t Ete((1111, no tntl1.aë renn" 1"lO'Oa. Con'0111.1lTeap ql1l'a
flclf1n '00110, ma'01a 1]
q'O reancal'Oe.
J)
bta ImfoËtaj què '00 r-el'O UlrCe 5ta1re a1p.m fO teal1a-p ill 'Oa
conlal1.ba in('Oa:::.bw'O fOP. ceët:al1. ill 'Oa ten::he. C.c'OrUI5a1'Ór-t'1t
cp.lëa fOIl. fill.
bta peíme j què 1'011 111C01rCe 1"lO'O ll1;S 110 r-ua1te, 110 11.0'0
ímrca5'la, no botall.. 11' bta ql.lè1 a1111 1'111.
\ Cta'O uta; ql.lë 1'011 Í11colrce 'Ouae, na up.cta1'Oe, 110 pat, 110
feapr, no reClb 'Ouae j a11'1'1 ql.lè a1111 1'11111a 1'Ó((11 '00 'Oubur, ql.lë
íllCOlrCC cta'Ó 110 cOll.a,
A.L< -Iv. So Þ
CC'OrUI'OI;SLCll. ql.1('a t:p.a fOll.r na ha1Ùp'o j ocur 1l.((1111a ((11 mU
OCur fotol15a'O Ca1d151 all a1b1all.l1m.'\l'
20"Ca1q;e t:11l.e ql.a .1. fU5a OCur pU5a all. 1IIaca1b t:11l.e OCur
t01115reaèa1b, OCur COll.Ur flU r:Ua1t, n::11l. rtol5ea'Ó ocur con5b((1t,
OCl1r l 1.0 5 a .
D
Ca1d15e pa1t:e .1. nne flur a aeI1Ull.. OCur a rtw5e OCur a llUll.-
rèall.r-a'Ó, ocur a cocta1'Ó OCur 5ta11a'Ó a 115peallach all ((11111'111.
), cua OCur ael1a1Ë, OCur 'OOIE a)1. am rUlb'Ó '00 caè Coba111 a1l.a1b. 11 í
'OUrtl ca1q;e '00 rU1111, 'Ourl1 rOma111e.
,. 80ma111e wtej a t:opa'O 'DO neoè 'DO pata 'Oé 1t:lp, OCur 'Dlpe
OlD
af Ull. ba . t
Ca1p-CO 'Dlpeal1ap fon? 11111; uan mott: 1 CUa1ttl '00 drCQ1t
l
ar t:a1b, uan b0111111'D all a 'OÓ, 'Oall.r-a1Ë aTla ql.1 COlla 11111'Dr-a1Ë;
.D
'Oa1pt: 111a ceata1p., cot
aè all. a fe, bo ana hOlT, CUIC re01t: ((11((
'00 'Oéc j aèt: f'O reOIt: 5abta a'Oa "fcomlllel'O.. 1IIa'O flu l1elte 1-'(>-
felrea1l.f ocur wdJE111 an mte '00 Ime ítl'Õll.lc, ocur belt}O 1wtur
co Ce((11111Ì1btw'Ó11a: lDa.kiP)
C4iJ1,.u., h t;c.,
/4'" -11JO.l-ý
, The eye. The e:re fixes the boundary, if two points of it remain, i.e. by rUD-
ning a straight line between these points.
· AI'e u'anlill!l. The lettcr which Dr. O'Dono\"an read as . r' in tbe word
· rp.ebu'O,' seems the usual form of long I "hich precedes' p. . when that lettcr is
doubled.
I Road.. For the differcnt hinds of road among the ancicnt Irish, vide Cormac's
Glossary. edited by Whittey Stokes, Esq.; also C. 80G-7, and nuoh of Rights, pp.
lvi..
I .e'l., Dublin, 1847. For ruleq a8 to the penalties incurrcd hy persor.B
iJljUli'){; rood-, l'ide AJlciwt LJw, 01 IrclalJ(!. \'01. iii., 1'1'. :;0:;, :5(,;. :>U9.
JCDG:\fE
TS OF CO-TEXAXCï HERE. 1 t5
A water mark: i.e. a district defined by the water of a river, or
of a lake, or of a well. Uoundarie;; are ùefined by these if they
run in a straight direction.
J (;"or.-
I\(F.
TS OF
Cu- T.;,,-
A'''i('Y.
An eye mark: i.e. a district defined by a mark of wood or of plain,
of tree or of sLone, or by a mark of earth. This is the district
estimated by tIle eye', and boundaries are defined by these, if the
two certain heads which are to this di
ision be known.
A defect mark: i.e. a district defined by want of land, i.e. a
declivity, or a sedgy plaef', or stony vale, or track of an old
.
Boundaries are define(l by these, if antiquaries are wanting."
A mark of division: t/tat is a district through
hich the water
of a streamlet flows where the two' coarbs' full....w--i1-; I' ,} 1 ,
on -wfL,g a.rvv4- ;; '7t (-
either side of it. Boundaries are settled by this.
A way mark: that is a district marked by tIle road of a king
or a people, or a rou(1 of carriage, or a cow-road. These are di&trict
marks.
A mound mark: this is a district marke{l by a mound, or ditcb,
or rath, or foss, or any mound whatever; for this is the !.:índ oJ
district into which it is not proper to enter, namely, a district
bounded by a ditch or stone wall.
[ . J
- J -
M.e.: 1 ..."" r, _
Boundaries are settled by these
of land mm'!.:s; and they
divide the stakes and sustain the fines for stakes afterwards.
The liabilities of land now, i.e. service of attack and defenco
against wolves and pirates, and attendance to the law of the terri-
tory, both as to the hosting and feeding, and service of defence.
Tile liabilities as regards roads,3 i.e. a fence is required for it alone,
amI it is necessary to cut them and cleanse them, and remove tJleir
"eeds and mire in the time of "'UtI' and of a fair, and because it is
expecteù that each shuuld assist the other.
he OU'1ler of the
road) 4
1H't
e!'"J' e damages from that, bJÎ:t. hl\ merits profits.
.
The profits of stakes are; the produce which comes of them in (þ.,.
okt.
the land, and the' dire '-fine for cutting them. CtftJr
Question-How is this paid for 1 Answer: a wether Iamb for
f-
removing a stake from it!! plaBe , a she lamb for two, a ' dartaigh '_
Ileifer for tIlree stakes with their appendages; a ' daÏJ:t '-heifer for
four, a 'colpach' -heifer for six, a cow for eight, fi ve 'seds' for
twelve; but they are' seds' of graduation of tIlc Mme vahlP, if it
Ifø
'i IX
bo Imowll t1at
nGwl tA II {J igffiMry, and a restoration of tfit
the stakes to a perfect fence, and to be security for its safety to (
) 110# f4
the end of a year. 1
c
--,
YOLo no.
L
146
OJ1.ear:ha eomcur:hcel1.a al1i)r O .
C<tdv
wÞ/.; D
+ Ð JXW 1120
Jl"DO-
ME....TS 011'
Co-TEN-
ÀSCY.
80mame Ll1l.e;)., ILl 11. 1:1"6, Ocur re1l., ocur ínna11l., ocur UlrCe, ocur
muí1l., ocur 1I1béu11., ocur "C"arCa1l., ocur flt1ëe 71l.t.
CÑ
C>
1l. 0Ke ; 1L11l.e ocur a 1l.1r1 ocur <<151t>;
80mame
;wnnav.
þ{?
cC1teo1l.a
u
[) 13"" , C. 31.JZ.) S [Ca1tël cet1l.a q1.U; ql.1 Ca1tce pt 'DO rUl'Dlb .1. ca1"C"ëe a nm5me,
ocur C<<1"C"ce a na"Óa11l.ce, ocur ca1"C"ëe a m bet; ca1"C"nëe a n m 5 ne
'DO 11eoë conrcafta, ocur concwl'o, ocur rta1"C"e; ca1"C"nëe a nat>-
a11l.ce 'DO necn 5U1m::e, ocur COI1rC
1l.a"(;(;; caH::h(;e a mbet 'DO
neo(; Ea1ber 'DO re1l.Ulb na cOTlla1È"Gech.
b1)v.
,_ Co mroe'Da1l. ql.a na ca1tce 1'0, ocur co ne1l.amct:a1l.? beftt: ha 1l.
coma1"Èteë 1 Tl111l.a1C 'DO mer na r05ta, ocur rore1Kna1l. relt r utu [1]
11. 1a 1l. a1b na coma1Èteë t:a11. a eíf1. mu rép. rota [1] a rota ta r ea 1l. ,
@no 'Da n01ft5 ocur ré1l. Ua1'D 1 t:aeb,,(a11l.CmI1 bera 1-'ÍU 111 fC11. [71Æ>JI\
flOlft5 e r. l11una be re1l., 5a1ùt:hep. 'D1abta'D roëql.a1ce ua'D 'D1UIE'
110 a1l.bal111, ama1t blr mer 111 reÓl1l. 111 famruë"C" r a 1 n5 em r üë t:. -
I! 1i %. /7, rolf. Lt "Duma Ca1tce q1.a .1. Imre'Da11l t: a 1l. d1l. 'DO celte .1. a11.<<15,
ocur (uql.eb, ocur rottrcut, ucur rotta, ocur a11, ocur a111.Cf1U.]
.,....
lc.
) D
1 \)''1 'o.,te.. VI\< o.l.' D - )(
.
It """...., ..,.t ^ f
Xecutt-ca'D 10'0 'DU1neca1r:he 1 .1. beall re'Da, el'D11 1 a1111b
0Aif"i.4
rea'Da ocur a-d1a1b rea'Da, octlr rOEta rea'Da, ocur tor a
t
2.v rea'Da. Dr l(,..,,,M. ;...t"... I(.
II
.........."" """"It
oalflr5 f. fE a: 'D a1 1 1 , cott, cU1tean'D, Ibup., lun'Dlt1f,
..<J. l!1'1 ,s.
('/I ""A. .
1iC
A
.
"""k- ocheaè, ab M '.. eÙIC reore:a n
lp.e cach ae; bo/hu111-
r
,
t
<MFA
-- A ^
ùelme, cotpach fna nEabtãib, 'Da1P."C ma cp.aebwb..
c/...t ",.Ire,
. . At
""'
lÞ-f'1'VlIc. s<.Vf.'1.
J.._,
"'" ". d.v C, r- CA..v<"""""'" v ,( V
a"C ha1 b t:'ea'Da.: refllln, fwt, fcelr:h, caep.r:an'D, beld1e, I.a j.
.,....c . 'L
At b
c. r1::;.ft 0 1- , 0-..- A "7
P
') team, maio, 0 a n'Dlp.e cach ae ; ','D((1p."c ma cp.aebu.' ...-
fr.."k.,. hC Ft"O.O.Ju. to """ C J) II
.
oEta rea'Da: 'Dr.al'seãn, r:p.om, reop.ur, rfncott, qu-
\ I" (')A r-..... A 0
tnaë, ca1tne, cp.an\) pp.. "Oa1t1"C a n'Dlp.e C
èL ae.
I Their jointa. There is some defect in the :MS. here. 'ð Ale A
. Birch.-' Deithe' is fouml in some ancient glossaries as a gloss on 'Dnxn8,' the
Box-tree. It is now applied only to the' Birch.'
. Idha. Dr. O'Donovan does not give an English eqnh alent for this term.
Pruf. O'Curry suggest. . Palm.' ]t is, wuler the form 'Iodha,' cOll1nlOul) tr811S-
'1
l
r
.c. ,., lD') LfOÒ
C
.
)
tW\o.lr (-''''''.)
r
,
::k
"<1111 1 U
cut
-t!.tv ttM 6J I -wðwJv
Lu f..IIl' J;
t/J
t4'wr, "44
fìI,.
-
It.. I 3-'"J If" f/';';; ":þ f' 15
tc
J
1"ill
1 fI.;
)
.,-t,.
JUDGl\IE
TS OF CO-TE
AKCY HERE. 147
The profits of the land are: every produce wIdell it bears, both
,vood, and grass, and
s, amI ,\ ater, and sea, and harbour, and
what the sea casts ashore, and waifs, &c.
Tbe profits of
' are: their' dire '-fines, their btrays, their
joints;1 four cows they share.
The trespasses of cattle, now; there are three trespasses by
them, i.e. the trespasses of their -tmiis, and the trespasses of their
llOms, and the trespasses of t.heir mouths; the trespasses of their
by separating, and
;'Pand plundering; the trespasses of
their horns by goring and tearing; the trespasses of tIleir mout]ls
by what they eat of the grass of the neighbours (co-tenants).
How now are these trespasses estimated, and ]lUW are they 11ald
for
A worthy neighbour is brought to appraise the trespass, and
grass of equal value is given at the decision of the neighbours. If
the man who has committed the trespass has grass of equal value, Jet
him give grass in the side or head of a field to the amount of the grass
which he has plundel"C(l If he has not grass, let double the hire
be given by him a
rds, or produce, according to the aplll'aise-
ment of the grass in the hot or in the cold season.
As to the man trespasses, now, i.e. passing over thy neighbour's
land, i.e., ploughing, and residing, and burning, and casting him out,
and driving, and examining.
7
JI:"DO-
IIENTS OF
Co-TE"'-
AXCY.
I #M
- ,'"
Question- 'Vhat are the man trespasses? Cutting
trees, both chieftain trees and common trees, and
shrub trees, and bramble trees.
The chieftain trees arc; oak, hhzel, holly, yew, ash, l.j-
})ine, apple. There are five' seds ' for the I dire' -fine
of each; a cow for cutting their trunks, a ' colpach '_
heifer .fine for their arms, a 'dairt '-heifer for their
branches. .dt
The common trees a1'C; alder, willow, :b.aõvthorn,
"11A!, (mountain ash, birch/ elni, 'idha.'3 A cow is the
'dire'-fine for each; a 'dairt'-heifer for their branches.
The shrub trees arc; blaclÜhorn, elder, spindle tree,
flf
A.Á.L
-(.{)If!\.") white hazel) aspen, arbutus.., test-tre
. 4 A' dairt '_
heifer is the' dire '-fine for each.
lated . yew,' but that tree is named before as . Ibur.' It maY
ecics of pine.
The translations
i\"en for' reoll.uf,' . cp.an'O f1P,' and' pan:,' are onl
'
].
· Te.t-t,'u.-Some tree probably from which lot, were mallc. ---
it.
../Hv J
(
/.-{
j
)
tl etnv
VOl,. [Vo
L2
to )?
"- \0 t
-t.j -{.
" >r
' l v tU
'
,
<4,'
I.AN
t-t- JIV A
[
"'1' irtt ,)
t4r .Â7I
1
1
ttj-I
t.
1-!
OILCÚL:hl( eomú1"chce)'(( ((n'Dr O .
· c.,r D LO'#V.')
. J Ww c. ,. ,.
AC, .-.4-t C
JIDG- \..,Or a reaí)a; t1.a1dl, lW1L, at"cean'D, 'Dp.lr, r1 laecl1 ,
1\IE'TS OF Þ}ry It , '"' C
l'O-TES- et'Dean"ù, "t:'ltcac11, f pm. eup.a a 11'DIp.e each ae. o
^SCY. Me. 0
. "UIfa.
Cm"" ca'O la'O 'Oulnecmt;he? .1. commfl.clm CU'D lat; na clnt;a '00
niat; na 'Oalne fl.lr In re""ann in a écmmr 1'111. belm re'Oa .1. t;erCU'D III
ç re'Oa co h111'Ottstech. Ocht;aë.\o In cfl.an'O Emir' CUIC reOlt; .1. 'Oa
t;ecwt; 'Oa ba. bo bUI n-beim e .1.lna nwt;nSIn. CoLpacn .1. oët; fCp.epatt
in wt;nS111. "'0 al ""t; .1. celtP.1 fCIl.lpatt.,. a"" 1'1'11"'8'0. bo a n'Olfl.e cac1,
lIe .1. ocur ni tuc a nmt;nEIn a"" atll.'O. "'0 a I ""t;.1 c81tll.l rCfl.epaLL I n'0 1 1 11
EabaL na ro'OLa .1. all. coLpaë 1'1' fCJl.epatt, OCur 11' '01""e a"" mt;11j;111 .\. no
.0 '1' a"" ramatfC' e, 'Oe an '0.1. Let '0111.1 c""aeb 111 cU1LIn'O '1' é tan '01",,1 bun-
be1111e In 8151n'O; no Let '0111.1 Eabat 111 CU1LIn'O '1' é t((n '0'''''' bun belme In
eISIn'O. Cu""a .1. t;)11 rCIl.lpatt, nO ber pu 'Oa fC""eapatt ina '01""1'.
!) "tr..I
"J
-1
_
ø
D
.1. belm l'em)c( no a tomp.a'V, 'Vo p.at1ap. cae na 0 'Vlp.1 .1. atdr5111
111'Vl 1 \C 111elc 11.0 b11Onnrap, 'Vé, ocu1' CUIC re01t:; 111a 'V111e. (Cèt:: 11;
If com1'p.Utt cae p'Ò W' a1ulltl ; ap. It::att:: poet:: nat111E fea'Òa, OCU1'
rect:: tHllt::hl5 fea'Òa, OCU1' rect:: "F05ta "Fea'Va, ocu1' rect:: to1' u
fecl'Va, OCur ara111 'V111e cae ae.
ri rJ'lJ Ib1>,g
/lG v
34. T
b l-;tJ=t:2
'MtoM\t D
1. cA4v
Þ
(C1p.rt; Fea'Òa; 'Vat11, cott, cUltenn, 1Un'VIUr, lùap., oèrae, aùatt.
"O I 1 1e n'Vu1 1ac ; bo re'ee 1 C0'11L5ea'V 'Va ùan uru?",ocu1' 'Vam
r elCe 1 COI11t::;seai> 'Va Fep. ara, OCU1' a foqw'Ò co n'Vep.ofC a r ta111e
.1. UIP. .!JI!I!.'1 OCU1' bocop, OCur temtact:: ñ
lt1e co t:: ta 5 cro 'Va me1'_
m1 1 1' 111 q1ect::
'aet:: tet 'VO belt fatP' 5011ab rtatl. CC mùul1-
be;111 , bo m'Ò, OCUf Zu
c- Y;01t:: a'Vlpe. Cotpae 111a mop. 5 aùLa , no
111a 'VatP_Ùl11 ùq;a, 'Vat11t:: 111a cp.aebcub. 11' amne 'V1p.e cue a111'5
1S re'Va 'VI h.
J1>
.0atP,; Cli> 'VombeIP' natp,echu1' hI? 11111-CC mear ocu1' a ratpe;
1 A si:rth. A cow was worth 24 'screpalls,' and the young heifer called a
, dairt,' was the sixth of the value of this cow.
. A cow-hide. Dr. O'Donovan remarks on this. The original is certainly in-
correct her
. It should be, "For the barking of the oak to the extent required for
tanning a cow-hide, a pair of woman's shoes is the' dire'-fine." See O'D. Wi7.
)- Clo
h 7TI4W
-ro-Wrv c{v /.a,
.
-{,
.,-w
1
......4
...
"''''''
JUDGllEXTS OF CO-TEXA:'fCY IlEUE. 14!)
I """' If1k iN -rt m.t
The bramble trees are; fern, bog-myrtle, furze,
briar, heath, ivy
broom, gooseberry. A sheep is the
, dire '-fine for each. 'ï' L ':If'<- (/d
JIÏ>g-
IE'ï'S OF"
<;0- TE"-
A:SCY.
Qnestion-'What are the ma n trespasses? i.e. I ask what are the crimes
which people commit as regards the land besides these ab9v
me1ltioned. C uttin g
trees, i.e. cutting the timher unIawfully. Pine,i.e.thefir-tree. Five 'seds,' i.e.
"hichamounttotwocows.- A COw for cutting their trunks,i.e.forcompensa- a Jr. ().f
tion. A' col pach' -heifer, i.e. of t1,
valuelifeight 'screpalls' as compensation. A lI:hjrh COIM
'dairt'-heifer, i.e.offour 'screpalls,'i.e. for a sixth'. A,
,.. is the 'dire.- tu:o cow..
fine for each, i.e. dr he did not
eir compensation lõt";t,
t A 'dairt '_
heifer, i.e. of fonr 'screpalls' as 'dire'-fine for the branches of the bramble trees,
i.e. for a 'colpach '-heifer of the valne of six' screpalls' and' dire'-fine is h
r
put
for compensation, i.e. or it is for a 'Bamhaisc '-heifer. I TY, i.e. half the' dire '-tine
of the branches of the holly is
'l'tal to the fnll 'dire'-fine for cntting the trunk of
the ivy; or half the 'dire'-fine for the branches of the holly is the fnll 'dire '-fine
for cntting the trnnk of the Ï\J'. A sheep, i.e. of the t'aluelifUuee 'screpaIl<,' or
worth two' serepalls ' u due as its' dire '-fine.
That is,for cutting of trees or stripping tbem, full 'dire '-fine is paid
for each, i.e., a perfect compensation for the portion of them which is
damaged, and fiye 'seds' as 'dire'-fine. Dutall trees are not equally
noble; for there are seven chieftain trees, and seven common trees,
and seven shrub trees, and se"\ en bramble trees, and the' dire '-fine
. for each is different.
The chieftain trees are,. oak, llazel, holly, ash, yew, pine, apple.
The' dire '-fine of the oak: a cow-hide" is due for It/'ipping off it
the barking of a pair of woman's shoes'; and an ox-hide for the
barking of a pair of men's shoes; and also to
it until the test
{
h.. D
of its recovery' is had, i.e., smooth' clay and cow-dung and new milk
are to be put upon it until they extend two fingers beyond the wound
on both sides, and IIRJfjìne sLaH be for it until it is whole. For
cutting the trunk a cow is paid, and five' seds' are its' dire '-fine.
A 'colpach '-heifer is the fine for their great anns, or for their smaJI
oaklings, a 'dairt '-heifer for their branches. The' dire '-fine of
every chieftain tree of them is such as we llave now Itated.
Oak: what gives it dignity 1 Answer. Its acorns and its
I A pair ofu:oman', ,hoe,. 'That i!, as much bark as wonld tan leather enongh
to make a pair of woman's
hoes.
· The lelt of it, ,'ecor;e,'!I. lhat is, nntil it is secured against the effects of the
weather.
ð Smooth. The Irish wor,1 read as 'mum' ma}' I.>e '1Ilum,' the ori.;inaJ bcillg
c\'}nbtCnI.
*iIt '1J'U1I, '.J.vrv. t '
"^r
150
bp,em::ha eomarcheera CCn'Dr o ,
(W [)
JUDO-
ME"TS OF
CO-TEN-
A"CY.
cott? a m
r ocur a caet; abatt? a meal' oeur a 1 1U r e ; l11rI11? Tf "I't-./t
a glE'Oe faf'11a; eUltell11? fe11 f011 a11wL111111 1'111, oeur fC1p.r e r.f .:--
eaipa
'O; U111'OIUr? fotae 'oCU1' 1t1EL1af'Oa, oeur tet a1ta'Ò Wp,lII.
1
oeweh? a b, a "{;utea. "t
D
'
f CCLhw;S fea'Òa; feP,11, rwt, bete, tern, ql1Lhee, 1'Oa'Ò. eW11Lan'O.
bo bU11bui1l1e eae ae, 'OW11"{; i11a nEabta, eaep.a 111a qlaeba, eUle
reolL ap. eap,ba.
o'Ota fea'Oa; reel"{;h, 'Op.wEean, 'l'"p.om, fe011U1', ep.w111 P1 1 ,
Cl'Oteaml, pneott. Cotpae butl0e11ne eae ae; eUle reorr n11 e((p.ba,
. . D'D ((ë"{; '011al;sean,
o_T!:a!1a_'O
ll_ r
1n3>
_ eU1e 1' e01 "{; .1. 'Op.m;S11eae bir
1 fat em::a11ba '00 fOI111ëe((P., no '011U1Eean euop,a.
clc
D
tL.l!:r ,,'3. 7a.
\S'-l,
""U
.,,
1
.
to1'a fea'Òa; '01111', aKeU11'O, waee, rp111, E,te((eh, P.U1t. teaeta
1 'Olt1'e ((11 ((en Em1', oeUr'OU1p.L i11a nea11ba. 11' ún111e '00 p.((11a'O((1 1
U1tl, ae"{; a n'Olt1'1 oeur P.O'Oltf1. (70{,. D) I
q. tJ:ð-'n.ji>1f
IS" "'Oetblp. ep.a111'O a p'Ò eomr(1teera, oeur can 'Oetbl11 Ep.w'Ò.
"Ç>etbl11 EP.U1'Ò a p'Ò nellile'O, oeur e111 'Oetblp. ep.aI11'O. 8mat"{; a
p'Ò ne1111e'Ò no eo mben"{;a11 U1te, oeu1' eneetUIl11 111'0 0 oennl11.
"'Oa ba oeur bo 111'OtaeE oeu1' eolpae OèL rep.epatt ql1 '011 11
na nU1p.ee fe'Òa. tutEaeh oeur eotpaeh oè"{; rep.cpaLL oeur 'O W 1 tL
10 ee1t111 rep.epatt, a LP.1 na , dlE"1C1. tmtEeë oeur eotpae oe"{;
rqtepatt, oeu1' 'OU1P.L eelt1t1 rqlepatt, ql1 '01111 na nm:heè fc'Oa.
8 amU1 r c ocur 'O U1 1 1L eeltp.1 rqlep((tt, oeur 'Oap."{;U1'O 'Da rep.epatt
a ql1 nU1dlEena. 8amwrc oeur 'OU1p.r eelt1t1 rep.ßpntt oeu1'
'P a P.LW1) 'Oa rq1epatt, ql1 '01111 na fo'Ota fe'Oa. Cotpaeh r e
t.'>"rep.epaLL, oeur 'Dap.Lj:tI'O 'Pa fep.epatt, oeur cae11a rql1pU1tt, a
"{;P.1 na1dlEena.
J Noble ,1,-./clU7.t.. That is, the highly prized pieees of furniture mallUfactllfcd
f rnm it.
. Fe,' 1m. araili inn sin.. This pl,rn,e "as left utJtranslated by Dr. O'Doum an
rrofe<sor O'Cnrry rendereù it, .. Thi. is tlw oml" as inviolable grass "; a meanin
1vhich seems very doubtful. It may mean, .. A man upon another in that," anù
r fer to the l1S
of hully 8lÏeks in fif
hling.
J(;DGME
TS OF CO-TENANCY HERE.
151
s j hazel1 its nuts and its wattles; apple 1 its fruit and
its bark; yew1 its noble structures l ; holly1 'fer for araili inn sin,'2
and the axle-trees of chariots are made of it; ash 1 supporting of
a king's thigh, and lJalf furniture of his arms. Pine 1 its b
Ï1tg
in
the pmrclreon.
The common trees are; alder, willow, birch, elm, aspen, 'idhadh/
mountain ash. A cow is tlte fine for cutting the trunk of each, a
, dairt '-heifer for their arms, a sheep for their branches. Five
, seds' is tlte fine for their lopping.
The shrub trees are; whitethorn, blackthorn, elder, spindle-tree,
test-tree, iW white hazel. A' colpach '-heifer is the fine for
cutting the trunk of each; five 'seds' for their lopping, except
the blackthorn, for which five 'lieds' are paid, i.e. blackthorn
which is in an uÐpl"6fitablÐ.-fence
(òrokcn dOW1
,,:mclr-isptt5SUd
', or sweet-smelling blackthorn.
The bramble trees are; briar, furze, heath, gooseberry, broom,
fern. 'Leacla' iR forfeited for one sprig, and a 'dairt '-heifer for
their lopping. They are all thus paid for, except the right and
the full right.
Tltere is a difference of tree in a co-occupancy wood, without
any difièrence of class. Tlure is difference of class in a sacred
wood, without difference of tree. There i., 'smacht '-fine in a
Racred wood until it is all cut down, and honour price is paid fo
it when it is cut.
Two cows and an in-calf cow and a 'colpach '-heifer of the value
of eight' screpalls' are the three' dire '-fines of the chieftain trees.
A milch cow and a 'colpach '-heifer of eight' screpalls ' '1;alue and a
'dairt'-heifer worth fOllr 'screpalls,' are their three compensation!!.
A milch cow and a 'colpach'-heifer of eight 'screpalls' value and a
'dairt'-heifer of four 'screpalls,' are the three 'dire"-fines of the
common trees. A' samhaisc '-heifer and a 'dairt '-heifer worth
fuur 'scrcpalls,' and a 'dairtaidh '.heifer of two 'screpalls,' are
their three compensations. A 'samhaisc'-heifer and a'dairt'-heifer
of four' screpalls' value, and a ' dairt!\idh '-heifer of two 'screpalls,'
are the three 'dire'-fines of the shrub trees. A 'colpach '-heifer wortl
six' screpalls,' and a' dairtaidh '-heifcr worth two' screpalls,' and ß
sheep of the value if one' Bcrepall,' are their three compensations.
. Ivy. Thp Irish word here is 'eidleann,' whereas in the text before Oine 2, p.U8)
it is' eiùeand.' Dr. O'Donovan r"garlled them as different forms of the same lIame;
Profes"or O'Curry suggested' woodbine' as the translation of ' eidleann.' (rWr-)
Pù-e.Qt:(q,oo
"
J UDG-
MltNTS Ol"
CO-TE
-
ANCY:
wv-v-d
rtb
J
II1J - I fAvta"
v
' #i'\
vrv"Wfv [-(.I1,J.r fwv ) k
'L
)k r . v' _ r '.
Þ)
'-6 Vl;,rr- .t
WÞfw'
)
. 1,.
t<- v ) I
11 '1
132
ÙJ1.ea
ha eoma1
hce1'a an'l>1'o.
JUDO.
'et11 fCl1.1Pl11Lt ;11"Onb 1 t::1 p. m"l::11"5111 OCl1f 'Dlpe 11111nb fl11 111 nl11
If a f1'D C01l1IctH'aff!, OCl1f 111 pl n; 11a 115autwb. 7t1t. rlla'D a
f1'D 11f'lile beme 1111Ut1tlO, celttl1 p:t1IpU1Lt 1t1'Dt::elb ap, 'Dlt1e, ocuf 'Df!
fct1epatt ap. wt::h5111, GCUr (( ql1(111 ;na 115nuLa, ocuf a 1'f'lf ea 'D
J" 111 a qwebwb. ((11((1' afLh5111 'DO w11echmb re'Da Ifecl"Ò If 'Dlt1e 'DO
<rrheëwu rea"Òa; a tlwt::h5111 1'111 lfre"Ò If 'Dlp.e 'DO F05LU1U rea"Òa.
:M Il'STQ OF'
Co-Tt,.s-
ASCY.
14'1b '7 ) c.13/
F.o;...:t"A.
..t
Jv..iJ4 A
",q oA
J,p. ,,q Q.1t
Uup.ba
lp.e 'õon({, 1l>Unacmte. uotlLa1"5 a qu Ct1mttl
^
A 'þy iA IJI\.A,I'1
cona nín'l>
e({ch, 'l>({11l.
ín"a Ct11C, cotp"ach afl(( hoch
,
v. r'"
-,. "II 7 11
CUIC 1'e01l:; ({fl({ 'õo
ec,Jõ('t1r: mdJE111 ta each n({; OCt11'
-
.0 beH;h FO elna1'l> na bet1.11G'l> co cean'l> mbtm'l>na.'
8.4/1
II
/I
.6!!. 3'4.
'
aur\.bo: 1::11'e '00110: .1. rill.elbe 111 re1'W11'O '00110. 1'OU11aCa1te.1-
If C111t:O: 'O011a 'Oaímb elf1'Oe. "OO:1't:aI5 .1. If ríu '00: fC1'epaU.. Co 11 a
n í11'Ot:each .I.cuf aní If t:01ch 110 If 'Out:hm5 blf 01'11.0 a h111'Oe, ín cÚeLach.
"O(1)l.t: In 0: CUI C .1. celt1'l fCIl.eapmLL. Co tp a ë .1- oët: fCIl.eapaLL.
'SCUIC feolt: .1. 'Oat:ecmt: 'Oaba,.1- lUll. fut:. ((1t:h5In Lo: cach no:
.1- mt:hS111 111 mLe La caë flnaët: 'Olb fin, ocuf 'Oame 1'0 bP.lf ann fin he.
belt:h 1=0 CI11o:1'O .1. COIl. focLat: commdu5 111 w1'be. Co ceall'O
mbLIO:'011ct .1. all. m 1'e co f10lb fell. buna1'O I nwt:lt:În 0: LefmELhl.
1/ O',ô' QD.>
','D
lO'D. 40G) ["'OcQlt::n 1 5 1 ql1 cumtbb] .1. 'D({ fcr.epatt 0 mtlpcopt1111a tutat ;
7.0 'D((111T cClrhtl1 p'p,lptl1lt ;n(( CUIC .1. tutm 111 'Dcot'-((m OCUf me'DOll-
"{;m tat ;n U11tWrñ. Cotp((ë ocht:: fCt11pll1tt (( 1l1C'DOllL"W tat 111
'Deop.a1"Ò, OCUf "0 111'Dl ((C5 0 Ul'-11a"Ò,OCUf tutm ;11 l1yttlCll"ò, umy>..
11Oët:: fCp,lpU1tt 0 l1t1p,a"Ò ;na tutw, OCUf bo 111'Dtae;s fe fcyu'patt
1 Of its being ,'epllired. That ie, acknowledgps that it has been properly
repaired.
2 SmaUeßt nffillce, i.e. cutting three 6(ak
.s. lIIiddlc offence, i.e. cuttiDg fh-e or
JUDG:\[E
TS OF CO-TEXA
CY HERE.
153
Three 'screpalls' both for compensatioll and' dire '-fine are paid
for them when it i<; in a co-occupancy wood they are, and there
is nothing for their large branches, J::c. If, however, it be in
a sacred wood they are, there are four 'screpalls' for them as
'dire '-fine, and two' screpalls' as compensation, and its one-third
for their arms, and its one-sixth for their branches. The compen-
sation for the chieftain trees is e']ual to the 'dUe '-fine of the
common trees; and the compensation for them (t/w common trees)
is equal to the' dire '.fine of the shrub trees.
JI:DG-
MENTS ú'"
Co-TE
-
ANCY.
But cutting ofland is man-tresp ass. A' dartaigh'-
heifer is the fine for three stakes with their appcoo - WW
ages, a 'dairt '-heifer for five, a 'colpach '-heifer for
eight, five 'seds' for twelve, and compensation for
everyone of them; and he (the trespasser) shall be
accountable for the injury of the gap to the end of
a year.
ß ute u tti ng of la nd, i.e. but the real cutting of the land. Is m an-
trespass, i.e. this is trespasses by the people. A 'dairtaigh'-heifer fo,-
three, i.e. of the value of two'screpalls.' "'ith their appendages, i.e.
with the thing which is natural or which is proper to be on them from the root,
the slender twigs placed QC,.o... A' d air t '-h e i fer for f i v e, i.e. of four' screpalls '
value. A 'colpach'-heifer, i.e. of eight 'screpalls.' Five 'seds.,' i.e. which
amount to two cows, i.e. altogether. Compensation for everyone of them,
i.e. the restitution of the stal,.e fence wilh every 'smacht '-fine of these, and
it was persons that broke it in this case. Shall be accountable, i.e. until
neighboun(co-tenant.)appraiaethestakes. To the end of a year,i.e.un$ihhe
time that the original proprietor admits that it has been repaired.'
A 'dairlaidh '-heifer is due for three shkes, i.e. two 'screpalls'
are to be paid Ly a foreigner for the smallest injury j" a ' dairt '-heifer
of four' screpalls' vallie for five stakes, i.e. the small offence of the
stranger is the same as" the middle offence of the native freeman. a Ir_ And.
A 'colpach' -heifer wortheigLt 'screpalls' is due for the middle offence
of the stranger, aDd an in-calf cow from a native freeman, and it is a
small offence of the nath'c freeman, because the middle offenca of
the stranger is the same as" the small offence of the native freeman,
for eight' screpalls' are dUÆ from the native freeman for Ids small
offence, and an in-calf cow worth si1\.tcen 'screpalls' for his middle
eight stakes. Greatest or bigb
st offence or tre'pas', i.e. cutting Iweh e slal,.o-,
and making by
o doing a full I:ap in the fence.
'h'I"ï
S2) .Tmo-
v lom!<TS OF
CO- TE"-
:: V
1Iv A
.
O"D. 406.
u
C '" lo'l 11'7)
r-
1/ o',(}wi 11'1 0 I
W
iJ
at
. <<
154
bp.eadm eOmWdlCera CCn"Or O ,
I
'Òcclma f1leoonrm tm, ocur bo lf1'Otae5 0 'OeOt1.aI'D 111(( cterÖ tm ;
CU1C }"'eon:; 'Oa t;ecUl'O 'Oa ba Otl11.a'Ò ína cte1t1 tm.
---
[Cm 0 fU1t m elr.1CC 1'0, ocur cmllur 110 1'e5a'O m 'Va fClll'pult
11' na t;1l1 cumtbb? .1. '01((1' '00 m\1p.çhup.rmb tet;h êumn ocu1'
s-teILh celtte, fCt11putt uarhU1b If1 'Oa cumtte '{J1b .1. telt rcp.1putt
o caê pup. '01b .1. aon mup.cup.ta co'On
!.;s. ocur fCp.lpatt ua'Ò
- 1pn qte1' cumtte .1. 'Owr '00 mutlchutlta terh eumn ocur te1t
eeltte ann, ocur rcp.lpatt uata m 'Oa cumt? e, ocu1' rp.wt1- '00
mup.chup.ra co'OnuI5, rcp.1putt 0 each pt1- 'OIU 111 caê cumtte '00
,Dna rp.1 ct1mtbu elte .1. oët; 1Ilutlcup.ta co'Onal'S all'O, ocuf ochr
1'cp.lpU1tt uadJa 11' na hoêt; cumtbo.]
1t1
_ C
g í-Ñ/)J, . Cr,tri
; 4
,. lúiAI'
am op.bft 11a'l) a
tm'l)ca'l); aup.ba 11e1E11e p.m rtoË;, Tua
It tonmb, 11m rtmtmb cm bO'l)é.
,
(Ct;a ot'ba na"O acLal"Oea'O, .1. m:a Pt'6be'Oa "00 bpt'at' at' 111
.ç r6t'an"O, OCU1' noco t;ubat' acLm"Oe pach at' III t;1 "00 ní lat;. (C U t' b a
"61)::;ne, .1. bt'I1'e"O at' e1C111 t'efln 1'LOb' .1. rot' t;ele6"O t'e 1'LOb' RIa
tonal b, .1. na 1'LOb 11'111. RI a r Laltal b, .1. t'1({f na rtan::hlb, Clbe
l
Lmdle 1({t;, mana uat'at;up. conalt' mLe.
...
..t
t-t ,.,.,.t
c. 0
IS ar;a aup.ba ceafla 11a'l) adamca'l): aup.ba 111mrea'l)t1((
:1-0 rmp.e mU1t111'l), 110 'l)U1p.r;h1Ee, 110 membp.a, 110 rmp.e
'ùUl111 p.1Ë;. a'DCOmap.ccqt t11te, aTlt1)' rean Faror 1 a
Ff'1t1e,
m_ncup. 'Sach EU1'6e; t11tba 11m cottwb, p.1O
11mtmt1tmb. "ûum:a1t cat 11011ba.
I
-c,1I'I"
---
.r
((t;a aut'ba ceana,.1- at;a Pt'elp6"Oa cenarenmota fln,ocuf nf1CO
2Ç t;abttat; acLm"01 pach (lp. 111 t;1 "00111 1({t;. (Cu t'ba mmr.ea"Ona, .1. in
Pt'61P6 "00 nit;et' f\{'f1n n6imr6i)({ín "00 bet'ap. ap. amur ín mU1t11l"O
in t;an blrep.ac"Oenam afmt're. "Dult't;hIFjE',.,. mOlt'. tl16mbp.a,
.1.b,CC. 8alt'6"Oulnl t'is,.I.ínrllnb1L6p.acu"OE'nam. (("Ocomat'cap.
u I L6, .1. mp.rm5t;lp. U1tp cae ní "OIU fin "Opp. 111 ret'mn"O, .,. ,npwfa(t;
H ren "Ouna"O, no "Ouna"O C6n mt'wfal:r.
I Cutlin!}'. ThAt is, breAche
, or gßp
..
v
f A,
JUDmIE
TS OF CO-TE
AXCY HERE.
1.')5
offence, and an in-calf cow from the stranger for his highest offence;
five' seds' which amount to two cows are due from a native free-
man for his highest offmce.
By whom is this' eric '-fine paid, and how do the two' screpaIls'
proceed from the three stakes
i.e. two of the foreigners beìng
of half sense and half reason pay' a 'screpall " for two of those . Jr. From
stakes, i.e. half a 'screpall' from each man of them, i.e. one lI,em.
sound-minded foreigner who pays a 'screpall' for the third stake,
i.e. two foreigners of half sense and half reason in this case, and
a 'screpall' is paid by them for the two stakes, and three sound-
minded foreigners, .every man of them pays a 'screpall' for every
stake of the other three stakes, i.e. tl
ere are eight sound-minded
foreigners in this case,b and eight' screpalls' are paid by them for b Ir. III ".
the eight stakes. '...L.
t
. . tW Mf
..uh
There are cuttmgs1wlnch ar e not s l1 ed for; a forcí-W-e
cutting before a host, before provisions, before chief- t
tains of any kind.
, .
JUDr.-
:r.H
TS OF
(;0-'1'.:<-
AXcy.
"l'e'j t'1;ir' he""
(e' .()fV>' )
There are cuttings which are not
ued for, i.e. there sre relll cutting
which are made in the land, and fines are not sued upon the person who makes
them. A for ci b 1 e cut tin g, i.e. a forcible breach before the h08t, i.e. in
flying before a hOlt. Defore provi
lons, i.è. of these host
. Defore
chi eft a i n 8, i.e. before the chieftains, whatever chieftain8 thcy be, if thcy halt
found no other passage.
There are cuttings also which
r; a
cutting for carriage at the construction of a mill, or
of an oratory, or of a shrine, or at the huilding of
a king's' dun '-fort. Leave is asked :tbout them all,
for it is an old maxim with the Feini, "for every
supplication is pleasant"; a cutting before bodies,
before pilgrims. Let every Lreach be closed. 2
(
h
There are cuttiI!gs al
o, i.c. thcre arc renl cutting3 also besidcs the
e, and
the}'bringnoc1aimofdebt8uponthepersonwhomskc
them. A cutting for car. c )
riage, &c., i.c. the real cutting!! which are made Þy-tb o
nTri" geof tlting
lYro"!Jht
f
f-h;..
tow ud. the mill when the construction of it i
being msde. Of an orator}',
i.e. of a large one. Of a shrine, i.e. of a small one. The huilding of a
king's 'dun'-fort,i.e.whenitisbeingdone. Leave is asked about
them sll, i.e. pM-mÙsónn to do e\'cr} thing of the.e is a_l,elt for of the owner of
the lane I, i.e. cunsent without closing, or closing without consent. {':t;. Iw
etH..; ifUk
.It'
I Be cio$ed. Or, let every gsp or breach be closcd, or c\ cry breach is to be /lUx..
. ->14
closp,!.
. l.f
...,
.
156
b,teadJa CommLhcera atJ'Dr o .
fI'-ð- Iz-S3 ,
]I1
:
F 1r eetp,ami;a m 'Oap,
m>a no na 'OaI}lL1 m'O 7}lt, a eeë
a1l TIP.
Co-TEX- / 1TIa'O cen al1lWraë
, een 'OunatJ, 1f tet. 1TIa 11.0 efeer
uP" oCUf 111
A
: eomap,te1e
ep, '00, 1rtan 'Ow n'Ouna, mana 'Ouna, 1f ee
hp,am{;ha.
"
.
ob'
. , "
Up.ur rean
arac "a
e1ne, .1. ap. If renc1ll'Oe'O 015 'Oop.elp. 111
f renechmf. .1. If cet;hp.amt;a 1Il 'Oap.t;a'Oo:, no na 'Omp.t;I1tl'O. 110 LI an cu 1",
.1. mLEen, .10 If LI
n
mp.
a!p.
t;!. he 0 belttp. o:ca EUI'Í)1. 11 p. ba P.I a
coLLal b, .1. na map.b, mana f<lEba'Ò cOllmp. mte. Ria nmLU1êp.atb,
.1. p.ef 1Il Luêt; t;ett; 1tla mLltp.1o "Dunt;ap. caê nop.ba .1. 'Ount;ap. caê
íp.elpl'O 'Olb fin, ualp. mana 'Oent;ap. noco rLan.
" ""Ow nateomar.eap, m Lan ortaieLep, f11.1 'Oel
hbI1lef, oeuf
'Ounrop, fon m'Our ee
na, 1ftm1 '00. 1TIa 110 'Ouna'O, oeuf 1f mCfu
an'Oaf amUlt 11.0 bUl, a n'01Ealb al1u 111 'Op,oë 11lle 1ct:u1l ua'Ofum.
1TIan1 11.0 'Oun 1L1p', 1e
ap, rmaë
na 011lEne ua'O. 1nana
atcoma1le
ap, 1L1p', ocuf 'Oun
((p, amult 110 l'UI, 1rtan '00. 1TIara
IÇ ote, 1ea'O flnaë
011lEne Lmp,re. 111una 'Ouna 1L1p" 1ca'O fmaë
na
011lEne, ocur tet CUle reol
, art 111 m;hcomap,e.
. (, ., II lD:ð /(07)
c/.J, Co _c . ,
o eom1cheach 'Dono b1r KIP. 'Da L1P. 'Dt1EI'D tan 1m1p.ëe ;
bl'D re1reat1. umpu, LP.taP. 0 F'tt L1t1.e, ocur ap.mt1 0 ptt
Im1p.ëe.
2.
eU1C reOH:; anam ocur ({"cmn, ma 'D1chmmp.c, achç
am e1Ene; n1 hactal'De am bo 'DO nqtb.
Comlcheach 'Oono blr 1t;1P. 'Oa t;1P.,.I.It;Ip.'Oarep.an'O,1tl t;1p.ona
bl p.ot; .10 ump. noco nrUlL conmp. mCI
eín. "OLIEI'O Lan ímlp.êe, /.1' (j);ð 1Lrl.f )
'00 tecu'O '00. 0
IP. t;1p.e,.I. opp. ín rep.a1tl'O. Up.aILI, .1. o:p.1tl
tç comLín bmf 6 pp. bunm'O 1tla n'OeEat'O .1. ump. noco nUlL cOl1mp. mC1 reín,
ocuf If Lan '00 caê rOEalL '00 'Oena P.lf na commtclb, amu1L comp.n::h
nmp.me.
t ;:"" ....0,,( á ) ",tki,c,lJv
.1. (CLa anna'O acta1't! 'Ot1Eeaf caë eomaldleaë 'Om 1lalte .1. L11"
cen beota, cen 1l0
, cen botup,; 'Ot1E1'Ö tammlp,ëe Lap, caë L11l U
Jr comltaë bel' nearam '00, aë
1rre-Ö ín'Oaf na 'Otl b , PTu1l U1mpe,
I Road. Or unles. IIlIotlwr road eould be fOlllld.
. No road. J n O'D. 40i, it is called II district, U cm 1:::0111 cm beoLu," U without
an orening at Ihe front or the rcør."
..
JGDGl[E
TS OF CO-TEX.\
CY I1ERE.
137
It i,> the fourth ofthe 'dartaidh'-heifer or of the 'dairt'-heifer tftat
is dIM for it, &c., for either of them. If without consent, without
closing, it (the fiM) is one-half. If he has given consent, and that
he haa not advised him to it, it (the penalty) is full fine if he
closes, if he does not close t1te gap, it is one-fourth.
,Tl"DO-
J,{E
rs OF
Co-TE"-
^XCT.
For it is an old m a x i m wit h the Fe i n i, i.e. for it is a perfect
old decision according to the 'Feinechas'-Iaw, i.e. it (the fit.e) is a fourth of the
'dartaidh'-heifer, or of the 'dairt'-heüer for it. Supplication, i.e. clement, i.e. 'I tJ:ðcw lI'Ib
he is the more clement for being supplicated. A c n t tin g he for e bod i e s, i.e.
of the dead, nnless the}' find another road.' B e for e pi I g rim s, i.e. before the
people who go on a pilgrimage. Let every cu tti n g be closed, i.e. every
true cutting of these isc1osed, for unless it is done (closed) it (the act) is not guiltless.
If leave be asked, ",hen it is breached- with necessity, and it is .Ir.(JpeJled.
closed in the same way, it is guiltless. If it has been closed, and
it is worse than it was at first, the damage done in consequence of
the bad fence is paid by him. If it has not been closed at all, the
'smacht'-fine of the damage i,> paid for. If permission has not been
asked at all, and it is closed as it had stood before/ it is guiltless. b Ir. AI it
If it be badly done, he shall pay fine for the damage done by it.'
'f:'Over it.
If it be not closed at all, he shall pay the' sma.cht '-fine of the
damage, and half five 'seùs', for he
ot ask leave. 111 rta.d.
. '
A co-tenant who is between two lands is entitled ^ L/u-
to full passage; six persons are to be about them
(the cattle), three from the owner of the land, and
th1'ee others from the man of the passage.
Five' seds' arc payable for driving in and out, if
without asking leare, except in case of forcible driv-
ing; the driving of a cow to a bull is not sued for.
A co-ten an t wh 0 is b etw een two I a nds, i.e. between two farms, i.
.
in the land from which there is no road,' i.e. for he has no pßS8age himself.
Is en ti tl ed to full pass age, i.e. to be ceded to him. Fro m the ow n e r
oft h e 1 and, i.e. the owner of the farro. 0 the re, i.e. for the proprietor shall
have an equal number after (minding) them, i.e. for he (the co-tenant) has not a
passage himself, and he is not amenable for an}' trespass which he may commit
against the neighbours, as running of the
hole stock or drovc.
'" .' fIIVv c/q<,1.....-+
"- M N'.
There i8
which every co-tenant is entitled to from the 0 4(".
,., f
other, i.e. in a. land without an opening, without a. road, without
a way; he (tfte tenant) is entitled to full passage over every co-
tenant's land that is next him, but the manner in which he is
1 Jou1U1 to pass is, tt-ifh six persons about him, three persons
158
b'leadla eommchcera a1l'Dr Oe
J UDG_
.1
:NTS 0 If
CO-TEX-
AXCl".
t:p.wp. 0 pp. t:1lle, ocur t:p.wp_ 0 fill íllllllëe 'Ow n'Öl.uta'Ö 1-1 H
fetma'O, ap. na foteat<ro fon t:1ll. "'Ow m be botap_ '0(', '00 }-'OttwE ea l1.
rame; 'Ow mbe'O 'Oa cta'Ö Îme, no 'Oí cot1.ar6, <rot un:;eal1. teo ap. a'O
pa'Oam <mtJr% 1r 'Oe anl.UÜ1Hx'Ö, blW'OW'D pa'OU1n; muna be'O
s aët: 'Oon 'Oot1.nrann ní h11llt:ecal1. ta rumU1b; II' 'Oe arp.uüp.a'Ö, 11Î
Ltlat:a'O pa'Own.
Fí
CUIC r e01 t; anum, .1. ínun'O .1. 111'0. ((t;aln, .1. lmach, .1. af. n1 a
'01 cll In ((1 pc, .1. ní UU1ft conU1ft U11..1, no ní coemnaCU1ft EuomL íme. ((ë t;
aln elEne, .1. uU1ftlfLan elf1'Oe. ((In bo '00 t;afto,'.I.cU1cfeOlt;'Oa
10 'Oecalt; 'Oa ba Inam, ocuf II' t;aft Lan nne, ocur Let;h ín rcín mana be íme
11la 'Oaft Let, If t;eofta cedlftamta na 'Oa boo n1á 'Oarl. Lan íme ín at;h-
Lumfaft. If boo n]a 'Oaft Let íme, If t;eofta Cet;hll.Umta na bo; ma'O cen
nne 1t;lft, lfammrc. .
(FWJJ
)
1JJ, CirJJ
(!-1..
)
C
"
'I>. 407.) .1. [L:IP. cm t:om cm beotu Llf 1t:1P. 'Oa fet1unn cm conU1l1. 111a
Sic. '5 tip- recht: cumutu, 'OU1P.t:t: cacha q1elTl1re ap. conull1. 'Oolb 'Ow
111f1mtlb. 111 a t:1p. cumulte, no qH cumutu, If on cmn btw'Öna co
l wltt beõf. nl<ro a011 C0f1U1P., If mott: cacha !l
!.t', ocur If t:1ll 'Oa
reët: cumuta lfO'OU1Il ; ma t:1p_ 'Oa cumut nnup.p.o, no q1.1 CU111UtU,
'1' lf1n cet:hp.uma'Ö btwlJuf1, ocuf If '00 eët:up_ pne at:a U1te. 111
2C t:<m '1' '00 pne, If ann If q1wn 0 Pl1. t:1tle, ocur all.wtl 0 felt
Imell.ce, ocuf munu t:al"tlJrOm fin, 'rtan '00 a btlertll t:wlHr; no
'Ounu, lIa fOEta '00 'OeIlUlt: c1lenu cen lCC.
?
C. pmt: '0011 COll1mc1le.
Jl'DmIE
T;"i OF CO-TENA
CY HEP..Iò.
159
froDl the owner of the land, and three persons from the man who
seeks the passage shall attend to keep them (tIle cattle) close to the
fence, in ore leI' that they may not spread over the land. If he has
a way, this may be omitted; if there be two mounds to it, or two
stone walls, h &iB re3trarned Þ:.
m for they are a !..ind of witnesses.
From this it was said, "the witnesses are not Lv -:.,,, IC1hð"lc d;"
unless they are but of the one side, they shall not be passed; and
from thiB was said, ".t.Be witnesses AX" not to hp. 1'f'TI\ovp. d.'"
JI:1>O-
ME'ns Oil'
Co- T..,,-
.A
C\' .
F i ve . sed s' for d ri v i n gin, i.e. over, i.e. into it. 0 u t, i.e. out of it, i.e.
from it. I f wit h ou t ask i n g I e a v ð, i.e. he did not find another passage, or he
was not able topa<saIongit. Except forcible driving, i.e. for that iR
uiltless. The dri,-ing of a cow '0 a buIl,i.e. five'seds'whichamountto
two cows for this driving in, and it is over a fuU fence, and the one-half for tbe same
if there be not a fence. If it be over a halfjènce, it (the fine) i
three quarters of
the two cows. If over a full fence into bare gra
s, it is a cow. If over a half
fence, it (thefi
) is three quarters of the cow; if there be no fence at alia it is a a II' lI"i.h-
, samhaisc . -heifer. OlLt fellce.
This is a land without egress or ingress, which is between two
lands without a passage. If it be a land of seven 'cumhals,' there
is a 'dairt '-heifer every season due for allowing them a passage
for their cattle. If it be a land of one 'cumhal,' or a land of three
, cumbals,' it is from one end of the year to the other. If it be
"" A..1..I
?
one pa.9sage, it is a wether every tltH
y-=r tltat is due, and it is a r""" . V'
land of twice se, en ' {'umhals ' in that case; but if it be a land of
two' cumhals,' or of three' cumhals,' it is in the fourth year, and
all this is by (in tlte case of) an outside family. \Vhen it is by (in
the case of) the family, then it i8 one-third from the o",ner of the
land, and another tlârd from the man of the passage, and if he does
not concede this (right of wag), it is guiltless for him (the owner of
tlte cattle) to bring them over it; or, according to others, he is
o
pay the damage which they may commit on the occasiun. Ji
. To b. ,..mored. The original is defective here.
Ends t/te sulject of'the co-t:enanc).
VOL. IV.
bech bRe-r;11a.
BEE-J U DG
lENTS.
111
:ZD 1fJ5J. ,
A. 1l.t,.I
f.JA- -':HA-.
O:tJ'!f.30['02-tiJ -3
) lvJ1,J.e,.,f;" f>..r.
^/1
ð 'Í1. Bf :ftl.
"IV-fr (C..
7. t,-H) "'-tu-r-},M [-- l-zgb.'-
C. 1/.3.I&''' fJ97A--3flllv.{C.l1t"J- g-'t
) dH ;U..7-q2-lt. :1'>)
.....(H
"II
,
13. {been bne-cna.J 1W
A-
/'tIS
BEE-JUDG- annrom iu -caup.Eltt1b -Ca1t1.Eltte ap. becha1b; at1'Of1'Oe
N
.
-caup.Eltte fia11ub -cap: -clt1. ber 'Oa ner,?t!I .cach te-ch'Æ 1a
pa me1-C e1a pa ta1Ee-c;"all' 11' a -c
1b bep.'O a1 W'c.
a mbll.e-cha a 'O-ca1tl.rCe, a eC1fia1'O; a ttoÝÊe att -ee-chaw
.f'OOIG -Cltte bel' 'Oa nerom, 'OteEa1-c 1'e1'06 'Oeotw-ch 'O01Ò
'OG.A tOIElb 1alt na1m1'ettwb r U1 tl. e .
t (( '\?" _ ../-y. I
L' 1M It..
-NV
/.
7........
I\A.. 9ß A
ftM .(1f
ytJIv fv"' j"#
4.'
' Iv
a:n nfom .1. annfa em .1. 'OOILIS' 11 I caUft51ttlb .1. If '00 na 5 eat -
tm!J cOftltneaca If 1 'OUlt51 '00 neac lcaf fe 5eatt Coftltneac 'Oa belft fa
'Oaft cean'O na meac .1. 5eatt 'Oa fCfI.8patt. a:tl'Ofl'Oe .1. alllItcm51'O
I
felf1'OO seatt Coftltneac oftfto, S1'O annfa, .1. 5 eatt 'Oa fCftebatt. "Gat1.
CI ft .1. '00 tucc na
eaftan'O If neaf'! 'Oolb '00 5ac telt,
ft!a 'Oa caeb ocuf
rft 1a 'Oa nalp.ceann m t;tfte. Cl a pa m elc .1. 51'0 bes SI'O moft11e .1. 111
'I-'eaftan'O no na belc. a:ft If a c aft51 ttlb .1. Ualftlf aft caùalftc ptt
COft ltm 5 'Oaft a cean'O beftaft bfteltemnaf oftfto. CC 'Ocal ftfce .lo1m an
,515 1,elt . a: cCln al'O .1. ím an caecai>. a: ttolse .1. im an faitS. ((11.
cechaft'Oolc .1. '00 tuéc na ceachp.a reap.an'O If neafU 'OOIb 1 mun
'001'0. "Ote5a1 c .1. '01e<q:jm'O f1'Oe 1,05 'OOIb aft ín 'Oeotmi> no toi; 'Oeotal"D
'OOIb C1I1 tos acc rametc. 1 aft nalmfefta1b fU'fte .10 !allr an fte
futaín ímí"D belC I faelfte.
I Two 'scrcpalls.' The following note on 'Cain Cuisc' is found at the bottom
of p. 21 of the MS. H. 2, 15. '(fJ'/r /Ð-V(,)
"'5eltt 'Oa fCfteabatt WI 'Olsuin ocuf ní Ult rftl c u ft5 abm L, aft III h8l5 en
lme ftlÚ S1a 'Oa ne'O r05ta commtsefa, ocuf ni h1a'O na seatta fO
tOlcef an'O, acc cam CUlT'S ocuf m!an satmft ocuf otLabftuis nm fte
fte Cftl mbt!ai>an j no 'Oan, If e seatt If COlft an'O If cucftuma ftlf 111
cmn culfc .1. fmacc commtcíufa '00 ftlt ftiu !aft cabmftc na n5 eatt fO
amrot ceatftu elte j no Sumai> I ín caín cUlfS ocuf mían 5 atal ft ocuf
0U,abp. uI 5 nm; DeUf a cabmftc a CftlUft 'OU sac tIp., no 5 U na cucta (li::c
emní 'Olb '00 sac tIft ocuf 51"D moft 'Oa teatbacmb beaf in sac tift nucu
'Oteat;mft acc ín cucftuma f1n 'Oolb Ulte fte fte na Cftl mbblrnan ; ocuf ín
ce'OU1I1e ftlS a teaf If an Cll1C If a bftelt 'Oeo, DeUf 51i> focmi>, Ica 1I1a
ftlaccanaf a teaf If an CftlC a neíneacc, no 50 nUll, acc 111 cucftuma fm
'OOIb Ulte.
There h a pledge of two 'screpalls' for meaduw and there is 110t for rai.sÏJIg a
"h
"'"""
H\.I
cI
.
M?I.l/V1 f.., .
I W vø?71tñ (10/ /+.j..(
<< ,., I
1.,. " þ"rT' '
BEE-JUDGMENTS.
A
fONG additional.
ledges an additional pledge BEE-JUDO-
for bees is
t1 a
èlaitional pledge is required for MENTa.
them that they pass not beyond the land which is
nearest to them on every side, whether it be much or
little; for it is according to the additional pledges
that judgments are passed respecting their' tairsce'-
trespass, their crime, their pw4Rce,
the four lands
which are nearest to them,
. these are entitled to
a share of their produe e gratis after the periods of
their exemption. . ,
It is difficult, i.e., :::sa
i.; difficult
ng additional pledges,
i.e., of all the relieving pledges which one pays, the most difficult is the relieving
pledge which he gives for the bees, i.e. a pledge of two' screpalls.'1 Is r eq uired,
i.e., that demands a relieving-pledge for them, though difficult i.e. a pledge of two
'screpalls.' Beyond the land, Le. to the owners of the lands \\hich are nearest
to them on each side, at both sides and both ends of the land. Whether it be
much, i.e. whether it be big or little, i.e. the land, or the bees. For it is
according to the a dllitio n a1 pledges, i.e. for itis upon giving the relieving
pledge for them that judgment is passed on them. Their' tairsce'-trespass,
Le. with respect to the feeding. Their crime, i.e. with respect to the blinding
of men 01' beaat8. Their produce, i.e. with respect to the swarming. In the
four lands, i.e. for the people of the four lands whici) are Ullxt hand to them.
.Are entitled, i.e. these are entitled to get value for their 'deolaiJh'-rightur
the value of 'deo1aidb '-right is due to them without any price except consuming.
After the periods of their exemption, i.e. after the particular time during
which bees are in freedom (e:umptfi'om}ine8).
felice, for no fence can he put against them thongh they may commit trespasses of
co-tenancy, and these are not the pledges that are forfeit<!ll therein, but the' Cain
Cuisc,' 'the longing of disease' and the 'ollabruig nai' for a period of three years;
or, the pledge that is right here is one equal to the 'Cain Cuisc,' i.e. that 'smacht-
fines of co-tenancy' lIbould accumulate upon them after giving these pledges for them
as well as for other animals; or, the 'Cain Cuisc,' 'the longing of disease' and 'oIla-
bruig nai; , and that the three should be given to every land, or that only one of them
ehould be given to every land, amI that though great may he the number of land-
Iwldcl'ø in each land, only this proportion is due to them aIllluring tbe period of three
years; anll the first person who stands in nee,l of them in the land is to get it, IInd
thongh many in the lam! shoul,! stand in neell of it at the same timc, thp,' ("Ill
gpt only this proportion."
VOL. IV.
1112
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164
bech bp.e"(;ha.
t:..,r.,
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BRE-JuDG- ap' 'Ote-SC1.1"(; belch .111. bt1C1.'DC1.11 fUI116, clpe tar
IIIENTS.
11C1.1'Dsel1e"Lap.; bt1a'Da11l a 'D"(;UIp::el1, btl'DC1.111 a r e01t ,
btm'DC1.111 a 1'11,.
1 'OteEan:; 111 cet:alt'Do1t:; r 11l 111 '001b
acht:; a ChWI1 CU1rC, 110. attabl1.1S l1C1.1e, 110 m1C1.1111 l1F)atC1.1p.,
f" co t:;eop.a bt1C1.'Ðal1 a rUlp,e, C1pe tar a 11C1.1t:hseI11t: e ll, att
o rho. 1lC1. t:;eotta bl1C1.'Dl1a r U1 t t1 f111, 1r 'FOt\...t
11'D O1p.b5 ne
fOCettt:; 110. rmacht:;a roo Hochr
t W r 01 s 111'0
011 U1 Ene, an tto......rws bo co eqtu'D 'FOtt 111S1tt:;, p,o f a1 5
d.) k;ütf [<.IrtI1.dt
J 111 bech oc t:ecctama'D a t:; hO tlC1.1'D. 0 La 110. t:;eot w
'0 bl1a'Dna, 'DteSa1t:; 111 cedlGtt'DOIt:; 1'111 "Lllte ber 'Do.
l1errom 'Oeota1'D 'Dolb; all1t:; a fC1.1t:;hlb a Cob'Da1tlb
cp.lch, ap.1t 'Futa111S l1ech 'DeotC1.1
EOeotC1.1'DJ'D1C1...1C1.1t1U to.
Fe111e; ap. 1f1 qurpl1t:;1\1111 fO COI1'F O 'Dtwt:;ep. 'F o chob'Da1l1
o quch., .' At
r
-I. JA- eM-t .,.
c4J" þw . .
-
--'- . LLJ).Ã- At
'"
,
-to (/At ......- ,.__
.
7\A-"VtP
K"'ð'
Ih rJ.,i.k M17\4
A P,2-1 a.-
. 1-, ir.tiI
./..(;ùt
!J]
_ _ _ .^_ _ -'
OM,
(). '--
I) 0:11- 'D te5al 1:: belch .1. um1' 'Dte!X5m'D belë berc;h 11- e 1'S 1::1" mbtla'Dan
1 fG'11- e . C Ipe taf n al'D5en e1::a1' .1. Clbe tmf í n5sinen'D fÍG'D 5 U mt
no 5 U ea'Õa. bLla'Daln .1. ín bttG'Daín I t:U1fm5en'D fla'D .1. ín ce'D
bLta'Dam fm. bba-oaln a fS01t .1. btta'Dam í mí furntt 'Dlb, In
bbaixnn t:anmre. btla'Daln a fIt .1. ín btla'Dam a flLan'D f,a'D,lr an
i-O t:11- ea r bba'Dam. 111 'Dte5alt: In ce1::h a 1''0011:: f' n .1, no 50 'D te !X5 m 'D.
I Their breeding.-The age of tbe bee is estimated by German apiarians as one
year, but Huish shows tbat a queen-bee lives sometimes four
'ears. See Huish,
"Nature, Economy, and Practical Management of Bees," 2nd edition, London,
181í, pp. 24G, 2!8, 24!).
. According to the divioion oftke land.- Dr. O'Donovan remarks bere:-
"From tbese te:s:ts and glosses it appears tbat the person wbo reared bees,
was obliged after tbe third year to share tbeir boney with the neighbours
who resided in tbe four townlands lying around him in every direction, tbat
during tbe first three years some of tbe honey was due to sick persons and
to certain dignitaries, as an 'ollave '-poet, a bishop, a professor of literature, &c.,
who may live within or bappen to be on a visit in any of tbe four townlands
wbicb were entitled to tbe produce of tbe bees.
The quantity of boney to be given out for these three classes of persons
was proportioned to that produced by the bees. If tbe produce of the bees
amounted to the full of a 'milch-cow vessel,' i.e. a "esse1 wbicb "ben full a man
of ordinary strengtb couhl raise to the height of bis knee, tbey sball get balf the
full of an 'escra,' if tbey produce tbe full of a 'sambaisc'-beüer "essel, wbich a
','.fA,
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BEE-JUDG MENTS.
165
For bees are entitled to three years' exemption, BEE-JuDa_
with whomsoever they are produced: the year of MEST
.
their production, the year when they are few, the year
of their breeding. 1 The people of these four lands
are not entitled to anything but according to the
'Cain Cuisc,' or 'allabrig naie,' or 'the longing of
disease,' until the end of the three years of their
exemption, with whomsoever they are produced, for iJC.1' II,. 21,7
,lJ from these three years of exemption out, it is according
", (l.-h
)
,.,,"""- f to the,(injury that these' smacht '-fines ar
oseù.
Ii Ï5-Qf1.1,y as: -th
j' I"equH' es, ;". as leng as the Q..,.,.d Jo -frv
Ik
cow req-tfifØ8ß
mo I till1?ilking time, so l(futd ues
r
the bee r eqmro to gather'1íts produce
From the
three years out, the four lands that are next them
are entitled to get a gratis slul'i'e, they are entitled
to a shCl'i'e of the swarms according to _ the divisions
of the land, for no one G'i
tf / á-
f:ti;r
e
,'1
1M Ivt
r
L""- F . 1 I "D " í" h ..
lie-- a grat l .'lLJ lÜ -ßllotu crj-;;Ül tIe J..' e ml; lor t IS IS
the third tribe-property which is divided accoròing
to the divisions of the lands. 2
-/dJ'-.2co
f -f!i1, M i,
" J.J!J..w l '1/ $I-
For LetH! are entitled, i.e. for the ownel"B of bees are entitled to he a period
of three years in exemption. \Vith whomso ever the)' are produced, i.e.
with whomsoeyer they are generated quickly or ]awfull). The year of th,;,'
PI"Oductirm, i.e. the )'ear in 'which they generate, i.e. the first year. The year
when they are few, i.e. the year in which there are Lut few of them, i.e.
the secon,l year. The year of thl':ir breeding, i.e. the )ear in "hkh they
breed,' the third year. The people of the four lands, i.e. the people of
man can raise to his nave], they shall get one-third of an 'eecra;' if they produce
the full of a 'co]pthac '-heifer vessel, which a man can raise as high as his ]OiIlS,
they shall get one-fourth of an' escra,' if they produce a 'dairt '-heifer 'essel,
which a man can raise over his hllad, they shall get the one-fifth of an 'esera.'
· The year in which they breed, the third year. On this DOr. O'Donovan observes:-
It is difficult now to determine what induced the author of this law to 8Uppole that
bees" ere three years old when they began to breed. The age of the bee is estimated
b)' the German apiarians at one year, and they hold it as uudoubted that the qneen
of the present year is not to be found in the hive the following year. The age of the
common Lee is estimateù at one year, or one ye,.. auù a half. lIut Huish shows that
a queen-bee øometimes lives four years, and cites, arious writerß who aosert that they
have seen hives which were ten, fifteen, an,l thirty )'ears oltl; Lut he remar!.s that
"it must not be supposed that in fixing thc duration of a hive at fiftet;n or twenty
I
J4 l
"J
J
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=,
't O'
q'L1, 103
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l.L "rrtJ.,ð$ .
""3. a.JPf-I.
166
bed1 bttet;ha.
ÐEE-JUDo- Luë-e na cem';f1.a reap.awl) f1n blf 1mon '001'0 n1 elLe 'OO1b. CCcl1-e a c11al n
1011 "TS. CUI fC .1. ac-e f1.1a5a1L na 'OIÈe CU1f5 .1. 111 n1 af1::U15fa, ocuf n1 CÎn'Oe"Ò flL
uf1.e, no);o ma"Ò LeI-el1efCf1.a I Ler"Caf1. LULo:1CI. teldlerCfla 'Oolb a Lef'Oaf1.
LuLo:1ce-euaf1.5a1b reaf1. 50 5Lun} -ef1.1an efCp.a a Leaf1::C!J1.famalfCe -euap.5 a1b
reap. 50 1I11L1I1n; ceoxl1p.ama ercp.a a Lef1::ap. coLp-eal5e -e ua f1.5 a1b r ea f1. 50
ap.a; CUlcea'O eafCf1.a a Leap::ap. 'Oalp.-ee -euap.5a1b reap. or a c11111n. 11 a
aLLabf1. 1 5 n al e .1. 'Oaeta1l1 -emfl5 na 'Oalme, .1. no in ní 'Oa bep.af1. 'Oon
-el ar oLLbp.15 blf um anm. no bp.u5 ap.
'O ocuf oLL ap. a 'OOlmne
.'. 111 roLLom 5mre. .,. 'Ola"C1 oLLbp.IS a Lan m .1. P.15 no ePfcop no uuraL
/. nemea'O cena. 11 0 m 1 an n Sa Lm f1. .1. no In mían '00 bep.af1. '00 111 -ean
bl fe í n5aLap.. Co -eeop.a bLI a'Oan .1. co cean'O -eP.l mbLlIrnan bl'O belë
, faelp.e .1. 5emalLeelf"Clbaë-ef1n.Clp.l.cm. 1--1 a -eeop.a bLI a'On a
.,. o-el1a no: -ef1.1 bL1a'Onct f1l1 bm bBlë I faep.e. 1 f r op.f1.ln '0 .1. If 'Oon
Luë-e fOp.o tw'CI'O in'O a n01p.5ne. to ce p.-e .1. ëU1P.t1P. in rmaë-e 'r eo .
,S((n p.o fal5 .1. ín'O mp.e'O p.o 1I1'Ofal5efre'j:;. Ro falS In becl1.1o 1\0
1I1'OfmÈ1"Ò 111 coma'Oce-ena. 0 -ea na -eeop.a bLla'Ona .I.ota na "CP.I
bL1aooa bl'O bmë I faB1p.e. CC ILl -e a fCU -e111 b .1. mp.IL-em51'O Luc-e na
cp.lëefalte'Oocolb'OeLesu"Ò'Oolb. CCp. nl ruLmn5.1. UalP. noëon ImU1-
t1l15 en 'O neaë ní 111 'OeoLa'Oëalp.e, 111 nalfC1"Ò, 'Oa ëelLe. "OeoLal'O .1.
1J>'neoLo:1'O Lelf ap. aba 111 cllm cUlfC ocuf 111 m1ann 5aLalP. no 111'0 aLLa-
bp.uIÈne. ((p. If I -ep.lfrln-elu .1. UalP. If! reo -ep.ear fine 'OutalÈ
caento'ÔmL-eep. fO ë01b'OeLeou'O na Cfllë.
'J.
I
f!<<
'I.tMkAM<-
Irlu-
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nMf? .
cMV . . It
Vtr 1
.,J cl.t
Lf
.l ,. .ø
AA" "-
il/l1, 1 -&1 StI'tr!#w w J - I
LU I 1/ Lli
'"
v .
Cob"Omte fmde, oCUf bt1et;ha bmtìp, bt11lm"O, oCUf UfC1
t;U1Tl1"Olle t;Ufl Cfl1ëa; a1fl 1fu1"Oe t lO f1.11"01"Ee"O Eetf1lle
,.socUf "Oeflbplle, 1aflplle oCUf 11l"Oplle h1 pllt;e"Omb Et 11mf1
:rears, it is not meant tbereby to infer, tbat it is people(1 "" ith the same queen or
the same bees during the whole of that time. A hive in this respect" (he con-
tinues) "may be compared to a city; the inhabitants who founded and built it
are long since dead, but it still remains peopled b)' their descendants, and many
perhaps bave emigrated from it to form a colony elsewhere."
Tbe same writer states tbat the bee is genera11y in its state of perfection from
tne 211t to the 23rd day; tbat the drove takes its flight usually about the 2íth;
the queen abont the 16th. Tbeyare entirely suspended during the cold weatber.
lIuuTl, 2nd Edition, p. 129.
" The young bee bas no sooner emancipated itself from its ceIl, than the common
bees flock around it, and with their proboscis deanse it of any
xtraneons matter
wbich it may bave brought from its cell. At the Bame time, the young bee
set ms deligbted with tbe attention wbich is shown it. It flrst tries its wings,
then cleans its antcnnæ, and in a few minutes is in tbe fields gathering prevision
for the hive." Huiøh, 2nd Edition, p. 130.
II When a young qn
n-bee bas emerged from her n) mphal state, she is capable
()f laying el!.'j:!s in the space of tbree or four da
'F<, and phe wOl11rlla
' them if she
-t. !Mft'{/ 'Ù
J
DEE-JU'DG?tIE
TS.
167
these four lands which are next to hand to them are not entitled to get anything nF.F
Jt:DG-
else. But according to the 'Cain Cuisc,' i.e. hut the mIe of 'the drink KENTS.
from the-hire,' i.e 
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