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DUBLIN, 1st September, 1879.
MY LORD,
Having been requested by the Com-
missioners 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 might be most suitable for pub-
lication, the Eev. Dr. T. O'Mahony and myself
proceeded to prepare for the press the text and
translation of the several Brehon Law Tracts con-
tained in this volume.
The Rev. Dr. T. O'Mahony, 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 Mr. W. M.
Hennessy, who corrected for the press that portion
of the original text which had not been finally revised
by the Rev. Dr. T. O'Mahony.
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
Mr. P. Bagenal.
I am, my Lord,
Your Lordship's obedient servant,
ALEXANDER GEORGE RICHEY.
The Right Rev.
The Lord Bishop of LIMERICK,
Secretary to the Commission for Publishing the
Ancient Laws aud Institutions of Ireland.
a 2
CONTENTS.
Page
IxTHonrmoN :
Part I. General observations as to the translation, vii
II. Of the Tract entitled " Of taking posses-
sion," ... xiii
TIL Of the " Fine " and the " Gulnne " system, xlix
H IV. Of the Incidence of Fines, xciv
>t V. Of the Succession to Land, c "i
VI. Of the Tract entitled " Judgments concern-
ing Co-tenancy," . cxlx
VII. Of the Tract entitled " Bee Judgments," . cxli
VIII. Of the Tract entitled " Right of Water," . clvi
IX. Of the Tract entitled " Precincts," . clxiv
X. Of the Tract entitled " Divisions of Land," clxx
XI. Of the Tract entitled the " Crith Gabhlach," clxxi v
XII. Of the Tract known as " The Sequel to the
Crith Gabhlach," . . . ccviii
XIII. Of the Tract known as " Of Succession,"
and concluding observations, . ccxxiii
Synoptical Contents of Introduction, . ccxxxi
I. -O 1tl ceccugcro ; or " Of taking lawful possession," .
II. bjxecrcha comaithcefa atrofo ; or " Judgments of
Co-tenancy," . . . .67
III. bech biierha ; or " Bee Judgments,"
IV. Coibmur uirci 5 or " Right of Water," . 205
V. TTlaigne ; or " Precincts," . --"'
VI. "Do brveiceaiiinuf, >tc. ; or " Of the Judgment of
Every Crime," &c.,
VII. Te-o an peafiariTi a cniraib ; or "The Land is
forfeited for Crimes," . .263
VIII. oT>la ii\e ; or " Divisions of Land," . 275
IX. T)e ^o-Dlmb cnieoit cumci ; or " Of the Divisions
of the Tribe of a Territory," . . .281
X. Cj\ih SabTac, the Crith Gabhlach, . 297
XI. Do. do., the Sequel to the Crith Gabhlach, 343
XII. The unnamed Tract entitled " Of Succession," . 371
General Index of the Text, . . .
INTRODUCTION,
i.
THE Brehon Law Tracts contained in this volume have been
selected by the Editors as specially illustrating the land-
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 ant*
pated that we should find in any work, composed by a
lawyer of the Brehon school, a series of definite rule;
systematically arranged ; or even an attempt to lay down
the general principles upon which, in any class of cases, the
jud^e or arbitrator proceeded. The idea of law in its
technical sense was wholly foreign to the ancient lawyers.
They dealt not with laws, but customs ; 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 be
done in each particular case. The Brehons were gradually
approaching the idea of general legal propositions by an
induction from numerous and distinct cases which had 1
decided in accordance with pre-existing customs.
This mode of dealing with legal questions has been largely
illustrated in the preceding 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 variation
in the decision which should have followed such an altera-
tion in the facts. This mode of dealing with legal questions
naturally fell in with the idea that all legal rights should be
treated from a negative point of view, that is, considered
not with the object of being enforced, but rather of being
compensated for when infringed, the amount of such com-
Vlll INTRODUCTION.
pcnsation 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 the
tribe into a series of abstract 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 tribe 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 condensed 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 Law Tracts, and in them, if any-
where, are to bo found whatever abstract legal propositions
the Brehons possessed ; it is to be regretted, although it may
be naturally anticipated, that but little clear and definite
information can be extracted from these passages. If we
were certain that they were preserved in their original form,
and had no doubt of the accuracy of the translation, yet
the actual meaning and practical application of these brief
and oracular utterances would be 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 thorn
under great, if not almost insuperable, difficulties. The
first inquiry naturally is, whether we possess an authentic
Archaic text ; upon this preliminary and cardinal question it
is impossible not to feel most serious misgivings ; however
ancient any particular rule, or rather apophthegm, may be,
the grammatical form of the language in which it is
INTRODUCTION. IX
expressed cannot claim very high antiquity ; it is manifestly
much later than the Irish of the glosses ; the words have
lost their 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-
mitted undergo a constant assimilation to the language and
ideas of the day ; but many examples prove that ancient
formulae handed down as the exclusive possession of a
comparative^ small number may at length become unin-
telligible even to their exclusive custodians ; the Salian hymn
of Numa and the litanies of the Arval brothers 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 formulae 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, and the commentary, sufficiently
prove this. The original text may perhaps have been as much,
and as little, understood by the Brehon of the IGth 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 apartfrom the societj' 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 INTRODUCTION.
is rather to cloak trivial, than to express complex, ideas.
Difficulties arising from this cause occur plentifully in every
Brehon law tract.
The task of translating the original text is further
embarrassed by the ordinary absence 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 rarelyattempt the completeness of a 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 strong
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 and 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 must exercise the utmost caution,
and are exposed to constant temptations. The first neces-
sary step which should precede translation is to break up
the text into the proper paragraphs and sentences. The
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 fixed 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
INTRODUCTION. XI
to the author. The editors of this volume, which contains
many passages of peculiar difficulty, have felt themselves
forced to reconsider the principles upon which the more
ancient text should be translated, and to lay down some
rules for their own guidance in the matter. They have
come to the opinion that the only consistant principle upon
which a translation of the archaic passages can be based is to
adopt the explanations of words contained in the glosses, and
to assume the correctness of the views 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 ;
but their condition in respect to the modern editor is as
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 be answered without
much consideration arid further examination of both the
Brehon law and the existing materials of Irish history ; but
whether the original Celtic family and tribe-system did or
did not exist in its completeness at the time of commen-
tators, they lived under the influence of the ancient tradi-
tional law, and must, as an hereditary caste, have cherished
the recollections and spirit of the old customs, the exact
knowledge of which may 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 long since
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 INTRODUCTION.
to some extent explain a case in the year books which
would be absolutely impenetrable to the trained mind of an
accomplished civilian. Before attempting to fix the mean-
ing of any passage in the original text, the editors have
consulted the glosses and commentary 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. The more any student 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,
by a due application of stops, and the interpolation of words,
supposed to be understood, in italics, to produce any results
he may desire, and by such a process a very plausible and
consistent appearance may be given to a translation which
bears a very feeble (if any) resemblance to the original. It
is the simple duty of the editors of the present 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 case
to mean ; they at the same time desire to warn students 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
MSS., nor the present editors, nor any future critic are certain
to be always successful in dealing with such a subject matter.
The reader cannot be too clearly reminded 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 opinion of the editors,
INTRODUCTION.
the reliable basis for any conclusions or further speculations.
These observations are the result of a prolonged experience
in dealing with these Brehon texts ; 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 found 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 own
views as to the meaning of the text were, although perhaps
ino-enious, altogether mistaken. As to the technical legal
terms occurring in the text, the editors have desired to
translate them as far as possible ; it must be observed 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 under
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 ENTITLED " ON TAKING LAWFUL POSSESSION."
THE first tract contained in the present Volume is entitled
" On Taking Lawful Possession," and the importance and
peculiar meaning of this title 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 instituted ; 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
precede them.
XIV INTRODUCTION.
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 formed 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
legal 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 interesting to observe
that the authority of the Brehon among the Celtic Irish
arose in 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 organization of the Celtic
tribe, but was in truth but an instance of archaic survival ;
and that a Roman might have recognised in the proceedings
before the Brehon the ancient and technical formula?, 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 inseparable from and follows that of government and
social organization ; the judicial system of the Celtic Irish
was permanently fixed by the arrested development 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 Avas
utterly impossible, therefore, that they could attain to ideas
of law, which are evolved by the needs of a more complex
civilization ; the peculiarity of the Brehon is that profes-
sional lawyers of great acuteness and considerable technical
education developed in numerous written works the logical
results of a purely archaic customary law.
In the introduction to the last volume we drew special
attention to the fact that all judicial authority, at least
INTRODUCTION. XV
among the Aryan or Indo-European tribe communities, is
originally derived 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
formulae necessary for the institution of actions to recover
the possession of land, and which are dealt with very
fully in the present tract, in a remarkable manner illustrate
this rule, and present extraordinary analogies to the ancient
processes of the Roman law. We desire very briefly, and
with special reference to the forms of actions the subject
of this tract to re-consider the origin and theory of
judicial authority in primitive communities. Every archaic
society is governed absolutely and exclusively by " 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 habits
of acting, and that the surrounding physical conditions
have been most influential in either originating 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 daily life they consult their own comfort and
advantage much less than do the members of a civilized
society, and 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
as the birth or death of any member of the community,
&c., are followed by fixed and well-known results, and
the status, property, and position of each individual depend
\ipon, 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 restrains their personal freedom, to act
otherwise than the unwritten law of public opinion decrees
XVI INTRODUCTION.
that they must act, from the struggle of the free will against
the local custom. In such communities the individual dares
not attempt 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 something 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,
o
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 antecedent acts became less and
less real, and finally assume the form of a symbolical, or
pantomimic performance, which, with the object 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 more familiar than the
rule, the society begins to believe that the individual has a
right to do 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
INTRODUCTION. XV11
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 occurred.*
The jurisdiction of Judges 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 members of two distinct families,
there was 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 some period 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 reference 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 their claims sword in hand;
the regulations as to judicial process among the early
* The common recovery in the English 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 donis." The original form of procedure itt
actions of ejectment is often described as another instance of legal fictions; but it
does not fall within Sir H. S. Maine's definition of the term ; it was not introduced
to create or attract jurisdiction, for the Court of Common Bench 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 its inception it was
nothing more than a fraudulent abuse of the procedure of the Court arising from
the alteration in the form of judgment entered up in actions commenced by the
writ " de ejectiont fermae ; " and the alterations in the procedure, which established
it as the ordinary action for the recovery of lund, were introduced by the Court
itself.
I
INTRODUCTION.
*
Norse settlers in Iceland illustrate this most clearly ;
but gradually the increasing 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 certain point, viz., until the
public peace of the tribe was broken by the occurrence of
actual hostilites between its members. An individual could
not institute a suit to determine a right as against his
neighbour ; but if he assailed his neighbour, spear in hand,
the community 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 ; the neighbours would not, however, step in between
the parties until matters had gone on to the 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 circumstances
had actually occurred. The pantomime of actual conflict
had to be correctly 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 thing
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 formulae requisite to bring a defendant into
court, and disregarded the principles upon which the case
should be decided when brought before the arbitrator ; 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 HanskuUl
should fall unatoned, or they would have vengeance for him." (The story of Burnt
Njal, vol. 2, p. 155.) This was after the judgment, and the tender of the com-
pensation.
INTRODUCTION. 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 Xjal illustrate this fact, and prove that the technical terras relative to
various classes of wounds, &c., and the mysterious and obscure proceedings
incident to an action, were not peculiar to the Brehon Law. The course of
the proceedings in this ease may be briefly stated as follows: Mord, the nominal
plaintiff, gives technical notice of the institution of suit (p. 235); Flosi, the de-
fendant, in the night secretly resigns his priesthood and joins the Thing of Askel
to escape the jurisdiction of the Court (p. 239) ; the next morning Mord opens
his case with* the following notice" 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 into proper shape.
I take witness to myself in this" (p. 242) ; 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 godfather, the other his second cousin (p. 248) ;
Thorhall, the adviser of the plaintiff, demurs to the challenge on the ground " that
he challenged them not for their kinship to the true plaintiffs, the next of kin, but
for their kinship to him who pleaded the suit '' (p. 250). The demurrer is allowed.
The defendant again challenges the array on the ground that two men on the
inquest were lodgers only, not householders (p. 250). Thorhall replies that the
men qualified as owners of cattle of a value equal to that of the requisite
qualification in land (p. 232). This was a novel point Flosi said to Eyjolf
"Can this be law?" Eyjolf 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 ask him whether it
were good law, and he sent them back word, " that it was surely good law, though Jem
knew it " (p. 252). Then followed a challenge to four of the inquest ; " foi those
sit now at horns who were nearer neighbours to the spot" (p. 253). To this
challenge Thorhall demurs on the ground that a majority of the inquest was
rightly summoned, and that therefore the case should proceed, whereupon a further
application is made to Skapti, who replies, " More 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 thought that I atone would know this,
now that Njal is dead, for he was the only man I ever knew who knew it." The
inquest are then called on to give the verdict, which they do without further
evidence, for they themselves were the witnesses (p. 25G). 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. Eyjolf, on behalf of the defendant, pleads to the jurisdiction of the
court, which was the Eastfrithersthing, whereas Flosi, being now a Thingman of
Askel, was within the jurisdiction of the Northlandersthing. This objection was
fatal ; but a second suit is immediately instituted against Flosi for contempt for
court for employing a lawyer in the court to whose jurisdiction he was not subject,
"for having brought money into the lifth court" (p. 261). This step was taken
to compel Flosi to withdraw the plea to the jurisdiction. Other technicalities
follow, but the litigation finally resolves itself into the " Battle at the Althing. "
62
XX INTRODUCTION.
man of, not of the right, but of the possibility of bringing his
antagonist before a Judge ; and the possessors of the requisite
mysterious forms, whether patricians, pentiflfs, 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 words, which constituted
it ; all of which had to be correctly gone through before
the Judge had any jurisdiction in the matter. The case of
the Romans proves that it is 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 combat, 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 sacerdotal and
patrician elements, which had regulated the forms, and
which had preserved the pantomimic action of former
days."*
" The actiones leges were completed in jure before the
magistrate, and this was the case even when it 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 did not pretend itself to enforce
the law in the first instance ) ;
" But notwithstanding the fact that the sacramentum,
and the judicii postulatio 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 andnecessary formula, adapted to each individual
* Ortolan, History of Koman Law, sec. HO. t M-i see. 142.
INTRODUCTION. 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 ceremonies 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 (manuum consertio), for the most part
symbolising the transactions and processes of an earlier and
barbarous period ; here we find the utterance of sacred terms,
and he who should be so unfortunate as to say " vine "
(vites) in an action concerning vines, instead of using the
word " arbores, " 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 sacra-
menlum, 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 judiciutn
were in their hands."'!"
The explanation of the latter statement plainly 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 conser-
tio, which formed portion of the symbolic action which took
place in the process known as the " sacramentum. " This
* Id., sec. 143. t H., sec. 144.
XX11 INTRODUCTION.
proceeding appears to be nothing else than a personal conflict
between the litigants, foughtoutoverthe subject matterindis-
pute ; if the subject of dispute was such as could not conve-
niently be carried or led before the prater, a portion was
brought into court, and the formalities were enacted over it as
if it were the whole (deinde in earn partem quasi in totam
rem prcBsetitem fiebat vindicatio). 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 of the parties. Originally, when land was the subject
of controversy, the praetor repaired with the litigants to the
spot, and they there performed in his presence (injure) the
ceremony of the manuum consertio. At this stage of the
procedure, the breach of the peace was designedly produced
in a symbolic form, but every thing else was real. When,
however, the Koman territory became too extensive for the
praetor to attend every such fictitious combat, the ceremony
was adapted to the change in circumstances, the presence
of the praetor was dispensed with ; the parties, accompanied
by their respective witnesses, performed the manuum con-
sertio upon the ground in dispute, and carried a clod as
portion thereof to the praetor, and then matters proceeded
as if the pnetor had been present upon the locus 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 manuum consertio became an untraversable
INTRODUCTION.
allegation in the pleading, and of course was soon absolutely
dropped out and disregarded.*
The Brehon procedure for the recovery of land is identii
with the Roman form up to the point at which the conte
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 did not occur to the^ Celt
lawyers ; but the procedure, although crystalised in this
archaic form, was modified to suit the circumstances of
different cases, and was adapted to admit what in
Mr Poste in his edition of Gains (p. 499, 2nd ed.) asks the question, " What
was the exact nature of the -manu.m consertio? '" Upon the analogy of ll
taken by the parties in the wager of battle in the old English law he conjectur
that the term was equivalent to i.frpa, an oath or pledge that the party beheved
in the justice of his case; in the tirst edition of Ins work he adds,
confessed, however, that none of our authorities allude to the oath (jusjuramlu
having formed a part of the procedure by sacramentum, and possibly the
consertio was merely a symbolic battle." In his later edition he adds
possible when we consider the common Aryan descent of the Romans and our
Teutonic ancestors to suppose any connexion between the forms o homan am
Teutonic litigation? Or, was manuum consertio merely a symbolic I
idle reminiscence of a process belonging to a period anterior to the existence
public tribunals, the period of self-help, when the remedy of the litigant was
redress his wrongs by the prowess of his own right hand? Or was manuum
consertio like Diductio and Vis ex conventu, a fictitious trespass necesi
the basis of the penal (?) proceedings by sacramentnm? Or was it mer
means of identifying the subject of litigation ? (p. 500). The W-*
between the Roman action and the Wager of Battle is very doubtful.
English proceeding was one of the modes of arriving at a finding upon the ,:
of fact arising upon the pleadings, by an appeal to the Divine power to testify a
to this fact by giving the victory to the party in the right The assert.on of right
was an appeal to the Divinity by both of the combatants, who might be hi ec
champions, but ought to be persuaded of the truth of their cause. ? on he
result of the combat depended the finding, as to the question of fact, upon which
judgment was entered. What resemblance there is between th-e
difficult to see. There can be little doubt that manuum consertio is
lated in its ordinarv meaning as a combat, not a " symbolic battle, an idle re
iscence of a process belonging to an anterior period," but, for thepurpo,e, of the
an actual combat, as for the purpose of barring an estate tail, the recovery was
an actual action, pleaded to and defended by the tenant in tail; and the judgrm
over in warrentee against the vouchee was full compensation to subsequent tenant
in tail and the remainder men.
XXIV INTRODUCTION.
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 is 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 belonged to their tribe ; this fact was unknown
to them, they had no intention of making any claim to the
lands 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 occupier replies)
'This is not easy, for it was your own before ; they shall not
be left there for that reason.' They did not know until
then that it had been theirs before. The person whose land
it was drove their horses from it by force. They afterwards
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.
INTRODUCTION. XXV
ample time to consider whether he would abandon the lands
to the claimant, or submit the case to arbitration, and, finally,
damages payable to the occupier for an illegal entry secured
in the event of the claim proving unfounded. The entire
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
first and tenth day) the claimant gave notice of his demand,
and of his intention to enter if no answer were returned;
on the tenth day, accompanied by his witness, and leading
two horses 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
last day) repeated the notices previously given ; upon the
twentieth clay 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 the
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
horses, and with witnesses of whom a certain proportion
were of the chieftain rank (flaitks), and the others freemen
(feini) ; upon this last occasion he advanced to the centre
of the land, and took possession, unless the occupier submitted
to arbitration. The prolonged period requisite for the notices
and several entries, was intended to allow the occupier time
to consider whether he 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 boundary 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 lie
has crossed the boundary upon the thirtieth clay), " 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 an actual conflict is not anticipated,
he is attended by a witness or witnesses to testify 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
praetor in the actio sacramenti, if an actual conflict occurred,
or if the occupier abandoned the possession to recognise the
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 dadeahudd by bundle and burden."
INTRODUCTION. SXV11
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 purpose 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 formulae 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 dadenhudds are not to be prosecuted except by the son, in the place
where his father was theretofore, or in the place where his parents were formerly ;
for a dadenhudd is not to be sued by kin and descent."
" Whoever is to prosecute dadenhudd by tilth and ploughing, is to remain upon
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 ; and the
ninth day from the following calends of winter, law."
" Whoever is to prosecute dadenhudd by car, by having beeu with his car and
his household and his hearth, belonging to himself, or to his father before him,
upon that land, is to be there, without answering, until the ninth day, and then
give an answer ; and at the end of the second ninth day proceed to law."
" Whoever is to prosecute dadendudd by bundle and burden, by having been
with 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 three
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 by the lord." (Ancient
Laws and Institutes of Wales, 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
property. 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 gtilfine organization. The full details
of the procedure in such cases are in the same work, vol. ii., 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 possessed the traditional
and requisite formulae, 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 formulae. 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 the
actions of the law (leges actiones) ; and hence the severity
of the blow inflicted upon the Patriciate by the devulgation
of the formulae by Flavius Fimbria. There is some incon-
sistency between the text and commentary 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 upon 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
BSmWDTTCTION. XXIX
third and final entry she " claimed her right with a male
witness." Whatever 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-
vening, 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 the
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 housewife.
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 are
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 lands is the number
of men that shall be brought to take possession of these lands "
(p. 9). The two first cases excepted are those in which the
entry with horses was absolutely impossible, viz., (l)a dun fort
without land, or (2) a church without a green ; the four next
exceptions are cases 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
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 Kod-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 and 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
which is a Nemeadh-person's," the latter of these exceptions
manifestly corresponds with the sixth 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. XXXI
phrase " Conn Cetcorach's land " denoted 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, and it is in contradiction to the cases of Ninne
son of Matech, and Ciannacht, which were evidently con-
sidered as leading authorities. The only explanation of the
gloss which can be suggested, is that the glossist intended
to distinguish the two classes of lands ; 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 reduced 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 a b 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
XXX11 INTRODUCTION.
payable to the defendant if the claimant's case failed; and it
may be conjectured that in the original form of the action the
claimant was bound to put on the land upon the occasion 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 is given; its price
is to be offered with sheds, cows, food, habitations, attend-
ance of cattle, except in the case of the land 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. If 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 regarded as a real and bond 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.
INTRODUCTION. XXX111
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 have entered
over an half- fence it is three-quarters of a " Cumhal," and
three-fourths of the stock. If they have 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 the 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 entrance 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 observation. The original
translation has in many passages given this meaning to the
words in question ; it must, however, be confessed that this
translation is most unsatisfactory ; it implies the existence
of extra tribal land, a fact most improbable in a country
such as Ireland, in which there was no fringe of unsettled
lands between the Celtic occupiers and an anterior
defeated population; the whole island was divided into
distinct and veiy well-defined tribe districts ; neither between
the tribe-marks which must have been everywhere con-
terminous, and still less within their limits, could there have
been established independant landholders, disconnected from
the prevailing system of society. It is to be observed that
the word in these passages translated " tribe " is " coibhne, "
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 case also depend on the result of the action ? Although
not without hesitation, we adopt the former theory, viz., that in the case of such
lands the stock was absolutely forfeited, because the form of action was inappli-
cable. That the forfeiture was absolute may be gathered from p. 27, line 24, and
p. 31, line 31.
C
XXXIV INTRODUCTION.
lator in such passages as "land to which he thinks he has
an hereditary right" (coibhne) ; and the word coibhne i
is frequently used as designating a particular class of pro-
perty in land, coibhne-land as contrasted with dibadh-land."
The term must signify both the nature of the right of an
individual to certain landed property of a particular character,
and also the land which was itself the subject matter of suet
a ri-ht In the original text (page 39) the claims of heirs
of females are spoken of as affecting " coibhne "-land, and
may be reasonably concluded that the coibhne-lands wei
those which had been allocated in severalty to distil
families, and were descendable in the families of the original
real (or supposed) prsepositus. The tribe lands being
those held in common by the members of the t
manifestly described as the dibadh-lands, in which 1
share of each occupier was for life only. If this conjecture
be correct, the passages in question should be translate
' Lands which have not an owner in severalty, and heredil
transmission "; coi'Wme-land would thus be equivalent tc
Norse " udal"-l*nd; and the same word when used to expn
the ri-ht of an individual to such land (or his share them
wouWcorrespond to the well known term " udal-recht It
this conjecture be correct, much of the apparent difficulties
and contradictions in the text and commentary woul
Cund, or conn, is simply a form of the word meaning "head," and as applied
to an individual, must be a correlative term, indicating the po.. ion of
vidual specified in relation to one or more others. The idea implied by the word
coibne" is that of the issuing out and interlacing of various branches .pnngmg
from one common stock, and it thus mean, an association o persons grouped
toother with reference to a common right or subject-matter. 1 his exactly the
Indent idea of the ownership of "hereditary" lands, not land m ,U enfrety
transmitted from one individual to another, according to certam rules of s
lion (which is our modern conception of heirdup), but land m winch all the
descents of the original acquirer jointly take anin,*re,t This cojbne property
means , roperty held joinUy by the acquirer and his dependents. The hea of a
actual or potential family would be the cund, or conn, and if the fan dj *<*,
orLized on the geilfine system, he would be then identical w.th the "ge.U.ne-
li h." Dibadh property, in its original sense, as contrasted with co.bne property
seems to express anv property divisible, or to be divided, among several d.st.nct
person,. The necessary equivocal use of such terms is hcreaffcr referred to
a subsequent section.
INTRODUCTION. XXXV
removed. We find in this tract four distinct classes of land
to which the prescribed process of formal re-entry is
^inapplicable, having reference to the nature of the estate
in the land, and not to the locality or intrinsic circumstances;
the three more important of these are the following; first,
the land described in the text at page 7, in the passage above
referred to, as " land which 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 dibadh-land redivisable after the death of each occupier ;
secondly, " the land of Conn Cetcorach ", which also is
explained to mean debadh-land, and, thirdly, the land which
has not " cund " or " coilkne." If the third class of land is
simply a negative description of the lands included in the
preceding 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 for agricultural purposes, and meared by distinct
mounds and boundary stones set up by the executive of
the tribe, and in which the owner had only transitory
interests, were not lands to which the process of recovery of
possession by entry was applicable. The fourth excepted
class 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 claimant.
It is a common error to assert that all lands in Ireland under
the Brehon Law were 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
severally, and upon such terms that individuals 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 tribe-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 by a single family,
or by an individual on behalf of himself and his family or
possible descendents, and these may have been transmitted
c2
INTRODUCTION.
by hereditary succession, or sold without any one 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 the principles of the Norse
udal tenure of land ; and some such system of land-holding
seems to be the basis of the Celtic Geilfine system, which
it is proposed to deal with in the following section.
A curious exception to the necessary formulae occurs in
the case of individuals described as " raitech "-persons. A
ro/itecA-person is defined in the commentary as one " who
was up to this time (the time of the action) abroad, living
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- 29).
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 bond fide to assert his hereditary right to the coibne-
lands of his family.
The raitechs 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-
]and, and were so to say " out on the road "; the third class
of raitech is defined thus, " The King is called raitech, be-
cause he owns his share of waifs of his road, and also from
his generosity." (Page 31.) 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 coibne-lands 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 his horses upon and off the land in dispute
at the proper periods ; he had no house or " green " of his
INTRODUCTION. XXXvii
own to resort to in the meanwhile ; 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. In 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 ";
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 translated. 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 Eomans ; that a
similar form of action was invented for the benefit of the
lower orders, and that ultimately the two formula? 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 ; the object of the process was that his right
INTRODUCTION.
at law should be granted to the claimant ; that there should
be " Fenichus "; the pressure was put upon the defendant
that there might be " Fcnechus," a proceeding or judg-
ment in accordance with the custom of the tribe. Thus the
whole ceremony of the Roman act io ended with the appoint-
ment of the judex. The ancient procedure ended precisely
at the point where the modern commences. As to what
is now considered the essential of an action, the pleadings
in court, Gaius dismisses it in very brief terms ; " deinde
quum ad judicem venerant, antequam apud cum causam
perorarent, solebant breviter ei et quasi per judicem rein
exponere ; quse dicebatur causse collectio, quasi causse sure
in breve collectio." (Gaius IV. 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 combine 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 respectable 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 the facts of the
case assumed to be within their own knowledge. The
villagers talk over the case among themselves, apparently
in a very confused manner; separate groups form, who
discuss the 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 Russian Mir to assess taxation and
divide the- village lands, we have a vivid description of the
workings of such a primitive assembly. 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
INTRODUCTION. 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 Norse.
Of this procedure there are the most detailed accounts in
the two trials before the Althings related in the Saga of the
Burnt Njal, and 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 plaintiffs. These very special points
of practice are decided by the general assembly, because
they were antecedent to the creation of the court. But it is
something very 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 grounds wholly apart from what we should consider the
merits of the case. When a society became numerous, and
its customs complicated, the general public naturally felt
their own ignorance of the traditional rules by which any
cases should be decided, and there arose a necessity for
experts who had made the knowledge of the traditional
custom their special study. The Icelandic Norse clung
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 ; even-thing was traditional : the law itself
was committed to memory and the custody of faithful lips. Time out of mind
there had existed amongst the nations of the north men who, like L'lfljdt, had
made the customary law their study, and learned its traditional precepts by heart.
There were the lawmen or lawyers (liigmenn), a class which we shall still find
flourishing in the time of which our Saga tells. They were private persons,
invested with no official character, but who enjoyed all the influence which an
exclusive knowledge of any one subject, and, most of all, of such a difficult subject
as law mut necessarily give to any man in an early state of society. But when
xl
INTRODUCTION.
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 formulas to
prescribe the mode in which it should be conducted. It is
evident that the reference of thedispute 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
(causce collectis), the full statement of the case (peroratio),
and the examination of the witnesses, 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
" equitj'," 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 Brehon ; " territory
the Althing was established, we first hear of a law officer properly so-called.
This is what we have called the "speaker of the law." His bounden duty
it was to recite publickly the whole law within the space to which the
tennre of his office was limited. To him all who were in need of a legal
opinion, or of information as to what was or was not law, had a right to turn
during the meeting of the Althing. To him a sort of presidency or precedence
at the Althing was conceded, 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, Burnt Njal, p. Ivi.
The judicial power in Iceland was vested in the Court of Laws, composed of the
priestly heads of the original families, each with two assessois, whom the official
lawyer instructed upou any point of law, if requested to do so.
INTRODUCTION. 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 by 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 the
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
result 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.
(I)
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-land, had been
xlii INTRODUCTION.
made with their mother, for the geilfme chief, who must
for this purpose be one of the geilfine division,* confirms
the contract.
2. Brigh made the decision, 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 divisible 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 reference to
the extent of the lauds 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 the three prior generations ; on the
extinction of the great-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. When the members of a family exceed seventeen in
number, they cease to be organized as a family.
6. The fuidhir-tenants 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 subsequent' y sugseste 1 tliat the expression, " Unless he be the sixth,"
may be taken in its literal sense as meaning the sixth head of the family in lineal
descent, a construction of the words which, in the view subsequently taken of the
geilfine, would be practically equivalent to that in the text.
INTRODUCTION.
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
"cruibk" or "sliasta" land).
2. (As to lands other than " cruibh " or " sliasta " lands),
her sons divide it upon her death, but (they do not succeed to
the entire) 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 divide among themselves.
4. In the case of a "bo-aire" chief (who dies without
leaving a son) there comes to his daughter by right of
relationship no more than one-half, i.e., fourteen "cumhals"
of land if the deceased had twenty-eight " cumhals " of land.
The same rule applies to the " bratach " lands of a " bo-aire "
chief.
5. Land 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 succeed, 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 cruibh and sliasta lands,and are framed with the view
of regulating that succession in accordance with the princi-
ples of the geilfine organization, which are subsequently dis-
cussed in this Introduction. The rules numbered II., 1-3
deal with the succession to a woman's other than cruibh
and sliasta land ; and those numbered II. 4 and 5 deal with
the succession of a daughter, in default of sons, to her
father's land. The very remarkable rules, I. 6 and 7, do
not appear to have any immediate connexion with the ques-
tion of female ownership of land. It would be premature
here to consider the meaning and operation of these rules
until the nature of the family itself and of the geilfinne
system has been to some extent established, and the pro-
posed explanation of the system of descent is, therefore,
postponed to a subsequent section.
INTRODUCTION.
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 mound is
raised), 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 and mother were of different tribes,
and her right to the land was established. She then sought
that she should not be subjected to the imposts which fell
upon the unfree holders of land ("fuidhirs"), 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
* 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 bring down the alteration of the law of succession in the favour of
women to a date subsequent to the year G97. " Connected with Adamnan's journey
to Ireland in 697, the Annals record a transaction, which they despatch with
enigmatic brevity : Dedit legem innocentium poputis. In other words, they allude
to a social reformation, which was brought about by Adamnan, and which, having
obtained the highest sanction of the people, became, as in the case of many modern
Acts of Parliament, associated with the name of the propounder. A synod was
convened at Taro, within an enclosure called the Rath-na-Senadh, or " Bath of
INTRODUCTION.
the possession of any portion of the tribe land entailed
the duty of railitarj' service; but that this was an incident
to the possession of land 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 of 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 later commen-
tators had lost the correct traditions of the law, and
preferred the display of a scrap to genealogical information
the Synods," where the memory of the chief actor was perpetuated in the name
Fupall Adhamhnain, or " Pavillion of Adamnan," which was given to a portion of
the space; also in the SuiJfie Adhamhnain, or Adamnan's chair; the Dvmha
Adhamhnain, or Adamnan's mound; and the Cros Adhamhnain, or Adamnan'a
cross, situated at the east of the Rath. This mofiT>ciit, or "convention general,"
was held, as a semi-legendary record states, at the instance of Adamnan, for the
purpose of procuring a national enactment exempting women from war and expe-
ditions." " Reeve's Life of St. Columba," p. 1.
In relation to this law the following passage occurs in the "Vision of
Adamnan," which is preserved in the " Leabhar Breac " : "It was this precept,
too, which was preached in the great convention of the men of Erin, when
Adamnan's rule was put on the Gaedhil, and when women were made free by
Adamnan, and Finachta Fledach, son of Dunchadh, son of Aine Slaiuc, the King of
Erin, and by the men of Erin also. For it was alike that men and women went
into battle, and into conflicts, until the Rule of Adamnan was imposed."
" It is to be regretted that we have not a more historical account of the institu-
tion of this law than the following, which is taken from the Leabhar Breac and
Book of Lecan : ' Adamnan happened to be travelling one day through the plain
of Bregia with hi mother on his back, when they saw two armies engaged in
mutual conflict. It happened then that Rouait, the mother of Adamnan, observed
a woman, with an iron reaping-hook in her hand, dragging another woman out of
the opposite battalion, with the hook fastened in one of her breasts ; for men and
women went equally to battle at that time. After this Ronait sat down, and said,
1 Thou shall 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 (moTVoail) in
Ireland, and Adamnan, with the principal part of the clergy of Ireland, went to
that assembly, and he exempted women at it." (Petrie's Tara, p. 147.) Reeves'
Life of St. Adamnan, p. 179, 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-
doubtedly was, iu early Irish history. The celebrated judgment of Brigh,
certainly the rules embodied in this tract, cannot have been of an earlier date.
xlvi INTRODUCTION.
to the intelligible explanation of their text. Evidently for
the purpose of getting in the names of her brothers, it is
stated that she claimed against her brothers ; the author of
this cannot have understood the first line of the original text
which is very clearly explained in the gloss; and the
possibility of an adverse claim by a sister against brothers
in respect of land derived either through the maternal or
paternal side, is absolutely at variance with the express
rule laid down in the commentary, page 15, 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 subjected
during the historic period, the Brehon lawyers had no definite
and abstract legal principles to guide them, 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
with the ancient texts, and have annexed to them the most
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 following passages are,
therefore, worthy of notice as indicative of a very modem
.and equitable mode of viewing the essence of the transfer
of property: " (As to) the person who buys without stealing
or concealment, with purity of conscience, it (the subject
'matter of the purchase) is his lawful property, according to
God and man ; 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 referred to his moral condition at
the date of purchase, not to the fulfilment of the requisite
ceremony of purchase. The same idea is evident in the
following passage, also : " Except the covenants which are
forbidden by the Feini, nothing is due without deserving
* Page 33.
INTRODUCTION'.
xlvii
it, fur every contract, winch is unsafe, is entitled after
nuptial present according 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 for 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, or specific performance to be refused. In
the latter portion of this paragraph " poverty " must mean
such pressure of poverty upon one of the contracting parties
as would prevent his acting as a perfectly free agent; and
"prohibition," according to the gloss, the fact of notice affect-
ing the purchaser that the vendor has no equitable title ;
"want of power" is explained as duress, or influence of a
moral or immoral character.
There are other passages in this tract which lay down in
a direct manner the ancient theory of society that the
individual exists only as a member of some recognised
community and therefore that his contracts are always
subject to rescission by the head of the community to which
he belongs. " There are four covenants which are not
binding, though they (the parties) are proceeded against;
thai of & bondman with his chief; o/a son with his lather;
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 (rescind) 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 chief ;
a covenant with fugitives 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
application of equitable principles, for the passage concludes
thus: "They are bound not to be remiss about covenants,
* Page 59.
t Page 53. This statement, or one almost identical, U frequently repeated in
the Brehon Law Tracts.
xlviii INTRODUCTION.
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 " ternal 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 C having
notice of the transaction does not interfere ; and thereupon by
reason 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 equitable 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 subject-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 civil law.*
* " They speak Latin like a vulgar language, learned in their common schools of
leachcraft and law, whereat they begin children and hold on sixteen or twenty
years, conning by rote the aphorisms of Hippocrates and the Civil Jnxti/utes, and
a few other parings of these two faculties. I have seen them where they kept
school, ten in some one chamber, grovelling upon couches of straw, their books at
their noses, themselves lying prostrate, and so to chant out their lesions by piece-
meal, being the most part lusty fellows of tweuty-fiv3 years and upwards."
Edd. " Campion's account of Ireland," page 18 (A.D. 1571).
Mr. I'rendergast goes so far as to speak of the Brthon as giving "his judg-
ment according to the Brehon Code, formed parlly of Irish customs, and partly
of maxims culled from the Roman Digest." (The Cromwellian Settlement, 2nd
edition, p. 15.) This is an exaggeration, fortunately for the antiquarian value of
the Brehon Law Tracts.
INTRODUCTION.
III.
THE "FINE" AND THE "GEILFINE" SYSTEM.*
In all the Brehon Law Tracts there are references to an
existing organization, generally known as the Geilfine
system, and to the four classes designated as the Geilfine,
Deirbhfine, larfine, and Indfine.f No distinct explanation
of the system is anywhere given by the writers of these
tracts, but it is everywhere assumed as existing, and of so
well-known and notorious a character that it did not seem
to our authors necessary to state its details or to lay down
the rules by which it was governed. That it was familiar,
or assumed to be familiar, to the students of these works ia
proved by the figurative use of the terms primarily indicating
the members of this system as indicating certain definite
relations of place ; remarkable passages of this nature occur
in the "Bee- Judgments "J and the "Eight to Water. " It is
obviously impossible to understand the scope or meanino- of
many of the rules contained in the original 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 Aicill, published in the
last volume of the Brehon. laws, there occurred a very
remarkable passage, explanatory of the mode in which
property was divisible among the members of a family in
* It was originally intended to have devoted a separate section of the Introduc-
tion to each of the Tracts contained in this volume ; it was, however discovered
in the progress of the work, that owing to the identity of the questions which arose
in certain of these Tracts, it was impossible to adopt this course without much
repetition of previous statements, 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 entitled " Of the Judgments of every Crime
&c.," " The Land is forfeited for Crimes," and "The Divisions of the Tribe of a
Territory," and also with the rules of succession contained in the first Tract ill the
volume. The consideration of the remaining Tracts has been necessarily postponed
until after the discussion of the question of the " geilfine" system,
f Thi.s word sometimes appears as " Innfine' 1 or " Finnfine."
t P- 173. p, 207.
d
1 INTRODUCTION.
accordance with the rules of the Geilfinc system,* and an
attempt was made in the Introduction to that volume, to
explain the rules laid down upon this subject in the commen-
tary upon the Book of AicilLt The explanation given by
the editors of the proceeding volume of the passage, with
which they were immediately dealing, has been to that
extent admitted to be correct by the various authors, who
have, since the date of the publication of the last volume,
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 published,
it may not be inexpedient to reprint the passage in the
previous introduction dealing specially with this subject.
" The most remarkable custom described in the Book of Aicill is
the fourfold distribution of the family into the 'geilfine,' 'deirbh-
fine ' ' iarfine,' and ' indfine ' divisions. From both the text and
the commentary it appears that the object of the institution did
not extend further than the regulation of the distribution of then-
property. Within the family seventeen members were organized
in four divisions, of which the junior class, known as the ' geilfine '-
division consisted of five persons ; the < deirbhfine' the second in
order the ' iarfine ' the third in order, and the ' indfine ' the senior
of all' consisted respectively of four persons. The whole organ-
ization consisted, and could only consist of seventeen members.
If any person was bora into the ' geilfine '-division its eldest
member was promoted into the 'deirbhfine'; the eldest member
of the ' deirbhfiue ' passed into the ' iarfine ' ; the eldest member
of the < iarfine ' moved into the ' indfine ' ; and the eldest member
of the '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 thersfore depended upon the introduction of
new members, not upon the death of the seniors. The property
held by any class, or by its members as such, must have been
held for the benefit of the survivors or survivor of that class ; but,
upon the extinction of a class, the property of the class or of its
members as such passed to the surviving classes or class according
to special and very technical rules.
On the failure of the ' geilfine '-class, three-fourths of
* p. 330. t P-
INTRODUCTION
li
perty passed to the 'deirbhfine,' three-sixteenths to the 'iarfine '
and one-sixteenth 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
passed to the 'deirbhfine,' three-sixteenths to the ' geilfine ' and
one-sixteenth to the ' indfine.'
" On failure of the ' indfine,' three-fourths of its property pond
to the 'iarfine,' three-sixteenths to the 'deirbhfine, 1 and one-six-
teenth to the ' geilfine.'
"On failure of the 'geilfine' and 'deirbhfine '-classes, three-
fourths of their property passed to the ' iarfine,' and one-fourth to
the 'indfine.'
" On failure of the ' indfine ' and ' iarfine,' three-fourths of their
property passed to the 'deirbhfine,' and one-fourth to the ' geilfine.'
'On failure of the 'deirbhfine' and ' iarfine '-classes, three-
aurths of their property passed to the ' geilfine,' and one-fourth to
the 'indfine.
" On failure of the 'geilfine' and 'indfine,' three-fourths of the
property of the ' geilfine ' passed to the ' deirbhfine ' and one-fourth
the 'iarfine ' and of the property of the 'indfine,' one-fourth
passed to the ' larfine/ and one-fourth to the 'deirbhfine '
Two possible combinations of two extinct classes, viz. : the
geilnne and ' iarfine,' and the ' deirbhfine ' and ' indfine ' are
omitted from the commentary. It would appear that upon the
e of any two classes the whole organization required to bo
completed by the introduction of a sufficient number into the
' geilfine '-class and by promotion carried on through all the classes
upwards; and if there were not forthcoming sufficient persons to
the organization there was no partition ambn 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 any one class or of
any two classes may be understood from the annexed diagram
1 ' n n &
Indfine,
16
1
]
1
8
8
4
"1
4
Iarfine, .
16
3
3
12
24
4 1 12
12.1 4
12
12
Deirbhfine, .
16
12
12
3
24
12 I 4
(
Geilfine,
16
12
3
1
8
24
4 I 12
(
. .r ' uou 01 tne property of such
. organization depends appears clearly from the above diagram.
(12
Hi INTRODUCTION.
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 by a cypher, and the distribution of the pro-
perty of the extinct class or classes is indicated by the numbers
set opposite the names of the surviving classes. Three-fourths of
the property 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 received its share, 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 default, of such class, to the next 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 property 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-
tribution of the property of both is identically the same ; but if
the extinct classes are not next to each other, the property of each
is distributed to the remaining classes in varying proportions.
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 above diagram is very awkwardly ex-
pressed, and the cases in columns 9 and 10 are altogether omitted.
The meaning of this very artificial arrangement appears from the
following passage : ' If the father is alive and has two sous, and
each of those sons has a family of the full number i.e., four- it
is the opinion of lawyers that the father would claim a man's
share in every family of them, and that in this case they form two
' <*eilfine '-divisions. And if the property has come from another
place, from a family outside, though there should 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 other man of the
family.' From this it appears that the whole organization existed
within the family, and consisted of the actual desern.limis of a
male member of the family, who himself continued in the power
of the head of the family. As soon as a son of the house had
himself four children, he and his four children formed a 'geilfiiie '-
class, and each succeeding descendant up to the number of seven-
teen 'was introduced into the artificial body. The entire property
exclusively belonging to this family within a family was confined
to the members of the organization until the number exceeded
seventeen, when the senior member lost his rights to the separate
estate, retaining those which he possessed in the original family.
INTRODUCTION. Hii
" This arrangement must be regarded as an invasion of the
archaic form of the family, and an introduction pro tanto of the
idea of separate property. How or when 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 ' geil fine '-class, it may be conjectured
that the term ' geilfine '-chief, so often occurring in the Brehou
Liw, indicates a sou 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 upon the death of
the head of a family each of his sons would become the head of a
new family, the ' geilfine '-relationship in such an event would
disappear, and its members would resolve themselves into a family
organized in the normal manner. It may be conjectured that the
parent always continued in the ' geilfine '-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 was accepted as a very singular
institution, regulating the distribution of the property of a
family; no attempt was made to account for the existence
of rules so unusual, although it is obvious, that the mere
existence of rules so complicated and in themselves so
unreasonable must be referable to some anterior social
S3'.stem, as is the case with the rules of the English law
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. Maine in his Lectures on
the Early History 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-
iine 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
Hv INTRODUCTION.
majority of the tracts now published have been specially
selected, that it may not be 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 and working of the system, wholly deduced
from the Brehon Law Tracts themselves, and which, al-
though not in itself to be assumed as correct, as no
modern explanation of so archfeic 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 forward 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 any one of the sons had four
children, a full Geiltine sub-group of five persons was formed;
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 he were
not the person from whom it had sprung, into the Derblifine.
A succession of such births completed in time the Derbh-
fine division, and went in to form the larfine, and the Ind-
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 Institutions, p. 210..
INTRODUCTION. Iv
already stated that I consider the fifth person in the
group of five, to be the 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.
" Now Mr. W. 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 Mr. Stokes'
view. ' Gil ' means ' hand ' this was also the rendering of
O'Curry and it is in fact the Greek x"P- In several Aryan
lanfniao-es the term signifying ' hand ' is an expressive
equivalent for power, and specially for Family or Patriarchal
Power. Thus in Greek we have inro-^iipioe and x / P'!> for
the person under the hand. In Latin we have /tents
' master,' from an old word cognate to x 'P ; we have also
one of the earliest cardinal terms of ancient Roman Family
Law, manus, or hand, in the sense of Patriarchal authority.
In Roman legal phraseology the wife who has become in law
her husband's daughter by marriage is in manu. 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, ' Gilla,'
a servant, a word familiar to sportsmen and travellers in the
Highlands, and to readers of Scotfc in its Anglicised shape
' Gillie,'
" My suggestion, then, is that the key to the Irish distri-
bution of the Family, 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 H. S. Maine of the term " palrla potestas" is very infelici-
tous as basing his theory upon a doctrine of the Roman Law, which their own
lawyers admitted to be peculiar and exceptional. The more general term " head-
ship of the joint house" may, however, be substituted for it without injury to the
argument.
Ivi
INTRODUCTION.
Authority. The Geilfine, the Hand-family, consists of the
parent and the four natural 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, which according to archasic
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 Irish Institution. The family under the
Patria Potestas was, with the Paterfamilias, the true Roman
Family. The children who were emancipated from Paternal
Power may have gained a practical advantage, but they
undoubtedly lost in theoretical dignity. They underwent
that loss of status which in ancient legal phraseology was
called a capitis diminuto. We know too that according
to primative Roman law they lost all rights of inheritance,
and these were only gradually restored to them by a
relativelymoderninstitution,theequity of the Roman Praetor.
Nevertheless there are hints on all sides, that, as a general
rule, sons as they advanced in years were enfranchised from
Paternal Power, 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 this view upon
the patria potestas of the original progenitor without any
reference to common property ; the members are those up
to the number of sixteen, who are the subject of the patria
potestas, 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 in Sir H.
S. Maine's opinion the existence of the common ancestor
is essential for the maintenance of the system, and that he
regards all 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.
INTRODUCTION. Ivii
"The whole Fine Duthaig included several stages of
consanguinity ; (1) the Cindfine or children the sons having
the foreright; (2) the Brv.indfine, from bi-uind, the womb,
the sons and daughters of heiresses or daughters of the
Gradk Fine, or nobility inheriting property in their own
right ; (3) the Gelfyne, which seems to have been sometimes
used for all relatives to the fifth degree, and sometimes
for the relatives to the fifth degree exclusive of the direct
heirs. These constituted the family in the strict sense" of
the word. From the fjdjine branched off, (4) the Derbfine,
which included relatives from the fifth to the ninth degree ;
(5) the larfine, or relatives from the ninth to the thirteenth
degree ; and (C) the Ind/ine, or relatives from the thirteenth
to the seventeenth degree. Beyond the latter degree, the
Fine merged into a Duthaig Dalne, 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 crimes, 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 formed a kind of family council styled Cuicer nu Fine,
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 cuic mera na Fine, or the five
fingers of the Fine. When property, in default of direct
heirs, passed to collateral heirs, the Gelfine received the
inheritance in the first instance, and assumed all the
responsibilities attached to it. In default of relatives of
the fifth degree, the property passed to the representatives
of the other Fines."*
This opinion of Dr. W. K. Sullivan has been adopted
by Mr. W. 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 INTRODUCTION.
proceeds thus : " We 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 Sui heredes and A gnat i, and that the remaining three
are subdivisions, how far practically important we cannot
tell, of the Gentiles. The Geil-fine included the fifth
descent, which, if the E<jo were not counted, brings us to
the sixth descent as in other cases. The other three Fines
taken together, extend to the seventeenth degree, at which
point all traces of kinship arc assumed to be lost.''*
If this view be correct the Geilfine system is simply a
mode of calculating kinship ; the Geilfine has no existence
as a social entity ; the particular Fine in which any indi-
vidual should be classed depends altogether upon the person,
who is assumed as the stirps ; it would also seem that the
five members of the Gcil/i/ie class, and the four members
of the other three classes are 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-exist.-|-
* The Aryan Household, p. 173.
t Authors, who speak of property as being divisible among relations in the
seventeenth degree, cannot have considered the difficulty, or impossibility of ascer-
taining kinships so remote, or the consequences which would probably result could
all the relatives of this remote degree be once ascertained. It would be necessary,
for such purpose, to trace up seventeen male descents for the purpose of discovering
the stirps, and in the second place to complete the requisite genealogical table of
all the male descendants of the stirps throughout seventeen generations downwards.
The stirps, upon the ordinary average of human life, must have been dead
upwards of 500 years, and there is no existing noble or royal family in which this
inquiry could be attempted with any prospect of success.
Thus the relatives in the seventeenth degree of the Count de Chambord include
all the descendants of Louis, the first Duke of Bourbon, son of Robert of Clarc-
mont, and grandson of Saint Louis, who died in A.D. 1341. Those of the present
INTRODUCTION.
lix
The theory of Mr. M'Lennan upon this subject is different
in every respect from those of Sir H. S. Maine and Dr. W.
K. Sullivan. The two cardinal assumptions upon which he
proceeds are, (1) that the terms geilfine, derbhfine, iarfine
and indfine 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 connected 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 four persons, related in the same degree to
the original stirps ; each of whom was the primary mem-
ber of one of the four classes, and as a necessary result the
Father or stirps was excluded from the organization, and
the subsequent members of each class were the lineal
descendants of the original member of 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 places, 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.
Iarfine.
Deirbhfine
Geilfine.
A'
A 2
A 3
A<
Fathers and Brothers.
B 1
B*
B 3
B*
Sons and First Cousins.
C 1
C 2
C 3
C
Grandsons and Second Cousins.
D 1
D 2
D'
DI
Great Grandsons and Third Cousins.
E<
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 progression. If we consult the pedigree of David it will
appear that, as seventeenth in descent from Reu, he counted among his relatives
within the seventeenth degree the entire nations of the Jews, Edomites, Ishmaelites,
Moabites, Ammonites, Midianites, and several others.
IX INTRODUCTION.
" The seniors of the division are A 1 , A', &c., the brothers
who constituted the 'family of the full number, i.e., four';
and the other men in the divisions along with them respec-
tively, are their first-born sons, grandsons, &c. A 1 is the
eldest of the four brothers, A 2 the next 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, arid the indfine division is the oldest.
" 2. We can see a reason why, as a rule, there should be
four men only in a division, and why there should be a fifth
man in the geilfine division. The age of marriage among
the ancient Irish was seventeen years the age for finishing
fosterage. Thus A 1 would be at least fifty-four years old
before his great grandson D 1 would be bora; he would be
between eighty and ninety years old before E 4 could have
a son ; which would be the signal to A 1 to 'go out of the
community.' As a rule then, there could be only four
generations of men in existence 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.
When 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 E 4 could have a son, however, A 1 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 existence of
the whole number of the seventeen men was not essential
to them, and in the eye of the law a division existed so long
as there was one man in it (Senchus Mor, Vol. III., p. 333).
" 3. So far as the organization was an artificial institution,
it may have been a sufficient reason for limiting the number
of divisions to four, that there were four men only in a
division. More probably the reason was that four was, on
the average, the full number of sons in a family.
" 4. We have a clue to the ' self-acting principle/ as Sir
INTRODUCTION. x
Henry S. Maine aptly calls it, according to which the oldest
member of each division passed into the next, on a new-
man ' coming up ' into the geiltine 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. We 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 A 1 ' went out,' A 2 should succeed
to him as head of the indfine division, that A 3 should
succeed A 2 as head of the iarfine, and A 4 succeed A 3 as
head of the derbhfine. But we saw that before A 1 went
out he would be very old. Before another 'going out'
could occur through the birth of a grandson to E 4 the
brothers would certainly be all dead, and the first cousins,
B l , &c., would be the heads of divisions. It would be next
B r s turn to go out, and he would be succeeded in the
headship of the indfine division by B 2 as the cousin next
in seniority; and B 2 being succeeded by B 3 , and B 3 by B 4 all
the seniors would be promoted as before. By the fourth occur-
rence of such an occasion it would be D r s turn to go out; if, in-
deed, before then the organization had not collapsed through
the extinction of divisions and want of men to reform them."*
In a subsequent passage Mr. M'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
established for the fourfold organization, in order to see how
they operated as a succession law, is to conceive it to be
started by four brothers, A 1 , A 2 , &c., on the death of their
father, 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 survivor of them, as far as great grand-
sons. When a son B appeared, A shared the division lands
* Primitive Marriage, 2nd edition, page 472.
Ixii
INTRODUCTION.
with him; when a grandson appeared, they were shared
again between the father, son, and grandson ; and they were
finally redistributed on the appearance of a great grandson.
After 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
division at great grandsons ; (2) that the principle of primo-
geniture appears in the formation of the groups of co-inheri-
tors and parceners ; and (3) that a life-tenancy only was
given to any heir. To comprehend the working of the
system, we must think of the four brothers as havino- one
o
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, became extinct, the iarfine would become the
indfine in the reformed organization, the deirbfine, the iar-
fine, the geilfine, dropping the odd man, would become the
deirbfine, and the next eldest brother to A 4 , with his de-
scendants, would become the new geilfine division. The
new divisions would enter with a share of the ancestral
lands equal to that possessed by 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 of the extinct
groups would then go to the next-of-kin, and be subject to
the common law of succession, whatever that was, till the
lands were again resettled by the formation of a divisional
organization."*
It is to be observed that Mr. M'Lennan clearly distin-
* Primitive Marriage, 2nd edition, page 496. It is to be observed that the
technical terms used are those of Scotch, not of English, law.
INTRODUCTION. Ixiii
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 'fine' as a rule,
was organized as a complete geilfine 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
fully 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 far
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. M'Lennan's
scheme however involves difficulties which he has wholly
failed to explain. Why 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 ? Why 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 remain in the system, although
he had himself a descendant in the fourth degree, but " go
out " upon the birth of a descendant of his youngest brother
in the same degree ? Mr. M'Lennan assumes 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 1 goes out and
A 2 must thereupon cease to be head of the iarfine division
and succeed A 1 as head of the indfine, and A' pass similarly
from the deibhfine to the iarfine, and A* from the geilfine to
derbhfine, does A 2 cease to be a joint tenant of his own
original share with B 2 , C 3 , and D 2 , and become a joint tenant
of the original share of A 1 jointly with B 1 , C 1 , and D 1 , 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
INTRODUCTION.
"formation of new divisions" the derbhfine class, how is
the fifth man of the geilfine class got rid of? Mr. M'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 dealing 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 archseic systems of
law, which are more or less confidently stated as arguments
for 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
tiling 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 has been often in the
present day too far pressed, frequently with very unfortu-
nate results ; in dealing with an inquiry 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 dealing
say upon the subject, and to draw our conclusions from
them free, as far as may be, from those a priori ideas of
law, which, as incident to the form of society in which we
live, naturally influence our judgment ; and that when we
have arrived at some definite conclusions in this manner,
then, but not until then, the analogies and resemblances of
other system are useful for the purpose of testing the proba-
bility of the correctness of the results to which we have
attained, and as explaining or illustrating many points of
detail which at first failed to attract the attention which
they deserved.
When 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 ancient tribe and family,
there arises the obvious difficulty, that the documents, with
which we have to deal, are not the contemporaneous exposi-
INTRODUCTION.
tion of an existing system, and that we have no means of
arranging them according to the date of their production ;
even the original text and commentary of many of them are
separated by long intervals of time, 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
commentaries and glosses are probably not earlier than 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 to all the political and social causes which
would naturally lead to the breaking up of the ancient tribe
and family 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 condition would natur-
ally lead us to 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 the case from the days of Conn Cetcorach to that
of the 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 tribe or family during such a
period gradually ceases 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 purposes 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 property according to the later Civil Law does to the
early Roman family. Those of the Brehon Law tracts, which
deal with the geilfine system as an arrangement of the tribe
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, Avhich exist
between what may be a priori 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 subject 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 to 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 number of " families."
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 similarity 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, ii 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 conclusive upon tins point: " An ' aire-fne ' be it
known; a man who leads his family ('/ne') when they are cm thsir way to the
chief ('./fcj><A ')'' Post. p. 349.
INTRODUCTION; Ixvii
retically fixed, as were the number of the Roman gentes
or Greek f pdnai ; and 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 follows :
(A.) The "fine " of the chief (flaithe-fine), consisting of
(1) the chief's fuidhir tenants ; (2) the kinsmen of the
chief; (3) the dependents of the chief.
(B.) The divisions of the "fine" of the territory (1) the
geilfine; (2) the deirbhfine ; (3) the iarfine ; (4) the
innfine; (5) the deirghfine; (G) the duibhfine ; (7) the
finetacuir ; (8) the glasfine ; and (9) the ingen ar meraibh.
The nature of the five latter divisions, as to which there is
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 seven-
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 was
"given for his crime ;" that his land was the primary fund
for the payment of the "dire "-fine 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
Ixviii INTRODUCTION.
a crime had forfeited his share in the property of the "fine,"
but in other respects continued to be recognised as a membe
The "dubhfine " were those whose claims to be members
of the "fine" were under dispute, and who were reqiurec
to substantiate their rights by ordeal, or by lot.
The " fine-tacuir " were not members by descent, fc
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 believec
have claims to be members, but 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 full
members of the "fine." The "deirghfine," although members
by descent, had suffered a " diminutio capitis," 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 ff>
&c must therefore represent the members of the "fine ot
admitted descent, and full rights. These classes arc in tins
tract described as follows :
" The geilfine extends to five persons ; it is they that get the
' debadk '-property of every kindred chief (cond) who leaves
' dibadh '-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 t
fourth part of the fines, or of profits, of the ground, or c
labour.
" The ' innfine ' extend to seventeen men ; they <
among themselves, as is right, whatever part of the tribe-
land is left as ' debadh '-land."
INTRODUCTION. Ixix
From this tract the following deductions may be safely
made : (1) the organization of the "fine" was based 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.
(2) The four classes of the geilfine, deirbhfine, iarfine, and
' innfine ' consisted of seventeen members of the "fine " of
pure descent, and full rights.
(3) Each of these four classes was complete in itself and
possessed distinct joint rights both as against the other three
classes as well as against the general members of the "fine"
(4) The four classes of full members do not comprise all
the members of the fine. The " dubhfine " man, who had
succeeded in establishing his position in the "fine" by ordeal
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 stated
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 " geilfine " had no
advantage in the division of property by reason of the
greater number of its members ; it would seem more
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 "per capita." This fact is put
beyond doubt by the passage in page 259 describing the
mode of the division of the " dire "-fine payable to the family
(and "fine " ) of a slain man : " Three cumhals of " dire "-fine
go to the son and to the father ; there are three cumhals
of "dire"-fine remaining after that; a cumhal of "dire"-Gne of
them goes to a brother collaterally. There is one 'cumhal'
of 'dire' 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 mau therefore could stand in some relation to . a
1XX INTRODUCTION.
" geilfine " class, which did not include either his existing
father, son, or brother, and from which we must assume
that he himself also was excluded. The same conclusion
must be drawn from the liability to pay fines. Upon this point
Mr. M'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. III., p. 481) which
discusses the question from whom a forced exaction, as in
payment of a penalty^ or fine, might lawfully be levied.
Here the ' seventeen men ' 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. The
four nearest tribes bear the crime of each kinsman of their
stock, geilfine, &c. CSenchus Mor, Vol. I., p. 261.) Here
the connexion is disclosed between a tribesman, himself not
the member of a divisional organization, and the organiza-
tion responsible 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 as 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 organization of the "fine" does
not seem to have been limited by reference to the life
or lives of any person, or class of persons ; the existence
* Primitive Marriage, 2nd ed., p. 480.
INTRODUCTION.
of such classes as the "dubhfine" and the "ingen ar meraibh,"
the members of whom were contemplated as possibly increas-
ing in 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 acaseof acommunity
of people, it is then family relations cease," are glossed as
meaning that upon this contingency the subdivisions of land
and liability separate, 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 is dissolved into a number of persons holding the land
they occupied independently of each other and without rights
of inheritance to the lands of each other. That this is the
correct interpretation appears from the passage in the first
tract in this volume, " From seventeen men out they are not
a tribe-community % and the commentary upon that passage.
(7) The special yeilfine class possessed -\ certain superiority
over the other three, and by some such title had an
exclusive right to extern property falling 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 " fine. "
These results may be supplemented 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 right 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. f Vol. IV., p. 213. t Page 39.
Ixxii
INTRODUCTION.
the " geilfine flaith "; 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 tribe.J
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.H It would also appear that when a class was
once formed, it continued to subsist as long as any one
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 members 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 ;
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 members
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. J Id., p. 63.
Another and slightly different explanation of this passage is suggested subse-
quently, see p. Ixxxviii.
|| Vol. IV., p. 243.
INTRODUCTION.
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 formed 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 is 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 'geilfine,' viz., the deirbhfine 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 the
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. M'Lennan 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 arrangements of such obvious con-
venience as defining and limiting 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, inapplicable to movable estate."t
In conformity with this observation of Mr. 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. 192.
INTRODUCTION.
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 period they seemed
to have formed artificial families upon the system of recip-
rocal liability, and to have acquired a right of hereditary
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 hundred 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,' 1 translated as in the last sentence by an
earlier glossist, is translated by a subsequent commentator,
"Each of them shall share the tribe property 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 subsequent passage we read (m 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 number 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 association 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.
f Post, p. 287.
INTRODUCTION. IxXV
There must have existed distinct and early laws of
hereditary succession to lands of inheritance (orba) among
the Irish Celtic tribes, but these rules have in fact been
amalgamated in the "geilfine" system, and cannot be now
understood apart from it ; the Welsh rules which may be
assumed to have some general resemblance to those of the
Irish, throw, in our opinion, considerable light upon this
subject. The relation of the father and son in the Welsh
law in respect of the family inheritance resembled 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 daughters
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 of land, 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 having been thus divided among the first
generation of descendants, was again divided among the
grandsons, and again among the great grandsons, 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 Laws of Wales, Vol. I., p. 177.
t Ancient Laws of Wales, Vol. I., p. 543.
INTRODUCTION.
the existing shares by household or per 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 number that no one is obliged to be a builder for another".*
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 ;f 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 descendants ; 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
heirs to each other in respect of shares in lands of inheritance.
In default of relations within this degree the land escheated
to the king.J It is to be remarked that according to this
system the elder brothers go out of the father's house and
establish themselves in separate buildings, upon distinct
portions, cut out for them of the lands ; and the youngest
son is left in the possession of the original homestead and
all its gear. The redivisions are not partitions of the land
exhausting the entire, but on these occasions each male
descendant acquires a fixed portion as his share ; after the
third generation there is no further redistribution of the
land ; and after the fourth generation the family organiza-
tion is dissolved into separate households, each of which
(for the purpose of inheritance) had no relationship with the
others.
* Ancient Laws of Wales, Vol. II., p. 291. fid. J Id., Vol. I., p. 545.
That the hereditary right of succession to property and the claims of kinship
should cease, or be very much diminished at some particular point in the chain of
descent, is a conception not unknown to ancient law. "The typical example of
this division of the clan, as of so many other of our early institutions, is found in
India. In that country the degress of kindred, as I have already observed, were
determined by the nature of the sacred rights in which the kinsmen shared. The
nearer relatives offered to then- deceased ancestors thepinda or sacrificial cake. The
more distant relatives made an offering of water. The former were called Sapin-
das, or persons connected with the cake. The latter were called Samanodocas
or persons connected by equal oblations of water. The relation of the Sapindas
ceases with the seventh person, that is, with the sixth degree of kindred." (The
INTRODUCTION.
In the following observations it is desirable to use the
terra "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 calculated according to the rules of the
English, not cf the Civil Law.) " Thejelation of the Samanodocas ceases only when
their birth and family name are no longer known. The Sapindas have the primary
right of inheritance to a deceased person; and failing the Sapindas the Samanodocas
succeed. In other words all those persons are Sapindas, who have a common
great-grandfather, or other nearer ascendant, that is second cousins and all nearer
relatives. All those persons are Samanodocas, who have a common great-great-
grandfather, or other more remote ascendant, that is third cousins and all more
distant relatives. In the. former case, the common ancestor who marks the limit,
is the father's grandfather. In the latter case it is the grandfather's grandfather.
Thus the Prince of Wales and the Ex-Crown Prince of Hanover are Sapindas,
because they trace descent from the same great-grandfather, King George III.,
but their children fall into the wider circle of Samanodocas, or more remote
kinsmen. The Aryan Bmuehold, p. 168.
The actual text of the Welsh Law is as follows :
1. When sons share their patrimony between them, the youngest is to have the
principal tyddyn, and all the buildings of his father, and eight erws of land, his
boiler, his fuel hatchet, and his coulter; because a father cannot give these three
to anyone but to the younger son ; and though they should be pledged, they never
become forfeited. Then let every brother take a 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.
2. Three times shall the same patrimony be shared between three grades of a
kindred; first between brothers, the second time between cousins, the third tune
between second cousins ; after that there is no propriate share of the land.
3. No person is to demand re-sharing, but one who has not obtained a share by
choosing ; thence the proverb, there is no choice in what is settled.
4. No person is to obtain 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-h*eir who shall have died
without leaving an heir of his body ; but by claiming it as hen- to one of his own
parents, who had been owner of that land until his death without heir, whether a
father, grandfather, or great-grandfather, that land he is to have, if 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 leaving an heir of his body, or co-heir, to a third cousin, the
king is to be the heir to that land.
6. As a brother is rightful heir to his patrimony, so is his sister rightful heir
to her gwaddol, through which she may obtain a husband entitled to land ; that
is to say, from her father, or from her co-inheritors, if she remain under the
guidance of her parents and co -inheritors.
7. If an owner of laud have no other heir than n daughter, the daughter is to
INTRODUCTION.
early systems, and correlative terms expressing them are
found in many languages.*
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 relationship, 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 geilftne 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 bare 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 family.
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 definite
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 corre-
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. 543.
" Distribution is in the first place to be between brothers. The youngest is to choose
his tyddyn with such houses as may be upon the eight erws, if he be an uchelior,
and from oldest to oldest let them choose their tyddyn, and to every one what
houses may be upon his tyddyn. And after that let the youngest son share in every
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
land-borderers. Cyoreithian Cymru, xxxi., 1, A. L. &, I. of Wales, vol. ii. , p. 291.
* The Aryan Household, 161-171.
INTRODUCTION.
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 acquirer, or in the old English law term " from the
conqueror." This is very clearly shown by the Welsh 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
under the Welsh Jaw did not upon the father's death take
equal undivided or divided shares, but to each was alloted
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 Gabhlach" (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 how a yeilfine system might have been
formed, the question why the number of seventeen formed
an element in the organization may be postponed for sub-
sequent consideration. Nothing can be more embarrassing
than an attempt to reconstruct a system founded both upon
hereditary descent, and certain assumed arithmetical propor-
tions. A family arranged 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. 177.
1XXX INTRODUCTION.
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. No one pretends to believe in the actual
existence of the early Roman constitution, with a perma-
nently fixed number of tribes, curia?, gentes, and familise ;
and yet upon the assumption of the existence of an almost
impossible state of facts rest the number of the members of
the senate, and the organization of the legion. Institutions,
as all else, must accommodate themselves 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 acquirer 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 left his father's
house received his share in the lands of inheritance, and,
having become the head of a distinct household, would
INTRODUCTION. l.XXxi
cease to be a joint owner with his father 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 resfdue
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 when there was a
father and four sons ; but the question arises as to the
particular date at which this happened. That such date
was 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 and
considerable liabilities, which could neither be enjoyed
nor performed by infant children residing in their father's
house. The members of the geilfine 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 wrongs 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 be of no advantage to extern creditors, and the father
could not expect any benefit from having joined with him-
self as co-securities, his sons, who had no property except a
contingent interest in what he himself possessed. The nature
of the relation between the members of a "geilfine " system
implies that they all are sui juris, 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
which the "findhir" tenants are organised into a fictitious
family is apparent. This was, as stated in the passage
before referred to, effected by combining into one, five dis-
tinct households, not individuals, each possessing a fixed
minimum of property. The unit here, as is generally the
case in early tribal systems, is not the individual, but the
household; when an individual i.s spoken of, he is referred
INTRODUCTION.
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 absolute owner. It is remark-
able that the hereditary rights of succession of "findhir"
tenants 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 having
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 formed a " geilfine," are
four sons who have gone out and established themselves in
independent homesteads upon their allotments.
Disregarding again for the present the question of
numbers, the father and his sons, who have left the original
home, and established themselves as the heads of indepen-
dent houses, form the nucleus of the " geilfine " arrangement
of the family ; we have now an organization of households
and a community, or land held by a community (coibne),
instead of land held by an individual as head of an house ;
and in place of being " the paterfamilias " the father becomes
the "geilfine" chief, or the head (c-eud) of the community.
The number of households in the community is fixed by
the number of new homesteads established 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 geilfine 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
INTRODUCTION.
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, who, 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 acquirer
represent the branch of system technically known as the
" geilfine " branch, or represent the first members of the
four distinct branches, as is the opinion of Mr. M'Lennan.
To the latter opinion there appear to be insuperable
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 member of the geilfine branch ; it introduces
the wholly foreign theory of primogeniture ; and it involves
the fatal difficulty that a large proportion of the members
must be infants ; as to the extraordinary longevity and
power of reproduction 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 geilfine 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 upon which the peculiar in-
timate union between the members of each class amono-
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 of
the geilfine, and would appear to have 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 losing ground in point of
INTRODUCTION.
wealth as compared with the younger. If a son of the
youngest 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, and with each successive generation the disparity
would become more marked. The answer to this objection
is, that the existence of this very disparity, is one of the
most peculiar, and, at first, unaccountable facts of the geilfine
system, according to which the members of the geilfine
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 system represent
four distinct generations of the descendants of the original
acquirer 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 appears equally certain that none of the classes
were the descendants of any other of them. The glosses,
indeed, treat the geilfine branch as being sons, the deirbfine
branch as being grandsons, &c. ; 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 youngest; and hence
the anomaly that the word which signifies the junior
members of the class, are supposed to indicate the sons, and
that which signifies the senior members of the class the
great great-grandsons of the same person. So far, however,
from treating the " deirbfine " as representing the " geilfine "
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 acquirer, having suc-
ceeded his father, marries in his turn, 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 branch, and that formed by the
INTRODUCTION. IxXXV
four sons of the original acquirer is pushed down into the
hfine class ; the original house, being that out of which
the successive generations have swarmed, alwaj^s continuing
as an household of the geilfine, and thus the existing chief
with his forisfnmiliated sons always forming the geilfine
division ; the claim of the several branches of the system to
their respective allotments, 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
be the sons of an existing head or chief; the deirbfine, the
first cotisrns of the geilfine, would claim as the grandsons
of the previous chief; the iarfine, second cousins of the
geilfine, would claim as great-grandsons of the second last
chief; the indfine, the third cousirts of the geilfine, would
claim as the great great-grandchildren of the original
acquirer. 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 four
divisions, representing four successive generations, would,
if the analogy of the Welsh Law is of weight, complete the
system ; if the right of hereditary succession was not trans-
missible beyond the fourth generation of the descendants
of the original acquirer, the sons of the fifth chief or head
would have no right to allotments, and no further indepen-
dent households could be formed.
If the respective classes represent in the manner above
mentioned four successive generations of the descendants of
the original acquirer, each generation represents either
brothers or the descendants of brothers ; and each class,
taken by itself, formed a distinct subdivision of the farnilv,
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 offspring of a single individual.
We are strongly inclined to believe that in its inception
IXXXVI INTRODUCTION.
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 of early institutions arises 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, and 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 amount.
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 be
four in number, and which, therefore, with the addition of
original house, made up seventeen individuals, was con-
INTRODUCTION.
sidered as an organism of seventeen persons, sub-divided
for occult reasons into four classes containing each a certain
number.
In the "Bee Judgments" and "Rights of Water," allusions
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 come 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.
\Ve have already stated our explanation of there being
four classes in geilfine system, 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 phrase ; " 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 class divide among 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
dissolved. 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
system involved its dissolution. It appears that no further
INTRODUCTION.
generation of sons issuing from the original dwelling could
obtain allotments, because the fourth occupier of the house \vas
the last who had a right to settlehis sons on the " family "laud ;
his younger son, the fifth occupier of the original holding,
could putout his sons as they married, but was obliged todivide
the original holding, which up to this would have remained
entire, among all his sons. The peculiar privileges attached
to this holding would be lost, and all the "households"
placed on an equality ; the house which up to this had been
the chiefs house would become one of the houses of the
ultimate "geilfine" divisions, thus permanently raisin cr the
number of members of the class to live; the undisposed
of residue of the land, so much as had not been allotted
to the sixteen members of the four divisions, would be
divisible among 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 various members in
independent properties. This explains the expression relat-
ive to covenants dealing with coibne property, "which
the fair chief of the tribe ("family ') confirms unless he be the
sixth ;" for the sixth chief of the " family, " however elected,
would be the first who did not represent the rights of the
original acquirer. We haveno information how the "geilfine"
chief was subsequently appointed; the note prefixed to the
commencement of the Tract " On Succession " proves 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 geilfine system which has been here
suggested. The well known passage 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 Brehon Law,
INTRODUCTION.
when the property of the originally united household was
subject to distribution among its members. The principle
that this property should be divided among seventeen per-
sons at most, was then accepted, but the reason for such a
number being fixed upon had at that time been forgotten, as
there are no definite grounds 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 class can be passed on into another class
by the increasing number of junior members, and that, when
the number 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, and the extrusion of the senior member
was a devise to avoid this difficulty. Sir H. S. Maine's
explanation of this passage, supposing it simply to express
a late mode of dividing household property xipon the
analogy of the prior 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 was, it seems, inti-oduced from the older system,
and retained after the reason for the fact had been forgotten.
Assuming the original geilfine 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 and consistent.
The actual relationship of the members of a fully devel-
* Although great weight is to be attributed to the opinion of Sir II. S. Maine,
it may be fairly ccinjectured that at the date of the Commentary upon the Book
of Aicill the rules for the distribution of property in the case dealt with were a
mere survival of an organization which had practically ceased to exist, and that
the seventeen consisted of the seventeen junior male descendants of the stirps,
without reference to the original number of sons, and that these seventeen were
arranged in classes after the analogy of the ancient divisions of the family. The
anomalous results which would follow in some ca^f-s where the number of male
descendants exceeded seventeen would not be more extraordinary than those
which in exceptional cases occur under all systems for the distribution of property
after death.
XC INTRODUCTION.
oped geilfine system, if all the members died off at regular
intervals, would be as follows. The members of all the four
classes would then be the descendants in the fourth degree
of the original acquirer; the " geiljine" division would be
the first cousins of the deirbfine division ; the second cousins
of the iarfine division, and the third cousins of the innjine
division ; the deirbfine division would be the first cousins
of the geiljine division ; the second cousins of the iarjine
division, and the third cousins of the innjine division ; the
iarjine division would be the second cousins of both the
geiljine and deirbfine divisions, and the third cousins of the
innfine division ; and the innjine 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 geiljine division
would be the nephews of the deirbfine division, the great
nephews of the iarjine 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 iarjine
division, and the great nephews of the innjine division ; the
iarjine division would be the uncles of the deirbfine division,
the great uncles of the geilfine division, and the nephews of
the innfine division ; and the innfine division would be the
uncles of the iarjine division, the great xincles of the deirb-
fine division, and the great great uncles of the geiljine
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 by the assumed natural
relationship of these divisions, and if this does not differ-
entiate the classes, then by their representative relationship ;
the nearest class 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 iarjine, and one sixteenth to their third cousins
the innfine. On the extinction of the deirbfine three fourths
would pass to their first cousins the geilfine, three sixteenths
INTRODUCTION. XC1
to their second cousins the iarfine, and one sixteenth to their
third cousins the innfine. On the extinction of the iarfine
division, a difficulty would arise, as both the deirbfine and
geilfine 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
deirbfine division as representing nephews would take the
precedence of the geilfine division as representing great
nephews, and three fourths would go to the deirbfine
division, three sixteenths to the geilfine division, and one
sixteenth to the innfine division. In the case of the extinc-
tion of the innfine division, all the other divisions stand to
them in same degree of actual kinship, and the division of
the property would follow representative kinship exclusively,
three fourths passing to their nephews the iarfine division,
three sixteenths to their great nephews the deirbfine
division, and one sixteenth to their great great nephews the
geilfine division. 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 deirbfine 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 deirbfine 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 attempt 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,
XCH INTRODUCTION.
and ihat tLe grand-children and great grand-children, there
referred to, are not those of the deceased female, but of the
original settler, if we may use this modern term. It appears
that the hereditary right to the vacant lands did not extend
beyond the fourth generation of the stirps, and that descend-
ants of the several generations are conceived as co-existing.
The existing descendants of the original stirps may be classed
in two modes, either as constituting a geilfinc system, or
classified with reference to the relationship which the
original members of any division of such a system would
have borne to the original stirps. In a fully formed family
the members of the geilfine class would be the original
members of their division and descendants in the fourth
generation of the stirps ; the dcirlihfine class would represent
their fathers, the descendants in the third generation, and
similarly the iarfine and innfine would represent ancestors
who were the grandsons and sons of the original stirps ;
thus the terms geilfine and deirbhfine might in a secondary
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 geilfinc system, and having
similar rights of property and succession inter 8(
Upon the completion of the Geilfine 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. The 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 yeiljine class; to the last the distinc-
* The difficulty in this explanation is the incomprehensible glosses, page 41, lines
30 and 31. It may be suggested that the glosses in question hare been transposed.
INTRODUCTION. XC111
tion of the "tribe" and "family" must have been clearly
marked, the family rested on the lands of inheritance booked
to the original acquirer, and as a family 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 observed cannot have been included in the lands of
the "family" which were finally divided upon the completion
of the geiliine 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
Gabhlach, 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 law,
and the paternal authority disregarded.
The conclusions, to which we arrive, 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 (orlci) ; and 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 lands 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 class, 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
established, were unabled clearly to explain its origin and
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.
XC1V INTRODUCTION.
IV.
ON THE INCIDENCE OF FINES AND COMPENSATION
FOR CRIMES.
It is a cardinal principle of the Brehon Law that the
liability to pay the fines and compensation for crimes,
committed by a member of a tribe or family, should fall 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 tracts 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 Crime which any Criminal
Commits, &c.," and that entitled " The Land is forfeited for
Crime." If we could therefore succeed in ascertaining the
mode in which such tines and compensation should be
assessed upon persons other than the criminal himself, and
in what proportions the fines and compensation payable for
the death of any member of a tribe or family 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 laud contained in the first tract published in this volume.
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
of 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 punishment.
All these ideas are manifestly foreign to archaic law.
The extreme vagueness and uncertainty of the use of the
terms " deirbfine " and "geilfine" in this 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 words are
used.
It appears that the former term is indiscriminately
used in three different senses : (1) as descriptive of all the
members of the geiljine organization, (2) as the deirbfine
class as distinguished from the geilfine, and (3) as a term
descriptive of certain relationship merely.
The glosses and commentary are especially important in
dealing with this tract, as without a very careful reference
to them erroneous conclusions may be derived from an
unaided 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 subject it will appear that this
liability was considered as a charge specifically affecting
the property in question ; it may be observed that this rale
involves the idea that the injured party 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
is glossed with the explanation, " when he has no son, for it
is upon him (the son) it (the crime) should go before it went
upon the father ;" we may conclude therefore that the author
XCvi INTRODUCTION.
of the gloss would introduce the son into the list in priority
to the father; it would appear that the original text
contemplates the 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 been omitted, and points out that in such case the son
whether as the co-OAvner 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 class in
order are (5) his " deirbfine n (not deirbfine relations as iu
the translation, for there is no word in the original equivalent
to relations) ; this word is explained in the gloss as equivalent
to " geilfme," and must therefore mean that the liability fell
upon the members of the yet/fine organization, falling upon
the several classes successively, and ultimately upon their
default upon the yeiJfine chief personally ; such at least
is the conclusion we draw from the following gloss ; viz.:
"Upon th e chief, i. e. the chief who is over the geiljiuc
division which happens to be there ; and it is not the chief
of the deirbfine divisions, nor of the iarfine division. It is
on them (the yeilfine division') the crime is charged before
he brings it to the " deirbfine " division from whom he [the
eJMe/(?)]haa taken their pledges." (G) The household in
which is his bed and where he is fed, which seems to mean that
the liability then falls upon those who have harboured him
and assisted his escape, for these words arc qualified by the
gloss : " if he is not caught upon his bed." (7) The king, the
head of the tribe, as contrasted with the head of the 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 ' " deirbfine " a class described
as the " taoibhfine," glossed as " his brother's side family."
This would lead to the conclusion that in the latter para-
INTRODUCTION. xcv ii
graph the "deirbfine" meant not the members of the
gelljine 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 possessed of property, did not render any of the family
or tribe liable 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 ("what he owes beside the eric 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 " cumhal" of the compensation, and
the same share as his father or son in the six cumhals 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.
As to intentional crimes, the rule was different. In such
cases the criminal, his son, and his father 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
immovable property, and finally upon himself, by which is
* In page 249, line 1, " iittnlional" is printed by mistake for " unintentional."
9
XCV111 INTRODUCTION.
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 : " When the man who is dead in this case has a
son, he takes the cumhal of compensation alone, if he be
alive ; and if he is not alive, his father is to take it ; if he
(the father') 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 cumhals
of dire-fine go to the son and to the father. There are
three cumhals of d ire-fine remaining after that; & cumhal
of dire-fine goes to a brother (the brothers ?) collaterally.
There are two cumhals of dire-fine still after this ; a cumhal
of dire fine of these goes to the son and to the father.
There is one cumhal of dire fine there after that. This is
to be divided from the lowest man of the geiljine division
until it reaches the uppermost man, and from the uppermost
man until it reaches the lowest man," &c.* Thus, of the six
* This passage illustrates 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 the father is the head, he is obviously one of those in the hand of his
father, and a co-owner of the household property ; but even after he has left the
original dwelling and established a hearth for himself, he does not completely
succeed in shaking off his connexion with his parent. Hence the three emancipa-
tions requisite at Itomun law to free the son from the pntria potestas. It is with
reference to this principle that we may explain the passage in the last volume
which has produced so much discussion, viz. : "If the father is alive and has
two sons, and each of these has a family of the full number i.e-, four it is the
opinion of lawyers that the father would claim a man's share in every family of
them, and that in this case they form two geilfiue divisions ; and if the property
has come from another place from a family outside, though there should 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 other man of the family." (Vol. iii.,
r. 333.) From the present passage it is clear that, although the son established
a separate household for 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 father
was entitled to support in the son's house. If a son obtained orba lands, and,
having four sons, established an independent " geilfme " system, it appears that
his fatlur could claim a man's share in it. The point of the question in the
passage referred to seems to be, what was the position of the father if he had twj
INTRODUCTION. XC1X
cumhals of the dire fine, the father takes two, the son two,
the brother one, the geilfine division one. As to what is
styled the compensation ("the honour price) none of it passes
to the geilfine division ; this the son, in the first instance, is
entitled to ; in default of a son, the father ; 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 property
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 ?).
The answer to this in the original text runs simply thus
" Four, father and son, brother and family." The Com-
mentary, however, upon this text deals with the mode in
which compensation and dire fines are divisible, 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 certainly failed to
explain whether it was in accordance with the rule appli-
cable to the compensation, or according to that 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 the
rule for the devolution of the debadh property. The rule
eons, who had both obtained grants of orbs land, and severally founded distinct
" families " in which of them should the father take his " man's share " and
l:ow should his rights 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 two
distinct geilfme divisions. The second portion of the passage points out the
distinction between the rights of a father and that of any other member of the
family in the form of an argument, viz. : " So different is the position of the
father 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, whatever be his apparent
equity, has any special rights whatsoever." The father in the supposed case
would occupy the anomalous position of being a member of two incipient
" families."
g*
C INTRODUCTION.
as to the dire fine laid 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 " take."
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 re-
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 rules as to
liability to pay or 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 himself 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
duty 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 injured party appears to have possessed a similar
rif ht as against even the land of the wrongdoer, if he had
land, but the members 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.
INTRODUCTION. C i
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 injured party had an
acknowledged, and acquiesced in, right to seize even the
land 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 of their value and amount, arose in the English and
other feudal systems from the nature of the tenure of laud.
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 escheated to the lord of
whom it was held ; the escheat of the land in such a case
rested upon an entirely different basis from that 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 family, although his goods
might be forfeited, the land could not ; the law as to tho
gavelkind lands of Kent was a survival and illustration of
this principle. In the preceding tract 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 term. The author of this tract has thrown
together a number of loose memoranda and references to
Cli INTRODUCTION.
authorities upon the subject of the forfeiture of land, and
the fines 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 by
the tribe of Aengus Gabhuaidcch, in consequence of the
latter having wounded in tlve 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 Aengus' tribe
should undergo a " dirninutio capitis," viz., that in a certain
proportion the inhabitants should be reduced to the con-
dition of " daer " 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 Munstcr. 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 forfeited by Aengus."*
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 no
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 dixit lex." It would appear in
* Page 2G7. The peculiar judgment upon this occasion may have arisen from
the fact that Aengus, when he wounded King Cormac, was acting in an official
character as the "aii-e-cchta" of his tribe.
t Page 2G5.
INTRODUCTION. Clll
one passage that the author was attempting to introduce
the doctrine of the Roman " hreres."*
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 which the older
system must have been subjected from the influence of the
Church.
At the date of its composition the Irish lawyers wore
perplexed by the conflicting ideas of the old law on the
one hand, and Christianity 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 LAND.
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 the wrongdoer
upon his death, and in the same proportions, it is clear
that this liability could only fall upon the persons in esse
at the time, those resembling the class of persona entitled
under an ordinary English settlement of real estate,
whom we should describe as having vested estates in
remainder, and must exclude the unborn issue of all such,
* Page 2G7,
CIV INTRODUCTION.
although such issue may subsequently come into being, and
succeed to the possession of the 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 rules involved, not expressed because the Brehon
lawyer is always dealing with specific concrete cases, and
however 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 tribe 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 village communities which existed among all the
early Aryan nations, and that the forms of all these com-
munities 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 subject at present is not to discover
analogous cases, but 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, the property 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 manner (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 land, 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
INTRODUCTION. CV
succession is wholly inapplicable ; the right to till or graze
the public lands was a purely personal and temporary right
enjoyed by the individual as being a member of the tribe,
and enjoyed by his sons, not by any hereditary right,
claimed from or through their father, but in their own right
as themselves being members of the tribe for the time beino-.
o o
The ownership of these lands was vested in the collective
tribe, but the rights of each member were personal, tempo-
rary, and incorporeal. But the nature of the interest 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 ideas of
inheritance and heirship are involved with those of the
transmission of property by descent 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 universal 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.
When land was alienated in perpctuum, 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
wei-e, it did not follow 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.
CV1 INTRODUCTION.
The legal unit is not the individual 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 as to the transmission of
property in ancient times are, perhaps, embarrassed by too
exclusive a reference to the Roman law, in which the
hseres presents a misleading resemblance to the feudal heir ;
but in countries in which the technical unity of the family,
exhibited in the existence of the Roman hseres, was not
continued, the succession was manifestly equivalent to
survivorship among joint tenants ; and this principle of
survivorship 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 B and C, the sons, they are co-tenants or co-partners in
the property of the household, with the father, A, as the
manager ; if the father, A, dies, the property survives to B
and C, the sons ; in this case the sons would be 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 ; we
should in this case think that no rights to property had
passed, and speak of the possibility of B succeeding to his
father as having ceased. Again, if a third son, D, is bom
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 rights of the three original joint tenants,
diminished pro tanto. 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
TNTKODUCTIOX. CVU
other members 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 case 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,
unless 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 pro 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 wrongs, 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 by the use in the Brehon Law of words descrip-
tive of different kinds of interests in lands, or, rather, of
lands 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 general tribe-land and the lands of inheritance is per-
fectly clear; the former are ike fear an fine ; the latter are
the orba lands. The latter class of lands are subdivided
into those upon which 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 INTRODUCTION.
is frequently used to denote the association of different
individuals considered as one body in a legal point of view.
There also occurs another term frequently used as descriptive
of land, viz., " dibadh," the explanation of which involves
much difficulty. It is used, as has been observed, in the
first tract as descriptive of common tribe land as contrasted
with coibne land ; it is also used to express the property
passing from a deceased to the parties entitled to the succes-
sion, and it is used in the latter sense evidently to describe
the share of a deceased co-owner in coibne land when it
passed by succession. It would 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 "dibadh,"
according to the rights of the individuals then under con-
sideration. The question as to the succession to " cruibh "
and " sliasta," 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
geilfinc organization, and (2) lands upon which a geilfine
organization had been established
Assuming that the penalty for wrong falls upon the
household of the wrong-doer, and that the succession to his
property would take the form of a survivorship of the other
members of the household, three possible cases would arise
(1.) If the wrong-doer, 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
both incur the liability and take the succession, in each case
as the co-members of the household, bat the transaction
would apparently be different from the preceding case, for
the fact of the successioa would be here apparent.
INTRODUCTION.
(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
given 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-
pensation. The statements are apparently contradictory,
but a clear idea of the order of priority may be obtained by
a careful comparison and analysis. We may disregard the
passages in which the general word " family " is used ; in all
such cases the liability of the members of the family among
themselves would be secundum legem, and this must be
necessarily implied. \Ve may similarly 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; (6) 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; (6) 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 2G9 it is () the son ;
and (b) the father ; and in pages 249 and 268 it is simply
the geilfine.
As to the right to receive the compensation, in page 245-G
we are told that the body fine for the death of father or son
is payable to the entire family. In page 255 the father and
CX INTRODUCTION.
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 : To the father, two ; to the son,
two; to the brother, one; and 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 liable as among themselves.
Bearing in mind the principle, "As long as there is a
family before him, it is not backwards 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 be
the members of his household ; if he were the head of an
household, its members would be his own sons, and, there-
fore, upon the son the liability first falls.
If he has not left his father's family, the 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 criminal.
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
and 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 in which they would divide his property, does
not imply that eo instanti upon death the property would
have been divided among the parties named ; it means that
the liability, as a damnosa Jiereditas, or negative quantity,
pursues the same line of succession as the actual inheritance
would have pursued.
INTRODUCTION. CXI
(:2.) 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 prioiity to his brothers; but
of such a rule, when once admitted to exist, there are two
possible explanations, either (.) that the brothers succeed
if the deceased die without leaving sons or lineal descendants
surviving him, or (6.) 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 was the nature of the interest taken by the sons of
the deceased in his lands. At the present day, and in the
English Law, 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 idea of primogeniture is
absent, and the land passes to all 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-
lute 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 cannot 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 lands of
inheritance were subject to such a rule, which, if it existed,
would have bound property in a perpetual entail, and pro-
CXli INTRODUCTION.
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 perpetuum ; on the other hand,
there are frequently allusions to the four first generations of
the descendants of the deceased, and the clearest 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 the
latter's power of alienation. The residue of the land of the
"-fine" 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-
son to the great-great-grandson ;"t this passage is explained
as stating the mode in which 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 death the latest descendants en-
titled, are specified as the great-great-grand-children of a
common ancestor.
A remarkable passage occurs in page 287, which, whether
it refers to estates of "fuidhirs," 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 preju-
dice of his sons, grandsons, great-grandsons, or great-great-
grandsons." Thus, 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 ancestor ;
and, if these four generations had thus joint rights in the
land, as quasi-joint tenants, the death of any one would
operate as a survivorship 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 hereditary right was
* Pages 283-287. t Page 33.
INTRODUCTION. cx iii
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 severally, 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 household. 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" 3 ,
and descendants of the fourth degree were considered as
the most remote who could stand in that position. A law
of heirship founded upon such a basis would draw the limit
of collectoral heirship at third cousins ; this may seem to
some a very 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 father, 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-law, 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. As against the father or
the brothers, there does not seem to have been any restraint
upon alienation, and naturally 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
CX1V INTRODUCTION.
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 descent, 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
acquirer, the extent to which collateral 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.
When 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 falls back into
the general tribe 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 geilfine extends
INTRODUCTION. 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 represent the
entire "fine" for the purpose of receiving successions, as
they represent the community in being ultimately liable in
certain cases 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
sons of a deceased, this rule could not (subject to the excep-
tion subsequently noticed) apply until the " geilfine "system
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 of a special rule,
and, as 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; but its meaning is
evident if it implies that the fifth "geilfme" 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-
CXVi INTRODUCTION.
sent it beneficially as entitled to the succession to vacant
inheritances. Their position would in this case 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 Lectures
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
dealino- with cruib and sliasta land, there is no reason to
O
doubt the general accuracy of the statement.
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 lawyers
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 geilfine-
div isi on 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 24, referring to page 39, line 16, " all
the geilfine-division have become extinct, and all the land is
obtained by the daughter in right of her female ' coarb '-
ship, or as I have to tell concerning the dibadh-l&nd of the
head (CHIT>) 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 ; the 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 cruilh and sliasta, does 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
* Manners and Customs, vol. I., p. clxxi
INTRODUCTION. CXVll
that it was 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 cruibh 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 of the family oi Gilead, viz., " if they be
married to any of the sons of the other tribes of the children
of Israel, then shall their inheritance be taken away from
the inheritance of our fathers, and be put to the inheritance
of the tribe whereunto they are received ; so shall it be
taken from the lot of our inheritance.''^ 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 Israel, shall 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 every one of the tribes of the children of Israel shall
keep himself to his own inheritance.''^
At whatever date female succession was established, it
appears to have been subject to a restriction similar in
effect to the later Mosaic rule. "A female heir is here referred
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 succession 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
* Num. 27, 1. f I<1-, d>- 3". * + IJ -i y - 8 -
Page 39, see g'.oss, p. 41, Hue 4.
CXV111 INTRODUCTION.
be regarded as 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 sliasta 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 succes-
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-chie? 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 sous would be
themselves entitled to the rights of full 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 issue 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 and 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 son, and
there are no sons, but daughters only And the daughters
shall obtain all the land with obligation to perform service
of attack and defence, or the half of it, without obligation to
Ancient Laws,.&c., of Wales, vol. 2, p. 607. t Fa S e 17 -
INTRODUCTION. CX1X
perform service of attack anddefence ; 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 commentary 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 very remarkable error not as to the meaning of
the Irish word, but of its presumed English equivalent. The subject discussed
in the tract is the rights arising between persona, who have ceased to be joint-
tenants by a severance of their joint-tenancy, and become owners in severally of
their separate holdings. We have no English term expressing such a legal
relation, and the words "co-tenancy" and "co-tenants" have been used as
the nearest equivalent expression. The learned 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 use of which could lead only to a misconception of the
original text.
CXX INTRODUCTION.
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
occurs 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
divided 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, carefully points
to the circumstances under which the relationship described
by him as " co-tenancy " arose. " Whence does co-tenancy
arise ? " he asks ; and to this question himself replies "From
several heirs." We 'are here reminded of the important
statements referable to the land of the "fine " in pages 287
and 285, the former of which states that the land of a family
was not at all divided, and the latter states that in certain
circumstances the members of the geilfine organization
divided among themselves the residue of the tribe 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 "fine" 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 acquirer.
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 individually, and
that their mutual rights 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 a pledge, of indemnity to the other."* The re-
Page C9
INTRODUCTION. CXX1
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 peculiar 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 and
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 corpus 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
valm of two ' screpulls ' on one of the rack pins of each
other's at the foot of the bed as secu rity for the fulfilment of
the duties 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 trespass 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 legal consequences of the interchange of
pledges.
The several lots in the land 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, which each several 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 offence specified ; (1) a trench, corresponding with
* Page 75. f Page 74.
CXX11 INTRODUCTION.
what is now usually called in Ireland a " ditch ;" a trench with
the earth dug out of it, piled on one side of it in the fashion
of a wall or mount ; 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) Astone wall of six feet in height, three feet wide at thebase,
and one at the summit : this was evidently a dry stone wall
like those now common in the West 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 offences, described as a "strong"
or " close " fence, or a "felmadh " (otherwise a naked) fence,
were of wood or timbers set together ; 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 of fence was not of so substantial a nature.
" The naked fence should be thus made ; the length of a
foot to the articulation (or separation) 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 twigs 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 (the interweaving) from that out, and a black-
thorn crest upon it at the top ; and every stake should be
flattened at top by three blows struck on its head, after
being first thrust by the hand in the ground as well as you
can."* The nature of the fence depended upon the nature
of the place in which it was 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 77.
INTRODUCTION. CXX111
wood."* It appears from this that the right of separate
ownership was not confined to arable or even grazing lands,
but in some cases included what would have been expected
to have formed portion of the waste of the tribe ; this separate
ownership of forest accounts for what would be otherwise
difficult to understand, the liability of owners of lands for
trespasses committed by wild animals.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 into the hand of the
other at night, that he may remember to come in the
morning to his share of the cotenancy work ; and the
victuals of the person that will not come may be safely
used, and if the victuals of any of them be used, he shall pay
fine for overuse."J
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 trespass,
and grass of equal value is given at the decision of
the neighbours ;" 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 ; 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 77. f Page 121. J Page 77. Page H7.
CXX1V 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 the 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 denned ; and technical names were
given to these 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 trespass 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, because it is difficult to regulate
the ' smacht '-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 crossed the fence, all
affected the result in fixed ratios. As a specimen the
* See the calculation as to the extent of the preciuct, post, page 227.
f Page 79. The division of the year, stated in the text, into two unequal parts,
viz., the summer period comprising five months, being the last month of spring,
the three months of summer, and the first month of autumn, and the winter period
comprising the last two months of autumn, the three months of winter, and the first
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 year into four quarters is quite evident from
the terms Eai-rach, Samhradh, Foghmhar, and Grimhridh, which are undoubtedly
ancient Irish words, not derived from the Latin through Christianity ; and that
INTRODUCTION. CXXV
following rules may be taken, as to cases really simple, and
involving only four of the above elements. " Four sacks
are due for feis trespass in a winter grass field over 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 inclosed field of winter moun-
tain 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
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 'feis '-trespass, half a sack
for airlim trespass, and a quarter of a sack for ' tairsce '-
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 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 a
pastured field of summer mountain pasture, whatever animal
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 by a man or dog ; or
straying in consequence of heat or fear, or owing to any kind
of violence ; but these exceptions very properly extend only
to " airlim " trespass, for if the cattle be left on the land to
A
each of these began with a statul day, three of which days are still known, namely,
Bealllaine, otherwise called CeideamJiain, or beginning of summer, when they
lighted the fires at Uisnach at the beginning of Samhradfi ; Ltighnasajk, the
games of Lughaidh Lamh-fhada, which commenced at Taillte on the first day of
t'oghmhar, the harvest ; and Samhain, i.e., Samh-fhuin, or summer end, when
they lighted the fires at Tlachtgha.
Introduction to the " Book of Eight."," p. liiL, but see the gloss which Dr.
O'Donovan himself cites in the subsequent page.
* Page 81.
CXXV1 INTRODUCTION.
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 numberof eighty-four cattle.in a manner whichis 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 horses 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, in an indirect manner, the institution of legal 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 was 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.
INTRODUCTION. CXX.V11
in which case he was himself personally liable forthedamage3.
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
customary rules ; " 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
corn and butter ; if such a rule existed it must be referred
to some religious origin.f
The young and troublesome pet pig, a constant source of
mischief, was 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 ; " the young pig
which first breaks through the fence, and shows the way
to the herd, there is a ' smacht ' fine upon him equal to that
of one animal. The second time that he goes, there is a
' 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 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 nock,
and compensation equal to that upon four animals."J
The rules having been fixed as to ordinary trespasses, our
author proceeds to discuss what must be considered as
purely imaginary cases ; 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 99. \ Page 109.
CXXV111 INTRODUCTION.
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 into
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 incident 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 understood to commit trespass is when they swarm
into the adjoining laud ; 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 make
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 is to
divide the honey between them into three parts, i.e., a
third for attendance, and a third for the bees, and a third
for the owner of the land. And the third allotted 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 divided between
the four nearest farms, i.e. where the food is. If this dis-
tribution of it every year shall be deemed tiresome, each
nearest farm takes a swarm."
This passage affords us a means of understanding the
* Page 105.
INTRODUCTION, cxxix
manner ia 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
latter tract, it is evident that there were subsisting certain
simple well-known customs as to swarms of bees, and that
each author simply uses the subject-matter as a means of
displaying his dialectic powers in the elaboration of rights
and rules which never were attended to or expected to be
observed.
The question of the bees having been dismissed, the next
which is discussed at great length is that of hens. The
trespasses of hens may involve negligence on the part of the
owner, for by proper rag-boots fowl may bo restrained from
wandering ; the absence therefore of rag-boots bring hen
trespasses within the class of man-trespasses, as resulting
directly from the negligence of their owner, and con
sequently within a higher scale of damages. Great ingenuity
was displayed in classifying the nature of hen trespasses ;
first, the trespasses of a hen within a house, which are sub-
divided into three classes, viz., snatching away, spilling, and
wasting, for which respectively different Compensations word
fixed; secondly, trespasses outside of the house in the garden,
subdivided again into soft swallowing of bees, injuring
roidh-plants, and injuring garlic; and further in' such case
arose the further questions whether the bird were a cock or
a hen, and if the latter whether it were or were not barren
The inconsistent repetitions in the commentary relative to
this case prove that it was a favourite subject of discussion
in the schools.
The most extraordinary discussion is reserved for the
case of dogs, the authors of which were certainly devoid
of any sense of the ridiculous. The feeding of a do<*
naturally involves responsibility for its acts, but the do
trespass, which particularly attracts the notice of the author
of the original tract is that involved in his depositing his
ordure on the laud of an adjoining owner. The commentator
remarks that there are four trespasses of hounds, viz. man-
trespass (I.e. trespasses against men), mangling of cattle,
i
CXXX INTRODUCTION.
breakin" of dwellings, and committing nuisance on land.
The three former he passes over without notice, and proceeds
to consider the interesting questions which arise uncle 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 rjround} is to be pressed and stamped upon with the
heel and fine clay of the same nature is to be put there
compensation. This is the test of reparation ; that two
horses of a chariot in yoke come there and gra/.e there, and
if no part of the sod of grass stick to their teeth in grazing
on it the reparation is complete. And three times the size <
the ordure is due 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 afterwards. And if it be in the presence of the owner
that the hound has committed nuisance on the grass, a
fine for man trespass shall be paid by him for it."*
Man-trespasses, properly so called, wrongful acts committed
by the defendant himself in respect of the land of an ad-
joining owner, are divided into various classes, and described
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 distinct
which they refer. t
The subject of " man-trespass " is resumed at a subseqm
page,* and treated of at considerable length and in the
usual manner. The first wrongful act discussed is that o
cutting down trees or underwood upon the land of another.
The various species of trees and shrubs are divided by the
original writer, and more in detail by his commentator,
into various classes, 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 these rules :-
"For the cutting of trees or stripping them, full 'dire
is paid for each, i.e., a perfect compensation for the portion
of them which is damaged, and five ' Beds' as '
* Page 123. t Pg M- } Page 147,
INTRODUCTION. CXXxi
But all trees are not equally noble, for there are seven
chieftain trees and seven common trees, and seven shrub
trees, and seven bramble trees, and the 'dire' -fine for each is
different. The chieftain trees are oak, hazel, holly, ash
yew, pine, apple. The ' dirs '-fine of the oak ; a cow-hide
is due for stripping 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 they extend two fingers beyond the wound
on both sides, and half fine shall be for it until it is whole.
For cutting the trunk a cow is paid, and five seds are its
' dire '-fine. A co/yjctc/i-heifer i* ike fine for their great arms,
or for their small oaklings ; a 'dairt' heifer for their branches!
The ' dire ' fine of every chieftain tree of them is such."*
The only class of man-trespass dealt with is the breaking
down and passing through a fencef (the English trespass
qudre clausum freyit'). As to this, distinctions are drawn
having 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 which 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 host " ; (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 conveyance of materials for the
* Page 140. Sec the notes appended to the text as to the meaning of this
difficult and obscure passage,
t Page 153
i2
CXXXH INTRODUCTION.
erection of any of the following buildings, (a) a mill, (fc) 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 (quere, restriction on full enjoyment,
or easement) which every co-tenant is entitled to from the
other i.e. in a land without an opening, without a road,
without a 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 pass 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 cattle} close to the fence in order 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, 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, and attendance to the
law of the territory, both as to the hosting and feeding and
service of defence."
" The liabilities as regards roads, i.e., a fence is required
for it alone, and it is necessary 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 incidentally in
the commentary on this tract, which proves the existence
* Tage 157. t Page 1-45.
INTRODUCTION. 'CXXxiii
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 and 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 would 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 then- cattle
to trespass 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 follows : " Let them distrain his family
until they fence their brother's land,"* showing that the lia-
bility would fall on the members of the household to which the
absent man had previously belonged. If his family 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-
selves complete the fencing of the land, and occupy the
derelict lot with their cattle in equal proportions. If the
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 possession of his neighbom-s, he was held
to have a claim upon his family, who by their failure to
perform their duties to him had caused him to be temporal ik-
ied without home or farm. His rights under these circum-
stances against his family are explained in the followiii"-
rather obscure passage : " If the deserter has come/rom out-
side into the territory after this, his family shall give him
land during the term of the hire (lit. loan), and they shall
obtain the hire, and the part of his farm-buildings which
'Page 131.
CXXX1V INTRODUCTION.
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 are
outside, and the portion of the erections which the law has
not declared forfeited, the farnity shall purchase 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 has 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 inter sese, 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 translated " hire " is taken in the
double sense as meaning both a "letting," and the "subject-
matter of the letting," the rules may be read thus :
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 end of the year he shall be entitled to whatever
'' 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 not
allot to him an equivalent therein during the residue of the
year, land must be procured for him from a third party
during the period, and his family pay the rent of it for him,
and all the "improvements" which he shall have effected
on the land at the end of the year must be purchased by
the family for him.
* Page 131.
IVTRODUCTIOX. CXXXV
(2). If the family have no land, they must give him in
time and labour an equivalent to the value of his land
during the residue of the year, and he must in this ca.so
himself buy in what in the preceding case the family were
bound to purchase for him.
(3). If liis family offer him a compensation out of their
lands, and he refuse it, they are bound to compensate him
in time and labour equivalent to the value of the land for
the residue of the year, and he loses all right to the im-
provements.*
The difficulty in understanding this passage arises specially
from 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 stated this explan-
ation is very uncertain and not perhaps 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, and not very
logically proceeds to explain the rules on this subject as
between landlords and tenants in the modern sense of the
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 " with necessity " and " without necessity ''
in this passage, applied to the act of either landlord or
tenant in determining the tenancy, are the same as are
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 be
* See the explanation of this passage given at page 135.
f The subsequent commentator sees the difficulty of explaining these rules and
suggests the following key to their meaning, viz :--" It 13 the lanJ of another man
that he has in this case let out on hire" (p. 135); that is, that when the family
procure land from a third party for the use of a " deserter " they occupy t he-
double position uf tenant and landlord.
CXXXV1 INTRODUCTION.
that the act in question was the natural result of the
circumstances in which the person who did it was then
placed; thus a "killing with necessity" would include
justifiable homicide or manslaughter, and a " killing without
necessity " would be equivalent to our term murder, meaning
the slaying of another wrongfully and " with malice afore-
thought ; " the best translation of these terms in relation
to the determination of a tenancy 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 rules laid down on this subject are as follows :
A. If the letting be for an uncertain period, in all cases
the tenant, if he determine the tenancy, leaves the erections
behind him ; but if the landlord determine the tenancy for
any reason whatsoever, the tenant may carry away the
erections with him.
B (1). If the letting be for a term certain, on the expiration
ot the term, the tenant must leave the erections behind
him.
(2). If the tenant determine (surrender) the tenancy for rca-
sonable cause, the value of his erectionsis apportioned between
(having reference to) "time and labour;" but, if without
reasonable cause, he must leave them behind.
(3). If the landlord, even on the last day, unreasonably de-
termine the tenancy, the tenant may remove his erections ;
but if reasonably, there is a division of their value having
reference to time and labour.
c. If the lands have been let for agricultural purposes, with
anagreeinent to manure and dung them, and a period has been
fixed for the determination of the tenancy, the case follows
the ordinary rule ; but if no period has been fixed, it shall,
nevertheless, be considered as a tenancy 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 from 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-
INTRODUCTION. CXXXvii
trnsted with the owner), until the time of his manure or
dung has been taken out of it."
D. If the letting be for grazing, and "for forming erec-
i ions " (with a covenant to erect buildings), the rent is " one-
third of every animal on which there is increase;" but if
for grazing only, every seventli cow is left for payment of
the rent, but the tenant is allowed for every seven cows to
pasture without further payment, in addition to every seven
cows, as many sheep as were considered the equivalent of a
cow.
E. If the tenant has agreed not to break up the land, and
lias ploughed it in violation of his agreement, the " tillage
and seed " are forfeited, and he pays five " seds " as damage!;
but he can always break up the land if there was no agree-
ment to the contrary.
F. Farm buildings found upon the land by the tenant,
are, at the determination of the tenancy, to be treated as
having been erected by him.*
Some information as to the rent of land may be obtained
* Page 133. These equitable doctrines applied only to free contractual tenant.
Ine unfree customary tenants were very differently treated.
" The free tributes, as I have hoard,
Are they which we have above mentioned ;
Of the noble tribes these are due,
Who are upon lands external [to the mensal lands].
' The unfrcc tribes, a condition not oppn
They arc in his [the kind's] own lands ;
Servile rent by them, it i< the truth,
Is to be supplied to the palaces of the chief king.
"The tribute which is due of these
[IsJ is of fire bote and wood ;
[also] the renewing of his cloaks, constant the practice.
A tribute in washing and in cleaning.
" This is due of the be.-t part of them
Run and purple of line strength,
Red thread, white wool, I will not conceal it,
Yellow blaan and biunean.
"From the unfree tribes of ijnolli coin'enance,
Who fly with the rentJrOHi th: I n J,
1 icice as much is due
A, they had earned off from their fatherland.'
&>3k ofRiylti," p. 223-4.
CXXXV111 INTRODUCTION.
from an earlier passage in this tract dealing with the mode
in which land-trespasses are estimated ; 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
the fine for the trespass ; if summer grass, it; the fine, is one-
third."* On this passage the gloss says : " Two-thirds of
the fair rent, or price that is paid for its ' feis '-trespass
and ' airlim '-trespass is what is paid for its ' airlim'-
trespass only, for it is four sacks that are paid for its ' feis'-
trespass, and two sacks for its ' airlim '-trespass. Two-
thirds of the rent which is paid for a " Tir-Cumhaile " of
the best land to the end of three quarters of a year is what
is due for ' feis '-trespass in a meadow of winter grass-land
over a full fence, i.e., three ' screpalls ' for the three quar-
ters ; i.e., two ' screpalls ' for ' feis '-trespass in winter,
and one ' screpall ' for ' feis '-trespass in summer, and this
is the third of the three ' screpalls.'t
Those who are desirous to work out questions of this
nature, are referred to the Tract entitled " Divisions of
Land," contained in this volume, in which the measures of
laud 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 princi pies,
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 the
tenant received as the consideration of his services, must have
been of value, and not otherwise 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 cattle upon, but cattle for the purpose of
* Page 97. t Page 97.
INTRODUCTION. CXXX1X
utilising his otherwise valueless 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. We 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 taking land for agricultural and grazing
purpose, had existed sufficiently long for the development
of a custom determining the duration and incidents of the
tenancies, and the respective rights of landlord and tenant
as to future and permanent improvements. The manifest
inconsistency between cattle-tenure and the rules laid
down in this tract on the relation of landlord and tenant, is
one of the many 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 commentaries
were composed ; and, therefore, of the impossibility of ex-
tracting any one uniform system of jurisprudence 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 Lave
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 family. It is
evident that the several and individual ownership of land
was perfectly familiar to the Irish lawyers, and that the
most advanced applications of 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 Irish antiquities,
is not whether several property in land was known to the
Irish Brehons, but what was the proportion which, in the
cxl
INTRODUCTION.
historical period, tlic lands held by the body of the tribe
bore to those appropriated to individual and separate owners.
In an introduction, such as the present, many interesting,
although incidental, statements, which are of much antiqua-
rian value, must necessarily be left unnoticed.
None of the Brehon tracts gives more complete materials
for estimating the merits and demerits of the early Irish
lawyers than does the present. This may be attributed to
the fact that the work in question, being probably of a late
date, contained few difficulties in its construction, or re-
ferences to ancient and antiquated customs. The glosses
prove that the subsequent commentator felt no difficulty in
understanding the original text. The subject matter was
also practical in its nature, and remarkably adapted for the
mode in which the Brehou school dealt with legal subjects.
In despite of a style singularly wearisome and confused, it
is impossible not to observe that they have worked up into
a consistent form a mass of local and varying customs ;
that they have laid hold 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
then- incapacity to arrive at legal abstract propositions, and
the extreme indefiniteness or mistiness of expression to which
they were habituated ; their prevailing error of mistaking
arithmetic conclusions for definite propositions ; and, lastly,
their predelection to wander away from the practical appli-
cation of their rules into the discussion of imaginary and
fantastic cases, which were elaborated in the nature of
scholastic speculations. The wisdom, for which the Brehon
lawyers obtained such 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 and 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
INTRODUCTION.
legal school is its success in the application of its scientific
conclusions to the practical affairs of life. That theBrehon
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
to admit.
VII.
BEE-JUDGMEXTS.
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 was 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 with
it shortly after the date of the first crusade), the extensive
use of this article in Ireland cannot have arisen before the
introduction of West Indian sugar at the end of the IGth
century, up to which date the cultivation of bees must
have continued to be a matter of considerable importance
in Ireland.
The importance of bee-culture in Ireland is proved
by the well-known legend relative to their introduction
into the island. This is printed in Colgan's " Acta Sanc-
torum," under the date of the 13th of February, the feast of
St. Dominicus, or Modomnicus. As the book is not easily
accessible, the passage is here transcribed : " Narratur
ibidem et aliud de ipso S. Modomnico seu Dominico
miraculum vere prodigiosum, universal patrise continua
veritate proficium, et perenni fama viro sancto gloriosum.
Traditur enim primus esse, qui vel apes absolute, vel
INTRODUCTION'.
saltern certi generis apes in Hibcrniam transvexerit ; unde
magna dcinceps in illo regno, qua ante caruit, apum et
mcllis abundantia remansit. Sed quia hfec periodus, ut
fabulosa, a dune cervicis hereticis irridotur, et quibusdem
emunctre naris Catholicis tanquam parum fun data minime
arrideat, placuit plures, eosque graves et vetustos, ejus
producere testes. Cum S. Modomnicus, discipulus sancti
Patris (S. Davidis) ad Heberniam reverteretur, et navern
ad transfretandum ascenderet, ecce omnis multitudo apum
terras illius, unde exierat, consequens eum, in navi cum eo
consedit. Ipse enim examinibus apum nutriendis atque
servandis, diligentcm curam de Patris David mandato
dabat, ut indigentibus aliqua ciba suavioris oblectamenti
ministraret. Discipulus vero nolens tanto beneficio fratres
defraudare, iterura ad Patris presentiam rediit, sequente
tamen euin turba apum, qu?c ad alvearia propria prorexerunt.
Cum secundo valefaceret fratribus, et viam suam carperet,
ecce apes, ut prius, eum insequuntur ; quod cum videret,
iterum ad fratres revertitur ; et similiter eum apes onines
concomitantur. Cum tertia vice hoc factum itcrassent, et
vir Dei nullatenus vellet eas a fratribus abducere, cum
omnium fratrum benedictione et Patris David, licentiam
transfretandi cum apibus accepit ; apes quoque S. David
benedicens, ait ; terram, ad quam propcratis, vestro abundet
semine, nee unquain deficiat vestrum inibi semen vel
gcrmer nostra autem civitas a vobis in perpetuum im-
munis, ice ultra semen vestrum in ea exerescat. Quod
usque in presens tern pus completum esse cernimus ; nam
si aliunde in illam civitatem deferantur, nequaqiiam durare
possunt. Hibernia autem insula, in qua usque tune apes
vivere nequebant, postea magna mellis et apum fertilitate
florebat. Quod enim ibi apes autea vivere nequebant, ex
hoc colligitur, quod si pulveres vel lapilli de Hibernia, inter
apes aliarum terrarum projicerentur, fugientes tanquam
nocivam devitabunt.
" Hujus historise veritatem confirmat nomen loci, quo
apes illse in Hiberniam derectae primo collocataa sunt, ab
ipso eventu desumptum ; is enim locus in regione Fingalliae
INTRODUCTION: cxliii
sive comitatu Dubliniensi situs, Lann-lcachaire, id est,
Ecclesia Apiarii adpellatur, &c.' : *
The present tract must lie 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
subtility. From the passages in the preceding tract dealing
with bee trespasses, and incidental passages in the present,
it is evident that questions relating to the ownership of
bees were, in the ordinary course of life, dealt with on much
Ifss refined principles than are here suggested; but 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
selected than that of the rights to bees and their produce ;
and upon this point some few observations are necessary.
The ownership of bees raises at once the question of what
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 physical contact,
if the physical force to retake the object can be reproduced
at will.
The most remarkable illustrations of the legal conception
of possession arise iu 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 so hardly with thick headed heretics and
sceptical Catholics, is however himself embarrassed by evidence as to the existence
of bees before the date of St. Modomnicus: "Quod autem in Ilibernii ante
sanctum hunc Dominicum natura apes et mel'.a f uerint constat ex irrefragabili
testimonia regula; S. Ailbfi, iu qua num. 37 ita legitur, 'cum sident ad mensam,
adferautur herbae, sive radices, aqua lot;B in mundis scatellis ; item puma, cervixia,
et ex alveario mellis ad latitudiuem pollicis, id est, aliquod favi.' S. autem
Ailbeus floruit in Hibernia simul cum S Patricio, et aliquot etiam annis ante ejus
adventum, sive ante annum 431. Ad auctoritates S. ^Engussii et aliorum qui
dicunt S. Dominicum primum fuisse, qui apes in Iliberniam attulcrat, dicendum
hoc esse intelligendum de ctrto genere apum: eunt enim iu Ilibeniiii et don.esticte
et silvestres, ac diversi colons et generis apes ; praecipuarum autem ex his genus
et semen viJetur S. Dominicus primus advexisse." ( Vit& Sam-forum, p. 328,
n. 7-8.) The legend therefore affords no means of fixing thu dute of this tract.
INTRODUCTION.
from other property. Animals, on the other hand, which are
in a wild state, are 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, and 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.
We do not possess the fish in a river, although the several
right of fishing belongs to us ; but we do possess fish when
once they are placed in a receptacle, whence we can at any
time take them. According to the civil law, the ownership
of wild animals is founded upon the fact of capture, and
exists only so far as they are actually or constructively in
restraint. The Institutes are clear upon this point : " Fene
igitur bestise, et volucres, et pisces, et omnia animalia, quaa
mari, cselo, et terra nascuritur, simul atque ab all quo capta
fuerint, jure gentium stalim illius esse incipiunt. Quod
enirn ante nullius est, id iiaturali ration e conceditur, nee
interest, feras bestias et volucres utrum in suo fundo quis
cupiat, an in alieno."*
The ownership of the locus in quo of the capture is here
entirely excluded from the consideration of the vesting
of ownership.
This law has been in England 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 which at any
time happen to be there. It was, therefore, obviously cor-
rect to decide that, when a trespasser kills 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 honey 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. 1, De occupations ferarura.
INTRODUCTION.
who fly away or swarm out, he has no means of identify-
ing or recapturing them, unless by close and imme-
diate pursuit ; bees which leave the hive are in the same
position as wild animals which escape from their cage. In
the case of wild bees, according to the Roman 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 general principles
of English law, 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 securing
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. Itaque apes, quae in arbore tua censederint,
antequam'a te in alveo includantur, non magis tnse intelli-
guntur esse, quam volucres, quae in arbore tu& nidum
fecerint. Ideoque si alius eas incluserit dominus eorum erit.
Favos quoque si quos effecerint, eximere quilibet potest.
Plane integra re, si prtevideris 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, nee 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 ratione 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
soil whereon they are found."t
* Inst., Lib. ii.. Tit. I, De apibus.
t Black. Com. B. II., P. II., Chap. 1.
C xlvi INTRODUCTION.
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 resting 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 least four sided, and each of the sides to be
meared 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 increase
and produce. The unpractical nature of this treatise is shown
by the fact that the author believed that bees did not breed,
or throw off swarms, until the third year, and it is upon
this assumption that their calculations are based. They
allow the hive what is 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 could raise to his
knee, (2) a " samhaisc " heifer vessel, which a man could
raise' to his navel, (3) a " colpach " heifer vessel, which a
man could raise as high as his loins (or waist), and (4) a
" dairt " heifer vessel, which a man could raise over his
head ; the several proportions out of these respective quan-
tities of honey to which the adjoining owners were (or per-
INTRODUCTION. 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 ordinary rule, but there were also
contingent claims for a supply of 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 the hive. In the distribution of the swarms the
author assumes that bees throw out three swarms in the
year ; the first assumed to be the best, the second swarm
also of good quality, and a third inferior swarm, described
aatito tt meraighe'' swarm. Three only of the adjoining
proprietors could get their swarm in the third year, and the
fourth had to wait for the following season, when he was
entitled to the first and best swarm of the year.
The lands in question were assumed to bear the same
relation to each other as the divisions of the geilfine, and
they were entitled 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 farm, which obtained the swarm of the third
year, must have been considered as the geilfine class ;* the
other lands were classed with reference to the proximity 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 third the " innfine."
The remaining adjoining farm could not have had any name
derived from the geilfine relation, but must have been intro-
duced as a consequence of the assumption that the original
farm was a square. That the original farm was the geilfine
farm follows from the fact that the second was the deirbh-
fine, as otherwise the geilfine must have been postponed to
* See Gloss, page 178, line 22.
INTRODUCTION.
two remaining classes, 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 bound to set a
watch " in the bright times, when the bees send out a swarm,"
and, if a swarm escaped through 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 not allotted
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 owners, swarmed within the farm of the
owner of the hive, no question could arise ; a rule determining
the ownership of a swarm could only arise, when 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, belonging to one person, but planted in and grow-
ing out of the land of another.* Such a question is foreign
toany European system 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 used for the
cultivation of large trees, such as a cocoa-nut plantation or
mango-grove, has, in the course of several generations, been
splitup into innumerable shares among the descendants of
the original proprietor, but, considering the small size and
insignificant value of the fruit trees in Ireland at the date
of this tract, and the abundance of land, it is difficult to
believe that the case is aught but imaginary, unless we
assume the existence of the letting of land for garden pur-
poses, with a customary 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
I'avKiT. 't Page 169.
INTRODUCTION. cxlix
fourth year, and that in the other three years it was divided
into two parts .between the respective 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 stated in the commentary thus :
" It is to the land out of which it (the tree) grows
originally, that its produce belongs every fourth year ; until
(then ?) the produce of the bees is divided into two parts 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 year is due to the owner of the bottom, in the same
way as the owner of the top gets the produce of the tree
every fourth year, so the owner of the bottom of the trees
obtains 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 division of the ownership of a stray swarm
between the owners of the land and of the tree. The rules
as to swarms, the ownership 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 ownership 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 their produce are 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 bees) are the property of the
owner of the tree from that out.
(2.) " As to doubtful bees in the trunk of the tree of a noble
'nemedh,' three-quarters of their produce are due to the
owner of the tree, and one-fourth to the doubtful owner of
the bees, to the end of three years, and they belong to the
owner of the tree from that out.
(3.) " As to the known bees in the top of the tree of a
noble 'nemedh,' one-third of their produce is due to the
* P. 171. The punctuation of this passage has been altered from that in the
text
cl INTRODUCTION.
owner of the tree, and two-thirds to the owner of the bees,
to the end of a year, and they belong cj:d n*i>\iij to the
original owner of the bees from that out.
(4.) "As to doubtful bees in the top of the tree of a noble
' nemedh,' one-half of their produce 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, according to others, it is to the owner of the tree
they belong.*
(5.) ".4s to known bees in the trunk of the tree of an
humble 'nemedh,' one-half of their produce is diic 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 owner 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 :+ "As to known
bees in the top of the tree of an humble ' nemedh,' the fourth
portion of thi.ir 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/'J
There is a passage in the original text which puts the
rights of the " nemedh "-person 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 owner, receives but
one-third qf one year's produce as a gratuity. This passage
is quite inconsistent with the rest of the text, and the de-
tailed rules of the commentary, and proves how much of the
* Tliis rule is variously given in page 189.
t Page 183. % Page 189.
INTRODUCTION. cli
regulations 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 questions are then discussed which deal with the
conflicting rights of the man who finds a stray swarm, and
the owner of the land on which the swarm is found ; these
may be summarised as follows :
(a.) If the swarm is found in a green, that is, the open
orassland immediately surrounding an house, one-fourth of
one year's produce to the finder, and three-fourths to the
owner of the house.
(6.) 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 "daer," and " saer" -tenants, and their
personal connection with a superior, is marked by the rule
that " daer "-tenants of a church give over to the church
one-third of their finding ; " daer "-tenants of a chief give to
tlu-ir chief one- third, except in the case of bees found in the
waste land, and in that case one-ninth ; the " saer "-tenant
of the church gives over one-fourth, except in the case of
bees found in the waste land, and in this case one-twelfth ;
the " soer"-tenant of a chief gives no portion to the chief. Two
other subjects are discussed 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 bees. The mode
in which this question is considered is much less detailed than
in the text and commentary of the Book of Aicill, and the
matter is referred to the judgement passed upon the occasion
of the bleeding of Congal Caech ; 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 any one to
take care of me, and the little bees 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 named Congal Claen."* It may
be reasonably conjectured that the tale of Congal Claen
had rendered the question of damages arising from the sting
of a bee a favourite siibject 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 recognised by these lawyers.
We are now in a position to consider the mode in which the
ownership of bees, their honey,and their swarms, are discussed
in the present treatise. What is most obvious is the absence
of any general principle applicable to the consideration of the
questions raised. 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 consideration of the rights of
the parties standing in this impossible relation is then con-
sidered upon the assumption of a fact actually incorrect,
* The Battle of Magh Rath, p. 35.
f Ancient law -givers appear to have entertained serious apprehensions of the
injuries which might be inflicted by bees, of which the following examples
suffice :
" Si quis apiaria in civitate, aut in villa forsitan construxerit, et alii dampnum
intulerit, statim moneatur, ut eas in abditis locis trausferre debeat, ne forte in eodem
loco hominibiis aut animalibus dampnum iuferrant. Et qui ha;c pracepta aut
lestationem neglexerit, et dampnum suffocationis in quadrupedes intulerit, quod
mortuum fuerit, duplum rcstituat : quod vero debilitatum, ille obtineat, et simile
dampuo reddat : et pro judicis contestatione, quam audire neglexit, v aolidos
eoactus exsolvat." " Lnjes \l'!.ic</'itln>rHiu," Lib. viii , tet. vi., 2.
"Apes si occidunt hominem, ipsas quoque occidi fcstinanter oportet ; mel
tamen expendatur in medicinam et in aliis necessariis." " Tlieod." Poen. xxxi.,
18.
" Apes si occiderint hominem, statim occidantur, antequam ad mel perveniant,
ita saltern ut non per noctein ibi restent ; et mel quod fecerint comedatur."
" Ecgb." Con!. 39.
" Apes si aliquem occiderint, statim ocridantur, et mel quod antea fererint
datur." " Eri/b.' Pcen., Lib. iv.,s. 37n.
INTRODUCTION. cliii
viz., that bees do not swarm until the third year ; and the
distribution of their swarms ie regulated by reference to the
false analogy of the divisions of the family in such a manner
as to involve 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 advantage arising from his own
wrong. The mode in which our author proceeded was this :
he observed that on all such occasions a contest as to the
ownership arose between certain definite parties, the finder
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 least 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
account 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 grounds calculated to satisfy the
contending parties ; however 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 Welsh law dealt with the subject in the same, though in
a more pref unctory 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 ;"* and again, " Whoever
* Ancient Laws of Wale*. Vol. I., p. 07.
cllV INTRODUCTION.
shall find a swarm of wild bees is to have a penny or the
wax ; and the owner of the land is to have the swarm."*
No clearer example can be desired of the essential differ-
ence between the Celtic mode of thought, apparently clear,
yet 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 : " Sel avien che per aventura le ape che
sonno nelle mie casse vanno foi'a, et restano in altrui casse
de volunta di esse, la rason 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 le usciranno
da le mie casse, io no ho piu signoria in quelle, se iion
tornano iterum ne le 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 li beni de fora, et pero quelli
che li hanno chiusi in le sue casse sono sui patroni, mentre
voranno stare, 6 ritornare ; ma se alcun vien al mio loco
dove tegno le ape, et porta una cassa onta di dentro di
qualche odore, per el quale intrano dentro tutte, o parte de
le mie ape, et le porta via, la rason commanda che quel che
fara questo sia tenuto di tornar indrieto le mie ape con
tutto el frutto che havera fatto, et poi esser condanato
personalmente sccondo che li 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 le mie ape
fanno niiel in altrui arbore, la rason judica ch'io non habbia
alcuna rason, no alcun altro del qual fosseno le ape, ma
quello deve esser del patron del arbore; et questo e dl
justitia, perche nessun non puo segnar le sue ape che non
soiuegliono a le altre, et cosi come le viveno de li fiori, et
beni d'altrui, cosi deve esser il miel di colui, nell' arbor, o
terreni del quale voluntariamente vanno a farlo ; parimente
se le mie ape a far el suo miel a qualche arbore salvatico
che non ha patron, la rason vole che cadauno possa premier
di quel miel senza errare verso alcuno, perche e loco com-
* Ancient Laws of Wales, Vol. II., p. L'tfii.
INTRODUCTION. civ
mime, dal quale de rason ogni homo puo pigliar, ctiam le
ape, et portarle, dove li place senza errare, de jure, et per
1'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), had any
acquaintance 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 most remarkable in this section of the
Assize of Jerusalem is the distinct manner in which actual possession is laid down
as the only ground for the ownership of bees, and the clear argument upon which
it is founded viz., that the ownership consists in simply retaining them in actual
possession, and is not founded upon any expenditure of labour and food hi their
maintenance. The doctrine of constructive possession which appears in tin- section
of the Institutes is here disregarded, and thereby the difficulty is avoided which
arises from the limitations of the constructive possession introduced into the Unman
text, " Donee in couspectu est, nee difficilis persecutio ejus est." Also, when no
act ual reduction into possession has taken place, it is presumed to have been made
by the owner of the soil, as no one else could enter upon his lands for the purpose ;
and the case of the bees being fraudulently induced to escape from the possession
of their owner is anticipated and provided for. How difficult it was to form clear
ideas as to this matter appears for other attempts at legislation upon this subject.
Thus, in the laws of the Wisegoths was contained the following section :
" Si quis apes in silva sua, aut in rupibus, vel in saxo, aut in arboribus in-
venerit, facial tres decurias, quie voeantur caracteres ; unde potius non per uiium
caracterem fruu~ nascatur. Et si quis contra hoc fecerit, atque alienum signatum
invenerit et irruperit, duplum restituat illi cui fraus illata est, et prseterea xx
flagella suseipiat." "Leges ti'isigothorum," Lib. viii., sit. vi., 1.
The ownership is here founded upon the discovery simply of the swarm, and
nci reduction into actual possession was required ; and the question whether
the person who so found them was rightfully or not upon the place where the
bees had swarmed is altogether overlooked.
In the present tract the Brehon lawyer has seen the two distinct grounds upon
which the ownership might be founded, but has worked out logically neither
train of ideas, and concluded by compromising both, with reference to a supposed
analogous case, and in an arithmetical manner.
INTRODUCTION.
VIII.
RIGHT OF WATER.
The subjects discussed in this treatise are neither riparian
ownership of running water, nor servitudes connected with
the use of water, but the right to conduct water courses
for the construction of mills, and the right of the adjoining
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 neighbours, 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 permit the other (co-
tenants) to conduct drawn water across his border ;"* 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 do so."f The process in question was a veiy archseic
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 (2) of a dun, or
(3) the circuit of a fair-green. The author understood that
the right of acquiring land for a work of public utility
must be restricted by rules which would prevent 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 subject of valuation, but was fixed
in every case by a an express 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 " was payable for
* Page 2 13. f Page 2 IT,.
INTRODUCTION. civil'
every farm through which the water course was carried ;
.some 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 mill for every land over which it passes that is due for
it."*
Three classes 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 and abundant supply of water, or,
according to another commentator, of fish ; (2), a house and
close previously without a supply of water, and which,
therefore, was benefited by the mill-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 was
obliged to permit its use without compensation .f 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. Whatever 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,
became absolutely binding if acquiesced in during the lives
of two subsequent owners :J " 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
vory fully expresses the archaic idea of ownership ; the
I'].'!. f Page 215 J Page 211. Page 213.
INTRODUCTION.
owner was owner merely for the term of his own life, as be-
tween himself and his family he was in some sort only a
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 " substitutions " in the old French law, or in
that of a Scotch tailzie. The English law has superadded
to the power of dealing with property which is incidental
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
been 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 maybe reasonably concluded that
the party who entered into the original agreement was the
great grandfather of the person whose right to object 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 have 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 were 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
acknowledged 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 successive owners \vhose lives are taken into account
* Pa-el' U.
INTRODUCTION.
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
father's death, having been unable during his infancy to do
any act to bind his rights, was entitled after his father's
de.-ith, and for the same period as he had lived as 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 relying 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 acquiescence.
If the owners of the lands required for 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 appear 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 page 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 is drawn."* What is the particular
right dealt with in this passage ? 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 theadjoiningowners are regulated 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 follows:
* Page 209.
INTRODUCTIOX.
The land in which the mill-race was first turned otf, "the
course," was geilfine land ; the land ori both sides of the mill-
race, down to the mill-pond, was deirbhfine land ; the land
surrounding the pond was iarfiue land ; and the land on both
sides of the race, from the pond to the land, was the innfine
land. It is clear hi 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 running
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
original 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 deirbhfine and iar-
fine lands, the entire week would be divisible among the
owners of the adjoining lands exclusively. This objection
does not apply to the scheme regulating the mode of work-
in" such a mill contained in the commentary.* According
to this rule the right to work the mill is divisible between
six classes : (1) the well, (2) the owners of land from the
well to the pond, (3) the pond, (4) the owners of land from
* I'ayi- 217.
INTRODUCTION.
clxi
the pond down, (5) the artizans, and (C) the attendance
raw-third goes to the land, and the things which belon* to'
it and one-third to the science of the artizans, and one-
third to food and rude labour." The two latter classes, the
rtizans 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
pmod of three weeks, containing eighteen working davs
distributed thus :
The Well,
1st Week.
Monday.
2nd Week.
3rd Week.
Pond, .
Pond down
Tuesday.
Tuesday,
Monday.
Monday.
Artizaus,
Attendance,
Wednesday and
Thursday.
Friday and Satur-
day.
Wednesday and
Thursday.
Friday and Satur-
day.
.^ _^_
Tuesday.
Wednesday and
Thursday.
Friday and Satur-
day.
It is clear that if the author of the first paragraph of the
had considered the adjoining lands to have been
iivided upon this system, the pond should have been de-
scribed, not as the innfine, but as the iarfine lands ; and in
one of the glosses we, in fact, find this correction made if
the pond was the iarfine lands, the two intermediate dasles,
-the dmrikfae and the iarfine lands must have been
placed between the source of the water and the pond; and
a* before remarked, we find in the first passage no allusion
to any race from the pond to the mill. It may be suggested
that the first passage refers, not to the right to use the mill
but to draw water from the mill-course and pond-a privi-
lege perhaps not of much value in Ireland, but one which
theBrehon lawyers, to whom the rule e minimis non
culations' WaS UDknOWD ' WOUld not disregard in their cal-
The present tract concludes with the following remark-
able passage :- There are seven ditches, according to the
ami, the injuries done by which are not paid for (though
such should be done by them), for every person shall be
corrected (restrained ?) bj_ his security, unless they have
I
INTRODUCTION.
been made free; the ditch of a 'dun '-fort, the ditch of a
cill'-church, the ditch of a fair green, the ditch of a null-
race, the embankment of a mill-pond, the ditch of a tur
bo- (the hole caused by the cutting of turf), a ditch which
is at a bridge ; for, from this out (i.e., 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
to him who has sustained the injury, for every surety shall
be sued unless these exceptions have been established
regards water. It was thus that the common right to ,
ducting water was established by the Feini."'
ThlsVssacre 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 then-
construction, and those the owners of which are exempt from
damages 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 o
which authors have laid down no denned mode of con-
struction " All the ditches referred to are made in the exercise
of le-ral ri-ht; and all, except the cutting of the bog, may
be considered in some degree as public works; the cutting
in the boc* 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 such 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 applied
Railway Companies, in the case of the King v. Pease, 4 B
& Ad. 30 ; the question in such case is always one of negh
crence in 'the construction or using of the work. This
appears to the point taken by the author of the gloss, viz
-that there was no established rule regulating the mode
yhich the mill-course should be constructed and that
in wi
* 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
lawyer accustomed to the use of distinct arithmetical formula.
This passage is interesting, as illustrating how the Brehon
law was taught ; in any modern system the author would
have laid down an abstract proposition, illustrated it by
particular examples, and fortified it by previous decisions ;
and, thus having established his general proposition, would
have applied it to the facts of the case, then the subject 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 cases ; 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 disclose 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. Maine'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-
tomit 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 facts not one
12
c l x iv INTKODUCTION.
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. Water 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 questions had arisen upon the subject.
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
Judge must have proceeded in such cases 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 then-
decisions continued unaltered, which the writers of their
law tracts embarrassed themselves by adopting,
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 the compensation payable by
INTRODUCTION.
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 certain 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 precinct 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 hands breadth 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, whose 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 fixing the
extent of the precincts of the dwellings of ecclesiastics ; in
this case the calculation is based upon the extent of the
* Ante- Vol. III., Page 119-145.
clxvi INTRODUCTION.
greatest, and not the smallest, precinct; to a church, "in
which were the three grades of bishop, professor, and archin-
iiech," approximately translated in the text, a " cathedral."
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
space 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 waived by
the owner of the house, who was not bound to concede its
benefit to a stranger, and if it were violated the result would
be that damages should 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 inviolability 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 ? 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 solely from the fact of violation, but notice that the
place in which a person was seized, or property recaptured,
was within the limits of the precinct of a third party,
was requisite to make the act otherwise justifiable a wrong
as against the owner of the house ; for among the cases ot
exemption is placed that of " ignorance," which is defined
(with reference to some known case) as the seizure of cattle
* Page 233.
INTRODUCTION.
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
case of the owner of the house refusing to fulfil his recipro-
cal duty of guaranteeing to the pursuer his legal rights ; the
latter is, howevei-, 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 passage is strengthened by the fact that the
succeeding paragraph assumes 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,J 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 house-
Page 229. f Page 229.
J Page 231, but see note on this passage.
clx\iil INTRODUCTION.
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 person, who, on
behalf 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 of separation from the head of the
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 protection of his hired soldiers." It would be attributing
perhaps too much ingenuity to the Brehon Lawyers to believe
that they worked out these rules by reference to the doctrine
of implied agency ; it would be more safe to conjecture
that at an early period a fugitive might have been received
into the protection of the household by any of its members,
and subsequently their action was explained as being as
that of implied agents of the head of the household.
The amount of damages payable 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 used
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
could not be expected to yield to the claim to protect
fugitives, unless the owner of the precinct could himself
restrain them from departing, as otherwise his guarantee
that justice should be done would be nugatory. The
* Pa.^c 231, butsee note on this passage.
INTRODUCTION.
number of fugitives who could at one time be 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 (specified times} without offer of law in
either of them, and to protect after the terms with offer 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
seem to be a survival of earlier ideas modified to meet
the circumstances 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 fallen into disuse after the introduction
of Christianity. The original position of the fugitive is thus
described by Mr. Hearn : " Another division of the same
class (the dependents of the family) consisted of refugees,
especially refugees for homicide. It seems to have been an
ancient belief that the stain of human blood, however in-
curred, required purification. There was also the danger of
the blood feud from the kinsmen of the deceased. The
homicide, therefore, generally fled from his home, and sought
a person who could purify him from his sin, and also protect
him from the 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 by the proper
adjuration, such a request could not be refused. The stranger
had brought himself within the protection of the House
Spirits, and they would resent any wrong done to their
suppliant. Away 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
lor it. But the suppliant in the technical sense of the word,
the Jtt'nje or the man who came to the holy hearth was a
L'35.
INTUODUCTiOX.
different case. Him the House Father was bound to receive,
and when he had received him, the stranger was initiated,
and became, at least 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 (cin cumcnle), having reference to the
quality and advantages of the land in question. Arable
land is divided into three classes (1) first-class arable land.
(2) hilly arable land, (3) labour-requiring arable land. A
cumhal of the first class is valued at twenty-four milch
cows, of the second class at twenty milch cows, and of the
third-class at sixteen milch cows. Weak land, which may
be 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 diy 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 Arvan Household, p. 109. The term " dergg/ine," which occurs in " The
Divisions of the Tribe of a Territory," (page 285, 1. 15), has been previously ex-
plained in accordance with the gloss upon that passage; but the existence of a class
of members of a family, deprived of their land as a consequence of homicide, is so
unusual a fact that it might be plausibly suggested that the " dcrggfine" included
originally the 'intrai admitted into the family, and when the original rights
connected with their admission had become obsolete, and \\w cu-tom, which
must have been a late one, of forfeiting (to use this very inaccurate phrase),
the lands of a wrongdoer had been introduced, the term (derggliuc) was applied in
the way in which the authors of the glosses understood it to be used.
INTRODUCTION. clxxi
lawyers loved to exercise their ingenuity upon ; but a little
consideration will prove that there is a practical basis for
this apparently fantastic 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 footing
of simple barter. In such a condition of the market how
are the relative prices of articles quoted ? The existence
of a fixed standard of value means that the value of all other
articles is estimated by the amount of them which can be
purchased by fixed quantities of some one selected com-
modity. Any commodity may be selected as the normal
standard, 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 invariable.
When 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 shillings, 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
met by the ancient Irish, as by every 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 produce by the form in which
INTRODUCTION.
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 number
of sacks of corn. For this purpose an abstract measure of
value is invented, which is roughly estimated to be repre-
sented by a certain amount of each of the articles ordinarily
brought to sale, and a given quantity of each article having
been 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 represented
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 circumstances,
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 article during very long periods of time, and without
regard to what are called mercantile considerations. As long
as this mode of dealing is applied to articles which can be
sold by measure and weight, and are of the same average
quality, there is no difficulty in working the system ; but as
soon as an attempt is made to apply it to land, the difficulties
involved become apparent. Land 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 therefore their value in exchange cannot be the same.
How, therefore, can the value of any piece of land be ex-
pressed with reference to the imaginary standard of value
to which all other articles are referred ? This is the question
which the author of this tract attempts to solve, viz. :
What is the par of exchange of land in the market with
reference to the other subjects of exchange ? That he
should fail in doing so in any practical manner was inevi-
INTRODUCTION.
clxxiii
table, for the question was, in its essence, insoluble ; but he
adopts the only reasonable mode of approaching the question,
and handles the matter with considerable acuteness. He
assumes as the base of his calculation a fixed measure of
land, which he defines as the land-cumhal ; he then
divides land with reference to fertility or fitness for
pasturage, and brings out the result in cattle ; he then
considers the accidental 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, irrespective 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 commentator
naturally appends a table of the superficial measurements
upon which his calculation is founded. "How is a tir-
cumaile 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
forach-measures. The following table represents the state-
ment of the text :
inch.
hands.
feet.
paces.
intritts.
laits.
1
6
1
12
1
72
12
6
1
432
72
36
6
1
L',.-,9l'
432
_>lfi
3G
6
1 forachs.
15,552
2,592
1,296
216
30
G 1
If we assume the foot measure to be practically equiva-
lent to the modern foot, the " tir-cumaile " would be about
283 acres ; on the other hand, if the forach-measure were
INTRODUCTION.
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
be 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
devised by our author, could never have been practically
applied ; the term " tir-cumaile " originally meant, and
probably always continued to mean, " the land of a
cumhal," and when so used, necessarily excluded the as-
sumption of the land being 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 term
was used.
XI.
THE CRITH GABHLACH.*
This tract has received especial attention from Irish Anti-
quarians, inasmuch as it professes to give a detailed descrip-
tion of the several social ranks and organization of the
Irish tribe. Mr. O'Curry has, in his Lectures on the Manners
and Customs of the Ancient Irish, adopted this treatise as an
authentic and archaic 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.
W. K. Sullivan, adopting the views of Mr. O'Curry upon
this subject, attributes the date of its composition to the
middle or end of the seventh century. Before any discussion
as to the nature of the work and the conclusions which may
Mr. O'Curry, shortly before his death, revised and corrected his previous trans-
lation of this tract, making many important alterations and emendations. This
revised addition has been entrusted to the present editors, and on all occasions the
I.-IUT and more matured text of Mr. O'Curry's translation has been followed m the
pri'snit edition.
INTRODUCTION. clxXV
be fairly drawn from its statements, it is necessary to con-
sider the probable date of its composition. It must be first
remarked that it does not consist of an ancient text with
an annexed commentary and explanatory glosses, but is mani-
festly written throughout by an author according to a definite
plan, and that to the later lawyers who may have made
use of it, it presented no archaisms, 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 is 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 gloss 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 as 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 Saxon 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 the 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 Saxons in contact at an early period.
And this intercourse was, 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
* Page 335.
clxXVl INTRODUCTION.
Irish and Saxon churches. Political causes helped to de-
velop this- hostility as soon as 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 by the Saxon
kings against the Scots and Picts involved the Irish in the
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 Northumbrians, under a commander
named Beort, ' which miserably 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 correctly in 795. After that date, and until the arrival
of the Normans, the Danes alone are mentioned as hostile
foreigners. This circumstance is of very great importance
in connexion with the date of the law tract, the Critk Oabh-
lach." After citing the passage above referred to, he pro-
ceeds : " 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 belongs to
the period anterior to the Viking expeditions, and in all
probability to the middle or end of the seventh century."*
If this view of the meaning of the passage 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 as 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
savo one isolated plundering expedition is referred to; and
it is to be remarked that after this event the Saxons at least
were ignorant of any hostile relations existing between them
and the Irish ; Bede reprobates the expedition as a wanton
* Manners and Customs, &c., rol. i., p. xxxvi.
INTRODUCTION.
attack on a friendly nation; and at a later date Alcuin was
of the same opinion, when, in a passage quoted by Dr. W.
K. Sullivan, he described the Irish as " gentes Scotorutn in-
nocuas Anglis, et semper arnicas."* 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
f the friendly terms which always subsisted between the two nations, than that
;s 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 Northumbrians, sending Beort, his general, with an army into Ireland, miser-
ably wasted that harmless nation, which had always been most friendly to the
English ; insomuch that in their hostile rage they spared not even the churches or
the monasteries. The islanders to the utmost of their power repelled force with
force, and, imploring the assistance of the Divine mercy, prayed long and fervently
for vengeance ; and though such as curse cannot possess the kingdom of God, it
is believed that those who were justly cursed on account of their impiety, did
s.,.,,, suffer the penalty of their guilt from the avenging hand of God; for the
very next year that same king, rashly leading his army to ravage the provinces of
the Picts, much against the advice of his friends, and particularly of CuthlxTt of
blessed memory, who had been lately ordained bishop, the enemy made show as
if they fled, and the king was drawn into the straits of inaccessible mountains,
and slain with the greater part of his forces, on the 20th of May, in the 40th year
of his age, and the loth of his reign. His friends, as has been said, advised him not
to engage in this war ; but he having the year before refused to listen to the most
reverend father, Egbert, advising him not to attack the Scots, who did him no
harm, it was laid on him as a punishment for his sin, that he should not now
regard those, who would have prevented his death." "Ecclesiastical llistorv "
Lib. IV.,c.26.
The Saxon Chronicle states -" A.D. 684. Here in this year Egfrid sent an army
against the Scots, and Beorc, his alderman with it, and miserably they plundered
and burned the churches of God."
The Saxons at least considered this raid a tin, and believed the king's subsequent
death was a signal Divine chastisement.
The following is the statement in the Four Masters : "The age of Christ 683,
the 10th year of Finachta. The devastation of Magh-Breagh, both churches
and territories by the Saxons, in the month of June precisely ; and they carried
off with 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 year 684, and in
the Annals of Clonmacnoise under the year 680.
The captives taken upon the occasion of this raid were restored by the Saxons
" Adamnan went unto the Saxons to request [a restitution of) the prisoners, whom
the X,,rth Saxons had carried off from Magh Breagh the year before mentioned ;
he obtained a restitution of them, after having performed miracles and wonders
before the hosts ; and they afterwards gave him great honour and respect, together
with a full restitution of everything he asked of them." The Four Masters, Vol I.,
p. 291. The Annals of Clonmacnoise, under the year 6*6, -tales that, " Adamnan
m
INTRODUCTION.
of the work must be brought down to some date after the
English invasion, unless 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 subsequent to the first invasion, to that at which all the
Irish tribes stood in a hostile 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, independently of the
passage referred to, would lead to the same conclusion.
The most 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 Adanman,
and the vigorous existence of the Columban monasteries,
would omit any allusion to an abbot, and speak of 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 further no allusion whatsoever to the
geilfine system, nor to the geilnne flaith as representing his
" tine," and therefore an important item in the social system
brought back sixty captives to Inland." In the Annals of Ulster, under the same
year, there is a similar statement
It therefore appears that this invasion of the Saxon amounted merely to a raid
a ong the coast between the rivers Liffey and Boyne ; that all the restitution
sought by Adanman on In-half of his country was freely accorded ; and that the
inroad was regarded by the English as a sinful violation of their friendship with
an allied nation. And it the more remarkable that upon his return to Ireland
~M 'imiian succeeded in introducing into Ireland the Roman mode of computing
Easter, which proves that at that date the Irish cherished no peculiar f.rling.y.f
mSmosity tmvard the English or their ecclesiastical usages. (See Bede Ecc. llixt.,
I il> V., c. 1.">.)
All the alm\e references are contained in the notes to Dr. O'Donovau's edition
i| the ' Four Masters."
INTRODUCTION.
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 assume a feudal form.
The simple freeman has sunk to the condition of the Saxon
ceorl ; the tribe lands have, to a great extent, if not 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 landing
out cattle ; all classes are rated for the payment of tribute tb
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
archaic 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 Mr. O'Curry, as expressed in the
following passage : " 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) of land for which he paid no rent, so that,
if a man possessed but a single acre in this way, he was a
laith. 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 the Am-i-nt Iris!,, vol. ii., page 34.
dxxx INTRODUCTION.
tins description to which exception may be taken, it fairly re-
presents the practical condition of the Irish as depicted in the
CrithGabhlach, subject to the material correction that such \\ as
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 chiefs 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 emoluments of the higher classes, of their
house tributes, rents, cuttings, and coster ings, and is not
dissimilar from the old law book of the Brehon whereby the
English commissioners "perceived how many vessels 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 mimitia? ; that the different classes possessed so much
and no more than the amount of property herein set down
against them ; inhabited houses of precisely the prescribed
size furnished in the manner described, and supplied with
the farming instruments directed ; that the occupiers of them
paid so much and no more than their customary rents ; and
that the whole society, from the provincial King downwards,
were bound, and acquiesced in, a complete system of semi-
feudal service. The work must be considered as a description
of society fully organized according to the current legal
theory at the date of its composition ; but it can no more be
assumed that the existing communityaccurately corresponded
to the le^al theory, than that the condition of England in the
* Autf, vol. iii., i
INTRODUCTION. clxxxi
twelfth century, was such as Blackstone's sketch of the feudal
system assumes it to have been.
The Crith Gabhlach 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 referred to in connexion with
the rights and qualifications 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 classes of
men is stated to be seven. That this number was selected
as the sacred number, and was not in accordance with the
actual state of facts, appears from 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, (2) the "bo-aire" chief, (3) the "aire-desa" chief,
(4) the " aire-ard " chief, (5) the " aire-tuisc " chief, (6) 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
which is in the Church, there should be a corresponding one
among the people."*
The two first classes represent the free but not noble, the
latter five the free and noble.
The divisions of the noble class are then specified, 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," (5)
the "aire-forgaill," (6) the "tarnaise" of a king, and (7)tho
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 ws : (1) the
two grades of " fer-rnbidba " men, (2) the "og-aire," (3) an
"aithech" person, (4) the " bo-aire febhsa," (5) the "mbruigh-
fher" man,(6)the "fer-fothla" man, and (7)the"aire-coisring"
* Page L".i'.i.
INTRODUCTION.
man. The seven classes are here again completed, first
by the introduction of the "aithech," a very anomalous
class, 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 scheme of classification used by the author of the
tract on Precincts, must have been different from that
of the author of this tract ; for he also, dividing the
society into seven classes, states the two lowest to be the
" bo-aire " and the " aire-desa," and the highest to be the
king, omitting to give the names of the four intermediate
divisions, and, with reference to the extent of their pre-
cincts, he fixes their rank upon the basis of a geometric
progression, a gradation inconsistent with the ratio of their
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 each respectively, and
from and in the proportion to the requisite amount of pro-
perty follow their rights and privileges (some of which we
should now class as duties) : (1) the legal value attributed
to their oath, contract, guarantee, and evidence ; (2) the
honor-price ; (3) refections, 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 " taurcreic," 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 qualifications and
rights of the several classes will render the relative positions
of the respective ranks clear.
INTRODUCTION.
A. THE KON-NOBLE CLASSES.
1. The " mbidboth " 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 seventeen years,
" unless he has taken possession or succession before that, or a
man of the Feini grade be a co-occupant with him," i.e., unless
he is himself in possession of a house, or be the joint occu-
paiitofone with a free man of full age(?), and the "mbidboth"
man who had attained the age of seventeen years. The oath,
contract, or guarantee of the former extended to the value of a
" dairt " 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 oath, fcc., of the latter was a "colpach " 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 " seds" 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 lowest class of freemen
were not, as has been stated, wholly devoid of property
they are presumed to possess a house, in respect of which they
may be required to pay food rent to a superior, and they had
a share, however small, in the common pasture, otherwise
they could not have availed themselves 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
ijjso facto a " bo-aire " chief, because, in this case, there was
no change of status, as in the transaction afterwards men-
tioned from the non-noble to the noble class. This increase
is attributed to the profits made by stock received 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
by the rule : " In three days after notice half a portion
INTRODUCTION.
(of fencing ?) 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, his 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 and a boar ; seven sheep, and one horse.
The change in his position is marked by the statement that
"He has land of three seven (21) cumhal value." The right
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
grazing land far in excess of that which was necessary for
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 "aithechs"on the land of one " bo-aire ;"
and as each " aithech " is defined as possessing ten cows, ten
pigs, &c., the author must have contemplated the case of a
" bo-aire's " lands 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 understanding the " bo-aire's " position
arises from 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 commended
himself to him ; that it was stock which was given pre-sup-
poses that the inferior receiving the stock had, independently
of his lord, the means of grazing them. It may be assumed
that the proportionate stock given to the freeman not pos-
sessing other cattle, i.e., the "rnibdboth"-man fixes the share
in the pasturage lands of a tribe to which each freeman
WHS absolutely entitled, and that the right to put a larger
INTRODUCTION. clxXXV
amount of stockupon the common pasture land, was connected
with the actual amount of stock possessed by their owner ;
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 probably in the
end be monopolized by the chief, as the English feudal lords
of manors contrived to possess themselves 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 (quere, one-
fourth) in a kiln, a mill, and a barn. His house was nine-
teen feet in length, witli 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 subsequent passage that the normal amount
of the honor-price, and legal value of the oath, &c., of a
bo-aire, was five seds ;* 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 (his honor-price)
are ivanting, 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," and did not obtain the full
rights incident to his rank until some subsequent period.
B. The second sub-division of the "bo-aire" is the "aithech,"
who is distinctly stated by our author not to be a " bo-aire/'
but 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, and his honor-price was four seds ; his pro-
portionate stock was ten cows, and his food-rent the choicest
of a herd of cows, and a bacon, four sacks of malt, and a
* Page 009. f Page 307.
clxxXVl INTRODUCTION.
wooden vessel of salt; hewas entitled to refection for two,milk
and stirabout, butter on Sunday, venison, sea-grass (?), onions
and salt. His property and social position was superior to that
of the " og-aire," and he was not considered as of the " bo-
aire" rank, but what was styled " an immovable tenant." The
reason given for this is as follows : " What is it that puts
this man from being in the rank of a ' bo-aire ?' Because
it may be that four or five such may occupy the land of a
' bo-aire,' and it could not be 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 incidents 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;" but as a ."bo-aire " is not
described as having any land of his own, it must mean that
he was some kind of sub-assignee of the " bo-aire's " grazing
rights, and that the transaction bore some resemblance to
the grazing partnerships referred to in the Book of Aicill.l
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 vjows 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. J
D. The next class, the " mbruighfher" is evidently an
official of the " bo-aire" rank, not an independent sub-division
of the entire class. He is " the ' bo-aire' for obedience to
judgment." His property is represented as twenty cows,
two bulls, six bullocks, twenty hogs, twenty sheep, 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
about his house, a house of twenty-seven feet, and a
back-house of seventeen, feet, and outhouses. The value of
his oath, &c., and his honor-price, arc six scds. His propor-
Page 309. t Ante, Vol. III., page 142. J Page 311.
ixTRonrcnoN. clxxxvii
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 of 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-
fication 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-house of seventeen. His
proportionate stock was four cumhals, 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, for it was the " fer-fothla" who is described
as passing from the non-noble to the noble grade in the
manner subsequently discussed.
F. The "aire-coisring" chief is evidently an official person,
and not a sub-division of the " bo-aire" class. He is described
thus : " Why is the ' aire-coisring' (i.e., the binding 'aire')
so called ? Because that he binds people, king, and synod
on behalf of his tribe (cenel), in their rights of safety by
verbal 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 kino-, and
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.^eSll- t Page 317.
INTRODUCTION.
outhouse nineteen. His proportionate stock was five cum-
hals, and his food-rent a cow with its accompaniments, and
a male " colpach" heifer, with its proportion of other food.
No amount of property is fixed as a necessary qualification.*
The " aire-fothla" passed under peculiar circumstances from
the " bo-aire" class into the noble class that of the " flaiths."
These are explained in the following passage of the text :
" When does the ' Aithech'-tenant become a chief having the
bo-airich-ship ? 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
When we turn to the explanation of an " aire-desa" chief's
qualifications in a subsequent page, the following passage
occurs : " And he is the son of an ' aire,' and the grandson
of an ' aire.' "} The " bo-aire-fothla" chief did not attain the
rank of a " flaith" by merely purchasing an acre of land, for
there is no reference to land in the transaction ; nor did he
acquire it by virtue of possessing merely the property of a
" ttaith," for his property was required to be double of that
at which a " flaith-desa" was valued, nor again could he be
considered a "flaith," unless both his father and grandfathers
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. The elevation of a " bo-aire"
to the rank of a flaith was not simply equivalent to his being
rated at a higher valuation. He acquired what was called
the " deis"-right, which is thus denned in the text : " What
is the deis-right of a 'flaith' ? The goodly right to protect
his office or rank. There are four ' deis'-rights prescribed
for the ' flaith'-chief. The ancient protection of the people
(or territory) is his office in the territory, together with the
office of leader, or ' tanist' -leader of the army, whichever
office it may be, of his 'giallna'-tenants, his ' saer'-tenants,
his ' sen-cleithe'-tenants, the punishment of every imperfect
-.rvice, the following of cottier tenants and ' fuidher'-tenaaLs
+ Page 317. J Page 321.
INTRODUCTION.
whom he brings upon his land, because his wealth is the
greater and better."* And again, " "Whj' 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. Not 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 clan itself, within
the 'cinel,' in the strict sense of the term, and apart from
the exceptional 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-
tween 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 descent was
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 early 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 more prosperous, more numerous, and more
wealthy than the others. Yet these advantages are rather
the effects than the causes of such a difference as that
which we are considering. Even if there were no evidence,
that in at least certain societies, land was distributed 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 321. f Page 321.
CXC INTRODUCTION.
with the peculiar religion of our forefathers, and consequently
affecting their descent. The facts correspond with the ex-
pectation. A certain series of pure descents was sufficient
to establish 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-grandfather as the
stock or founder of the joint family or Mseg ; the other is
the rule of the Three Descents. The effect of the latter rule
was, that for the purpose of acquiring full rank in any par-
ticular status, the claimant must show that his father and
both (?) his grandfathers had held that status. Consequently,
a man who claimed to belong to the nobility of the clan must
show that his grandfather was noble that is, that his grand-
father had a kin, or in other words, had a great-great-grand-
father who was a freeman." After referring 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 ; " 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 Ceorl, might aspire, when
they possessed land (?) for three generations, to become
Flaths."* So, too, "A'Fuidkir' family t in the fourth gene-
rationindeed, in the third, for the Daer Botach had also
right of settlement could not be ejected from the land.
That is, the third descendant was capable of transmitting
heritable right, and the fourth of acquisition by virtue of
such right." As a curious exemplification of this principle,
* Manners and Customs, &c., Vol. I., p. cix. f Ib., p. cxxi.
1MKOUUCTION. cxci
Mr. Hearn refers to a passage in the Introduction of the
preceding volume relative to the claims of his original
church upon the property of a former member.* Upon the
pr.'-tical working of this rule Mr. Heam 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 exclusively
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 class 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 dependent portion of the household became developed,
and the Gesindschaft was established, other varieties of rank
arose. Nobility was then derived, not from birth, but from
official position, and attendance upon the throne. "f
The idea 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 successive over
lords, as in the case of Daer Fuidhir tenants,} or of three
successive owners, as in the case of rights of water. The
same 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 "-tenants been " sencleithe "-
tenants, and irremovable after serving for nine times nine
years.
We may now proceed with the analysis of the remaining
ranks in the tribe.
* Vol. III., p. Ixix.
t These extracts are selected from the Vlllth Chapter of " The Aryan House-
h"M," pp. 103 to 209.
J Upon this puint Mr- Hearn seems to have fallen into error. V.S.
CXC11 INTRODUCTION.
B. THE NOBLE CLASSES.
1. The "aire-desa". The property with reference to which
this and the subsequent class are arranged, 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 " giallna," and
five " saer "-tenants. The amount of food to be furnished by
the tenants is stated in detail. An incident to the right of
feasting at the houses of his tenants (" coshering ") was the
number of persons whom he might take to their houses from
the " Calends" to Shrovetide; ten couples are the number
specified in this case ; in return he was expected " to pro-
tect his tenants in all just suits of ' cain ' law and ' cairde'-
law, standing towards them in the relation of a patron to his
clients. The legal value of his oath, &c., and honor-price
was ten ' seds '; the length of his house twenty-seven feet ;
his proportionate stock was six ' cumhals,' and his food-rent
two cows."*
2. The " aire-echta " was an officer of the tribe, and does
not represent a class ; this is obvious because no property,
qualification, rights, or liabilities, are specified in his case.f
The dutyof the "aire-echta" was "to avenge theinsult offered
to a territory in which a person was lately killed ;" he was
an appointed avenger of wrongs. This is illustrated by the
case of the blinding of Cormac Mac Airt, " Aengus Gabhuai-
dech " was an " aire-echta " (translated " champion "), who
was avenging a family quarrel in the territories of Luighne,
and he went into a woman's house there and drank milk in
it by force ; and the woman said, " It were better for thee
to avenge the daughter of thy kinsman upon Cellach, son of
Cormac, than to consume my food by force."J Aengus there-
upon at once proceeded to Temhair and slew Cellach ; 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 he left unperformed the more im-
portant and dangerous duty of slaying the king's son for the
abduction of one of the women of the tribe.
* Page 321. f Page 323. t Ante, Vol. III., page 83.
INTRODUCTION. CXcili
. The " aire-ard." He had twenty tenants, ten giallna,
and ten "saer "-tenants ; twenty couple were "his right on
a feasting;" his honor-price and the value of his oath, frc.
was fixed at fifteen seds; his proportionate stock was seven
" cumhals," and his 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
"giallna" tenants, and twelve "saer" tenants; he h:,d
thirty couples at the feasting. The value of his oath, &c
and his honor-price was fixed at twenty seds " his house
was twenty-nine feet in length; his proportionate stock was
eight " cumhals," and four cows his food rent. The aire-
tuisi in the third generation participated in the government
of the tribe. " He makes (assist* in making ?) ' corus '-ar
rangementsin the 'raith' right of his father and grand-
father.'^
5. The " aire-forgaill " stood in rank at the head of the
nobles, and next to the king and tanist ; his position is
marked by the words " he testifies to the character of the
grades we have enumerated, 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 le? d to the conclu-
sion that the " aire-forgail " was an official who had the
power of deciding the status of the individual members of
the tribe, but inasmuch as the " aire-forgaill " chief is intro-
duced into the list of titles of dignities ir, the subsequent
tract, although the " aire-echta " is omitted., it is probably
that the name indicates a class, 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 had forty tenants, twenty "giallna " and twenty "saer"-
tenants ; the value of his oath, &c., and honor-price' was
fixed at fifteen seds ; his house was thirty feet in length
his proportionate stock nine " cumhals," and his food rent
five cows.J
0. The "tanist" of the king or his elected successor. Hs had
five " sencleithe "-tenants more than an " aire-forgaill "-chief
* Page 325. t Page 327. i P.-.JJC 320.
INTRODUCTION.
from which it may be conjectured 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 size of his house,
or his receipts from his tenants, which may be assumed to
have been considered the same as those of the " aire-forgaiU 1
chief, and it is probable 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 proof of the status of the tanist himself.*
7. The king. This rank is sub-divided into three classes:
A. A kingof 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 fixed at seven " cumhals";
his proportionate stock was twelve " cumhals," and his food
rent six cows. 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
fixed at eight "cumhals," for which amount his "sick
maintenance " was to be commuted ; his proportionate stock
was fifteen " cumhals," and his food rent eight cows.t
C. The head king, whose supreme position is indicated 1 >y
the passage, " under his control every chief is who cannot be
corrected by his lord." His honor-price and the value of
his oath, &c., were fixed at fourteen cumhals; as the supreme
head he could give, but not receive, cattle, and therefore there
is no reference in this 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 that of the higher noble classes, being only
thirty feet.
The rank of every freeman determined that of their family
* Page 329. t Page 331.
INTRODUCTION. 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 person, one-fourth for every
unlawful one. The wives of mercenary soldiers have sick
maintenance in right of their sons and husbands. Stewards
and couriers are sustained with half the maintenance of their
They arrange that their share in the maintenance
orresponds with their sustenance by their chief. Every
artizan who makes the manufactures of a chief, or a church,
i 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:-*-" The
maintenance of every grade in the church is the same as
that of its co-grade in the laity."* He desired to treat the
seven grades of the church as correlative to the seven grades
of the laity, the ostiarius corresponding to the " mbidboth "_
man, and the bishop to the King; or rather, finding the
number of grades in the church fixed at seven, he attempts
to classify the laity in seven grades, and either omits or
interpolates ranks to produce the required result. This fact
is conclusive of the extremely unreliable nature of the
classification contained in this tract, and the impossibility
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'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 destroyed the regularity of the numerical sequence.
333.
71 2
CXCVl
INTRODUCTION.
No. of Tenants or property
qualification in Cattle.
C *C O -^
P N
III"! .s ~ ~
l i -5 "3 "s i ,? 2 S S | | | I
| frf 1 * 4 -2 f a " I
LMJ
4-T ^ "S ^
i a
1 1 1 s - s e 1-2 III*
_ Ci O ^
Food rent of
House.
U /! ' 9 ^1
|llt-2.' >^5f 5 f g f If 1
Ill!l|!slll& J 1 1 J J
Proportionate
Btoek.
5 "" ' aT^^" ^ r J2 .2
, S f f I 1 1 1 J 2 J -5 -5 -5 i
\2*** ~Z " "
E E *6 8 8 s 3 a s 2 H
g^ OM u w o u t* v O <N iO
|||
1 1 I -II 1 *" * -" " " * 2 " S
y
* 1
, || | | | | | * 5 I 1 ! 1 1
Rent in kiliJ
from Tenants.
"ort^ a.a^ = ^
rt B. " M * >O
Value of Oath, &c.,
and honor-price.
V S ~i 5 f f 5 c ^f c? ST "
1* 8 J ! Ji ^ * - - - - -I = "i
1 1
"""*"- . 1 1
. .^ ^ g | ^ 2 . .,: | c -1' "c^j?
8 d3 * 7^ iiio^^'^?
r d i * ^ ^ t. C > -h - -i3 "* ^ ""
. ^ M r S O U fa C^ O O
INTRODUCTION.
CXCV11
If we turn to the scheme of the ranks of a tribe contained
in the next tract, we find the arrangement wholly different.
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 representing the unfree class. They are
discribed as not possessing the right to go into the assembly
who had no dire fine, 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 en-
titled. A reference to the case of the class No. 9 (the
henchman " seirthuid"), and class 21, the "aire-iui&i", 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, would
be represented as follows :
Ranks.
Property.
Free-feeding.
Honor-price.
The"Uaitne,"
None,
2 and a cmv.
5 jeds.
The ' second 'of a "/?-
8 cows, .
3
2
The " Bo-aire,
10
4
3
A "Flaethem" of one rnf.-nl.
5
4
A hnl f' " Fliitthi at " JH r.<vn, .
8
5
A full "/7./ -fun, .
10
10
A " dae" person, .
4 half cumhals.
An " inifi'iitli " /ursoa, .
4
J cumhal and a
swcnl.
An " idhna" person,
5
3 thirds of a cum-
hal.
An alre-fine" Chief, .
6
7 cumhals to four.
An ' aire-desa" Chief, .
10
1 cumhal to seven.
An 'airc-tuisi " Chief, .
90
1J cumhals.
An ' a!re-ard" Chief, .
30
3J cumhals.
An ' aire-forgaill " Chief,
30
3i cumhals.
A King of the 3rd rank,
7j cumha!s.
A King nf tin' L'nd rank,
14 cumhals.
A King of the 3rd r;ink,
5 cumhals of gold
and a jewel.
As to the ranks common to both, the following result
CXCVlii INTRODUCTION.
may be arrived at by a comparison of the tests: The
freeman, without any property, is called in the Crith
Gabhlach a "mbidboth," and in the sequel an "uiatne"-
man, these two terms representing the lowest class must be
identical.
The " og-aire " of the first list 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 honor-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 " aire-forgaill") and the " aire-tuisi,"
as oiScials 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 " mbidnoth " or "uaitne "
man, the freeman without property ; (2) the " og-aire," or
bo-aire, the freeman possessing a property qualification ;
(3) the " aire-desa," the noble with property qualification ;
and (4) three grades 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 set out in the Book of Aicill, the result
is as follows :
1. A king, bishop, professor, chief poet^and every
archmech person, or best " aire-forgail"
chief, . . .14 cumhals.
2. A middle or lower "aire-forgaill" chief, or
" aire-ard " chief, ... . . 7 do.
3. An " aire-tuisi," or " aire-desa " chief, . . 4 do.
4. A " bo-aire," or " og-aire " chief, . . . 3 do.
5. A " fer-niidbaidh " person, . . . 2 do.
6. A "flescach" person, or "dair "-workman, . 1 do.*
* Vol. iii., p. 475.
INTRODUCTION. CXCIX
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 ; (6) 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
category as the king ; (c) the freeman possessing property,
the "bo-aire;" (d) the freeman without property; 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 ;
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 respective 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 follows that we regard the
Crith Gabhlach as, to a great extent, an imaginary work, the
Utopia of a Brehon Lawyer, and, although containing veiy
numerous fragments of archjeic 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 life of a king, according to
CC INTRODUCTION.
the standard of the period ; of the ideal king, who is des-
cribed as a man full of lawfulness in all respects, consulted
for knowledge, learned and calm.
Althoiigh there is difficulty in explaining many of the
details, a definite 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 his representative character ; as the "flaith,"
as the patron of his retainers or clientele, or the head of the
hoiuse on behalf of his family, represents in the assembly or
before the judge all those technically " in his hand," 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 denies (or makes oath) on their behalf ; he
proves for them to the extent of seven cumhals. He goes
into co-judgment, into co-evidence, with the king for his
people."* The relation of the king to the tribe implied
reciprocal rights and duties, as that of head of the house-
hold to its members : " They are entitled to righteous judg-
ments. They are entitled to a pledge on their part. They
are entitled to sustenance as they sustain."* In three cases
the king is authorized to bind the people by his promise
made on their behalf; viz., a pledge for hosting, which means
a levy of the armed force for a definite purpose, three of which
are stated in the text; a pledge for right; and a pledge
for 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 for the pur-
pose of accompanying himself to the boundary.* The para-
graph commencing in page 335 states: "There are now
four rights which a king pledges his people to observe."
By this, having reference to the passage which 'follows,
should probably be understood the rights which the king is
entitled to exercise as against the people ; the measure and
extent of his executive authority. The first right mentioned
is the right of " Fenechus "-law, but it is added : " It is the
people who proclaim it. It is the king that proclaims the
* rsc 333.
INTRODUCTION. CC1
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 the
correct use of the term, was 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 ; havino-
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
which 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, and 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 itself in 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
which 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 fighting 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
This passage in the original text manifestly refers to the celebrated Psalter
of Cashel, supposed to have been written by St. Benean (or Benignus) to appease
his relations, justly indignant that he, being a Munsterman, had blessed Con-
nacht, whither he had been sent by St. Patrick to preach Christianity.
" Cognati Sancti Benegni, ut populus Eogauia! Casselensis, Olildiana progenies,
i-t alii Momonienses, audito prsedicto cjus facto, lion pariun offensi ct contra vinim
Dei indignati dicuntur. S. autem Benignus, ut istain offensam aliquo grato
delueret obsequio, famosum illud chronicou, quod Psnlterlum Casstlense nuncu-
patur, inchoavit et composuit ; in quo non solum tutins Hibernia; Mouarchorum,
sed specialiter Mumonire, acta, jura, prerogatives, et successio censcribantur."-
Colgan, Trias Thaum, c. 33, p. 205. If we are to assume that the Book of
Rights practically represents and contains the substance of the Psalter of Cashel,
the " right of a king" refers merely to the amount of food and supplies which he
was entitled to receive from his feudatory chiefs. The Book of Rights is singu-
larly devoid of any legal information or value whatsoever. If the author of this
treatise was acquainted with the Psalter of Cashel, or the Book of Rights, it is
difficult to understand how he has placed the feudal relation of the kings and
their chiefs upon the taking of cattle and food rout, and not upon the receipt by
the chiefs of the extravagant and fabulous gifts stated in the Book of Rights.
The gifts represented in the Book of Rights, as presented by the King of Cashel
to his feudatories, are, of course, imaginary ; but that a "king of companies"
should take from the head king fifteen cumhals of cattle as his proportionate
stock, and pay eight cows as the food rent of his house, is equally incredible. It
would seem "that both authors, each after his own fashion, were desirous of
stating the relative positions of the King of Cashel and his under kings. The
relation was created by the receipt by the inferior from the superior of some
benefit, and a subsequent render of service in consideration of it. The actual
transaction may have taken a merely symbolical shape, which the author of the
Book of Rights has exaggerated in a poetic (?) form, and the author of this tract
described in accordance with the usage prevalent among the lower classes. As
there may be some who believe that St. Benean wrote the Psalter of Caahel, I
do not rely upon the reference to that work as a conclusive evidence of the date
of this tract.
INTRODUCTION. CC111
have 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 the 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 as 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 one of the clauses, and the reference
here 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'Niel 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 wounded 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
various duties and pleasures of the king.* He abstained
* Page 335.
CC1V INTRODUCTION.
from labour on Sunday, but his " occupation " upon this day
was drinking ale, and distributing it to others, "he is not a
lawful Flaith who does not distribute 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
business (" for causes for the adjustment of the people "),
Tuesday to chess, Wednesday to coursing, Thursday to
marriage duties, Friday to horse racing, and Saturday to
announcing his decisions ("giving judgments "). Such a
passage is ample proof how much of the details and arrange-
ments in this treatise are purely fantastic. No one for a
moment imagines that a king spent his time in the absurd
routine here suggested; yet it is not, in our opinion, more
imaginary than the preceding specification of the size of the
houses and the amount of the 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 negative 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 payment
for) the goods, but the consequences of their 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 the
* Page 337.
INTRODUCTION. CCV
fasting of bis guests ; a failure in the duty of hospitality is
only excused by the absolute want of the means of pro-
viding the necessary 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 servitude 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 kin own chief or
people" such a man could not be trusted, for he had a tribe
and home to which he might return. The four guards sur-
round 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 king's
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.
CCV1 INTRODUCTION.
ranged his wife, his brehon, and his " saer "-tenants, or noble
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 spectacle. Having exhibited the
king in fulness of his power and splendour, the author asks :
" Which is greater, a king or a bishop ? The bishop," he
replies, " is higher, because the king stands up (to salute
him), 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
" beds," 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 house 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 forming his court and retinue ; the
* Paj;c339.
INTRODUCTION. CCV11
want of refinement in manners is marked by the fact of the
champion and man of deeds at the palace retaining their
spears " against the confusion 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 "Fenechus" law, but the universal system
of commendation extending from the low " mbidboth" man
to the king of companies (every one of whom received cows
from a superior, and paid his food-rent), and the masses of
non-free tenants who swelled the retainers of the "flaith,"
prove that the new system of personal relation was being
rapidly substituted for the bond of tribal union ; the tribe
lands had been monopolized by the noble class ; whether by
grant or force, fairly or unfairly, is unimportant. The
double process is summed in the Latin sentence " Hrcc fere
pascua data sunt depascenda sed in communi ; qu?e multi
per potentiam iiivaserunt." As a natural consequence, land-
less men and " fuidhirs " abounded ; the general instability
is proved by the custom of hostages, and the presence of the
foreign retainers who surround the king ; and the rules, as
to the maintenance 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-
tastic 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 error of substituting an imaginary, for the actual,
condition of a people.
CCV111 INTRODUCTION.
XII.
SEQUEL TO THE CRITH GABHLACH.
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 has been sufficiently shown that two
different 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. As 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 ;
(8) 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 is remarkable that
to a large proportion of the classes specified the alleged
grounds of the classification, certainly the greater portion
* By "exemptions " we should understand "privileges" in the full extent of
the word; either special rights or special duties, tUe enjoyment or performance of
which distinguished the individual from the general mass of the nation.
INTRODUCTION*.
CC1X
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 classes
stated in this tract of the classes of this tract are enumer-
ated downwards, that is, commencing with the head king,
and proceeding downward to the lowest grade, but it is 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 talents, 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 personsno legal rights; it would follow fromanalogy
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.
When 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 possessing none,
but rather with reference to the causes whereby they had
lost, or did not possess, any recognised status, and that the
nine classes are sub-divisions of one class, distinguished from
each other by purely accidental circumstances. The ranks
thus enumerated are as fqllpws :
(a) A " henchman/ a sqldier 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 feeding, 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. f Page 339.
ccx INTRODUCTION.
ritfit 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.
(6)| The freeman who had "lost his patrimony,his lands, and
his stock, and did 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
Orith Gabhlach, who, as having cattle lent to him by a lord,
and paying food rent for his house, did possess 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 " Baitse "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 deeds
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 denned as an " oinnit."f Extra-
ordinary as are some of the definitions of the Brehon
lawyers, it is impossible to believe that the author of this
tract seriously intended 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
* I'age 331. t Page 353.
INTRODUCTION. C CX1
some specific acts of the wife, survives in this apparently
absurd description.
(/) A " midhlach "* person, an effeminate, unwaiiike
man, a coward or an imbecile. As the coward has
already been enumerated under the head of the "co\v-
grazier of a green," this class may more properly include
idiots and 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."
(gf)t A clown, mountebank, or buffoon, not a jester simply,
but what we should call an itinerant tumbler, dishonoured
because he "went out of his shape before hosts and crowds."
(Ji) A "rias-caire" man,t "a robber whom his race and
family shun, a violator of ' cain ' law, and of law, who goes
from marsh to marsh, and from mountain to mountain," or
as it is also explained, expressive of the latter fate of such
an one, " a rath-builder who is enslaved to a chief and a
church."
And lastly, (i)+ 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 starvino-
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 property, but also by
their profession and worthiness. It is very natural to speak
* Pa-c 353. t Page 355.
o2
INTRODUCTION.
with contempt of cowards, fools, mountebanks, &c., but no
one can contend that these various disreputable characters
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 having commenced
with the following: "Tramps, housebreakers, acrobats,
idiots, henpecked husbands, cashiered officers, insolvents,
&c." finally concluded with the " bishops, earls, marquises,
dukes, the Lord Chancellor, and the Queen," we should
understand that 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^ 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 after 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 divided. If we refer to the table in
page cxcvii 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 respectability not
legal ranks grades of respectability which gave those who
possessed them substantial 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 nobles are as follows: (a)*
the " aire-fine" the head of a "fine " (probably, as before sug-
Page 34!>.
INTRODUCTION. CCX111
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.
(&)* The " idhna"-person, who has a number of sons who are
born to him, and of male relatives (or brethren) to the number
of thirty champions. He is entitled to free li ving of five from
his "fine." 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 the "fine," so numerous that
the household allotment being 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
ea rly stages of society.
(c.) The " ansruth"*-person is described as one " who
protects his mansion and his land. He is allowed (lit.
For him is) the wounding a person in each term of
the year. He has no fewer than twenty (attendants)
in an extern territory. He lias 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 support 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 easily identified with the " aire-echta"
of the Crith Gabhlach.f
* Page 349.
f The position of the champion or defender of a territory is well illustrated by the
following passage of the Tain Bo Chnailgne :
"Cuchulainn then asked his charioteer where the great road which passed
Emania led to, and he answered that it led to Ath na Fvraire (i.e. the Ford of Watch-
ing) at Aliabh Fuaid (a well-known mountain lying at the south of ancient Emania,
CCX1V INTRODUCTION.
(d) The " dae"-person* is described as one " who for
another goes to fight his battle, when he has no help of
his family." The position of this person is determined
by his relation with neither the family nor tribe, but
with some third person or persons, whose quarrel 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 of his sol-
diers."^ 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 Ibar, 'there is an Ultoman champion
constantly watching and guarding there, in order that no warriors nor foreigners
should unperceived enter into Ulster, without being challenged bj* him to battle ;
and the champion must answer fur any such challenge on the part of the whole
province.' ' Do you know who is at the ford to-day ? ' said Cuchulainn. ' I do,
indeed ; it is the valiant and victorious Conall Cearnach, the Royal Champion of
Erinn,' said Ibar. 'Well, then,' said Cuchulainn, 'you drive on until we reach
that ford.'" Translated by Mr. O'Curry. " Manners and Customs of the
Aiii-iint Irifh," vol. ii., p. 365.
* Page 349.
t He, whose cause the " dae "-person asserted, can scarcely have been a private
individual, if any system of tribe law whatsoever existed, nor again can we
understand a private individual supplying free feeding to him and his soldiers.
The employer of the "dae "-man and his mercenaries must have been at least a
tribe chief, and the sentence, " when he has not the help of a family," expresses the
independent position towards his tribesmen, which a chief enjoyed who bad
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 men were called
" Lucht Tighe," or Household Troops. The Lucht Tighe of Tadhy O'Kelly, King
of Hi Maine, in Connaeht, and of Ferghal O'Ruairc, King of Breefney, were con-
spicuous at the battle of Clontarf, A.D. 1014. In 1593 Hugh M'Guire, Lord of
Fermanagh, marched to battle with the people of his own territory, and a body of
" Amkuis," 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 names of divers places ; for example, we know that there was
anciently a district in Monaglian called Lucht Tighe mhic Mut/iyumhna, that in,
MacMahon's Household, because it was exclusively drvoted to the maintenance
of the chief's household troops, who thus " were entitled to free fuelling on all
sides." O'Curry. " Mniinm and Cuttnms of the Ancient Irifh." veil, ii., p.
INTRODUCTION. CCXV
The three classes of the (e) " ogflaithem," (/) " lethflaithem,"
and (y) " 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 three old tenants were very little,
if at all, above, in public consideration, the cow-owning
churl, who was rising into the noble class.
It appears 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 " flaith " below the aire-tuisi were
legally 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 numerical
statements. In both lists the bo-aire takes the highest posi-
tion among the non-noble classes ; and the ranks above that
are " flaiths " or noble ; the entire body of the " flaiths " be-
low the rank of the " aire-ard " (or that of aire-echta ?) are
included, according to the scheme 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 classes of the " ogflaithem,"
" lethflaithem," and " flaithem " 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 defined in the Crith Gabhlach, was eleven tenants, and
Page 351. t Page 381. 1. 9.
CCXV1 INTRODUCTION.
he was entitled to feeding for ten couples. It is evident
therefore that many of the " aire-desa " class cannot have
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 continued "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 found it before him, and who accumulates."*
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 termof the lastcentury, which described a very impecu-
nious nobleman, as the seigneur ot a duck pond, the smallest
conceivable amount 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 tract next proceeds to deal with the ranks of the
Page 34 9.
INTRODUCTION. CCXvii
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, because 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 110 practical informa-
tion to be gleaned from them. Upon 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 system 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 ? The dignity of
the Church. What is the highest dignity which is in the
Church ? The dignity of a bishop.
" The highest bishop of these is the Bishop of Peter's
Church, because it is under his subjection the chiefs 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, there is to be
the death of a person for it.
" 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 353.
CCXV111 INTRODUCTION.
law of the church of Peter, and the emperor of the whole
world."
The scheme upon which the cleric are arranged is a
double gradation partly connected with the orders in the
church, and partly in connexion with the religious condition
of the 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 uuchastity, either before or
after his consecration. That charges of this description might be brought against
a bishop, however eminent, appears from the Confession of St. Patrick: "Post
annns triginta invenerunt me, et adversum verbum quod confessus fucram
antequam essem diacouus. Propter anxietatem mesto animo insinuavi amicissimo
meo que in pueritia mea una die gesseram in uno in una hora ; quia nondum
prevalebam nescio, deus seit ; et habebam tune annis quindecem et deum vivum
non credebam, neque ex infantia mea sed in morte et incredulitate mansi donee
valde castigatus sum, et in veritate humiliatus sum a fame et nuditate et cotidie
contra hiberione non sponte pergebam, &c. " National MSS. of Ireland," Vol. II.,
Ap. III.i.
The Brehon lawyers evidently contemplated the case of a bishop falling into sin :
" There are four dignitaries of a territory who may be degraded: a false-judging
king, a ttumbliiiy bishop, a. fraudulent poet, an unworthy chieftain who does not
fulfil his duties. Dire-fine is not due to these " (ante, Vol. I., p. 55). See also the
gloss upon this passage, the meaning of which is clear, although the translation is
questionable. It may be inferred that the sinful and unrepentent bishop suffered
a " diminutio capitis," as did the king when engaged in servile occupations.
INTRODUCTION. CCX1X
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 orders, 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." " As 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
are 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."!
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" ex-
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.:):
* Page 363. f Page 365.
J The doctrine of the early Irish Church of the necessity of blood-shedding as
an expiation for blood is fully set out in the poem of Dublitach Mac ua Lugair,
supposed to have been recited in the presence of St. Patrick, and under the
immediate inspiration of the Holy Ghost:
" The truth of the Lord,
The testimony of the New Law,
Warrant that Xuadti shall die; I decree it.
Divine knowledge, it is known, decides
(To which veneration is due),
CCXX INTRODUCTION.
The following passage is remarkable as a proof of the
religious ideas which existed at the date of the composition
of this treatise :
" There are three kinds of recluses in a church, i.e., a lay
recluse, upon whom a soul-friend pronounces his character
of approval, 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 grade of virginity he is paid fines. He is of equal
' dire '-value with a virgin clerical student; so that there
are seven cumhals for wounding, and he is of equal ' dire '-
fine with him in every dignity besides, and shedding of
blood, and white blow.
" A la}' recluse upon he pronounces his character, who
does not 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 death."
"There was in the First Law of the men of Erin
That which God has not vouchsaved in His New Law.
The Trinity did not vouchsafe mercy,
Through heavenly strength to save Adam,
For it was perpetual existence
God gave him of His mercy,
Until otherwise he merited
By deserving death.
Let every one who kills a human being;
Even the king who seeks a wreath with his hosts,
Who inflicts red wounds intentionally,
Of which any person dies;
Every powerless insignificant person,
Or noblest of the learned ;
Yea, every living person who inflicts death,
Whose misdeeds are judged, shall suffer 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 every one who kills.
Kuada 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 heaven. What was agreed upon
by the men of Erin was, that every one should be gieen up for his crime, that sin
ini-jht not otherwi.-c increase in the island.' Ante, Vol. III., pp. 1 1-13 & xx_xxiv.
INTRODUCTION. CCXX1
" Another lay recluse is he who puts bounds to his passions,
and who goes to the clergy this day, upon whom a soul-friend
does 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 Martin 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 by 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 indications point to the transi-
tional and obscure state of the Celtic Church after the break-
ing up of the Columban monastic system, and before its
complete reorganization under continental influence, to the
latest period of the existence of the Culdees, a remarkable
era in Celtic ecclesiastical history, which has been lately
* Page 367.
CCXX11 INTRODUCTION.
fully dealt with, so far as the scanty existing materials
permit, by Mr. 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 hia
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 valuable
from an historical point of view, cannot be considered as a
practical statement of existing law, but rather as a covert
* " Celtic Scotland," vol. 2, chap. vi. and ix.
INTRODUCTION. CCXX111
attempt to introduce legal innovations in favour of the
Church ; the residue, which treats of the classes of the tribe,
is most valuable in every respect, although in dealing with
it, and discussing the principle 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 extracts 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 abbot,* 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 375. f Vol. 3, page 79.
CCXX1V INTRODUCTION.
composition, this work is unsatisfactory 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 diminutio 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 no king,' i.e., as to tenants
and kine."t
'No unproductive person merits a share with the Feini,'
i.e., the person who is barren, without property, without
worthiness, does not merit a noble share of ' smacht '-fines
or sick attendance, according to the ' Fenechus '-law."J
' Let no wandering men pass judgment,' i.e., there shall
' e no honor-price for the person who is wandering about
without property.":}:
" The inferior man with property is put into the land, or
the chieftainship."
Other extracts accoi-d more permanency to the status of
a noble when once established. 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 bad 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 estiblished 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. + Page 381.
t Page 387. P gP 3S3.
INTRODUCTION. CCXXV
greater monasteries, and even to inferior but profitable
offices.*
" In the monastery of Lnsk, in the list of the abbots, between the years 731
and 927, we find that the second and third abbots were brothers, and sons of the
first abbot named in it ; that the fourth abbot and the prior were brothers ; that
the son of the second abbot was ' 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 Bishop of Duleek and Lusk were brothers, and sons
of the eighth abbot. Again, in the monastery of Gleann Dissean, near Carlow,
we find, between 874 and 1016, the names of eight abbots and one Aircinnech, or
Erenagh. Of these, 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 second, while his son was Aircinnech, or Erenagh ; the seventh abbot was son
of the fourth, and the eighth grandson of the second. Here 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 hereditary from 779, when the
death of Cearnach, son of Suibhne, 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 anchorite 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 celebrated monastery 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 the same place, and from him descended a
family who filled many offices connected with Clonmacnois, and among them we
find that even anchorites married, and were succeeded by sons. The family were
called the duel Torbaeyh. Their connexion with Clonmacnois began with his
son Aedhagan, who died on his pilgrimage at Clonmacnois in 834 ; and his son
Eoghan, the anchorite, who died in 845. Eoghan's son, Luchairen, scribe and
anchorite at Clonmacnois, died in 8G3 j and in 893 his son, Egertach, the Aircin-
nech, or Erenach of Eaglais-Beg, or the little church of Clonmacnois, died. In
947, the son of the latter, Aenagan Erenach, of the little church, and bishop and
pure virgin that is, unmarried died; and in 953 his brother, Dunadhach,
bishop of Clonmacnois, whose son, Duncliadh, Ferleiy/iinn, or lector of Clonmac-
nois, and its anchorite, aftenvards head of its rule and history, died in 1005. He
was father of Joseph, who was anmchara, soul-friend or confessor of Clonmacnois.
Joseph's son was Conn na-mbocht, or of the poor, who appears in the " Annals of
the Four Masters," in 1031, as " Head of the Celt De, and anchorite of Clon-
macnois, and who invited a party of the poor of Cluain at Isael Chiaran, and
who presented twenty cows of his own to it. And Conn ws father of Maol-
chiarain, Coarb of Ciaran, or abbot of ClonmacnoU. It is unnecessary to follow
this further ; but it is obvious how prevalent at this time in Ireland was the
marriage of the clergy of all classes, and the perpetuation 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 rule of the Cele De in this respect.
In Scotland we find that the territory of the old monasteries was called Abdaine,
or Abbacy, a word represented in Latin by Abbatia or Abthimia, and had, to a
great extent, passed into the hands of laymen, who often retained for several
P
CCXXvi INTRODUCTION.
The most important extracts here contained have refer-
ence to the rule of three descents, before referred to, which
determined the status of an individual with reference to
that of his father and grandfather, 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."
generations the name of abbot. Tbe territory termed the Abthauia of Dull,
which was of great extent, and included th modern parishes of Dull and Fortin-
gall, seems to have been in the hands of Crinan, the lay abbot of Dunkeld, and,
along with the possessions of the latter abbacy, must have placed him on a par
as to power and position with the great Mormaers of Albau." Skene :
Scotland, Vol. II., p. 341.
The causes and the results of the marriage of clerics in Ireland and Scotland
is thus stated by Mr. Skene:
" In the early Monastic Church of Ireland celibacy was enforced upon at least
one class of the monks, for the saints of the second order refused the services of
women, separating them from the monasteries; but still there was a succession to
the abbacy, the tribe or family in whom it was vested providing a fit person in
Orders to fill the office ; but wheu the stringency of the monastic rule was broken
in upon, under the influence of the secular clergy, marriage was gradually per-
mitted and connived at, and at length became general, the rebound toward a
secular state being great in proportion to the enforced strictness of the previous
system. The natural consequence was that a direct descent from the ecclesiasti-
,.;,! penora themselves 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 privileges and emoluments of the
abbacy. The performance of the Church service was cither intrusted to a secular
priest, who was called the ' sacerdos,' or sagart, or it fell to the Cele DC, when
there was such a body connected with the monastery, or to both combined. The
great ecclesiastical offices thus became hereditary in the persons of laymen in two
wavs 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
celibacy was enforced 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
unlawful. It was not until the second great Council of Lateran, held in that
year, declared all such marriages ipsa facto null and void that they became so ;
and 'the effect of this, where the ben-tic.! had become hereditary in a particular
family, was, instead of restoring the former clerical character of its possessor, to
stereotype their condition of laymen, and to convert them into a purely lay
family." "Celtic Sco/lait'1," vol. ii., P- :
* Page 37'.'.
INTRODUCTION. CCXXvii
" They were once noble, i.e., unless his father and grand-
father were chiefs, though he may be of the same race ; as
to his origin, his chieftainship is lost to him."*
" ' In Avhich 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
father or grandfather was not a chief."*
" Question. What is the ' ansruth '-poet ? His father
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 extracts clearly prove the rule before referred 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 form, 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 fell into a lower grade.
But if a person acquired double the amount necessary to
qualify him for a higher grade, he became a fully recognised
member of that grade irrespective of descent. This explains
the rule 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 m 
