The Brehon Law was vehemently condemned by English writers ; and in several acts of parliament it was made treason for the English settlers to use it. But these testimonies are to be received with much reserve as coming from prejudiced and interested parties. We have good reason to believe that the Brehon Law was very well suited to the society in which, and from which, it grew up. This view is confirmed by the well-known fact that when the English settlers living outside the Pale adopted the Irish manners and customs, they all, both high and low, abandoned their own law and adopted the Brehon Code, to which they became quite as much attached as the Irish themselves.

4. Structure of Society

Five main Classes of People

The lay people were divided into classes, from the king down to the slave, and the Brehon Law took cognisance of all - setting forth their rights, duties, and privileges. The leading, though not the sole, qualification to confer rank was property; the rank being, roughly speaking, in proportion to the amount. Under certain conditions, persons could pass from one class to the next above, always provided their character was unimpeachable.

There were five main classes of people -

1. Kings of several grades, from the king of the tuath or cantred up to the king of Ireland:

2. Nobles, which class indeed included kings:

3. Non-noble Freemen with property:

4. Non-noble Freemen without property, or with some, but not sufficient to place them among the class next above :

5. The non-free clauses.

The first three - Kings, Nobles, non-noble Freemen with property-were the privileged classes ; a person belonging to these was an aire [arra] or chief. Kings have been treated of in chapter ii.

Flaiths or Nobles

The Nobles were those who had land as their own property, for which they did not pay rent : they were the owners of the soil - the aristocracy. An aire of this class was called a Flaith [flah], i.e. a noble, a chief, a prince. There were several ranks of nobles, the rank depending chiefly on the amount of landed property.

Non-noble Freemen with Property

A person belonging to the other class of aire - a non-noble rent-paying freeman with property (No.3, above) - had no land of his own, his property consisting of cattle and other movable goods; hence he was called a Bó-aire, i.e. a ' cow-chief' (bó, 'a cow'). He should rent a certain amount of land, and possess a certain amount of property in cattle and other goods, to entitle him to rank as an aire. As in the case of the nobles, there were several classes of bo-aires, ranking according to their property. If a person belonging to the highest class of bo-aires could prove that he had twice as much property as was required for the lowest rank of noble, and complied with certain other conditions and formalities, and also provided his father and grandfather had been aires who owned land, he was himself entitled to take rank as a noble of the lowest rank.

The three preceding main classes-kings, nobles, and bo-aires - were all aires, chiefs, or privileged people : the first two being flaiths or noble aires, the third, non-noble aires, i.e. free tenants, with property sufficient to entitle them to the position of aire. All three had some part in the government of the country and in the administration of the law, as kings, tanists, nobles, military chiefs, magistrates, and persons otherwise in authority; and they commonly wore a flesc or bracelet on the arm as a mark of their dignity.

Non-noble Freemen without Property

The next class - the fourth - the freemen with little or with no property, were céiles [kailas] or free tenants. They differed from the bo-aires only in not being rich enough to rank as aires or chiefs ; for the bo-aires were themselves céiles or rent-payers; and accordingly a man of the fourth class could become a bo-aire if he accumulated property enough: the amount being laid down in the Brehon Law. These céiles or tenants, or free rent-payers - corresponding with the old English ceorls - or churls- formed the great body of the farming class. They were called aithech [ah'-egh], i.e. 'plebeian,' 'farmer,' 'peasant,' -to distinguish them from the aires or chieftain grades: and the term féine or féne [faine], which means much the same as aitech, was also applied to them.

The land held by the féine or free tenants was either a part of the tribe-land, or was the private property of some flaith or noble, from whom they rented it. Everywhere in the literature, especially in the laws, the féine or free farming classes are spoken of as a most important part of the community - as the foundation of society, and as the ultimate source of law and authority.

Tradesmen formed another very important class of freemen. The greater number belonged to the fourth class - freemen without property. Some crafts were ‘noble' or privileged, of which the members enjoyed advantages and privileges beyond those of other trades: and some high-class craftsmen belonged to the class aire or chief.

The Non-free Classes

So far we have treated of freemen, that is those who enjoyed all the rights of the tribe, of which the most important was the right to the use of a portion of the tribe-land and commons We now come to treat of the non-free classes. The term 'non-free' does not necessarily mean that they were slaves. The non-free people were those who had not the full rights of the free people of the tribe. They had no claim to any part of the tribe-land, though they were permitted, under strict conditions, to till little plots for mere subsistence. This was by far the most serious of their disabilities. Their standing varied, some being absolute slaves, some little removed from slavery, and others far above it. That slavery pure and simple existed in Ireland in early times we know from the law-books as well as from history; and that it continued to a comparatively late period is proved by the testimony of Giraldus Cambrensis - twelfth century-who relates that it was a common custom among the English to sell their children and other relatives to the Irish for slaves - Bristol being the great mart for the trade. From this, as well as from our own records, we see that some slaves were imported. But the greater number were native Irish, who, from various causes had lost their liberty and had been reduced to a state of slavery.

Groups of Society

The people were formed into groups of various sizes, from the family upwards. The Family was the group consisting of the living parents and all their descendants. The Sept was a larger group, descended from common parents long since dead: but this is an imported word, brought into use in comparatively late times. All the members of a sept were nearly related, and in later times bore the same surname. The Clan or house was still larger. Clann means 'children,' and the word therefore implied descent from one ancestor. The word fine [finna] usually meant a group of persons related by blood within certain degrees of consanguinity, all residing in the same neighbourhood; but it was often applied in a much wider sense. The Tribe (tuath) was made up of several septs, clans, or houses, and usually claimed, like the subordinate groups, to be descended from a common ancestor. The adoption of strangers-sometimes individuals, sometimes whole groups - into the family or clan was common; but it required the consent of the fine or circle of near relations - formally given at a court meeting. From all this it will be seen that in every tribe there was much admixture; and the theory of common descent from one ancestor became a fiction, except for the leading families, who kept a careful record of their genealogy.

5. The Laws relating to Land

Land originally common Property

It would appear that originally - in prehistoric times - the land was all common property, belonging to the tribe, not to individuals, and chief and people were liable to be called on to give up their portions for a new distribution. But as time went on, this custom was gradually broken in upon ; and the lands held by some, after long possession, came to be looked upon as private property. As far back as our records go, there was some private ownership in land.

Five ways of holding Land

Within historic times the following were the rules of land tenure, as set forth chiefly in the Brehon Laws, and also in some important points by early English writers. The tribe (or aggregate or tribes), under the rule of one king or chief held permanently a definite district of the country. The tribe was divided, as already described, into smaller groups-clans or septs - each of which, being governed by a sub-chief under the chief of the tribe, was a sort of miniature of the whole tribe ; and each clan was permanently settled down on a separate portion of the land, which was considered as their separate property, and which was not interfered with by any other clans or septs of the tribe. The land was held by individuals in some one of five different ways.

1. The chief, whether of tribe or of the sept, had a portion as mensal land, for life or for as long as he remained chief.

2. Another portion was held as private property by persons who had come, in various ways, to own the land.

3. Persons held, as tenants, portions of the lands belonging to those who owned it as private property, or portions of the mensal land of the chief - much like tenants of the present day: these paid what was equivalent to rent - always in kind. The term was commonly seven years, and they might sublet to under-tenants.

4. The rest of the arable land, which was called the Tribe-land - equivalent to the folc or folk land of England - forming by far the largest part of the territory, belonged to the people in general, the several subdivisions of it to the several septs, no part being private property. This was occupied by the free members of the sept, who were owners for the time being, each of his own farm. Every free man had a right to his share - a right never questioned. Those who occupied the tribe-land did not hold for any fixed term, for the land of the sept was liable to gavelkind (below) or redistribution from time to time - once every three or four years. Yet they were not tenants at will, for they could not be disturbed till the time of gavelling; even then each man kept his crops and got compensation for unexhausted improvements; and although he gave up one farm, he always got another.

5. The non-arable or waste land - mountain, forest, bog, etc.-was Commons-land. This was not appropriated by individuals; but every free man had a right to use it for grazing, for procuring fuel, or for the chase. There was no need of subdividing the commons by fences, for the cattle of all grazed over it without distinction. This custom still exists in many places all through Ireland.

The portion of territory occupied by each clan or sept commonly included land held in all the five ways here described. It should be observed that the individuals and families who owned land as private property were comparatively few, and their possessions were not extensive: the great bulk of both people and land fell under the conditions of tenure described under the Fourth and Fifth headings.

Tenants: their Payments and Subsidies

Every tribesman had to pay to his chief certain subsidies according to his means. Those who held portion of the tribe-land, and who used the commons-land for grazing or other purposes, paid these subsidies of course; but beyond this they had no rent to pay to any individual for land held or used under headings four and five described above.

The tribesman who placed himself under the protection of a chief, and who held land, whether it was the private property of the lessor or a part of the general tribe-land, was, as already explained, a Céile [cail'eh] or tenant; also called féine and aithech, i.e. a plebeian, farmer, or rent-payer. But a man who takes land must have stock - cows and sheep for the pasture-land, horses or oxen to carry on the work of tillage. A small proportion of the ceiles had stock of their own, but the great majority had not. Where the tenant needed stock it was the custom for the chief to give him as much as he wanted at certain rates of payment. This custom of giving and taking stock on hire was universal in Ireland, and was regulated in great detail by the Brehon Law.

Every tenant and every tradesman had to give his chief a yearly or half-yearly tribute, chiefly food supplies - cows, pigs, corn, bacon, butter, honey, malt for making ale, etc.- the amount chiefly depending on the quantity of land he held and on the amount of stock he hired. Some tenants were obliged to give coinmed [coiney], that is to say, the chief was privileged to go with a retinue, for one or more days to the house of the tenant, who was to lodge and feed them for the time. This was an evil custom, liable to great abuse ; and it was afterwards imitated by the Anglo-Norman chiefs, who called it coyne and livery; which they chiefly levied from their own people, the English settlers. They committed great excesses, and their coyne and livery was far worse than the Irish coinmed, so that it came at last to be forbidden by the English law.

There was a numerous class of very poor unfree tenants called fudirs, who were generally in a very wretched condition. They were tenants at will, having no right in their holdings. A fudir was completely at the mercy of his chief, who might turn him off at any time, and who generally rackrented him so as to leave barely enough for subsistence.

The ancient rights of the tenants, i.e. of the ceiles or freemen, were chiefly three - A right to some portion of the arable or tribe-land, and to the use of the commons: a right to pay no more than a fair rent, which, in the absence of express agreement, was adjusted by the Brehon Law: a right to own a house and homestead, and (with certain equitable exceptions) all unexhausted improvements. Among the freemen who held farm land there was no such thing as eviction from house or farm, for there was a universal conviction that the landlord was not the absolute owner, so that all free tenants had what was equivalent to fixity of tenure. If a man failed to pay the subsidy to his chief, or the rent of land held in any way, or the debt due for stock, it was recovered, like any other debt, by the processes described in next section, never by process of eviction.

Descent of Land

In Ireland the land descended in three different ways.

1. as private property.-When a man had land understood to be his own, it would naturally pass to his heirs; or he might if he wished divide it among them during his life - a thing that was sometimes done.

2. The land held by the chief as mensal estate descended, not to his heir, but to the person who succeeded him in the chiefship. This is what is known as descent by Tanistry.

3. by Gavelkind.-When a tenant who held a part of the tribe-land died, his farm did not go to his children: but the whole of the land belonging to the fine or sept was redivided or gavelled among all the male adult members of the sept - including the dead man's adult sons. The domain of the chief, and all land that was private property, were exempt. The redistribution by gavelkind on each occasion extended to the clan or sept - not beyond. Davies complains, with justice, that this custom prevented the tenants from making permanent improvements.

The two customs of Tanistry and Gavelkind formerly prevailed all over Europe, and continued in Russia till a very recent period : and Gavelkind, in a modified form, still exists in Rent. They were abolished and made illegal in Ireland in the reign of James I.; after which land descended to the next heir according to English law.

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