Laws relating to Land
From A Smaller Social History of Ancient Ireland 1906
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CHAPTER IV....continued
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 of tribes), under the rule of one king or chief, held permanently a definite district of the country. The tribe was divided, as already described, into smaller groups—clans or septs—each of which, being governed by a sub-chief under the chief of the tribe, was a sort of miniature of the whole tribe; and each clan was permanently settled down on a separate portion of the land, which was considered as their separate property, and which was not interfered with by any other clans or septs of the tribe. The land was held by individuals in some one of five different ways.
First.—The chief, whether of the tribe or of the sept, had a portion as mensal land, for life or for as long as he remained chief (for which, see p. 22, supra).
Second.—Another portion was held as private property by persons who had come, in various ways, to own the land.
Third.—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.
Fourth.—The rest of the arable land, which was called the Tribe-land—equivalent to the folc or folk land of England—forming by far the largest part of the territory, belonged to the people in general, the several subdivisions of it to the several septs, no part being private property. 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 (page 86, 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 though he gave up one farm, he always got another.
Fifth.—The non-arable or waste land—mountain, forest, bog, &c.—was Commons-land. This was not appropriated by individuals; but every free man had a right to use it for grazing, 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 céiles had stock of their own, but the great majority had not. Where the tenant needed stock it was the custom for the chief to 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, &c.—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 he 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 céiles 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.
First, 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.
Second.—The land held by the chief as mensal estate descended, not to his heir, hut to the person who succeeded him in the chiefship. This is what is known as descent by Tanistry.
Third, by Gavelkind.—When a tenant who held a part of the tribe-land died, his farm did not go to his children: but the whole of the land belonging to the finè 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 Kent. They were abolished and made illegal in Ireland in the reign of James I.; after which land descended to the next heir according to English law.