The Brehon Law

by
Michael Ragan
© 1999

Part 1; Origins
Part 2; Law texts
Part 3; Clan and
social classes
Part 4; Women's Rights
Part 5; Professionals
Part 6; Land ownership
and use
Part 7; Property
Part 8; Legal tender
Part 9; Contracts
Part 10; Distraints
and fasting
Part 11; Summation
and appendix
Part 12; Glossary

t the beginning of the Iron Age, all land was common property. As such it belonged to the tribe rather than an individual. As common property, it could be re-apportioned to meet changing requirements of the tribal members. As time passed however, the custom of common property began to slowly erode. Lands held by some families remained in their hands for such extended periods, they began to be considered as private property. Still, very little of Ireland was held as private property until the incursions of the Vikings in the 9th century and the Invasions of the Normans in the 12th century began to bring considerable change to Irish law and custom including female disenfranchisement and land-holding laws.
The earliest records of land tenure, are generally written by English hands. Therefor, some lack of understanding can be expected. For example, a Chief or Rí may have held a particular section of land by custom. To the English mind, possession was the greater part of law. Thus, the recorder may have assumed title when in fact, the land could have been reassigned by majority vote of Clan members. The land held by a tribe or clan was divided into holdings by the smaller groups (family and sept) in a more-or-less permanent arrangement. Each smaller group's holdings were considered separate and was not interfered with by any other group of the tribe. Land held by an individual was under one of five arrangements.

1. The Tribe or Clan chief held a portion of mensal land for as long as he or she held office. In this case, mensal land means property set aside to support the additional responsibilities of rulership.

2. The portion of land held by the individual clan member or tuath.
3. A portion of individual clan member holdings assigned to a tenant. Such assignments were usually under a seven-year contract and could be sub-let to another tenant. However, the original tenant retained responsibility to the original holder. Fees were paid for such tenancy were usually in cattle, hogs and/or a share of crops grown.
4. The larger part of arable tribal territory was held in general trust. It belonged to the people in general and was normally allotted into sub-divisions for the various septs and families. None of this was considered "private property," but was occupied by free members of the sept on more or less permanent basis. Every freeman had a right to a share. Land so held was not assigned for a fixed term, as it remained liable to occasional reassignment, usually every three or four years. It was also subject to gabhalaichean (Anglicized to gavelkind), a method whereby land held by a deceased tenant was redistributed. While these provisions may seem rather tenuous, individual rights were guaranteed. An individual could not be removed from his holdings until time of gaveling. Even then, each individual kept his crops and was compensated for unexhausted improvements. While the person might lose one farm, it was always replaced by another.
5. Non-arable or wastelands, such as bog, forest or mountain, was considered common land. It was not appropriated by individuals, but was available to all free citizens for grazing, hunting, procuring food and firewood etc. There was no need or desire to subdivide or fence the common land. All cattle grazed at will without distinction.
Tenant Subsidies and Payment
Every Tribesman was required to pay subsidies to the Chief according to individual means. Those who held tribe land and used commons-land for grazing paid such subsidies. However, this was not considered land rent. A tribesman under the protection of a chief and used commons-land was called Ceíle. Some Ceíle had stock of their own, but most did not. Those that did not own stock could receive such stock from the chief, Nemedh or Aíre at a designated rate of payment. This custom of receiving and taking stock on hire was universal in Ireland and regulated in great detail by the Law.
Each tenant and tradesman was required to give the chief an annual or semi-annual tribute. Generally, this was in the form of foodstuffs such as cows, pigs, grain, honey, butter, etc. Tribute could also take the form of payment in goods produced by an artificer or craftsman in various form including weapons, ornaments, cloth and clothing, plates, or even services such as that of a master builder. Some tenants were required to give coinmed, that is the chief was privileged to travel with a retinue for one or more days to the house of the tenant, who was required to house and feed them for their stay. This system was copied by the Norman invaders, but great abuse of the system eventually resulted in prohibition by English Law.
Inheritance of Land
Land passed from one person to the next in three ways.
1. Privately held property was divided among the heirs at the holder's death or could be divided among them during life. The latter custom was often done, especially when the holder became aged. Generally, the land was divided so that the youngest heir held the original home-place and became responsible for care of the aging parents.
2. Land held as a mensal estate passed to the person succeeding as Chief and not to the heirs. This system is known as Tanistry.

3. When a land-holding tenant died, the farm did not go to the heirs. Rather, it was redivided or gaveled among all landholders of the sept, including the heirs of the deceased. Land excluded from this procedure were that held by the chief and privately held lands.