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 -
Kings of several grades, from the king of the tuath or cantred up to the king of Ireland:
Nobles, which class indeed included kings:
Non-noble Freemen with property:
Non-noble Freemen without property, or with some, but not sufficient to place them among the class next above :
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
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.
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.
Another portion was held as private property by persons who had come, in various ways, to own the land.
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.
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.
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
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
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
Descent of Land
In Ireland the land descended in three different ways.
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.
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.
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.
6. The Administration of Justice
The Law of Compensation
In very early times, beyond the reach of history, the law of retaliation prevailed, as in most other countries-"
an eye for an eye, a tooth for a tooth "-in other words, every man or every family that was injured might take direct revenge
on the offender. But this being found inconsistent with the peace and well-being of the community - especially in cases of
homicide, which were frequent enough in those days - gradually gave place to the law of compensation, which applied
to every form of injury. In Ireland the process was this -The injured party sued the offender in proper form, and, if the
latter responded, the case was referred to the local brehon, who decided according to law. The penalty always took the form
of a fine to be paid by the offender to the person or family injured, and the brehon's fee was usually paid out of this fine.
Procedure by Distress
If the offender refused to submit the case to the usual tribunal, or if he withheld payment after the case had been decided
against him, or if a man refused to pay a just debt of any kind - in any one of these cases the plaintiff or the creditor
proceeded by Distress; that is to say, he distrained or seized the cattle or other effects of the defendant.
We will suppose the effects to be cattle. There was generally an anad or stay of one or more days on the distress;
that is, the plaintiff went through the form of seizing the cattle, but did not remove them. During the stay the cattle remained
in the possession of the defendant or debtor, no doubt to give him time to make up his mind as to what course to take, viz.
either to pay the debt or to have the case tried before the brehon: but the plaintiff had all the time a claim on them. If
the debt was not paid at the end of the lawful stay, the plaintiff, in the presence of certain witnesses, removed the animals
and put them in a pound, the expense of feeding and tending being paid out of the value of the cattle. If the debtor persisted
in refusing to settle the case, the creditor sold or kept as many of the cattle as paid the debt.
Procedure by Fasting
In some cases before distress was resorted to, a curious custom came into play -the plaintiff "fasted on" the defendant
It was done in this way. The plaintiff, having served due notice, went to the house of the defendant, and, sitting before
the door, remained there without food ; and as long as he remained, the defendant was also obliged to fast. It may be inferred
that the debtor generally yielded before the fast was ended, i.e. either paid the debt or gave a pledge that he would
settle the case. This fasting process - which exists still in India - was regarded with a sort of superstitious awe ; and
it was considered outrageously disgraceful for a defendant not to submit to it. It is pretty evident that the man who refused
to abide by the custom, not only incurred personal danger, but lost all character, and was subject to something like what
we now call a universal boycott, which in those days no man could bear. He had in fact to fly and become a sort of outlaw.
Eric or Compensation Fine
Homicide or bodily injury of any kind was atoned for by a fine called Eric [errick]. The injured person brought the offender
before a brehon, by whom the case was tried and the exact amount of the eric was adjudged. Many modifying circumstances had
to be taken into account - the actual injury, the rank of the parties, the intention of the wrong-doer, the provocation, the
amount of set-off claims, etc. - so that the settlement called for much legal knowledge, tact, and technical skill
on the part of the brehon - quite as much as we expect in a lawyer of the present day.
In case of homicide the family of the victim were entitled to the eric. If the culprit did not pay, or absconded,
leaving no property, his fine or family were liable. If he refused to come before a brehon, or if, after trial, the
eric fine was not paid by him or his family, then he might be lawfully killed. The eric for bodily injury depended, to some
extent, on the "dignity" of the part injured: if it was the forehead, or chin, or any other part of the face, the eric was
greater than if the injured part was covered by raiment. Half the eric for homicide was due for the loss of a leg,
a hand, an eye, or an ear; but in no case was the collective eric for such injuries to exceed the "body-fine " -i.e. the
eric for homicide.
The principle of compensation for murder and for unintentional homicide existed among the Anglo-Saxons, as well as among
the ancient Greeks, Franks, and Germans. In the laws of the English king Athelstan, there is laid down a detailed scale of
prices to be paid in compensation for killing persons of various ranks or society, from an archbishop or duke down to a churl
or farmer; and traces of the custom remained in English law till the early part of the last century.
Modes of Punishment
There was no such thing as a sentence of death passed by a brehon in a court of law, no matter what the crime was: it was
always compensation; and the brehon's business was to determine the amount. Capital punishment was known well enough, however,
and practised, outside the courts of law. Kings claimed the right to put persons to death for certain crimes. Thus we are
told, in the Tripartite Life or St. Patrick, that neither gold nor silver would be accepted from him who lighted a fire before
the lighting or the festival fire of Tara, but he should be put to death; and the death-penalty was inflicted on anyone who,
at a fair-meeting, killed another or raised a serious quarrel. We have seen that if for any cause homicide was not atoned
for by eric, then the criminal's life was forfeit.
Various modes of putting criminals to death were in use in ancient Ireland. Sometimes they were hanged. Sometimes the culprit
was drowned by being flung into water, either tied up in a sack or with a heavy stone round his neck.
Where the death penalty was not inflicted for a crime, various other modes of punishment were resorted to, though never
as the result of a judicial process before a brehon. Blinding as a punishment was very common, not only in Ireland but among
many other nations. A very singular punishment was to send the culprit adrift on the open sea in a boat, without sail, oar,
or rudder; as, for instance, in case of homicide, if it was unintentional. A person of this kind cast on shore belonged to
the owner of the shore until a cuinal was paid for his release.
Courts of Justice
Courts for the trial of legal cases, as well as meetings of representative people to settle local affairs, were often held
in the open - sometimes on green little hills, and sometimes in buildings. There was a gradation of courts, from the lowest
- something like our petty sessions - to the highest, the great national assembly whether at Tara or elsewhere -representing
all Ireland. Over each court a member of the chieftain or privileged classes presided : the rank of the president corresponded
to the rank of the court; and his legal status, duties, powers, and privileges were very strictly defined. The over-king presided
over the National Feis or assembly.
In each court - besides the brehon who sat in judgement - there were one or more professional lawyers, advocates, or pleaders,
called, in Cormac 's Glossary, dálaige [dawlee] and dai who conducted the cases for their clients; and the presiding
brehon judge had to hear the pleadings for both sides before coming to a decision. Whether the court was held in a building
or in the open air, there was a platform of some kind on which the pleader stood while addressing the court.
With regard to evidence, various rules were in force, which may be gathered from detached passages in the laws and general
literature. In order to prove home a matter of fact in a court of justice, at least two witnesses were required. If a man
gave evidence against his wife, the wife was entitled to give evidence in reply; but a man's daughter would not be heard against
him in like circumstances. Any freeman might give evidence against a fudir; but the fudir was not permitted to give evidence
in reply. A king's evidence was good against all other people, with the three exceptions mentioned at page 23. The period
at which a young man could give legal evidence was when he was seventeen years of age, or when he began to grow a beard.
The Irish delighted in judgements delivered in the form of a sententious maxim, or an apt illustration - some illustration
bearing a striking resemblance to the case in question. The jurist who decided a case by the aid of such a parallel was recognised
as gifted with great judicial wisdom, and his judgement often passed into a proverb.
Several judgements of this kind are recorded, of which one is given here. When Cormac mac Art, the rightful heir to the
throne of Ireland, was a boy, he lived at Tara in disguise; for the throne was held by the usurper Mac Con, so that Cormac
dared not reveal his identity. There was at this time living near Tara a female brewy, named Bennaid, whose sheep trespassed
on the royal domain, and ate up the queen's valuable crop of glaisín [glasheen] or woadplants for dyeing. The queen
instituted proceedings for damages; and the question came up for decision before the king, who, after hearing the evidence,
decided that the sheep should be forfeit in payment for the glaisin. "Not so," exclaimed the boy Cormac, who was present,
and who could not restrain his judicial instincts: "the cropping of the sheep should be sufficient for the cropping of the
glaisin - the wool for the woad - for both will grow again." "That is a true judgement," exclaimed all : " and he who
has pronounced it is surely the son of a king "-for kings were supposed to possess a kind of inspiration in giving their decisions.
And so they discovered who Cormac was, and in a short time placed him on the throne, after deposing the usurper.