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- the four nearest farms, i,e, where the food is. If this dis-
tribution of it oveiy year shall bo deemed tiresome, each

^ nearest farm takes a swarm."

This passage affords us a means of understanding the

• \ . ♦PageioS.

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manner in which theso Brehon tracts are composecL 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

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 be 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 were
fixed; secondly, trespasses outside of the house in thegarden,
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 dog
naturally involves responsibility for its acts, but the dog
trespass, which particularly attracts the notice of the author
of the original tract is that involved in his depositing his
ordure on the land of an adjoining owner. The commentator
remarks that there are four trespasses of hounds, viz. roan-
trespass (i.e. trespasses against men), mangling of cattle,


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breaking of dwellings, and committing nuisance on land.
The three former he passes over without notice, and proceeds
to consider the interesting questions which arise under 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 ground) is to be pressed and stamped upon with the
heel, and fine clay of the same nature is to be put there as
compensation. This is the test of reparation; that two
horses of a chariot in yoke come there and graze there, and
if no part of tlie sod of grass stick to their teeth in grazing
on it tlie reparation is complete. And three times the size of
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 tenns, with the exception of "fothla"and"tothla"
trespasses, it is impossible to. explain the distinctions to
which they refer.t

The subject of " man-trespass " is resumed at a subsequent
pagej: and treated of at considerable length and in the
usual manner. The first wrongful act discussed is that of
cutting down trees or imderwood 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 element in the calculation.
The following extract is sufficient to illustrate these rules : —
"For the cutting of trees or stripping them, full 'dire* fine
is paid for each, i.e., a perfect compensation for the portion
of them which is damaged, and five ^seds* as 'dire -fine.

♦ Page 123. f r«go 9». } Tage U7.

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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 'tZire'-fine for each is
different The chieftain trees are oak, hazel, hoUy, aah^
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 day 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 /I716 shall be for it until it is whole.
For cutting the trunk a cow is paid, and five seds are its
' dire '-fijie. A co/pctcA-heifer is the fine for their great arms,
or for their small oaklings ; a 'daiH' 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 /regit). 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 con{ract, 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
fl3diig 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 149. Sec the notes appended to the text as to the mcamng of this
difficult and obscure passage.

% 2

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erection of any of the following buildings, (a) a mill, (6) 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 divLsion 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
sei'vient tenement, and the anxiety of proprietors to prevent
the acquisition by their neighbours of easements by continued
user ; " There is one stay (qxtere, 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 necessai^y 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

Very interesting information is given incidentally in
the commentary on this tract, which proves the existence

♦ Page 167. t Page 145.

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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 theii- portions, aa
far as they meared the lot of the absent man, and his
abandoned lot would lie between them, enabling their 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 fistmily were
unwilliag 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 fiBimily having refused to fulfil his duties on his behalf,
hiB lands are in the possession of his neighbours, he was held
to have a daim upon his family, who by their failure to
perform their duties to him had caused him to be temporarily
left without home or farm. His rights under these circum-
stances agaiost his family are explained in the following
rather obscure passage : — " If the deserter has come /ram out-
side into the terHtory after this, his family shall give him
land diuring the term of the hire (lit. loan), and they shall
obtain the hire, and the part of his farm-buildings which

♦ P«6« 131.

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he may have found on his coming back shall he obtained
by the deserter. If hLj 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 family 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 hiinself 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 lie- 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 tempoi*aiy loss
of his holding. If the word translated " hire " is taken in the
double sense as meaning both allotting," 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 j'^ear; his family shall be
entitled to receive from him the letting value of the land,
and at the end of the year ho shall be entitled to whatever
"improvements" -shall have been made by him on tho
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 efiected
on the land at the end of the year must be purchased by
the family for him.

•Pago 181,

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(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 case
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-

The difficulty in understanding this passage arises specially
from the mode in which the rights of third paifcies are
made apparently to depend upon the dealings between the
owner and liis 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 tlie question as to the
rights to the ''erections" upon the land, and not very
logically proceeds to explain the rules on this subject bb
between landlords and tenants in the modern sense of the
term. From this passage wo 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 giren at page 135.

t The sabsequent commentator seea the difficulty of explaining these rnka and
suggests the f oUowing key to their meaning, tiz : - ** It ia the land of another man
that he has in this case let oat on hire*" (p. 135); that Is, that when the family
procure land from a third ptrty for the use of a <* deserter ** they occupy the
doable position of tenant and landlord*

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that the act in question was the natural result of the
circumstances in which the peraon 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
of the term, the tenant must leave the erections behind

(2). If the tenant determine (surrender) the tenancy for rea-
sonable cause, the value of his erections is 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
anagreement 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 baa been fixed, it shall,
nevei-theless, bo 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-

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trasted with the owner), until the time of bis manure or
dung has been taken out of it"

D. If the letting be for grazing, and " for forming erec-
tions " (with a covenant to erect buildings), the rent is '^ one-
third of every animal on which there is increase ;" but if
for grazing only, eveiy seventh 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
cowSy as many sheep as were considered the equivalent of a

E. If the tenant has agreed not to break up the land, and
has ploughed it in violation of his agreement, the " tillage
and seed " are forfeited, and he pays five '* aeda " as damages;
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 tenants.
Tlie unfree cnstomnrj tenants were very -differently treated.
" The free tributes, as I have heard,

Are they which we have above mentioned ;

Of the noble tribes these are dae,

Who are upon lands external [to the mensal lands].
^ The unfree tribes, — a condition not oppressive,

They are in his [the lLing*s] own lands ;

Servile rent by them, it is 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 best part of them

Run and purple of fine strength.

Bed thread, white wool, I will not conceal It,

Yellow blaan and binnean.
** from th€ tmfree tribes 0/ ignoLU emtntenoMcef

Whofy with the rentjrom the land^ •

Tteice at much is due

Ai they had carried off from their /atherUmdJ*


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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
(he fine for the trespass i 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 ia paid for ite *airlim'-
trespass only, for it is four sacks that are paid^or 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 ' scrcpalls.'t

Those who are desirous to work out questions of this
nature, are referred to the Tmct entitled "Divisions of
Land," contained in tliis volume, in which the measxires of
land 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 principles,
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 maDure, 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. f P*g« ^7.

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utilising his otiherwise valueless lands. This tracts 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 tlie 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 maikifest
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 jurispiiidcnce 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 tp have
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 speciiic 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 BrehonSi but what was the proportion which, in the

Online Librarystatutes Ireland. LawsAncient laws of Ireland .. → online text (page 13 of 60)