V.—THE BREHON AGRARIAN CODE

The tracts on the Agrarian Laws and on Social Connections are decidedly the most interesting and instructive parts of the Senchus Mor, and deserve a word of special mention here. The Brehon Land Laws, though now extinct for more than three centuries, still profoundly affect the thoughts and habits of Celtic Ireland, especially in the south and west. The Irish people never took kindly to the Feudal system; it was in direct opposition to all their inherited instincts and most cherished traditions. It is true, indeed, that some few of the old proprietors who still survived, and many of the best of the new landlords, acted rather in accordance with the spirit of the old tenure than the letter of the new; but after all, these were but exceptions. The rule was a strict exaction of all the legal rights deriving from an absolute and unsympathetic ownership of the soil, which was wholly unknown to the Brehon Code. This oppression burned into the souls of the people a bitter and undying hatred of Irish landlordism, which is the real efficient cause of that marvellous uprising against landlordism as an institution which we have witnessed in our own days.

In order to understand the Brehon Land Laws, we must always bear in mind certain fixed principles that were regarded as fundamental laws of all tenure by the Celtic tribes.

(a) There was no such thing recognised as absolute ownership of the land by any individual in his private capacity. The land of the Celtic tribes essentially belonged to the community, although it was held by the various members under varying conditions of tenure. From this principle two important consequences followed—First, upon failure of lawful occupants in any family, the land reverted to the tribe, and was then disposed of by the chieftain as head of the tribe, but in a definite manner fixed by law. Secondly, no member of the tribe could alienate to strangers any portion of the tribe land without the consent of the community.

(b) A second principle to be borne in mind is that the nominal owner, in letting his land, invariably supplied to the tenant the stock necessary to graze and work the farm, getting in return, as rent, a certain fixed annual share of the stock raised on the farm.

This cattle rent, however, seems rather to have been paid for the use of the stock, than for the use of the land. For, every tribesman legally qualified had a right to a share of the soil. His chief difficulty when beginning life was to find the stock to graze and work his land, and this he usually got from the head of the tribe or some of the inferior chieftains, who must, therefore, be regarded rather as great stock-masters than as landlords, in the modern sense of the term. The chieftain, indeed, represented the tribe in all its agrarian operations with its own members and with other tribes, and this of course gave him much power and influence in the sub-division of the land; but still he had no absolute ownership even of his own estate, and was therefore very far, indeed, from being a landlord, in the modern sense of the word.

Even his office of chieftain was not of private and strictly hereditary right. It was partly hereditary and partly elective. The candidates should be of the blood royal of the tribe, but the tribesmen elected the individual who was to succeed, and who as heir apparent was called the tanaist, and as such enjoyed a recognised official position.

There were two principal forms of tenure in ancient Ireland—saer-stock tenure, and daer-stock tenure. The lawyers do not give any formal definitions of these terms in the Senchus. They were writing for persons to whom both these things were perfectly well known from every-day experience, and while the jurists are most minute in their commentaries and glosses on all the various incidents of these tenures, they give us no scientific explanation of the terms. We may, however, gather an explanation of their nature from various incidental references made to the subject.

Saer-stock and daer-stock tenure have been sometimes translated as ‘free’ and ‘base’ or villein tenure respectively, but quite inaccurately. In fact, no terms borrowed from the feudal tenures can adequately describe the Celtic tenures, which were of an essentially different character, as was pointed out above. The main difference between these tenures is very clearly expressed in the commentary. In saer-stock tenure the tenant got stock from his king, or chieftain, and gave no security in return. In this case the tenant was generally a member of one of the ruling families, and as such entitled to this honourable privilege. But he was bound to give to his chief in return a cattle-rent proportionate to the stock received, but only for a certain number of years. He was also bound to give ‘manual labour,’ especially when the chief was building his dun, or gathering his harvest, and to accompany his chief on military expeditions for a certain period each year, if called upon, and, moreover, owed ‘full homage,’ that is personal attendance and dutiful obeisance, which was rendered to the chief in person at certain stated times.

Although this form of tenure appears to have been the more honourable, it was commonly regarded also as the more burdensome, especially on account of the manual labour and homage payable to the chief. It seems, however, to have been compulsory on certain families in the tribe. In some cases only it was optional, that is when the land was held in saer-stock tenure of inferior lords, who had not the same right to compel homage and service as the righ, or king-chief.

The daer-stock tenure was purely optional, and prevailed far more widely amongst the tribes of Celtic Ireland. Under this tenancy the tenant was obliged to give security for the stock received, and he was, moreover, bound to pay yearly a certain food-rent fixed by law and proportionate to the stock received. The original stock, too, was to be returned to the lord at the termination of the tenancy; whereas, under the saer-stock tenure, the original debt was extinguished by an annual payment every year, for seven years, of one-third of the stock which the tenant received when entering on his tenancy.

One of the most interesting features in the laws relating to daer-stock tenure is the penalty which it provides for arbitrary eviction on the one hand, or for desertion of the farm on the other. The tenancy was, it is true, legally a tenancy at will, and might, therefore, be determined by the act of either party. It was provided, however, that if the landlord called back his stock and thus terminated the tenancy, when there was no fault on the tenant’s part, the tenant was then entitled to retain as a fine for disturbance one-third of the returnable stock, and, furthermore, his own ‘honour-price,’ if the landlord treated the tenant with contempt. Neither was he bound to pay any food-rent for that year, so that the landlord was severely fined for any such arbitrary eviction, to which consequently he very rarely had recourse.

On the other hand, if the tenant chose to determine the tenancy against the will of the chief or stock-owner, he was bound to pay back to the chief double the amount of stock which he had originally received, and, moreover, a double food-rent for the last year of the tenancy. Thus, without giving absolute security of tenure, the law made it the interest of both parties to try and get on well together, and thereby protected both without injuring either.

Another admirable provision of the law fined the tenant who was able but unwilling to pay his food-rent or service, by compelling him to pay a double rent, when he was a defaulter, and also a quantity of cattle proportionate to the ‘honour-price’ of his chief or landlord. But, if the tenant failed to pay from causes over which he had no control, he was acquitted of all liability by simply restoring the cattle which he had originally received from the landlord. ‘No one,’ says the text, ‘should be oppressed when in difficulty;’ that is, the gloss adds, ‘one is not to be oppressed about a thing which he is not capable of rendering in his difficulty, that is in his poverty, whether he be chief or tenant.’ The very last provision in this admirable law of daer-stock tenure ordains that ‘if the tenant be indigent, he may repay the value of the seds (or stock) which he received by service according to arbitration, so that there be no fraud.’ How much more wisely did the Brehon Law deal with the land question than any code yet devised by Imperial England.