From The Brehon Laws by Laurence Ginnell, 1894
NITY of ownership in the clan, so long as it existed and so far as it extended, prevented the devolution of property to individuals in the same sense as in English law. Even to a late period a considerable portion of land was not inheritable by individuals, but remained unchangeably the property of the clan as an immortal corporation. To this land, therefore, no rules of devolution applied. Orba, or lands of inheritance, descended in three different ways:—
1. According to the rules of gavelkind. I place this first, not because it was the most important in historical times, but because it was the oldest, was once general, and certainly was the most unlike anything we are now acquainted with. Land held by a man outside his home farm, and which occupied an intermediate position between his private land and the common land of the clan, descended according to the Irish system of gavelkind, that is, on the holder’s death not only the particular land which had been thus held by him, but all the land of the same class belonging to his sept, was divided anew amongst the adult males of the sept. It was an unsettled system. Still it must be admitted that it gave some start in life, however crude, to young men who might otherwise have got none. On such a division of land, the amount of it that each person was entitled to receive was fixed in general theory by the law, subject to adjustment in each particular case by a court of twelve men who took differences of quality and other relevant facts into consideration.
Their decisions do not appear to have been questioned. If they ever were questioned, no doubt an appeal lay to the brehons. Under this peculiar custom of descent women appear to have been excluded. The amount of land subject to the custom constantly diminished, the custom receding, as it were, from good land and extending to land little cultivated. I think the land subject to this custom must have been unfenced, but it is not so stated. It was that portion of the land of the sept over which an individual right of private property had not yet attained maturity, the interest of each holder not being ownership nor quite a life interest. A large proportion of the good land of Ireland must have been rescued from this custom a century or two before the birth of Christ, if it be true as stated that large quantities of corn were grown and exported in those centuries to Britain, Gaul, and Spain, a thing hardly possible if the land had remained unfenced and subject to this unsettled species of gavelkind.
At the time of Caesar’s arrival in Britain the land there was wholly unfenced, except the mounds and fallen timber that encircled the fortresses and clustering hamlets. There was no division into fields, the land being distinguished only as cleared and uncleared in respect of forest, and the people subsisting mainly on meat and milk. But Ireland was more advanced at that time, and (or perhaps because) it was more accessible to and more frequented by merchants from the then enlightened nations of the world, the state of Northern Europe being such that merchants could not cross overland in safety. Some of the good land of Ireland was fenced at a very early date, and the law affecting fences and mearings is old and and yet elaborate. The nature of the fence affected the liability for trespass upon land; hence in dealing with that subject the law describes the fences. There were ditch-and-mound fences, wall fences, stake fences woven with rods and having a blackthorn crest on the top; and some others.
2. As private property. In this case, on the death of the father of a family each member of his Geilfine—usually meaning each son not already provided for—was entitled to an equal share of the land and of the cattle fed upon it; but one of the sons, in addition to his equal share, inherited all the houses and offices constituting the homestead, the valuable fixtures which usually stood upon the same land, and the household, farming and manufacturing implements. Whether this favoured son was the eldest or the youngest is one of the disputed points in connection with that obscure subject the organisation of the fine. The preponderance of opinion at present seems to be in favour of the eldest son, and this is probably correct as applied to the Middle Ages; but I incline to the belief that earlier it was the youngest son who was so favoured. However this may be, as a counterpoise and consideration for the special inheritance, the law held him responsible, as succeeding flaith-fine and stem of the family, for the guardianship of his sisters until their marriage and of any other dependent members of his fine, obliged him to act as plaintiff and defendant as became necessary in all suits at law concerning them or their property; and if he was of proper grade bound him to entertain the king, bishop, bards, brehons, and others with their respective retinues. In the foregoing circumstances all the land went to the sons, and daughters had either to depend on the husbands they got or to be provided for out of the movable property. On the occasion of almost every marriage there was a collection, called a Tinol, made among the relatives and given to the bride. But this can hardly have been a very substantial amount, and it probably corresponded to modern wedding presents.
If daughters were more numerous than sons, and could not be provided for out of the movable property without gross inequality, one or more of their husbands might be admitted to an equal share of the land, and then questions of status would arise as to which of them this should be. If there were no sons, the land, anciently, went to the nearest male members of the fine in the order already described, subject to a provision being made out of it for the daughters. The exclusion of daughters from inheritance seems to us very unfair; but it was no more so then in Ireland than it was many centuries later under the Normans in England. The chief reason for it in the latter case was, that the land was held by military service, which women were incapable of rendering.
The Irish got rid of the anomaly long before the introduction of Christianity, through the exertions, it is said, of Brig Ambui. She is described by some as a lady judge. There were no lady judges. She was the wife of a judge, made use of her position to acquire an exceptional knowledge of law, gave advice to women regarding the taking possession of land which they claimed, and her advice was so skilful that she succeeded in winning, not alone their particular cases for her clients, but legal equality for her sex in general. She was probably assisted by two facts, namely, that military tenures in the Norman sense did not exist in Ireland, and that Irish women were in those times free and liable to bear arms. However it came about, in the Middle Ages in Ireland, if there were no sons the property was divided equally among the daughters. With regard to the further descent of land thus given to daughters, the text says, “As to a mother’s land, her sons shall divide it from the days of her public testament. But the half of it shall revert to the tribe of the original owner of the land; the other half according to true judgments the seed of her flesh divide.”
3. According to the rules of tanistry. In order to secure to kings, chiefs, flaiths, and other public officers who acted on behalf of the community, their ancient affluence permanent and undiminished, with all its attendant advantages, the law held the lands assigned them for their public services to be indivisible. The land held by each descended to his successor, as the property of a corporation does in English law. The successor was usually a near relative, but not necessarily so. Thus while the lands held by ordinary people underwent repeated subdivision as they descended, and the rights and privileges which landed property conferred were similarly subdivided, constantly tending downwards to small patches, few rights, and little power, a position of permanent and disproportionate wealth with its attendant power was secured to the people of rank; and what was apparently a restriction, and was originally intended as such, became in operation a class privilege. And although the flaiths had practically appropriated the official lands to their own families, so far from desiring to free those lands from this rule of descent, they maintained the rule and even extended it to all the lands they could in any way acquire.