The Céiles and the Land Laws (2)

From The Brehon Laws by Laurence Ginnell, 1894

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Another modern writer says that the power of disposing of one's own several property was unlimited. He does not state his authority; nor what he means by property; nor whether he means property in land or property in chattels. The power of disposing of property in chattels has in all ages and countries been freer than the power of disposing of land. Property in ancient Ireland appears to have been divided into, not real and personal, but separable and inseparable. The inseparable included all lands and a great deal of chattels, and the separable the remainder of the chattels; and although this division may not have been made specially with reference to the right of disposal, it is pretty safe to assume that that right coincided with it. In many parts of the law, in both text and commentary, there is clear evidence that the individual had not an absolute and unfettered right of entering into important contracts of any kind without the concurrence of others. That being so he could not have an absolute right to sell, which is one of the most important forms of contract at the same time that it is in general an exercise of the right of personal ownership.

If by absolute ownership is meant unlimited and perpetual power of use and disposal, then no such thing as absolute ownership of land existed; and the person called owner was but part owner, part agent, and part trustee for life, with right of enjoyment. The fine or sept occupied the position of principal and cestui que trust. With the concurrence of the fine or sept, the individual could confer an almost absolute title. Without this concurrence he could not. Though the céiles owned, in a sense, the land about their homesteads, and no doubt called it their own, they certainly had not an absolute right either during life or at death to dispose of it to a person outside the clan. Tenure depended on, and was subject to, the tribal status not of the immediate holder alone, but of other members of the fine, who had in the property vested rights of a character and extent defined by the law. Neither the land nor the tenure of it belonged exclusively to the individual, but partly to the fine, contingently to the sept—a wider circle; and though all these had waived or forfeited their rights, or had died, the holder did not thereby acquire a right of absolute disposal, for the paramount rights of the clan itself intervened. And apart from these considerations, and its general repugnancy to the clan organisation, a right of absolute disposal is expressly negatived by distinct passages in the law.

In the Corus Bescna we read, "No person should grant land except such as he himself has purchased, unless by the common consent of the tribe, and that he leaves his share of the common lands to revert to the common possession of the tribe after him." That is a perfectly clear statement. Again we read, "It is one of the duties of the tribe to support every tribesman, and the tribe does this when in its proper condition. The proper duties of one towards his tribe are, that when he has not bought he should not sell; that he does not wound; nor desire to wound or betray." From these two passages it is quite clear that the sale of inherited land was not absolutely free. It by no means follows that the sale of purchased land was wholly free from restriction. Little land was purchased, and clearly the sale of it was freer than the sale of inherited land. Even on the disposal of chattels, such as cattle, there were some restrictions. An owner about to sell them should inform the flaith or chief of his tuath of his intention; and the chief or flaith or any member of the tuath who required the thing about to be sold had a right of pre-emption or first offer.

The ownership of the clan, at first real and positive enough, was becoming vague, indefinite, and scarcely conscious or operative except when the need or the interest of the clan or of a member of the clan was shown to call for its exercise. This most frequently existed and could most easily be shown in connection with land, the most valuable of all property; but it might also be occasionally shown in a sufficiently acute form if an owner of cattle drove them away and sold them to strangers, while the lands of the clan were understocked. And among small farmers who were often joined for purposes of ploughing, to allow one of such partners to sell his draft beasts at a particular time when his own work was done but not that of his partner, would be to allow injustice; and the laws preferred prevention to punishment.

In connection with this question of disposal, it may not be amiss to point out in passing that in many countries in ancient times property in land was transferred only in a court of law, and that in England the alienation of land was not free until two centuries after the Norman Conquest.

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