became merged in that of Leader of the clan, and even the idea of kinship amongst members of the tribe was assimilated to that of a bond of subjection to a common authority, in the further growth of which idea lies the root of the pseudo-clanship of the fuidhir tenants1.

In order to understand the position of the chief with regard to the land it is necessary to appreciate the mode of succession to the chieftaincy—as regulated by the custom of Tanistry. A chief was elected for life by the whole tribe or sept, usually by show of hands, and his successor was in most cases chosen in the same way' during his lifetime. Though this successor (who when elected was termed the 'Tanaist') was nominally supposed to be the next of blood who was eldest and worthiest, it is easy to see how great weight the wishes of the existing ruler would have in regulating the choice of the clan. It is evident that a door was here opened for easy inroad on the corporate ownership of the tribe-land. When the Tanaist was a near relation of the then chief, landed property held by such chief in his private capacity would be likely on his death to be continued to his descendants with a lofty disregard of the customs of Gavelkind. Moreover even if it were appropriated by the Tanaist on his accession to the chieftaincy as being part of the appanage of office, and thus his due by the custom of Tanistry, it would by increasing the vassals and hence the power of the new ruler render further depredation by him from the tribe the more easy. The chief on election became, by virtue of such election, the proprietor of a seigniory over all

1 Post, pp. 9, 17.

2 Field, p. 242.... When the claimant was powerful even the form of election was occasionally dispensed with. It is hard to overrate the power of 'the strong man armed' in troublous times. Strongbow himself is said to have been raised to the post of Roydamna during the lifetime of Dermot MacMurrough and hence to have claimed to succeed

him. Hume says "The usual title of each petty sovereign was the murder of his predecessor.”

3 The Cain. Aigillne A. L. of I. Vol. II. p. 279 says "The head of every tribe...should be the man of the tribe who is the most experienced, the most noble, the most wealthy, the wisest, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and to be sued for losses." The chieftaincy being elective, a power seems also to have rested with the clan, and to have been sometimes exercised, of removing a chief for mal-administra

the lands of the tribe, and his power was greater still over the waste-lands'. From these latter, indeed, more than from inequitable re-allotment of occupied tribe-lands, it is probable that his accession of those allodial' lands was made, which by the facilities they offered for the support of his retainers and servile dependents became the mainstay of his power and the stepping-stone to increased conversion of tribal territory into private property. The very nature of the tribal system fostered this germ of despotism, for recurring once again to the archaic theory of the family community, and endeavouring to realize what was the position of a member who from any cause was expelled from its charmed circle, it is found that becoming a very Ishmael without a social, political, or legal existence no course was open to him but to endeavour to assimilate himself by some means to another kindred association. The only means by which this could be accomplished was by becoming the personal retainer of some chief, who in return for his services would give protection, and by subjection to whose authority he would gain a pseudo-kinship with the members of the tribe. In this way arose the class of Fuidhirs, strangers or fugitives from other tribes; and the tribal chief who extended his aegis over the outcast would in all probability allot for his use a portion of the waste-land of the tribe. Such land, held theoretically at the will of the tribe, but practically from the chief, in return probably for military or agricultural service, soon became looked upon as a portion of the chief's demesnes (if it

tion. See case of Donell O'Garmleay, quoted p. 70, Vol. I. of Ware's Antiquities of Ireland.

1 Whilst dealing with the various causes that broke up the theory of common ownership and established severalty, it must be remembered that on the waste-lands near the border, cultivators of servile status were permitted to squat, and cultivating settlements of tribesmen occasionally took possession thereof; in many of these cases something resembling individual property arose. See on this

subject E. Hist. of Inst. p. 93.

2 It is surely justifiable to use this term here.

3 As is pointed out by Mr Justice Field, the Senchus Mor' alludes to three rents, a rack rent or extreme rent from one of a strange tribe (the Fuidhir), a fair rent from one of the tribe, the stipulated rent paid alike by him of the tribe and him of a strange tribe. Landholding and the relation of Landlord and Tenant in varions countries. 2nd Ed. p. 240. See also E. Hist. of Inst.

is admissible to use the English manorial term); and the absolute dependence of the fuidhir tenant is well shown by the passages in the Brehon Law1 sanctioning distress from a chief who did not aid his fuidhir against injustice.

In addition to his seigniory over the lands of the tribe, and his more extensive power over the waste-lands of the community, the chief had also certain lands allotted to him in a special way as appurtenant to his state, termed mensal lands, and these descended from chief to chief according to the custom of Tanistry as the appanage of office. In these lands, separated from the common stock to support the dignity of the chieftaincy, is to be traced one of the very earliest signs of the decay of the system of corporate possession by the tribe, and in all probability the lever which opened the door to the earliest instances of separate property. The great power possessed by the chief over the tribe and the unsettled state both of society and law makes it apparent that the lands which were given as an attribute of the chieftaincy as to a corporation sole would be very liable to be retained by the nearest relatives of the chieftain in private ownership on his death.

By the time of the Brehon Laws the power of the chief had so increased over certain members of the tribe as to reduce them to a position of dependence3 by the development of Saer and Daer tenancy, with the result that the lands originally occupied by them in ordinary common ownership with the rest of the clan had come to be held in many cases at what is equivalent to a rent. To properly understand the growth of these tenancies it is necessary to bear in mind that despite any amount of ultimate possession or control which was exercised over the land by the head of the clan, the germ of his power lay in the possession of cattle. These, the natural spoil of war to the conquering chief, were in the early agricultural community of more intrinsic value than land, of which there was at first a surplusage'; and it is in a great measure to the power

1 Sen. Mor (A. L. of I. Vol. 1. pp. 125 and 139).

2 E. Hist. of Inst. p. 92.

3 Much as the Patrician obtained power over the Plebeian debtor. Land

System of Ireland, Law Quarterly Review, 1887, pp. 135 and 136. O'Connor Morris.

4 One is struck instantly in the Brehon Law, with the immense import

over a tribesman acquired by the chief to whom he was indebted for a loan of cattle, that the origin of the idea of rent for the soil may be traced'.

Saer and Daer stock tenancies are the names given to the relation subsisting between chief and tribesman, when a loan of cattle has been advanced by the former to the latter; the difference between Saer and Daer tenancy resting in the fact that in the first where only a portion of the tenant's stock is provided by the chief the tenant debtor remains a freeman, in the latter where all the stock is found he becomes a villanus2 or at any rate is in a semi-servile state. Such loans, probably one of the most formidable agencies in increasing the power of the chief, were it would appear largely imposed upon those who being tribesmen were obliged to receive the charge from their head3, and were always resorted to by those whose poverty prevented the acquisition of cattle (that is of the means of tillage) by independent means. The complicated rules of these tenancies will be referred to later on when the enactments of the Brehon Law will be more fully dealt with. Here they are only important in so far as they represent another factor in the influences breaking down the theory of common ownership of the soil by the clan, and laying the foundation of ownership of land held from a chief. The inroad made by these tenancies upon the original theory of tribal constitution becomes far more apparent when it is found that they were not confined to chief and tribesmen of one clan, but might be created between

ance attached to the possession of cattle.

1 Sir H. Maine held that the rent payable in the produce of the stock and refections ultimately became a rent payable in respect of the land. The stock lent was termed 'Taurcreic' and the food rent 'Besa,' see E. Hist. of Inst. p. 160, and Skene Vol. III. p. 146.

2 Field, pp. 241–242.

3 Prof. Sullivan quotes the following enactment of the Brehon Law. "It is competent for a man never to accept

base wages from any man unless it be his own will to do so, and it is competent for him not to accept Saerrath (free wages) from anyone but from a king, but he is not entitled to refuse the free wages of his king. Every man in the Tuath is bound to receive the wages of the Rig Tuatha (king of the territory)," and says "Theoretically speaking no freeman need become the dependent of another save the king of his territory, but the condition of dependence was imposed upon him by the circumstances of his position."

members of different clans; the tribesman of one becoming the Daer-stock tenant of another. The social connection between the chief and his tenants is stated in the Senchus Mor1 to be "That he (the chief) is to give them stock and returnable 'seds,' and to protect them against every injustice that he is able, and they are to render him victuals and labour, and respect, and to return the 'seds' to his heir, or for his heir where it is right (to do so). The chief has (power to pronounce) judgment, and proof, and witness, upon his Daer-stock tenants; but his Saer-stock tenants can oppose them, and bear witness against his tenants if they be impartial witnesses." These Saer and Daer tenancies are also important in their bearing on the modifications of the land system, for their tendency was undoubtedly to reduce the debtor to vassalage; and in this fact probably lies the explanation of the origin of many of the complicated servile groups with which we are confronted in the Brehon Laws and in all early Irish history2.

The theory of common ownership recognized no right of alienation by the individual of his share of the tribe-land", and even in the Brehon Laws this doctrine holds, "every tribesman is able to keep his tribe-land, he is not to sell it, or alienate it, or conceal it, or give it to pay for crimes or contracts". The original universality of the rule was, however, infringed by exceptions and in certain cases a portion at least of his tribeland might be alienated by the tribesman by grant, contract, or bequest. As regards the property which his own effort had acquired, a larger power of alienation was possessed by the tribesman than he had over that obtained by allotment. Again in the Corus Bescna a still further distinction is drawn between the property which a man has acquired by special industry and that which is merely the produce of the land in the ordinary course of husbandry, the former being regarded as more

1 Ancient Laws of Ireland, Vol. II.

p. 345.

2 "It is by taking stock that the free Irish tribesman becomes the Ceile or Kyle, the vassal or man of his chief, owing him not only rent but service and homage. The exact effects of

'commendation' are thus produced." E. Hist. of Inst. p. 158.

3 Save by consent of the community.

4 A. L. of I. Vol. 11. p. 283, and see E. Hist. of Inst. p. 108.