William Ernest Montgomery.

The history of land tenure in Ireland [electronic resource] : being the Yorke prize essay of the University of Cambridge for the year 1888 online

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Online LibraryWilliam Ernest MontgomeryThe history of land tenure in Ireland [electronic resource] : being the Yorke prize essay of the University of Cambridge for the year 1888 → online text (page 1 of 22)
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THE Yorke Prize was founded, under the sanction of the
Court of Chancery, from the bequest of Edmund Yorke,
M.A., late Fellow of St Catharine's College, Cambridge. It is
awarded annually to such graduate of the University, of not
more than seven years' standing from his first degree, as shall
be the author of the best essay upon some subject relative to
" The Law of Property, its Principles and History in various
Ages and Countries." The subject announced for the year
1888 was " The History of Land Tenure in Ireland," and the
following pages owe their existence to the conditions of the
Prize which direct that the successful Essay shall be printed
and published.

The immense range of an adequate history of Irish land
tenure is manifest, and the present slight sketch can of
necessity give but an outline of this involved subject. I
may, however, briefly point out a few of the most prominent
difficulties met with in tracing the troubled history of Irish
land law, and explain the basis upon which the present Essay
has been constructed. In the case of the Brehon Law there is
undoubtedly a large opening for original work, but the initial
difficulty inseparable from an entire dependence on translations,
is enhanced by the complex nature of the Laws themselves.
I have therefore when dealing with this branch of the subject
given full references to the authorities relied on. Passing
from the archaic law to English legislation I have throughout
assumed that the forces of social disunion, which hindered the


working of broad legislative measures, are of more importance
than the multitude of petty and inefFectual experiments with
Irish land law with which the Statute Book is crowded.
Minor enactments have therefore been passed over in order to
examine more fully those of extended scope.

The national, religious, and political bias which has coloured
so much of the literature connected with Ireland creates an
obstacle in the way of an attempt to write an impartial
history of the land law. In addition much of the recent land
legislation is so involved with current politics as to render it
hard to avoid the vexed questions of the day. I have, how-
ever, endeavoured to the best of my ability to write without
prejudice and to carefully eschew present political controversy.


2, The Cloisters,

Pump Court, Temple.




Chap. I. The Agrarian Community of the Irish Celts . 3 — 18

Chap. II. The Brehon Law 19—39

Chap. III. The Colony of the Pale (from Henry II. to

Henry VII.) 40—54

Chap. IV. The Colony of the Pale (from Henry VIL to

James I.) 55 — 64


Chap. V. The substitution of English Tenures and the

era of Protestant Ascendency . . . 65 — 88

Chap. VL The Land and the People . . . . . 89—101

Chap. VIL Ireland from 1800— 1850 102—114


Chap. VIII. Ulster Tenant-Right and the Devon Commission 115 — 123

Chap. IX. Free Trade in Land . . . . . . 124—134

Chap. X. The Act of 1870 135—155

Chap. XL „ 1881 156—171

Chap. XII. Recent Legislation 172 — 181

Table of Statutes cited 182—185

Index 186—191

•' No rule of law dealing with the contracts of owners and hirers of land is in
itself objectively good or bad ; the law which is most advantageous in one
society would, if suddenly introduced into another, seem unjust, and probably
prove mischievous ; the good or evil effects of any law depend upon its being
applicable or inapplicable to the social condition of the society into which it is
introduced." — A. G. Eichey.

" There has in general survived to the Irish farmer, through all vicissitudes,
in despite of the seeming or real veto of the law, in apparent defiance of political
economy, a living tradition of possessory right, such as belonged, in the more
primitive ages of society, to the status of the man who tilled the soil." — Report
of the Bessborougfi Commission.






The Agrarian Community of the Irish Celts.

The genesis of Irish social and political organization is found,
said the late Sir Henry Maine, as in all the Aryan, Semitic,
and Uralian races, to lie in the Family group \ Amongst the
Irish Celts in the earliest times to which modern research
has penetrated, a social organization built upon the actual or
constructive kinship of members of the community, based on
the real or theoretical descent from a common ancestor, can be
traced. Such an organization finds its most perfect type in the
joint family of modern India, (composed of those persons who
would have taken part in the funeral ceremonies of the common
ancestor), and corresponds to the Agnatic family of the Romans^.
To the original conception of an organization of this nature the
idea of individual property in the land is totally foreign; the
rights of the individual being at most merely a more or less
temporary usufruct of the soil by consent of the family group,
the reversion remaining in the community. Peculiar interest,
moreover, attaches to the development of the Irish agrarian
system from the fact that the direct influence of that tremen-
dous legislative engine the Roman Law has been absent^, and
even its indirect influence has been so slight that it may fairly
be treated as unimportant ^ Practically independent of ex-

1 Early History of Institutions, pp. ^ Mr Pearson says, " Ireland ex-
65, 66. It is worthy of note that when piated dearly its independence of the
the first English emigrants settled in Roman dominion, the secret of its long
New England, they distributed them- anarchy being in fact that it was
selves in village communities. Christianized without being civilized."

2 Primitive Property, Emile de La- Hist, of Eng. during Early and Middle
veleye, p. 123. E. Hist, of Inst. pp. Ages, Vol. i. p. 516.

106, 107. ^ Sullivan's Intro, p. 5, Manners and



ternal pressure, primitive Aryan custom developed into a more
advanced stage, and the theory of the family was extended and
modified in the attempt to fit it to the needs of increasing
population \ In the Brehon Laws (which will be more fully
dealt with hereafter) exists a more or less fragmentary collec-
tion of some of the legal theory, if not practice, of this later
stage of growth. It is endeavoured in this chapter to trace
the expansion of the simple family system into the more com-
plicated social organization presented by the Brehon Code ; and
at the same time to mark the gradual development of separate
ownership in the land, which at this later period was already
being evolved from the original conception of corporate posses-

The Irish Celts, when ceasing to be nomad and settling
upon definite areas of land, exercised apparently a social eco-
nomy in which the possession of land may at first be deemed
an accidental feature ; cattle constituting the only property to
the possession of which much importance was attached, and
remaining, even when property in land was held an integral
item of the social system, the standard of value by which other
things were calculated^ It would seem that in the earliest
form of an ascertainable land system the head of the family
group made a yearly or triennial allotment of lands ^ to the
members of the family for the purpose of cultivation, and at the
end of this period a redistribution was made. No right what-
ever was acquired by the allottee to the piece of land thus held

Customs of Ancient Irish, E. O'Curry. forming the Duthaig fine, or the sept

Of the Brehon Law it may also be said in its narrower sense, as found in the

that it was uninfluenced by Roman law, Brehon laws.

despite that certain Roman law max- 2 Celtic Scotland, Vol. iii. c. iv.

ims are incorporated in the text, and Skene.

that a Roman jurisconsult is men- ^ Prof. Sullivan and the writers of
tioned, for these slight touches may be the school who have endeavoured with
• ascribed to contact with Churchmen. but little foundation to magnify the
E. Hist, of Inst. p. 55. civilization of the early Irish Celts,
1 To this modification of the origi- hold that the tribe-land was universally
nal theory of family unity we may held in severalty at the time of the
ascribe the curious division of the Brehon laws, and that these periodical
Irish family into the Geilfine, Deir- allotments extended only to the corn-
fine, larfine, and Indfine, together mon lands.



for a year, he had merely by consent the usufruct thereof for
such time. The tribal group is but an enlarged model of the
family group, the members of the original cluster being repre-
sented by the allied sub-groups. Thus in its full expansion
the tribe or fine^ is found, with a chieftain or king at its head,
formed of an aggregate of groups each a miniature of the larger
tribe, and in their turn composed of other clusters until the
lowest item of the social organization is reached in the family
group or sept'^ Such sept being the unit of a society^ in
which an individual as distinct from a member of a family
group had scarcely in theory a proprietary existence. The
mode of dealing with the land gradually underwent change,
the yearly allotment passed into an allotment for life, the
reversion being in the sept. It should be remembered, however,
that in early times the portions of land allotted to members

^ "The term 'fine' or 'family' is
used to designate all subdivisions of
Irish society, the tribe in its largest
extent, the sept or the sub-tribe,"
Systems of Landliolding ^ C. D. Field,
p. 239.

Sir H. Maine held that the 'fine'
translated ' tribe ' in the Corns Bescna
was the sept. In the Tripartite Life
of St Patrick, where information might
have been hoped for, no direct light is
thrown upon the subject (see Vol. i.
p. clxviii.).

- Mr F. Seebohm says, "A sept
consisted of a number of actual or re-
puted Uood relations bearing the same
family names, and bound together by
other and probably more artificial ties,
such as common liability for the pay-
ment of eric, or blood fines." The
English Village Community^ c. vii.
p. 219. The exact model of the sept
is the joint family of modern India.
It is a corporate, self-supporting unit,
with " a perpetual existence like a so-
ciety in mortmain;" it is "a juristic
person and holds and acquires pro-
perty ;" its continuity depends on the

land occupied by it, " but it is not
merely a land-owning body, it has
live chattels and dead chattels distin-
guished from those of individual tribes-
men. Nor is it purely a cultivating
body, it may follow a professional
calling." Maine, Laveleye, Field.

From surveys of the country as late
as the year 1600, in which the names
of tenants are given, it is evident that
they were blood relations, "with a care-
fully preserved genealogy guarding the
fact of their relationship and conse-
quent position in the tribe. ' ' Seebohm.
" Survey of County Monaghan in 33
Eliz." Inquisitiones Cancellariae Hi-
berniae ii. pp. xxi. and xxiii. and ex-
tract therefrom quoted at p. 216, See-

3 Mr Skene, however, holds that the
tuath or tribe preceded the sept, and
ascribes the origin of the fine or sept,
which is found at the time of the
Brehon Laws, not in any way to a
development of family relations, but
to what may be termed the wealth-
family of the Bo-Aire and his depend-
ents. See Celt. Scot. Vol. iii. p. 171.


of the tribe would form but a comparatively small portion
of the tribal territory, which would be divided into (1) pas-
turage ground held by the tribe in common, (2) unoccupied and
waste lands at first common property but in later times much
trenched upon by the chief, (3) the usufructuary allotments
of arable land\

The mode of succession to land at the time of the Brehon
Laws was the custom of Gavelkind ^ by which on the death
of a member of the sept the portion of land which had been
allotted to him passed back into the general stock and the chief
made a redistribution. It is pointed out by Mr Seebohm that
the clustering of households so frequently met with in the early
Irish surveys, and the runrig^ form of the open field allotments,
were the natural modes of conducting a co-operative and shift-
ing agriculture*. In the ancient Irish law it is clear that
though the tribe is settled on the land, it yet holds, and is in-
fluenced by, ideas derived from the time when kinship and not
property was the bond between its members — this being the
explanation of Gavelkind succession. It is only necessary to
imagine the bonds of kinship further relaxed, and the connec-
tion of each family to the land strengthened till the tempo-
rary allotment to the household has become its actual property,

1 See Skene, Celt. Scot. Vol. iii. p. finny apr^s le mort de chescun terte-
139. nant que avait competent portion de

2 And as regards the chieftain " Ta- terre, assemblait tout le sept, et aiant
nistry," this will be dealt with later. mis touts lour possessions en hotch-
Gavelkind is from gabhail-cine=ac- pot fesait nouvel partition de tout : en
cepted from the tribe. Although ori- quel partition il ne assignait a les fils
ginally upon a death all the lands in de cesty que mourust le portion que
the sept were re-distributed, eventually lour pere avait; mes il allotait al chas-
it would seem that only the lands held cun del sept solonque son antiquity."
by the deceased were so dealt with. Davies' Reports : Le Irish Custome de
(Field.) The custom of Gavelkind was Gavelkind (quoted Laveleye).

thus described by Sir John Davies — ^ Eundale, runrigg or runacre (said
"Issint les terresde nature de gavelkind to be derived from Celtic roinn-diol,
ne fueront partibles enter le prochen i.e. having a share in distribution:
heires males de cesty qui morust sei- Laveleye) ... Similar systems prevailed
sie, mes enter touts les males de son till quite lately in the Scottish High-
sept en cest manner. Le canfinny, ou lands. E. Hist, of Inst. p. 101.
chief del sept, fesait toutes les parti- 4 English Village Community, Sec-
tions per son discretion. Cest can- bohm, p. 230.


to see the basis of the English custom of Gavelkind which is
often erroneously contrasted with the archaic Irish mode of
succession bearing the same name. But though this custom
of Gavelkind (in its large sense) was still at the time of the
Brehon Laws generally accepted as the theory of succession to
land, and the proprietary rights were theoretically vested in the
community, there is evidence to prove that much individual
property actually existed ; so much so indeed that at the end of
the 10th or beginning of the 11th century the Irish people
were in a state of transition from common property to several
ownership, the Brehon writers themselves rather favouring the
theory of private property \

Many causes went to produce this alteration in the nature
and conception of ownership. As a primary factor in causing
the change stands the increase of population, aided by the fact
that in certain instances the temporary occupation of tribe-land
by the individual tended, through the sufferance or consent of
che community, to become permanent^: lasting possession being
probably generated by the scarcity of land rendering a higher
degree of cultivation necessary than the periodical division
every year or every three years would allow, and the extra
labour expended fostering the idea of property I In addition,
a change which took place in the social organization of society,
namely the increase in the power of the chief, had a large
influence in breaking up the archaic theory of communism in
the soil*. The original notion of Father of the community

1 The book of the Dun Cow (Lebor 2 ^_ [jist. of Inst. p. 95.

na Huidre) compiled in the 7th century ^ Prim. Prop. p. 125.

by the Abbot of Clanmacnois, known •* " It may now, however, be laid

to us in an Irish ms. of the year 1100, down without rashness that Property

says " Round the field there was neither in Land, as known to communities of

ditch, hedge, nor stone wall, and the the Aryan race, has had a twofold

land was not divided till came the origin. It has arisen partly from the

period of the sons of Aed Slane (7th disentanglement ofthe individual rights

cent.), but only smooth fields.... It was of the kindred or tribesmen from the

in consequence of the great number of collective rights of the Family or Tribe,

families at this time that divisions and partly from the growth and trans-

and boundaries of the soil were intro- mutation of the sovereignty of the

duced in Ireland." Seebohm, p. 225 Tribal Chief." E. Hist, of Imt. ip. 120.
and Prim. Prop. Laveleye, p. 125.


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 tenants \

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. =^ The Cain. Aigillne A. L. of I. Vol.

- Field, p. 242.... "When the claimant ii. p. 279 says *'The head of every
was powerful even the form of election tribe... should be the man of the tribe
was occasionally dispensed with. It is who is the most experienced, the most
hard to overrate the power of * the noble, the most wealthy, the wisest,
strong man armed ' in troublous times. the most learned, the most truly popu-
Strongbow himself is said to have been lar, the most powerful to oppose, the
raised to the post of Roydamna during most steadfast to sue for profits and
the lifetime of Dermot MacMurrough to be sued for losses." The chief-
and hence to have claimed to succeed taincy being elective, a power seems
him. Hume says " The usual title of also to have rested with the clan, and to
each petty sovereign was the murder have been sometimes exercised, of re-
ef his predecessor." moving 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 in-
equitable re-allotment of occupied tribe-lands, it is probable
that his accession of those allodiaP 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 per-
sonal 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 I Such land, held theo-
retically 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, subject E. Hist, of Inst. p. 93.

quoted p. 70, Vol. ii. of Ware's An- ^ It is surely justifiable to use this

tiquities of Ireland. term here.

1 Whilst dealing with the various ^ ^g jg pointed out by Mr Justice
causes that broke up the theory of Field, the 'Senchus Mor ' alludes to
common ownership and established three rents, a rack rent or extreme rent
severalty, it must be remembered that from one of a strange tribe (the Fuid-
on the waste-lands near the border, hir), a fair rent from one of the tribe,
cultivators of servile status were per- the stipulated rent paid alike by him
mitted to squat, and cultivating set- of the tribe and him of a strange tribe,
tlements of tribesmen occasionally Landholding and the relation of Land-
took possession thereof; in many of lord and Tenant in various countries.
these cases something resembling in- 2nd Ed. p. 240. See also E. Hist, of
dividual property arose. See on this Imt.


is admissible to use the English manorial term) ; and the abso-
lute dependence of the fuidhir tenant is well shown by the
passages in the Brehon Law^ 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 commu-
nity, 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 chief-
taincy, 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 pos-
sessed 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 dependence^ by the development of Saer
and Daer tenancy, with the result that the lands originally

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Online LibraryWilliam Ernest MontgomeryThe history of land tenure in Ireland [electronic resource] : being the Yorke prize essay of the University of Cambridge for the year 1888 → online text (page 1 of 22)