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REESE LIBRARY

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UNIVERSITY'OF.

CALIFORNIA. \

•liecewed .. . APR 21

1893 /,99 .

Accessions No. ^ 1 10 7..

Class No.

THE

HISTORY OF LAND TENURE
IN IRELAND.

aottUon: C. J. CLAY AND SONS,
CAMBKIDGE UNIVEKSITY PKESS WAREHOUSE,

AND

STEVENS AND SONS, LIMITED,

119 AND 120, CHANCERY LANE,
LAW PUBLISHEES and BOOKSELLERS.

flCambritiee: DEIGHTON, BELL AND CO.

ILcipjts : F. A. BROCKHAUS.

i^eto gorfe: MACMILLAN AND CO.

THE

HISTOKY OF LAND TENUKE
IN IKELAND.

BEING THE YORKE PRIZE ESSAY OF THE UNIVERSITY
OF CAMBRIDGE FOR THE YEAR 1888.

WILLIAM ERNEST MONTGOMERY, M.A., LL.M.,

I >

CLAKE COLLEGE, CAMBRIDGE ;
AND OF THE INNER TEMPLE, BARRISTER-AT-LAW.

UNIVERSIT

CAMBRIDGE :

AT THE UNIVERSITY PRESS.

1889

Si lb

PRINTED BY C. J. CLAY, M.A. AND SONS,
AT THE UNIVERSITY PRESS.

PREFACE.

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

VI PREFACE.

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.

Wm. E. MONTGOMERY.

2, The Cloisters,

Pump Court, Temple.

CONTENTS.

PART I. IRELAND THE ENEMY.

PAGES

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

PART II. IRELAND THE SLAVE.

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

PART III. THE IRELAND OF TO-DAY.

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.

PART I.

IRELAND THE ENEMY.

UNIVERSITY

CHAPTER I.

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

1—2

4 THE AGRARIAN COMMUNITY [CHAP.

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-
sion.

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.

OF THE IRISH CELTS.

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-
bohm.

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.

6 THE AGRARIAN COMMUNITY [CHAP.

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.

I.] OF THE IRISH CELTS. 7

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.

8 THE AGRARIAN COMMUNITY [CHAP.

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-

I.] OF THE IRISH CELTS. 9

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.

10 THE AGRARIAN COMMUNITY [CHAP.

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
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 commu-
nity 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. i. pp. 125 System of Ireland, Law Quarterly Re-
and 139). view, 1887, pp. 135 and 136. O'Con-

2 E. Hist, of Inst. p. 92. nor Morris.

3 Much as the Patrician obtained ^ One is struck instantly in the
power over the Plebeian debtor. Land Brehon Law, with the immense import-

I.] OF THE IRISH CELTS. 11

over a tribesman acquired by the chief to whom he was in- |
debted 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 villanus''
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
head^ and were always resorted to by those whose poverty pre-
vented 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 whqn the enactments of the Brehon
Law will be more fully dealt with. Here they are only im-
portant 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 base wages from any man unless it be

cattle. his own will to do so, andT it is com-

1 Sir H. Maine held that the rent petent for him not to accept Saerrath
payable in the produce of the stock (free wages) from anyone but from a
and refections ultimately became a king, but he is not entitled to refuse
rent payable in respect of the land. the free wages of his king. Every
The stock lent was termed 'Taurcreic' man in the Tuath is bound to receive
and the food rent *Besa,' see E. Hist. the wages of the Eig Tuatha (king of
of Inst. p. 160, and Skene Vol. iii. the territory)," and says "Theoretical-
p. 146. ly speaking no freeman need become

2 Field, pp. 241 — 242. the dependent of another save the

3 Prof. Sullivan quotes the following king of his territory, but the condition
enactment of the Brehon Law. "It is of dependence was imposed upon him
competent for a man never to accept by the circumstances of his position."

12 THE AGRARIAN COMMUNITY [CHAP.

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 Mor^ 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 un-
doubtedly 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 history^.

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 tribe-
land might be alienated by the tribesman by grant, contract, or
bequest. As regards the property which his own effort had ac-
quired, a larger power of alienation was possessed by the tribes-
man than he had over that obtained by allotment. Again in
the Cortis 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 ordi-
nary course of husbandry, the former being regarded as more

1 Ancient Laws of Ireland, Vol. ii. ' commendation ' are thus produced."
p. 345. E. Hist, of Inst. p. 158.

2 "It is by taking stock that the ^ g^ve by consent of the corn-
free Irish tribesman becomes the Ceile munity.

or Kyle, the vassal or man of his chief, ^ A. L. of I. Vol. ii. p. 283, and see

owing him not only rent but service E. Hist, of Inst. p. 108.
and homage. The exact effects of

I.] OF THE IRISH CELTS. 13

particularly his own property and hence his right of alienation
being greater over it. An examination of the Brehon Laws
shows that there can be little doubt that the growth of this
power of alienation found if not its origin at least its most
fostering element in the influence of the Church \ How early
such influence began to work it is impossible to say, for there is
negative evidence that for some time after the arrival of St
Patrick Christianity had not spread throughout Ireland I Still
it is certain that beginning from about the time of St Patrick
the ecclesiastical element entered the Irish legal system, and
many of the increased facilities for the alienation of land, and
much of the advancement of the idea of the binding nature of
contract are due to the efforts of the monks. The Christian
influence on the law tended in the direction of increasing the
property of the Church, with a view to which it favoured free-
dom of alienation. Thus despite that the Brehon Law lays
down that 'no tribesman is to sell, alienate, or conceal his
tribe-land or to give it to pay for his crimes or contracts V yet
under certain circumstances exceptions were made, and in its
original conception the grantee contemplated is without doubt
the Church* which is indebted to this source for its term on
lands.

The position of the Church with regard to the land at the
time of the Brehon Laws is thus explained in the Senchus
Mor^, " The social connection which subsists between the church

1 A curious side light is thrown he was killed by the sun and wind,
on this by the fact that in the Tri- " Laeghaire, son of Niall, died
partite Life of St Patrick, the word for On the side of Caissi, green its
bequest occurs four times and always land ;

in connection with ecclesiastics. The elements of God, whose guar-

2 For example see a passage in the antee he had violated,
Annals of the Four Masters, Vol. i. Inflicted the doom of death upon
pp. 143, 145 (quoted in Pritchard's the king."

Physical History of Mankind, p. 140), This quatrain is quoted in The Four

where it is stated that Laeghaire, the Masters, p. 145, and also in Lehor na

son of Niall, having been in the year Huidre, but the author is unknown.

457 taken captive in a battle against ^ A. L. of I. Vol. ii. p. 283.

the inhabitants of Leinster, swore by ^ E. Hist, of Inst. p. 108.

the sun and the wind that he would ^ Sen. Mor (A. L. of I. Vol. ii.

never again demand a tribute for his pp. 345 and 347).
cows. The oath having been violated

14 THE AGRARIAN COMMUNITY [CHAP.

and its tenants of ecclesiastical lands is, preaching and offer-
ing: — and requiem is due from the church to its tenants of
ecclesiastical lands, and the receiving of every son for instruc-
tion, and of every (such) tenant to right repentance ; tithes, and
first fruits, and alms, are due of them to her, and full honor
price when they are in strong health, and one-third honor price
at the time of death ; and the church has (the power of pro-
nouncing judgment), and proof, and witness upon its tenants
of ecclesiastical land, both Saer-stock tenants and Daer-stock
tenants ; and upon every other layman, even though he be a
Saer-stock tenant of ecclesiastical lands, unless there is another
church of equal dignity claiming him." This extract shows
conclusively how large a temporal power had been acquired by
the Church, and it is plain how potent an influence it must have
exerted in moulding the Brehon Law. It is far from improbable
also that the power of the Church was felt in the local laws
which influenced petty communities to a larger extent than is
shown by the laws of Tara. Mr Skene, who lays stress on the
laxity of sexual relations in the earliest times of Irish history,
would also ascribe in the main to the influence of the Christian
church^ the practical creation of the paternal power ^, and would
defer till this time the real existence of the family group with
the father as its head. It seems probable, however, even if
the marriage bond was not held binding, that he has under-
rated the eagerness with which sons (the warriors of the future)
and daughters (by whose means valuable alliances could be
contracted) would be claimed by the father as members of his
family I

Though the various causes'* which tended to break down
the original theory of family unity, to disintegrate collective

1 The Early Irish Ecclesiastical the legitimation not only of the
Law limited marriage relations strictly. bastard, but of the adulterine bastard,
Canones S. Patricii {Councils and Ec- and measures the compensation to be
clesiastical documents of Great Britain paid to the putative father." E. Hist,
and Ireland, A. W. Hodden and W. of Inst. p. 59.

Stubbs). ii. Synod xxv — xxviii. See ■* The influence of the more ad-

The Celtic Church by F. E. Warren. vanced civilization of foreign nations

2 Skene's Celt. Scot. Vol. in. p. 138. was scarcely felt by the early Irish com-

3 " The 'Book of Aicill' provides for munity, and is only treated of in two

I.] OF THE IRISH CELTS. 15

ownership and to establish the theory of several possession,
have been touched on, it must not be imagined that in the
Brehon Laws ownership in severalty was recognized as the rule.
On the contrary the property, social, and juristic rights of indi-
viduals are still theoretically merged in the system of the
family group, but the numerous exceptions which are apparent
show clearly the effects of the attacks made on the original
conception of ownership. There is clearly traceable the pro-
gress of what may be termed the natural feudalization of the
land, retarded indeed by the want of a strong centralized
government and doomed never to be consummated in the
natural order of things, (since the Brehon Law was roughly
rooted up, and a more advanced system thrust on a nation unfit
to receive it) but 'Undeniably present.

Before commencing an examination of the extant tracts of
the Brehon Law it is necessary to treat more fully than has yet
been done of the relation of the landholding classes between
themselves in early Irish society.

In the earliest times the inhabitants of Ireland are found
divided into the two great classes, free and unfree\ and these
two classes seem to have been divided into many grades.
Amongst the free the division is one which may almost be
termed that of the " classes and masses." The former order, the
Aires, being again subdivided into the two classes of (1) Flaths
and (2) Bo- Aires ^ The Flaths represented an aristocracy of

instances in this essay (1) where the
influence of the Church is incidentally
dealt with in this and the following
chapter, (2) where the effect of the
establishment of the Colony of the Pale
is treated of in chapters III. and IV.

1 " The acts of the Council of
Armagh in 1171 show that there
had been a custom of buying Anglo-
Saxons from merchants robbers and
pirates ; for it was decreed ' ut Angli
ubique per insulam servitatis vinculo
mancipati in pristinam revocentur
libertatem.' " (See Sigerson quoting
Girald. Camb. Expugnatio Hibernica,
L. I. c. xviii.) Some very ancient Canons

of the Church (quoted c. 20 Ware) also
point to this, and we learn from Seyer's
History of Bristol that slaves were ex-
ported from England even as late as
the reign of King John. See also
William of Malmesbury de Vit Wlstani.
In the Book of Rights, printed by the
Celtic Society, p. 174, and quoted by
Skene in Vol. iii. p. 140, the legendary
origin of the class of the unfree is
given. In the main slavery was due
to the successive waves of conquest
and to the effect of internal wars.

- See Sullivan's Intro, to O'Curry,
pp. c. and ci.

16 THE AGRARIAN COMMUNITY [CHAP.

birth, their wealth lying in land and their rank being hereditary;
whilst the Bo-Aires or Cow- Aires represented an aristocracy
of wealth, or those who from the amount of their possessions in
cattle rose above the ordinary tribesman, and whose descendants
under certain circumstances were capable of rising to the rank
of Flaths. These two classes of Aires alone possessed to the
full the rights of freemen \ but the possession of sufficient
wealth entitled any free native to become a Bo-Aire. The
ordinary free tribesman was the Fer Midba, or inferior man,
and of this class there are two divisions (1) those over the age
of 14 and under 20, who though emancipated were not in pos-
session of their full privileges, and (2) those over the age of 20,
entitled to a separate residence and a share of the tribe-land I

When the tribesman had received a loan of cattle he became
a member of the class of Ceiles. The Ceiles were divided into
the Saer, that is free, Ceiles and the Daer or base Ceiles. The
relation of these two classes to the chief to whom they were
indebted for the loan of cattle has been already remarked under
the short description given of Saer and Daer stock holdings,
and will be more fully dealt with later. Although the Daer
Ceiles were base tenants they were yet possessed of certain
definite rights in the tribe and in the tribal territory, and in
this were widely separated from the servile classes of the
Bothacks, Sencleiths and Fuidhirs whose rights were few, and
who were almost in a state of complete servitude ^ These latter
classes cultivated what in default of a better word may be
termed the chief's demesnes, and possessed no political rights.

" The Bothacks* or Cottiers, Saer and Daer, had a right of
settlement, served the land noble as hired and farm labourers
and performed menial services^" The Sencleiths appear to have
been old adherents of the Flath, the descendants of old and

^ See Sullivan's Intro, to O'Curry, Bothacks seem to have been possessed

p. cix. of no property save a cabin on the lands

2 See Skene's Celt. Scot. Vol. iii. p. of the Flath whom they served ; the
143. ' Daer Bothacks were farm labourers.

3 Sullivan's Intro, to O'Curry, p. cxv. ^ Sigerson's History of Land Tenures
* Bothack fromBoth, a shed or cabin. and Land Glasses in Ireland, p. 9.

Prof. Sullivan says that the Saer

L] of the IRISH CELTS. 17

privileged servants or persons who at some time by favour had
acquired a right to settle on the demesne \ The Fuidhir or
refugee tenants have been treated of before, but it should be
noticed that a great point of difference existed between them
and the classes of Bothacks and Sencleiths; for whilst the latter
formed part of the affiliated family or clan known in the Brehon
Law as the ' Fine Flatha,' and were entitled as of right to susten-
ance, habitation, and to the usufruct of the soil, the former class
were strangers and outcasts, their rights in the clan, if any,
being based on a contract with its chief. The free Fuidhirs
indeed possessed in some degree the rights of freemen, being in
reality strangers from other tribes, who, in consideration of only
holding their Fuidhir tenancy of the land from year to year^,
were allowed to retain certain rights. The Daer Fuidhirs on
the other hand^ were in all respects in a position of the most
servile dependence and were the victims of great hardships,
their rights and liabilities being in almost all cases merged in
those of the Flath on whom they were dependent, and whose
chattels to all intents and purposes they were. These Daer
Fuidhirs were mostly prisoners taken in war^, escaped criminals
who had been given shelter, defaulting debtors, and outcasts of
every kind. It seems, however, that a man might voluntarily
become a Daer Fuidhir, and that he might become so for a
limited number of years ; while a family of this class who
remained nine times nine years on the land became entitled to
rank with the Sencleiths. The following table purports to
show the relation of the social orders of the tribe ^ or Tuath.

1 For example mercenaries. diffidence the subject being much in-

2 Prof . Sullivan says " If he entered volved. For authorities see Skene,
into longer engagements than one Vol. iii. p. 142 — 147, also Ancient Laws,
year with another than his own chief Vol. iv. p. 299, also Sigerson and Sul-
he lost his rights and became per- livan. The classes of the Bo-Aires of
manentlya Fuidhir." Intro. to O'Curry, which the Aire coisring "who repre-
p. cxxv. sented the people before king and sy-

3 The Brehon Law draws a very nod " was the highest, and the Ogaire or
sharp line of demarcation between the 'young lord' the lowest, differed merely
Saer and Daer Fuidhir. in their degrees of wealth. The classes

* St Patrick was of this class when of the Flaths are based on the number

he was first brought to Ireland. of Ceile tenants each possessed, the

^ This table is put forward with Aire-forgaill being the most important

M. 2

THE AGRARIAN COMMUNITY OF THE IRISH CELTS.

Free

1. The Ri or king

2. The Tanaist

3. The Aires

Flaths

Bo-Aires

fAi
JAi

Aire-forgaill

Aire-tuise

L 4. The Fer Midba

Unfree «

r Receive stock
from the Ri
j direct ^

I Receive stock r Aire-ard
I from a •) Aire-echta

L Flath ( Aire-desa

Aire-coisring

Ferfothla

Bruighfer

Febhsa

Aitheck or Athreba
'L Ogaire
Saer Ceile

Semi-servile ( Daer Ceile

r Possessing some rights in f

the tribe, but none in J Saer Bothacks

tribal territory only in ] Saer Sencleiths
chief's demesne [_

Possessing very few rights ] Daer Bothacks
Servile -i ^^ *^® *^^^® i Daer Sencleiths

the

Grad

Flath

the

Grad

Feine

the Fine

Flatha

affiliated

family or

clan.

T).^«c«««,•v,., ^^ ^,-„v,+c ;r, fv,« I Saer Fuidhirs (had some rights as
Possessmg no rights m the J fj-gemen).

^^ ^ ' Daer Fuidhirs (no rights whatever).

and being also probably the Flath
Geilfine or Geilfine chief. Though the
above table gives the organization of a
complete tribe, such tribe would not
probably stand alone but would be

linked by certain ties to other Tuaths,
and the body thus constituted would
represent that larger tribe known as
the Mortuath.

CHAPTER II.

The Beehon Law.

Having sketched the various causes which chiefly tended
in Ireland to mould into a more complex form the original
conception of ownership by the clan, and the disintegrating
influences which tended to develop ownership in severalty, it
is proposed in this chapter to examine more carefully the exact
nature of land holding as recognized by the Brehon Laws.

These Laws were the work of a particular class — the Bre-
hons (Brithemain), a hereditary caste of lawyers. It has been
suggested that these Brehons were substantially identical with
the class of Druids found amongst the Celts of the Continent ^
and it may be that on the introduction of Christianity the
Irish Druids concentrated their attention on the study and ex-
pansion of the laws, a subject which had formerly been only a
portion of their duties I This supposition goes far towards
accounting for a great mass of semi-barbarous and semi-chris-
tian but altogether religious doctrine in the secular Brehon
Law. It is specially noticeable as affording an explanation of
the comparatively insignificant relation of the sanctions to
various offences by suggesting the existence, at the time of
the inception of the rules ^, of a moral sanction forming the
understood complement of each material enactment and reme-
dying its deficiencies.

1 See E. Hist, of Inst. p. 35. ^ Notice on this subject the late Sir

2 The Sen. Mor ascribes the good H. Maine's remarks on " Sitting
judgments of the Brehon Law to the Dharna," and the statement in the
influence of the Holy Spirit on just Sen. Mor {A. L. of I. Vol. i. p. 113)
men who were in the island of Erin that notice and fasting precede dis-
before its conversion. A. L. of I. In- tress in the case of a chief.

tro. Vol. I. p. viii.

2—2

20 THE BREHON LAW. [CHAP.

Generally of Royal blood and standing in the relation of ad-
viser to the chief ^ while in many cases little if at all his inferior
in prestige^; the representatives of culture as opposed to crass
ignorance, and claiming through St Patrick a semi-inspired
origin for their legal rules', the Brehons in the earlier phases
of Irish history possessed in themselves, and transmitted to
their rules, an authority which it is hard for those trained in
modern ideas to realize. The weight attaching to the dicta of
the Brehon was the more remarkable as the system was based
on mere voluntary references to arbitration*, and as the sanction
was a factor conspicuous mainly by its absence or insufficiency ;
while even when existent it appears to have been irregularly
and intermittently enforced owing to the want of a strong cen-
tralized government.

The great antiquity of the system whose legal rules of social
relations and public polity the Brehon Laws profess to expound
and regulate, render it a matter of deep regret that there is a
scarcity of ancient Irish MSS. The limited amount of authentic
documents, however, is no matter of wonder when it is re-
membered that anarchy reigned supreme in early Irish history,
and that the absence of walled towns and stone buildings ren-
dered the preservation of manuscripts difficult ; while, in addi-
tion, during the earlier part of the 18th century it was a serious
matter to be as much as found in possession of an Irish book^.
The Brehon Laws, as far as extant, consist of certain tracts, the
text of which is glossed and expanded by later commentaries.
Commissioners were appointed for the purpose of selecting and
translating the Ancient Laws of Ireland, and the four volumes
published by them contain translations of the Senchus Mor
with its subtracts ^ the book of Aicill, the Crith Gabhlach, and

1 A. L. of I. Vol. IV. p. 341. 4 See — in one of the prefaces to

2 " For the king excels, for he can 3rd Vol. of Ancient Laws. In the
decide against every kind of person Sen. Mor it is stated that any foreigner
except those of the two orders of re- or stranger was entitled to be judged
ligion and learning who are of equal by any Brehon he might choose,
rank with himself." Sen. Mor, Gloss. 4. L. o/I. Vol. i. p. 7.

^. L. o/I. Vol. I. p. 85. 5 guUivan's Intro, to O'Curry, p.

3 See the account given by the Sen. xix.

Mor of the origin of the Brehon Law. ^ The Senchus Mor is divided into

II.] THE BREHON LAW. 21

certain smaller tracts on judgments of co-tenancy, of divisions of
land, of divisions of the tribe and territory, of crimes, of rights
of water and so forth, with a tract on bee judgments. The
date of the ancient law tracts is very uncertain ; the Senchus
Mor is stated in the Annals of the four Masters to date at
438 A.D., but the principal extant Brehon manuscripts are pro-
bably not older than the 14th century, some being even as
recent as the beginning of the 15th\ The obsolete form of
language of much of their text, however, and the portions of
old versified law embedded in it, point to a probability of these
manuscripts being in the main transcripts from older writings,
many of the glosses being as much translations as explanations^.
But even taking this into ' consideration the language in which
the manuscripts are written will not carry us back much
farther than the middle of the 9th century^, and the late Sir
Henry Maine thought that the dates of the Senchus Mor and
the book of Aicill were the 11th and 10th centuries respectively.
The Senchus Mor itself indeed claims to have been coeval with
St Patrick; and Professor Sullivan argues from the internal

(1) the law of distress, (2) Services of for my soul. This is Christmas night,

Hostage Sureties, (3) Fosterage, (4) and on this night I place myself under

the two laws of tenure Saer-Stock the protection of the King of Heaven

(Cain Law) and Daer- Stock (Cain and earth, beseeching that He will

Aigillne), (5) social connexions, (6) bring me and my friends safe through

customary law (Corns Bescna). The this plague."

remainder is lost but is supposed to ^ Prof. Sullivan instances the case

have consisted of a tract on fines for of Druim Gall, a legal scribe in the

stealing from a church or termon county of Clare between 1509 — 1511,

lands. who confessed he could not understand

1 Dr O'Donovan translated a mar- the organization or functions of the

ginal note which purports to have been ancient courts of Ireland (at this date

written in 1350 on one of the Dublin the Irish laws were still in force in

manuscripts of the Sen. Mor to show Clare, which was the last part of Ire-

that it existed at that time. It runs land where the judgment of a Brehon

" One thousand three hundred ten and was delivered) and says, "Here we

forty years from the birth of Christ to have decisive evidence of a consider-

this night ; and this is the second year able lapse of time between the period

since the coming of the plague into when the courts were held in their

Ireland. I have written this in the full state and the beginning of the 16th

twentieth year of my age. I am Hugh, century." Intro, to O'Curry, p. xv.

son of Conor Mac Egan, and whoever ^ ^^ jj^gt qJ j^f^ p. 12 ; Sullivan's

reads it let him offer a prayer of mercy Intro, to O'Curry, p. xvi and xvii.

22 THE BREHON LAW. [CHAP.

state of Ireland after the commencement of the Danish wars
that the laws must be prior to the beginning of the 9th century,
surmising that the three centuries after St Patrick (practically
the only period of even comparative tranquillity which the early
history of Ireland records) were the parents of the Brehon Laws.
But it is open to doubt whether legal activity will only co-
exist with political quiescence. If this is indeed the date of
the Brehon Laws being first committed to writing, their codifi-
cation may rather be ascribed to the stimulus given to intellec-
tual activity by the educational influences of the Church.

The early Irish law has many strong points of similarity
with the laws of Wales ^ subject, however, to the important
difference that the influence of the to some extent authoritative
central government, which has fixed its seal on the Welsh laws,
is absent in the Brehon code. The comparison nevertheless is
of value as illustrating with much clearness that the alleged
differences between Aryan sub-races are rather differences in
their degrees of development than essential discrepancies ^ The
Brehon Law, despite its pretensions to being a code, is rather
" an accretion of rules which have clustered round an older
nucleus ^" portions of the ancient versified law being, as has
been stated, incorporated in the Senchus Mor and the book of
Aicill. The late Sir Henry Maine held that probably each
tract was the property of some individual legal school and exhi-
bited its particular tenets*. In support of this it should be
remembered that these laws were not in reality a " legislative
structure," but were composed of the dicta of certain learned
Brehons^ upon sets of facts, either submitted to them or hypo-
thetically stated by them. This juridical interpretation stood
alone as the source of the Brehon Law, and bears a strong surface

1 See Ancient Laws of Wales, pub. judgment, e.g. " Sean, son of Aighe,
by Comm. ; History of Wales, by John passed the first judgment concerning
Jones. distress." Sen. Mor, A. L. of I. Vol,

2 E. Hist, of Inst. p. 96. i. p. 79.

3 E. Hist, of Inst. p. 10. ' ^ E. Hist, of Inst. p. 24, instancing
^ E. Hist, of Inst. p. 16, and this the book of Aicill, by its own statement

would perhaps account for the way in composed of the judgments of two Bre-
which stress is laid in many cases on hons, Cormac and Cennfaeladh.
the name of a Brehon who passed a

II.] THE BREHON LAW. 23

analogy to the " responsa prudentum " of the Roman law, but
the difference caused by the absence in the former case of the
machinery of the courts and the sanctioning power of a cen-
tralized government prevents any true similarity.

It is a matter of great difficulty to know what stress to lay
upon individual statements in the tracts, for in not a few cases
the rules have evidently been constructed through certain
given facts having suggested a number of hypothetical cases to
the mind of the Brehon, upon which, though the law is laid
down with great nicety and assurance, it is hard to imagine it
possessed of a binding force. In the absence of that authority
which can only be existent in conjunction with a strong central-
ized government, bald statements of supposititious law\ not
sanctioned by immemorial custom, could scarcely have carried
any widespread authority. Not a few of the cases given are so
trivial as to strongly suggest that they were merely illustrative
examples used by the Brehon to instruct his pupil in the ex-
pansion of particular rules I This theory of development also
possesses inherent probability, for had the aim of the Brehon
lawyer been directed to ascertaining general principles instead
of particular applications, a more advanced law would have
been obtained, but the greatest proof of the genuine antiquity
of the system would have been lost.

The difficulty of justly estimating the relative value of the
statements of these archaic laws is increased by the fact that
a large proportion of their contents have palpably been evolved
by successive generations; partly from the pre-existing law
tenets, either oral or written, of the founder of the school, but
also partly from the real or imaginary needs of increasing popu-
lation, enlarged learning, and more diffused culture. These
later additions have been sheltered under the cloak of the
founder's supposed semi-divine^ infallibility, and have been

1 "Much of the commentary is con- 3 «(The early Brehon, possessing in
fessedly speculative, and does not re- his own breast the whole law, assumed
present any existing customary law." a mysterious character, and was treated
A. L. of I. Intro. Vol. iii. p. x. as an inspired or quasi-divine person-

2 This is particularly noticeable in age." A. L. of I. Intro. Vol. iii. p.
the tract on bee judgments. xxxi.

24 THE BREHON LAW. [CHAP.

incorporated into his system by what may almost be termed
mental ' commendation \' Another difficulty also is met with
at the outset of an enquiry into the Brehon Law in the ambiguity
of the meaning of the terms used : thus, to take a well-known
example, the word 'fine' is used (1) to denote those related
within certain degrees of consanguinity, (2) the lord and his
relatives together with his dependent Ceiles and Fuidhirs,
(3) the whole tribe in its broadest sense. The amount of con-
fusion caused by this looseness of expression can be better
imagined than described.

In the preceding chapter the classes of society which appear
to have been in existence at the time of the Brehon Laws were
dealt with, and the more or less complete disuse of the original
practice of common possession of the tribe-land was traced.
Turning now to the period of the fullest development of the
archaic code it is striking how seemingly complex a social system
is revealed, when the simplicity of the tribal system as described
by Sir John Davies so many centuries later is remembered. The
native land law recognized by the Attorney-General of James
the First will be dealt with in a subsequent chapter, but it is
perhaps possible that the explanation of its apparent dis-
crepancies with the scheme revealed in the Brehon Law is to
be found in the fact that Sir John Davies was content to deal
with the broad outlines of the case presented to him, while many
of the provisions of the ancient laws were theoretical rather than
practical. The ancient Irish land system, when viewed in the
light of the Brehon Laws, shows the 'Tuath,' or territorial
possession of the tribe, divided into the following parts ^ —

(1) The ' Deis ' or lands of inheritance (orba).

(2) Office or ' mensal ' lands.

(3) ' Termon' lands — the possessions of the Church.

(4) Pasture lands.

(5) Arable lands.

1 Notice some remarks by tlie late supposed to be sacred even to an inno-

Sir H. Maine in Early Law and Gus- vating Brehon.

tovi on literary fosterage as exemplified ^ See Skene, Celt. Scot. Vol. iii. p.

in the laws of Menu, poems of Homer 148. It is the territory to which by

(taking Grote's theory) and the Brehon this time the word Tuath is properly

laws. The Senchus Mor, however, was applied. The tribe is now ' Ciniol.'

II.] THE BREHON LAW. 25

The first group, that is the lands of inheritance, stand upon
a new basis altogether foreign to the theory of the primal
tribal community, and are either (1) the private possessions of
the Ri, as distinguished from the mensal lands which he held
as the appanage of office, or (2) the private possessions of the
Aires (or rather Flaths) which were either (a) ancient allodial
lands\ or (/S) had become property in severalty by prescription,
or (7) had been amassed by the Flath in the same manner as
the Ri had gathered his more extensive possessions, or (S) had
been granted as the reward of public service, or (e) had been
granted originally for life, and not returned into the public
stock on the death of the usufructuary.

It is doubtful if these inheritance lands were governed by
any real rules of descent save that of possession by members of
one family as apart from the tribe ; and it is probable that they
devolved by that most potent of all titles in troublous times,
the right of might. On the death of the Flath, therefore, the
most powerful member of his family would succeed to the lands ;
while the ingrained notion of common ownership would be still
so fixed in the other members that they would hold themselves
in theory, if not in fact, joint possessors with him ; and submit-
ting by force of circumstances to his nominal succession, w^ould
gain a very practical share of the inheritance by quartering
themselves upon him, and looking to him for support.

Considerable stress may indeed be laid on this view of the
family rights in inheritance lands, despite the fact that in the
book of Aicill the rights of the Duthaig fine, that is, the
group of the seventeen nearest kinsmen (divided into their
four groups of Geilfine, Deirbhfine, larfine, and Indfine'^) to
succeed to the Dibad, or inheritance land of the chief, are
fully expressed, and their reciprocal rights elaborately defined.
The whole arrangement of the Duthaig fine, though held by

1 It is certainly doubtful if the word received stock from the chief), and the

allodial should be used, both on ac- receipt of the Taurcrech by the Ceile,

count of the theoretical reversion of the these appearing to acknowledge some

tribe and also on account of the pay- dominion by the chief. Compare Sul-

ment of Bestigi by the Ceile to the livan, p. cxliii.

chief (for even the Flath seems to have ^ a. L. of I. Vol. i. p. 261.

26 THE BREHON LAW. [CHAP.

the late Sir Henry Maine to show signs of being developed
from accustomed rules of family relationship \ is strikingly arti-
ficial, and appears to be rather a learned Brehon's elaboration
of what the rights of family succession should be, than of being
a workable system of succession, more especially in troublous
times and among a semi-barbarous community. Mr Skene
calls attention also to the passage with which these rules end,
"and the whole number of the seventeen men are then forth-
coming, and if they be not, there shall be no partition but the
nearest of kin shall take^:" if the next of kin happened to be
powerful, judging from the record of bloodshed with which
Irish history abounds, he would have been likely to take very
practical measures to prevent the symmetrical Duthaig fine
from interfering with his title to the inheritance^.

Dealing with these lands of inheritance there is no more
striking illustration of the unsettled state of the country than
the apparent absence of even the germ of customary tenures.
No sooner has the chief become possessed of private lands,
and allowed the settlement upon them of servile dependents,
than the gradual establishment of some base tenure similar to
that of English copyhold might have been expected ; but while
the existence of this servile class is one of the most prominent
features of the early Irish society, there is no trace of any
definite rights being gained by them: on the contrary, the
large number of social outcasts, devoid of tribal rights, appears
merely to have encouraged the growth of unlimited exactions
by the chief

The extent of the lands of inheritance would tend largely
to increase as time went on, for the chief would employ his
wealth in cattle in Saer and Daer stock loans to freemen
occupying the tribe-land, and it seems certain that the rent
payable in produce of stock and refections developed, at
least in many cases, into rent payable for the land*. If the

1 Being apparently founded on a or tribe of the red-handed, composed of
principle similar to the Eoman law those who had killed, or attempted to
method as to the emancipation of sons kill the senior members of the fine in
from the patria potestas. order to gain their property, is an illus-

2 Gelt. Scot. Vol. III. p. 178. tration of this. Sullivan, p. clxvi.

3 The existence too of the Dergfine, ^ ggg e. Hist, of Inst. p. 160.

II.] THE BREHON LAW. 27

Ceile fell into arrears in his produce payments, and the stock
originally advanced by the chief was either destroyed by disesuse
or carried off by raiders, the easiest mode for the chieftain to
recoup himself would be to appropriate the Ceile's allotment
of tribe-land as a portion of the demesne, and to reduce the
Ceile to the status of a villein cultivator: nor is the shadowy
right of reversion existent in the tribe likely to have afforded
any sufficient barrier to such action.

There are also significant signs that a process similar to
'commendation' was not unknown as an operant factor in ex-
tinguishing the original tribal freeman. One modern writer*
appears to carry the view of the growth of a territorial basis
of society so far as to hold that the original family ties are
completely merged in the land-bond; pointing out that "the
possession of Deis or inheritance land which gave its owner
the title of Aire, was also essential to his acquiring the privi-
leges of. the chief of a fine." Without being prepared to go
quite to this length, it is certain that at the period of latest
development of the Brehon Law the Ceile is found in a
position in many ways assimilated to that of tenancy; the
' coyne, livery and cosherings ' to which he was liable bearing a
strong resemblance to the onerous incidents of feudal tenure.
It was doubtless the case nevertheless that the idea of tribal
possession was deeply ingrained in the Celtic race at the time
when Sir John Davies commuted the Irish tenures. However
far in reality the steady march of time had advanced that
feudalization of the land, which in Aryan races seems always
to have gone hand in hand with increase of population and
the growth of the power of the chief, the idea of landlord
and tenant was still strange to the Irish mind and its com-
pulsory imposition on an unwilling people was probably a
fatal mistake.

It is so evident that in the Ceile dependents of the chief
is to be traced the germ of the relation of landlord and tenant,
that an examination of the Brehon rules regulating the cattle
loans, which brought the free tribesman into a subordinate
position, is an essential preliminary to a right appreciation
1 See Skene's Celt. Scot. Vol in. p. 175.

28 THE BREHON LAW. [CHAP.

of the nature of the Irish land system for which the English
tenures were substituted. The two subtracts of the Senchus
Mor in which the rules of these loans are dealt with are termed
the Cain Sereath and the Cain Aigillne. From these it ap-
pears that the usual period of a Saer-stock tenancy was seven
years ; during this period the young of the cattle lent, the milk,
and the manure, were taken by the chief The tenant did
homage, rendered help in reaping the harvest and, if required,
in repairing or building the castle {dun) of the chief or following
his banner in war. There seems to have been no fixed rule as
to the amount or frequency of the services to be rendered, and
here as throughout the Brehon Laws there arises the appa-
rent difficulty of the want of a sufficient sanction, for no
penalty is specifically mentioned for the non-performance of
these services, save that a seeming diminution in the honour
price of the tenant took place on his default \ After the end
of the seven years the cattle became the property of the Ceile.
The chief appears to have always lent the stock without security,
and though no tribesman was compelled to take stock from
his immediate chief yet he had no power to refuse to do so
from the Ri or king^

These stock tenancies were terminable at will by the return
of the loan. If the chief reclaimed his cattle before the end of
the agreed term and the Saer Ceile expressed willingness there-
upon to hold as a Daer- stock tenant he either did so (an extra
amount of cattle being granted him) or the chief was liable
to forfeit one-third of the original stock lent^ Daer-stock
tenure differed in many ways from the comparatively free
tenure of the Saer Ceile ; the tribesman so holding received
a larger amount of stock, and some security was required from
him by the chief The stock advanced was made up of two
portions, one being somewhat similar to that dealt with in
Saer tenancy, that is to say being proportionate to the reserved
rent in kind, and the other being estimated with regard to the

1 A. L. of I. Vol, III. Intro, p. xlix. apply to Daer-stock tenants, A. L. of

2 A passage in the Cain Aigillne I. Vol. ii. p. 223.

seems to show that this rule did not ^ Intro, to Vol. ii. A. L. of I. p. xlix.

II.] THE BREHON LAW. 29

honour price* of the tenant. The exact amount of the rent in
kind varied, and the Cain Aigillne is full of elaborate regula-
tions as to the amount of stock proportionate to particular
food-rents. One example will show the nature of these rules,
" the proportionate stock of a cow with its accompaniments is
thirty ' seds,' besides the returnable seds" (that is to say twenty-
four cows). Thus for such a loan of twenty-four cows the food-
rent would be one cow and accompaniments^. The severity of
the Daer-stock tenure, however, lay not in the food-rent, but in
the services exacted from the tenant and in such incidents of
the tenure as * refections.' Under this right of * refection ' the
Irish chieftain came with his followers and quartered himself
upon the unhappy Daer-stock holder, chief and retinue living
at his expense. This right was probably of ancient origin ^
and is frequently alluded to in the Cain Aigillne, but from very
early times it seems to have led to grave abuses. It was the pre-
cursor of ' coyne, livery and cosherings,' forms of exaction which
are bitterly denounced by Spenser and which were some of the
chief causes of complaint on the part of the English settlers*.

There are many provisions in the rules of Daer-stock tenancy
tending to show that in some respects a sort of contractual
relation on fairly equal terms, and with reciprocal rights and
duties, was regarded as being created between the chief and
the tenant^ These points are of interest as the after fate
of the Daer-stock tenant was one of complete servitude, and
it is therefore important to notice that by the rules of the
Brehon Law he should have been in no small degree protected.
Thus, theoretically it was possible for the Daer Ceile, without

1 That is the price paid for injuring cess see a letter of Sir H. Sydney's to
him. Queen Elizabeth (Sydney Papers).

2 A. L. of I. Vol. II. p. 261. There is an allusion to coyne and
^ The customary entertainments livery in Baron Finglas' Breviate of

given by the tenant to the chief are Ireland (quoted in Harris' Hibernica)

treated in the Corus Bescna under the which is a proof of the light in which

head of ' human feasts' — and in them these exactions were regarded, it states

originated many abuses afterwards that " they would destroy Hell if they

included under cess. A. L. of I. were used in the same."

Intro. Vol. III. p. xlviii. s gge preface A. L. of I. Vol. ii.

4 For an account of the exaction of p. lii.

30 THE BREHON LAW. [CHAP.

the consent of the chief, to terminate the relation between them
by returning double the stock and seds, and paying a double
food-rent for the year in which they were so returned; again,
if the chief determined the tenancy without due cause he had
to forego his right to one-third of the stock and returnable
seds, and to forfeit one year's food-rent ; while if the chief
insulted the tenant in withdrawing the stock the Daer holder
was allowed in addition to retain that portion representing his
honour price. Other rules provided for double food-rent be-
coming due if the tenant neglected his duties, while he was
excused payment in cases of poverty \ At the end of seven
years on the death of the chief the cattle became the property
of the tenant ; while if the tenant died within the term the
chief was able to claim a submission from his co-heirs.

Before leaving the subject of lands of inheritance it is im-
portant to notice that in the later periods of the Brehon Law
this separate property appears to have been distinctly recog-
nized, and the power of disposing of it not to have been in any
way fettered. The mode of disposal, however, presents both
curious and characteristic traits, for, unlike most archaic systems,
the consensual relations of the contracting parties rather than
the formalities observed by them in carrying out the transfer,
are looked to as constituting the binding matter. The mode of
disposing of land, moreover, seems to have presented few differ-
ences from the informal transfers of personal property. The
traces of a basis of contract in the relations of early Irish
society to the land are of much interest ; not only as a great
contrast to most archaic theory, but also in view of the events
of modem history, when the application of a system of free
contract to Irish land was treated as the panacea for the accu-
mulated evils of centuries.

The ' Mensal ' lands descended by the custom of Tanistry as
the appanage of office, and here again the claims of power are
prominent. Despite the nominally elective nature of the chief-

1 See A. L. of I. Intro. Vol. ii. p. li. on the keen sense of wrong felt by the

and Hi. Bearing in mind the curious tenants in after times on capricious

vitality of old-established ideas these evictions and evictions for non-pay-

provisions possibly throw some light ment of rent when caused by poverty.

II.] THE BREHON LAW. 31

taincy (which even in its latest development was elective in the
individual though hereditary in the family) might constituted
the pre-eminent title. The king once chosen, the Tanaist
seems always to have been selected from that branch of the
family which came next in power : for example, as pointed out
by Mr Skene "the sovereignty over the whole of Ireland fell
for several centuries into one branch of the great family called
the Northern Hy Neill and the throne was filled alternately from
two branches of it\" The mode of succession by Tanistry was
not a feature peculiar to the Irish tribe, for customs analogous to
it are to be traced in many other races. A prominent example of
this is pointed out by Mr Justice Field ^ in the mode of succession
to the Raj existing in many parts of India, where on the decease
of the Rajah the succession goes not to his son but to the eldest
male of the family. In this case also the same distinction is
drawn between lands which are the appanage of office and those
which are the private property of the Rajah ^. Mensal lands
were originally intended to supply the chief with the necessary
regal state, but the principle seems to have eventually been
extended, and lands were set apart for the support of the public
officers of the community such as the Bard, Brehon, Historian,
etc. In later times the revenue of the chiefs was far more
derived from the "cuttings, cosherings and other Irish exactions,
whereby they did spoil and impoverish the people at their
pleasure ^" than from the genuine products of their Mensal lands.
All the lands of whatever kind held by the Church are
grouped under the heading of Termon lands, so called, accord-
ing to Sir John Davies, " because they were ever free from all
impositions and cuttings of the temporal lords, and had the
privilege of sanctuary." The Brehon Law recognized the claim
of the Church to tithes, firstfruits, and firstlings, under which
last head a most curious development of tenure arose: the
firstborn son was claimed as a right by the Church, and though
he obtained his equal share of the family property he held it as

1 Gelt. Scot. Vol. III. p. 150. prevailing amongst the Scottish Celts.

2 Judge of the High Court in Bengal. ^ Sir John Davies' Discoverie of

3 Field p. 242 (note), and see also Ireland, p. 169.
Sir H. Maine as to similar customs

32 THE BREHON LAW. [CHAP.

a Saer-stock tenant from the Church. It is probable that this
right was not generally exacted, but it stands entirely alone as
an instance of clerical power, and it is perhaps a justifiable
theory that some of the Church lands were obtained as gifts
in consideration of not enforcing this demand.

The Church lands were in the first place probably granted
by the tribe from the common stock, and the Brehon Law recog-
nizes to a very remarkable extent the claims of 'the tribe of the
Saint' to support. The most important influence exerted by
the Church on the system of land holding is that it un-
doubtedly did much, from more or less selfish ends, to aid free
alienation of land. The Corns Bescna shows that in the case
of acquisitions the Church had made great inroads on the re-
strictions imposed on alienation by the tribal system ; and that
even in allotments a successful attack had been made on
the original inviolability of tribal possession, as far as regards
alienation to the Church.

There is a curious similarity between the structure of the
religious bodies and the primitive theory of the clan. The
subdivision of the religious organization shows the same aggre-
gate of septs, and the growth and development of each religious
body appears to have exactly resembled the progress of the
secular tribe. We find this assimilation to the general model
even in the fragments of the tribe, the very Fuidhir tenants,
and the servile groups generally, seeming instinctively to have
moulded themselves in the general form, so it is perhaps not
remarkable that the religious community was framed on the
same lines. The relation of the Church to the tenants of
ecclesiastical land is closely analogous to the dealings of the
chief with the tribesman to whom he supplied stock, and
the Saer Manaich and Daer Manaich holders are the exact
equivalent of the Saer and Daer stock holders of the temporal
community. It is far from unlikely that the extent to which
lands were granted to the Church, and the way in which the
original strictness of the tribal rules as to alienation were
relaxed in her favour, may be traced to the fact that the pos-
session of lands by a corporation, the existing members of which
were probably allied by blood to the secular tribe, seemed a

II.] THE BREHON LAW. 33

very different thing from permitting ready alienation of land to
all the members of the tribe, a course which might tend to pass
the lands into the keeping of a temporal enemy. The ingrained
theory of tribal ownership and the absence of any real concep-
tion of tenure in the way in which the word is now used, would
prevent those objections to Mortmain, which would at once
occur to those trained under the feudal system, from possessing
weight. The artificiality of construction shown in the similarity
of the terms and ideas used in the religious clan to those used
in the secular tribe must also have had the effect of strengthen-
ing the apparent unity of the two bodies, and so have lessened
the antagonism to alienation. It must, however, be borne in
mind that this analogy to tribal organization is not confined to
the structure of the early Irish Church, but is also to be traced
in many early forms of guilds and partnerships, associations
which are now considered as springing solely from contract ;
and it has been argued that barrenness of imagination and the
slow generation of ideas is responsible for the similarity, and is
a distinguishing characteristic of the archaic community\

Passing from the Termon lands to those still held in common
by the secular tribe, under a more or less modified form of the
original tribal ownership, they fall naturally into two divisions: —

(1) The Common Pasturage, open to every free tribesman
for the use of his cattle. In this is to be traced the origin of
some of the common lands, which in later times afforded one of
the subjects of contention between the landlord class and the
peasant holders. Two theories of the origin of commons are
advanced, termed respectively the legal and the historical I
The former^ traces them to grants from the lord ; while accord-
ing to the latter" their origin is to be found in the decay of the
Mark or Teutonic village community of freemen cultivating
their lands in common. It is evident that neither of these
theories is completely applicable to the Irish land system. The
Celtic community of the Brehon Laws is found thoroughly

1 E. Hist, of Inst. p. 229 and 232. 3 For an ingenious advocacy of which

2 See an article by Mr Scrutton see Seebohm's English Village Gomrnu-
in Law Quarterly Review 1887, also riity. See also Blackstone, Vol. ii. p. 92.
Mr Scrutton's Yorke Prize Essay on * See Digby's History of Real Pro-
Commons and Common Fields. perty Law, 3rd ed. p. 155 et seq.

M. 3

34 THE BREHON LAW. [CHAP.

started on an agricultural structure of open fields, and common
tillage \ with the power of the chief greatly developed, but yet
not having attained the recognized position necessary to make
him ultimate reversionary owner of the lands, or the head of a
manorial community. For a land system in this archaic state
was suddenly substituted in the reign of James the First the
fully developed feudal system with all lands held by tenure
from the lord. Commons, therefore, which were at this time
recognized, were clearly not derived from any grant from the
lord, but existed either as the survival of the old rights of
common user by the members of the tribal community, or were
created by the English lawyers in the methodical plans on
which the various territorial settlements were based; while any
power exercised by the lord in such lands trenches on pre-
existing rights instead of extending them. This fact would not
have precluded the subsequent creation of commons by grant
had a recognized system of manorial colonies grown up. There
is no trace, however, of this development : the lowest tenants
remained fixed in a state of servile dependency ; and the origin
of the common lands (the enclosure of which was in later times
so bitterly resented by the Irish peasantry as to give rise to the
forcible resistance of the ' Levellers ') may therefore be ascribed
partially to the portions of land in common ownership which
were retained by the English lawyers as commons after the
destruction of the tribal system, and which were regulated and
limited by such statutes as 16 Car. I.^ but rarely extended; and
partially to rights of user acquired in the lands which at the
time of the English settlements were left as unappropriated
wasted

(2) The Arable Lands, or common tillage, which were held
in more or less permanent allotments by the members of the
tribe, the allottee being merely entitled to the usufruct. To the
allotment of such lands the possession of cattle was generally,
if not always, a condition precedent ; as also to the right to

1 There are passages in the Brehon ^ These rights in their inception
Law showing the existence of common probably resembling common pur cause
ploughing. de vicinage.

2 c. 33.

II.] THE BREHON LAW. 35

possess a habitation in the township. It was to these lands, and
to the Gavelkind rules which regulated the succession to them,
that the attention of the English lawyers of the reign of James
the First was most directed.

If the statements of the Brehon Law, which point strongly
to the existence of individual property, are compared with the
statements of Sir John Davies, who seems to have considered
separate property (with the exception of the chiefs demesnes)
as non-existent, the difference between the two views of the
same system is certainly remarkable. The truth lies proba-
bly somewhere between the two, and the manner in which Sir
John Davies regarded the holdings can be accounted for by
the fact that his attention was doubtless most attracted by the
portion of the system most foreign to English notions ; nor is
there any doubt that the rules of Gavelkind did apply to by far
the largest portion of the Irish lands. According to these
rules, as has been said, on the death of one of the sept his lands
returned again into the common stock, and the " Canfinny "
made a redistribution. In this distribution bastards were in-
cluded, but no woman was entitled to a share. The arguments
against the Irish system of Gavelkind, on the strength of which
by a decision of all the judges the custom was abolished, will
be treated of later under the celebrated "Case of Gavelkind":
it is only necessary here to point out that far from being
radically different from the Kentish custom it was in reality
merely a more archaic form of the same usage, and that under
it an undoubted right to the soil was vested in each member
of the sept. An example of such a sept is quoted by Mr
Seebohm from the State Papers of James the First ; it con-
sisted of " 124 persons nearly all bearing the surname of Grame.
They were divided into families, 17 of which were set down as
possessed of £20 and upwards, 4 of £10 and upwards, 6 of the
poorer sort, 6 of no abilities, while as dependents there were
4 servants of the name of Grame, and about a dozen irregular
hangers on\"

Allusion has been made to the heavy exactions by the chief
recognized under the Brehon Law, and much of the abuse of the
'■ English Villaye Community, p. 219.

3—2

36 THE BREHON LAW. [CHAP.

English critics of the Brehon system, headed by Spenser \ is
levelled at them. Such exactions as the " eric " composition for
murder, which is perhaps the one which both most attracted and
biased the criticisms of the English writers, are not within the
scope of this enquiry; but there were certain customs mainly in
the nature of the exactions of food supply by the chief and his
followers, which demand particular notice. These customs
were perhaps neither very unnatural nor very serious in their
inception, but they increased to an alarming extent as cen-
tury after century of war rolled by, and the English colonists
both adopted them as a ready means of exacting spoil from
their dependents, and also it would seem increased their severity.
Under the early tribal system, where the chief was regarded as
the father of the community, these payments probably repre-
sented no great hardship, being exacted in a very intermittent
manner and with some show of consideration ; but in the hands
of the degenerate English and the debased race of warlike
adventurers, who in later times represented the Irish chief-
taincy, they became terrible engines of oppression, and were
adopted as a means of raising money even within the Colony
of the Pale. The growth of these exactions has usually been
ascribed to the abuse of power by the Norman settlers who,
even when they had degenerated into tribal chieftains, were
deemed to have been out of sympathy with the class ruled.
An explanation which was offered by Dr Sullivan and adopted
by the late Sir H. Maine is more probable, namely, that it was
owing to the great increase of the Fuidhir tenants (a natural
result of warlike times) who were in a state of servile depend-
ence, and to whose outcast condition no tribal immunities
attached.

These exactions are met with in many forms and under

1 There is a marked bitterness of was embittered by the failure of his

tone in Spenser's View of the State of venture. A striking proof of the up-

Ireland, though it bears every trace of heavals of society undergone on the

being in the main a truthful state- resettlements of Irish land is found in

ment. He was himself a colonist the fact that a descendant of Spenser

(receiving an allotment of some 3,000 was ejected from this allotment under

acres on the plantation of the Desmond the Cromwellian settlement,
estates) and it is not unlikely that he

il] the brehon law. 37

various names, but they are all of a very similar character,
consisting of a levy of food, usually exacted in primitive
fashion by the chief and his followers quartering themselves
for a more or less lengthy period on the tenant. There
appears little doubt that their origin lay in the tribal obli-
gation to support the chief, but they certainly afterwards
developed into something closely resembling the incidents of
tenure, and were always regarded in this latter light by the
English settlers. In very early times Bonaght^ (that is, money,
food and entertainment for his soldiers, and forage for their
horses) was exacted by the chief at pleasure, and the later de-
velopment of the same custom is found in the coyne and livery*
alluded to in the Irish statutes as a " damnable custom," and
regarded with such fervent hatred by the English settlers*.
Ancient exactions of a similar nature to ' Bonaght ' were
' Sorohen,' ' Kernetty,' * Gillycone,' ' Mosyorowne,' ' Gillen-
inny,' and the levy of ' South ' which we find constantly
alluded to in the History of the Colony of the Pale under the
name of ' cuttings '. ' Coshery,' an exaction of provisions and
lodgings for himself and his retinue levied by the chief, is met
with again and again until the reign of James the First; and
* Refection,' a similar custom (though in its original form con-
fined to a right of the lord to be entertained for one night),
expanded into a most heavy burden on the tenant*. 'Cess' was
the name given to an English exaction founded on the Irish
model, which appears to have been first established in the
reign of Edward the Second, and consisted of a tax of five marks
on every ploughland discretionally levied under the pretence of
prerogative by the chief governors of Ireland for the support of
themselves and the soldiers in garrison ^

1 This was of two kinds, Bonaght •'' John Cottrell was put to death
Bur and Bonaght Beg, the former "because he had introduced and
being at the discretion of the lord, the practised many grievous, foreign and
latter according to agreement. Ware, intolerable laws."

Vol. II. p. 74. 4 Notice also a provision of drink

2 Maurice Fitz Thomas is stated to termed ' satellitum poturae,' the ex-
have been the first of the English to actions termed 'Cuddies' and *Shragh
impose this tax, doing so in the time and Mart.' Ware, Vol. ii. p. 74 and 75.
of Edward II. ^ Jq the reign of Elizabeth we find

38 THE BKEHON LAW. [CHAP.

It would be impossible to overrate the evil effects of these
levies. They utterly prevented proper cultivation of the land,
as the tillers of the soil saw the fruits of their labour liable to
be snatched from them at any time. They diminished the
estimation of all honest industry, to so great an extent that fre-
quently the free members of the sept would not work, lest their
having done so should lower them in the opinion of the chief,
and cause them to be excluded from the partition of tribal lands
in Gavelkind. A further expansion of the same idea being seen
in the class of descendants of a chief, who, when prevented from
living by a system of wholesale plunder, would rather perish
miserably than stoop to what they deemed menial pursuits.
Special attention is drawn to these exactions from the fact that
they were the moral justification advanced for the complete
substitution of English tenures for the Brehon system. That,
as has been stated, they constituted a most crying evil is doubt-
less true, but perhaps it is often forgotten that the English law
which was substituted for them was neither a very enlightened
nor a very humane institution : for example, the eric fine is
certainly repugnant to notions of right, and is palpably open to
abuse in the hands of the wealthy and unscrupulous ^ but the
penal code substituted for it would nowadays be considered a
flagrant evil. It is almost certain also that there was a dis-
tinction between the free tenant and the fuidhir settled on the
waste as regards the liability to the exactions of food levies,
and that the rights of the former have often been .confused
with the servile liabilities of the latter.

When dealing with the substitution of the English for the
Brehon Law one is struck with the entire variance which the
two systems seem to represent, and it is hard to realize that
they are in reality merely different stages of development of
kindred institutions, and that " the germs of feudalism lay deep
in the more ancient Irish social structure." The Brehon Laws
certainly show^ a system to which the notion of feudal owner-
ship is completely foreign ; but, as has been shown, these primi-
tive tribal conceptions had been greatly modified, and the pre-

a protest against the increase of this ^ E. Hist, of Inst. p. 170.

tax. See Ware, Vol. ii. p. 77.

II.] THE BREHON LAW. 39

eminent power of the chief would seem to have been in some
respects a greater evil than the summary feudalization of the
land. Spenser, whose account, if prejudiced, is yet seldom
really inaccurate, states that the chiefs ''use most shamefully
to racke their tenants, laying upon them coin and livery at
pleasure, and exacting of them besides their covenants what he
pleaseth\" and Sir John Davies stated that " the lord was an
absolute tyrant and the tenant a very slave*."

1 Spenser, p. 57. ^ Sir J. Davies' Discoverie, p. 179.

CHAPTER III
The Colony of the Pale

(from Henry II. to Henry VH.).

The influence of the more advanced civilization of foreign
nations was little felt by the early Irish laws and institutions;
and the various predatory incursions, which in early times
ravaged the coasts of Ireland, left no permanent mark on the
tribal system of land-holding, the Norse land system indeed
differing but little from the Irish. From the time of Henry
the Second of England, however, a new feature was introduced
by the appearance of feudal tenures. It is true that though
nominally spread all over the country it was only — until the
time of Elizabeth — within a comparatively limited area that
these tenures for any length of time held sway ; still from the
latter part of the twelfth century, some portion of the land of
Ireland was always so held. The two systems of land-holding,
Brehon and feudal, existed side by side; but save where the
latter had been imposed by force of arms, it gained no converts
from the native race, and failed to alter their ideas of the
relation of the occupier to the land. On the other hand the
Brehon Law secured many adherents from among the English
invaders. The causes of this were various. As Mr Froude
observes, " the Irish Celts possess on their own soil a power
greater than any known family of mankind of assimilating
those who venture among them to their own image \" and the
intermarriages of the English settlers'* with the native popu-

1 The English in Ireland, VoL i. p. daughter of Dermot Mac Murrough,
21. and his followers also largely con-

* Strongbow married Eva, the tracted Irish marriages.

CHAP. III.] THE COLONY OF THE PALE. 41

lation created a class of Anglo-Irish who, bom in the country
and imbued with the native ideas, were galled by the re-
strictions of the feudal tenures by which their lands were
held*. The customs of Gavelkind and Tanistry also attracted
the younger sons and bastards, whom the strict rules of feudal
descent excluded from a share in the inheritance'"^. In result,
until the time of James the First, save in the Colony of the
Pale^, the feudal tenures did not hold, and in no way modified
the Brehon rules which were observed in the rest of Ireland.

It was pointed out by the late Sir Henry Maine'' that to
the existence of the English Colony, we are indebted for much
of the archaic nature of the Brehon Law being preserved to
so late a date in history as it was. The Colony " acting as a
running sore" prevented the internal disturbances of Ireland
from self-adjustment by the natural process of the merger of
all lesser states in one great master kingdom. Had such
arisen it would have established a centralized government,
and thus by endowing the Brehon Code with the force of more
certain judicial sanctions would have greatly modified the
loosely administered and in many cases conflicting laws, and
even in the end have changed the theory of land-holding by
the simple process of development.

The English invasion of Ireland took place towards the
latter part of the reign of Henry the Second (though it is
evident by the Bull obtained from Adrian the Fourth in 1155^

1 There is ample proof that they a double ditch, six feet high *on the
regarded with even more dislike than side which meared next to the Irish-
did the native Irish, the aids, reliefs, man' (see Field, p. 249). In the earlier
&c. of the feudal tenures. periods of English rule the district

2 Primogeniture, however, though occupied by the English was termed
by this time fairly established as a * the land of Ireland.'
characteristic of the feudal system, was ^ E. Hist, of Inst., pp. 54 and 55.
not a feature of the early feud, which ^ This Bull reserved a payment of
descended to all the sons equally, while Peter's pence to Kome, and was in
from Glanville we know that as late as fact a bold attempt to make Ireland
Henry II. land held in socage frequently a spiritual fee — it was confirmed by
descended to all the sons equally. Alexander III. The Papal claim of

3 The term * Colony of the Pale ' right to make this grant was based on
arose from the provision of Poyning's the forged donation of Constantine,
law (1494) which enjoined on the which gave all islands to the see of
English colony the maintenance of Kome.

42 THE COLONY OF THE PALE [CHAP.

that Henry had early* meditated a descent upon that country)
when, urged by the tempting bribes offered by Dermot Mac
Murrough to those who would assist him to recover the
kingship of Leinster, an expedition of Norman and Welsh
adventurers landed in Ireland in May, 1169^ The command
of this expedition was ultimately assumed by Richard de Clare,
Earl of Pembroke, better known as Strongbow, who landed
near Waterford with some 1200 men and 200 knights on the
eve of St Bartholomew, 1170. Besides many small tribes
there were at this time five principal sovereignties in Ireland,
Munster, Leinster, Meath, Ulster, and Connaught, the leader
of the most powerful of these being termed monarch of Ireland,
and holding Meath as an appanage of office. This post was
then occupied by Roderic O'Connor, king of Connaught,
against whom the efforts of the English expedition were
directed. Strongbow was successful in gaining the more or
less complete possession of Dublin, Meath, Leinster, and Water-
ford as far as Dungarvan; but the expedition, which at first
had the countenance of the English king, ere long incurred
his displeasure. Strongbow, finding his supplies from England
cut off, and his precarious position in Ireland rendered practi-
cally untenable, offered to Henry the lands he had won^.
After some delay, and after an interview had taken place at
Gloucester between the Earl and the King, Henry accepted
the surrender of Dublin and all other ports and fortresses
then (or to be) conquered in Ireland, and granted to the Earl

1 Henry is sometimes thought to with the following letter, "My sove-
have originally intended Ireland for reign lord, I came into this land, and
his brother William, for whom no (if I remember aright) with your per-
pro vision had been made by their late mission, for the purpose of restoring
father (see Moore's Hist, of Ireland, your liegeman Dermot Mac Murrough,
Vol. II. p. 205). William the Con- and whatsoever the favour of fortune
queror had planned the conquest of has bestowed upon me, whether from
Ireland, William Eufus had had simi- his patrimony or from any other
lar designs. See Pearson, p. 520 quot- source, as to your generous munifi-
ing A. S. Chron. and Girald. Camb. cence I owe it all, so shall it all return

2 This date is sometimes given as to you, and be placed at the disposal
1170. of your absolute will and pleasure.

'^ Strongbow first despatched Kay- See Moore, Vol. ii. p. 235.
mond Le Gros to Henry in Normandy

III.] FROM HENRY II. TO HENRY VII. 43

and his heirs for ever all his other acquisitions, to be held
as fiefs of the English crown. From this period dates the
authority of the English monarchs over Ireland, and the exist-
ence of the feudal tenures in that country.

In October 1171 \ Henry himself landed in Ireland with
500 knights and about 4000 men ; the chief event of his stay
of importance as affecting the land law of Ireland being the
holding of a Curia Regis at Lismore'^ at which Council it is
stated that the laws of England were accepted under oath by
those present ^ It is probably incorrect, however, to imagine
that the English law was ever intended to apply to the mass
of native Irish ; for at the Synod of Cashel the Irish clergy
were specially exempted from the payment of the eric fine*,
and from coyne and coshering — provisions which would be
meaningless unless such incidents of the Irish land system
had been contemplated as remaining in force amongst the
native race^ In support of this view it is noticeable that
when a confirmatory grant of the laws and customs of England
was given by John, and again by Henry the Third, it was
confined to such of the Irish as became liege subjects; also
there are large numbers of Royal grants of naturalization made
upon petition to the offspring of Anglo-Irish marriages, giving
them the benefit of the English laws and franchises I Henry's

^ This date is often stated to be Oct. is made among the lay people, for any

1172, but see Dr O'Connor's criticisms murther, that no person of the clergy

on Leland, Rer. Hib. scrip., torn. ii. (though he be kin to any of the parties)

cxv.; see also Lord Lyttelton's Life of shall contribute anything thereto, but

Henry II. , Field, p. 244. Girald. Camb. as they be guiltless from the murther,

gives date as 1172. so shall they be free from payment of

2 Whatever laws were enacted at this mony, for any such earick or release
time are lost, but we find an allusion for the same." See Cox's History of
to one of the statutes passed by Henry Ireland, p. 23, and Giraldus Cambreu-
in 2 Rich. III. c. 8. sis. Rolls Series, Vol. v. ch. 35, p.

3 "Sed rex pater, antequam ab Hy- 281.

hernia rediret, apud Lissemor conci- ^ Thomas Moore's History of Ire-

lium congregavit, ubi leges Angliae ab land, Vol. ii. pp. 258, 259.

omnibus sunt gratanter acceptae, et, ^ See Warner's History of Ireland,

juratoria cautione praestita confirma- p. 93, and Moore, Vol. ii. p. 332 (note),

tae." Matth. Paris. " Historia An- says, "among the records of the Irish

glorum." Rolls Series, Vol.i. p. 371. Rolls office are many of these licenses

•* "That when earick or composition granted to particular Irish to use the

44 THE COLONY OF THE PALE [CHAP.

object was not so much to regulate the customs and manner
of the minor and native Irish holdings, as to obtain a public
ratification of his feudal lordship from the English settler
barons, and from the more important Irish chieftains. Never-
theless all the laws enacted by him when in Ireland followed
the feudal polity, and the estates he granted were in con-
sideration of homage, fealty, and military or honorary service;
the grantees under tenures then created being tenants in
capite, examples being the tenure on which Strongbow re-
ceived the principality of Leinster, and Hugh de Lacy the
seigniory of Meath\

It should be remembered that the English feudal system of
this date was a more complete engine of monarchical power than
continental feudalism, which possessed a weak point in the
absence of immediate relation between the tenant of a mesne
lord and the feudal sovereign. William, on the conquest of
England, utilized the existence of the 'trinoda necessitas' as
a lever for remedying this blot^ and by the time of Henry the
Second the doctrine that where land was held of a mesne lord,
the service was due to the king, was firmly established; the
form of homage adopted after the Conquest to create the feudal
tie between a mesne lord and his tenant always containing a
saving of the allegiance due to the king. The system in
Ireland was, however, in many cases different ^ The large

English laws, some of them being Irish crown, and by this grant Hugh de

women whose husbands were English." Lacy obtained about 800,000 acres,

Attention is also called to the careful held by the tenure of fifty knights'

exclusion of the native Irish as a mass service. The Baronial Courts held

from English privileges. A grant is within this area eventually became so

quoted of English privileges to two powerful that they were suppressed as

Irishmen, given in the Close Koll 37 interfering with the rights of the crown,

Henry III., where the writ especially see Moore's History of Ireland. This

states that this favour was granted large grant was evidently made with

them "notwithstanding that they were a view to counterbalancing the power

Irish," Vol. III. p. 22. Notice also two of Strongbow.

records, viz. 2 Ed. III. Claus. Membr. ^ Notice the oath at Sarum, a.d.

17, and 28 Ed. III. quoted in the 1086.

' Case of Tanistry.' Davies' Keports, ^ For example in the cases of Strong-

p. 103. bow and de Lacy, and later in the

1 Meath, as the former appanage of cases of the Butlers and Geraldines.
Irish Koyalty, had passed to the English

III.] FROM HENRY II. TO HENRY VII. 45

grants which Henry made were grants which carried also the
privileges of a county Palatine \ and gave to the grantee the
right of civil and criminal jurisdiction independent of the
crown '^ The lord of such a fee could enfeoff tenants to hold of
himself, escheats for treason accrued to him instead of to the
crown, and the king's process ranged only in the church lands I

Henry did not assume the title of king of Ireland, but
seems to have been satisfied with being acknowledged a sort of
* paramount power".' It has been asserted, and is not unlikely,
that much of the readiness with which the Irish chieftains sub-
mitted to him was due to the fact that they merely understood
the feudal bond as binding them to a general support of the
king by military service, and were in complete ignorance of the
change in the title to their lands which the subtle and intricate
system of the Norman lawyers deduced from the apparently
simple ceremony of homage and fealty. Mr Pearson says
" From the English point of view, the kings of England were
henceforth lords-paramount of Ireland, with the fee of the soil
vested in them, and all Irish princes in future were no more
than tenants-in-chief From the Irish point of view, the Eng-
lish kings were nothing more than military suzerains in the
districts outside the Pale''."

Roderic O'Connor, though crippled in power by the con-
quests of Strongbow and reduced to treat for peace, was still
far from conquered at the time when the English king visited
Ireland, and it is probable that steps would have been taken to
reduce him to subjection had not the investigation then pending
into the death of Becket forced Henry to return home in April
11 72^ Ireland was then, in name at least, completely conquered,

1 In the proceedings of the Irish enter all franchises for the apprehen-
Parliament in 1467 among the un- sion of felons or traitors.

printed statutes is one enacting that ^ It is noticeable that even the

the Palatine liberty of Meath, despite Leinster provinces of Strongbow,

its merger in the crown by inherit- though acquired in right of his wife,

ance, should continue. were surrendered and reconveyed in

2 Hallam's Const. Hist., Vol. iii. feudal form.

chapter 18, p. 347. ^ jjig^^ ^y ^j^g^ during Early and

^ But by the statute of Kilkenny Middle Ages, Vol. i. p. 531.
the king's sheriffs were entitled to t^ Whence it is said he sent a 'modus

46 tHE COLONY OF THE PALE [CHAP.

Ulster alone being admittedly unsubdued. In 1175 a treaty
was concluded at Windsor between Henry and the emissaries of
Roderic, by which Roderic, in consideration of having done
homage and undertaking an annual tribute for himself and the
Irish at large of one merchantable hide for every tenth head of
cattle killed in Ireland outside the English provinces, was to
hold his lands peaceably, as a king under Henry, and to have
dominion over all Ireland save the then English possessions of
Dublin, Meath, Leinster and Waterford\ provided he remained
faithful and preserved his covenants ^ If Roderic regarded this
treaty but lightly the English king also seems not to have felt
in the least fettered by it, and it is probable that he had from
the first only regarded it as another means of asserting his
paramount suzerainty over the whole of Ireland : for despite its
provisions "all Ireland was by Henry the Second cantonized
amongst ten of the English nation, and though they did not gain
possession of one-third of the kingdom, yet in title they were
owners and lords of all, as nothing was left to be granted to the
natives ^"

The policy of Henry is evident; he intended that the feudal
grantees should subdue this turbulent kingdom, and in serving
their own ends establish also the dominion of the English kings
over the whole of Ireland. One cannot but wonder that the
far-sighted scheme was not fulfilled in history. That the de-
scendants of the chivalry, which only a hundred years before

tenendi Parliamenta ' to Ireland, but ei tributum : totam illam terrain ..

the authority and antiquity of this habitatores terrae habeat sub se ; ..

document cannot be maintained despite Justitiae ut tributum Kegi Angliae

the championship of it by Sir Edward integre persolvant, per manum ejus

Coke. sua jura sibi conservent, .. illi qui

1 Waterford that is to say as far as modo tenent, teneant in pace, quamdiu
Dungarvan. manserint in fidelitate Eegis AngHae,

2 Quod Kex Angliae concedit prae- .. fideliter .. integre persolverint tribu-
dicto Roderico, Ligeo homini suo tum, .. alia jura sua quae ei debent,
Kegnum Conaciae, quamdiu ei fideliter per manum Regis Conaciae, salvo in
serviet, ut sit Rex sub eo, paratus ad omnibus jure .. honore Domini Regis
servitium suum, sicut homo suus .. ut Angliae .. suo, etc. etc. — Cox's Hist.
teneat terram suam ita bene, .. in pace, of I. page 29.

sicut tenuit, antequam Dominus Rex ^ Sir John Davies' Discoverie, p.

Angliae intravit Hiberniam reddendo 137,— and see Field, p. 244, 245.

III.] FROM HENRY IT. TO HENRY VII. 47

rode rough-shod over Saxon England, and a century and a half
before that wrested Normandy from "Frank Noblesse and
Romanesque provincials," carving so goodly a heritage with the
sword, should have failed for centuries to subdue an uncivilized
people, is in many ways remarkable. The Irish, despite their
valour, were most contemptible adversaries to Norman disci-
pline, and that civilization should have failed to follow the
victorious banner is a curious problem. Stranger still is it to
find that as time went on not only did the English power in
Ireland wane, and the limits of the Colony of the Pale become
more and more contracted, but also that the glamour of the
Celt was over all the land; that proud de Burgh and courtly
Geraldine had become mere tribal chieftains^; that the Butlers
ruled but as half civilized petty kings; and that the descendants
of the frugal, scholarly, priest-army of the Conqueror William
had sunk to lives of debauchery and rapine. The children of a
race who had written their laws in blood on the English statute
book threw oft' the shackles of the system their ancestors had so
laboriously welded, and assimilated themselves to the social
condition and primitive land system of the Brehon Law to such
an extent that the law of England was never " properly applied
unto the Irish nation as of a purposed plot of government^"
until James the First.

In May 1177 Henry (having obtained a permissive Bull
from Pope Alexander the Third) in Council at Oxford con-
stituted John, a child of eleven, king of Ireland^ ; the Legate
Vivianus having shortly before this held a Synod at Dublin in
which he published the king's title. The Prince, however, is
always termed merely Lord of Ireland and Earl of Moreton. The

1 Land System of Ireland^ O'Connor The matter was mooted before the
Morris, L. Q. R. 1887, p. 137. English judges in the decision on the

2 Spenser's View and perfect Bis- precedent of the Staple Act (2 Hen.
covery of Ireland, edition 1633, p. 10. VI.). Chief Justice Coke, Sir J. Davies

3 This donation of Ireland to John and Molyneux have all treated at
has given rise to many controversies length of the matter, and reference
(1) as to whether it created Ireland a should be made to Sir J. Davies'
separate kingdom from England, (2) speech in 1613 when Speaker of the
as to whether it prevented the laws of Irish House of Commons. See Moore,
England being binding on Ireland. Vol. ii. p. 329.

48 THE COLONY OF THE PALE [CHAP.

feudal grants before made by Henry were confirmed with
alterations by new charters under which the lands were gene-
rally held from John instead of from the king\ These grants,
however, are very inconsistent, Henry's opinion of the wisdom
of the step he had taken in constituting John king of Ireland
seeming to vary from time to time. Frequently the appoint-
ment appears to have been altogether disregarded : there are
grants by Henry, subsequent to the Council at Oxford, in which
lands are granted to be held of himself alone and his heirs,
while others grant by tenure from him and John and their
heirs I Grants of fiefs not formerly existing were also made at
this time^ (many of which were never more than nominal, the
grantees failing to reduce them to subjection), and the policy of
Henry for the subjection of the land was followed by his grantees
who largely subinfeudated their possessions.

In 1185 John, then only nineteen years of age, landed at
Waterford with a considerable force. His stay, which might
have ended in the complete subjection of the Irish, was really
the commencement of that decay of the English power which
left the Colony of the Pale at the close of the fifteenth century
possessed of merely a strip of land round Dublin. The offence
given by the Prince and his followers to the Irish tributary
chiefs, the impolitic resumption of the royal demesnes, and
the unjust and shameful expedition of Philip of Worcester
into Ulster, sowed the seeds of wide-spread revolt and suc-
cessful retaliation; whilst the recall of John and the appoint-
ment of de Courcy as governor came too late to be availing.
The succession of Richard the First to the English crown did
not interfere with the nominal lordship or kingship of John
over Ireland, and for the next hundred years the history of
this unhappy country is a record of bloodshed and rapine.
The English settlers strove by force to gain possession of the
broad lands so glibly granted them, and "they built castles
and made freeholds but no tenures or services were reserved
to the crown"*;" while both the Irish chieftains and English

1 e.g. The new grant of Meath to ^ e.g. The grant of Limerick or
Hugh de Lacy. North Munster.

2 See Moore, Vol. ii. p. 330. 4 ggg Field, p. 245.

III.] FROM HENRY II. TO HENRY VII. 49

lords warred amongst themselves as well as against one
another. As still further extending the titular claims of the
English to the Irish soil a surrender should be noticed in
1205 by Cathal, son of Roderic, to John. This arrangement
finally abandoned the violated treaty of Windsor, delivered to
the English crown two-thirds of Connaught, and acknowledged
John's lordship over the remainder by the annual payment
of one hundred marks\ In 1210 John, this time in the
full dignity of King of England, but under the ban of ex-
communication, again visited Ireland, and received the homage
of many Irish princes and settler barons. To this date is
ascribed the division of the English provinces into shires and
counties; and it is also stated that an abstract of the laws
and customs of England was placed in the Exchequer at
Dublin. An allusion to this gift of the English laws is con-
tained in the writ of 11 Hen. III.^, but as has been before
stated neither of these grants seems to have had any real
application to the native Irish ^ The visit of John, as indeed
the whole of his reign, advanced but little the summary
feudalization of the main body of Ireland. Within the English
colony, however, the feudal system was fully followed, at any
rate in its most onerous incidents, for there are many writs of
this reign extant demanding 'consilium et auxilium*'.

The reign of Henry the Third of England produced also
but little benefit; the Irish Charter proved a worthless gift,
and was never intended to reach the case of the native race.
A variety of new grants in feudal form^ are noticeable, chief
among which is that of the whole of Connaught to Richard

^ John was allowed, it would seem, by a landlord within the Pale seems

to choose his portions from the best to be under Stat. West. 2nd (13

of the province. See letter to Meiler Edw. I.) which gave a right to a writ

Fitz-Henry, quoted by Leland, Vol. i. of cessavit against the tenant for two

p. 175. years' default in the reserved services.

2 See Cox, p. 51, where the writ of See Sigerson, pp. 15, 16 (note).
Henry HI. is quoted. s Henry HI. made his son Edward

3 See ante, p. 43. 'lord of Ireland,' and a writ {Rot.
^ See Moore. In the Incorporation Pat. 40 Hen. HI. m. 12) authorised the

Charter of Dublin given in 1192, bur- Prince's seal as the great seal of Ireland,
gage tenure is established. The first see Constitution of England and Ireland,
case of legal action against a tenant by Sir W. Betham, p. 254.

M. 4

50 THE COLONY OF THE PALE .- [CHAP.

de Burgh, in utter defiance of John's re-grant to Cathal on his
surrender of that province which has been alluded to before \
The conflicting titles'"^ to the Irish provinces at this time
were of themselves sufficient to stir up war, independent of
the national animosities involved ; and murder, massacre, and
treachery form the staple of the history of this period. In
1272, a century from the installation of the English power in
Ireland, a petition was presented to Edward the First asking
for the extension to the Irish of the laws and customs of
England. The petitioners were most likely the inhabitants
of the districts adjoining the Colony, and the memorial does
not seem to have been considered until 1280, or to have led
to any important result, but it is a significant proof of the
failure of English civilization to extend outside the limits of
the Pale I

Maddened by oppression and outrage^ the native race
sought in 1315 the assistance of Bruce to destroy the English
dominion, but upon the failure of his expedition they merely
found themselves in worse case than before, and fresh exactions
and severities were heaped upon 'the mere Irish.' Slowly
but surely, however, the Celtic race had been absorbing to

^ See ante, p. 49. " until the terra rolls, from the portly

2 As late as 1220 the Pope in send- size of from 60 to 90 membranes, for

ing letters to Connaught, Ulster and the proceedings of each, are shrunk

Munster, addressed the kings of Con- to four." Constitution of England and

naught, Cork, Limerick and Ulster. Ireland, p. 350.

See Church History of Ireland, S. Ma- ^ How really great were the wrongs
lone. of the Irish people is shown by the
'^ Attention was called by Sir W. statement of their case forwarded to
Betham to the fact that the size of the Pope about this time, by O'Neil,
the Placita Kolls of the Courts are an prince of Tyrone, which appears to be
indication by which the extent of no exaggerated catalogue of injustice
English law and power at different and crime; and by the record cited by
times may be judged. During the Sir John Davies {Discoverie, p. 109),
reigns of Henry III. and Edward I., 4 Edw. II. where a murderer's defence
Edward II. and Edward III. they are reads "bene cognovit quod prsedictum
large and well-written, " pleas and as- Johannem interfecit ; dicit tamen quod
sizes were held by the justices itinerant per ejus interjectionem feloniam com-
in most parts of Ireland, and the plead- mittere non noluit, quia dicet quod
ings exhibit an exact sequence and all praedictus Johannes fuit purus Hi-
regularity of form and precedent." bernicus."
After these reigns they steadily decrease

III.] FROM HENRY II. TO HENRY VII. 51

itself and incorporating in its being the descendants of the
proud Norman settler barons. Severed from England and tied
to the land of their adoption, the subtle influence of the soil
and the alteration in the blood by admixture of race, had
their natural effect. The amalgamation was aided, moreover,
by the wild anarchy of the land, for in times when every man's
hand was against his brother, an English lord of an Irish fief
must have owed all his chances not only of supremacy but of
actual existence to the loyalty to his banner of his Irish de-
pendents; and while "to the Irish kern it mattered little
whether his chief was a Geraldine or an O'Connor; it mattered
much whether he was to be ruled under the imported laws
of the stranger or by the customs and traditions of his own
people.... The baron and his Irish retainers found the rela-
tions between them grow easy when the customs of the country
were allowed to standi" So, by a strange irony of fate, the
very men and means designed for the subjugation of the
native system endowed it with a stubborn vitality quite foreign
to its natural character.

The defection of the English-born subjects of the crown
was not tamely countenanced by either the home government or
the English Colony, and in 1341 the policy of the English king
was specially directed towards breaking the power and wealth
of these descendants of the first Anglo-Norman conquerors
of Ireland. The first step taken was "a general resumption
of all the lands, liberties, seigniories, and jurisdictions that had
been granted in Ireland not only by Edward the Third himself
but also by his father I" Next followed in 1342 the removal
of the Anglo-Irish from offices under the crown ^; and in 1355
came a series of ordinances forbidding intermarriages betwixt
English and Irish, and rendering illegal the practice of foster-
ing* which was largely carried on.

* English in Ireland, Fronde, Vol. i. the administration of justice in Ire-

p. 24. land.

2 Moore, Vol. iii. p. 95. 4 xhis practice of fostering was of

3 Close Roll, 15 Edw. III. In the great antiquity, and Dr Whitley
reign of Edw. III. also was passed an Stokes, in the Tripartite Life of St
" Ordinatio pro statu terrae Hiber- Patrick, Vol. i. p. clxix, says, " The
niae," 31 Edw. III. st. 4, to amend relations of fosterer and fosterling seem

4-^2

52 THE COLONY OF THE PALE [CHAP.

Some doubt has been expressed as to the way in which
English statutes were made to apply to Ireland. It is cus-
tomary to find in the Irish enactments allusions to the English
statutes as though without any formality they were as a matter
of course part of the law of Ireland : it is most likely that they
were introduced by the simple process of sending them over
under the great seal, the methods of legislation being at this
date arbitrary in the extreme \

Gradually but surely as time went on the power of the
Celtic customs made head against the English laws, and the
Anglo-Irish rulers became more and more synonymous with
the native race. At length in 1367 was passed the memorable
Act known as the Statute of Kilkenny, by which a determined
effort was made, on the part of those settlers and colonists who
were still loyal to the English rule, to stem the tide of Celtic
influence^. By this statute it was made treason for one of
English birth or blood to accept or rule by the Brehon Law ;
and to intermarry, or to permit the fosterage of children^ with
the Irish : whilst the penalty of forfeiture was attached to those
who adopted the names, tongue, or manners of the mere Irish.
The efforts of civilization to reclaim her errant children came,
however, too late, and from this time the legislation of the
English colony is occupied more in repeated and futile at-
tempts at the repression of the alien and degenerate English

in Ireland to have been of almost more se governent as Maniers, guise, et lang

importance than those of parent and des Irrois enemies, et auxaint ownt fait

child;" he mentions that there was divers mariages et aliaunces enter eux

frequently a plurality of fosterers, in- et les Irrois enemyes" (quoted by Si-

stancing Cormac, the son of Enda, gerson from "Tracts relating to Ire-

who had four, and the curious ques- land," Irish Archffiological Society),

tion addressed to St Patrick as to This statute was renewed by every

whether ' God's son had many foster Parliament until 1452.

fathers' (si filium ejus nutrierunt ^ xhe subject of fosterage as dealt

multi). with in the Brehon Law will be found

1 See Eeeve's History of the English in the 'Cain larrath,' one of the sub-
Law, Vol. II. p. 249, 250. tracts of the Senchus Mor. It presents

2 How strong this influence had a glimpse of the social life of the Irish
become is shown by the following ex- worthy of much attention, — for an
tract. "Et ore plusors Engleis de la able resume see the introduction to
dit terre guepissant la lang, gis, mon- the second volume of the Ancient Laios
ture, leys, usages. Engleis vivent et of Ireland.

III.

FROM HENRY II. TO HENRY VII.

than in a struggle against the purely native race. When
Richard the Second in 1394 came over to Ireland, the force at
his command, it is true, for a time brought the lapsed chiefs
again to their allegiance, but the revival of English authority
was only temporary. The absenteeism of many of the loyal
lords prevented any possibility of the retention of power over
the Anglo-Irish chieftains, and the prohibition of absenteeism
under pain of forfeiture does not appear to have efficaciously
grappled with the difficulty. The circle of the English colony
grew steadily less, and in the reign of Henry the Fourth there
are significant proofs of the decreased power of the Pale and
the formidable encroachments upon it by the Irish, in the
licenses given to particular colonists to war with " the enemy,"
In addition there are licenses to trade, and (despite the Statute
of Kilkenny) to intermarry and to enter into gossipred and
fosterage with the Irish, which are manifestly concessions to
the exigencies of circumstances^; a fact further shown by the
payment of ' black rent ' by the English authorities to buy off
the hostility of neighbouring chieftains. Towards the end of
this reign it was admitted in Parliament by the Speaker of the
English House of Commons that the greater part of Ireland
had been 'conquered' by the natives'^; and the conquests of
Henry the Fifth in France prevented a great military genius
from employing in the subjugation of what was nominally his
own kingdom, the army with which for a time France was ' re-
duced to an English province^.'

1 Instances of these licenses are
quoted by Moore, Vol. iii. pp. 148,
149:—

(1) Tomake war... "Rex, pro eo quod
maneria et possessiones Cornelii Epis-
copi in Lym. in frontura raarchiarum
inter Hibernicos inimicos et Anglicos
rebelles sita sunt, concessit ei, tenen-
tibus et serventibus suis quod ipsi cum
dictis Hibernicis, etc. tractare possent."
Pat. Roll 10 Hen. IV.

(2) For fosterage... "Rex, pro servicio,
licentiam dedit Willielmo filio Henric.
Betagh quod ipse Elizam filiam suam
cuidam Odoni Oraylly Hibernico dare

possit ad nutriendum." Pat. Roll 7
Hen. IV.

2 See Lingard's Hist, of Eng.^ Vol.
II. p. 320.

3 A military expedition round the
borders of the Pale was indeed carried
out with success during this reign by
Sir John Talbot, but it was productive
of no lasting effect and is mainly no-
ticeable from the fact that the ill-paid
soldiery levied 'coyne and livery' on
the inhabitants of the Colony ; a curi-
ous instance of the vitality of the Irish
customs.

54 THE COLONY OF THE PALE, [CHAP. IIL

The inattention displayed by the conqueror of Agincourt to
the needs of Ireland was not caused by any want of energy
on the part of the English colony there in proclaiming their
grievances. In the Close Roll of 9 Henry V. is a most lengthy
petition^ for redress of their wrongs, which amongst other
points complains to the king that "his poor lieges are dis-
tressed, and his land, for the greater part, wasted and de-
stroyed by the Irish enemies and English rebels, as well by
their continual wars on his said lieges in each country of his
said land, as by divers extortions, oppressions, non-payments

and evil coignes by divers lieutenants and by default of

due execution of his laws." Henry the Fifth, however, was
totally engrossed by continental conquest, and no heed seems
to have been paid to the representations from Ireland. On
his death the guardians of Henry the Sixth had more im-
portant matters to deal with at home, and the result of this
neglect was soon apparent. About this time it was stated "yr
is not left in the nethir parties of the counties of Dyvelin
(Dublin), Mith (Meath), Loueth and Kildare, that yoynin to
gadyr, oute of the subjection of the saide enemyes and rebels
scarisly xxx miles in lengthe, and xx in brede ther, as a
man may surely ride other go, to answerre to the Kynge's
writtesl"

1 Quoted in full by Sir W. Betham, sent to Hen. VI. which are in the

The Constitution of England and Ire- Close KoU 7 Hen. VI. and 14 Hen. VI.

land, pp. 335 — 350. respectively, both are quoted by Be-

^ Sigerson, p. 21 : see also two re- tham, pp. 353—365.
presentations of the state of Ireland

CHAPTER IV.
The Colony of the Pale

(From Henry VII. to James I.).

When the House of Tudor ascended the English throne a
marked change came over the relations of England to Ireland.
Following out in succession that bent for the establishment
of law and order which was the distinguishing characteristic
of these powerful sovereigns, a determined effort was made
to reduce to subjection the turbulent country. Henry the
Seventh was not firmly enough seated on the English throne to
accomplish much, but after the defeat of the Anglo-Irish ex-
pedition in favour of Simnel at Stoke he sent Sir Richard
Edgecombe in 1488 to exact new oaths of allegiance from the
Irish feudatories \ It is curious, therefore, to note that Henry
the Seventh seems to have considered that the policy of Henry
the Second as to the subjection of Ireland by the agency of
feudal lords, was the best plan of introducing order into the
country ; whereas in England his efforts were directed to break-
ing the power of the barons. After the Warbeck plots the
famous Statute of Drogheda termed 'Poyning's Law^' was
passed, which restricted the holding of Parliaments in Ireland
save when the causes and considerations of Acts intended to be
passed had been approved by the English King and Council^
It was to the provision of this law respecting the maintenance
of a frontier fortification by the English settlement that the
term 'Colony of the Pale' is due. Acts of this date also
revive the Statute of Kilkenny*; contain many provisions for

1 Field, p. 248. then sent into Ireland as deputy.

2 Passed at Drogheda in November, ^ iq Henry VII. c. 4 (Irish).
1494, called after Sir Edward Poyning, * lb. c. 8 (Irish).

56 THE COLONY OF THE PALE [CHAP.

the better protection of the Marches^; and deal with the heavy
exactions by the lords^ a very necessary step, for " doomed to
suffer by the peculiar oppressions of both countries, Ireland
was harassed not only by her own ancient exactions, coyne
and livery, but also by the English mode of extortion, pur-
veyance I" Eventually Henry the Seventh seems to have
abandoned his original plan of ruling by means of the
Anglo-Irish barons, for, with a view to crushing their power,
an Act was passed for the resumption of the greater part of
the crown grants made since the time of Edward the Second*.
It is important to bear in mind that though when first made
laws practically affected merely the Colony of the Pale, yet
as the power of the crown extended over Ireland so did the
statute law.

On the accession of Henry the Eighth a policy, at once
more extended in its aims and more vigorous in its execution
than had before characterized the English relations with Ire-
land, was entered upon. This as first carried out was free
from the severity which it afterwards developed^ Still fol-
lowing the idea of obtaining subjection by means of crown
feudatories Henry strove to resuscitate the system of Anglo-
Irish lords, and to assimilate the native Irish Princes to the
same model. The desire to vest large estates in the grantees
of the crown evidently aimed at the hold which would be
thus obtained upon such grantees by the forfeiture to which
their estates would become liable in case of treason; and it
was doubtless considered that the antagonism of interest
created between the feudal grantee and tribal usage would
lead to the total overthrow of the popular system I To the
ever recurrent overthrow of schemes which the English, to do
them justice, considered great reforms, must be ascribed much

1 10 Henry VII. c. 10 (Irish). doned most of the great men who had

2 lb. c. 18 (Irish). been engaged in the Warbeck Plot,

3 Moore, Vol. iii. p. 221. By 10 and the Liberties and Charter of
Hen. VII. c. 22 all the statutes made Youghal were restored and confirmed,
in England relating to the public weal Cox, p. 192.

were made good and effectual also ^ O'Connor Morris, L. Q. Revieic^

as regards Ireland. 1887, p. 138.

^ Cox, p. 189. Henry however par- ^ See Intro. A. L.of I. Vol. iii.

IV.] FROM HENRY VIL TO JAMES I. 57

of the bitterness of feeling with which Irish customs were
regarded.

A report prepared for Henry the Eighth in 1515^ gives a
graphic description of the state of Ireland at that time ; after
prefacing that " Ther byn more than 60 countryes, called
Regyons, in Ireland, inhabytyd with the Kinges Irish enymyes ;
some region as bygge as a shyre, some more, some lesse, unto
a lytyll ; some as bygge as halffe a shyre and some a lytyll
lesse ; where reygneith more than 60 chyef Capytaynes wherof

some callyth themselffes Kynges, that lyveyth onely by the

swerde, and obeyeth to no other temperall person, but onely to
himself that is stronge ; and every of the said Capytaynes
makeyth warre and peace for hymself, and holdeith by swerde,
and hath imperiall jurysdyction within his rome, and obeyeth
to noo other person, Englyshe ne Iryshe, except only to suche
persones, as maye subdue hym by the swerde:" it deals at
some length with the native Irish and the Anglo-Irish leaders,
and says

" The names of the Countyes subjett unto the Kinge's lawes
Halff the countye of Uryell (Louth) by estimation
„ „ Meath

Dublyn
Kyldare
„ „ Wexford.

"All the comyn peoplle of the said halff countyes, that obey-
eth the Kynge's lawes, for the more parte ben of Iryshe byrthe,
of Iryshe habyte and of Iryshe langagel" The report con-
tinues that tribute was paid by the English settlement to the
wild Iryshe : —

"The countye of Uryell payeth yerely to the great Oneyll 40£

Meath „ „ to Ochonour 300£

„ „ Kyldare „ „ to the said Ochonour 20£

^ State of Ireland and a Plan for its ments in the same volume of the State

Reformation, State Papers, Henry VIII. Papers, pp. 338—481 as to the scarcity

Vol. II. part iii. pp. 1—30. This report of English.

is founded mainly on the ' Salus Po- 2 state Papers, Henry VIII. Vol. 11.

pwh'' of Pandarus. Compare also state- pt. iii. p. 8.

58 THE COLONY OF THE PALE [CHAP.

The Kynge's exchequer payeth yerely to M^Murho 80 markes

„ Countye of Wexfor „ „ „ „ &toArteOboy 40£\"

And it is plain how greatly the means of exaction of both
the Irish and the English landed systems were pressed upon
the inhabitants of the Pale, for the report says that : —

" What with the extortion of coyne and lyverye dayly, and
wyth the wrongful exactions of osteing money, and of caryage
and cartage dayly, and what with the Kinge's greate subsydye
yerely, and with the said trybute and blak rent to the Kynge's
Iryshe enymyes, and other infynyt extortions and dayly
exactions^," they were even more heavily oppressed than the
inhabitants of the Marches.

Henry endeavoured to change this state of affairs by the
enforcement of English rule, and was to a certain limited
extent successfur\ His assumption of the title of King of Ire-
land was well received ; and by bribing the leading native chiefs
with the spoils of the Church, in the shape of lands formerly
belonging to the Irish abbeys*, he induced some of them to
surrender their lands and receive them again as feudal tenants.
It would seem, however, that the Irish Princes reserved to
themselves all their former privileges I Mr Froude observes
"Henry did not insist that the Irish, ill-trained as they had
been, should submit at once to English law. ... He disavowed
all intentions of depriving the chiefs of their lands, or of con-
fiscating their rights for the benefit of Englishmen. He
desired to persuade them to exchange their system of election
for a feudal tenure, to acknowledge by a formal act of sur-
render that they held their lordships under the crown... in
return they might retain and administer the more tolerable
of their own Brehon laws, till a more settled life brought with
it a desire for the English common law^" By similar gifts
of Church lands Henry won over many of the degenerate

1 State Papers, Henry VHI. VoL ii. by small crown rents is derived from

pt. iii. p. 9. these grants.

^ lb. pp. 9, 10. ^ See Spenser's View of the State of

3 O'Connor Morris, L. Q. Review^ Ireland, 1633, p. 4.

1887, p. 138. ^ The English in Ireland, Froude,

4 Some of the land in Ireland held Vol. i. pp. 37, 38.

IV.] FROM HENRY VII. TO JAMES I. 59

barons', and he also endeavoured to prevent absenteeism, and
thus to strengthen the loyal element within the Pale.

This policy, if carried out to the full, might at least have
largely increased the English power in Ireland, even if it had
not ultimately led to the subjection of the whole island^; but
the narrow aims of the colonists of the Pale, whose desires
appear to have been centred in universal spoliation, and who
aimed at nothing but the division of the lands of ' the enemy '
between themselves, opposed a barrier to the more liberal
methods of the English king. Before long also the religious
animosities^ arising out of the reformation added fuel to the
raging furnace of national passions, and brought all the powers
of bigotry and intolerance into play in the death struggle of
Irish independence.

At first the efforts of Henry to introduce the reformation
into Ireland did not raise as much opposition as might have
been expected from the Irish lords*, though the resistance of
the clergy^ rendered the attempt futile. The wars of Elizabeth
were in reality inspired by the lust of conquest and the an-
tagonism of race rather than by religious fervour; but from
the time when the Stuarts ascended the English throne the
crusade of religion began in earnest ; and Cromwell and his
fanatical soldiery gained those substantial temporal possessions
in Ireland (which for the first time justify its being termed a
completely conquered country) under the banner of religious
bigotry, and in the cause of religious intolerance.

1 Land holding in various countries^ the minds of the vanquished race.
Field, p. 250. The new feud of Protestant and Papist

2 O'Connor Morris, L. Q. R. p. 138. inflamed the old feud of Saxon and

3 " The patriotism of the Irish had Celt." Lord Macaulay's Hist, of Eng-
taken a peculiar direction. The object land, Vol. i. p. 34.

of their animosity was not Rome but ^ But the Geraldines were a conspi-

England; and they had especial rea- cuous exception.

son to abhor those English sovereigns ^ Cromer, Archbishop of Armagh

who had been the head of the great and Primate of Ireland, was a vigorous

schism, Henry the Eighth and Eliza- opponent of Henry. This is the same

beth. During the vain struggle which Cromer who in 1553 obtained a formal

two generations of Milesian princes pardon for having made use of the

maintained against the Tudors, reli- Brehon laws. (Pat. and Close Rolls of

gious enthusiasm and national enthu- Chancery in Ireland, 24 and 25 Hen.

siasm became inseparably blended in VIII.)

60 THE COLONY OF THE PALE [CHAP.

The earlier portion of the reign of Elizabeth was marked
by the theoretical confiscation of Ulster, which, however, re-
mained practically unsubdued ; by an attempt to levy assess-
ments by Royal authority independent of the sanction of
Parliament ; and finally by some claims to lands in Cork under
alleged charters dating from the time of the old Norman
feudal grants \ Plans for colonization also were laid before
the English government by those who had no title, but offered
to defray the costs of conquest in consideration of grants from
the conquered territory'^.

The Anglo-Irish lords and Irish chieftains, with no small
reason, felt that the seal of doom was upon them, and the
brewing trouble took form in the rising at first headed by
Sir John Desmond, the treacherous murderer of Henry Davels,
and afterwards by the Earl of Desmond. Religious motives
strengthened this outbreak, and indeed almost created it ; but
although aided by a small expedition of Italian and Spanish
volunteers, the futile effort ended in desolation and despair, and
so complete was the ravage and wreck in Munster that "the
lowing of a cow or the sound of a ploughboy's whistle was not
to be heard from Valentia to the rock of CasheP," From the
widespread confiscations which followed, a supply of lands was
obtained, sufficient, it would seem, to have been a most potent
bribe to the new settler class that it was the policy of the English
crown to plant on the Irish soil. Half a million acres'* escheated
to the crown, and were divided into lots of 12,000, 8,000,
6,000 and 4,000 acres respectively. The rents reserved were
practically nil, an estate at fee farm of 12,000 acres being only
rented at £33. 6s. 8d. for three years, and then at £66. ISs. 4td.
The scheme designed for the plantation was briefly that every

1 Field, pp. 250 and 251. in towns and cities ; nor yet see any

2 This method of raising money from beasts but the very wolves, the foxes,
* Undertakers ' afterwards became com- and other ravening beasts." Quoted by
mon. Hallam, Const. Hist, of Eng. vol. iii,

3 " Whosoever did travel from one pp. 366, 367. And see John Hooker's
end to the other of all Munster, even dedicatory epistle to Girald. Cambr. in
from Waterford to Limerick which is Holinshed's Chronicles^ vol. i.

about six score miles, he should not •* 574,628 acres,

meet any man, woman, or child, saving

IV.] FROM HENRY VII. TO JAMES I. 61

seigniory should be inhabited within seven years on the fol-
lowing system: — "every undertaker of 12,000 acres was bound
to plant eighty-six families : his own family was to have 1,600
acres, one chief farmer 400, two good farmers 600, two other
farmers 400, fourteen freeholders (each 300) 4,200, forty copy-
holders (each 100) 4,000, twenty-six cottagers and labourers
800. Other undertakers being bound proportionately \"

In 1586 an immense quantity of fertile land was practically
going begging ; lands were offered at twopence an acre with no
rent to be required for the first three years'^ yet the fruitful
soil scarce found an owner. By the original design of the
plantation the grants of land were to have been conditional
on the settlement on the soil by the undertakers of English
tenants, but the idea had to be abandoned. The practical
failure of the plantation, at any rate, to answer the purpose
for which it was designed, i.e. the ousting of the native popu-
lation, was mainly due to (1) the extensive grants made to
particular individuals^ who themselves remained absentees,
making but small and unsuccessful efforts to plant English
sub-tenants, and who moreover were not averse to an Irish
tenantry (since they paid higher rent than any for which
English small holders* could be induced to settle) ; and (2) the
short terms for which lands were granted by the English
undertakers. The uncertainty of possession and the exactions
levied on the tenants prevented any real improvement of the
land, and led to its being wastefully impoverished. No
buildings worthy of the name were erected, and the wretched
slave of the soil lived a life but one degree above that of
the animals he tended. Any gathering of wealth brought
ruin ; coshered by some wandering ex-chief, or rack-rented by
some English undertaker, the small holder presented an em-
blem of misery.

When dealing with the reorganization of much of the Irish
land system which took place during the reign of Elizabeth, the

1 Sigerson, p. 33. * See a passage from Kobert Paine's

2 Field, 251. Briefe Description of Ireland (1589),
^ Sir Walter Raleigh obtained 42,000 quoted p. 35 Sigerson.

acres in Cork and Waterford.

62 THE COLONY OF THE PALE [CHAP.

* Composition of Connaught,' planned under a Commission
issued in 1585, with the object of inducing the nobles of
Connaught to surrender their titles and hold instead by letters
patent^ from the crown, should not be passed over. It was
one of the first of a succession of legal devices for the change
of Irish tenures into feudal ones. Few chieftains, however,
agreed to the change, which would have greatly altered the
relations of chiefs and people both inter se and towards the
land. The principle proposed in the change was that a pay-
ment of IO5. for every 120 acres should operate as a discharge
from all cess, taxation tallage, charges, bearing of soldiers,
&c., and that a rent should be payable for the lands ; while the
customs of Gavelkind and Tanistry were to be abolished. In
several of the indentures^ also the mean freeholders were
placed in direct dependence on the crown, a remarkable fact
bearing a strong resemblance to the effect of 'quia emptores,'
and establishing something greatly like a peasant proprietary.
Though this abortive scheme is not of great importance, for
few chieftains surrendered under it (though the surrender was
widespread under the commission of James the First), still when
the plans of Wentworth with regard to Connaught are remem-
bered, an interest is felt in the nature of the titles so un-
scrupulously attacked : and in regard to those of the Irishry
who had surrendered their estates and received a re-grant, it
is hard to find words strong enough to describe the injustice
of the pretext on which it was attempted to oust them.

In August 1598 the flame of open revolt again broke out,
this time in Ulster under Hugh O'Neil (afterwards Earl of
Tyrone), and O'Donnell. With the war-cry of religion added
to the stored wealth of national hatred^, indued with a fury

1 By 12 Eliz. c. 4 (Irish) a power ^ This enactment is to be found in

had been given by which any of the the indentures for Eoscommon, Sligo,

Irishry or degenerate EngUsh were Mayo and Leitrim — and Dr Sigerson

enabled on surrender to obtain grants suggests it may have had a bearing on

of their lands by letter patent from "the after quietness of the western

the crown— defects appearing in the provinces," p. 31.

letters patent issued under this Act, ^ -jhe dispossession of the Catholic

they were remedied by James I. in 1615 clergy by Elizabeth and the substitu-

by new surrenders and re-grants. tion of what has been well termed ' a

IV.] FROM HENRY VII. TO JAMES I. 63

such as is almost without parallel, the strife raged. Philip
of Spain, smarting from the defeat of his designs on England
and burning with a lust for revenge, sent aid, and O'Neil was
no ordinary leader; but the doom of destruction was on the
Celts. Ravage and ruin was spread broadcast through the
land, but the result of the struggle was never really in doubt.
No sooner was the conduct of the war entrusted to Mountjoy
than the fate of the Irish was sealed, and in 1602 all was
over. From the horrors of the prolonged war, as from so many
another blood-stained page of Irish history, one can but turn
with loathing.

The revolt is important in its ultimate bearing on the
history of the Irish land, though no important forfeitures were
immediately exacted. The leaders of the rising were treated
with singular mercy as one by one they surrendered, O'Neil
himself being left in his Earldom ; but O'Neil and O'Donnell
were marked men. Elizabeth again tried the policy, so often
unsuccessful, of a leniency which was neither respected nor
understood. Four years later, in the reign of James the First,
O'Neil and the Earl of TyrconneP, detected in planning another
outbreak, fled the country, and their immense estates escheated
to the crown.

Some two millions of acres — the counties of Donegal, Derry,
Cavan, Fermanagh, Armagh and Tyrone — were thus placed
at the disposal of the English; but, only 511,465 were actually
taken up by the crown. The way in which this half million of
acres was primarily granted is shown by the following table ^ :
To the Londoners and other undertakers : 209,800
The Bishops' mensal lands 3,413

„ „ termons and erenachs 72,280

„ College of Dublin 9,600

college of shepherds without sheep' would have been tried by the Desmonds

let loose upon the people a body of and Tyrones, independent of this

ecclesiastics, who, themselves smarting motive.

under their injuries, helped to stir i Brother of the O'Donnell of the

that spirit of rebellion which was revolt, who died in Spain,

simmering throughout the country ; 2 Taken from Short Hist, of Irish

but as is remarked by Hallam (vol. People, A. G. Kichey, p. 605.
III. p. 365) the chances of insurrection

64- THE COLONY OF THE PALE. [CHAP. IV.

For free schools 2,700

To Incumbents for glebes 18,000

The old glebes 1,268

To Deans and Prebends 1,473

„ servitors and natives 116,330

„ impropriations and abbey lands 21,552

The old patentees and forts 38,214

To new corporations 8,887

Restored to Maguire 5,980

Restored to several Irish 1,468

The scheme of plantation drawn up in 1609^ provided for
the settlement upon these lands of large numbers of small
tenants, and a colony of Scotch and English Protestants, mainly
'labourers, weavers, mechanics, farmers and merchants/ was
established on the escheated territory. Frugal and hard-
working the new settlers established an era of apparent pros-
perity, and until 1641 lived side by side with the native race^
with less open hostility than might have been expected.

1 Fully treated of in the next Chapter. tory, some million and a half acres,

2 To whom the unappropriated terri- had been restored.

PAKT II.

lEELAND THE SLAVE.

CHAPTER V.

The substitution of English Tenures and the
Era of Protestant Ascendency.

There is every reason to believe that the changes first
systematically introduced in the reign of James the First were
conceived in a liberal spirit, and honestly designed to benefit
an unhappy country groaning under the yoke of heavy oppres-
sions ; but the fatal mistake of implanting a comparatively ad-
vanced civilization upon a society unfit to receive it converted
what was intended as a benefit into a curse. What would
have been the effect of a recognition of the Brehon Law, and an
application of the machinery of Courts and determinate sanc-
tions to its system is difficult to say, probably it would have
forced into unnatural prominence many customs which had
only a theoretical existence^; but it is hard in the light of later
events not to think that this might have been the less of two
evils. The history of the final abolition of the Irish code is
simple. Two decisions of the Courts in the reign of James the
First, whereby the whole land system of the Brehon Law was
crumbled into dust, became of great importance, since they
followed the conquests of war, and hence affected practically the
whole of Ireland. One, by the decision of all the Judges ('per
tons les justices') declared void in law the Irish custom of
Gavelkind succession, while the other abolished Tanistry.

The judgment in Gavelkind which is fully reported by Sir
John Davies is worthy of close examination. The reasons given
in it for the decision are : —

^ Sir H. Maine considered that this cognition in India of the Indian cus-
has largely been the result of our re- toms.

0—2

68 THE SUBSTITUTION OF ENGLISH TENURES [CHAP.

(1) That the frequent partitions and the removals of the
tenants from one portion to another caused great uncertainty
of possession to be felt, and led to no civil habitations
being erected, or enclosures and improvements made (instancing
the case of Ulster, "which seemed to be all one wilderness
before the new plantation made by the English undertakers
there").

(2) That it differed from Kentish Gavelkind^ in that the
latter : —

i. Only parted the lands between the next heirs male,
who took estates of inheritance.

ii. Excluded bastards.

iii. Endowed the wife with a moiety.

iv. Permitted females to take in default of males ;
none of which characteristics were present in Irish Gavelkind.

(3) That in several ways it resembled the custom of
Gavelkind used in North Wales, which was abolished by
34 Hen. VIII. c. 28.

The judgment therefore says that " for these reasons and
because all the said Irish countries, and the inhabitants of
them, from henceforward, were to be governed by the rules
of the Common Law of England, it was resolved and declared
by all the Judges, that the said Irish custom of Gavelkind was
void in law, not only for the inconvenience and unreasonable-
ness of it, but because it was a mere personal custom and could
not alter the descent of inheritance. And therefore all the
lands in these Irish countries were now adjudged to descend
according to the course of the Common Law, and that wives
should be endowed, and the daughters should be inheritable
to these lands notwithstanding this Irish usage or custom I"
This judgment was, by the special order of the lord deputy,
registered amongst the Acts of Council^.

1 Of which in reality, however, it ^ And this provision was added ** if
was but a more primitive form. For a any of the mere Irish had possessed
contemporary account of Kentish Ga- and enjoyed any portion of land by
velkind see A Treatise of Gavelkind, this Irish custom of Gavelkind before
by William Sumner, London, 1660. the reign of James the First, they

2 Hill, 3, Jacobi. Davies' Reports, should be continued and established
pp. 134 — 138. in it, but that all such should hence-

v.] AND THE ERA OE PROTESTANT ASCENDENCY. 69

Not less important than this decision is the one by which
the custom of Tanistry was declared void. It was given upon
a special verdict found in ejectment between Murrough Mac
Bryan, plaintiff, and Cahir O'Callaghan, defendant ; the ques-
tion being whether the title of the heir at Common Law, which
lay in the defendant, or the title of the Tanaist, which was the
estate of the plaintiff, should prevail. The case remained in
the King's Bench for three or four years, and was argued
several times, while the Judges on different occasions delivered
their opinions on the various points raised. The suit termi-
nated in an agreement by consent for a division ; it was, how-
ever, finally settled by the Court that "the said custom of
Tanistry was void in itself, and abolished when the Common
Law of England was established."

By these two decisions the law of a nation, which, whatever
its faults, was ingrained in their national life, and regarded by
them with that unreasoning devotion which is one of the
curious contradictions of the Celtic nature, was swept away.
While giving all due credit to the disinterested motives of the
English Crown and its advisers, and to the strict impartiality
of the judicial decisions, there seems to be no doubt from the
lesson of history that a grave error was committed and a sub-
stantial injustice done. Despite the recognition by the Brehon
Laws of the existence of individual property, a large majority of
the land seems to have been ruled by a more or less modified
form of the customs of Tanistry and Gavelkind ; and though
the extensive growth of the power of the chief makes it evident
that in reality the practical development of tenure, and even
of primogeniture, was not far distant, still the native Irish were
as far from recognizing the fact as were the English rulers who
implanted the feudal system upon them. The ignorant Irish
tribesman had no notion that the exactions of his chieftain
were by imperceptible degrees taking the form of rent, on the
contrary he was driven by them to cling more closely to the
soil by a hundred ties of attachment ; while the chief more

forth be adjudged and descend accord- Plowden's Historical Review of the
ing to the Common Law." See also state of Ireland.
Furlong's Landlord and Tenant; and

70 THE SUBSTITUTION OF ENOLISH TENURES [cHAP.

and more regarded the land as a mere source of revenue.
Into the hands of the law officials of James the First was in-
trusted the impossible task of solving satisfactorily a land
problem in which each free member of a tribe who received
land in fee would think that he got no more than his due, while
those who were neglected, or whose portions not being to their
taste must have longed for the old system of redistribution,
would imagine themselves forcibly robbed. To these we must
also add a certain class of tribesmen, owners of small portions
of the tribe-land, who were altogether disregarded by Sir John
Davies. The Attorney-General in his letter to the Earl of
Salisbury in 1607 when describing the manner in which the land
was portioned amongst the septs, and pointing out that almost
every acre had a several owner owing to the expansion of the
system of distribution by Gavelkind, says, " we made every en-
quiry what portion of land or services every man held in every
ballibetagh\ beginning with such first as had lands and ser-
vices ; and after naming such as had the greatest quantity of
land and so descending into such as possess only two taths;
then we stayed, for lower we could not go, because we knew
the purpose of the State was only to establish such freeholders
as are fit to serve on juries I" It is necessary also to bear in
mind the position of the next generation of 'mere Irish' to those
to whom the grants were made. Thus A, a free member of the
sept, receives a grant of lands in fee — he has issue four sons,
B, C, D and E. Under the old system each on his birth would
have become a member of the sept, he would have looked on
all the lands of the sept as in a sense his property, since from
them in due course his allotment would have been received.
Under the new system B, the eldest, is alone entitled to lands,
and these only on his father's death. Assuredly C, D and E

1 The ancient Irish land measures ballybetaghs is well nigh as large as

differ so much that it is hard to ex- Monaghan which contains 100. See

plain what extent of land is denoted fully on this subject Skene's CeZf. «Scof.,

by any term. According to Sir John Vol. iii. pp. 153 — 170.

Davies, in Fermanagh a ballybetagh is ^ Appended to the early editions of

equal to 16 taths, but he then goes on the Discoverie.
to say that Fermanagh containing 51

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 71

(and probably B also) would think that the hated English had
robbed them of their birthright.

The task of Sir John Da vies was truly no light one, and
the way in which he viewed the situation and his manner of
dealing with it are worthy of the closest attention. Speaking
of Tanistry and Gavelkind he says, "these two Irish customs
made all their possessions uncertain, being shuffled, and
changed, and removed so often from one to another, by new
elections and partitions ; which uncertainty of estates hath bin
the true cause of such desolation and barbarism in this land,
as the like hath not been seen in any country that professed
the name of Christ \" He goes on to state that the Act passed
in 12 Eliz.^, enabling the Lord Deputy to take surrenders and
re-grant estates to the Irishry, was defective, since (1) few lords
made such surrenders, and (2) "they which made surrenders
of entire counties obtained grants of the whole againe to them-
selves only, and to no other, and all in demesne. In passing
of which grants there was no care taken of the inferiour Septes
of people, inhabiting and possessing these counties under them,
but they held their severall portions in course of Tanistry and
Gavelkind, and yielded the same Irish duties or exactions, as
they did before ^" Then alluding to the two Commissions
which issued under James the First, the one to accept sur-
renders and to make re-grants, and the other to strengthen
defective titles, he states ; " in the execution of which Com-
missions there hath ever bin had a special care, to settle and
secure the Under-Tenants, to the end that there might be a
repose and establishment of every subject's estate^;" the fol-
lowing being the plan adopted ; " when an Irish lord doth
offer to surrender his country, his surrender is not immediately
accepted, but a commission is first awarded to enquire of these
special points. First, of the quantity and limits of the land

* Discoveries p. 170. 4 Irish) recites that the Irish had

- The instructions given to the Earl petitioned to surrender and authorizes

of Suffolk in 1560 by Elizabeth sug- the granting of letters patent.

gested that the Irish chiefs should sur- ^ Discoverie, pp. 270, 271.

render their estates and take grants in ^ Discoverie, p. 273.

tail male ; the Act of 1569 (12 Eliz. c.

72 THE SUBSTITUTION OF ENGLISH TENURES [CHAP

whereof he is the reputed owner. Next how much himself
doth hold in demesne, and how much is possessed by his
tenants and followers. And thirdly, what customs, duties and
services he doth yearly receive out of those lands. This in-
quisition being made and returned, the lands which are found
to bee the lord's proper possessions in demesne, are drawn into
a Particular ; and his Irish duties ; as cosherings, cessings,
Rents of Butter and Oatmeale and the like ; are reasonably
valued and reduced into certaine summes of Money to be
paide yearely in lieu thereof This being done, the surrender
is accepted ; and thereupon a grant passed, not of the whole
country, as was used in former times, but of those lands only,
which are found in the lord's possession, and of those certaine
summes of money, as rents issuing out of the rest. But the
lands which are found to be possessed by the tenants, are left
unto them, respectively charged with these certain rents only,
in lieu of all uncertain Irish exactions. In like manner upon
all Grants which have passed by virtue of the Commission,
for defective titles, the Commissioners have taken special
caution, for the preservation of the estates of all particular
tenants."

Sir John Davies had, it is evident, clearly grasped the fact
of the proprietary rights of the members of the tribe in the
tribe-land ; but the sweeping nature of the change introduced,
and the conflicting character of the rights involved, rendered
his settlement an unstable one. Even if the inferior members
of the sept were, as stated by him, satisfied and encouraged by
the settlement and security of their tenure, the chief was
grievously wounded by the restriction of what he considered his
inalienable rights^; and subsequent events almost obliterated
the class of freehold owners which Sir John Davies had laboured
to create. The mode, however, in which the Irish tribesmen
were considered in relation to the land is plain, and the system
adopted amounts to an acknowledgment of the claims of the
tribal freeman to an estate in the land. The injury inflicted
iTpon the Irish peasantry lay indeed not so much in the

1 See " The Historical Claims of January, 1881, p. 27, Seebohm.
Tenant-Kiglit," Nineteenth Century,

v.] AND THE ERA OP PROTESTANT ASCENDENCY. '73

introduction of the English tenures, as in the after refusal to
recognize the rights of the tenantry established under the
compulsory reorganizations of the land system. In the Com-
mission for making shires in 1605 the principle of the ex-
istence of tenant-right was also recognized: for the conduct
of many persons who, pretending to be lords, had expelled
ancient tenants or imposed exactions upon them "under pre-
tence that the said tenantes or freeholders are but tenantes-
at-will, albeit they and their ancestors have enjoyed the same
by course of descent for many hundred yeares past," is repro-
bated \

In 1608, on the flight abroad of the two Earls^ their estates
were, as has been described in the last chapter, forfeited to the
Crown. It will be necessary to go at some length into the
nature and regulations of the colony which was planted on the
most fertile portion of this territory, and it will be seen that
at first sight the plan devised was not inequitable. Still it
must be remembered that in many ways this plantation
was a deliberate undoing of the work of Sir John Davies.
The rights of the newly created freeholders obtained little
recognition, and were frequently infringed on behalf of the
settlers, and even where their rights were not actually dis-
turbed a feeling of insecurity was given to the new tenures,
the one thing it was most important to avoid. It is perhaps
worthy of note that it has been alleged that the disgavelling
which preceded the forfeitures Was part of a deep plot of the
English, who considered, on the analogy of the Gavelkind lands
in Kent, that Irish Gavelkind lands would be more protected
against escheat than those held by knight-service. The faults
of the suggestion are obvious. It is true that the very nature
of the Brehon Law is far too archaic to recognize such forms
of ownership as the principle of escheat involves, but the
theory of Gavelkind had never before been allowed to interfere
with the rights of the Crown in Ireland to escheats, and both
Earls held from the Crown long before the 'Case of Gavel-
kind.' The suggestion is a very fair example of the amount of

1 Sigerson, Hist, of Land Tenure ^j ggg ante, p. 63.

and Land Glasses, p. 104 (note.)

74 THE SUBSTITUTION OF ENGLISH TENURES [CHAP.

ingenious perversion which is always applied to the acts of
the English in Ireland.

The plantation of the colony in Ulster was evidently ela-
borated with no small care by James the First and his ad-
visers \ who adopted in the main a project drawn up by the
Privy Council of Ireland ^ Orders and Conditions^ were issued
for the guidance of the undertakers who applied for grants of
land, commencing as follows: — "His Majesty in his princely
bounty, not respecting his own profit, but the public peace
and welfare of the kingdom, is graciously pleased to distribute
the said lands to such of his subjects, as well of Great Britain
as of Ireland, as being of merit and ability shall seek the same
with a mind not only to benefit themselves, but to do service
to the Crown and common wealth," The most noticeable points
of the proposed scheme of plantation were that the lands to be
distributed were divided into lots of 1,000, 1,500 and 2,000
English acres respectively, and the undertakers to whom such
lots were committed were separated into three classes, namely :

(1) " English or Scottish, as well servitors'' as others, who
are to plant their portions with English, or inland Scottish
inhabitants."

(2) " Servitors in the kingdom of Ireland, who may take
mere Irish, English or inland Scottish tenants at their choice."

(3) " Natives of Ireland who are to be made freeholders ^"
The rents of the English and Scottish undertakers were

fixed at £5. 6s. Od. for every 1,000 acres, and no charge of rent
was to be made for the first two years. The nature of their
tenure was as follows. Every grantee of 2,000 acres was to
hold by knight's service in capite ; and every grantee of 1,000
acres was to hold in common socage, no wardships being ex-
acted upon the first descent of that land. The undertakers
and their tenants were to erect within two years castles and

1 Though the plantation was pro- project is quoted in full, pp. 105 — 120.

j acted by the king and by Bacon it was 3 gee Harris' Hibernica, p. 123 et

chiefly carried into effect by Sir Arthur seq.

Chichester, who appears to have dis- ^ The servitors were of two kinds,

played great resources, and who received (1) great officers of the state, (2) rich

a large allotment himself. adventurers from England.

2. See Harris' Hibemica, where this ^ Harris' Hibernica, p. 114.

v.] AND THE ERA OP PROTESTANT ASCENDENCY. 75

buildings ; they were forbidden to alienate their holdings to the
' mere Irish/ and were not allowed to create tenancies at
will. The undertakers were bound within two years to place
upon their lands a competent number of tenants and the rent
was to be a fixed sum; special proviso being made against
cuttings, cosherings, and other Irish exactions \

The above rules appear to be framed in a liberal and
thoughtful spirit, and show much consideration for the best
interests of the land. The rules applicable to the Irish natives
who were admitted as freeholders also seem to be both mag-
nanimous and well considered. They are mainly as follows : —
their estates to be in fee farm, the yearly rent being
£10. 13s. 4<d. for each portion of 1,000 acres, and no rent to
be payable for the first year; their tenures to be similar to
those of the other undertakers with a proviso of forfeiture on
rebellion. They were to inhabit their lands and to build castles
and houses ; but no Irish exactions were to be taken ^. As
regards the class of native small-holders in Ulster, it would
seem that these rules might have afforded a satisfactory posi-
tion, but unfortunately the plantation was not ultimately
carried out quite as designed. The native Irish were fre-
quently unjustly ousted to make way for new English settlers,
and the engine of English law, the theory and methods of
which were completely strange to the native race, was only
too often used to establish claims of the Crown in the native
holdings. In other parts of Ireland this was even more the case
than in Ulster, " in King's and Queen's Counties, and in those
of Leitrim, Longford and Westmeath, 385,000 acres were ad-
judged to the Crown, and 66,000 in that of Wicklow," so that,
though much was re-granted to the Irish, it shook their sense
of possession^; while the flagrant injustice with which the
claims of the Crown were often prosecuted, rankled in their
minds. Meanwhile the energetic class of artizans and me-

^ See Orders and Conditions for the while the beneficed clergy were cared

planters of Ulster given in Harris' for by more provision being made for

Hibernica, from a copy printed in 1608. them. And see ante, pp. 63, 64.

2 Harris' Hibernica, p. 129. The ^ Hallam's Constitutional History,

lands which had been lost to the Church Vol. iii. ch. 18, p. 377.
during the late troubles were restored,

76 THE StTBSTITtJTlON OF ENGLISH TENUKES [cHAP.

chanics of the English settlement throve and prospered a-
mazingly, and the sun of prosperity seemed at last breaking
through the heavy pall of misgovernment and misery which
had enveloped Ireland's history. The forfeitures from which
the grants had been derived, however, had cast without sup-
port upon the land a body of improvident, vicious and dan-
gerous men, the descendants of the former chiefs; and the
weapon of religious strife lay ready to their hands. As early
as 1611 there were not wanting signs of brewing trouble to be
detected by the far-seeing \

On the surface all went well. The Act 13 Jac. I. c. 5^ re-
peals many of the statutes in which the Irish are treated as
the common enemy, and extends to all the king's subjects the
same laws ; while the language of the statute reads in striking
contrast to that of earlier legislation — "Whereas in former
times... the natives of this realm of Irish blood... were for the
most part in continual hostility with the English, and with
those who did descend of the English, and therefore the said
Irish were held and accounted and in divers statutes and
records were termed and called Irish enemies. Forasmuch as
the cause of the said difference and of the making of the said
laws and statutes doth now cease, in that all the natives and
inhabitants of this kingdom, without difference or distinction
are taken into his majesty's protection, and do now live under
one law, by means whereof a perfect agreement is or ought to
be settled betwixt all of his majesty's subjects in this realm.
And forasmuch as there is no better means to settle peace and
tranquillity in this kingdom, being now inhabited with many
worthy persons born in his majesty's several kingdoms, than
by abolishing the said laws and giving them free liberty to
commerce and match together, so that they may grow into one
nation, and there be so utter oblivion and extinguishment of
all former differences and discords between them; be it enacted
...that all the said laws be for ever utterly repealedl"

The Ulster settlement in the course of years accumulated
certain customary modes of dealing with the tenant's interest in

1 See the report of Sir George Carew. ^ gee Froude, Eng. in Ireland, p. 70.

2 (Irish).

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 77

the land. At the present time these exist in the much discuss-
ed "Ulster custom'." Its origin is uncertain, but it has plainly-
been built up partially on rude notions of equity, and partially
on a blending of the Irish notions with those of the settlers.
The customs as to land tenure of the Scotch and Welsh tenants
planted in Ulster must have been in many ways similar to
those of their Irish neighbours, and it is possible that the Irish
notions were gradually assimilated to a theory of land tenancy
strongly resembling copyhold. Unfortunately the Calvinistic
Protestantism of the settlement did something towards adding
to the discordant nature of the social system and the animosity
of the dispossessed owners of the soil. The Catholics daily
gained strength by union in misfortune, and became more
and more impatient of the existence of the alien plantation.
No excuse, however, for the terrible flood of butchery, cruelty
and massacre which the inhuman insurrection of 1641 produced
is possible. To the end of time there will rest on the shield of
Ireland's honour the bloodstain of this debauch of ruthless
slaughter. The real cause of the outbreak is rather to be
found in the land troubles ^ than in religious differences. The
scheme of a plantation in Connaught had been advancing with
gigantic strides^ The Commission on defective titles had
extended its fatal grasp all over the country; nor did the
patents granted under James the First's Commission prove
much protection*, despite that large sums had often been paid
as composition to remedy defects. The despicable discoverers
laboured hard, and titles were infamously impeached. Four-
fifths of Connaught were proved in strict construction to belong
to the Crown ^ and the methods of Wentworth, now Earl of
Strafford, produced a frenzy of rage, the aid not merely of

1 See post, pp. 117—123. of the mere legal formality of the en-

2 Among the complaints of the lead- rolment of grants made in the time^of
ers of the Rebellion is found a protest Elizabeth and James I.) it is hard to
against "The avoidance of grants of conceive.

lands and liberties by quirks and quid- ^ j^/jg Cromwellian Settlement, Pren-

dities of the law," Sigerson, p. 74. dergast, p. 47.

3 A plan of plunder more disgraceful ^ y/jg j^^g i^ Ireland, Froude, p. 80.
(founded as it was upon the omissioij

78 THE SUBSTITUTION OF ENGLISH TENURES [CHAP.

chicane but even of torture^ being called in to assist the
general spoliation. The Connaught Commission paid no heed
to the agreement which in 1634 had been made with Charles
the First that only sixty years' title need be shown''. Deeds
and papers had perished in the many wars of those disturbed
times, and the Celt, loving the land as only a Celt can, saw it
about to be torn from him wholesale. On the 23rd of October,
1641, the massacre commenced, and the lowest estimate of those
who perished is 37,000, while Mr Froude believes that before
the insurrection was suppressed more than half a million^ had
succumbed.

However varied the causes which led to the insurrection, to
the England of the Puritans it bore but one aspect, and Crom-
well when he landed in 1649 came as the champion of the
Protestant cause, to revenge with fire and sword the evil deeds
of the ' Popish fiends.' How complete his conquest was is a
matter of history, and a grim picture is drawn by the state-
ment that so was the co-untry wasted that even the victorious
English army well nigh starved. The bearing of Cromwell's
conquest, and the subsequent confiscation of more than a third
of the land of Ireland, on the history of the land law was
immense. High and low, Irish chieftain and Irish peasant,
together with the descendants of many of the English settlers
of the various earlier settlements, were proscribed on the ground
of their religion, their estates passing into the hands of the
Puritan soldiery. The half depopulated country, thousands of
the inhabitants of which were shipped to the West Indies or
driven to take refuge on the Continent, was colonized by
Saxons of Calvinistic faith ; yet under the ' iron rule ' there was
prosperity, buildings and plantations were made, and the value
and rent of land increased daily. The principle of the Crom-
wellian Settlement was the foundation of a Protestant military
colony, extending over all the most fruitful portion of the land.
The native Irish were to be banished to Connaught, which

1 O'Connor Morris, L. Q. Review, ^ See Field, p. 253 (note).

1887, p. 139. And see the case of the ^ Following Sir William Petty, see

Byrnes of Wicklow. Carte's Life of Froude, Eng. in Ireland, Vol. i. p. 125.
Ormonde, bk. 1, p. 74.

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 79

Cromwell determined to make a second Wales, only two classes
of persons being exempted from transplantation, (1) those
who could prove 'constant good affection,' and (2) the mere
earth-tillers, viz. 'all husbandmen, plowmen, labourers, arti-
ficers and others of the inferior sort.' The settlement, how-
ever, when established differed in many ways from the military
landlordism which had been intended. Land bonds had been
issued to the adventurers in 1642, and money had been
advanced on the security of nearly a million acres. Again in
1653, in order to meet the arrears of pay due to Cromwell's
army and sums still due to the adventurers, a most thorough
act of confiscation had been passed. The debenture bonds
payable in land which had been issued to defray military ex-
penses passed into various hands ; and the similar bonds issued
to Cromwell's own soldiers^ had in many cases been disposed of
by them ; still the country largely passed into the hands of the
men who had conquered it. A study of Dr Petty's^ History of
the Down Survey^ conveys a clear notion of the great practical
difficulties of the working out in detail, within reasonable time
and with any approach to justice, of the allotments of forfeited
land. " It is difficult to imagine a work more full of perplexity
and uncertainty than to locate 32,000 officers, soldiers and fol-
lowers, with adventurers, settlers and creditors of every kind
and class, having different and uncertain claims on lands of
different and uncertain value in detached parcels scattered
over two-thirds of the surface of Ireland*."

The two races of English and Irish had long been gradually
taking the respective positions of landlord and tenant. The
forfeitures at this time spread this relation over nine-tenths

1 The form of these debenture bonds signs out of the rebels' houses, tene-

is illustrated by a facsimile given in ments and hereditaments in Ireland

Mr Prendergast's Gromwellian Settle- or other land, houses, tenements and

merit, which runs as follows : hereditaments there in the dispose of

"Upon composition and agreement the Commonwealth of England. Sign-
made with... for... arrears for service in ed and sealed at Dublin the — day of —
Ireland from.... There remains due 1658."

from the Commonwealth to the said... 2 Afterwards Sir William Petty,

executors, administrators or assigns the ^ 1655 — 6. Published in 1851 by

sum of... which is to be satisfied to the the Dublin Archaeological Society,

said.., executors, administrators or as- * Notes to History of Survey, p. 338.

80 THE SUBSTITUTION OF ENGLISH TENURES [CHAP.

of the country \ The most important point in the Cromwellian
Settlement having regard to its future bearing on the land
question is the position of those Irish peasantry who were not
transplanted with the swordsmen into Connaught. The earth-
tillers were kept in their holdings for several reasons ; firstly,
they had always been a fairly quiet and toilsome class, and
when freed from the influence of the disquieting element of
the transplanted fighting men might be expected to develop
into a peaceful tenantry ; secondly, there was no sufiicient
supply of English to take the lowest positions in the social
scale. It has been seen that under the change of tenures
effected by Sir John Davies a large proportion of the native
Irish became freehold owners. By the confiscations following
Cromwell's conquest nearly all trace of the Irish owners was
swept away, and the position in law of the tenants was com-
pletely altered. No longer considered freeholders subject to a
quit rent, they were in future treated merely as " commercial
tenants under contract or if without contracts as mere tenants
at wilP." There is, however, a very important fact to be con-
sidered, namely, that there is no doubt, despite the apparently
precarious nature of the tenant's position, that he was at that
time considered to have a vested interest in the land. There
exists indeed a formal recognition of some degree of tenant-
right, for Sir W. Petty when ofiicially surveying the country
in the interests of the new owners excepted from his gross
valuation of the confiscated lands the value of the tenant's
interest in their holdings'^, stating that the benefit of leases
and the value of the tenant's improvements upon the said land
is one-third — £216,000*. This appears to prove conclusively
that he did not consider them mere tenants at will.

When Charles the Second was restored, and sober England
lapsed for one solitary portion of her history into high carnival,

1 O'Connor Morris, L. Q. Review, Political Anatomy of Ireland. Also
1887, p. 141. The History of the Doion Survey,

2 Seebohm, " The Historical Claims 1655—6, published in 1851 by the
of Tena.nt-'Right,^' Nineteenth Century , Dublin Archaeological Society.

1881. 4 This valuation included the value

2 Seebohm, " The Hist. Claims of of their cabins.
Tenant-Eight," and Sir W. Petty's

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 81

the hearts of the conquered party in Ireland were beating high
with hope. Royalists who had ventured and lost all, clamoured
for a guerdon from Irish lands ; the transplanted landholders
saw themselves again in fancy installed in their homes ; and the
holders under the Cromwellian Settlement trembled for their
possessions. The final arrangement came as a terrible blow
to many. There were difficulties of no small degree in the
way of the advisers of Charles, for his father had ratified the
Act under which money, on the security of Irish land, was
advanced by the adventurers in 1642, and this the king was
therefore bound to support. In 1660 the Commission appointed
to consider the Irish claims commenced its sittings. It was
decided that those who were able to prove themselves innocent
of complicity with the original outbreak were to be reinstated
in their lands, those in possession being compensated by other
grants — the lands still unallotted under the Act of 1653 and
the new forfeitures from the old opponents of Charles the First
being available for this purpose. The Act of Settlement
14 & 15 Car. II. c. 2, carried out this policy, and a Court of
Claims tried the cases in detail \ To a very large extent the
Cromwellian settlers managed to retain possession of their
lands, yet more settlers were ousted than there was land else-
where to satisfy, and a second Act became necessary. This Act,
17 & 18 Car. II. c. 2 (1665), compelled the soldiers, adventurers,
and debenture holders to be content with two-thirds of the
land they had been entitled to under the Cromwellian settle-
ment, and barred all hope of restitution to the 3,000 Irish who
had not yet been adjudged innocent. In the vast majority of
cases these latter had certainly been guilty, but they were
naturally enraged at the loss of their possessions without a trial.
The result of the Commission may be stated to be that while
before the rebellion the Irish Catholics held some two- thirds of
the kingdom, more than half of these possessions were now lostl

1 It seems that nearly 7,800,000 acres 2 Hallam, Vol. iii. chap, 18, p. 33.

came before the Court of Claims. — Si- A considerable portion of land in Ire-

gerson, p. 96. See Letters of the Earl land is held by small quit rents under

of Essex as to the competition for letters patent which date from the Acts

lands. of Settlement and Explanation.

M. 6

82 THE SUBSTITUTION OF ENGLISH TENUKES [CHAP.

In reviewing the history of landed relations in Ireland up
to the reign of Charles the Second it must be remembered that
if heavy burdens had been exacted from the inferior class
of holders, the higher class were themselves the victims of
no ordinary oppression. The onerous nature of the incidents
of the feudal system pressed most heavily on the whole of the
Irish colony; repeatedly the complaint is made that heavy
as were the exactions levied by the irregular charges of coygne
and livery, they were less grievous than the exactions of
the king's officers. It is perhaps no wonder that the lords
were little less averse than their tenants to practically free
themselves from the feudal bond. The overthrow of the feudal
incidents \ and the substitution of socage tenures for knight
service, which the necessities of his situation enabled the lords
to exact from Charles the Second, was undoubtedly the downfall
of a system of flagrant evil. Had the improved position of
the landlord class led to their extending a merciful forbearance
to the peasant earth- tillers, half the accumulated wrongs of
the history of the Irish land law might never have arisen.
The prevalent custom, however, of looking to Irish land as a
source of revenue merely, divorced from all reciprocal duties
of just management — which led to the creation of the pestilent
class of middlemen, and to a system under which the lands
of an absentee owner''^ were let six deep — prevented any amelio-
ration of the position of the peasant occupier.

With the accession of James the Second rose the cause of
the Catholic party in Ireland. James was fully aware that
the Irish troubles sprang more from the distinctions of race
than from differences of creed ^ and had his proceedings been
marked by a determination quietly to enforce the existing
state of affairs, rather than by efforts in the interests of one
cla^s to overthrow a settlement sanctioned by twenty-five years'
possession under the solemn guarantee of Parliament, much

1 The Court of Wards and Liveries 2 "Three-fourths of the land at one

was in effect discontinued after 1645, time, always more than half, belonged

and formallyabolished by 12 Charles II. to the absentees." Field, p. 263.

c. 24, and 14 & 15 Car. II. sess. 4, ^ SeeliOrdM&c&ulay's Hist, of Eng-

c. 19 (Irish). land, Vol. i. p. 393.

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 83

bloodshed might have been avoided. Had he at the same time
striven to ameliorate the position of the native small holders
by extending to them some measure ot certainty of tenure ;
and Avhile extinguishing the extravagant hopes of resumption
cherished by the old proprietors of large domains endeavoured
to reconcile them with the existing settlement, it is possible that
no great difficulties might ever again have arisen ; for the con-
dition of the colony was now comparatively prosperous, as was
clearly shown by the fact that rents had almost doubled ^ His
action, however, was widely different. Tyrconnell laboured to
undo the work of the Acts of Settlement, and to extirpate the
Protestant interest. At the time when William landed in
England, in the Court of the Exchequer at Dublin crowded
with Irish applicants armed with writs of ejectment and tres-
pass, no Protestant title, however established, seemed safe.
Finally in 1688 the Catholic party, under the cloak of the cause
of the exiled James, again took arms, James landed in 1689,
and the Irish and Catholics regarded him as the one who was to
restore to them their inheritance. A Parliament met at Dublin ;
the Acts of Settlement were repealed ; and the old owners, who
had been ousted from land which was barren of all save the
good gifts of nature, were replaced on land which the industry,
the labour and the capital of others had made fruitful exceedingly.'
Attainders overwhelmed the Protestant owners ; but the cause
of James was but a house of cards. After the battle of the
Boyne the revival of the Protestant supremacy was but a
matter of time, and in 1691 the Treaty of Limerick was signed,
which proved but a feeble protection to the native race. Again
the tide of change rolled over the Irish lands, and the Com-
missioners appointed for the purpose of restoring the property
of the Protestants entered on their difficult task; but so com-
plicated were the rights involved that the Settlement took
some years. The large confiscations of the estates of king
James and his adherents offered new sources for grants '"^j which

^ See Lord Macaulay's Hist. ofEng- given by Wakefield as amounting to

land, Vol. i. p. 393. "1,060,792 acres, which being worth

2 The forfeitures of land belonging £211,623 a year at 6 years' purchase

to the adherents of James II. are for a life and 13 years for an inherit-

6—2

84 THE SUBSTITUTION OF ENGLISH TENURES [CHAP.

it is to be regretted were often given to those who possessed
no claim to them save Royal favour \ and who were far from
being the most fitted to deal with the involved problem of
Irish land rights I

That the bitterness of many unhealed wounds lay between
the class who ruled and the class who tilled the land, was calcu-
lated naturally to produce oppression on the one hand and
hatred on the other. This was increased by the fact that
among the class of earth-tillers, reduced to the lowest step of
the social ladder, were not merely the descendants of the old
tribal freeman, but also the descendants of the noblest houses of
the chieftains; men who to the hatred of nation for nation, and
creed for creed, added the bitterness always felt by the superior
reduced to bondage to one whom he considers immeasurably
his inferior. The sympathies of the subject people were all
against the dominant class. Freebooters, the relics of the army
of James the Second, lived by rapine and exaction ; yet says the
Statute of William the Third ^ "the Popish inhabitants chose
rather to suffer strangers to be robbed and despoiled of their
goods than to apprehend the offenders, the greater part of
whom were people of the same country and harboured by the
inhabitants." With a short-sighted policy, moreover, the evil
effects of which were manifold, the English nation kept the
Irish native race enthralled to the soil. The doors which might
have been opened to them by the encouragement of manufac-
ture and trade were kept resolutely closed. Had this been
different, by teaching the Irish to look away from the vexed
subject of the land for their sustenance, the strained relations

ance amounted to £2,685,130. Out of these estates were afterwards reclaimed

these lands the estates restored to the and vested in trustees for sale for the

old proprietors under the articles of benefit of the English nation.

Limerick and Galway were valued at ^ The Commission of 1699 revealed

£724,923 and those restored by Eoyal a mass of jobbery into which it is im-

favour at £260,863. And after these possible to enter here, but the case of

deductions and several other allow- Lady Orkney alone is suflBcient to

ances, the gross value of the estates condemn the whole transaction. See

forfeited from the 13th of February, Froude, Eng. in Ireland, Vol. i. pp. 245

1688, amounted to £1,699,343." Ac- —248.

count of Ireland. ^ 7 Will. III. c. 21 (Irish), and see

1 By the Resumption Act of 1699 Froude, Vol. i. p. 262.

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 85

between the two classes of landholders might have been eased,
and the two races drawn together by bonds of mutual interest
in commercial dealings. On the contrary, fresh restrictions
were ever and anon placed on the development of native
industry. The prohibitions and duties imposed on the export
and manufacture of wool and woollen goods \ and then on linen;
the restrictions on the importation into England of cattle, and
the far-reaching wrong inflicted by the Merchant Navigation
Act, 1663^ aggravated the evils of the land system by in-
creasing the class of those dependent upon the soil. Moreover,
the provisions which prohibited Papists from sitting in Parlia-
ment^, and which took away from them the elective franchise,
prevented the position of the conquered people being ably
advocated, and hindered the bitter cry of their wrongs from
adequate utterance. It is, alas, but seldom realized how
immense an influence the laws regulating the social relations
and commercial dealings of a community have upon the ameli-
oration or aggravation of its land system. Where the problem
of a community is presented by the abject condition of its
lowest class, and that class is found to cling to the land with an
unreasoning tenacity which ends only with life itself, it may be
predicted with certainty that there exists, either at that time
or in the history of the community, some cause other than
mere national aspirations. Land, by the fatal policy of Eng-
land*, was made the vital necessity of the Celtic race. Half
the land hunger of the Irish peasantry has its root in the trans-
mitted idea that the possession of land is an essential of exist-
ence. The legislation which for a century deliberately shut
the door to the growth of Irish commerce, and which systema-
tically laboured to reduce to subjection the native race, bound
them to the land by barring all other means not only of wealth
but of bare subsistence. It will be seen later how this fact

1 13 & 14 Car. II. c. 18, and 10 & 11 have exterminated the Catholics by the
Will. III. c. 10. sword, or expell-^d them like the Moris-

2 See Field, p. 266. coes of Spain, would have been little
^ 3 Will. & Mary, c. 2. more repugnant to justice and human-
* Hallam says, when dealing with ity, but incomparably more politic."

the Penal and Commercial Codes, "To

86 THE SUBSTITUTION OF ENGLISH TENURES [CHAP.

rendered the pretty paper theory of free contractual relations in
land dealing a source of desperate misery. How was it possible
for such a method to hold for a moment when a commodity of
which the supply was limited was hungered after by a whole
community with a wild desire, caused not only by national
predilections and present necessities, but also by an ingrained
sentiment, graven upon their characters by a mass of legislation
' which had driven them to the soil for their very being ?

Not only the Commercial Codes but also the illiberal and
inhumane Penal Code tended to aggravation of the land diffi-
culty. Designed as it was to reduce to the lowest grade the
scanty remnant of those Catholics who retained recognizable
proprietary rights in the soil, its result was to increase the class
of those dependent upon the land for their sustenance. A cur-
sory glance at some of these provisions, which constitute such
a blot on the Statute Book, will illustrate this proposition.
Catholics were prohibited from taking a freehold or a mortgage
of lands, and if they succeeded to such must conform within six
months or forfeit^ to the next Protestant heir. Their lands
were gavelled^ and descended to the children equally, but sub-
ject to the proviso that if the eldest son conformed, the father
merely had an estate for life, the reversion in fee resting with
the son^ A Protestant heiress who married a Catholic for-
feited her lands to her next of kin, and a Protestant man
marrying a Papist became himself liable to all the disa-
bilities of a Catholic \ The whole weight of the law tended to
reduce the Catholic interest in the land to mere tenancies at
will. Leases save for thirty-one years or less, and then at a
rent of two-thirds value, were forbidden them; while should
the profit rent of the land be found to exceed the allowed third
the benefit of the lease was transferred to the Protestant who

1 See O'Connor Morris, p. 143. applied, proving that it was really con-

2 It has been well pointed out that sidered a destructive custom.

this provision is a strong confirmation =* What kind of landlord was a son

of the good intention with which the who abjured his faith for this reason

abolition of Irish Gavelkind was car- likely to be?

ried out by Sir John Davies, for here ^ 9 Will. III. c. 3 (Irish), and see for

it is restored for the express purpose further repressive legislation 2 Anue

of destroying the class to whom it was c. 3 (Irish) and 2 Anne c. 6 (Irish).

v.] AND THE ERA OF PROTESTANT ASCENDENCY. 87

made the discovery. This last provision encouraged a most
baneful system of informers, and completely prevented the
proper cultivation of the soil. The enactments of Parliament,
moreover, were imitated in various bye-laws passed by local
corporations, with the result of excluding the Catholics from
every useful branch of trade.

It is not remarkable that, labouring under the monstrous
burden of the Penal and Commercial Codes, the Catholic
owners and the native race generally were reduced to a most
abject condition, and lapsed into mere occupiers, holding prac-
tically only tenancies at will. Nor were the native Irish and
the Catholics the only persons who were thus cast on the
land. The descendants of many of the Colonists of the
Cromwellian Settlement became as Irish as the natives, and
were involved with them in the common ruin; while the de-
scendants of many colonists of earlier settlements were reduced
to the same condition in a rather curious manner. The English
undertakers who received estates in the various settlements on
the condition of planting a certain number of English tenants
had frequently treated those colonists, whom they induced by
promises of freehold estates to go to Ireland, with great in-
justice. The actual lease for life or lives, or grant of an estate
in fee, was refused them, and they were compelled to put up
with mere possession and a parol agreement. This frequently
satisfied them, since when livery of seisin was at its height
possession bore many binding traits \ and the idea that it
involved determinate rights was long-lived; but by a statute
of William the Third ^ any estate that they might have
deemed themselves the owners of was swept away. This
statute enacted that after 1696 "all leases, estates, interests,
freeholds or terms of years, or any uncertain interest of, into
or out of any messuages, manors, lands, tenements or here-
ditaments, made and created by livery of seisin only, or by

1 In Bracton's time the law protected Seisin," F. W. Maitland, L. Q. Review ^

possession, even if untitled and vicious, 1888.

against property; but by the time of - 7 Will. 3, sess. 1. c. 12 (Irish) and

Littleton the power of seisin was great- see Sigerson, p. 101.
ly diminished. "The Beatitude of

88 THE SUBSTITUTION OF ENGLISH TENURES. [CHAP. V.

parol and not put in writing and signed by the parties so
making and creating the same or their agents, thereunto au-
thorized by writing, shall have the force and effect of leases
and estates at will only." Practically this is an extension of
the Statute of Frauds^ to Ireland, and mischievous as that
statute has sometimes proved in England, it would in the very
nature of things prove more so in Ireland, for an unlearned
tenantry would be totally unable to understand such a departure
from their parol customs. It has been remarked with much
justice that this statute "produced written leases in England,
but it only legalized gross general exactions in Ireland."

How complete was the subjection of the native race
during the hundred years that followed 1691 it is hard to
paint in sufficiently forcible colours: Swift, writing in 1731,
said, " The estates of the Papists are very few, crumbling into
small parcels, and daily diminishing ; their common people are
sunk in poverty, ignorance and cowardice, and of as little con-
sequence as women and children. Their nobility and gentry
are at least one half ruined, banished or converted. They all
soundly feel the smart of what they suffered in the last Irish
war. Some of them are already retired into foreign countries :
others, as I am told, intend to follow them; and the rest, I
believe to a man, who still possess any lands, are absolutely
resolved never to hazard them again for the sake of esta-
blishing their superstition I" As is pointed out by Lord
Macaulay, the native race found no champion even among
those English who most studiously upheld in England the
cause of liberty. "During the century which followed the
Eevolution, the inclination of an English Protestant to trample
on the Irishry was generally proportioned to the zeal which he
professed for political liberty in the abstract. If he uttered
any expression of compassion for the majority oppressed by the
minority, he might be safely set down as a bigoted Tory and a
High Churchman^".

^ 29 Car. II. c. 3. An exception was ary interest,
made in the Statute, of leases under 3 2 Dean Swift, The Presbyterian'' s

years with a rent of two-thirds value, Plea of Merit, quoted by Macaulay,

and assignments were ordered to be in Vol. ir. p. 295, note,
writing unless of copyhold or custom- ^ lb. p. 296.

CHAPTER VI.
The Land and the People.

It has been seen that the undoubted rights in the soil
possessed by the free tribesman were recognised by Sir John
Davies, but these rights had been completely swept away by
the various revolutionary settlements and re-settlements of the
land. That in a certain sense the English were justified after
the time of Cromwell in looking upon Ireland as conquered
territory, in which the possessory rights of the natives had
been forfeited completely by their repeated risings against the
English power, is undoubtedly true. Even the most ardent
partisans of the cause of historical tenant-right admit the force
of the legal objections to its existence ; but they take another
ground and say that the storm of war raged over the heads of
an unmoved peasantry, who, when the storm has rolled by, are
found still in their place unmindful of the change of ruler, and
riveted to the land. There appears no reason whatever to
believe this view to be correct. Those who know the Celtic
character can understand how, in the war of race against race,
the lowest earth-tiller would have felt stirred to rise against
the national enemy.

The statements of Sir William Petty in his Political
Anatomy of Ireland, it is true, seem to show the existence of
the earth-tillers after the Cromwellian conquest much as before ;
but this proves nothing. The battle over, the cause lost, the
earth-tiller returned to his holding because it was the only
place he had to go to, and because no state to which the
victorious enemy could reduce him could be more terrible than
his natural condition. It presupposes no great amount of
sagacity to imagine him capable of understanding that, what-

90 THE LAND AND THE PEOPLE. [CHAP.

ever ruin might overtake the leaders of the lost cause, the
* hewers of wood and drawers of water ' were too necessary a
part of the social system for the conqueror, who needed their
services, to drive them from the land. The survey of Sir
William Petty recognised and thus in a sense legalised the
possessory rights of the earth-tillers, and to as great an extent
as this was done they could claim in the future to be regarded
as having acknowledged rights in the soil. The Acts of
Settlement, how^ever, again unhinged all existing rights^ and not
only swept away any legal claims possible on the part of the
lowest tenants, but also interrupted any growth of customary
rights. Up to the dates of the Penal and Commercial Codes the
wrongs of Ireland are mainly to be found in that injustice which
is inseparable from the *vae victis' of war. The history of the
gravest wrongs of the native race begins from this period.

The suppression of Irish manufactures, and the endeavours
to stamp out the creed and to reduce to a minimum the
established proprietary rights of native holders in the land,
resulted in throwing on the soil for support the bulk of the
native race in the position of mere tenants at will. Given the
existence of these masses of precarious holders tied to the soil,
and bound generation after generation to its culture, it is
strange that mere lapse of time did not establish customary
tenures, and that as the years rolled on the tenant at will did
not evolve into the customary holder. In English copyhold, at
any rate according to the legal theory'^ of the origin of copyhold
rights, the growth of these rights of the servile class in the
land can be traced from a starting point of which complete
slavery and unlimited personal services, combined with a mere
usufruct by favour, are the characteristics, to the point where
the services are limited specifically and absorbed in a money

1 Sir William Petty estimated the remaining two-thirds. In 1672 he
superficies of Ireland at 10,500,000 calculated that the possessions of the
Irish acres, of which 7,500,000 were Church and of the Protestants amount-
good land, the rest being moor, bog, ed to 5,140,000 acres. The Catholics
and lake. In 1641 the lands of the holding about half this quantity. Hal*
Church and of the Protestant owners lam. Vol. ii. p. 31)2 (note),
amounted to about one-third of the - See ante, p. 33.
good lands, the Catholics owning the

VI.] THE LAND AND THE PEOPLE. 91

rent, and finally to the realization of freedom and determinate
possessory rights\ Degraded as was the position of the Irish
earth-tiller in the period following the accession of William the
Third to the throne of England, it was in no way so desperate
as the condition of the villeins of a Saxon manor over whom
at the Conquest a Norman lord came to rule. The Saxon and
the Norman, like the Irish and the English, present the
spectacle of a conquered race settled on the land of their birth,
but ruled by the stranger conqueror. In the former case not
less than in the latter, sentiments of national hatred would tend
to make the conqueror an oppressor, and the Norman yoke was
heavy exceedingly : yet slowly but surely the villein established
his rights in the soil, while the Irish peasant remained a pre-
carious holder. The villein cultivator of the lord's demesne was
but little in status above the mere beast of the field. Unable to
leave the land without the lord's permission, if he ran away or
was purloined he could be recovered by action ; holding his
land at first at the unfettered will of the lord, by the meanest
services, uncertain both in time and quantity ; prohibited from
acquiring property, and liable if he even allowed the marriage of
his daughter without the lord's permission to an action for
damages for purloining property; could a more debased con-
dition be possible ? Yet he reached security of tenure. The
express or implied manumission by the lord, the growth of the
customary rights in the holding, and the recognition of his title
by the manorial courts, built him by slow degrees a fortress
against unjust exactions and summary ejectments. There is no
trace of a similar growth of proprietary rights in the case of the
Irish tenant at will.

It is often urged by the advocates of tenant-right in Ireland
that the salvation of Irish laud would have been the wide-
spread application of the manorial system, and it is too frequently
forgotten that the rights of the precarious holders in a manor
cannot be established by Act of Parliament, but have their
origin in long user, and the recognition of customs by the
manorial courts. The plan has been tried in many cases
in Ireland as far as it is possible to create newly a system,
^ See Commons and Common Fields, T. E. Scrutton, p. 7.

92 THE LAND AND THE PEOPLE. [CHAP.

the very essence of which is established custom. The large
grants made by Henry the Second* were grants of Counties
Palatine carrying all the rights of the creation of manorial
courts; and Tipperary was also granted as a County Palatine to
the Earl of Ormonde by Edward the Third. Again by 16 Car.
I. c. 33, s. 9, confirmed by 21 & 22 Geo. III. c. 48 (Irish), every
person having an allotment of lands of a specified extent
was empowered to create a manor '^i while upon the settlement
of the escheated counties in Ulster, and generally in the grants
of land made in the reign of James the First, the creation of
manors was allowed, and the holding of Courts Baron authorized.
Many of the undertakers did create manors, the law permitting
them to enfeoff tenants to hold of themselves (unlike the law in
England) provided they did not so aliene more than a moiety of
their allotment. The absence of the growth of customary rights
among the precarious tenants must therefore be ascribed not to
the w^ant of the manorial system, but to the fact that even in
such a system the proprietary rights of the servile class can
only be attained by long custom, not created instantly. The
constant surge of change in the occupation of the land caused
by the compulsory removals, whether by arbitrary evictions or
by evictions for non-payment of rent, prevented the possibility
of the acquisition of such rights by long user. The curse of
absentee owners is responsible in a great measure for that total
want amongst the lowest tenants of continuity in their holdings,
which prevented the growth of customary rights. That such
rights would have arisen in the natural course of events, had
even the semblance of that consideration which always springs
from personal relationships been present, is clear. In Ulster

1 See p. 44 ante, and refer to Koll est Chauncellerie, Chequier, et conis-

of King's Council in Ireland 16 Ric.IL, sance des Plees si bien de la corone

where a petition to the king from the come auties communes, et grantont

Lord Justice and Council of Ireland auxint Chartres de Pardon." The

says "Les Franchises grantez in Ire- Chronicles and Memorials of Great

lande, que sont regale, tieles come Britain and Ireland during the Middle

Duresme et Cestre, vous oustont si bien Ages.

de les grantez profitez come de grant ^ Law of Landlord and Tenant in

partie de obeisance des persones en- Ireland. J. S. Furlong, Vol. i. introd.

fraunchies, et en chescune Fraunchise p. 15.

VI.] THE LAND AND THE PEOPLE. 93

customary rights arose, so universal as to lead eventually to
their formal recognition by the Legislature. The greatest
wrongs inflicted over most of Ireland by the landlords upon the
tenants were the deeds which prevented such a continuity of
possession as would have fostered customary traits.

The Parliamentary persecution of Ireland acted upon the
land system even more disastrously by its indirect methods
than by its deliberate land legislation. The different Acts
repressive of Irish manufactures resulted in making sheep
breeding, in conjunction with an immense smuggling traffic in
wool, the most profitable use to which Irish land could be put.
The creation of the extensive tracts of pasturage* necessary for
the grazing farms entailed the eviction of great numbers of
small holders. The lands were often in the hands of middle-
men, and no trace of consideration for the position of the small
tenantry was shown. The absentee owners also pressed their
agents to obtain the utmost value from the land, and so far was
the grazing system carried that, despite the remonstrance of the
Irish Parliament, covenants restricting the breaking or plough-
ing of the soil, were introduced in the leases of the larger
tenantry ^

The effect of this mode of dealing with the land soon
became apparent ; the limitation of the supply of plough-lands
forced rents unnaturally high, with the effect that the Irish
tenant, to whom land was a necessity, undertook to pay more
than he was able. " The tenant was ruined by his liability to a
charge out of all proportion to what the land could naturally
produce, at any rate for a continued period, and the landlord
became embarrassed by bankrupt tenants." How the tenant's
hand was forced until an unnatural rent was offered is well
shown by an allusion made in a remonstrance sent by the
Northern Protestants to the Government in 1772, and quoted
by Mr Justice Field^; "when the tenant's lease was ended
they (the landlords) published in the newspapers that such a

1 The creation of pasturage was Act was not repealed till 1823. (4 Geo.

further fostered by the fact that by IV. c. 99, s. 35).

the Tithe Agistment Act, 1735, pasture 2 gee Field, pp. 267 and 268.

land was exempted from tithe. This ^ Ibid. p. 270, note.

94 THE LAND AND THE PEOPLE. [CIIAP.

parcel of land was to bo let, and that proposals in writing would
be received for it. They invited every covetous, envious and
malicious person to offer for his neighbour's possessions and
improvements. The tenant, knowing he must be the highest
bidder or turn out he knew not whither, would offer more than
the value. If he complained to the landlord that it was too dear,
the landlord answered that he knew it was so, but as it was in
a trading country the tenant must make up the deficiency by
his own industry." The diminution in the employment of
labour caused by the substitution of grazing for tillage inflicted
great misery, and we begin in the doings of the 'Houghers' in
Connaught to be confronted with one species of the agrarian
crime which has been so painfully prevalent in more recent
times.

The necessity of having at certain times a proportion of
Protestant tenants on the lands in order to insure the return to
Parliament of the landlord, also frequently led to the summary
ejectment of bodies of Catholic small holders^ and hence by
destroying existing tenancies prevented the acquisition of any
customary rights. Again in the manner in which the enclosure of
commons was carried on (generally with a view to increasing the
grazing lands of the landlord) is to be found a frequent source
of loss, and hence of probable ejection from his holding, to the
tenant. For example, in Munster the excessive rents asked b}''
the landlords had been compensated by extensive grants of
commonage, 3^et in many cases these commons were un-
scrupulously enclosed and not the slightest reduction in rents
made^. In a greater or less degree every imposition which
burdened the tenant, or which aggravated the repellent feeling
of landlord and tenant, tended to prejudice the latter's chance
of security in his holding.

A prominent place among the forces of social disunion was
taken by the tithe question. The payment of tithes was a great
burden on the Irish peasant ^ and embittered the relations

1 Notice a petition presented by the he had known as many as 120 processes
CathoHcs in January, 1793. for tithes to be going on at the same

2 Sigerson, p. 128. time in the county of Limerick against

3 "Fitzgibbon, afterwards Earl of poor tenants." Field, p. 276.
Clare, stated in 1786 in the House that

VI.] THE LAND AND THE PEOPLE. 95

inter se of owner and occupier. Not only must it have seemed
a hardship to the tenant to find the scanty fruits of his labour
trenched upon for the support of a church which he abhorred,
but also the fact that the great grazing estates of the large
owners were exempt from this imposition \ must have seemed
a most deliberate wrong. The tenant would keenly resent
the fact that in Ulster the Protestant tenantry had succeeded
in freeing themselves largely from this burden by the as-
sertion of customs of exemption with regard to certain crops,
for example, potatoes and flax, while he remained bound : and
the modern history of Wales has taught the practical im-
possibility of impressing on the mind of the tenant that the
tithe is a charge on the land and had already been considered
when the rent was fixed. The Irish tithes in addition were
almost always sold by the incumbents and passed into the
hands of the tithe-farmers while the 'canting' of tithes was also
resorted to'"*.

During the first half of the eighteenth century the Pro-
testant ascendency was unbroken in the higher grades of the
Irish social system, but as time passed the very completeness of
this sovereignty led to a relaxation of some of the crushing
burdens piled upon the Catholics. The Penal Code wa,s allowed
to rust, and some degree of common interests sprung up between
the two religions. There was a marked increase in those in-
fallible signs of the prosperity of a community, the making of
buildings, and the investment of money in the development of
land. Unfortunately the improvement was strictly confined
to the higher grades of society ; the English and Catholic
landlords showed signs of a rapprochement, but the landlord
and the tenant showed none. Even the relaxations of the
Commercial Code became evils to the agricultural tenant by
extending the amount of lands devoted to grazing. Agrarian
troubles reached a crisis. The Levellers, who at first had
limited their attempts to the forcible prevention of the en-
closing of common lands ^, became a serious disturbing element

1 By the Tithe Agistment Act, 1735, 3 gge Sigerson, p. 128, quoting "An
repealed 4 Geo. IV. c. 99, s. 35. enquiry into the causes of the outrages

2 Tico Centuries of Irish History, committed by the Levellers or White-
edited by Prof. Bryce, p. 65. boys," 1762.

96 THE LAND AND THE PEOPLE. [CHAP.

to the community, when, under the name of Whiteboys, they
perpetrated outrages which were a menace to the peace of
the country, and which were obviously aimed at the de-
struction of the whole of the existing system of landlord and
tenant. The rising of the Oak Boys^ in 1763 was originally
directed against excessive road corvees, but afterwards took,
like the Whiteboy rising, the form of general resistance to
exactions, rack rents, and other features of the oppressive land
system. These outbreaks, really the result of utter misery,
were almost wantonly misunderstood by the Government, and
arbitrary repressive Acts were passed. It was argued that
the outbreaks were concocted in the French interest, and
no attempt was made to investigate the true origin of the
risings or to remedy the social evils which gave them birth.
In 1771 came the Association of the "Hearts of SteeP," an
organization produced by a set of circumstances typical of the
manner in which Irish estates were managed by absentee
owners. When the leases on a certain estate expired, the
owner suddenly demanded large fines on renewal from his
tenants ; these not being forthcoming the lands passed into the
hands of a group of speculators, and a wholesale eviction,
whereby the tenants lost not only their homesteads but also
the value of their improvements, followed. When too a body
of Catholic tenantry was established under these speculators
(for in the case alluded to the ejected tenants were Protestants)
their position was most miserable ; for the middlemen, who had
paid the fine and taken up the leases as a speculation solely
for profit, were men "who not content with moderate interest
for their money, racked the tenants to a pitch beyond the
reach of the old tenants ^"

1 Sigerson, p. 130. their petition to the Government, par-

2 Both the "Oak Boys" and the ticular stress was laid on the exaction
"Hearts of Steel" were exclusively of the county cess: it would appear
Protestant organizations : this is a re- that the cause of their complaint in
markable proof that the struggle be- this case was not so much the amount
tween nation and nation, or creed and of the exaction as the fact that it was
creed, was rapidly changing to a class often misappropriated, and used by
war between landlord and tenant. those whom they held to be tyrants for

2 Among the many grievances ad- their private advantage. See Field,
vanced by the "Hearts of Steel" in p. 277.

VI.] THE LAND AND THE PEOPLE. 97

In 1757 the Duke of Bedford had promised to abridge the
penal laws, and to a large extent their rigour had been lessened
as regards the Catholic gentry ; but the position of the Catholic
peasant remained unaltered, and the land law was a terrible
burden. Bad as was the position of the Protestant small
holder, that of the Catholic was worse ; they shared in common
the evils of a system in which the landlord was all powerful,
but the Catholic was burdened with additional preventives to
the possession of a secure interest in the land. The heredi-
tary sentiment which bound the native race to Ireland being
wanting in the case of the Protestant settlers, masses of the
Protestant tenantry, as had been the case earlier ^ abandoned
the land, which seemed under a curse, and emigrated to America.
At lenorth a sliofht amelioration of the case of the Catholic
tenants was effected by an Act of 1771 ^ by which under certain
stringent conditions they were allowed to undertake the re-
clamation of bog-land. In 1775 the American war broke out,
and reacted upon Irish affairs by causing a relaxation of the
fetters in which the country had so long been bound. A really
useful Act was passed in 1778^ enabling the Irish to take leases
for 999 years or five lives\ It is to be feared, however, that
the origin of this Act lay not so much in consideration for the
sufferings of the Catholic tenantry^ as because the landlords found
that unless some security of tenure was granted it was hopeless
to expect the tenant to improve the soil. In 1779 came the
repeal of the Restriction Acts, and but for the trade jealousy of
England the Commercial Code would have been wholly repealed.
This course was really necessary, for the war with America had
closed the chief marts for Irish goods, and more misery and
discontent was added to Ireland's already brimming cup.

The weakness of England was Ireland's opportunity. In
1782 Grattan, backed by the volunteers (which the exigencies
of England during her American war had compelled her to
allow Ireland to organize for self-defence), succeeded in gaining

^ During the oppression of the Pro- ^ 17 & is Geo. III. c. 49 (Irish),

testant party by Tyreonnel. Ante, ^ See Sigerson, pp. 132 — 134.

p. 83. 5 This was, however, the 3'ear of the

2 11 & 12 Geo. III. c. 21 (Irish). Catholic Belief Bill.

M. 7

98 THE LAND AND THE PEOPLE. [(^HAP.

an Independent Parliament, and obtained the repeal of Poyning's
Act. Legislative freedom, however, brought no benefit to the
radical evils of the land system, though commerce and manu-
facture relieved from restraint grew and increased prodigiously.
The fact that the peasantry were deeply imbued, and with
reason, with the idea that the influence of the laws was exerted
solely in favour of the landlords, operated largely to defeat even
beneficent legislation. Long leases were frequently granted
after the Acts of Settlement, but these passing exclusively into
the hands of middlemen and never direct to the tenants, only
aggravated the evils of their position. The law of distress also
was by itself enough to fix for ever in their minds the idea
that the landlord was an unjust taskmaster, and the law his
complaisant helpmeet. The remedy of distress was indeed
recognized by the Brehon Law to the fullest degree, in fact
it may be considered to have been the universal mode of
procedure for the recovery of any claim ; and the Senchus Mor
with its provisions for notice to the defendant, for the 'stay,'
and for a near equivalent to replevin, shows a highly elaborate
system. In two ways, however, it completely differed from the
English law of distress, (1) the remedy was entirely extra-
judicial, and (2) it was applicable (resembling in this the
Teutonic distress) to all cases and not merely to certain specified
classes of claims \ The feudal law of distress undoubtedly
developed into a powerful weapon for the landlord. When
there was a difference between him and the tenant, he was
able as feudal superior to seize the tenant's goods ; the Common
Law rule that the goods so seized could not be sold was supple-
mented by a statute giving this power, and a further Act
enabled him to seize growing crops ^ The tenant's rights con-

^ The late Sir Henry Maine pointed Early Hist, of Inst., lecture x. ; see also

out that this last fact opened a wide quotation from Edmund Spenser there

field for probable injustice on the part given.

of the English settlers to the native ^ Qne of the recommendations of

Irish, for the statutes which made an the Devon Commissioners was that

unlawful distress a capital felony would this statute should be repealed and the

punish the native in many cases for costs of a distress strictly limited,

using the only method for recovery of The original theory of the feudal

a claim with which he was acquainted. distress regarded it as a means of

VI.] THE LAND AND THE PEOPLE. 99

sisted merel}' in a resort to the dangerous action of replevin
which entailed his giving a bond with two responsible sureties,
to double the value of the goods distrained, as security that
he would prosecute the suit with effect and without delay.
It was the gradual amendment of the law in favour of the
tenant, by imposing the observance of many legal techni-
calities (with an accompanying penalty as to a trespasser
ab initio) on the distrainor, which led to a later stage of the
Irish land history when, on account of the legal difficulties in-
volved, the process of distress was adopted as a last resource
by the landlord \

In the past century the most patent evils of the land
system had been the frequent changes of tenancy in the small
holdings and the not unfrequent blotting out of large numbers
of such holdings, which prevented the peasant from attaining
any security of tenure by the growth of customary rights. A
new phase of the land question was now entered upon, inse-
curity of tenure still marked the small Irish holdings but
instead of a tendency to unduly restrict their number they
were created with a most disastrous prodigality. The immense
cultivation of the potato, Raleigh's ' fatal gift,' brought the
most terrible attendant evils. Easy of cultivation, and re-
quiring but small plots of land for its production in large
quantities, it fostered an increase of population entirely out of
proportion to the land to which it looked for its exclusive
support. The famine of 1739 brought no lesson to the im-
provident peasantry, and the commercial developments of
1782 to 1800 did not aid the case of the small agricultural
holders.

The desire of the landlords for political influence^ led them
to increase the number of the small holdings to such an extent
that, considered with regard to its effect on the agricultural

compelling the performance of the ^ lb. p. 40.

feudal services, and did not contem- 2 Before the Reform Act many of

plate such a case as the recovery of the counties were absolutely subser-

rent, therefore the goods of the tenant vient to the landlord interest. Imt. of

might by the Statute of Marlbridge English Government, Homersham Cox,

be merely retained as a pledge and not p. 108. Lord Farnborough's Gonsti-

sold. Richey, Irish Land Laws, p. 40. tutional History, Vol. i. p. 298.

7—2

100

THE LAND AND THE PEOPLE.

[chap.

system, the Acts of 1771, 1778 and 1782 which enabled Catho-
lics to hold land, and the Act of 1793 which granted them the
405. franchise, must be looked upon as evils despite their mani-
fest equity of principle. The small holdings created for the
purpose of securing a weighty tenant vote were let at rents
exceeding their true worth, owing to the increase in the value
of land caused by war prices, and the small freeholder was
at once, upon prices regaining their normal level, involved in
difficulties ; whilst the landlord on his part, despite the pro-
visions of the Eviction Act 1816^ and the Subletting Act 1826 ^
was burdened by bankrupt tenants. The following table will
illustrate the rapid growth of the small freeholds, caused by
the desire for political influence felt by the landlords, and the
avid eagerness of the Irish peasantry for small holdings.

Freeholds, 1795—18301

40s.

£20

£50

Total

1795

4,768

408

344

5,520

1796

64,752

5,109

3,195

73,056

1803

157,159

10,096

7,009

174,264

1821

184,229

15,139

11,066

210,431

1828

191,732

6,806

18,369

216,907

1830

14,246

7,639

17,819

39,704

After the abolition in 1829* of the 405. freehold suffrage, the
tenancies mostly took the form of tenancies from year to year ;
for the rise in the value of land, which had been caused by the
outbreak of the French war and the depreciation of the cur-
rency, had been followed by a subsequent depression, and the
landlords had realized the fact that under a lease by which a
certain rent was reserved they reaped no benefit from an in-
crease in the value of land, while a fall invariably involved them
in the losses of the tenant. For the same reason they sought to

1 56 Geo. III. c. 88.

2 7 Geo. IV. c. 29.

2 Taken from the statistical article

on Ireland in Encyc. Brit, by Mr T. F.
Henderson.

^ 10 Geo. IV. c. 8.

VI.]

THE LAND AND THE PEOPLE.

101

consolidate their interest, and large clearances were the result
of a desire to substitute large farms for small holdings. This is
alluded to as a necessary evil in the report of the Select Com-
mittee of the House of Commons in 1830\ Leases were, how-
ever, still sometimes granted from political motives until the
uncertainty of the tenant vote and the extension of the suffrage
in 1850 by 13 & 14 Vict. c. 69 to the occupiers of land of the
annual rating of £12 extinguished this cause for their creation.

^ After 1838, on account of the
burden of the poor laws many small

holdings were abolished and large
farms substituted.

UNIVEE8ITY

CHAPTER VII.
Ireland from 1800 to 1850.

Irish legislative independence failed to produce those
golden results which were hoped for from it, and the brief
period of its existence calls for little notice. Cases of indi-
vidual patriotism stand out against a background of general
corruption, and the wit and eloquence of Ireland glitter with
that seductive charm which they unfortunately associate with
no commensurate result. The advantages gained by the in-
creased commerce and manufacturing successes of the nation
were more than counterbalanced by the immense increase of
population which rose from 2,845,932 in 1785 to 5,356,594 in
1803. The failure of Ireland to govern herself was due to many
causes. Noticeably, the unwise policy of the leaders of the peo-
ple who encouraged the anti-English feeling, and the wild surge
of disappointed passions in a people who had expected a millen-
nium and were tortured perpetually with new hopes of increased
freedom, which vanished as soon as seen. Secret societies were
formed, and that worst side of the Celtic character, which would
attain its end whatever the means used may be, became promi-
nent. The lawless example of France, and the real misery of
the agricultural population, bore fruit. In 1798 rebellion broke
out, in the form of a murderous revolt organized and set on foot
by the 'United Irishmen.' Union with England was now un-
avoidable ; taught again the lesson that concession to Ireland
was merely regarded as weakness, England took the reins into
her own hands.

By whatever means the Union was carried (and the means
employed were far from meritorious) it was undoubtedly at

CHAP. VII.] IRELAND FROM ISOO TO 1850. 103

this time the only alternative to complete separation, and the
Union of 1801^ was probably for Ireland, and certainly for
England, the best step that could have been taken. It was
signalized, however, by no improvement in the strained relations
of the land classes in Ireland, and causes were at work tending
to again rain havoc on the peasants. The passing of the Union
withdrew to England a still greater portion of the landowning
class, and absenteeism^ became the rule; while the expenditure
and extravagance of the Irish landlords was increased by their
being brought into contact with the wealthy landlords of England,
and with a society which normally lived above its resources.
The class of middlemen which absenteeism fostered were
utterly wanting in feeling for the needs of the agricultural
tenant, and regarded them solely iu the light of a rent-paying
machine; while, as has been said, the rise in prices caused by the
French war produced an increase in the value of the land, so
that leases were taken by the tenants at exorbitant rents.

The increase of population continued with terrible rapidity,
in 1841 it reached 8,175,124, in 1845 nearly nine millions"^,
and the whole nation were competitors for the land. This, as
has been shown, together with the cultivation of the potato,
which made minute subdivisions of the land possible, and the
readiness of the landlords to grant small holdings from political
motives, settled on the land a load of peasant tenants which
it was completely unable to support, save in a time of excep-
tional prosperity. The nature of the holdings thus created is
well described by Mr Shaw Lefevre, who says " throughout a
great part of the West and South of Ireland, every facility was
given to the letting of lands in small holdings of from half
an acre up to five or six acres. On taking possession the

1 Act of Union 1800, 39 & 40 Geo. Ireland, p. 265, "Magnates and others
III. c. 67. also, who dwell in England, or else-

2 A very curious proof of how early where out of this land, and draw the
the evils of absenteeism began to be profitsof their lands out of this counti-y,
felt in Ireland is given by the following and send nothing for the preservation
extract from The Black Book of Holy of their holdings, or their tenants'
Trinity Church, Dublin, 26 Edw, I. security, shall etc."

(1297) quoted by Sir William Betham 3 t^jekl, p. 282.

in his Constitutions of Enyland and

104 Ireland from 1800 to 1850. [chap.

tenant would himself build a mud hut at little cost; a few
weeks of labour sufficed for preparing the land for potatoes,
digging the crop, and cutting turf for fuel from the common
bog; the rent was usually paid in labour and the spare time
was spent in fishing, or in work at a distance. The general
social condition of this class was as low as it is possible to
conceive. They constituted nearly half the population of
Ireland, and, with rare exceptions, lived in cabins with one
room only, which they often shared with their pigs. There
was no inducement to them to improve their condition, either
from a healthy competition with their neighbours, or from a
sense of security in their holdings^".

The depression of prices in 1816 and the following years
brought financial troubles not only upon the peasant class, but
also upon the landlords who had entered upon extravagant
modes of living, calculated upon the false basis of the apparently
high rent-roll of their estates; a purely fancy sum produced by
unlimited competitive demand and limited supply. The rents,
which had doubled in thirty years, melted at once on the normal
balance of value being reached: still such was the demand
for peasant holdings that, whatever might prove ultimately
to be the solvency of the candidates, no landlord found a
difficulty in letting his land even at a high rent.

The agricultural tenants being thus eager to obtain the
land, the nature of the tenure granted them was naturally
regulated by the wishes of the landlord class, and these were
almost universally swayed by the desire for political influence.
Until 1829, when the annual value was raised to ten pounds,
a freehold rated at 40^. was the qualification for a vote, hence
until the Reform Act a freehold became the general estate
granted; but it was a freehold of the smallest possible kind,
viz. an estate for life only, and it is apparent that such a tenure
was absolutely hostile to any chance of improvement in the
soil or to any agricultural development of the holdings. Indeed
it may be considered that the tenants were only in a technical
sense freeholders, the landlord's influence over them being
scarcely less than that exercised over the tenants from year to
1 Peel and O'Connell, Rt. Hon. G. Shaw Lefevre, p. 257.

til] IRELAND FROM 1800 TO 1850. 105

year, as by keeping a 'hanging gale' over them he could, by
the threat of demanding immediate payment, prejudice their
position \

Leaseholds for terms of years were then granted, but this
tenure became unpopular with the landlords ^ and as political
motives ceased to influence the lettings (for the tenantry were
often avowedly hostile to the landlord's political party) the
small holdings came to be held largely either (1) from year
to year or (2) at will, and after the Act of 1850* this practice
became almost universal.

Tenancies from year to year, which for some curious reason
the Irish tenants have always regarded as a species of tenancy
in perpetuity, dated from the reign of Henry the Eighth, when
Potkyn's case^ first gave them legal recognition. In several
ways the development of this system of letting is interesting.
Until the reign of George the Third it could only be founded
either on express agreement, or upon implication arising from
the acts of the parties or from the payment of rent; for the
doubt as to what mode of tenancy should be implied when the
letting did not specify it, was held to be decided on the ground
of the mode of letting most common at the time of the creation
of the tenancy. This was held to be tenancy at will until the
time of Lord Mansfield, and as regards tenancies created after
that date, from year to year^ At first these tenancies were
created by an express demise for one year, and then from year
to year as long as both parties desired, at an annual rent.
They can now be created in this w^ay, but when this is the
case can only be terminated at the end of the second year of
holding, or, if the tenancy has continued longer than this, then
by the ordinary methods for determining an estate from year to
year®.

^ Peel and O'Connell, G. Shaw Le- ancy, which they regarded as unlimited

fevre, p. 104. in extent.

2 See ante, page 100. It was stated s gee ante, p. 101.

before the Bessborough Committee that ^ Year Book, 14 Hen. VIII. foL 10.

the tenantry also were averse to the ^ Timmons v. Rowlinson, 3 Burr

idea of long terms, holding that they 1603. Shore v. Porter, 3 T. R. 13.
were a derogation of their rights in the ^ Furlong's Landlord and Tenant,

soil and preferred a year to year ten- Vol. i. Intro, p. 35.

106 IRELAND FROM 1800 TO 1850. [CHAP.

The most usual form of these tenancies in modern times
was where they were implied without the existence of a
written agreement from the payment of rent. This tenure was
always looked upon by the tenants as being practically in per-
petuity, and under it they Avould at least to a certain extent
improve the lands, which it was almost impossible to induce
them to do under tenures for a term of years. They considered
a holding for a term certain to be an invasion of their rights in
the soil, and on the termination of such lettings returned the
land 'run out.' It is evident that this tenancy from year to
year was capable of grave abuses ; the landlord, by serving a
notice to quit, could compel the tenant either to surrender his
holding and abandon the improvements he had made, or pay
an increased rent. Only too frequently this plan was adopted,
and it had the invariable result of causing the tenant to accept
the higher rent, the ultimate consequence of which was his
ruin and eviction.

A mistake frequently made in speaking of these tenures
was pointed out by the late Dr Richey\ namely, the statement
that the tenant had no right to sell or sublet to whom he
pleased. The origin of the mistake arises in the fact that the
tenant could pass no greater estate than rested in him, that is
merely the term of the year, at the end of which the tenancy,
unless the landlord consented to the new tenant, determined. It
is therefore obvious that save with the consent of the landlord
no very valuable estate in the land could be passed. This was
undoubtedly considered a wrong by the tenants who, consider-
ing their holdings in the light of a perpetuity, could not com-
prehend the apparent restraint upon alienation.

Tenancies at will, amounting in result to a holding only
for as long as the landlord pleased, were not as common as
those from year to year; for as will be seen from what has
been said relative to the yearly tenancies, a tenancy at will
could only be created in modern times by express agreement,
or implied where the circumstances of the case preclude the
possibility of a tenancy from year to year having been contem-
plated.

1 Irish Land Laios, p. 88.

VIL] IRELAND FROM 1800 TO 1850. 107

Under the influence of a certain set of causes the history of
the small holdings has been traced from 1800 to 1850. It has
been seen that the number of these holdings increased largely,
and that their tenure, at first generally that of freeholds for life,
became changed to a system of tenancy from year to year. But
during this epoch many other causes were at work as well, and
other and most potent circumstances were widening the breach
between landlord and tenant, and were desolating the unhappy
kingdom. Protestant omnipotence had been rudely shaken; the
agitation of O'Connell and the efforts of the priests had roused
from the torpor of despair the passions of the Celtic race;
concessions such as the Catholic emancipation had been wrung
from unwilling masters, not freely given ; the money obtained
from rents which ground the tenant holders to the dust for the
most part passed out of the country to a clique of owners, alien
in race and religion ; while bitterness of feeling was fomented
by the fact that after 1838, to free themselves from the burden
of the poor laws, the landlords in many cases abolished the
small holdino^s and created laroje farms. In order to do this,
and in order to compel the payment of rents which were really
beyond the powers of the small holders, the landlords em-
ployed that machinery of the law which at this time could
always be relied on to aid their class. In 1816 an Eviction
Act had been passed, and gigantic " clearances " became the
rule. The small holders were driven in crowds from the
homes to which they were bound by a hundred ties of old
association and tradition, which they regarded as their inalien-
able property, and the value of which was mainly owing to
the improvements they had themselves made\ Such associa-

' "It is admitted on all hands, that building or fencing is done by the

according to the general practice in tenant, and in the ordinary language

Ireland, the landlord builds neither of the country, dwelling-houses, farm

dwelling-house nor farm offices, nor buildings and even the making of

puts fences, gates, etc. into good order fences are described by the general

before he lets his land to a tenant. words 'improvements,' which is thus

The cases when a landlord does any employed to denote the necessary ad-

of these things are the exception. The juncts to a farm, without which, in

system of giving aid in these matters is England or Scotland, no tenant would

becoming more prevalent. In most be found to rent it," Report of the

cases whatever is done in the way of Devon Commissioners, p. 1122. It is

108 IRELAND FROM 1800 TO 1850. [CHAP.

tions as the Ribbonmen are not produced without a feeling of
intense class hatred ; and complete alienation of thought and
sympathy between the dominant and the servient class pre-
vailed.

Just at the time when this antagonism was most marked;
when the peasants, ejected from their holdings in vast numbers,
became the movers in every species of agrarian combination;
when the absolute destitution that prevailed amongst the lower
ranks of the people drove them to complete dependence on the
potato for food, and made cultivation of it by every poverty-
stricken squatter the sole sustenance of his household ; when
continued bad times had dissipated any shadow of that reserve
fund which the improvident peasant so rarely laid by, the food
which was the very life of the nation, failed.

This failure, partial in 1845 and complete in 1846, brought
famine with fever in its train, and death dark-winged brooded
over the face of the land. Misery and despair seized the
people, and horrors unimaginable crowd the history of the
terrible year that turned the country into one vast grave. No
words can paint the scenes that were the every day history of
that time. The clarion had been sounded however, class pre-
judice, religious antagonism, national differences, were lost for
the while. England rose to help the dying and to fight as far
as lay in her power the inexorable forces of starvation and
disease. From the cot and from the castle the wealth of
England was poured in no scanty stream to succour and sustain.
Alas, the magnitude of the awful crisis was far beyond the
power of hurried organization and defective plans to cope with,
€ven though into the lap of the perishing nation was flung the
riches of a mighty kingdom. Public works on a gigantic basis
were schemed, but the starving people dropped dead as they
worked, labour and exposure being fatal ; and the plan, which
had developed into a mass of jobbery, was abandoned. Re-
notable in contrast to the above that enabled every ecclesiastical dignitary to
as early as the reign of William III. recover from his successor two-thirds
compensation for permanent improve- of the money laid out on necessary
ments was given to the Protestant ec- improvements. See Sigerson, pp. 108
clesiastics, for 10 Will. III. c. 6 (Irish) —110.

VII.] IRELAND FROM 1800 TO 1850. 109

course was then had to large supplies of food rations ; but
despite all efforts 200,000 to 300,000 perished of famine or
disease.

When the ghastly picture is considered, one is filled with
surprise that the efforts of England — which, though they came
late in the day and were deficient in their modes of appli-
cation, yet represented a large-hearted generosity and a national
sympathy with distress which should have appealed strongly
to the Celtic character — were not the basis of a bond of union
between the two nations. Had a permanent understanding
been built up on the basis of this stupendous catastrophe one
would (bearing in mind the miserable history of crime and
bloodshed caused by the antagonism of race and creed) have
hesitated to call it dearly bought even at the price of so appalling
a sacrifice of life. Alas, the breach was widened rather than
bridged, the lack of gratitude shown by the Irish people further
prejudiced English opinion against them.

This forgetfulness of deep obligations is strange, for the
facts appeal strongly even to very prejudiced critics. Mr Sul-
livan in his New Ireland says, "Even the dark cloud of Irish
famine had its silver lining. If it is painful to recall the
disastrous errors of irresolution and panic, one can linger grate-
fully over memories of Samaritan philanthropy, of efficacious
generosity, of tenderest sympathy. The people of England
behaved nobly.... From every considerable town in England
there poured subscriptions, amounting in the aggregate to
hundreds of thousands of pounds \" Again speaking of the
resident landlords he says, " No adequate tribute has ever been
paid to the memory of those Irish landlords — and they were
men of every party and creed — who perished martyrs to duty
in that awful time ; who did not fly the plague-reeking work-
house or fever-tainted court. Their names would make a
goodly roll of honour'"^ " ; and he further pays a well-deserved
tribute to the courage and humanity displayed by many of the
Protestant clergy.

Events have proved nevertheless that the severance between

1 Vol. I. p. 139. 2 Vol. I. p. 133 (note).

110 IRELAND FROM 1800 TO 1850. [CHAP.

landlord and tenant was even more complete after the famine
than before, and as the critical complications of the land system
are in the main due to the absence of sympathy between the
two classes, it is important to notice the reasons which caused
the Irish people to look on the famine as a slaughter for which
the English were responsible. That in a great measure this
was owing to the unscrupulous misrepresentation of political
agitators, and to the readiness of the peasant class to ascribe
their misfortunes to any cause rather than their own impro-
vidence, is true; but it was partially also the result of minor
concurrent errors on the part of England which, placed in the
scale of national animosity, outweighed all the self-sacrifice
and generosity displayed by her. The regulation which made
the surrender of land a condition precedent to poor law relief;
the breakdown of the poor law system, an event neither re-
markable nor culpable seeing that it was but newly established
and quite unsuited to wrestle with such an unforeseen and
gigantic calamity; the evictions and clearances which had
turned thousands from their homes ; the ' famine clearances '
(rendered necessary from the landlord's point of view by the
fact that the destitute peasantry were unable to find means to
till the soil, and that rent paying was the exception) ; and the
opposition in England to many of the plans for free ports and
abolition of duties \ assumed to the Irish, seeking eagerly for
some blamable person on whom to lavish the bitter wrath
that their miseries had raised in them, the shape of crimes of
terrible magnitude.

The passion and prejudice of the Celt again flung itself in
wild fury against the dominant class. Emigration, which en-
tailed great hardships, followed the famine, and not less than
two millions of the population were scattered over the face of
the earth, principally in England and America. Fenianism
began to spread, originating amongst the Irish in America,
while revolt simmered constantly under the surface of Irish
politics at home. Twice it took head, once in the feeble and

1 In reality this opposition was then fighting the corn law battle
purely owing to the party principles of in England, the protectionists being
protection and free trade which were afraid of granting a precedent.

Vn.] IRELAND FROM 1800 TO 1850. Ill

futile revolution of 1848 and again in the risings in 1867 ;
while plot and intrigue against the Government went on
unceasingly.

Even before the famine the fall of prices and the con-
sequent failure of rents had involved a large number of the
landlords in financial difficulties. Estates were frequently
mortgaged up to the hilt and charged with every species of
incumbrance, and the expensive and complex procedure of the
Court of Chancery was found unsuited to meet the difficulties
presented by an attempted sale of estates so burdened ; while
it was the only means by which an incumbrancer could pro-
ceed. The disadvantage of the system of incumbered estates
in the hands of absentee and unbusinesslike owners was per-
sistently pressed, and the substitution of practical men, who
would take personal concern in the paying development of
the land, and whose direct interest would be involved in making
permanent profit from their estates, urged ; the aid of legisla-
ture was invoked, and an Act, 11 & 12 Vict. c. 48, known as
the Incumbered Estates Act, 1848, was passed.

The purpose aimed at cannot be better described than in
the words of Mr Gladstone, who in 1870, speaking of this Act,
said\ " It had a most benevolent object ; it was intended to
introduce capital into Ireland, to relieve impoverished pro-
prietors of that country from that which was to them not a
privilege but a burden — the possession of land which they
could not rightly use or manage — and to transfer it into the
hands of a more vigorous and opulent race of proprietors with a
view to the development of the riches of the soil." The means
employed in this Act to produce these effects are best shown
by a reference to the Act itself Section 2 enacted ''that
where any land in Ireland shall be subject to any Incumbrance
it shall be lawful for the owner of such land to contract (subject
to the approval of the Court) for the sale thereof, freed from
all such Incumbrances, and such sale, if approved by the Court,
shall be carried into effect under the provisions of this Act ;
and that any such owner, or any person being an incumbrancer

1 Hansard, 3rd series, cxcix. p. 344.

112 IRELAND FROM 1800 TO 1850. [CHAP.

on such land in possession of the Title Deeds and writings
relating thereto, without having so contracted, may apply
to the Court for the sale of such land under the provisions
of this Act\" The modus operandi of the Act was that
on payment into Court of the purchase money (which was
divided amongst the parties entitled according to their claims)
the purchaser received a parliamentary title free from incum-
brances.

Large numbers of landlords whose estates were hopelessly
involved, and to whom the famine with its attendant failure of
rent and increase of taxation had brought ruin, flocked to the
Courts. By the end of 1858 there had been 8,300 conveyances,
and purchase money to the amount of twenty-three millions
had passed through the Court ^ ; while so satisfactory was the
working of the Act, that in 1858 "The Irish Landed Estate
Act," 21 & 22 Vict. c. 72, extended the same principle even to
unincumbered estates. Constant applications have been made
tmder these Acts, until at the present time over £52,000,000
has been invested in the purchase of Irish land.

The class of landlord created by the purchases has not
been very satisfactory. The purely business element which
characterised the purchase of lands from the Court as a specu-
lation, excluded any feeling of reciprocal obligations founded
on a bond of personal acquaintance as distinguished from legal
relations, and the 'new man' proved even more obnoxious to the
Irish peasant than the landlord to whose faults he was ac-
customed and with whose foibles he was acquainted. It is a
curious but undeniable trait of the Celtic character that even an
unjust landlord becomes in some sort hallowed by long asso-
ciation; while a new comer, unacquainted in all probability
with the curious turns of Irish character, gives mortal offence
and stirs up unending rancour by the doing of acts often both
beneficial and well meant, simply because his more businesslike
methods are not understood and his insistence on his rights is
considered a wrong.

1 11 & 12 Vict. c. 48, sec. 2. other foreign purchasers, and twenty

2 See Field, p. 285, "of this total, millions represented Irish capital in-
three millions came from English and vested in land."

VII.] IRELAND FROM 1800 — 1850. 113

The deep acquaintance with Irish character necessary to
fully appreciate that while the peasants can be led to almost
anything, they can be driven to nothing, was not likely to be
found in the speculative purchaser of an estate ; nor would he
easily realise that in Ireland the ideas of justice and custom are
inextricably mingled. Moreover the landlords of large estates
are far more likely to deal liberally with their tenants than
petty proprietors, and during the first eight years' working of
the Incumbered Estates' Act, 3,197 estates passed into the
hands of 7,216 purchasers.

On the other hand the more business-like characteristics
of the new landlords, and the practical interest which they took
in the cultivation of their lands, tended to largely increase
the surface prosperity of Ireland ; while the more reasonable
system of agriculture rendered possible by the relief afforded
to the land by the removal of the surplus population, and
the thinned numbers of the destitute (for the famine had re-
sulted in a literal 'survival of the fittest'), operated in the
same direction. Wealth grew and expanded, railways were
increased and extended, and facilities for connecting the pro-
ducing districts with the centres of sale sprang up. Every-
where an apparent prosperity was presented which, though
afterwards proved to be illusionary and to have rested on no
firm basis, for the time being deceived even shrewd observers.
The Irish agrarian troubles seemed things of the past, and the
'Young Ireland' and Fenian risings were neither very con-
siderable nor attended with much important result.

The very causes, however, which were rendering the land
more valuable, were but increasing the stakes for which land-
lord and tenant were playing. If the conflicting claims of the
landlord's legal title and the tenant's (assumed) moral right had
given rise to desperate bitterness of feeling even when only an
acre holding and a mud hovel were at stake, naturally the
passions were still more excited when interests of substantial
value were concerned. The era too of Protestant ascendency
had waned. The Catholic Church was now an institution
of immense power. Exclusively interested in the tenant, it
brought to bear against the landlord class the whole influence
M. 8

114 IRELAND FROM 1800 — 1850. [CHAP. VII.

of organization, and became the binding force of the native
element of disunion. The landlord grasped but more firmly
at his rights when he felt the sceptre slipping from him,
and under the smiling mask of order the two classes braced
themselves for a struggle to the death.

PAKT III.

THE IRELAND OF TO-DAY.

8-2

CHAPTER VIII.
Ulster Tenant-right and the Devon Commission.

It has been shown that amongst the small holders in Ireland
the system of tenure was, from various causes, almost exclusively-
reduced to a mere holding from year to year; and that under
this system (despite the irradicable impression of the Irish
peasantry that it amounted to a tenure in perpetuity) the
landlord was able to crush out the tenant's interest in the land.
It has been shown also that while all the improvements were the
work of the occupier he neither acquired a secure interest in his
holding, nor any right of compensation if the fruits of his labour
were appropriated. In addition it has been pointed out that in
the main part of Ireland no customary rights were acquired by
the precarious holders. In Ulster, however, things were different,
and almost from the time of the formation of the settlement in
the reign of James the First, the Protestant tenantry began to
rapidly thrive and prosper ; whilst a customary usage, so wide-
spread as finally to obtain the formal recognition of the
Legislature ^ gradually developed.

The origin and spread of this Ulster tenant-right is both
interesting and important in the history of Irish land law, and
the custom has to many persons represented a system which,
if extended throughout Ireland, would have solved the agra-
rian troubles. But as will be seen — though greatly preferable
to the total insecurity of tenure prevalent in other parts of the
country — it is in some ways unsatisfactory.

^ See post, p. 140.

118 ITLSTEH TENANT-RIGHT [CHAP.

In 1843 Sir Robert Peel promised that a Royal Commission
should be appointed to examine the nature of the tenure of land
in Ireland, and on the 20th of November in that year the Com-
mission accordingly issued, and was directed to five gentlemen
well acquainted with that country. The inquiry then conducted,
and known by the name of the Devon Commission, throws much
light on the nature of landed relations throughout Ireland,
and lays considerable stress on the existence and beneficial
working of the Ulster customs. Unfortunately no effort was
made to represent the tenant interest among the Commissioners
appointed, and the scheme was therefore at once attacked
as being purely in the interest of the landlord ; O'Connell
remarking " you might as well consult butchers about keeping
Lent as consult these men about the rights of farmers \" Still,
despite the prejudice displayed against it, a most valuable
amount of evidence was collected, and had any immediate
legislative action been taken on the strength of the report
presented, it seems likely that commendable reforms might
have been instituted and much of the after troubles of the land
question avoided. The report is perhaps scarcely bold enough,
but it bears every trace of studied impartiality. It is of course
impossible to deal with it at length, but an examination of the
most notable points shows that the Commission recognized the
substantial justice of many of the claims for fixity of tenure'^,
and the crying need for a fair remuneration to the tenant
for the money and labour expended by him in permanent
improvements. The Commissioners rightly ascribed the un-
deniable evils existing in the land system to the alienation of
sympathy between landlord and tenant, and stated that " the
foundation of almost all the evils by which the social condition
of Ireland is disturbed, is to be traced to those feelings of
mutual distrust, which too often separate the classes of land-
lord and tenant, and prevent all united exertion for the common
benefit^"

The Devon Commission brought into great prominence the

1 Peel and O'Connell by the Rt Hon. Devon Commission, p. 1122.
Shaw Lefevre, p. 234. » Ibid. p. 1166.

' See Digest of Evidence before

VIII.] AND THE DEVON COMMISSION. 119

fact that the comparative quiescence of the north of Ireland,
which contrasted strongly with the disturbed state of landed
relations throughout the rest of the country, was due to
the existence of the Ulster custom being generally * either
authorized or connived at by the landlord.' This custom of
tenant-right — a thing at that time absolutely without the
sanction of law — consisted of an assumed right on the part of
the tenant to sell the goodwill of his holding subject to its rent.
Such a custom was naturally regarded from different points of
view by the landlord and the tenant. This is well illustrated
by two definitions of tenant-right quoted by Mr Seebohm.
The landlord defines it thus^ ; "tenant-right is a custom under
which the tenant farmers in the north of Ireland — or, at all
events, in those districts where the custom prevails — expect
when they have occasion to give up their farms, that their land-
lords will allow them to obtain from the incoming tenant such
a sum as shall remunerate them for their improvements upon
those farms. . .and for the goodwill of the farm." From the stand-
point of the tenant it is defined as follows; "tenant-right
I consider to be the claim of the tenant and his heirs to
continue in undisturbed possession of the farm so long as the
rent is paid ; and in case of ejectment, or in the event of a
change of occupancy, whether at the wish of the landlord or
tenant, it is the sum of money which the new occupier must
pay to the old one for the peaceable enjoyment of his holding."
The Ulster custom tended to enhance the belief on the part
of the tenant that his interest in his holding was a perpetual
one, for it was stated before the Commission'^ that while the
price of the tenant-right frequently amounted to £10, £12, £20
or £25 per acre, and sometimes rose as high as forty years'
purchase, the price was not much affected by the tenure on
which the land was held, the practice extending to the sale
of farms held even from year to year. The right of sale existed

1 " The Land Question," F. See- Mr J. Hancock given before the Land-

bohm, Fortnightly Review, 1869, the lord and Tenant Commissioners 1844.

first definition quoted is that of ^ See Digest of Evidence before

Lord Dufferin before Mr Maguire's Devon Commission, pp. 290, 291.
Committee, 1864, — the second that of

120 ULSTER TENANT-RIGHT [CHAP.

independent of any improvements having been made by the
tenant, and in practice it appeared that it was rarely exercised
by an improving tenant, whilst one who had deteriorated his
holding was not by that fact precluded from selling. The
custom affected more than the rights of possession and sale,
it restrained the legal power of the landlord to regulate the
rent. Its incidents are well summarised by Mr Justice Field*
as follows "^ : —

1. "Free sale, subject however to the landlord's right
(a) to reject a purchaser upon reasonable grounds, (6) to
be paid all arrears of rent due from the seller, (c) to limit
the price, that it may not encroach on the value of the
landlord's interest.

2. A right of continuous and undisturbed occupancy so
long as the rent is paid, subject however to the landlord's
right of terminating this occupancy by paying the tenant
the market value of his tenant-right.

3. The right to hold at a fair rent, lower than a competi-
tion or commercial rent^."

The exact origin of this tenant-right is not clearly traceable,
but it had its inception in the plantation of James the
First, arising not so much from the actual form of the grants
then made*, as from a certain sturdy self-assertiveness in the
colony imported, aided by the fact that more of the landlords
were resident. Evictions were less frequent in Ulster, and a
larger number of the small holders being Protestants they
were more in touch with the landlords than was the case
elsewhere in Ireland. Continuity of tenure by the tenants

1 A Judge of the High Court of Judi- disputed, some ascribing the creation
cature at Fort William, Bengal. of the custom to their laxity. At pre-

2 Landholding and the Belation of sent throughout Ireland about 584,327
Landlord and Tenant, p. 288. acres of agricultural land are held by

3 See post, p. 141. trustees for Charities and public com-
^ At the time of the plantation of panies. An interesting table of the

JamestheFirst,muchland was allotted values given for the tenant-right in

to the London Companies and also to various holdings during the years

the Irish Society. It is not unfre- 1873 to 1880 is given by Mr Finlay

quently alleged that these Companies Dun in his Landlords and Tenants in

proved hard landlords, but it seems Ireland, pp. 130 and 131.
without foundation, and the view is

VIII.] AND THE DEVON COMMISSION. 121

probably established by degrees a customary authority which
ultimately extended equally to Protestant and Catholic; for
when the repression of Irish manufactures drove large masses
of the Protestant holders to emigrate, the Catholics, who took
their places, assumed those rights in the soil which user had
attached to the Ulster holdings.

These customary rights established sufficient binding force
to regulate the dealings of the tenants inter se, and also the
relations of landlord and tenant, without the assistance of the
Legislature, indeed actually in spite of it ; while once established
they obtained a certain hold upon the minds of the landlords,
who in many cases became pronouncedly in their favour. At
first sight this is somewhat curious, since the usage trenches
deeply on the legal privileges of the landlord^; but on ex-
amination the reason of the change of sentiment is plain.
The landlord's claim for arrears was a first charge upon the sum
obtained by the outgoing tenant, and the rent reserved, if lower
than a competitive rent, yet possessed a greater degree of
certainty. The power of refusing consent to the introduction of
a new tenant upon reasonable grounds, also influenced the land-
lord in favour of the custom; as did the fact of his having a
voice in the regulation of the price paid for the tenant-right,
which enabled him to prevent the holding being taken at a cost
likely to cripple the new tenant, and to make him an unsatis-
factory substitute, unable to improve the holding or to pay rent.
There were, however, unsatisfactory features in the custom.
The interest for which the incoming tenant might have paid as
much as twenty years' purchase was not in reality a stable one,
but was legally at the will of the landlord. Even if the
strength of the usage granted a certain security of tenure the
custom did not itself attempt to define what was to be held a
fair rent — obviously a matter of opinion — nor did it itself provide
for the increase of rent natural on any advance in the value of
the land I These uncertainties in the custom led to a slight

1 The Devon Commissioners held ^ uj;fQ principles for the calculation

that the tenant-right was an undue of this fair rent were ever so generally

interference with the rights of the received as to become part of the cus-

landlords, see Digest, p. 290. tom. It was conceded that the land-

122 tTLSTER TENANT-HIGH!* [CHAP.

amount of friction even in Ulster, though the position there
was removed wide as the poles from the universal bad feeling
and thinly veiled revolt of the rest of Ireland ; where though
tenant-right existed locally, bearing certain similarities to the
northern custom, it was very limited in its extent and uncertain
in its operation. A feature in the custom which developed
a certain soreness of feeling on the part of the tenants was
the fact that when the land decreased in value the loss fell
upon the tenant-right, which became valueless when there were
no purchasers, or when even the small amount realized was
claimed by the landlord for arrears accumulated during the bad
seasons. When the value of land dropped so rapidly in 1848,
relations were nearly as strained in parts of Ulster as in the
south.

In 1850 the ** Irish Tenant-right League" was founded,
aiming at acquiring legal recognition for a universal tenant-
interest resembling that which obtained in Ulster. At first
the Protestants of the north and the Catholics of the south
made common cause ; but religious differences soon separated
them, and the agitation did not assume any formidable pro-
portions. There are many reasons why the introduction of
the Ulster custom throughout Ireland by means of compulsory
legislation would not be a success \ As has been shown it is
not sufficiently elaborated to fit any relation of landlord and
tenant where at least the germ of sympathy does not exist;
for while favourable to the tenant in times of prosperity, his
apparent liability to, and the seeming exemption of the land-
lord from, loss when land is depreciated in value, strains their
relations to one another. In the case of Ulster too the
extraneous means of acquiring wealth, independent of the soil,
by manufacturing pursuits provides a more or less constant
supply of purchasers for the land when it comes into the

lord might raise the rent from time to tenant-right, or to absorb the profits

time, as the general progress of the due to improvements made by the

country and the condition of agricul- tenant," Field, p. 288.
tural profits justified, but it was i See post, p. 139, 141, as to effect

asserted he had no right to raise it to of recognition of custom by act of

such an extent as to destroy the Parliament.

VIII.] AND THE DEVON COMMISSION. 123

market; while in other parts of Ireland the complete depen-
dence of the population upon agriculture, though increasing
the demand for land, restricts the possibility of there being
the necessary capital for its purchase in times of depression.
Hence the tenant-right would either become merely of nominal
value, or else the incoming tenant would take the holding
burdened by a load of debt accumulated in raising the purchase
money of the tenant-right, and so would be in no position
either to do justice to the land, or to give much likelihood of
being a satisfactory rent-payer \

1 The tenant too frequently plunged And see Cobden Essay by Kt Hon.
into a sea of financial troubles by M. Longfield.
raising money on his tenant-right.

CHAPTER IX.
Free Trade in Land.

The years following 1848 brought many social changes in
Ireland, but it is unquestionable that the surface prosperity of
the land increased in no ordinary degree. Middlemen had
practically disappeared, and absenteeism was greatly diminished.
The rise in the prices of agricultural products swelled the wealth
of a country where farming was almost the only widely culti-
vated pursuit ; and, despite the fact that the productive land
devoted to tillage diminished by 140,000 acres between 1855
and 1868 \ the bank deposits of the peasants increased to very
considerable sums^. A veil of apparent well-being was drawn
over the rents and chasms of the social system, and during
these years many thought the Irish question solved. It needed
but the touch of adversity, however, to bring out in relief all
the discords of the conflicting claims of owner and occupier.
The new landlords who had purchased under the Incumbered
Estates' Act^ had certainly improved the productive powers of
the land, but the insecurity of the tenant-interest was still an
unsolved problem ; nay more, the complexity of the cross claims
was accentuated, for the business character of their investment
in Irish land made the landlords not unnaturally tenacious
of their full powers.

In 1860* an Act was passed so calculated to re-open every
half-healed wound in the union of the two land classes that it
is almost a matter of amazement that it should have been
expected by many who had studied the subject, to prove

1 Field, p. 291 (Note). » 11 & 12 Vict. c. 48. See ante p. 111.

a Ibid. p. 292. ^ 2'6 & 2i Vict. c. 154.

CHAP. TX.] FREE TRADE IN LAND. 125

the Beus ex machind of the land question. The principle
of the Act was simplicity itself, it was merely free trade in
land. That such an idea as that of placing landed relations
upon the same basis as mercantile transactions should have
commended itself to the speculative purchaser through the
Incumbered Estates' Court is natural enough ; he desired no-
thing better than that untrammelled contractual relationships
should be regarded as the foundation of his position ; it freed
him from all obligations, save those of a fair mercantile con-
nection, to his tenants. But that the principle should have
commended itself to the uninterested observer is more re-
markable. The vital change in the system of land ownership
created by this Act has been little appreciated ; yet the whole
feudal theory of real property crumbled into dust before it,
and tenure ceased to exist. By one enactment of the Legis-
lature the reciprocal rights of landlord and tenant^ were shifted
from the basis of status to that of contract.

The number of purchasers under the Incumbered Estates'
Act was very large; within eight years of its passing, 3,197
properties were sold, and bought by no less than 7,216
purchasers^ ; the landlord interest exerted in favour of the Act
of 1860 would therefore be considerable. The hold that the
theories of political economy had gained at this time was
probably the explanation of its commending itself to unin-
terested persons. Free trade was the key to every difficulty.
To place landlord and tenant on the equal platform of con-
tractual rights; to enable the landowner to sell or let his land as
he could sell or let his horses, and to make the tenant purchase
or hire his holding as he might a cart, was looked upon as the
plain solution of the whole land question. It was never
realized that a rule which may be obvious equity in one society
may work wrong in another. It is apparent that to the Irish
tenant, who considered that he had vested interests in the soil,
the contractual theory would be perfectly incomprehensible.

According to the tenant's view if A purchased the estate of

1 The very word tenant, though tions established by this Act.
used here, is inapplicable to the rela- 2 Qf whom 314 only were English.

126 FREE TRADE IN LAND. [CHAP.

B, he did so subject to all the (assumed) rights of B's tenants to
the continued possession of their holdings on payment of rent ;
but under this Act no such theory would hold for a moment.
A becomes owner of the estate : at the end of the current year*
of their tenancy, the mass of holdings are legally terminated ;
A feels no bond uniting him to the tenants, and though he
may continue their possession in their holdings it is on a
totally different footing. The relation established between
A and C (an old tenant) is in ^'s estimation simply this —
"1 (^) have contracted with you (C) to give you quiet posses-
sion of a certain holding for a payment of £ — for the period
of one year." Now C on the other hand imagined the relation
established to be a mere continuation of the practically perpetual
interest which he considered he had held in the soil when his
rent had to be paid to B, changed only in so far that the said
rent had now to be paid to ^.

There was, however, a more serious objection to the Act of
1860 than the conflicting views of landlord and tenant, an objec-
tion which proved destructive to the whole theory on which the
Act was based. When contractual relations are established if
the respective rights of the contracting parties are to be satis-
factorily settled both parties should act with freedom. The
binding agreement which is to limit and define their mutual
obligations should not be rendered unjust by the compulsion of
circumstance operating against one party and not against the
other. The demand for land was largely in advance of the
supply, its possession being almost an essential of existence
to the tenant. Devoid of capital, and unskilled in any art save
the rudest cultivation of the soil, the Irish small holder felt
himself bound to get the land at any cost. What freedom of
contract could under such circumstances exist between the land-
lord and tenant ? The rent to be rendered for the subject-matter
of their contract was fixed not by the consent of both parties
but by the obligatory acceptance by the tenant of the landlord's
terms. A notice to quit did not convey to the tenant that he

1 It has been explained before that almost all the holdings were from
year to year.

IX.] FREE TRADE IN LAND. 127

must either make a new agreement with the landlord — should
he think fit — upon different terms, or else take another holding
elsewhere ; it said, " you are without capital, there is no land to
be got elsewhere, you must agree to whatever your landlord
proposes, or you must leave a cherished home and be cast with-
out resource upon the world." Freedom of contract was scarcely
possible in such a case as this. The notice to quit was used by
the new landlords in a purely mercantile manner; they assumed
the right given them by statute to sell their goods in the best
market; the notice to quit produced invariably an acceptance
of the higher rental demanded, and they did not consider it
their business to look beneath the surface for causes when the
effect seemed so satisfactory. Having raised by such means
the nominal rent roll of his estate, the speculative purchaser
frequently sold it at the increased value suggested by its
nominal incoming, and the new owner ^ naturally extorted the
full amount of the rents on the strength of which he had
bought the estate.

So sweeping was the change introduced by the Landlord
and Tenant Law Amendment Act (Ireland) 1860^ that it
merits great attention I By sec. 3 it is enacted that "the
relation of landlord and tenant shall be deemed to be founded
on the express or implied contract of the parties and not upon
tenure or service, and a reversion shall not be necessary to such
relation, which shall be deemed to subsist in all cases in which
there shall be an agreement by one party to hold land from or
under another in consideration of any rent." In so short a
section is swept away all the law of feudal landed relations, and
half a dozen words suffice to extinguish the necessity of a
reversion which was the keystone of the system. The func-
tions of the law, moreover, are changed by this substitution

1 See Eichey, p. 59. and the remarkable contrast between

3 23 & 24 Vict. c. 154. the complete negation of tenant-right

* It was stated by the Bessborough in the Act of 1860 and the practical

Commission that this Act of 1860 creation, if not recognition, of it by the

produced but little effect, but an Acts of 1870 & 1881. To the influence

examination of the Act will show the of the Act of 1860 in showing vividly

complete revolution made in the the difficulties of the land problem

nature of laud holding in Ireland the later Acts are largely due.

128 FREE TRADE IN LAND. [CHAP.

of a basis of contract instead of status for the reciprocal rights
of landlord and tenant. The law is no longer employed in
defining the relative positions of the two classes, but merely in
enforcing by its sanctions the agreements made between
them\ Another inroad on the old established rules regulating
the rights and liabilities created by a transfer of land is found
in sections 12 and 13 ^ the first of which transfers to the
assignee of the landlord the benefit or liability which would
have accrued to the original landlord on his covenants and
agreement, while the latter, in similar manner, allows the
transfer of the benefit and liabilities of the covenants and
agreements of the original tenant to his assignee ^ Here the
contractual theory is seen in full force ; unfettered by the old
rules of covenants which did or did not run with the land, the
assignee either of landlord or tenant merely steps into the shoes
of one of the original parties to the contract.

In one instance an omission in the Act is remarkable. In the
past so great troubles had been caused by the non-recognition of
the right of the tenant to compensation for his permanent im-
provements, that it is curious that this Act, which so vastly
facilitated the transfer of land, did not deal fully with this
question. The claim of a tenant whose term is closed by the
voluntary action of the landlord to compensation for improve-
ments is even recognised by the Brehon Law. " If the land has
been let for hire, and no time has been specified, whatever
length of time he shall be upon it, whether with necessity or
without necessity he goes, he shall leave behind the erections.
If he be noticed {to quit), whether it is with or without necessity,
he may carry away his erections with him. If a term has been
specified for him, and the term has expired, he shall leave his
erections (behindy." It is of course plain that under the con-
tractual theory a tenant would have no inherent right to claim

1 Irish Land Laws, A. G. Richey, had given notice in writing to the
p, 8. landlord of the particulars of the

2 These sections together with sec. assignment.

14, repealed 11 Anne c. 2, s. 6. •* Ancient laws of Ireland, Vol. iv.,

3 But the original tenant was not pp. 132 and 183, quoted by Richey.
discharged from his liability unless he

IX.] FREE TRADE IN LAND. 129

for his improvements at the termination of his contract as they
were vokmtary, he being only required by his agreement to
leave the land as he got it. It is to be regretted, therefore,
that an attempt was not made to set the vexed subject at rest
by specific enactment. The absence of any provision for this
purpose is the more noticeable as the law of removable fix-
tures^ received an important extension by the Act of 1860, by
which not only were trade and agricultural fixtures allowed to
be taken by the tenant (as under the Act of 1851'^), when
erected with consent and removed during the tenancy, but in
addition permission was given to remove them after the termi-
nation of the holding, and although they had been erected
without leave. This privilege was given by section 17, which
allowed " personal chattels, engines, and machinery, and build-
ings accessorial thereto, erected and affixed to the freehold by
the tenant at his sole expense, for any purposes of trade,
manufacture, or agriculture, or for ornament, or for the do-
mestic convenience of the tenant in his occupation of the
demised premises, and so attached to the freehold that they
can be removed without substantial damage to the freehold or
to the fixture itself" to be removed, provided that they had not
been erected under any obligation or contrary to any agreement.
Such removal to be effected by the tenant, or his executors or
administrators either (1) during the tenancy, or (2) within two
calendar months after its determination^ (when the tenancy
determines by some uncertain event, and without the act or
default of the tenant). This provision certainly bettered the
position of the tenant as regards movable fixtures, but no effort
was made to deal with the question of permanent improvements.
The dwelling, such as it was, on the holding had almost always
been erected either by the tenant or some ancestor of his, but
no compensation could be obtained for it ; and the fact that in
general all the permanent improvements were, unlike the

^ Dr Richey pointed out that much Roman law. SeeBracton,l.l,c. 1, s. 4,

of the rigid and inequitable character and Richey, p. 45.

of the English law on this' subject was ^ 14 & 15 Vict. c. 25, s. 3.

caused by the incomplete manner in ^ Unless it is otherwise provided by

which Bracton adopted the rules of the the contract of tenancy.

M. 9

130 FREE TRADE IN LAND. [CHAP.

English custom, provided by the tenant, made a rule which
worked fairly in England, burdensome in Ireland.

Before leaving this subject it should be noticed that by
another Act of 1860 called the Tenure and Improvement of
Land (Ireland) Act^ a hesitating attempt had been made to
deal with the question. The third part of this Act, which
treats of improvements made by agricultural tenants in
their holdings, provides for their compensation for those of a
certain class (such as reclaiming land or erecting farm build-
ings) by an annuity charged on the lands in which they have
been made^ the labour of the tenant to be reckoned in the
compensation I The right of compensation thus given, how-
ever, was only exercisable when the improvements had been
made with the consent of the landlord*, and when they could
not have been exacted by the owner in pursuance of any con-
tract or custom ^ The Act, though doubtless a step in the
right direction, did not touch the heart of the difficulty, as it
merely affected prospective improvements®.

Returning to the consideration of 23 & 24 Vict. c. 154, it
is plain, that being based on the contractual theory, it would
differ in its way of viewing the subject-matter of the contract
from the English Common Law rule. Accordingly section 40
enacted that if any dwelling-house or other building constituting
the substantial matter of the demise, was held by the tenant
without an express covenant by him to repair, and was
destroyed, became ruinous and uninhabitable, or incapable of
beneficial occupation or enjoyment without fault of the tenant,
he had a right to determine the tenancy by surrender. The
English Common Law rule in such a case, despite the destruc-
tion of the subject of the lease, would have held the tenant
liable for the rent during the term.

1 23 & 24 Vict. c. 153. interfere with any established customs

2 Ibid. sec. 36, and any other lands as to compensation &c., see sec. 62.
lying adjacent to such, and held of ^ A defence of the limited character
the same owner under the same de- of this measure, and a good sketch of
mise. its general character, will be found in

* Ibid. sec. 44. the speech made by Mr Cardwell when

4 Ibid. sec. 39 and 40. introducing the Bill. See Hansard's

^ Sec. 36. This Act did not seek to 3rd series, vol. clvii. p. 1553 — 1566.

IX.] FREE TRADE IN LAND. 131

It has been seen ^ that the process of distress as a means of
obtaining rent had declined. The Act of 1860 of course swept
away the whole theory on which the right of feudal distress
was built up, namely, the entry of the lord to compel per-
formance of the feudal services. It did not, however, abolish
this remedy for non-payment, but by section 51^ limited its
action to the recovery of one year's rent. The effect of
this section was to throw into more than usual prominence
the remedy of ejectment, which had for some time been
gradually more and more resorted to by the landlords. When
the much-abused right of ejectment is first met with in the
history of Irish land law its exercise was limited to cases
where there was (1) a lease, and (2) such lease contained a
proviso for re-entry. In 1781^ the power was extended to those
cases in which there was some lease, minute, or contract in writ-
ing, provided a whole year's rent or more was in arrear, though
there was no actual clause of re-entry. An Act of the present
reign* further extended the right to bring an ejectment to the
case of tenancies where no written agreement existed, provided
the annual rent of the holding was under £50 and a year's rent
in arrear. Finally, the Act of 1860^ allowed ejectments when
a year's rent was in arrear® although the tenancy was only
implied without a written agreement, and whatever the annual
rent: while all the cumbrous legal restrictions as to who had a
right to take proceedings against the tenant, which had sprung

1 Ante, page 99. Bills (Ireland) Act.

2 "From and after the commence- ^ 23 & 24 Vict. c. 154, sec. 52.
ment of this Act it shall not be lawful ^ When rent was less than £100,
for any landlord, or anyone on his proceedings might be taken in County
behalf, to take or seize any distress for Court, see sec. 52 (23 & 24 Vict. c.
rent which became due more than one 154), and Richey p. 54. Two other
year before the making of such dis- Acts bearing on ejectment are, one
tress." 23 & 24 Vict. c. 154, sec. 51. passed in the reign of Anne, and the

3 By 5 Geo. II. c. 4 s. 1 (Irish), and Eviction Act, 1816 (56 Geo. III. c. 88),
again (in 1751) by 25 Geo. 11. c. 18, providing the remedy by civil bill
sec. 2 (Irish), which extended the process — a very important change in
power to cases where there was an the law, as it greatly simplified and
article, minute, or contract in writing cheapened the proceedings. It must
without either (1) an actual demise, be remembered that this Act was passed
or (2) a clause of re-entry. when the power of the landlords was

4 14 & 15 Vict. c. 57, sec. 73, Civil at its height. See ante, p. 106.

9—2

132 FREE TRADE IN LAND. [CHAP.

up from the rules of the right to rent running with the rever-
sion, were abolished S section 53 enacting that, "in any eject-
ment under this Act it shall not be necessary to allege or prove
the making of any demand or re-entry, or the existence of any
clause or condition of re-entry in the lease or other contract, or
of any legal reversion expectant on the determination of the
same, and subsisting in the landlord, provided a tenancy be-
tween the parties shall appear to exist, whether by original
contract, or by lawful assignment, devise, bequest, or act and
operation of law^"

The advocates of free trade believed that in 1860 an ab-
solutely fair land system had been established in Ireland; but
the Act, though theoretically perfectly just, being founded on
pure contract, was unsuited to the state of society to which it
was applied. From the very nature of the social system in
Ireland free contract could not exist, and after a short time,
despite the surface prosperity of the country, signs of disturb-
ance began to appear. Notices to quit began to be largely
served on the tenants, and where they escaped eviction it was
only by consenting to a higher rate of rent. A large number
of evictions of small holders took place in order to enable the
landlords to consolidate their estates into larger farms, and
between 1861 and 1880 there was a decline of no less than
809,312 in the number of acres under crops, amounting to more
than one-seventh of the total acreage under tillage in 18611
The notices to quit, even where no extreme measures were
taken, produced an unfortunate result; they marked to the
mind of the tenant the uncertainty of his holding, and so were
a perpetual cause at once of alarm and anger^ An increase
in the tenant agitations began to show, and, although it was
not openly admitted, those in authority began to perceive that

1 See The Irish Land Laws, A. G. ^ In the majority of cases, however,
Richey, pp. 41 — 44. the relations of landlord and tenant

2 See post, p. 180, as to changes in were not substantially altered. The
the law of eviction under Act of 1887. worst effects of the Act lay in the way

3 These figures are important, as in in which it unsettled all existing ar-
Ireland there is always a direct rela- rangements and thus aggravated the
tion between the enlargement of farms class feeling in the country.

and the increase of pasture lauds.

IX.] FREE TRADE IN LAND. 13B

the Act of 1860 had been a failure, indeed had gone further
than that, and proved a new disturbing element.

The principle of the Act was of course just; pure contractual
rights with regard to a commodity must of necessity be fair if
both parties act freely. In the case of Irish land, however,
not only was freedom of contract absent, but also, while the
Act of 1860 adopted the theory that the landlord as absolute
owner offered for sale or hire a commodity in which the occu-
pier had no vested interest, the tenant held that the land was
at least in part his property, and believed in the existence of
such interest on the ground (1) of his improvements, and
(2) of the assumed practical perpetuity of his tenure. It
is evident that here a system of contract, suitable only to
an advanced and equably constituted society, and even then
suitable only to dealings in a commodity which is amenable to
the fair laws of demand and supply, was planted upon a com-
munity the social organization of which combined every element
of disorder and disintegration. Moreover, the system of contract
applied was one of strict mercantile relations, and untempered
by concurrent equities. The late Dr Richey, who instituted a
comparison at some length between the contractual theory
applied to the Irish land law and the theories of the French
civilians, as shown chiefly by Pothier's " Traite du Contrat de
Bail a Rente" and the French Code, showed very clearly how
the mercantile aspect of contract adopted by the Act of 1860
affected the relation of landlord and tenant. Dealing with the
manner in which the Civil Law treats the relation of landlord
and tenant, which it also bases upon the theory that tenancy is a
species of hiring, he pointed out that the difference noticeable
between it and the English law was caused by the divergent
views which the Roman and English lawyers held as to the origi-
nal nature of the contract itself, namely: — "(1) The former con-
sidered a letting of land for a term to be a quasi-sale, with an
equitable warranty that the land was worth the annual rent ;
the latter that it was a mercantile transaction subject to the rule
of * caveat emptor' (2) The former considered the rent as the
owner's share in the proceeds of the farm, and therefore gave to
the landlord the right of hypothec, and compelled him to share

134 FREE TRADE IN LAND. [CHAP. IX.

in the loss occasioned by a deficient harvest ; the latter held the
rent as something collateral to the letting — cotemporary but not
conditional : the tenant made his bargain, and, as in every other
mercantile transaction, ran the chance of gain or loss. (3) The
former considered the several agreements of the tenant, whether
expressed or implied, as conditions precedent of his possession,
and held, therefore, that the landlord could bring his action to
re-enter upon the breach of any agreement, expressed or
implied ; the latter, considering all such agreements (except
that for the payment of rent) as collateral, gave the landlord no
right to re-enter, and left him to his personal action for damages
in all except the one excepted case\"

That the basis of mercantile contract was unsuited to
the case of the Irish land system is clear, but when the fact
was at length realized it was found necessary to proceed with
the utmost caution with regard to remedial measures. It might
be obvious to those who looked beneath the surface that the
creation of pure contractual relations, unfettered by equitable
obligations, had been a grave error, but enormous interests
were concerned under the change which had been adopted.
The purchasers under the Incumbered Estates' Act 1848, and
the Landed Estates' Act 1858, had always expected freedom
of transfer to be attached to their purchases ; the Act of 1860
seemed to them the essence of justice, and it was impossible to
blink the fact that they had invested their money on the
strength of a State guarantee. Again, had it been openly de-
clared that the principle of the Act of 1860 was wrong, the
chamjoions of free trade would at once have cried down so
heterodox a notion ; for though it was clear that the Act was
not working well, it was far from being recognized by the
majority of people that rules of abstract fairness may operate
oppressively in particular circumstances. When the need for
new legislation therefore became imperative, the framers of the
Act of 1870 approached the subject with great caution.

^ The Irish Land Laivs, pp. 55, 56.

CHAPTER X.

The Act of 1870.

The Act of 1860 failed, and agrarian outrages followed
the feeling of insecurity of tenure which had been fostered.
The general situation also was but little affected by the dis-
establishment and disendowment of the Irish Church by 32 &
33 Vict. c. 42, though it is impossible to pass over this Act, as
in one very important feature it proved efficacious in dealing
with the land. Its provisions as to sales by the Church Com-
missioners \ unlike the clauses of the Acts of 1870 and 1881
dealing with purchase, proved largely successfuP. This was the
more remarkable, since although the amount which might be
advanced by the Commissioners — or rather might be credited
by them to the purchaser on mortgage — exceeded that which
the Land Commissioners were empowered by the Act of 1870
to advance, still the rate of interest to be charged (4 per cent.)
was practically higher I

In 1870 it was universally admitted that further legis-
lation was a necessity ; and on the 15th of February Mr
Gladstone moved for leave to bring in a Bill to amend the

1 Occupying tenants were protected missioners were transferred in 1881 to

by a right of pre-emption being given the Irish Land Commission,

to the tenant. See sec. 34, sub-s. (1) ^ The full amount of purchase-

and (5) : money being £1,674,000. The com-

" The ordinary tenants of the Church parative number of purchasers under

numbered 8432, and of these up to this Act and under the Acts of 1870,

November 1st, 1880, 6057 had become 1881, and 1885 will be given when

owners of their holdings at an average dealing with Lord Ashbourne's Act.

price of 22| years' purchase." Tico See post, p. 176.

Centuries of Irish History, article by ^ See post, p. 153, note, and Keport

G. Macdonell. The powers of the Com- of Bessborough Commission, sec. 87.

136 THE ACT OF 18*70. [CHAP.

law relating to the occupation and ownership of land in
Ireland as regarded agricultural* or pastoral holdings. He
admitted that it was but a tardy measure ; that, following as it
did in many ways the lines suggested by the "Report of the
Devon Commission, its efficacy would have been probably
greater, and its action certainly more beneficial, had it been
introduced some twenty years before ^ ; and then in a speech of
much power urged the acceptance of a Bill drawn upon similar
lines to, but in bolder fashion than, the Commissioners' report^.
The objects aimed at were threefold, (1) to give some security
of tenure to the tenant by making it a matter of expense and
trouble for the landlord to exact his full legal rights; (2) to
settle the question of improvements by acknowledging the
tenant's claim to compensation ; and (3) to facilitate the estab-
lishment of peasant owners by means of certain provisions for
purchase known as the ' Bright Clauses.'

It is apparent at once that the legislation of this Act is
in a manner retrograde, for by the Act of 1860 absolute free
trade in land had been established, while the restrictions now
suggested were a limitation of the right of free contract, and
amounted to a creation on the part of the Legislature of a tenant-

1 The provisions for compensation of pasture lands as a source of loss to
did not touch demesne lands, holdings the lower classes he said, " Between
in virtue of being a hired labourer, 1860 and 1868 the pasturage of Ireland
lettings in conacre, or holdings stated has increased by about 560,0C0 acres,
in writing to be for a temporary pur- and the tillage of Ireland has decreased
pose, or cottage allotments not exceed- during that period about 400,000 acres,
ing a quarter of an acre (33 & 34 Vict. We are given to understand that, inas-
c. 46, sec. 15), and the Act only ap- much as meadow land is reckoned under
plied to holdings agricultural or pas- land in tillage, and has considerably
toral (sec. 71). increased, the real decrease of tillage

2 See Hansard, 3rd series, vol. cxcix. land is greater still." Again, dealing
p. 334. "Had these recommendations with the Poor Law statistics he stated
(i. e. those of the Devon Commis- that down to 1860 there had been a
sioners) been acted upon at the time, decrease in the pressure on the poor
it is probable that at this moment no rates, and "in that year the number
Irish land question would be before of persons seeking relief, who in 1849
the House for discussion." — Mr Glad- might have been counted, so to speak,
stone. by millions, was 170,000 ; but in 1868

' Various figures were quoted by Mr the number had increased to 289,000."
Gladstone to show the need of further See Hansard, 3rd series, vol. cxcix, pp.
legislation. Alluding to the increase 341, 342.

X.] THE ACT OF 1870. 137

interest in the land. The claims of the tenants are, it is
true, never definitely stated throughout the Act, nor indeed
would it have been easily possible for the Government to fully
state them. The English belief in the absolute character of
freehold ownership had never permitted an open acknowledge-
ment of a right, on the part of the Irish tenant from year to
year, to any possessory interest in his holding save the yearly
tenancy. While in addition since 1860 the absolute property
in the land, subject only to existing tenancies, had been recog-
nized as residing in the landlords.

The purchasers in the Incumbered Estates' Court of lands
held by tenants from year to year had been formally released
by the Act of 1860 from any obligation to their tenantry (after
the termination of the year current at the time of their pur-
chase), other than resulted from a contractual letting and
hiring. Neverthless, although it was effected merely in a nega-
tive manner, further rights of the tenants in the soil were clearly
recognized in 1870. The principle of the Act, by which security
of tenure was intended to be conferred, was that of making the
landlord pay a compensation for disturbance to the tenant
against whom he thought fit to exercise his undeniable legal
right of eviction. Since, therefore, the landlord was unable to
exercise his rights without compensating the tenant, it is
evident that the latter practically acquired an interest in the
land equal in value to the amount of such compensation *. The
tenant in fact had his rights increased to the same extent that
the landlord's powers were diminished.

The right of the tenant to compensation for disturbance,
however, did not exist if he held for a term certain exceed-
ing 31 years ; and ejectments for non-payment of rent, or for
breach of any conditions against assignment, subletting, bank-
ruptcy, or insolvency were not deemed disturbances within the
meaning of the Act^. The cause of the 31 years' limit was an
endeavour to stimulate the granting of leases for this length of

^ Dr Eiohey well pointed out that was to make eviction a privilege of the

whereas it was urged that this provi- wealthy. Irish Land Laivs, p. 64.

sion merely compelled bad landlords ^ 33 & 34 Vict. c. 46, s. 9.
to act like good ones, its real effect

138 THE ACT OF 1870. [CHAP.

time; and the compensation allowed for disturbance in other
cases was based on the theory that it was the voluntary act of
the landlord, for which damages were due to the tenant, who
had not by his conduct conduced to such termination. Now,
granting for the moment that such a compensation was equit-
able in the case of tenants from year to year, it is hard to see
upon what possible grounds it could be supported in the case
of a tenancy for a term certain less than 31 years which deter-
mined by effluxion of time. It cannot be urged that this is in
any sense determination by the act of the landlord, and why
then should he be liable to compensate the tenant ?

As a general fault in the whole Act it must be urged that
its intricacy was eminently unsuited to grapple successfully
with a popular evil ; its subtlety rendering it unintelligible to
the greater portion of the class who were intended to benefit
by it, and the necessary invocation of a court of justice before
its benefits could be received both conflicting with the pre-
judices of the tenants, and causing expense to bar some claims.
There are other and more serious objections, however, which
it is well to glance at before the Act is examined in detail.
Chief amongst these stands the fact that it did not openly
touch the root of the peasants' grievance, money for his im-
provements doubtless seemed to him a boon, and compensation
for disturbance was good in his eyes, but it was for neither of
these things that he was striving ; what he desired was to be
able always to stay in his holding. Compensation was a plea-
sant idea certainly, but then it was only gained when all he
desired was lost, namely, when he was forced from his home.
Moreover, when he had the money it was wonderfully useless
to him ; for as was pointed out by the late Dr Eichey^ he knew
but two uses for it, either he must stock a farm (and the
number of farms was limited while the demand was excessive),
or he must place it in a bank on deposit receipt. Again the
compensation, the payment of which was to deter the landlord
from an arbitrary exercise of his powers, was frequently ad-
vanced by the incoming tenant^, necessity driving the tenants

1 p. 94. 2 Bicliey, p. 96.

X.] THE ACT OF 1870. ISO

to overwhelm one another in their frantic struggles to obtain
the possession of land. Further, the idea that leases for 31 years
would prove to be objects of desire to the tenants was not
justified in the event; and for this there were two principal
reasons : (1) the tenant from year to year regarded his holding
as a species of perpetuity* (and the effect of the Act of 1870 was
certainly to strengthen him in this impression) therefore he
regarded a lease for a term certain as constituting a waiver by
him of his rights in the soil and an unjust limitation of them :
(2) on the termination of a tenancy for more than 31 years no
claim could be made by the tenant for compensation for dis-
turbance, whereas such a right was given by the Act of 1870 in
the case of a yearly tenancy if determined by the act of the
landlord.

In addition to these faults in the Act it should be noticed
that it contained no provision regulating in any way the rate
of fair rent, and even when it recognised the existence of,
and for the first time gave the formal sanction of the Legislature
to the Ulster custom, it took no steps to remedy its weak point
of uncertainty as to what constituted a fair rent. The result of
the Act was in no way what had been so confidently hoped and
expected ; its general tendency indeed proved merely to be to
increase the amount of rent asked for the peasant holdings ^
Nevertheless, though it proved abortive, as far as the final solu-
tion of the Irish land troubles were concerned, it is a most
ingenious fabric, and while an examination in detail brings out
many unexpected flaws in its construction, it will always remain
a most important landmark in the history of Irish law. It is a
remarkable example of the dexterous handling which Mr Glad-
stone so invariably applies to his legislative creations. Unfor-
tunately it proved rather the fruitful mother of other troubles
than the final settlement of the question dealt with.

The Act of 1870^ after having been vigorously opposed in

1 " It is not the right of the rent- Committee,

receiver, but the right of the cultiva- ^ 33 ^jr 34 yjct^ q 45^ entitled " An

tor, with whom the idea of property is Act to amend the law relating to the

connected in the Irish mind." England occupation and ownership of land in

and Ireland, J. S. Mill. Ireland."

^ See § 19 Eeport of Bessborough

140 THE ACT OF 1870. [CHAP.

Committee in both Houses of Parliament, became law on the
1st of August of that year^ and has been rightly described as
one of the most remarkable and original pieces of legislation in
the Statute Book. It is divided into five parts, dealing respec-
tively with (1) the law of compensation to tenants^ (2) the
sale of land to tenants ^ (3) advances by, and powers of, the
Board of Works*, (4) and (5) supplemental and miscellaneous
provisions^. Taking the most important clauses in detail, the
first section of the Act deals with the question of the Ulster
tenant-right. No alteration or limitation is suggested, it is
simply enacted that the custom shall receive the sanction of law,
and be capable of regular legal enforcement when proved to
exist. It has already been pointed out® that this Ulster custom,
though widely preferable to entire insecurity of tenure, was
deficient through its lack of sufficiently defining incidents of
the custom, such as fair rent, which were nevertheless essential
to its existence. The recognition by Legislature of the custom
enhanced these weak points. The usual plan of employing
local valuators to estimate the worth of the holding for the pur-
pose of fixing the fair rent, when a readjustment was necessary,
was unsuitable to a legalized system, and the action of the
Courts failed to uphold the most useful feature of the usage,
viz. continuity of tenure. In short, the action of the Courts
when applied to the Ulster customs deprived them at once of
the flexibility to circumstance which was their chief boon.

The Ulster customs differed entirely from * customs of the
country ' in the sense in which it is usual to employ the words
as indicating a usage which must have been deemed to have
been in the contemplation of both parties when they made
their contract, and which hence can rightly be held an
implied term thereof. As was pointed out by the late Dr
Richey, such a custom as that by which a tenant was entitled
to a way-going crop, etc., is one which a landlord, when creating
a yearly tenancy, may be held to have contemplated; "but a

1 About a fortnight after the break- ^ Sees. 42 to 56.

ing out of the Franco-German war. ^ Pt. 4, sees. 57 to 64 ; pt. 5, sees,

2 Sees. 1 to 31. 65 to 73.

3 Sees. 32 to 41. p Ante, p. 121, 122.

X.] THE ACT OF 1870. 141

custom, such as that of Ulster, to pay to the tenant the value of
his occupancy upon the legal determination of his tenancy, was
oneTcontradictory to the nature of the estate created, and excluded
by the terms of the contract itself" ^ It was therefore unjust to
have expected the formal recognition of the custom from the
Irish Courts before 1870, and its working in the form perforce
assumed under the Act, both deprived it of many of its in-
herent advantages, and also showed that legal forms did not
suit the usage. What was really required by the tenant under
the Ulster custom, who applied to the Court for help on account
of receiving from his landlord a notice to pay higher rent or quit
his holding, was not a judgment against the landlord for the
amount of his tenant-right, but a decree for the specific per-
formance of the customary compact of continued holding at a
fair rent*^. The Court, however, did not deal with the settlement
of fair rents, and the tenant's demand took the form of a claim
for compensation', with the result that neither landlord nor
tenant in all probability got what they required. The landlord
was first compelled to pay a considerable sum, and then had the
land thrown upon his hands, when all he. desired was to raise
the rent of the holding, possibly on account of an increase in
the value of the land ; and the tenant was presented with a
sum of money which he did not want, and for which he had little
use, while he was deprived of the holding to which he was
so deeply attached. Nor did the Act prevent the raising of
rent, for if the landlord, when the Cenant-right was in the
market, stated that in future the rent would be increased, this
did not usually deter the purchaser, and the loss of value in the
tenant-right fell upon the outgoing tenant who received a less
sum for the goodwill of his holding*.

The exact position taken by the Act of 1870 with regard
to the Ulster customs was not in any way to render them obli-
gatory on the tenant should he choose to waive them and claim
under the general rights given, but merely to offer a legal

1 Irish Land Laws, p. 102. Dr ^ g^e Eeport of Bessborough Com-

Kichey refers in support of this view mittee, 17, 18.

to the exhaustive judgment in Ramsden ^ See Field, p. 312.

V. Dyson, L. R. 1. H. of L. 129. ^ juid, p. 314.

142 THE ACT OF 1870. [CHAP.

sanction for their incidents if the tenant chose to demand it and
could prove the custom. The usage might, and generally did,
vary in different parts of Ulster (indeed even contiguous estates
might differ in minor points), but the tenant was merely
required to prove the particular customs, and that they had
prevailed for a reasonable time, and had not been created in
contemplation of the Act\

Leaving the subject of holdings regulated by custom,^ the
Act then proceeds to lay down the rules under which com-
pensation for disturbance in the absence of usage is to be
computed. As has been said, the whole principle involved in
allowing such a claim, which was tantamount to the vesting
of a right in the land in the tenant, independent of his contract
with the landlord, was foreign to the theory of the Act of 1860.
The use of the term 'compensation for disturbance' also was
singularly unfortunate, as, even if it applied to the case of a
yearly tenancy, it is absolutely contrary to common sense when
applied to the claim against the landlord of a tenant who held
for a term certain which ended by completion of the term^

When Mr Gladstone described the nature of the compen-
sation clauses in the Act^ he prefaced his remarks by giving a
comparison of the rent returns of the past century in Ireland,
England and Scotland, showing that while in the first case
they had only about doubled, in England they had trebled,
and in Scotland sextupled. He argued, therefore, as a proof
of the advantages of security of tenure to the tenant, that
the rents had increased in the three countries in the direct
ratio of the security of the tenure of the cultivator*. He
then carried the same argument further by shewing that
the increase in Ulster had been larger than in the rest of
Ireland owing to the increased rights of the tenant under the
Ulster custom, and the consequent restriction of the powers
of the landlord ^ The form which compensation for disturbance

1 See Kevan v. Lord de Eos, quoted in the Bill, February 15th, 1870.

by Richey, p. 106. ^ See Hansard, 3rd series, Vol.

2 See ante, p. 138, and Richey, p. 66 cxcix. p. 355, 356.

(note). ^ Mr Gladstone gave the following

' When moving for leave to bring figures for Ireland — not including

X.] THE ACT OF 1870. 143

in the absence of custom ultimately assumed when embodied
in the Act of 1870\ presents on analysis the following features: —

A. The tenant is only entitled to compensation under the
general clauses when: —

(By section 3,)

1. He is not entitled to claim under the Ulster or
similar customs : or

2. Being so entitled elects not to claim under them.

3. Is disturbed by the act of the landlord: —

While for the purposes of the Act the following are not
deemed disturbances by the landlord of such a kind as to
entitle the tenant to compensation : —

(By section 9,)

(1) An ejectment for non-payment of rent.

(2) An ejectment for breach of any conditions against

assignment, subletting, bankruptcy or insolvency.
Provided that the Court may, if it think fit, hold
an ejectment for non-payment of rent to be a
disturbance in the case of a tenancy existing at
the time of the passing of the Act, and con-
tinuing to exist without alteration of rent up to
the time of such determination, if
a. rent arrears did not accrue within the last
three years, and if any earlier arrears re-
mained due from the tenant at the time of
commencing the ejectment: — or
6. the rent of the holding is under £15 per annum
and the Court certifies that the rent is ex-
orbitant ^

Ulster : Rentals in 1779 (according to series, Vol. cxcix. p. 357.

Arthur Young), £5,000,000, in 1869 ^ 33 & 34 Vict. c. 46.

£9,200,000, i.e. less than double. ^ This provision turned out almost

While in Ulster during the same inoperative, and was for the most part

period the increase was more than unnoticed, the use of the word ' exor-

threefold, though the soil was far bitant ' contributing to this result,

less productive. See Hansard, 3rd Bessborough Commission, § 21.

144 THE ACT OF 1870. [CHAP.

(By section 10,)

(3) The resumption by the landlord from a yearly

tenant of not more than ^sth. of his holding for
the purpose of erecting labourers' cottages
thereon, and which was resumed after six
months' notice to the tenant, unless the Court
shall hold such resumption unreasonable.

(By section 14,)

(4) Where the yearly tenant is evicted for the per-

sistent exercise of any right

a. not necesssary to the due cultivation of his

holding : — and

b. forbidden by his agreement with his landlord.

(5) Where the yearly tenant is evicted for persistently

and unreasonably refusing to allow the landlord,
or those authorized by him, to enter on the
holding for certain specified purposes, e.g.
mining, cutting turf, &c.

B. The landlord can deduct from the compensation : —
(By section 3,)

1. Amount of arrears of rent due by the tenant or his pre-
decessors in title.

2. Sums due in respect of deterioration of the holding owing
to the non-observance on the part of the tenant of any covenant.

3. Any taxes due on the holding and payable by the tenant.

C. The tenant is not entitled to compensation who, after the
passing of the Act : —

(By section 3,)

1. Subdivides or sublets his holding without the consent
in writing of the landlord.

2. After prohibition in writing lets it in conacre, save for
the purpose of being solely used for green crops.

3. Holds for a lease for more than 31 years.
(By section 12,)

4. Has contracted in writing not to make such claim.

X.] THE ACT OF 1870. 145

Provided that

(1) his holding is over £50 annual value,

(2) it is not subject to customary usage.
(By section 13,)

5. When the tenancy is from year to year existing at
the time of the passing of the Act assigns

, (1) without the consent of the landlord, and
(2) landlord does not accept assignee.
Provided that

I. sufficient rent is in arrears at the time of the assign-

ment to render the tenant liable to eviction : — or

II. such assignment is contrary to the customary usage

of the estate : — or
III. the Court thinks the landlord's refusal to accept
the new tenant to be reasonable \

On examination it is seen that one of the most striking
of the above provisions is that which enables an ejectment
by the landlord, even for non-payment of rent or for breach
of covenant, to be held a disturbance (and hence to entitle the
tenant to compensation), if the holding is under £15 annual
value^ and the Court certifies that the rent is exorbitant. The
reason of the exemption of the two cases of non-payment of
rent and breach of covenant from the disturbances by the land-
lord which were penalized in damages is the fact that the
eviction results from the tenant's own act. It is hard to
logically support the exemption of holdings under £15 from
this rule on account of the rent being exorbitant, as such an
argument would apply equally to holdings at a higher rental.
The reason for the enactment no doubt was a desire to
shelter the small tenants whose rent was forced up by the
action of the landlord, who might hence be said to be himself
the origin of the act on which eviction was taken. Plainly
however, when the high rent was the result of the 'reckless

1 The transmission of a tenancy by the landlord in refusing compensation,

bequest to certain near relations or its Sec. 13.

devolution by operation of law is not ^ ggg ante, p. 143.
such an assignment as would justify

M, 10

146 THE ACT OF 1870. [CHAP.

competition' of the tenants an exemption cannot be supported
on logical grounds, as the termination of the tenancy by evic-
tion on non-payment of rent in a double sense originates with
the tenant, in that (1) he did not pay his rent, and (2) he
voluntarily undertook more than he could perform \ Passing
from the grounds on which the compensation was to be given,
or on which exemption could be claimed by the landlord, to the
nature and amount of the compensation itself, the rules of the
Act of 1870 appear open to objection. Section 3 enacts that the
limit of the compensation is to be regulated thus; holdings
valued under the Acts relating to the valuation of rateable
property in Ireland at an annual value of

(1) £10 and under, a sum which shall in no case exceed
seven years' rent.

(2) Above £10 and not exceeding £80, a sum which shall
in no case exceed five years' rent.

(3) Above £30 and not exceeding £40, a sum which shall
in no case exceed four years' rent.

(4) Above £40 and not exceeding £50, a sum which shall
in no case exceed three years' rent.

(5) Above £60 and not exceeding £100, a sum which shall
in no case exceed two years' rent.

(6) Above £100, a sum which shall in no case exceed one
year's rent.

But in no case shall the compensation exceed the sum of
£250^

The late Dr Richey, in criticising the scheme of compen-
sation adopted here, said, — "as the maximum of the compen-
sation in each case is calculated upon the basis, not of the
valuation, but of the rent, the amount of compensation varies
in the inverse ratio of the value of the interest, which has been
lost by the tenant. The higher the rent reserved upon a lease,
the less it will fetch at an auction ; and on the other hand its

1 See Kichey, pp. 73, 74 and note. pensation for disturbance by the im-

2 33 & 34 Vict. c. 46, sec. 3. The mediate landlord is given on the same
scale of compensation quoted applies scale in the case of yearly tenancies
to tenancies created after the passing of existing at the time of the passing of
the Act, but by the same section com- the Act.

X.] THE ACT OF 1870. 147

value would be augmented if the rent were reduced. If A be
tenant from year to year of a farm valued at £10, and pays a
rent of £15 per annum, and B holds a farm of equal rating but
pays only £5 per annum rent, it is manifest that B's interest in
his holding is much more valuable than that of A ; under this
section, however, A would be entitled to the sum of £105 as
compensation for disturbance, but B only to £35 \"

In addition to the foregoing objections to the system on
which the compensation was calculated ^ it has been already
mentioned that the amount of the compensation to be paid was
found insufficient to check the action of the evicting landlord,
owing to the fact that a new tenant was often to be found who ■
was ready to pay the compensation to the outgoing tenant in
order to gain possession of the holding. This same fact tended
also to produce large holdings — a most unexpected result — for
if a tenant A, who already held a farm on an estate, expressed
a desire to take up other small holdings, and offered to pay the
compensation to the evicted tenants, it is obvious that the
interest of the landlord would be strongly enlisted in the
change. The compensation he would have to pay to A, should
he afterwards evict him from the enlarged holding, would
be far less than the combined compensation he would have
had to pay to the other small holders. It is also plain that
the mode of compensation here adopted is a bar to the creation
of improvements by the landlord, since these would, although

1 See Kichey, pp. 68 and 69. This a separate or additional claim for

relates of course merely to compensa- improvements other than permanent

tion for disturbance, and is founded buildings and reclamation of waste

on the theory of the maximum value land.

having been awarded in both cases. ^ In practice the result of the statu-

It does not affect the position of A and tory limitations of the compensation

B as regards compensation for im- for disturbance, combined with the

provements; but it should be noticed discretion given to County Court Judges

that sec. 3 also enacts that no tenant as to assessal, resulted in a rough and

of a holding valued at a yearly sum ready administration of justice. The

exceeding £10 and claiming under this Judges taking the tenant as primd

section more than four years' rent, and facie entitled to the full amount of the

no tenant of a holding valued at a compensation, and casting upon the

yearly sum not exceeding £10 and landlord the onus of proving claims in

claiming as aforesaid more than five reduction,
years' rent, shall be entitled to make

10—2

148 THE ACT OF 1870. [CHAP.

increasing the rent, at the same time probably raise the com-
pensation which must be paid on terminating the holdings \

The difficulty that under compulsion the tenants might
agree to contract themselves out of these provisions for compen-
sation was met by section 3, which made such a contract void
both in law and equity (subject to exception if the holding was
of more than £50 annual value and the contract not to claim
was in writing'^). Mr Gladstone thus justified this enactment:
" our desire is to interfere with freedom of contract as little as
possible. We are about to interfere with it in regard to the
terms on which minor tenancies may be taken up, because we
say that in the circumstances of Ireland the tenant is not free ;
but as we move upwards in the scale of the value of holdings,
at last, undoubtedly, we reach a point where the tenant may be
said to be free I"

In order to prevent the landlord changing the nature of
the tenancies granted, so as to escape on a side issue from
his liability to compensation, section 69 enacted that a tenancy
at will, or less than a tenancy from year to year, gave the
tenant the same rights as to notice to quit and compensation
as did a tenancy from year to year. Only one more point need
be dealt with before leaving the subject of compensation for
disturbance and passing to the enactments as to improvements —
this point is the question of the rights of sub-tenants, which is
dealt with in section 20 in a highly inadequate manner. By
this section, when the estate of the middleman terminates " by
reason of disturbance or otherwise" and "involves the interests
of any such persons other than the tenant quitting his holding,
the Court shall determine the whole amount payable under this
Act on the occasion of such tenant quitting his holding and
shall direct payment of the same by such person, and to such
one or more of the persons interested, and in such manner
as the Court thinks just." It is plain that the amount due
from the superior landlord to the evicted middleman would
probably be a far smaller sum than that to which the combined
claims of his tenants would have amounted, had he himself

1 A very interesting example of this ^ gee. 12, and see ante, p. 145.

is given by Dr Richey, pp. 70 and 71. ^ Hansard, 3rd series, cxcix. p. 370.

X.] THE ACT OF 1870. 149

evicted them. Therefore, though the tenant is in each case
turned from his holding, the amount of compensation he receives
is widely different^; a very unsatisfactory result^

The second object aimed at by the Act of 1870 was the
settlement of the vexed question of improvements by compen-
sating the tenant on the termination of his tenancy for those of
a permanent nature which he had made in his holding. Mr
Gladstone, in his speech on the motion, established very clearly
the equitable claim of the tenants to some such protection.
When alluding to the effect of the Incumbered Estates Act 1848^
he drew attention to the fact that while the older class of land-
lords had but in few cases improperly increased the rents of the
holdings on the ground of improvements which the tenants had
themselves made ; yet, when the properties of these landlords
came into the Incumbered Estates Court, "the purchasers
bought them as they were, and no distinction was drawn between
the soil itself and the improvements made by the tenant. So
that the improvements were sold to persons who gave a price for
them ; sold away from the tenant to whom they ought to have
belonged ; and the price was paid to the outgoing landlord, who
undoubtedly ought not to have been entitled to claim the pro-
perty in them, and would not have been so entitled if the
legislation recommended in 1845* had been adopted^".

The form taken by the provisions enacted for the purpose of
thus compensating the tenant was : — that any tenant who is
not entitled (or being entitled does not claim) under the Ulster
or similar customs, may claim compensation for improvements
which have been made by himself or his predecessors in title ^:
save in the following cases :

1 Dr Eichey gives an illustration of landlord; unless (1) the landlord has
this, pp. 78, 79, and 80. given him permission to gain the sum

2 It should be noticed that by sec. 7 from the incoming tenant, (2) such
a tenant who has neither claimed com- money was paid during the existence
pensation for disturbance, nor under a of a lease, before the passing of the
customary right, is entitled to compen- Act.

sation on leaving his holding for money ^ 11 & 12 Vict. c. 48.

paid on coming into his holding by ^ By the Devon Commission,

himself or his predecessors in title with ^ Hansard, 3rd series, cxcix. p. 344.

the express or implied consent of the ^ 33 & 34 Vict. c. 46, sec. 4.

Lie^

^ V^ Of THE

UNIVERSITY

160 THE ACT OF 1870. [CHAP.

(1) When the said improvements have been in exist-

ence for 20 years — (unless they consist of per-
manent buildings or reclamations of waste land,
in which cases he may claim).

(2) When the landlord has prohibited in writing the

making of such improvements as detrimental to
the estate \

(3) When they were made in pursuance of a contract

for valuable consideration.

(4) When made in contravention of an agreement in

writing not to make such improvements (subject
to the rule as to when such a prohibitory con-
tract is allowed).

(5) When the landlord has undertaken to make the

said improvements (unless he has failed to do
so within reasonable time).

(6) When he holds under a lease or written contract

made before the Act in which his right to com-
pensation is expressly excluded.

(7) When he holds under a lease for 31 years, or one

which has actually so long subsisted : — (but here
compensation is allowed for permanent buildings,
unexhausted manures and reclamation of waste).

(8) When he is quitting voluntarily, and his land-

lord has given him permission to dispose of his
interest in the improvements to the incoming
tenant upon such terms as the Court may deem
reasonable, and he has refused or neglected to
avail himself of this permission.

When the amount of compensation is being reckoned all
sums due to the landlord for rent, deterioration of the holding
from breach of the tenant's covenants, or for the tenant's taxes,
may be deducted.

Further regulations in the same section'^ of the Act : —

1 When they appear to the Court to lease granted before the passing of the

be detrimental, and are made within Act, sec. 4, sub-s. (1).

two years after the passing of the Act, ^ 33 & 34 Vict. c. 46, sec. 4.
or during the unexpired residue of a

X.] THE ACT OF 1870. 151

1. Render void any contract between landlord and tenant
whereby the latter is restrained from making improvements
required for the suitable occupation of his holding.

2. Render void any contract whereby the tenant is de-
prived of his right to claim compensation for improvements
(save in the cases above excepted; and in holdings over £50
annual value, and not subject to Ulster customs or the like,
where the contract is in writing).

3. Enact that when the improvements have been made
before the Act, the Court, in considering the amount of the
compensation to be granted, shall take into consideration the
length of time for which the tenant has had the use of them,
or any set-off which may have been granted by the landlord.

While

(By section 6) the landlord or tenant may register their
improvements in the Landed Estates Court, and

(By section 5^) the presumption of law is stated always to
be that any improvements are the work of the tenant; save in the
following cases, where compensation is claimed for improve-
ments made before the Act, and

I. the improvements were made previous to the time

when the title accrued by actual sale to the
landlord or those through whom he claims.

II. the tenant held under a lease.

III. the improvements were made 20 years before the Act.

IV. the holding is valued at over £100 annual value.

V. the Court holds, on the ground of the practice of

the estate, that such ought not to be presumed.

VI. the Court is satisfied that the improvements were

not the work of the tenant.

Provided that where it is proved to have been the practice
for the landlord to assist in making the improvements the pre-
sumption shall be modified accordingly.

The third object aimed at by the Act of 1870 was the

^ Does not apply if (1) holding is (2) tenant seeks compensation under
Bubjeet to Ulster or similar customs ; them.

152 THE ACT OF 1870. [CHAP.

establishment of peasant proprietors. For this purpose clauses
termed the Bright Clauses^ were inserted in the Act, the inten-
tion of which was to facilitate the purchase by a tenant of his
holding either

1. By agreement with his landlord, or

2. From the Court, in estates directed to be sold by the
Landed Estates Court.

In the first case the procedure to be adopted was that when
an agreement for the sale had been made between the landlord
and tenant, they might jointly (or either of them separately
with the assent of the other) apply to the Court to carry
out the sale^

The powers of purchase given by the Act proved valueless
in both the case of a sale by agreement and a forced sale of an
incumbered estate ^ but the provisions for sales of the first class
proved even more faulty than those regulating the latter. The
general faults which marred the Bright Clauses proved to be : —
(1) The absolute title given by the Landed Estates Court
to the purchaser. It seems strange that this power of the Court
to give a title which absolutely extinguishes all rights adverse
to the terms of the grant should have operated as an evil ; for it
was not unnaturally supposed that the indefeasible nature of
the title given would have constituted its greatest advantage.
But the fact that no error could afterwards be remedied, that
the title given would hold, even if the clearest rights of third
parties proved to have been infringed, or more land than was
really saleable had been conveyed, paralyzed the action of the
Courts by the nicety of the enquiry needed*.

1 33 & 34 Vict. c. 46, sec. 32 — 41. this course being found inconsistent

2 33 & 34 Vict. c. 46, sec. 32. with the interests of owners and in-

3 Mr Justice Field says, " The provi- cumbrancers. " Landholding, p. 318.
sions for facihtating the acquisition ^ ggg Richey, pp. 82 and 85. *' A
by tenants of their holdings forming Landed Estates Court conveyance af-
part of estates the sale of which had fects not only the rights of the par-
been directed by the Landed Es- ties to the proceedings, but binds all
tates Court failed chiefly in conse- persons, whether parties or not, and
quence of the general refusal of the au- extinguishes all rights which are in-
thorities to arrange lots so as to suit consistent with the terms of the grant
the convenience of purchasing tenants, by the Court."

X.] THE ACT OF 1870. 153

(2) The amount which the Commissioners of Public
Works in Ireland were allowed to advance to the tenant for
the purpose of purchasing his holding was not sufficient. By
the Act of 1870* the amount was limited to two-thirds of the
price of the holding^, and though it was increased by an Act
of 1872^ to two-thirds of the value of the holding (while on
being satisfied with the title the Board was able to make
advances to tenants purchasing by agreement with the land-
lords, without the expense of passing the holding through the
Landed Estates Court) it still proved to be inadequate. This
was due to two causes :

a. The provision of the Act of 1870* that where any
such advance was made the tenant was precluded from
alienating, assigning, or subletting his holding without the
consent of the Board, while any portion of the annuities
remained unpaid on pain of forfeiture ^

fi. The Board, considering themselves as trustees for
public money, required unexceptionable securities for their
advances, and, in the opinion of the tenants, did not act
freely in the matter I

(3) The difficulty of making the tenants understand
their rights under the Act.

The special faults of the Act in regard to sales by agree-
ment were that : —

(1) The landlord is required to deposit with the applica-

1 Sec. 44, 45. viz. two-thirds in lieu of three-fourths

2 On such an advance the holding of the purchase-money. See Eeport of
was deemed to be charged with an Bessborough Commission, § 87.
annuity of £5 for every £100 of ^ ^5 & 36 Vict. c. 32, sec. 1.

such advance and so in proportion ^ 33 & 34 Vict. c. 46, sec. 44.
for any less sum, such annuity to be ^ Power was given by the Amending
limited in favour of the Board and to Act of 1872 to commute forfeitures for
be declared to be repayable in the a sale and to pay the balance of the
term of 35 years (33 & 34 Vict. c. 46, s. proceeds to the original purchaser.
44,45). This makes the rate of interest ^ gee Eichey, p. 88. The Board
3^ per cent, and hence more favour- does not seem to have been in any
able than the terms of the Church way opposed to the creation of a pea-
Commissioners, but the proportion to sant proprietary,
be advanced on mortgage was less,

154 THE ACT OF 1870. [CHAP.

tion a sum of money as security for costs if required by the
Court to do so\ In practice, as might have been expected, the
result of this was to cast the work of providing this sum upon
the tenant.

(2) All the cost of the complicated enquiry which the
nature of the title given by the Court rendered necessary (es-
pecially heavy when the landlord was only a limited owner)
had to be borne by the tenant, and single holdings proved
unequal to the task*^.

(3) The estate passed to the tenant, though free from in-
cumbrances, was, by section 36, still liable to certain charges,
such as quit rents, rent- charges in lieu of tithes, heriots,
charges for draining etc. As pointed out by the late Dr
E/ichey, though these charges were not felt by the tenant
paying an annual rent, they were a serious matter to pur-
chasers ; since if several tenants purchased their holdings the
person entitled to the charge could proceed against any one
of them for the amount of the whole charge ; and the Court
proved slow to use the powers given by section 40^ to apportion
charges, rents and covenants ^ While in the case of the sale of
separate holdings it was not possible to indemnify the purchaser
by casting the burden of the charge on the residue of the
landlord's estate, as this operation, if frequently repeated, would
at length render the residue of his land unsaleable.

The Act of 1870 had to undergo a stormy history. It is
probable that the inherent defects of the Act were so great
that in any case it would have signally failed to ameliorate the
tenants' position even had it had an unchequered career, but

1 33 & 34 Vict. c. 46, sec. 34. rent should not in any appreciable

2 This question of excessive costs degree be made less secure, or less en-
was dwelt on in the Keport of the Com- joyable, or less marketable. It is idle to
mittee of the House of Commons 1877- suppose that the property of the owner
1878. of the head-rent would not be seriously

3 33 & 34 Vict. c. 46, sec. 40. depreciated by being broken into se-

4 "The Court has always been slow veral smaller rent-charges apportioned
and unwilling to exercise the power of among the holdings of the tenants
apportioning rent-charges upon the who had purchased the fee under the
premises sold, and requires it to be sections in question." Eichey, pp. 86,
clearly shown that the interest of the 87.

X.] THE ACT OF 1870. 155

it was also met by a fatal combination of circumstances. Not
only was an agitation, which even if rooted in distress was un-
scrupulous and fanatical in operation, directed against it ; but
the very elements conspired to wreck its chances. At first the
prosperous seasons veiled the evil, but they only (by raising
the credit of the tenants and so enabling them to load them-
selves with debt) increased the troubles which the subsequent
depression brought; and it cannot be denied that the only
effect of the Act was to afford new grievances to both landlord
and tenant.

CHAPTER XI.

The Act of 1881.

The years following 1870 were at first jesirs of unusual
prosperity for Ireland. In 1872 the exports of goods from
Belfast rose to an excess of £2,300,000^ more than in 1870, and
to an excess of £3,400,000 over 1869 ; though unfortunately this
was accompanied by a corresponding increase in the population.
The general cotton trade revived, and some remarkable figures
are given in Dr Hancock's'^ report of the Irish savings and
other banks ; he says " the aggregate investments of the Irish
people in Government joint-stock banks and savings banks on
the 31st of December 1870 were £63,553,251, and on the
31st of December 1871, £67,331,778, showing an increase of
£3,778,527, or £6 per cent." In 1875 despite the existence
of an element of discontent the relation of landlord and tenant
was not unfriendly ; and English opinion attached very little
importance to the growing Home Rule agitation. In the North
of Ireland, however, it was evident that a determined struggle
was being made to obtain a larger concession of tenant-right
than the Act afforded.

In 1879 a miserable season not only destroyed the potato
crop, but also (by the incessant rain preventing the turf from
drying) almost caused a fuel famine. The exports of the country
diminished, bank deposits sank, and bankruptcies among the
tenant farmers became common ^ The money-lender, that bane
of the Irish peasant, pressed for payment, and the agrarian
difficulties again became acute. The anti-rent agitation rose

1 See Statement to the Belfast Cham- 2 See Annual Register, 1872.

ber of Commerce made by Mr Spotten, ** See Annual Register, 1879.

and quoted in Annual Register, 1872.

CHAP. XI.] THE ACT OF 1881. 157

in Mayo and Galway, and was carried on in most unscrupulous
fashion. Gathering to itself the whole of the disaffected popu-
lation, and trading on the real misery which the agricultural
depression had caused, the movement rapidly became formidable.
The Irish Land League was formed, and the agitation was
pointedly directed to obtaining for Ireland a peasant proprietor-
ship ; the examples of France, Germany and Russia — especially
the first — being largely appealed to.

It is very noticeable how far the claims of the tenants were
now pushed, and it is in a great measure to this creation of a
desire for complete possession of the land that the failure of the
Act of 1881 may be ascribed. Had the three F's^ been given in
1870, when they were practically the limit of the tenants' de-
mand, the settlement of the land question might possibly have
been achieved. . Unfortunately the Act when passed was only
a tardy concession to circumstances, and did nothing to satisfy
the wild hopes that had been created. The advocacy of out-
rage, and the sad catalogue of agrarian crime which the fol-
lowing years present, is a terrible commentary on the force of
the passions aroused. The year 1880 was marked by a con-
tinued, indeed an increased, depression ; the invention of " boy-
cotting " placed a new and most formidable offensive weapon in
the hands of the most unscrupulous of the agitators, and the
land system of Ireland was practically at a deadlock. In the
midst of social tumult and extreme depression Mr Gladstone
again essayed the solution of the difficulty.

Fortunately in considering the position of the Irish land
system prior to the Act of 1881, we are possessed of two most
valuable sources of information in the evidence collected by,
and the reports of, two Commissions (called respectively the
Richmond and the Bessborough Commissions), appointed to en-
quire into the agricultural position in Ireland and the working
of the Act of 1870. The former of these issued in August 1879,
and, though different opinions as to the most advantageous
remedies to be applied to the existing evils were held by the
Commissioners, the reports and evidence concur in showing : —
(1) That there was widespread distress and dissatisfaction in
1 Fixity of tenure, fair rent, and free sale. See post, p. 159, 160.

158 THE ACT OF 1881. [CHAP.

the country, and (2) That the Act of 1870 had done nothing
towards a satisfactory solution of the land question.

The preliminary report issued in January 1881 by the
majority of the Commissioners gave us the chief causes of the
unfortunate state of landed relations :

1. The inclemency of the seasons, and the failure of the
potato crop.

2. Foreign competition.

3. An undue inflation of credit produced by the security
afforded by the Land Act of 1870, and by a series of prosperous
seasons.

4. The excessive competition for land (mainly due to the
fact that apart from the actual possession of the soil, there were
few, if any, means of subsistence for the population), which had
led to serious abuses, such as : —

(1) Unreasonable payments for tenant-right.

(2) Arbitrary increase of rents.

(3) Overcrowding of the population in certain districts.

(4) Minute subdivision of farms \

Only one of these heads requires a special mention, that is
the one dwelling on the evils of the inflation of credit produced
by the Act of 1870. It has been pointed out that, although
the object was attained by enactments of a negative kind^, this
Act vested a tangible interest in the land in the tenant. An
instant expansion in his borrowing capacity followed. Small
banks sprang into existence, and money (though not un-
frequently at usurious interest) became freely obtainable by the
most improvident peasantry in the world. Shop accounts were
allowed to run, and small loads of debt were gradually accu-
mulated by the farmers. The years of agricultural prosperity
which followed 1870 led the farmer class to look hopefully on
the future, and when the years of depression ensued they were
dragged down not only by the failure of their source of income,
but also by an ever increasing load of debt, which nothing but
perpetual prosperity could have enabled them to discharge ^

1 Richmond Commission. s ^.nd see on this subject Richey,

2 See ante, page 137. pp. 98, 99.

XI.] THE ACT OF 1881. 159

On the 29th of July 1880 the second Commission^ issued,
appointing a special examination into the working of the Act
of 1870. It is doubly important, both as showing the state of
landed relations in Ireland as affected by this Act, and also as
furnishing the basis of the Act of 1881 in which Mr Gladstone
again dealt with the land question. Most of the reasons ad-
vanced by the Bessborough Commission to account for the
failure of the former Act have been dealt with in the last
chapter, the increase of rents, the insecurity of tenure still
existing, the inadequacy of the compensation given, its un-
suitability to meet the needs of the tenant, and other faults.
The evidence with which these propositions are illustrated is
both clear and voluminous, and shows in addition how critical
the situation really was with which the Legislature was about
to grapple.

The Commissioners again differed considerably in the view
they took of the land question, but in their principal report^
they stated that the method of the Act of 1870, by which the
tenant's interest was dealt with by indirect means, was not
suitable. They went on to point out that the distinction drawn
between tenancies under Ulster custom and other tenancies
was a mistake : and stated that the Ulster custom, as legalized,
had failed, showing the same weak points as characterised the
land law of the rest of Ireland. They suggested '' that in future
the same land law should prevail throughout Ireland, and that
the yearly tenants, in every part of the kingdom, should possess
the same rights and be subject to the same obligations^"
Finally they advocated a change of the law based on the con-
cession to the tenant of ' Fixity of Tenure,' ' Fair Eent ' and
' Free Sale ' — that is, the notorious three F's.

On the 7th of April Mr Gladstone, on a motion for leave to

1 The Bessborough Commission. but the O'Connor Don and Mr Shaw

2 Five Commissioners were appointed, also sent in supplementary reports
viz. The Earl of Bessborough, Baron expressing different views as to the
Dowse, The O'Connor Don, Mr William remedy to be adopted for admitted
Shaw and Mr Kavanagh. The main evils.

report was signed by all save Mr Ka- ^ Report of Bessborough Commis-

vanagh (who gave a separate report), sion, pp. 13—39.

160 THE ACT OF 1881. [CHAP.

bring in the Land Law (Ireland) Bill 1881, explained in a lengthy
speech the lines on which it was proposed to legislate, amounting
shortly to a recognition of the three F's and the creation of a
special Court for the purposes of the Act. On the 22nd of
August 1881 the Act, 44 & 45 Vict. c. 49, became law. Besides
many blots in this celebrated Statute, which will be treated
of in detail when considering its provisions, it may at the out-
set be stated that there is much reason to believe that a more
advantageous step would have been taken had the previous
Acts been completely repealed, and a new, rather than an
amending, Statute passed. The paralyzing subtlety of the Act
of 1881 was largely increased by its enactments being supple-
mentary rather than final; while the process rendering the
invocation of the action of the Court necessary was eminently
unsuitable to the condition of the country. The prevailing in-
fluence of the combination of agitators which has been exerted
against the Act; the ingrained distaste of the peasantry to
trust themselves in the hands of the law ; the widespread
feeling that time will bring even larger concessions^ ; and the
cost involved in making the application, have all contributed
to prevent the tenants resorting largely to the Courts.

The length of the Act prevents the possibility of giving a
full summary of its provisions, but its principal features are as
follows. First, dealing with the subject of free sale, the tenant
for the time being of every holding not specially excepted '^ was
enabled to sell his tenancy for the best price he could get^ pro-

1 See 2nd article on the Land Sys- valued at not less than £50 per an-
tevi of Ireland, by his Honour Judge num ; (4) holdings let for pasturage
O'Connor Morris. Laio Quarterly Re- when the tenant is non-resident ; (5)
view, January, 1888. holdings in virtue of being a hired

2 The definition of tenant given in labourer or servant; (6) lettings in
sec. 57 excludes middlemen; and notice conacre, etc.; (7) holdings let to
the tenancies which are excepted by tenant whilst retaining any office or
sec. 58 from the operation of the Act employment, or for temporary conve-
(save as regards part v, and in so far nience or necessity (provided there be
as it amends the Act of 1870 with contract in writing showing the object
regard to improvements), viz. (1) any of the letting); (8) cottage allotments
holding not agricultural or pastoral ; not exceeding half an acre ; (9) glebes.

(2) demesne lands and town parks; ^ M & 4:5 Vict. c. 49, sec. 1.

(3) any holding let for pasture and

XL] THE ACT OF 1881. 161

vided that certain regulations were complied with\ Of these
the principal were that it should be sold, save with the consent
of the landlord ^ to one person only ; that the proposed new
tenant was not refused by the landlord on reasonable grounds^ ;
and that notice was given by the tenant to the landlord of his
intention to sell^ of the name of the purchaser, and of the con-
sideration agreed on for the purchase^ The landlord on his
part, on receiving notice of the intended sale, has the option of
buying in the tenancy^, and of refusing the new tenant on
reasonable grounds^, or if he fails to satisfy acknowledged
claims against the outgoing tenant for arrears of rent, or for
breaches of covenant ^ When he receives notice of an intended
sale the landlord, if he is not desirous of purchasing the tenancy
"otherwise than as a means of securing the payment of any
sums due to him for arrears of rent or other breaches of the
contract or conditions of tenancy," if the tenant proceeds with
the sale may purchase the tenancy for the sum he claims, pro-
vided no purchaser is found to give the same or morel

As regards the question of improvements, when any of a
permanent nature have been made by the landlord they may, if
he consents, be sold with the holding, and he will be entitled to
the portion of the purchase-money obtained by their sale*". The

1 And subject to the provisions of the passing of the Act to another
the Act as to the sale of a tenancy tenant it is subject to the provisions
under statutory conditions. regulating present tenancies. Sec. 20,

2 44 & 45 Vict. c. 49, sec. 1, sub-sec. sub-sec. (3). See post p. 162 (note 4).
(1) ; and by sec. 2 the tenant from year ^ Sec. 1, sub-sec. (6).

to year was prohibited from subdividing ^ Sec. 1, sub-sec. (9). By sub-sec.

or subletting his holding without the (15) any sum payable to the landlord

consent in writing of the landlord. out of the purchase-money is a first

3 Sec. 1, sub-sec. (6). charge thereon. By sub-sec. (7) in the

4 Sec. 1, sub-sec. (2). case of a sale by a landlord on account
^ Sec. 1, sub-sec. (4). of a breach of a statutory condition,
6 Sec. 1, sub-sec. (3). The price to the Court has power to grant pay-
be agreed upon, or in event of dis- ment of debt, arrears, or damages to
agreement to be settled by the Court. the landlord from the purchase -money.
Where the landlord purchases a pre- ^ 44 & 45 Vict. c. 49, sec. 1, sub-sec.
sent holding neither by the wish of (16).

the tenant nor in open market, if the i*' 44 & 45 Vict. c. 49, sec. 1, sub-sec.

holding is re-let within 15 years from (8), and said improvements are then

M. 11

162 THE ACT OF 1881. [CHAP.

tenant who has sold his tenancy on quitting his holding is not
entitled to receive compensation for improvements or for dis-
turbance \ Ulster tenant-right customs are not interfered
with ; the tenant can sell either under the usage or under
the Act as he thinks best^ ; but if a tenancy subject to Ulster,
or similar usage, be sold under the Act the tenancy remains
subject to the custom unless it has been purchased by the
landlord I

The Act then proceeds to a series of provisions by which
the tenant is able to commute his tenure into a protected
term for fifteen years, and which is in fact renewable without
limit. The way in which this was achieved was in the highest
degree ingenious, but the very elaboration of its details hindered
practical efficiency. Dealing first with the case where an in-
crease of rent is demanded by the landlord from the tenant of a
present tenancy* (or in the case of a future tenancy where the
landlord demands an increase of rent beyond the amount fixed
at its commencement), it provides that if the tenant agrees to
continue his holding at the higher rent his tenancy is for the
term of fifteen years regulated by what are termed statutory
conditions^. These are : that^ provided the tenant

(1) duly pays his rent,

(2) does not commit persistent waste,

(3) does not (without the consent in writing of the land-
lord) subdivide or sublet the holding, or erect any dwell-
ing-house thereon, save as provided in the Act, otherwise
than in substitution for those already there at the date
of the passing of the Act,

deemed to have been made by the of the passing of the Act, or created

purchaser. before the first of January, 1883, in a

1 Sec. 1, sub-sec. (11). And a tenant holding in which a tenancy was sub-
who has received compensation for dis- sisting at the time of the Act passing,
turbance or improvement is not entitled And every tenancy to which the Act
at the same time to sell his tenancy. applies is deemed a present tenancy

2 Sec. 1, sub-sec. (12), and see post until the contrary is proved. Sec. 57.
p. 163, 164 for new scale of compensa- ^ Sec. 4, sub-sec. (1). The term of
tion, etc. 15 years is called a statutory term.

3 Sec. 1, sub-sec. (13). « Sec. 5.
^ That is, one subsisting at the time

XI.] THE ACT OF 1881. 163

(4) does not, by any Act, cause the holding to vest in an
assignee in bankruptcy,

(5) permits the entrance of the landlord to cut timber,
mine, shoot, etc.,

(6) does not, without consent, open any house on the hold-
ing for the sale of intoxicating liquors,

he shall not be compelled to pay any higher rent than that
settled at the commencement of his statutory term, and shall not
be ousted from the holding, save for breach of one of the statu-
tory conditions. The landlord also is prohibited from taking pro-
ceedings to compel the tenant to quit his holding for breach of
any of the statutory conditions save as follows (a) where the con-
dition broken is that of due payment of rent he can proceed by
ejectment, (6) where the condition broken is any other statutory
condition, then by ejectment founded on notice to quit\ the
Court being allowed to grant relief against forfeiture upon
payment of damages or otherwise, if it should appear equitablel
If on the increase of rent being proposed the tenant refuses
to pay the higher rate he may claim compensation for dis-
turbance if he is compelled to abandon the holding by notice to
quit and does not sell the tenancy^ The Act of 1881 provides
an amended scale of compensation for disturbance'', which is, as
regards all tenancies above the annual rental of £10, higher
than the scale given in the Act of 1870^ and is also more
equitable, as not only is the amount of compensation regulated
with regard to the rent paid, but the classes of holdings are

^ 44 & 45 Vict. c. 49, sec. 13, sub- by breach of a statutory condition,

sec. (3) b. The purchaser of a present tenancy

2 See Field, p. 333, and 44 & 45 sold in consequence of a breach of a
Vict. c. 49, sec. 13, sub-sec. (3) & (4). A statutory condition was not entitled to
tenant compelled to quit his holding claim a judicial rent, but might hold at
during the continuance of a statutory a previously settled rent for the re-
term in his tenancy, in consequence of mainder of the statutory term. This
a breach by him of a statutory condi- applies also to the case of a tenancy not
tion, lost his right to compensation for subject to statutory conditions in case
disturbance, sec. 13, sub-sec. (6) : but of a similar breach. Sec. 20.
by sec. 20, sub-sec. (4), if he held under ^ ggc. 4 sub-sec. (3), and sec. 6.
the Ulster tenant-right custom he was ^ Sec. 6.

entitled to the benefit of the custom ^ The limit of £250 as the maxi-

despite the termination of his tenancy mum of compensation was abolished.

11—2

164 THE ACT OF 1881. [CHAP.

also regulated in the same way. The faults pointed out
therefore in the compensation clauses of the Act of 1870 (where
in the case of two tenants holding farms of the same valuation,
but one paying more rent than the other, the absurd result was
reached that the tenant who paid less rent, and hence had the
most valuable interest in his holding, was prima facie entitled
to the smaller compensation for losing his farm^) are avoided,
and a more reasonable measure of compensation afforded. In ad-
dition, section 3 of the Act of 1870 was amended by the striking
out of the words " for the loss which the Court shall find to be
sustained by him by reason of quitting his holding," so that the
tenant is entitled to such compensation as the Court, in view
of all the circumstances of the case thinks proper, subject of
course to the scale of compensation given in the Act of 1881.

A further protection is given to the tenant in that his
right to sell his holding is not barred by the landlord having
taken proceedings to compel him to quit ; for at any time before
six months from the execution of a writ or decree for possession
in an ejectment for non-payment of rent^ he may sell his
tenancy, and if sold it is held to be an existing tenancy de-
spite these proceedings I

As regards compensation for improvements also a step
further is taken, The provisions of the Act of 1870 had
rendered it possible for a landlord in many cases by changing
the rent of a holding, or by a slight alteration of the holding, to
create a new tenancy, even though the same tenant remained
in possession, and hence to bar the claim of the tenant to com-
pensation* ; but the Act of 1881 prevents the creation of such
a new tenancy from rendering void the right to compensation ^

^ See ante, pp. 146, 147. ancy is not redeemed within six

2 And he might also sell his tenancy months, being however preserved. Sec.
at any time before, but not after, the 13, sub-sec. (1).

execution of such writ or decree in any ^ This was rendered possible by the

other ejectment than for non-payment construction given to the words " made

of rent. Sec. 13 (1). And within the by himself (the tenant) or his predeces-

same periods, if the decree has been sors in title." See Field, p. 317, 318,

obtained before the Act, the tenant and 333, and Irish Land Acts, by G.

may apply to the Court to fix the judi- McDermot.

cial rent of the holding. ^ 44 & 45 Vict. c. 49, sec. 7.

3 The landlord's rights, if the ten-

XL] THE ACT OF 1881. 165

If the tenant whose rent the landlord proposes to raise
does not wish to accept the increase the Act provides also
another remedy for him\ This remedy varies according as
the tenancy is a present^ or a future one*. (1) In the case of a
present tenancy the tenant can make an application to the
Court to fix the fair rent ^ for the holding. This right to get a
fair rent fixed, moreover, is not confined to the case where the
landlord desires to raise the rent of the holding; for by sec-
tion 8^, the tenant of any present tenancy to which the Act ap-
plies, or such tenant and the landlord jointly, or the landlord
when he has failed to come to an agreement with the tenant,
may apply to the Court to fix the fair rent of the holding. When
the judicial rent has been fixed by the Court, then for fifteen
years the tenancy becomes one subject to statutory conditions ^
During that time the rent cannot be altered': while even if
proceedings have been taken to compel the tenant to quit his
holding, and are pending before the application of the tenant
to the Court to fix a judicial rent is disposed of, the Court has
the power to postpone or suspend such proceedings till the
question of the judicial rent is settled^ In the case of a present
tenancy also, which is not a statutory term, the landlord and
tenant, if they agree in writing as to what is then a fair rent
for the holding and file the agreement in Court, can commute
the tenancy into a statutory term^. (2) In the case of a future
tenancy the tenant, if he refuses to pay an increase of rent
demanded by the landlord, may sell the tenancy, which is then

i See Field, p. 331. « Sec. 8, sub-sec. (3).

2 See ante, p. 162, note (4). ^ An application to the Court to de-

3 i.e. created after the passing of the termine a judicial rent may not be
Act. made except during the last twelve

* Sec. 8 (1). By sub-sec. 5, more- months of the current statutory term,
over, the Court may also on applica- Sec. 8, sub-sec. (8). But notice the in-
tion fix the value of the holding, and terference with the ' fair rents ' under
then if during the term the tenant the Act of 1887. It was rendered ne-
gives notice to sell, the landlord may cessary by the severe agricultural de-
purchase at that value plus any addition pression. See ^os« p. 180, 181.
for extra improvements. This section ^ Sec. 13, sub-sec. (3).
does not apply to holdings under the ^ Sec. 8, sub-sec. (6). A similar agree-
Ulster custom. ment may be made during the last

5 Sub-sec. (1). twelve months of a statutory term.

166 THE ACT OF 1881. [CHAP.

to be sold subject to the increased rent, and the tenant is en-
titled to receive from the landlord any sum by which the Court
shall decide the selling value of his tenancy to have been de-
preciated below what it would have fetched at a fair rent : while
in addition the Court may grant him the costs of the saleV

Under the Act of 1870 efforts were made to force the hand
of the landlord, and to make him in his own interest create
leases for a term of not less than 31 yearsl The Act of 1881
also offered facilities for the creation of terms of this kind;
enacting that, if the tenant of a tenancy to which the Act
applies is not in possession of either a statutory or a fixed
tenancy, a lease by agreement between the landlord and such
tenant for not less than 31 years shall, when sanctioned by the
Court, become a 'judicial lease ' and lie outside the provisions of
the statute I

Yet another species of tenure might be created under the
Act of 1881 by agreement between landlord and tenant, and
substituted for that previously existing in the holding, namely,
what is described as a 'fixed tenancy*.' The conditions of this
kind of holding are mainly dependent on the agreement be-
tween the parties, subject to the proviso that the tenant (1)
pays a fee-farm rent^ and (2) is not to be compelled to leave
his holding save on breach of a statutory condition.

The result of the provisions as to fixity of tenure^ which

1 44 & 45 Vict. c. 49, sec. 4, sub- the lessee shall be deemed to be the
sec. (2). tenant of a present ordinary tenancy"

2 See ante, pp. 137, 138. (i.e. one neither (a) subject to statutory

3 44 & 45 Vict. c. 49, sec. 10. conditions, nor (&) to a judicial lease, nor
These provisions apply also to the pro- (c) a fixed tenancy, but which is within
posed tenant of any holding to which the Act. See sec. 5) " from year to year
the Act applies and which is not sub- at the rent and subject to the condi-
ject to a subsisting tenancy. See also tions of the lease, so far as such condi-
Field, p. 336 and 337. The question tions are applicable to such tenancy."
naturally arises, what would be the ^ Sec. 11.

position of a present tenant, who •''' Sec. 12. This rent may or may

changed his yearly tenancy for such a not be subject to revision once in 15

lease, upon its termination ? In answer years as agreed between landlord and

to this sec. 10 of the Act provides that tenant.

" at the expiration of a judicial lease ^ Fixity of tenure was of course also

made to the tenant of a present tenancy aided by the improved rules for com-

and for a term not exceeding 60 years, pensation for disturbance.

XI.] THE ACT OF 1881. 167

have been dealt with, therefore, is in short that a tenant under
the Act can (1) on an increase of rent being proposed by the
landlord and accepted by the tenant, or (2) in the case of a
present tenancy without an increase having been proposed, by
application to the Court commute his tenancy into a statutory
term ; while in the case of leases for more than 31 years, and
of fixed tenancies, the agreement of the landlord and tenant
without litigation becomes binding \

A large equitable power was vested in the Court by the
provision^ which enacted that on the hearing of any appli-
cation of a landlord or tenant, if the Court was of opinion that
the conduct of either party had been unreasonable, the application
might be (1) refused, or (2) granted subject to conditions ; and
that the offending party might be penalized in costs. The
Court also had power, in the case of leases existing at the time
of the passing of the Act, where unjust terms had been im-
posed upon the tenant on his acceptance of the said lease after
the passing of the Act of 1870, to set aside the lease on the
application^ of the tenant and place him on the same footing as
that occupied by the holder of an ordinary tenancy*.

It will be remembered that under the Act of 1870 the
Board of Works was authorized to advance two-thirds of the
price of the holding to a tenant desirous of purchasing, and it
has been pointed out that (despite this being increased by

1 See Field, p. 338. And it should by a written agreement to contract
be noticed that by sec. 20, sub-sec. (2), himself out of the operation of either
where the landlord resumes possession of the Acts. In another case also
of a present tenancy and reinstates the a contract inconsistent with the Acts
tenant, such tenancy again becomes is allowed, for by sec. 22, when a hold-
subject to the provisions of the Act as ing subject to customary rights has
regards present tenancies, and if the been purchased by the landlord by
parties agree at the time of the re- voluntary purchase before the Act of
instatement as to rent to be paid it 1881, and the owner is in actual occu-
becomes a judicial rent. pation ; at the date of the passing of

2 Sec. 9. the Act then in a first tenancy of
2 Such application to be made within the holding subsequently created by

six months of the passing of the Act of written agreement the tenancy may

1881. See Field 339, and 44 & 45 be exempted from the provisions of

Vict. c. 49, sec. 21. sec. 1 as to free sale. 44 & 45 Vict. c.

^ But the tenant of a holding of 49, sec. 22.
more than £150 annual value was able

168 THE ACT OF 1881. [CHAP.

the Act of 1872* to two-thirds of the value of the holding)
these purchase clauses failed signally. The new purchase
clauses of the Act of 1881 also provided for the advance of
money to the purchasing tenant, but regulated the advances
in a different way. The Land Commission was empowered ^ if
satisfied with the security, to advance^ sums to the purchasing
tenant to the following amounts.

1. If the tenant is about to purchase from the landlord
for a principal sum — then not more than three-fourths of such
sum.

2. If the tenant purchases by paying a fine and engaging
to pay a fee-farm rent — then any sum not exceeding one half of
the fine, on condition that the fee-farm rent is not more than
seventy-five per cent, of what the Commissioners think a fair
rent for the holding.

And the Act further sought to facilitate sales to the tenants
by allowing the Commission under certain conditions to purchase
estates from the landlords and to sell them again to the
tenants*; and by allowing the Commission to indemnify the
tenant purchasers of an incumbered estate against incum-
brances ^

This then being an outline of the provisions^ of the cele-
brated Act of 1881, which again remodelled the whole of the
system of agricultural holdings in Ireland, it is possible in
the light of after events to detect many flaws and also to
observe many good points. The Act, as has been pointed out,
was greatly marred for practical purposes by its own subtlety,
and in addition the details as to procedure proved at first to
work but indifferently, and complaints were made that the
judgments as to improvements, etc. by the Commissioners were

1 35 & 36 Vict. c. 32, sec. 1, sub- until the whole charge was paid off
sec. (1). the tenant might not subdivide or let

2 44 & 45 Vict. c. 49, sec. 24, sub- his holding without consent. Sec. 30,
sec. (1). sub-sec. (1) a.

3 Such advances to be repaid by an ^ Sec. 26, sub-sec. (1) ; and see
annuity in favour of the Land Com- Field, p. 341.

mission for 35 years of £5 for every ^ Sec. 26, sub. -sec. (5).

hundred advanced, and so in propor- ^ See post p. 179 note 1 as to provi-

tion for every less sum, sec. 28 ; and sions for emigration.

XI.] THE ACT OF 1881. 169

not sufficiently specific to set vexed questions finally at
rest ^

A large amount of criticism was focused on the Act, and
various objections to its principle were raised. It was urged
that {apart even from what many considered a most unwarrant-
able inroad on the rights of the landlord^) a dual ownership was
established in the soil, a thing which was termed radically evil.
Yet this dual ownership is to be found all over Europe, and
Ulster tenant-right presents about the one satisfactory feature
of the land history of Ireland. Again, another body of the
opponents of the Act deplored the vanished rights of the
landlord, which they declared to be now reduced to a rent-
charge on his estates. Yet he still possessed the remedies
of distress, ejectment, action, and injunction; while he had a
right to enter on the tenant's land for the purpose of min-
ing, quarrying, hunting', etc.; possessed rights to woods and
minerals, held the reversion of the tenant's estate, and had a
right every fifteen years to a revision of rent^ It was stated
that the principle of the Act was adverse to the making of
improvements by the landlord ; but where most of the hold-
ings are small, and the works are therefore usually the result
of the labour of the tenant, this does not apply as it would
in a country where large farms and valuable holdings are
the rule^

Another class of objections was, that no Government^
machinery could properly value rents, which were purely local
matters and could only be settled fairly by persons intimately
acquainted with the particular district under consideration;
that the landlord would still incur odium by having to resort to
eviction on breach of the statutory conditions; that the rent

1 See Report of Select Committee of ^ gee. 5, sub-sec. (5).

the House of Lords, 1882. ^ O'Connor Morris, Land Systevi of

2 And without expressing an opinion Ireland, part ii. L. Q. Revieiv, Janu-
as to whether the exigencies of the ary, 1888.

Irish situation made the recognition of ^ ijjjjj^

tenant-rights in the land imperative ^ This objection was urged by Mr

or not, there is no doubt that his Bonamy Price in his special report on

rights were largely restricted. the Richmond Commission.

170 THE ACT OF 1881. [CHAP.

which would be fair from a poor tenant would be too small
if paid by a richer one ; and that despite the provisions against
subdivision and subletting, the ultimate effect of the Act would
be to increase or at least perpetuate ' starvation holdings.'

In all of these last objections there lies a germ of truth, but
none of them were sufficiently developed to cause serious harm,
and had the Act succeeded in other ways it would have com-
pensated for the smaller evils caused. Unfortunately the pur-
chase clauses, which were held the most vital portion of the
measure, failed completely. The Select Committee of the House
of Lords, which in 1882 examined the working of the Act, cast
some light on the reason of this failure \ the evidence tending
to show that the Land Commission should be empowered to
advance the whole purchase-money'^ of his holding to the tenant
to render purchase possible ; the amount which might be ad-
vanced under the Act being insufficient. The Committee them-
selves^ ascribed the failure of the purchase clauses to the fact,
that : —

1. When a limited owner sold to a tenant the money
passed into Chancery, and was invested on the low interest of
Government Stock, while the expenses of the process were heavy.

2. When the land is subject to a quit rent*, all the
holdings into which any estate is divided remain liable for it,
the Commissioners not being able to apportion, &c.

3. "Under the present arrangements there is no suffi-
cient inducement to the tenant to purchase his holding at any
price at which the owner would be likely to sell it;" this
arising not so much from the fault of the provisions for pur-
chase as from the singularly good position of the tenant of a
statutory term.

1 It must be remembered that this keeping them in Ireland.

Committee was appointed in the face ^ The Committee suggested that the

of the opposition of the House of Com- loans should be advanced at 3 per

mons, and represented practically the cent, or 4 per cent,

landlord interest. A preliminary re- ^ Preliminary Beport of the Select

port was published but not a final one. Committee, 1882, Parliamentary Papers

as the evidence of the sub-commis- Vol. viii.

sioners working under the Act could * And nearly one-third of the land

not be obtained, owing to their duties of Ireland was so subject.

XI.] THE ACT OF 1881. 171

It is undeniable that the efforts of the agitation, which has
exerted such an influence on the minds and methods of the
Irish peasantry, has been employed rather against the accept-
ance by the tenantry of the advantages of the Act, while it
has pointedly prevented the working of the provisions for free
sale\ As a result the Act of 1881 has failed to allay the
popular discontent, and the tenantry have on the whole made
scanty use of its provisions. A very large number of applica-
tions to fix fair rents'^ have indeed been made, but during the
first year of the Act only forty cases of application for judicial
leases^ came before the Court, and during the same period only
85 tenants made use of the purchase clauses. In some ways
this would tend to show that the question of fair rent is the one
which tenants regard as being of the most vital importance, and
would rather militate against the idea that they are eager to
possess the fee of the soil.

The position of the agricultural tenants in Ireland under the
Acts of 1870 and 1881 is certainly remarkable ; for their tenure,
which before these Acts was marked by complete uncertainty,
has been changed to one in the highest degree favourable to
the tenant. The attempt to reconcile law and fact by con-
structing statutes on the basis of the ideas and expectations
of the tenantry has been carried to a remarkable extent,
and the position of the Irish tenant from year to year is
absolutely unique in the manner in which it is fenced and
protected by legislation, until it greatly resembles a tenancy in
perpetuity. Despite the faults which have been pointed out in
the Acts of over-subtlety and want of finality, it is hard not to
believe that they contain within them the groundwork of a
satisfactory settlement of the land question.

1 See O'Connor Morris, L. Q. Be- applications for fixed tenancies, two of
view, 1888. which were withdrawn, while 15 were

2 See Field, p. 357. No less than pending and three had been granted,
80,187 notices to fix being lodged in and the necessary documents sealed."
the fiurst year of the Act. See Field, p. 357, from Eeport of the

3 " Three leases only were executed Irish Land Commissioners of the first
and sealed during the year. Twenty year's working of the Act.

CHAPTER XII.
Recent Legislation.

No sooner had the Act of 1881 granted to the Irish tenant
a degree of legislative protection unexampled in the history
of English law than popular demands again became heard, and
it was apparent that instead of solving the agrarian difficulty
the Act had but whetted the desire for further concession. Two
objects were now aimed at by even the more moderate of the
tenants, (1) the abolition of arrears, and (2) the creation of an
absolute peasant proprietary. The political complications of
1882 are too much concerned with present controversial politics
to fall within the scope of this essay. But, whatever the cause,
the state of Ireland was most critical. The ' no rent ' agitation
which has met with such universal condemnation had been
started at the end of 1881; and the following year was marked
by a ghastly catalogue of crime, while disorder and disaffection
ran riot through the land.

On the 15th of May 1882 Mr Gladstone introduced to
Parliament a Bill dealing with arrears. It had been the
complaint of the tenants in Ireland that despite the provisions
of the Act of 1881 their liability to eviction had not been
lessened owing to the burden of arrears of rent which incumbered
them, and they stated that large numbers of evictions on this
ground were taking place. On the second reading of the
Arrears Bill, Mr Gladstone admitted that the interference of the
Legislature with respect to arrears of rent was exceptional and
extraordinary ^ and that neither on economic nor constitutional
principles could State interference by compulsion and gifts with

1 Hansard, 3rd series, cclxix. p. 1270.

CHAP. XII.] RECENT LEGISLATION. 173

the settlement of debts be advocated^ ; but he urged in favour
of the measure that it might prevent the failure'^ of one portion
of the Land Act, and on the 18th of August the Arrears Act^
received the Royal Assent.

This Act was confined in its operation to the tenants of
holdings falling within the Act of 1881 and under the value
of £30 per annum'*. Its most important provision was, that if
it could be proved to the satisfaction of the Land Commission

(1) that the tenant of such a holding on or before the 30th of
November 1882 had paid his rent for the year ending in 1881,

(2) that antecedent arrears of rent were due by him to the land-
lord, and (3) that he could not discharge them without losing his
holding or being deprived of the means of duly cultivating it^ an
order for payment might be made by the Land Commission to
or for the benefit of the landlord of one half of the arrears due
(provided that the sum so paid did not exceed the yearly rent to
which the holding was liable in the year preceding that ending
in 1881). When the order for the payment of such a sum had
been made the antecedent arrears were swept away, as also any
judgment, decree or security for the rent ; whilst any judgment
or decree for the recovery of the holding on the ground of non-
payment of rent was vacated as far as regarded any rent due
in respect of the holding before the last gale day of the
year ending in 1881, but not as regarded rent which had since
that date accrued due^. The difference between this Act
and the arrears clause of the Act of 1881' is very marked.

1 See Annual Register, 1882, p. 80. ing as far as appeared reasonable to

2 Hansard, 3rd series, cclxix. p. the Commissioners taken into account
1274, " Without the settlement of this in considering the tenant's power of
question I sorrowfully confess that paying, sec. 1, sub-sec. (2).

the working of the Land Act, however ^ Sec. 1, sub-sec. (2) ; but if the

beneficial, must remain essentially in- tenancy is sold within seven years the

complete." arrears dealt with and not satisfied

2 45 & 46 Vict. c. 47. shall, to an amount not exceeding one

^ The number of tenancies in Ireland year of such arrears nor half the pro-

which would fall under the limit of fits of such a sale, be a sum payable

the £30 valuation was calculated at to the landlord within the meaning of

585,000. the Act of 1881.

5 45 & 46 Vict. 47, sec. 1. The sale- ' 44 & 45 yict. c. 49, sec. 59. When

able value of the tenant's interest be- advances had already been made under

174 RECENT LEGISLATION. [CHAP.

The money provided by the Government (and which was
supplied from the Irish Church Surplus) was given not as a
loan but as a free gift, enforceable by either landlord or tenant.
Applications for relief under the Act* were to be made before
the end of 1882^

Even when aided by the Arrears Act the Act of 1881 did
not work satisfactorily; the applications under its purchase
clauses were few; and discontent was widely prevalent through-
out the Irish agricultural peasantry. The skilful manipulation
of political agitators both fostered the existing dissatisfaction
and rendered nugatory the working of the Acts. The agri-
cultural returns showed increasing depression, and the panacea
of a tenant proprietary was widely urged. In 1884 two
measures of land purchase were proposed by Mr Barry and
Mr Dickson, and though they were rejected a promise was
extorted from the Government to introduce a land purchase
Bill. This pledge was redeemed by the introduction of Sir
George Trevelyan's' scheme of land purchase, proposing an
advance of £20,000,000 from the Imperial Exchequer, of which
not more than 5,000,000 was to be advanced in any one year.
The Bill was based on the idea of twenty years' purchase,
and provided (1) that if the tenant would pay a quarter of the
purchase-money the other three-quarters should be advanced
by the State at such low interest that by the payment of an
annual sum, not exceeding his present rent, for forty years he
would become the freeholder; while (2) if no principal sum were
paid by him the whole of the purchase-money might be advanced

this section the Commissioners were filed an agreement as to the fair rent
empowered by sec. 15 of the Act of of a holding is filed to make an order
1882 to abolish the rent-charge on as to the accommodation of the la-
proof that tenant was at the time when bourers employed on the holding
the advance was made unable to dis- (sec. 3).
charge the arrears. 3 Then Mr Trevelyan. When he

1 Sec. 10, but in certain cases time brought forward the Bill he stated,
might be extended to April 30, 1883. " That land in Ireland was almost un-

2 Another Act of this year, the saleable, the 'block' being as great as
Labourers' Cottages and Allotments it was when Sir Robert Peel passed the
(Ireland) Act, 1882, 45 & 46 Vict. c. 60, Incumbered Estates Act. " Annual
enabled the Land Commissioners, Register, 1884, p. 190 — 192,

where the landlord and tenant had

XII.] RECENT LEGISLATION. 175

at 5 per cent, to be paid for thirty-three years, but in this case
he was obliged to satisfy the local board as to security, and a
guarantee was expected out of the local cess.

This Bill, the provisions of which as will be observed were of
a most sweeping character, was eventually dropped; but in the
following year Lord Ashbourne, the Lord Chancellor for Ireland,
introduced the Purchase of Land (Ireland) Act 1885 \ It
amended the purchase clauses of the Act of 1881^ by allowing
an advance to the tenant of the whole purchase-money of his
holding at 4 per cent.'', to run for 49 years; and the protection of
a cash guarantee was obtained by the State by the Com-
missioners retaining one-fifth of the money till the borrower re-
paid of the whole loan a sum equal to such fifth. The sum to
be advanced by the State was limited to £5,000,000, and the
working of the Act was placed in the hands of the Irish Land
Commission ^

Four large schemes of land purchase have therefore now
been applied to Irish land with the object of enabling occupying
tenants to become owners. The proposals of Mr Gladstone for
drastic purchase in 1886 are both too much concerned with
controversial politics and too unreal in their nature to come
within the scope of this essay; but as it is evident how im-
portant a feature of the land law of Ireland is concerned in the
working of those purchase clauses which have actually resulted
in the creation of peasant freeholders, the comparison of the
working of the Irish Church Act^ the Bright clauses of the
Act of 1870^ the purchase clauses of the Act of 1881'' and
Lord Ashbourne's Act® is highly instructive.

The following table is based on the statement made in the
House of Commons on the 19th of November, 1888, by the
Solicitor-General for Ireland^ :

1 48 & 49 Vict. c. 73. 44 & 45 Vict. c. 71.

2 44 & 45 Vict. c. 49. <5 33 & 34 yict. c. 46.

3 Instead of three-quarters at 5 per 7 44 & 45 Vict. c. 49.
cent. 8 48 & 49 Vict. c. 73.

* Power being given to appoint two ^ ^r Madden, see Hansard, 3rd

new Commissioners, sec. 17. series, Vol. 330, pp. 1520—1531.

5 32 & 33 Vict. c. 42, amended by

176

RECENT LEGISLATION.

[chap.

No. of Purchasers. Amount advanced.

6,000 £1,674,000'

824 518,716

Land Act, 1881 731 240,554

Lord Ashbourne's Act' (1885) 8,632 5,986,000'.

Act.
Irish Church Act
Land Act, 1870

It will be observed that Lord Ashbourne's Act has been by far
the most effectual. Its success indeed was considerably greater
than is shown by the above figures, since the hands of the
Commissioners were tied by the limitation of the funds at
their disposal, and 5,706 transactions under its provisions were
still pending. The total number of agreements for purchase
signed being 14,338.

Two more tables, based on the same authority, will show
respectively the nature of the farms already bought under this
Act, and the distribution of the peasant proprietors established
throughout Ireland under its provisions.

1. Nature of Farms created.

Rental. No. of Holdings

purchased.

Underlie 3,599

Between £10 and £30 3,234

£30 and £50 884

Over £50

915

2. Distribution of

Applications.

Ulster .

7,711

Munster

2,730

Leinster

2,336

Connaught

1,561

From these figures it is evident that Lord Ashbourne's Act
has been largely successful in inducing the tenants to purchase
their holdings: and its further extension by another grant of
£5,000,000, which seems certain to pass the present session of
Parliament, will doubtless greatly facilitate the process \

1 The figures in this case represent
the gross amount of the purchase-
money; the amount advanced would
be about three-quarters of the gross
amount.

2 Figures brought up to Oct. 31,
1888.

3 This sum does not represent the
money which had then been actually

advanced — Lord Ashbourne's Act only
empowered the grant of £5,000,000 —
but the sum actually advanced plus
the sum which would be necessary to
meet the pending transactions, 5,706
in number.

4 Since the above was written this
grant has been passed by 51 & 52 Vict,
c. 49.

XII.] RECENT LEGISLATION. 177

The principle of a peasant proprietary seems now to be
generally held to be the best solution of the Irish land question,
and the gradual buying out of the interest of the landlords to
be considered likely to benefit that country. For many years
this has been the dream of not a few of those interested in
Ireland, and the theory of compulsory purchase was favoured
by MilP; but while expressing the opinion with much reserve,
owing to the weighty authorities in favour of the scheme, the
author of this essay is very doubtful of the ultimate advantages
of the system. That in the immediate present it works well
is true, and the tenants certainly seem to become more pros-
perous and more peaceable when settled upon holdings of
which they are themselves the proprietors. The banishment
of capital, however, entailed by a widespread application of the
scheme, and the improvident habits of the Irish peasantry (so
different from those of the French small holders who are always
appealed to as a triumphant example) offer fatal objections
to the ultimate success of a universal plan of this kind in
Ireland.

The following extract from Mr Kavanagh's special report
on the Bessborough Commission shows most forcibly the evil
possibilities of such a plan :

" Examples of the old perpetuity leases have been given us
in evidence, where the lessees holding on grants for ever at a
nominal rent, have been, so far as the question is practically con-
cerned, in the same position as owners in fee ; and the condition
of those properties now has been cited as exemplifying what the
result of peasant proprietors would be, and if they can be taken
as a fair example of what the result of a future experiment
in that direction would result in, I think that even the most
ardent advocate of that scheme would not consider it as en-
couraging. By the evidence it is shown that very few of the
representatives of the original lessees are now in possession ;
ruined by idleness and extravagance, their grants soon passed
into the hands of mortgagees, who, looking only to gain, let
and sublet, divided and subdivided their lands, till over-popu-

1 See England and Ireland, J. S. fication of Ireland examined, by Lord
Mill, and Mr MilVs plan for the pad- Dufferin, 1868.

M. 12

178 RECENT LEGISLATION. [CHAP.

lation with its consequent ills of never-ceasing want and
periodical famine were stereotyped in those districts, and even
in the few instances which remain of the representatives of
the original lessees still continuing in possession, the condition
is no better. It is shown that as occasion arose for each owner
to make provision for his family, the same course was adopted,
till the successive increase of each generation reduced the
holdings to a size utterly inadequate to the support of those
depending on them for even a bare subsistence \"

The author inclines to the opinion that a sweeping measure
of land purchase would be, at any rate in its ultimate result,
an evil ; and is of opinion that the true solution of the diffi-
culty lies rather in statutory terms such as those created under
the Act of 1881. They constitute a severe inroad on the rights
of the landlord, but they do not forcibly banish him from the
land, nor do they compel him (as a compulsory land purchase
system would do) either to retain his house and grounds while
shorn 'of his estate, or to sell his demesne at something not
much above prairie value. Moreover, they constitute a real
approximation of law and fact, the statutory term resembling
very much the nature of the tenants' assumed rights in the
soil.

If the country were freed from the bondage of the gigantic
organization of disaffection ; if the Irish Land Acts of 1870,
1881 and 1887 were cleared of their technicalities and re-
enacted in the form of one shorter and simpler Act ; and if
the modes of procedure were simplified and cheapened, the
author believes that the question of agricultural tenures would
be on the high-road to settlement. While if public money were
freely granted in aid of drainage and other improvements of
the land^, and (though with caution) in the creation of a
limited, solvent and industrious class of peasant proprietors,
and in aid of improved provisions for emigration (free from
the faults which characterized these provisions in the Act of
1881, and which the provisions inserted in the Arrears Act

1 Report of Bessborough Commis- Bills now before Parliament are ex-
sion, p. 62. amples of this kind of legislation, and

2 The light railway and drainage should be widely beneficial.

XII.] BECENT LEGISLATION. 179

did not satisfactorily mend*), the system would be greatly
facilitated. It is impossible to say that the Act of 1881 has
been tried under fair conditions, and the Act of 1887 is yet
new.

This latter Act^ was introduced to the House of Lords by
the Earl of Cadogan^, who touched on the report presented by
the Commission on the Act of 1881*, and stated that the
Government was averse to again disturb more than was neces-
sary the law of Irish land tenure. The provisions of the Act
extended to leaseholders the advantages from which they were
excluded under the Act of 1881. All such leaseholders — some
150,000 — were enabled, if they desired, to apply to the Court
and to ask for a judicial revision of rent ; that is, they were
placed in the same position as the tenants of 'present tenan-
cies' under the Act of 1881 ^ A difference was also made in
the position of middlemen, who were enabled, if the Court
reduced the rents paid by their tenants, under certain cir-
cumstances to give up their leases®. By the Act of 1881' a
middleman who was not in occupation, and hence could not
claim the protection of the Act, was frequently, while liable for
his own rent, injured by his tenants having fair rents fixed as
against him. This state of affairs was also prejudicial to the
sub-tenants, since if the middleman made default and the head
landlord proceeded by ejectment, the tenants were only able to
save themselves from eviction by paying the head rent in full,
and though they could then proceed against the middleman,
this was not a privilege of much valued

In order to stop the evictions^ which had become so pain-

1 The Act of 1881 (sec. 32) enabled ^ March 31st, 1887, see Hansard, 3rd
the Land Commission to enter into series, Vol. 313, pp. 1 — 27.
agreements with persons representing a ^ Lord Cowper's Commission, ap-
State, Colony or public body, but the pointed 29th Sept. 1886.
applications which were received did ^ 50 & 51 Vict. c. 33, sec. 1.

not fulfil these conditions. The Ar- « 50 & 51 Vict. c. 33, sec. 8.

rears Act 1882 empowered Boards of ^ 44 & 45 Vict. c. 49, sec. 57.

Guardians to raise money for helping « Key to the Land Act, 1887, T. M.

emigration, and sanctioned grants to Healy, pp. 57, 60.

them for this purpose. See Field, pp. » Whether the provisions introduced

353, 354. were likely to have this effect is rather

2 50 & 51 Vict. c. 33. doubtful, but that this was the belief

12—2

180 RECENT LEGISLATION. [CHAP.

fully prevalent, the Act of 1887 contained a provision which
will be better understood if the state of the then law of eject-
ment is briefly considered. The tenant under a lease, or holding
a yearly tenancy, was liable to eviction when one year's rent
was in arrear. The fact that a judgment or decree in eject-
ment had been obtained did not however get rid of the
tenant's claim to his holding until such judgment or decree
was actually executed ; until then, and also for six months
after such execution, the tenant was able to redeem his holding
if he paid the landlord's costs and the rent due\ It was there-
fore necessary, in order that the six months during which the
tenant had an equity of redemption might begin to run, for the
landlord to proceed to actual eviction, even if the tenant was
afterwards to be re-admitted as a care-taker. The provisions
of the Act of 1887^^ made it sufficient for the landlord to serve
notice of the judgment, and ipso facto, on receipt of the notice,
the tenant became a mere care-taker without having been
evicted, and the six months' period of redemption began to
run. Certain equitable provisions were also inserted, enabling
the County Court to give time to the tenants to help them to
meet their liabilities.

The Act of 1887 is but an extension of the Act of 1881,
and there appears no doubt that the admission of leaseholders
to the benefit of its provisions is a step in the right di-
rection. Certain temporary changes in the judicial rents
were also provided for. One of the recommendations of Earl
Cowper's commission had been that a shorter period than
fifteen years should be fixed for the revision of the judicial
rents. There were many obvious disadvantages in so soon
unhinging again the settlements of judicial rents which had
been effected under the Act of 1881, at the same time the
unforeseen and calamitous agricultural depression of 1885 and
the following years, which caused even the judicial rents to be

and intention of the Government was posed provision will be to reduce the

stated by the Earl of Cadogan, who number of evictions by one-half."

when introducing the Bill said, "I do Hansard, 3rd series. Vol. 313, p. 13.

not think I am overstating the case ^ 23 & 24 Vict. c. 154, sees. 52 — 71.

when I say that the effect of the pro- ^ 50 & 51 Vict. c. 33, sec. 7.

XII.] RECENT LEGISLATION. 181

impossible to the tenants, rendered some action imperative.
The Act of 1887 dealt with the difficulty by providing for a
temporary re-adjustment of the judicial rents. The Land
Commission was directed to determine the necessary change
for the current year, and to take similar steps in 1888 and
1889 \ It seems probable that if an amount of social order
can be introduced into Ireland sufficient to give the Act a fair
trial, that it should ultimately be successful.

All remedial measures which are only adopted in a crisis
of social disunion are likely to be at first only slightly suc-
cessful ; but it is probable that if a quieter future is in store
for Ireland, the tenants will realise that they possess a security
in their holdings which is quite unexampled, and that the
troubled sea of Irish passions should gradually calm. Works
of improvement, the increased development of the soil, and
the help of State-aided emigration may all have to be called
into play before the quiet level is reached, but it would seem
that the basis of tenure has been satisfactorily dealt with.

Surely it is no baseless hope that on the horizon is seen
the dawning flush of a day of peace for Ireland; that the
future holds years of happiness and prosperity when that lovely
land, shaking off like a dark cloud the past of misery, blood-
shed and despair, may take that place in the roll of countries
which the talent, the genius, the wit and the learning of
her sons so well entitle her to.

1 50 & 51 Vict. c. 33, sec. 30. The end of which time the tenants will be
power of varying the judicial rent was liable to the original judicial rent for
only given for these three years, at the the remainder of the statutory term.

LIST OF STATUTES CITED.

PAGE

13 Edw. I. (Stat. West, the 2nd) 49

31 Edw. m. St. 4 51

Statute of Kilkenny, 1367 52, 53

2Kic. III. c. 8 43

10 Hen. Vn. c. 4 (Irish) 55

„ „ c. 8 (Irish) ib.

„ „ c. 10 (Irish) 56

„ „ c. 18 (Irish) . . . ib.

„ „ c. 22 . ib.

34 Hen. VIII. c. 28 68

12 Eliz. c. 4 (Irish) 62, 71

13 Jac. I. c. 5 (Irish) 76

ICar. I. c. 33 . 34

16 Car. 1. c. 33 ib.

„ „ S.9 92

12 Car. II. c. 24 82

13 & 14 Car. II. c. 18 85

14 & 15 Car. II. c. 2 (Act of Settlement) 81

14 & 15 Car. II. sess. 4, c. 19 (Irish) 82

17 & 18 Car. H. c. 2 81

29 Car. H. c. 3 88

3 Will. & Mary c. 2 85

7 Will. III. sess. 1, c. 12 (Irish) 87

7 Will. III. c. 21 (Irish) 84

9 Will. III. c. 3 (Irish) 86

10 Will. III. c. 6 (Irish) 108

10 & 11 Will. III. c. 10 85

11 & 12 Will. III. c. 2 (Act of Eesumption) 84

2 Anne c. 3 (Irish) 86

„ c. 6 (Irish) ib.

11 Anne c. 2 sec. 6 128

5 Geo. II. 0. 4 sec. 1 (Irish) 131

LIST OF STATUTES CITED. 183

PAGE

25 Geo. II. c. 13 sec. 2 (Irish) . . . . . .- . . .131

11 & 12 Geo. III. 0. 21 (Irish) . 97

17 & 18 Geo. III. c. 49 (Irish) . . . . . . . . . i6.

21 & 22 Geo. III. c. 48 (Irish) 92

39 & 40 Geo. III. c. 67 (Act of Union) 103

56 Geo. III. c. 88 (Eviction Act 1816) 100, 131

4 Geo. IV. c. 99 sec. 35 93, 95

7 Geo. IV. c. 29 100

10 Geo» IV. c. 8 ib.

11 & 12 Vict. c. 48 (Incumbered Estates Act 1848) .... Ill, 149

sec. 2 112

13 & 14 Vict. c. 69 .101

14 & 15 Vict. c. 25 sec. 3 . 129

„ „ c. 57 sec. 73 (Civil Bills, Ireland, Act) 131

21 & 22 Vict. c. 72 (Irish Landed Estates Act 1858) 112

23 & 24 Vict. c. 153 130

„ „ sec. 36 ib.

„ „ sec. 39 ib,

„ ,, sec. 40 ib.

„ „ sec. 44 ib.

„ „ sec. 62 ib.

23 & 24 Vict. c. 154 (Act of 1860) ....... 124—134

sec. 3 127

sec. 12, 13, 14 . . . . . . . .128

sec. 17 129

sec. 40 130

sec. 51 131

sec. 52 131, 180

sec. 53 132

32 & 33 Vict. c. 42 (Irish Church Disestablishment) . . . 135, 175

33 & 34 Vict. c. 46 (Act of 1870) ib.

sec. 3 . . . . 143, 144, 146, 147, 148, 164
sec. 4 149, 150

„ sec. 5 151

„ sec. 6 ib.

sec. 7 . . . • 149

sec. 9 . 137, 143

„ sec. 10 ......... 144

sec. 12 144, 148

sec. 13 . . •. . . . . . .145

„ sec. 14 144

sec. 15 136

sec. 20 148

sec. 32 151, 152

sec. 34 153

sec. 36 164

sec. 40 ih.

184

LIST OF STATUTES CITED.

33 & 34 Vict. c. 46 sec. 41 . .

,, „ sees. 44, 45 .

„ „ sec. 69

„ ,, sec. 71

35 & 36 Vict. c. 32 sec. 1 (Act of 1872)

„ „ „ sub-sec. (1)

44 cSr 45 Vict. c. 49 (Act of 1881)

„ ,, sec. 1 .

„ sub-sec. (1), (2), (3), (4), (6), (7), (9), (15), (16)
„ sub-sec. (8), (11), (12), (13)
„ sec. 2 ....

,, „ sec. 4 sub-sec. (1)

,, „ ,, sub-sec. (2)

„ ,, ,, sub-sec. (3)

sec. 5

,, „ ,, sub-sec. (5)

„ „ sec. 6

sec. 7

sec. 8 sub-sec. (1), (3), (5), (6), (8)

,, „ sec. 9

,, „ sees. 10, 11, 12 . . .

„ „ sec. 13 sub-sec. (1)

,, ,, „ sub-sec. (3) b .

„ „ „ sub-sec. (6)

„ „ „ sub-sec. (2)

„ „ sec. 20 sub-sec. (4)

„ „ sees. 21, 22 .

„ „ sec. 24 sub-sec. (1)

„ „ sec. 26 sub-sees. (1), (5)

,, „ sec. 30 sub-sec. (1) a .

sec. 67

sec. 58

„ ,, sec. 59

44 & 45 Vict. c. 71 (Irish Churcla Amendment Act)

45 & 46 Vict. c. 47 (Arrears Act)

sec. 1

„ „ ,, sub-sec. (2)

sec. 15

45 & 46 Vict. c. 60 sec. 3 (Labourers' Cottages and Allotments

1882) ....
48 & 49 Vict. c. 73 (Lord Ashbourne's Act 1885)

50 & 51 Vict. c. 33 (Act of 1887)

„ „ sees. 1, 8

„ „ sec. 7 .

„ „ sec. 30 .

51 & 62 Vict. c. 49 .

PAGE

151, 152
153
148
136
153
168
175
160, 161, 167

160,

Ireland Act

161
162
161
162
166
163

162, 166
169
163
164
165
167
166
164

163, 165
163
167
163
167
168

lb.

ib.
162, 179
160
173
175
173

ib,

ib.
174

ib.
175
179

ib.
180
181
176

PATENT AND CLOSE ROLLS, ETC. 185

PATENT AND CLOSE KOLLS, ETC.

PAGE

Eecord 4 Edw. II . 50

Close Koll 2 Edw. Ill 44

Close EoU 15 Edw. Ill .51

Close Koll 28 Edw. Ill 44

EoU of King's Council in Ireland 16 Eic. II 92

Writ 11 Hen. Ill 49

Close Eoll 37 Hen III 44

Patent Eoll 40 Hen. Ill 49

Patent Eoll 7 Hen. IV 53

Patent Eoll 10 Hen. IV ib.

Close Eoll 9 Hen. V 54

Close Eoll 7 Hen. VI ib.

Close Eoll 14 Hen. VI ib.

Patent and Close Eolls of Chancery in Ireland 24 & 25 Hen. VIH. . . 69

INDEX.

Abolition of military tenures, 82

Absenteeism, 53, 59, 82, 92, 93, 96, 103

Adrian IV., Bull of Pope, 41

Advances to tenants , under Irish Church
Act, 135, 153 (note), 175, 176; under
Act of 1870, 153, 175, 176 ; under
Act of 1881, 167, 168, 175, 176; under
Lord Ashbourne's Act, 175, 176

Adventurers, 79, 81

Agnatic family, 3

Agrarian community, ibid.

Aicill, Book of, 20

Aires, 15, 16, 18

Alexander III., Bull of Pope, 47

Alienation of land, 12, 13, 30; influence
of the Church on, in early times, 13,
32 ; mode of, in the Brehon Law, 30

Anti-rent agitation, 156, 157

Arrears Act 1882, 172, 173

Ashbourne's, Lord, Act, 175

Bacon, Lord, 74 (note)

Ballybetagh, 70 (note)

Bank deposits, growth of, 124

Bastards, could inherit under the Bre-
hon Law, 35, 41 ; could not inherit
under Kentish Gavelkind, 68

Bestigi, 25

Bedford, Duke of, 96

Belfast, exports from, 156

Bessborough Commission, 127 (note),
143 (note), 157, 159

Betaghes, 26

Black rent, 53

Bo-Aires, 15, 16, 18

Bogland, reclamation of, permitted to
Catholics, 97

Bonaght, 37

Bothacks, 16, 18

Boyne, battle of the, 83

Brehons, 19 ; authority of the, 20

Brehon Law, 19 ; translations of, by
Commissioners, 20, 21 ; date of, 21,
22 ; resembles the laws of Wales, 22 ;
not a code, 22 ; how far binding, 23 ;
ambiguity of terms in, 24 ; prohibi-
tion of, 52; what would have been
the effect of the recognition of the, 67

Bright Clauses of the Act of 1870, 136,
151—155

Bruce, expedition of, 50

de Burgh, Bichard, receives grant of
Connaught, 50

Cain Aigillne, 28

Cain Serrath, ibid.

Canting of tithes, 95

Cashel, Synod of, 43

Cathal, 49

Catholic Church, power of, 113, 114

Catholics, massacre by, 77, 78; op-
pressed by Penal Code, 80

Cattle, importance of, in early commu-
nity, 4, 10, 11

Ceiles, 16, 18

Cess, 37

Charles II. , restoration of, 80 ; Irish
Land Commission of, 81 ; abolition
of knight service in the reign of, 82

Charter, Irish, 49

INDEX.

187

Chichester, Sir Arthur, 74 (note)
Chief, increase in the power of the, 7 ;
election of, 8, 30, 31 ; seigniory of,
over the tribe-lands, 9 ; exactions
by, 29, 35 — 38 ; and tenant, connec-
tion of, in Brehon Law, 69
Church, relation of the, to land in the
Brehon Law, 13, 14, 32 ; tenants in
Brehon Law, 32 ; structure of, in
Brehon Law, resembles tribe, 32, 33
Colony of the Pale, influence of the,
on Brehon Law, 4; origin of the
term, 55
Commendation, mental, 23, 24
Commercial Code, 84—87, 90, 95, 97

Commissions, Land, under James I.,
71, 77; for making shires in 1605,
73 ; under WilHam III., 83

Commons, origin of, 33, 34 ; enclosure
of, 94—96

Compensation, for disturbance, 137,
138, 142—149, 163, 164; for im-
provements, see Improvements

Connaught, surrender of two-thirds of,
by Cathal to John, 49 ; granted to
Richard de Burgh, ibid. ; composition
of, 62 ; scheme of plantation in, 77

Constantine, forged donation of, 41
(note)

Contract, basis of Act of 1860, 126—
128 ; freedom of, impossible in Ire-
land, 126, 127; mercantile system
of, under Act of 1860, 133, 134

Copyhold, 90—92

Cork, claims to lands in, in reign of
Elizabeth, 60

Corus Bescna, 21

Coshering, 27, 29, 37, 43

Cottrell, John, 37 (note)

de Courcy, 48

Courts Baron, 44 (note), 92

Court of Claims, 81

Cowper, Earl, Land Commission of,
179, 180

Coyne, 27, 29, 43, 82

Crith Gabhlach, 20

Cromer, Archbishop of Armagh, 59
(note)

Cromwell, character of his Irish wars,
59 ; settlement of Ireland under, 78,
80 ; conquest of Ireland by, 78, 79

Cuddies, 37

Customary tenures, absence of, 26

Daer tenancy, 10 ; riiles of, 28 — 30

Davels, Henry, 60

Davies, Sir John, 24, 67, 70—72, 80,

89 ; abolition of Irish tenures by,

67 et seq.
Deirbhfine, 25
Deis lands, 24, 25
Dergfine, 26 (note)
Desmond, Sir John, 60 ; revolt of Earl

of, 60
Devon Commission, 107 (note), 118,

121 (note), 136
Dibad, 25

Disgavelling of Irish land, 73 et seq.
Distress, 10, 98, 99, 131
Disturbance, compensation for, see

Compensation
Drogheda, Statute of, 55
Druids, 19
Druim Gall, 21
Dufferin, Lord, 19 (note)
Duthaig-fine, 25

Earth-tillers, treatment of, under Crora-
wellian Settlement, 80, 89, 90

Edgecombe, Sir Richard, 55

Edward IV., policy of, towards de-
generate lords, 51

Ejectment, caused by political motives,
94 ; remedy by, 131, 132, 163, 164,
179, 180

EHzabeth, character of Irish wars of,
69 ; dealings with Irish land in early
part of reign of, 60, 71

Emigration, 97, 110, 121

Eric composition, 36, 43

Escheat in relation to Gavelkind, 73

Eviction Act 1816, 100, 107, 131 (note)

Exactions by Chief, 29, 35, 38; had
their origin in increase of Fuidhir
tenants, 38

188

INDEX.

Family group, nature of, 3, 4, 5 ; rela-
tion of, to the land, 4, 5
Famine, of 1739, 99 ; of 1846, 108—110
Fair rent, 165
Fenianism, 110, 113
Feudal tenures, introduction of, 40,

41; swept away by Act of 1860, 127,

128
Fine, 5

Fine Flatha, 17, 18
Fines on renewal of lease, 96
Fitz Thomas, 37 (note)
Fixed tenancies, 166
Fixtures, removable, law of, under

Acts of 1851 and 1860, 129
Flaths, 15, 16, 18
Forfeitures from adherents of James

n., 83
Fostering, 51, 52 (note)
Franchise, elective, denied to Papists,

85 ; effect of nature of, on tenancies,

94, 99, 100, 107
Free sale, provisions for, under Act of

1881, 160, 161
Free trade in land, 124—134
Freeholds, growth of, from political

motives, 100, 104
French Code, compared to Act of 1860,

133, 134
Fuidhirs, origin of class, 9 ; Saer and

Daer, 17, 18

Gavelkind, Case of, 35 ; Irish, 6, 7, 35 ;

judgment in the Case of, 67, 68 ;

Kentish, difference from Irish, 68;

Welsh, ibid.
Geraldines, 47, 59
Gilleninny, 37
Gillycone, ibid.
Grad Feine, 18 ; Flath, ibid.
Grattan, 97
Grazing farms, 93

Hanging gale, 105

Hearts of Steel, 96

Henry II., agreement of, with Strong-
bow, 42; early designs on Ireland,
ibid. ; lands in Ireland, 43 ; holds

Curia Kegis at Lismore, ibid. ; grant
of the English laws by, ibid. ; Irish
policy of, 46, 47; large grants of
land by, 44, 48; makes Treaty of
Windsor, 46; makes John King of
Ireland, 47

Henry III., feudal grants by, 49

Henry IV., state of Ireland in reign of,
53

Henry V., indifference of, towards Ire-
land, 53, 64

Henry VI., state of Ireland in reign of,
51

Henry VII., policy of, towards Ireland,
55, 56

Henry VIII., policy of, 58, 59; state of
Ireland in reign of, 57, 58

Houghers, 94

House of Lords, Select Committee of,
169 (note), 170

Hy Neill, 31

larfine, 25

Improvements, Brehon Law of, 128;
law of, under Act of 1860, 128, 130;
compensation for, under Act of 1870,
149, 151; under Act of 1881, 161,
162, 164

Incumbered Estates Act, 111 — 113, 125,
137, 149; landlords under, 124;
purchasers under, 125

Indfine, 25

India, joint family in, 3

Insurrection and massacre by Catho-
lics, 77, 78

Irish Church Act, 135, 153 (note)

James I., Land Commissions in reign
of, 71, 75; conciliatory tone of legis-
lation of, 76

James II., policy of, towards Ireland,
82, 83; heads Catholic party in
Ireland, 83

John, made King of Ireland, 47 ; goes
to Ireland, 48; feudal grants by,
ibid. ; agreement of, with Cathal,
49; visits Ireland for second time,
ibid.

INDEX.

189

Joint family of India, 3
Judicial rents, 165. 180.

181

Kernetty, 37
Kilkenny, Statute of, 52
Kinship, as basis of early community,
3,6

de Lacy, Hugh, obtains grant of
Meath, 44

Land, arable, 24, 34, 35; bonds, 79;
free trade in, 124; League, 157;
measures, Irish, 70 (note) ; pasture,
24, 33, 34 ; relation of mere Irish
to the, after Cromwell's conquest,
89 ; system, earliest form of, 3, 4

Land Act 1870, 134—155; objects of,
136; faults of, 138, 139, 145, 147,
153—155

Land Act 1881, 156—171; law of im-
provements under, 161, 164; statu-
tory terms, 162, 163; compensation
for disturbance, 163 ; regulations as
to fair rent, 165 ; fixed tenancies,
166 ; equitable power of Court, 167 ;
advances under, 167, 168 ; purchase
clauses of, 168, 170

Land Act 1887, 178, 179

Landed Estates Act, 112, 134

Landholding classes in early times,
15—18

Landlord and Tenant Law Amend-
ment Act (Ireland) 1860, 124—134

Leases, became unpopular with land-
lords, 100, 101, 105; refused to
settlers, 87 ; refused to Catholics,
86 ; judicial, 166, 171

Levellers, 34, 95

Licenses, 43 (note), 53 (note)

Limerick, Treaty of, 83

Livery, 27, 29

Livery of seisin, 87

London Companies as landowners,
126 (note)

Mac Bryan, Murrough, 69
Mac Murrough, Dermot, 42
Manaich tenants, 32

Manorial system, how tried in Ireland,

91,92
Manufactures, Irish, repression of, 84,

85, 90, 93; increase of, 98
Meath, ancient appanage of Irish

Koyalty, 42 ; granted to Hugh de

Lacy, 44
Mensal lands, 10, 30, 31
Merchant Navigation Act 1663, 85
Middlemen, 82, 93, 96, 98, 124, 148,

179
Mortuath, 18
Mosyorowne, 37
Mountjoy, 63
Munster, desolation of, after Desmond

war, 60; enclosure of commons in,

94 ; plantation of, 60, 61

' No rent' agitation, 172
Notices to quit, 127, 132, 163

Oak boys, 96

O'Callaghan, Cahir, 69

O'Connell, 107, 118

O'Connor, Roderick, King of Con-
naught, 42 ; makes Treaty of Wind-
sor with Henry II., 46

O'Donnell, revolt of, 62, 63

O'Neil, Hugh, Earl of Tyrone, revolt
of, 62 ; forfeiture of estates of, 63, 73

Orkney, Lady, 84 (note)

Ormonde, Earl of, 92

Ownership, changes in nature of, 7

Oxford, Council at, 47

Palatine counties, grants of, 45, 92
Pandarus, 59 (note)
Papists, disabilities heaped on, 86
Parliament, Grattan's, 98; Papists

prevented from sitting in, 85
Peel, Sir Eobert, 118
Penal Code, 86, 87, 90, 95
Pembroke, Richard de Clare, Earl of,

see Strongbow
Petition, to Edward I. from Colonists

of the Pale, 50; to Henry V. from

Colonists of the Pale, 54
Petty, Sir William, 79, 80, 89, 90

100

INDEX.

Placita Kolls, 50 (note)

Plantation of Munster, 60, 61 ; Ulster,
63, 64, 73—75

Population, increase of, 102, 103

Potato, effect of cultivation of, 99, 103 ;
famine, 108—110

Potkyn's Case, 105

Poyning's Law, 55

Property in land, at first vested in the
Community, 3 ; mere usufruct by in-
dividual, ibid. ; Gavelkind rules of,
6 ; power of the chief as affecting, 8 ;
rules of Tanistry as affecting, ibid.

Protestants, massacre of, in 1641, 77,
78

Purchase, land, schemes of, 174, 177,
178

Purchases, under Incumbered Estates
Act, 125; under Irish Church Act,
135, 153 (note), 175, 176; under Act
of 1870, 151—155, 175, 176; under
Act of 1881, 168, 170, 175, 176; under
Lord Ashbourne's Act, 175, 176

Kaj, mode of succession to the, 31

Kefections, 29, 37

Reformation, efforts of Henry VIII. to

introduce the, into Ireland, 59
Eent, origin of, 11
Rents, raised by competition, 93, 94;

in Scotland and England, compared

with Ireland, 142
Resumption Act, 84
Ri, the, 18, 25, 28
Ribbonmen, 109, 110
Richard II. visits Ireland, 53
Richmond Commission, 157, 158
Roman Catholics, influence of, absent, 3
Runrig, 6

Saer tenancy, 10, 11; rules of, 28, 29
Salisbury, Earl of, 70
'Salus Populi ' of Pandarus, 59 (note)
Sanction, want of, in Brelion Law, 19,

20
Satellitum poturae, 37 (note)
Savings Banks, 156
Secret societies, 102
Senchus Mor, 20, 21

Sencleiths, 16, 18

Separate property in land, not known
in early times, 3 ; favoured by Brehon
lawyers, 7

Sept, 5, 35

Services of Ceile tenants, 28

Settlement, Acts of, 81; repealed at
Dublin, 83; effect of the, on native
small holders, 90

Sexual relations in early Irish history,
11

Sheep breeding, 93

Shragh and mart, 37 (note)

Simnel, 55

Slaves, 15

Sorohen, 37

South, ibid.

Spenser, 36 (note)

Statutes, English, how applied to Ire-
land, 52

Statutory terms, 162, 163, 178

Stock, rules for amount of, 29

Strafford, Earl of, 77

Strongbow, lands in Ireland, 42; con-
quests of, 42

Suffolk, Earl of, 71 (note)

Talbot, Sir John, expedition of, 53

(note)
Tanaist, 8; election of, ibid.
Tanistry, ibid. ; final abolition of, 67,

69
Taurcrech, 25
Tenancy at will fostered by Penal and

Commercial Codes, 87, 90
Tenant-right, in Ulster, 117—123; de-
finition of, 119 ; value of, ibid. ;

League, 122
Tenants at will, native race reduced to,

90; no growth of customary rights

in case of, in Ireland, 90, 91 ; origin

and growth of, 105, 106
Tenant's view of his rights in the land,

133
Tenants, favourable position of under-,

Acts of 1870 and 1881, 171
Tenure and Improvement of Land

(Ireland) Act, 130

INDEX.

191

Tenures, Feudal, introduction of, 40 ;
substitution of English for Irish, 67
et seq.; influenced by political mo-
tives, 94, 99, 101, 104, 105, 107

Termon lands, 24, 31

Three F's, the, 159

Tithe Agistment Act, 93 (note)

Tithe farmers, 95

Tithes, ihid.

Tribal group, nature of the, 5

Tribal territory, divisions of, in early
community, 6, 24

Tribe, early Irish, 5; social division
of, 15, 18

Tribe-land, pasturage, 24, 33, 34;
arable, 24, 34, 35

Trinoda necessitas, the, 44

Tuath, 18, 24

Tyrconnel, Earl of, forfeiture by, 63,
73

Tyrone, Earl of, 62

Ulster, not subdued by Henry II. , 46 ;
theoretical confiscation of, in reign
of Elizabeth, 60 ; plantation of, 63,
64 ; scheme of plantation, 74, 75 ;
prosperity of settlers in, 64, 117

Ulster Custom, origin of, 73, 93, 117,
119, 220 ; nature of, 117—123, 140,

141; faults of, 121, 123; not suit-
able for legal enforcement through-
out Ireland, 122, 123 ; as affected by
Act of 1870, 139—142; as affected
by Act of 1881, 162 ; reported on by
Devon Commission, 119; reported
on by Bessborough Commission, 159

Union, passing of the, 102, 103

United Irishmen, 102

Villein tenures, growth of, in England,
91

Wales, laws of, 22

Warbeck Plots, 55

Wards and Liveries, Court of, 82 (note)

Wentworth (Earl of Strafford), 62, 77,

78
Whiteboys, 96

William III. landed in England, 83
Windsor, Treaty of, 46
Women, not entitled to inherit under

Brehon Law, 35
Worcester, Philip of, 48

Yearly tenancies, origin and growth of,

105
Young Ireland risings, 113

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POEMS OF BEHA ED DIN ZOHEIR OF EGYPT.

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GREEK AND LATIN CLASSICS, &c.

SOPHOCLES: The Plays and Fragments, with Critical
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Jebb, Litt.D., LL.D., Regius Professor of Greek in the University of
Cambridge.

Parti. Oedipus Tyrannus. DemySvo. New Edition. 12s. 6d.

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boundless industry to make this first volume a modern European culture, constitutes him an

pattern of editing. The work is made com- ideal interpreter between the ancient writer

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taste, without sacrificing precision to poetry of of Sophocles too warmly, and it is almost a

expression." — The Times. work of supererogation to praise it at all. It is

"Professor Jebb's edition of Sophocles is equal, at least, and perhaps superior, in merit,
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where, that we have judged this third volume from formally recognising once more the con-
when we have said that it is of a piece with summate Greek scholarship of the editor, and
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perhaps the most complete and elaborate edit- masterly tact and literary skill, and to his un-
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AESCHYLI FABULAE.— IKETIAES XOHOOPOI IN

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invaluable. Of the translation, it may be said sicht des Verfassers nicht der Schwerpunkt

that an English reader may fairly master by seiner Arbeit, sondern. "— Prof. Susemihl in

means of it this great treatise of Aristotle."— Philologische Wochenschrift.
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ARISTOTLE.— nEPl A1KA102TNHX. THE FIFTH

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THE CAMBRIDGE UNIVERSITY PRESS, 15

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MATHEMATICS, PHYSICAL SCIENCE, &c.

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