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Lecture IV













The Tribe and the Land













    It has been very commonly believed that; before the agrarian






measures of James the First; Ireland was one of the countries in






which private property in land was invested with least






sacredness; and in which forms of ownership generally considered






as barbarous most extensively prevailed。 Spenser and Davis






certainly suggest this opinion; and several modern writers have






adopted it。 The Brehon law…tracts prove; however; that it can






only be received with considerable qualification and






modification; and they show that private property; and especially






private property in land; had long been known in Ireland at the






epoch to which they belong; having come into existence either






through the natural disintegration of collective ownership or






through the severance of particular estates from the general






tribal domain。 Nevertheless it cannot; I think; be doubted that






at the period to which the tracts are an index much land was held






throughout Ireland under rules or customs savouring of the






ancient collective enjoyment; and this I understand Dr Sullivan






to allow。 (Introduction; p。 cxliv)






    Part of the evidence of the fact just stated is tolerably






familiar to students of Irish history。 At the beginning of the






seventeenth century the Anglo…Irish Judges declared the English






Common Law to be in force throughout Ireland; and from the date






of this decision all land in the country descended to the eldest






son of the last owner; unless its devolution was otherwise






determined by settlement or will。 In Sir John Davis's report of






the case and of the arguments before the Court; it is recited






that hitherto all land in Ireland had descended either under the






rule of Tanistry or under the rules of Gavelkind。 The system of






inheritance here called Gavelkind is thus described: When a






landowning member of an Irish Sept died; its chief made a






re…distribution of all the lands of the Sept。 He did not divide






the estate of the dead man among his children; but used it to






increase the allotments of the various households of which the






Sept was made up。 The Judges treated both Tanistry and Gavelkind






as systems of succession after death; of a peculiarly barbarous






and mischievous kind; and; as systems of succession; I shall






consider them hereafter。 But all systems of succession after






death bear a close relation to ancient modes of enjoyment during






life; for instance; in the Joint Undivided Family of the Hindoos;






the stirpes; or stocks; which are only known to European law as






branches of inheritors; are actual divisions of the family; and






live together in distinct parts of the common dwelling。






('Calcutta Review' July 1874; p。 208) The so…called Irish






Gavelkind belongs to a class of institutions very common in the






infancy of law; it is a contrivance for securing comparative






equality among the joint proprietors of a common fund。 The






redistribution here takes place at the death of a head of a






household; but if equality were secured by what is practically






the same process  viz。; re…division after a fixed period of






years  an institution would be produced which has not quite






died out of Europe at the present moment; and of which there are






traditions in all old countries。 At the same time i have no doubt






that; when the Irish Gavelkind was declared illegal; it was very






far from being the only system of succession known to Ireland






except Tanistry; and i th ink it probable that many different






modes of enjoyment and inheritance were abolished by the decision






giving the land to the eldest son。






    It was the actual observation of peculiar agricultural






usages; special methods of cultivation; and abnormal rules of






tenure; which mainly enabled G。 L。 Von Maurer to restore the






German Mark to knowledge; and it was by using Von Maurer's






results as his key that Nasse was able to decipher the scattered






references to the 'Agricultural Community of the Middle Ages' in






a variety of English documents。 I venture to think that this






class of observation has not been carried far enough in Ireland






to yield material for a confident opinion; but there certainly






seem to be vestiges of ancient collective enjoyment in the






extensive prevalence of 'rundale' holdings in parts of the






country。 Under this system a definite area of land is occupied by






a group of families。 In the form now most common; the arable






lands are held in severalty; while pasture and bog are in common。






But as lately as fifty years since; cases were frequent in which






the arable land was divided into farms which shifted among the






tenant…families periodically; and sometimes annually。 Even when






no such division was made; a well…known relic of the Mark…system;






as it showed itself in Germany and England; was occasionally






found : the arable portion of the estates was composed of three






different qualities of soil; and each tenant had a lot or lots in






the land of each quality; without reference to position。 What was






virtually the same system of tenure prevailed quite recently in






the Scottish Highlands。 I have ascertained that the families






which formed the village…communities only just extinct in the






Western Highlands had the lands of the village re…distributed






among them by lot at fixed intervals of time; and I gather from






Mr Skene's valuable note on 'Tribe Communities in Scotland'






(appended to the second volume of his edition of Fordun's






Chronicle); that he believes this system of re…division to have






been once universal; or at least widely extended; among the






Scottish Celts。






    It is to be observed that (so far as I am able to learn) the






Irish holdings in 'rundale' are not forms of property; but modes






of occupation。 There is always some person above who is legally






owner of all the land held by the group of families; and who;






theoretically; could change the method of holding; although;






practically; popular feeling would put the greatest difficulties






in his way。 We must bear in mind; however; that archaic kinds of






tenancy are constantly evidence of ancient forms of






proprietorship。 This is so in countries in which superior






ownership has arisen through the natural course of events through






purchase from small allodial proprietors; through colonisation of






village waste…lands become in time the lord's waste; or (in an






earlier state of society) through the sinking of whole






communities of peasants into villeinage; and through a consequent






transformation of the legal theory of their rights。 But all this






process of change would be gravely misconstrued if it were






supposed that; because a Chief or Lord had come to be recognised






as legal owner of the whole tribal domain; or of great portions






of it; he therefore altered the accustomed methods of occupation






and cultivation; or (as some would even seem to think) he began






at once to regard the occupying peasantry as modern lessees or

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