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 conception 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 strengthening 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 historical2. The former3 traces them to grants from the lord; while according 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. 2 See an article by Mr Scrutton in Law Quarterly Review 1887, also Mr Scrutton's Yorke Prize Essay on Commons and Common Fields.

3 For an ingenious advocacy of which see Seebohm's English Village Community. See also Blackstone, Vol. I. p. 92. 4 See Digby's History of Real Property Law, 3rd ed. p. 155 et seq.

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 preexisting 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 waste3.

(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 Law showing the existence of common ploughing.

3 These rights in their inception probably resembling common pur cause de vicinage.

2

c. 33.

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 chief's demesnes) as non-existent, the difference between the two views of the same system is certainly remarkable. The truth lies probably 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 included, 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 consisted 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 Village Community, p. 219.

English critics of the Brehon system, headed by Spenser1, 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 century 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 represented 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 chieftaincy, 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 dependence, 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 tone in Spenser's View of the State of Ireland, though it bears every trace of being in the main a truthful statement. He was himself a colonist (receiving an allotment of some 3,000 acres on the plantation of the Desmond estates) and it is not unlikely that he

was embittered by the failure of his venture. A striking proof of the upheavals of society undergone on the resettlements of Irish land is found in the fact that a descendant of Spenser was ejected from this allotment under the Cromwellian settlement.

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 obligation 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 development of the same custom is found in the coyne and livery3 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,' 'Gilleninny,' 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 confined 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 Bur and Bonaght Beg, the former being at the discretion of the lord, the latter according to agreement. Ware, Vol. II. p. 74.

2 Maurice Fitz Thomas is stated to have been the first of the English to impose this tax, doing so in the time of Edward II.

3 John Cottrell was put to death "because he had introduced and practised many grievous, foreign and intolerable laws."

4 Notice also a provision of drink termed satellitum poturae,' the exactions termed 'Cuddies' and 'Shragh and Mart.' Ware, Vol. 11. p. 74 and 75.

5 In the reign of Elizabeth we find