HISTORY OF LAND TENURE IN IRELAND
English Land-law in Ireland
Your Comments Please
Henry's visit to Ireland was more from fear that the Normans, who had conquered parts of the country for Diarmuid McMurrough, would set up rival Norman kingdoms, independent of himself, than from desire to add Ireland to his conquests. However, his claim to the land of Ireland was threefold:
- A Papal Bull of Adrian IV, (the only English Pope) granted him the land of Ireland. (The popes at that time claimed temporal as well as spiritual authority. Specifically, the Pope claimed the land of Ireland under grant,- now known to be a forgery,- from the Roman emperor, Constantine the Great, of the Western Islands, although Ireland had never been part of the Roman Empire. The pope was not happy with the Church in Ireland, the Brehon marriage laws, the constant warring between factions, nor the absence of centralised authority acknowledging the pontiff's supreme authority).
- Most of the kings of Ireland, (but not the High King), attended Henry's court in Dublin and acknowledged him as overlord. While Henry understood this to give him the land of Ireland as their feudal overlord, to the Irish kings this was a temporary little arrangement of paying homage to the great man, who would shortly leave the country and let them resume political life as they had known it before. Doing battle with his army was totally pointless, (different from doing battle with Diarmuid McMurrough's Normans, who were actually taking control of the land).
- Right of Conquest: Henry claimed the land conquered by his subjects, Diarmuid McMurrough's Normans, and, in fact, redistributed the conquered lands, stripping Strongbow, for example, of much that he had conquered and putting the cities under the control of his own trusted followers. He, also, allocated large segments of Ireland to other Norman soldiers, who were, thus, given authority to conquer and take control of these lands for Henry.
Top of Page
As Henry II had done before him, Henry VIII took a surrender of their
lands from the Irish kings (by this time called "Taoiseach",- or
"Chieftain" instead of "Rí",- or
"king"), and re-granted their lands back to them as "Earls". The English
laws of succession were subsequently supposed to apply; for example, the
eldest son, as heir at law, succeeding to the title. This gave rise to
internal clan conflicts as the successor chosen by the clan sometimes
competed with the successor according to English law.
Top of Page
In the subsequent centuries, the majority of the land of Ireland became subject to multiple incidents of forfeiture, as the land of the leaders of the various rebellions were declared forfeit and then regranted by the crown to others.
Top of Page
The statute of Quia Emptores (1290) abolished Sub-Infeudation in
England. (This was the granting of a "fee upon a fee", where a
freeholder could sub-grant an estate of freehold subject to a rent). As
the conquest of Ireland was only beginning at this time, the statute
was excluded from operation in Ireland, and Sub-Infeudation continued. Two forms of sub-grant of freehold became common:
- Lease for Lives, renewable forever: this being a freehold because it lasted forever;
- Fee Farm Grant: a grant in fee simple subject to a rent and covenants.
The use of the first of these was prohibited by the Renewable
Leasehold Conversion Act, 1849, but the second remains a valid form
of conveyance to this day. In addition to the rent and covenants,
mines and minerals were often reserved to the grantor.
Top of Page
By the beginning of the 17th century the courts recognised only
such interests in land as would arise under the English law, i.e.,
estates held by sole owners, tenancy in common, joint tenants and
coparceners. The Gavelkind case, 1605, and Tanistry case, 1607, decided
that the Irish customs of land devolution were no longer legal. Lands
held in common grazing were now in the absolute
ownership of landlords, who allowed the tenants of individual
tenant-holdings to graze the commonage.
However, the tenants, particularly in the west of Ireland, continued to abide by the old customs, forming a second nation which Daniel Corkery dubbed the "Hidden Ireland." The tenancies were subdivided among the children of the tenants and even re-distributed in accordance with the old traditions. The landlords were often confused and unsure as to who exactly were the tenants and as to the boundaries of their properties, (or "townlands"), these fluctuating in accordance with the settlement patterns. A tenant evicted by a landlord would often reappear as a subtenant of another tenant of the townland. In between the anglicised landlord and the tenants, there were multiple layers of intermediate landlords. The population of the country increased threefold in the century preceding the Great Famine (1846 to 48), many areas of the west becoming congested, holdings often consisting of less than 5 acres.
After the Famine many townlands were cleared or greatly reduced in population by mass evictions. Many landlords also restructured their estates by dividing up land formerly held in common grazing and allocating them to individual tenants.
Commonage remained mainly in mountains or bogs. When the commonage
lands were acquired by the Irish Land
Commission for allocation of the freehold to the tenants, they
were re-granted to the former tenants either as grazing rights or as
a tenancy-in-common, or occasionally divided into individual lots. Thus,
the problem of customary tenure does not now arise, all land being held
in the tenures defined by English law.
Top of Page
Ireland became quite prosperous during the 18th century, the first century of peace since the Norse raids began around 700. Although they formed the bulk of the population, Catholics were excluded from Parliament and in theory were not allowed to own land. The protestant Irish Parliament achieved considerable freedom towards the end of the century, particularly succeeding in removing restrictions which had been put on Irish trading. The growing prosperity was looked on with jaundiced eye by the British Government, who, at the turn of the century, induced the Irish Parliament, through bribery of its members, to abolish itself and enact an act of Union with Britain.
The Union was economically disastrous for Ireland. The rapidly growing population was reduced to poverty and became reliant entirely on the potato for sustenance. It was said in Britain that Ireland was a country of beggars and Daniel O'Connell, (popular Catholic leader and Barrister), was the king of the beggars.
Daniel O'Connell led a popular movement for the repeal of the Act of
Union, holding monster rallies all over the country. A great mass rally
was planned for Clontarf, site of the victory of Brian Boru over the
Norsemen. Over a million people were expected to attend. However, the
British government proscribed the meeting and deployed troops to prevent
it taking place. O'Connell, fearing bloodshed, cancelled the meeting and
the Repeal Movement fizzled out.
Top of Page
Your Comments Please