i.e. family rights were only recognised among freemen. It was, in fact, a chief distinction here between free and unfree men that on the death of an unfree man his land fell back into the common stock of the community, instead of being divided among his immediate descendants even unto the third and fourth generation.

Each member of the community so given temporary possession of land gave, say the Irish laws, 14 to the others pledges of indemnity from disturbance, pledges symbolised by placing an article of small value on the rack pins at the foot of the other's bed. The chief object of this indemnity was to secure that the joint fences of the common lands should be properly kept up by the individual members of the family, as the family were responsible as against outsiders if any one member did not do his share of fencing. See below, Chapter XX.

However the customs as to the succession to the common lands of the community might vary in the Islands, they were subject to the principle that there could be no personal succession to community land, and therefore no necessity for any rigid rules of distribution, the unwritten custom, the corus finé, providing for its transmission. The idea that any one man could so absolutely own the land of the tribe, sept, or family, that he could direct the enjoyment of it after he had ceased by death to make use of it himself, was unknown in the Islands unless by way of exception. Where the tribe or group family was the unit, the children, though they took a certain specified share, did not by any means necessarily take the share of the parent: a fresh division was made. The tribe lands on the death of a member were to revert to the tribe.

If there were no buildings, the land is divided by seniority; if there are buildings, the youngest son takes the father's homestead, as being the most likely to be yet under age, and not yet fit to go forth to war. Buildings, which were generally wooden huts, were not divided.

This customary devolution of land, the land being held in joint occupation through several generations, meant that pedigrees had to be carefully kept, a matter of much amuse

ment to the commercial Englishman, who had forgotten the necessities of its origin. The claimant of land by kin and descent 15 must show his kin and descent, "and if he be a fourth man he is a proprietor."

Possession of titled land for four generations gives a claim to the soil. If he lives out of the country, his rights enure to the ninth generation. In Orkney 16 five generations had to be traced back to claim odal right. The law required these genealogies to be proved in court. Families had oral genealogies going back for centuries, handed down from father to The Senchus Mor 17 says that Patrick left to the poets, i.e. the Brehon lawyers, extemporaneous recital, because it was acquired through great knowledge and application; and (also the registering) of the genealogies of the men of Erin. It would be plainly part of the business of the poet lawyer to commit to memory the pedigrees on which inheritance to land would depend.

son.

Throughout the sixteenth and seventeenth centuries, and in the Western Highlands in the eighteenth, when the feudal system had fully spent its force as a military agency, the chiefs of all the communal societies were being tempted and coerced as the representatives of the tribes to a surrender of the tribal common lands to the government, to take them again as an individual grant to the chief by feudal land law, thus destroying the customary holdings and vesting the tribe lands absolutely in the chief as feudal tenant of the Crown.

I pause here to describe a good example of the customary devolution and user of community lands, a late instance from Irish history, while this process was going on.

In the Calendar of State Papers, Irish series, p. cxxx, 1587, June-August, on 8th June there is a note describing the ancient custom of division of lands, time beyond the memory of man, among the O'Sullivans of Beare and Bantry. The proper inheritance of land belonging to the O'Sullivans is fifteen quarters, every quarter containing three plough lands. The one-half whereof was by ancient custom allotted to the O'Sullivan, lord of the country for the time being. The other half to be divided and distributed among the worthiest and best of the name, as cousins and kinsmen to the lord, as a

portion to live upon, viz. to the Tanist, the best part of the said one-half, which is two (? four) quarters, every quarter containing three plough lands. To the second eldest next the Tanist, which is Donnel O'Sullivan, the plaintiff, there is allotted of the said one-half six plough lands, and so the rest to be divided among the other kinsmen. But it is to be understanded that this order was in some times altered, and so ought to be according to the custom of the country, that is, according to the diminution or increase of the said name of the Sullivans, which alteration should be when the name should augment; then everyone's portion were diminished to give living to the newcomer; and if the name were diminished, then the portion of the deceased to be divided among the outlivers. But the lord's portion, which is the first half, did never alter, but continued still to be O'Sullivan for the time being. The lord hath also four quarters of land belonging to his manor of Foyd, and this, with half the fifteen quarters aforesaid, is all the land the lord hath in his own possession, howbeit he is chief lord of all the country. There are twenty quarters more in the country, which is the lord's too, but they be allotted to other cousins and kinsmen as their shares of old ancient custom to live upon, paying his rents to the lord, which is but little worth nowadays (here follows particulars of the tribesmen), and every one of them hath his share thereof, paying his rent to the lord for the time being, and at the lord's pleasure he may take the land out of their hands if they had not paid the rent, which in old times was the cessing of his men of war, as galloglasses, kerne, horsemen, and such like, besides to pay all his charges whensoever he would come out of his country to any town or city, to sessions, term, service of his prince, and such like, etc.

There is also belonging to O'Sullivan two principal castles as his chief manors, or dwelling, in Beare and Bantry. In Beare the chief manor of Dunboye, alias Bearehaven Castle, of which he carrieth his name of O'Sullivan Beare. In Bantry, the manor of Foyd, and another castle builded by Sir Owen's own father, called Carrig in Assyg; the which three remaineth in the possession of the said Sir Owen. There is also a fourth castle, called Ardea, which is the manor, or house allotted

ever for the Tanist for the time being, and is now in the possession of Philip O'Sullivan, Tanist and brother to Sir Owen; but there was never seen a castle allotted to any other of the name.

The standing rent due to the O'Sullivan out or upon his country is but £40, and that itself was ever allotted to the lady for the time being towards her idle expenses, so as the country being no good farm land, but all valleys, cragged rocks and hills, can yield no great commodity, and therefore the O'Sullivan for the time being liveth only by the sea, and the commodity thereof, as his fishing, his wrecks, and such like, etc. And for the fishing, it is a thing uncertain, for some years; if fishing do fall upon the coast, then Dunboye is worth much; if fishing fail, it cannot yield profit.

For the ships and boats, the rents of them are but as the lord and they can agree, according as the fishing do continue all the season of the year, or fail, as sometimes it doth fail, within one month, etc.

The reason wherefore there is no reservation of rents upon those that hold the said land is, because they were to pay everything that the lord lacked from time to time, as debts, building of a house or castle, or marrying his daughter, or to supply the wants of his house, and such like, etc.

Individual Ownership gradually breaks in. --The prohibition of alienation of community land must have been broken into as soon as any individual was so bold or so base in a community of hunters and stockbreeders as to grow corn in the home pasture, or to tie his cow to a stump in an enclosed piece of wild grass.18 Individual ownership of land is alluded to in the earliest parts of the Brehon laws. It is found in the records of all parts of the Islands. It appears early or late, as corn-growing or commerce or Roman influence produce it; it can be traced slowly creeping in everywhere, and everywhere it brings with it feudal custom and primogeniture. The exceptions to the communal devolution are few at first, and dictated by the self-interest of the community.

When alienation of land is allowed at all it must be assumed, I think, that it is only a transfer from one member of the group family to another of his personal interest, and

that all conveyance to external purchasers was strictly prohibited. In early Irish, as in early English law, the tribesman may alienate his communal land for certain specified purposes connected with the welfare of the community: for future maintenance, 19 for rewards to those who had taken his protection, for support of the aged of the community or of his own parents, for gifts to the Church,20 for a preference to a favourite child, or for a marriage dowry. But with these exceptions it is only very gradually that any occupier can alienate land. He can only do so in the first instance when he has acquired the land by his own efforts, and then only as to part of it. Probably the decay of the communal society has proceeded very far when this becomes the rule. If and when such alienation is allowed, the most natural and equitable succession to these lands, in default of it, would be to a man's own personal family and not to the joint family.

How far the exception would be allowed at all would appear to have depended on the dealings by the seller with the communal lands. If he had accumulated property and so benefited the community, he was allowed to sell property; but if he had already sold to the extent allowed and had not purchased, his right to sell would be keenly watched and was questionable. It is assumed I take it that when he sells or gives, it is not outside the community, unless to the Church, but a grant to one within it whose status is such that he is able to buy and fit to receive.21 There would not be much harm done by transfer from one member of the same community to another.

But the power was accompanied by exactly the same qualification of necessity as in the Scandinavian customary law. If the gift was without necessity it was liable to be set aside. In case of great necessity he may, with leave from the community, give not only his acquired land, but communal land up to one-third of his share. In the Irish laws 22 little and great necessity are twice defined-that he could avoid it, and that he could not avoid it, and again as the purchase of a cow and horse, and a dearth.

Where the land is not community land alienated for specified allowed purposes as above, but has been obtained by the