individual's own labour, or when it has been cleared and enclosed for grain growing or meadow, or where it had been manured, the amount which he may dispose of is far greater. The law is not for the common man only. The chief is not exempt from the social obligations.

As an example given in the Irish laws, 23 the boaire chief may leave one-third of his acquired property as he pleases, or "if it be the land that grows it, i.e. and in right of urine or manure he obtains the land, he can dispose of half." The free ceile pays a small sum for the dung of the animals loaned 24

By the Welsh laws, 25 Ven. II. xvi., no one is to retain gardens in his possession on account of having manured them for more than one year; for they are to be manured every year; but he may (10) apparently retain a fallow for two years, (11) a field where cattle lie and ley-land the same, (13) yard dung land three years, and (14) cardung woodland and manured fallow four years. After these times apparently the land is again shared out, "it is to be ploughed," (17) which refers to cleared woodland.

The feudal law of England since 1884 inclines to follow the tribal custom of tenants' unexhausted improvements.

The Geilfiné. -For land which had fallen under personal ownership, a system of distribution and descent among the members of a family who were nearest in blood to the chief, or prime stock, called the Geilfiné, is disclosed in the Irish laws, of which the particulars are very obscure and the opinions of experts very contradictory. As I have been unable to satisfy myself that I had any clear conception of what this system is, or that the very learned editors of the Brehon laws and other scholars had arrived at any definite conclusion, I have not burdened this book with further reference to it. I refer to La Famille Celtique, by M. d'Arbois de Jubainville, and the prefaces to the volumes of the Ancient Laws of Ireland, especially volume iv. Our authorities for these customs of alienation and inheritance before the influence of Rome modified the communal society are almost wholly Irish and Scandinavian. The Scottish Highlands, though undoubtedly governed by the same customs, show us almost no written records previous to feudal

ism. The tenures existent in Fordun's time, the demesne of the Crown, the church lands and feudal tenures, says Skene, speaking of a remark of Fordun's about thanages in book IV., chap. xliii., only show traces of an older system. Wales again falls early under the influence of feudal and Roman ideas. The ecclesiastical law 26 says that the eldest son is to have the patrimony, but the law of Howel adjudges it to the youngest son as well as the eldest, including bastards.

NOTES.-1 See P. and M., ii. 247; and Hist. of Mon. of Abingdon, P. and M., ii. 202, as to the consent of children who were next of kin. 2 Canute's Laws, ii. 70, Thorpe; and see Glanvill, vii. 1. 3 T.A.C.N., viii. 5. Neither fiez de hauberc nor sergeanty nor barony can be divided. 2. The eldest son takes the fief. The other brothers have the eschoites (immovable hereditary property susceptible of division). If the eschoites are of more value than the feudal tenancy the eldest son can choose to equalise values. 4. If there were no eschoites the eldest takes the fief and supports his brothers in "leur vivre ou en mariage ou en autre maniere." 5. The vavassories and li vilain tenement (laicum tenementum) and burgages are partible by custom. 4 Not the cwide. See P. and M., vol. i. 5 Ordericus Vitalis. face of this it is difficult to believe that even a ministry with so little sense of imagination as the "Liberals" of 1915-16 should offer the title of Tara to a Scottish peer who was neither an Irish freeman nor an Irish Ardri, but a pure foreigner. 7 Letter to the Earl of Salisbury, 1607. Stockdale, 1786, p. 262. 8 S.P. Forest, p. 25, Selden Soc. 9 See Sir John Davis, Rep., pp. 29, 49; Hil. 3 Jac. Le Irish Custome de Gavelkind and Hil. 5 Jac. Le Cas de Tanistry. 10 A.L.W., Ven. II. xii. 1-5;

6 In the

A.L. Irel., iv. 69–75. 11 A.L.W., Ven. II. xv. 8; A.L. Irel., iv. 287. 12 See A.L.W., Ven. II. xii. 1–5. 13 i.e. lands which, says note, A.L.W., Ven. II. xii. 6, are the bond maenols which are subject to supply the king. 14 A.L. Irel., iv. 69–75. 15 A.L.W., Ven. II. xiv. 16 Johnston's Introd. to Orkney and Shetland Records. 17 A.L. Irel., i. 45. 18 A.L. Irel., iii. 417. The owner of a dog is liable for its trespass if he knowingly tied it to a hollowed withered stake. 19 A.L. Irel., iii. 47-51. Maintenance by the foster son, ibid., 53, line 3 et seq. 20 A.L. Irel., iii. 53, 55. 21 A.L. Irel., iii. 45. He who buys and has not sold is capable of grants out of his own acquired wealth, but he leaves the property of the tribe intact. Comm., But he leaves-i.e. but that he leaves their right to the tribe entirely and completely, i.e. the onethird, or an equal quantity of other land. As I understand this, the one-third refers to the acquired wealth. Ibid., ii. 283. He is not to sell or alienate his tribe land. Comm., i.e. the whole of it, i.e. or release it in favour of an adopted son of an extern tribe. 22 A.L. Irel., iii. 47, 51. 23 A.L. Irel., iii. 49, 51. 24 A.L. Irel., ii. 201. 25 A.L.W., Ven. II. xvi. 9-17. 26 A.L.W., Ven. I. xii. 2.

CHAPTER XIV

ALIENATION AND INHERITANCE-continued

PASSING to the individual use of land by private persons as such, the Brehon law text summarises the principle as that "no one should grant land except such as he has purchased himself, unless by common consent of the tribe (group family), and that he leaves his share of the land to revert to the common possession of the group family after him." 1 "The proper duties of one towards the tribe are that when he has not bought he should not sell."

But it is implied that he may mortgage his family land: everyone is wealthy who keeps his tribe land perfect as he got it, who does not leave greater debt on it than he found on it"; "no person should leave a rent upon his land or upon his tribe which he did not find upon it."

Under any system of common culture the right of alienation must have been much restricted, as the buyer took it under the obligations entered into by the community, both in respect of the cultivated strips and of the rights exercised over the waste. All dealings with land had to consider the effect on the waste and on the easements over the waste which attached.

Gavelkind. This form of inheritance to land, by which it was partible among all the males, in default among daughters, was called Gavelkind. We meet with it not only

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in Ireland, where it exists in the archaic form in connection with the repartition of lands among the members of the sept, but in various other parts, especially in Kent, where the lands descended to the males of the family proper. Littleton, 2 writing “De Tenure appel Gavelkind deins l'County de Kent," adds, auxy tiel custome est en auters lieux Dengleterre et auxy tiel custome et North Galles," etc. A note under the words North Galles says that the custom existed in Wales, as in England, "a tempore cujus non existatit memoria." The learned Mr Elton, in his Kentish Tenures, mentions numerous places, such as Chester, many parts of Norfolk and Suffolk, Taunton Dean and other parts of Somerset, Gloucester,

Wareham in Dorset, Usk in Wales, etc., where a tenure called by this name is found. As a matter of fact, it is practically identical, except that it excludes females, with the odal holdings of the Orkneys, the distinction being that in the Irish form we see the archaic society in which the group family has not yet given way to the immediate family of father, mother, and children. One connection between the Kentish and the Welsh gavelkind is the allotting to the youngest son of the tyddyn or homestead on division.3

"La Résolution des Justices touchant le Irish Custome de Gavelkind" is not only an exposition of this custom of partition and inheritance of land, but it also gives a description of the communal society which I have endeavoured to depict here as it affects the occupation of the land, and sets out the reasons or excuses for the abolition of the custom. It is of sufficient value to be quoted at length, substituting generally for the expression Irish or meer Irish, primitive peoples, Teutonic or Germanic, if you like.

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First, it is to be known that the lands possessed by the meer Irish within this Realm were divided into several territories or countries, and the inhabitants of every Irish country were divided into several septs and lineages.

Secondly, in every Irish territory there was a lord or chieftain and a Tanist who was his successor apparent. And of every Irish sept or lineage there was also a chief who was called a canfinny (ceanfiné) or caput cognationis.

"Thirdly, all the possessions within these Irish territories (before the common law of England was established in this Realm as it now is) ran always either in course of tanistry or in course of gavelkind. Every seignory or chiefry, with the portion of land which passed with it, went without partition to the tanist, who always came in by election or strong hand and not by descent; but all the inferior tenancies were partible between the males in gavelkind.

"Yet the estate which the lord had in the chiefry or which the inferior tenants had in gavelkind was not an estate of inheritance, but a temporary or transitory possession. For as the next heir of the lord or chieftain was not to inherit the chiefry, but the oldest and worthiest of the sept, who was

often removed and expelled by another who was more active and strong than he " (as William Rufus expelled Robert, Stephen Matilda, John Arthur, etc.), "so the lands of the nature of gavelkind were not partible among the next heirs males of him who died seised, but among all the males of his sept in this manner.

"The canfinny or chief of a sept (who was commonly the most ancient of the sept) made all the partitions at his discretion; and after the birth of any ter-tenant, who had a competent portion of land, assembled all the sept, and having thrown all their possessions into hotchpot, made a new partition of all; in which partition he did not assign to the son of him who died the portion which his father had, but he allotted to each of the sept, according to his seniority, the better or greater portion.

"These portions or properties being so allotted and assigned were possessed and enjoyed accordingly until a new partition was made, which at the discretion or will of the canfinny was to be made on the death of each inferior tenant. And so by reason of these frequent partitions and removals or translations of the tenants from one portion to another, all the possessions were uncertain; and the uncertainty of the possessions was the very cause that no civil habitations were erected, no enclosure or improvement was made of the lands in the Irish countries where this custom of gavelkind was in use, especially in Ulster, which seemed to be all one wilderness before the new plantation made by the English undertakers there." 4

The judges go on to point out differences between Irish and Kentish gavelkind, one being that in Kent the wife is endowable of a moiety. The Irish custom, they say, was agreeable to the custom of gavelkind used in North Wales. 5

Spenser, in his View of Ireland, tells us that the descendants of the men who submitted to Henry VIII. refused to acknowledge the submission because their fathers had only a life interest in the lands.

By way of trying to force the Irish Roman Catholic to pretend to abjure his religion, 17-18 Geo. III., c. 49, sect. 1, enacts that lands of papists in Ireland are descendible according to the course of the common law, i.e. in gavelkind, unless