' acres

method almost universally followed to facilitate this frequent division (especially of arable land) has been to divide the common fields of a community into a vast number of small pieces-larger or smaller -a number of which could be allotted to each household, scattered all over the fields to insure equality in the allotment. So, speaking roughly as regards the arable land, open fields, divided up into acres,' became everywhere the mark of peasant tenures; and the scattering of the pieces of which it was composed became the mark of a peasant holding.

6

Further, certain general economic facts have everywhere ruled the historical development of the peasant holdings, and produced the peculiar legal rights arising out of them. For law, it must not be forgotten, is the creature of facts. Its business is to recognise facts. It sometimes tries to control them, and rightly where it can. But unless the facts follow or coincide with the law, the attempt to control them is idle and futile. As Abraham Lincoln once said, Law which does not carry facts with it is like a pope's bull against a comet.' In the absence of capital necessity excluded contract. The peasant population were upon the land, must live upon the land, and could not be removed from the land. It had been from time immemorial under an overlordship claiming from it tribute and services. Long custom had fixed the services and sanctioned the permanence of the tenure. The law had followed the fact and sanctioned the custom. With permanence of occupation grew up habits of practical ownership; and when, for many generations, everything on the peasant holdings had been done by the tenant, the element of ownership became more and more completely recognised. At last, when the necessity came for the law to deal with the result, and to arrange a severance between the shares in the joint ownership of the landlord and the peasant tenant, invariably the law followed the fact and gave the tenant the right to buy out the landlord's interest, and so enfranchise his holding. In England the same evolution was passed through as in other countries, only it took place centuries earlier than in other countries. In England the copyholder was the last survivor of the peasant tenant, and enclosure and enfranchisement generally went together, throwing the scattered pieces of which his holding consisted into one lump, so that he came out of the process a freeholder of a block of land smaller than his original holding, but, at the same time, freed from manorial rights. By the same process the landlord's estate was limited to his demesne land, while his demesne itself was enlarged.

There is no mystery in the various stages of this process, and it will be seen that contract did not enter deeply into any one of them. Economic facts, and the necessities arising out of them, ruled the course of the history, and the law gradually following the facts threw its weight into the scale, which long custom had weighted in favour of the ultimate enfranchisement of the peasant tenant.

Such has been the economic history of peasant tenures in Russia, Germany, France, and England. Contrast with this the parallel history of the tenant farmer' of the English type, and then the distinction between the two classes will be clearly manifest. He has grown

The tenant farmer' is the creature of contract. up not on the open field of the peasant land, but upon the demesne land occupied by the lord himself, which was not subject to peasant tenures. This lord's demesne did not go with the peasant land into villenage or serfdom, and so never needed enfranchisement. The tenants upon it were free tenants (libere tenentes), and not peasant or villein tenants. And the economic history of the tenant farmer' is simply this. The owner ceasing to care about tilling his own land, let or farmed it out under a contract to a tenant who had capital, and made agriculture a trade. It was a new and temporary commercial tenure created afresh every time there was a change of tenancy, and the legal rights of the tenancy were settled and fixed afresh each time within the four corners of the contract. economic facts which produced the prevalence of tenant-farming in England were the depopulation of the Black Death, the breaking up of serfdom, the growth of capital, the substitution of wages for services and the consequent economic division which grew up between the ownership of land, capital, and labour. These facts produced the 'tenant farmer,' and the reason why in England the area under 'tenant farming' and the individual holdings are so large, is that economic laws have' favoured first the accumulation of capital and land in few hands, and then farming on a large scale.

The

Now there are tenant farmers in Ireland of this modern English type, wherever peasant tenures have been cleared away and the land has been let on the English system under a commercial contract to a man with capital. No one doubts this. But turning to the Irish peasant tenants, the question arises why the course of economic. evolution in their case has not followed the same lines as those which have ruled the economic history of all the other peasantries of Europe, converting them into peasant proprietors.

There must have been good reasons for this, and they ought to be clearly understood by all who wish to comprehend the meaning of the present crisis.

The main peculiarity in the economic history of Ireland and Irish tenures arose from the fact that until the sixteenth century English law and English tenures were in force only within the pale. Outside of it, in Ireland proper, Irish tenures remained untouched. And the curious result was that these Irish tenures, with those of the Scotch Highlands at the same period, were remarkable as the latest European survival into modern times of the ancient system of the tribal ownership of land by chieftains and septs. The same system once prevailed in Wales, and it had probably once prevailed all over

"Britain before the Saxon conquest effaced it. But it had continued in Ireland for 1,000 years longer than it did in England. Let us try to realise what this form of land ownership or occupation was in the days of James I.

In the first place what was a sept? A curious example of an actual sept occurs in the State Papers of James I.,' and it shows that a sept was a community of blood relations using one surname and holding together under one chief.

In 1606, the whole sept of the Greames' (Grahams) under their chief, Walter, the gude man of Netherby,' being troublesome on the Scottish border, were transplanted from Cumberland to Roscommon; and in the schedule to the articles effecting this transfer, it appears that the sept consisted of 124 persons, nearly all bearing the surname of Grame. They were divided into families, seventeen of which were set down as possessed of 20l. and upwards, four of 10l. and upwards, six of the poorer sort, six of no abilities, while as dependents there were four servants of the name of Grame, and about a dozen of irregular hangers on to the sept.

The sept was a human swarm. The chief was the Queen Bee round whom they clustered. The territory occupied by a whole sept was divided among the inferior septs which had swarmed off it. And a sort of feudal relation prevailed between the parent and the inferior septs.

Their main wealth consisted in cattle, and the allotment by the chief of each sept of his surplus cattle among the members of his sept, or strangers introduced into it, cemented their relation to him. So also did the system under which the chief put out his children to foster among his followers. But personal as was in this way the relation between the chief and sept, there was also an intimate connection between the sept system and its land divisions. The sept fitted into its territory like a snail into its shell.

Throwing aside Irish terms, it may be said roughly that the homesteads were in clusters of four or six, and that each of these clusters was the fourth of a larger cluster or townland-the whole territory of a sept consisting of so many townlands. The townland was probably the unit of common occupation, and the arable land within it was divided by the chief among the families or homesteads periodically, according to ancient traditional rules. This process was aided by the division of the open common fields, as already described, into ridges or acres, which admitted of easy distribution among the family holdings, according to the arrangement still known as 'run-rig,' 'rundale,' or 'runacre.' This method had been followed for probably 1000 years. Documents supposed to have been composed in the tenth century2 represent Ireland as in the sixth or seventh century divided into 184 septs, occupying 5,520 townlands divided into quarters, each of which contained six households or homesteads, making the

11603-6, p. 554.

2 See the third volume of Skene's History of Celtic Scotland, p. 155.

total of the latter 132,480, and suggesting a population of about threequarters of a million. In 1598,3 the number of townlands was stated at 6,814, which would make the number of homesteads 109,000 at four homesteads to the quarter, and 163,000 if there were six. According to a survey of the county of Monaghan taken in 1591,' the townlands in that county were found to be divided into quarters, each of which was a cluster of four tates or homesteads. The names of the occupiers are also given, and they are evidently blood relations sharing the same surname, like those in the sept of the Greames from Cumberland. This curious actual division of the townlands and arrangement of the homesteads in clusters of four, together with the division of the fields into ridges, was what facilitated the frequent redivisions of the lands of the sept and of the common fields amongst the members of the sept according to their families and the degree of their relationship to the parent stock.

At the same time the intimate relation between sept and chief was kept up by their sharing the same wild life, and living in the same simple kind of cabin, as well as by the blood relationship between them. The relation between them was not that of landlord and tenant, but the chief claimed his gifts of food according to his needs, and lived upon his followers according to his will and pleasure. The chief had further his own lion's share in the tribal land on which his cattle were herded, and the homesteads of his own immediate servants located.

This was the system of land occupation under which Ireland was occupied by the Irish septs down to the time of James I.-a system to which separate ownership and the relation of landlord and tenant were equally foreign. It was a system as widespread as their race, and deeply engrained in their national character by the traditions of 1000 years. To tell the Irish, therefore, to suddenly change this system, to adopt English social arrangements, and to adapt themselves to English law, was to tell them to do something against their nature and beyond their power. To speak plainly and to put the case strongly-too strongly, indeed, in degree, but not too strongly to make plain the principle involved-it was like telling bees no longer to swarm, but in future to gather honey each on its own hook, building its separate cells apart by itself instead of in the hive. In spite of English mandates and English laws, the Irish still show the inherent propensity to swarm and to build their cells in the ancient hive. They still cling with hereditary tenacity to the land of their sept, and insist upon settling-one might almost say sprawling-their families upon it, in spite of law and landlords.

But to return to the times of James I. To his law officers belonged the difficult task of converting these Irish tenures into their 'Hogan's Description of Ireland in 1598.

• Inquisitiones Cancellaria Hiberniæ, ii. xxi.

* See Sir John Davis's Historical Tracts, London, 1786; Mr. Skene's Celtic Scotland, vol. iii., and the prefaces to Ancient Lars of Ireland. Compare the system described in the Ancient Laws of Wales.

supposed English equivalents. The interest of the problem and of their method of solving it lies in the question: How they concluded to treat the inferior members of the sept, whether as tenants at will of the chief as if they were English tenant farmers, or as entitled to permanent fixity of tenure such as that possessed by English copyholders and the serfs of Continental manors.

Sir John Davis was the Attorney-General of James I. He it was upon whom the difficult task devolved; and therefore no better evidence than his statements could possibly be quoted.

He soon found out the double difficulty which lay in his way. (1) The chief was not, properly speaking, a landlord, and (2) the inferior members of the sept were not, properly speaking, his tenants. How then could the English law of absolute ownership or of landlord and tenant be made to apply?

He explains this double difficulty thus:

1. By the Irish custom of tanistry the chieftains of every country and the chief of every sept had no longer estate than for life in their chieferies, the inheritance whereof did rest in no man. And these chieferies, though they had some portions of land allotted unto them, did consist chiefly in cuttings and coscheries and other Irish exactions, whereby they did spoil and impoverish the people, at their pleasure. And when their chieftains were dead their sons or next heirs did not succeed them, but their tanists, who were elective, and purchased their elections by strong hand.

2. And by the Irish custom of gavelkind the inferior tenancies were partable amongst all the males of the sept; and after partition made, if any one of the sept had died his portion was not divided among his sons, but the chief of the sept made a new partition of all the lands belonging to that sept, and gave every one his part according to his antiquity.

These two Irish customs (Sir John Davis continues) made all their possessions uncertain, being shuffled and changed and removed so often from one to another by new elections and partitions, which uncertainty of estates hath been the true cause of such desolation and barbarism in this land.

The attempt to substitute English tenures instead of these Irish tenures had never yet been made throughout Ireland. The attempt had only been made in former reigns in isolated cases, and the system on which the change had been attempted in these cases seemed to the Attorney-General of James I. a mistaken one.

For although that in the twelfth year of Queen Elizabeth a special law was made which did enable the Lord Deputy to take surrenders and regrant estates unto the Irishry, yet were there but few Irish lords that made offer to surrender during her reign; and they which made surrender of entire countries obtained grants of the whole again to themselves only, and to no other, and all in demesne. In passing of which grant there was no care taken of the inferior septs of people inhabiting and possessing these countries under them, but they held their several portions in course of tanistry and gavelkind, and yielded the same Irish duties or exactions as they did before. So that upon every such surrender and grant there was but one freeholder made in a whole country, which was the lord himself. All the rest were but tenants at will or rather tenants in villenage, and were neither fit to be sworn on juries nor to perform any public service. And by reason of the uncertainty of their estates they did utterly neglect to build or to plant or to improve • Sir John Davis's Discovery of Ireland, 1612, p. 167.