Historical Overview

    

            Irish Celtic custom recognized no private ownership of real property.  Under the Brehon legal system, the tribe, or fine, held pasture land, waste land, and all arable plots collectively. Each sept, or sub-tribe, divided its allotted share of workable land among blood relatives.[1]  Individual land holdings were granted to sept members by the clan chief for cultivation purposes and redistributed at the end of each year.  The clan retained a right of reversion at the death of each sept member.  The chief held a life interest in his own portion and was prohibited from selling off any of the clan holdings.

            The Anglo-Norman invasion of Ireland  brought a feudal system of land tenure to Ireland’s shores.  Under the imposed, feudal system, the land belonged ultimately to the king and was divided among nobles and knights in recognition of their loyalty. Although initially the feudal structure and Brehon Law regarding the ownership of land existed side by side, in time the Celtic tradition was completely invalidated. 

            English settlers, led by the warrior Strongbow, had begun, by the mid-12th century, to settle in Ireland.[2]  By the late 12th Century, the inter-mingling of Norse settlers and native Irish had begun to worry the English Crown.  Eventually, Henry II decided to lead a massive invasion and formally settle Ireland in 1171.[3] It is noteworthy that the King sought papal approval for this maneuver, sending John of Salisbury to Rome to obtain the Bull of Adrian in 1155.[4] 

            The formal subjugation of Ireland was accomplished with the use of 460 ships under the command of Henry II.[5]  Landing at Waterford,  the King received the submission of the Irish kings and nobles which culminated in the Synod of Cashel.[6]  This assembly passed eight different constitutions dealing with ecclesiastical matters aimed at bringing the Church of Ireland into line with the Catholic Church’s practices in the West.[7]   

            Extending secular, English law to Ireland was another matter.  The common law system was still in its nascency; indeed, less than 90 years had passed since the march on Hastings.  Despite this fact, a Curia Regis was held in Lismore during Henry II’s stay during which the laws of England were officially accepted by those present.[8]  Despite this formality, the King sagaciously decided not to interfere immediately with much of the customary law which obtained in Ireland.  For this reason, remnants of Celtic Brehon Law survived until the 17th Century.   

            The conquest of Ireland did, however, result in the Anglicization of Irish land law.  The Celtic clan-based system of ownership was displaced as feudal land holdings were awarded to valued Norman-English military officers.  The country of Leinster was given to Strongbow in exchange for the service of 100 knights; the total knight service required from all Irish holdings was 427.[9]  Extensive sub-infeudation obtained, as in medieval England, allowing tenants-in-chief to enfeoffe many more knights that was needed to meet their feudal obligations.

            Large scale settlement of Ireland took place during the reign of James I (1603-25).  Under the pretense of punishing the rebellious Irish who opposed English rule, 2/3 of Ulster was confiscated and regranted to Scottish, English and Welsh settlers.  These confiscations – resulting in the Plantation of Ulster – dealt the final death blow to the Irish land tenure system.  However, since Celts from Wales and Scotland were well represented in the settling force, the long-held right to security of tenure was, to a great extent, retained.  This became known as the Ulster Custom (eventually developing into the ‘tenant right’) which greatly distinguished northern from southern Irish land tenure systems in the centuries that followed. [10]

            Reacting to the Irish rebellion of 1641, Parliament brutally suppressed the Irish in central and western Ireland when Cromwellian troops killed 1/3 of the Irish in these areas.  In addition to physically subduing the Irish, England used this opportunity to reconfigure the political map of Ireland via the land law.  Toward this end, before the war fully ended, in 1652, Parliament passed “An Act for the Settling of Ireland”.  This Act was ostensibly designed to punish those responsible for the rebellion by requiring Irish landowners, both Catholic and Protestant, to petition specially constructed courts in order to retain their holdings.  Unless a landowner succeeded in proving that during the English civil war he had remained loyal to Parliament, his lands were seized and he was dispossessed. 

            By the mid-17th Century, 1/2 of the island was still in Catholic hands.  By the end of Cromwell’s siege, however, all but 26 landowners were stripped of their property.  Some received partial compensation by way of land grants in the west of Ireland which were normally equal to 1/3 the value of those properties seized.[11]  Following the rebellion’s end in 1692, Cromwell’s soldiers were rewarded for their service with Irish land grants.  In addition, slave dealers were granted permission to seize marriageable age Irish youths to the English plantations of Barbados.[12]

            The English legal system as applied in Ireland became the mechanism not only to control the distribution of real property and perpetuate agrarian outrages against rebellious tenants, but a tool of  social control as well.  Although the Treaty of Limerick, which had formalized the cessation of hostilities following the rebellion, contained a provision insuring no retaliation against the Irish, the English disregarded this promise.  Parliament proceeded, in 1695,  to enact the Penal Laws which were not repealed until 1829.             

            The laws targeted the Catholic minority for special persecution.   Catholics were prevented from holding public office, voting in elections, serving in Parliament, or practicing law.  Catholic education and worship were outlawed.  A special measure provided that if a Catholic died leaving Catholic and Protestant issue, the Protestant inherited the entire estate.  The final provision of the Penal Laws dovetailed with the aim of the land law, in excluding Catholics from holding land.      

            The effects of the anti-Catholic legislation upon the agrarian situation in Ireland insured that all landowners and holders of long leases were, or came to be, Protestant.  Demand for rental properties among the Catholic populace grew as tenancies became scarce. This land hunger was not paralleled in England where industrialization attracted workers to urban areas. 

            The temptation to conform and convert to Protestantism split families and communities.  The English plan succeeded: within two generations almost all of the land was in Protestant hands.[13]  Through this system, under the colour of law, Irish lands were confiscated and regranted to English nobles and those Irish chiefs willing to become vassals of the  Crown.

            The Act of Union of 1801 formally joined Ireland and England into one political entity.[14] The Act, which ostensibly heralded the end of Ireland’s colonial status, was intended also to control Irish rebellions against the Crown’s authority.  This political agitation had culminated in the Rising of 1798 that resulted in the death of the Irish nationalist Wolfe Tone and struck a blow at French interventionist policies in Ireland.[15]  As a result of the Union, the Irish Parliament was dissolved, political leaders of the rebellion imprisoned or executed and England’s control of Irish society and economy strengthened.  “Ireland was a conquered country, the Irish peasant a dispossessed man, and his landlord an alien conqueror.”[16]

            Landlords were relatively unaffected by the transition since the Irish gained little by participating in an English Parliament sympathetic to the plight of the land owners. Irish landlords became increasingly exposed to ‘the wealthy landowners of England, and with a society which normally lived above its resources.’[17]  As a result, landlord absenteeism became a more serious problem.

            Under the Catholic Relief Act of 1793,[18] Catholic occupiers of 40 shilling holdings became freeholders with the right to vote. Landlords exploited this opportunity by creating numerous small freeholds.  By controlling these freeholds landlords could direct their tenants to vote for specific candidates.[19] Before the Catholic Emancipation, these freeholds numbered 230,000.  After the repeal of the Penal Laws, the freeholdings had shrunk to only 14,200.  With the political incentive to preserve this type of tenure gone, confiscations and the consolidation of holdings became common and the tenancies which followed tended to be yearly in nature. [20]

            The Repeal meant that Catholics were once again permitted to till the land.[21]  By this time, much of the land had been turned to pasture since grazing lands were not subject to the ecclesiastical tithe and demand for grain had fallen after the end of the war with France in 1815.  This increase in pasture area amounted to a decrease in rent tolls for arable lands, leading to the employment of fewer Irish tenants and the further indebtedness of Irish landlords. 

            By the mid-19th Century, the English government’s attitude vis-à-vis Ireland was characterized by laissez faire economic policies and a deep-rooted mistrust of the Irish populace.  Although force of arms was employed in Ireland throughout England’s domination of the island, the preferred method of control was the law.  The structure employed was the land tenure system and the Crown’s surrogates were the landlords and estate agents who benefited from its operation.   

            The pre-Famine land laws in Ireland encouraged subdivision, overcultivation and neglect.[22]  Most of the land was owned by absentee English landlords and managed by local estate agents who wielded enormous power over the Irish tenants.  Scarcity concerns, combined with the cupidity of estate agents, resulted in rental rates 90% higher than in England.[23]   

            Many English landlords regarded their Irish estates as sources of income involving no responsibility on their part.  The renting landlord was not obligated to guarantee good title, so no remedy existed for the tenant against the landlord if the tenant was put off the land by another.  The holding, when rented, did not include buildings.  The renting tenant was required to construct these himself, the value of which accrued entirely to the landlord.  Indeed, a tenant repairing his one room cottage might find his rent raised as a result of the increased value of the tenancy.  The value of other improvements, such as draining the land or adding manure, also solely benefited the landlord.  Repairs to the property were not the responsibility of the landlord, or the tenant.  For this reason, holdings became increasingly run-down and eroded. 

            Lettings of land took place through leases, yearly tenancies and tenancies at will.  Under leases, the land was let for the life of the tenant or for years at a time.  Yearly tenancies, defined by case law under Henry VIII, could exist for generations.[24]  Tenants viewed these leases as almost perpetual interests in land, regardless of the landlord’s right to sever the tenancy.  Tenancies at will were held at the landlord’s will.  When it was unclear in a given situation which type of tenancy to infer, courts inferred a tenancy at will, the most common type which existed during this time.

            At the conclusion of a tenancy term, landlords held public auctions for the holding.  This practice, known as rent racking, led to artificially high rent rates since the highest solvent bidder received the tenancy.  In order to retain the holding, tenants committed to higher rents than they could pay.  This practice was most prevalent in the west and south of Ireland. 

            Subdivision of tenant holdings was common and most strongly practiced between 1820 and 1850.[25]  Although landlords often covenanted against the practice, withholding peat fuel and prohibiting the construction of new dwellings, tenants who needed to provide for children who married had no alternative.  By 1841, 1/2 of all Irish holdings were well below 8 acres for a family, this being the bare minimum which was considered economically viable.  

            Much of the subdivided lands was held in rundale, a doctrine whereby the holding a tenant received was scattered among the best and worst arable lands.  This scattering of holdings resulted in an inefficient use of the land and led to arguments among tenants and neighbors concerning boundary lines.  The Devon Commission cited one instance of an acre of land being held by 22 different people.[26]

            The conacre system of taking land prevailed in Munster and Connaught.  Under this doctrine, the landlord was responsible for preparing the ground for seed and the cottier (contractual tenant) planted the seeds and paid his rent in labor.  Cottiers held a contract for the land, usually renting less than 5 acres for a single season. Although the cottier worked during the busiest period of the year, when wages were highest, the employer valued his labor at the normal rate.[27]

            By 1841, 4/5 of the population in Ireland was rural.  40% of the homes were 1 room, mud cabins with earth floors.  37% of the houses were between 2-4 rooms.  The roofs of these hovels were sod, covered with straw.  Smoke from the fire exited the building through the door since such simple structures boasted no chimney.  The interior contained a stool and perhaps a crude table and some straw mattresses.  A simple pot for boiling potatoes, can for fetching water from the well and wooden plates and mugs completed the family’s belongings.  Meat was served only at Christmas time.  Beer, or the cruder poitin, were cheap and readily available. 

            Most cottiers and laborers relied, in addition to their agricultural tenancies, on outside employment to survive.  Although working the farm could provide sufficient resources to feed the family, covering the rental payment and the cost of other goods required, for the most part, additional resources.  Some Irish migrated ‘over the waters’ to work in England. This practice was known as spalpreening.  Most, however, worked on other farms within Ireland during the half  year when tenants had no crops of their own to harvest.[28]

            By 1816, tenants in arrears could be evicted in 2 months at a cost of only £2, compared with 1 year and £18 in England. For those tenants unable to pay rent, landlords could recover possession of the land through the ejectment process. Although this method of redress was originally only permitted where a clause in the lease/contract permitted it, this right of recovery was broadened to include all tenancies where the tenant was at least one year in arrears.[29] Since most tenants were at least 6 months in arrears at any given time, a practice known as running gale, tenants lived in a permanent state of anxiety and insecurity awaiting eviction.[30]   Although landlords may have been unwilling to evict freehold tenants prior to 1829, this was not a consideration after the Repeal when the political influence of the 40 shilling freeholds was gone.

            Threats of eviction were used to prevent sub-letting and punish tenants perceived as troublemakers.  Notices to quit were threatened to tenants for snaring hares and for drunkenness.  Tenants also received threats in the form of letters, adorned with crude sketches of coffins and pistols, which promised retribution against the recipient’s family.  Those driven by hunger to trespass on bogs, poach the surrounding waters, or agitate against the land system were also threatened with eviction.

            Eviction procedures were begun by serving a notice to quit and most large landlords routinely served all their tenants with notices to quit on an annual basis.  It is assumed that 10 notices to quit were issued for every actual eviction.  Between 1850-59, 530,000 notices to quit were issued.[31]  Actual ejectment from the property could only be done by the sheriff or constabulary, who in most cases were beholden to the local landlords. Following a court hearing, if the ruling was in favor of the landlord, the sub-sheriff would give possession to the landlord’s bailiff.  For non-payment, the tenant was served with a notice stating the amount due.  For evictions arising from reasons other than non-payment, the notice specified that the tenant had 6 months to vacate the premises.[32]  Tenants could be served with notice to quit for harboring squatters or lodgers, sub-letting or periodic non-residence on the premises. 

            In examining eviction procedures, it is difficult to exaggerate the emotional significance of a family being thrown out of its home with no refuge but the workhouse.  Most of the parliamentary bills debated in the 1850’s and 1860’s, as well as the Land Act of 1870, addressed the capriciousness of the evictions and the immense power landlords had over tenants.  From 1843-53, the constabulary recorded 70,000 evictions of families.[33] Half of these evictions were clearances; many of those evicted were then pressured to accept employment as laborers who enjoyed no security.  Approximately 20% of those tenants evicted between 1849-1880 were readmitted as caretakers to the same lands.  Caretakers were preferable to tenants in that they could be removed by the landlord without any prior notice.    

            In Ireland, landlords could also ransom a tenant’s growing crops.[34]  Under the doctrine of distress, the landlord was permitted to seize the crops of the tenant in arrears in order to compel payment.  If this was not possible, the landlord was permitted to sell the crops himself, a remedy not open to landlords in England or Scotland during this period.

            Irish tenants could resist these measures through the use of conspiracy, foot-dragging, obfuscation and armed resistance, the ‘weapons of the weak’.[35] One manifestation of this frustration was the growth of secret societies. Viewed as defensive in nature, these groups, like the Whiteboys and the Ribbonmen, were formed on an ad hoc basis to deal with specific instances of suppression. The societies were locally based. Community pressure, in the form of either protecting or ostracizing the individuals involved, was instrumental in controlling the growth, and defining the power base of, these groups. The violence was directed against both landlords and land agents.  In addition, the tenant who took up a holding following an ejectment was looked upon as a traitor (slandered as a Sassenach, or Englishman) to the community and was also the victim of violence. In the face of the local police’s inability to quell such violence, Irish politicians like Daniel O’Connell argued that his Catholic Association could control these dissident groups better than the authorities.[36]

            By 1845, Ireland was a nation of 8.2 million people.  The annual population growth rate was 1.3% as compared with 1% for England, .8% for Scotland, and .4% for France.[37]  This growth resulted in an increase in population from 5 million in 1800 to 8,175,000 in 1841.[38]  Various explanations have been advanced regarding this phenomenon.  Some scholars have held that early marriage, encouraged in a conservative, religious environment was a key factor.  Irish peasants viewed the raising of a large family as one of the few consolations available to them in light of the dire poverty they faced.  The success of the potato crop, and the ability of families to sub-divide land holdings and allow a marrying son to easily establish a household during the lifetime of his parents, are further cited as contributing factors.[39]   

            The Census of  1841, concluded just a few years before the Famine, provides various data concerning land tenure.  Of the 825,000 tenant holdings in Ireland at that time, just over half were held contractually by cottiers who worked the land for a season only and benefited from no security of tenure.  The remaining holdings were held by farmers under lease, year-to-year, or as tenants at will.  Of these, 250,000 were holdings of 5-15 acres.[40]; 80,000 were from 5-15 acres; and, 50,000 were holdings over 30 acres.[41]  Both cottiers and farmers faced constant poverty.  Even a tenant of 20-30 acres was ‘little better accommodated than the cottier; he had probably an additional compartment, hardly divided, for a sleeping place or a dairy.’[42]

            As a consequence of the population explosion, land rental scarcities were common.  Since a large portion of Ireland is bogland, the demand for arable plots (76% of the land mass) suitable for supporting a family grew during the 19th Century.  Reclamation efforts were encouraged by the government-appointed Devon Commission which predicted, in 1845, that 4 million acres of bog were reclaimable.[43]  Various other commissions had urged the English government to undertake reclamation projects in Ireland since as early as 1814.  Although a loan fund to support this undertaking was established in 1835, only two loans were given since the government placed so many restrictions on the funds.[44]

The Famine

            The Potato Famine of 1845-49 was a watershed in Irish English relations.  The Famine serves, within a long period of colonial and pseudo-colonial rule, as the paradigmatic example of forced Irish dependence upon the English.[45]  The impact of ineffectual English policies is most acutely demonstrated during this time, and the inefficacy of Parliament’s response in the face of a national catastrophe most manifest.  It is against the historical backdrop of this disaster that the role played by the English land law must be evaluated.

            By the mid 19th century, the Irish populace depended for its physical survival on the success of the potato crop:  other food crops (grain, barley, corn) were, for the most part, exported to England.  By 1841, for 1/3 to 1/2 of the Irish the potato was the sole source of food.[46]  Although the potato was the dietary stable of the Irish farmer, enabling subsidence on a relatively small plot of land, the propensity of the Irish potato to disease had been evinced by 15 partial crop failures between 1800 and 1844.[47]   

            The first famine that struck Ireland’s summer harvest in 1845 was caused by a fungal disease[48] which had previously attacked crops in North America.  The disease thrived in the mild Irish climate.  Farmers who had gone to bed leaving green, lush fields of crops awoke to see them black as soot.  First, brown spots would appear on the leaves of the potato plants, with a whitish mold on the undersurface which contained air-borne spores.  Within hours, the stalks would blacken and the air would fill with the heavy smell of decay.  Sometimes a seemingly healthy crop would be harvested only to rot when exposed to the air.  As disbelieving farmers looked on, the potatoes turned to a black, pungent mush.  It was soon discovered that the tainted matter, when fed to farm animals, caused death.  The blight continued, completely destroying the 1846 crop.  The Famine abated slightly in 1847, returning to devastate the harvest in 1848.[49] 

            The English offered relief in a variety of forms.  The entire amount advanced by the government during the Famine was £7,132,268, half of it in loans.[50]  The government’s primary advisor regarding responses to the Famine was Sir Charles Trevelyna, Assistant Secretary to the Treasury who declared that ‘the people must not, under any circumstances, be allowed to starve’.[51]  This sentiment, however, was balanced with a strong belief that local relief efforts were preferable to state support. Much has been written concerning Trevelyan’s distaste for the Irish and Scottish Celts who he viewed as inferior to the culturally sophisticated Anglo-Saxons.  To this day his name is, within Irish society, identified with the type of supercilious condensation which, in the view of the native Irish, so characterized English attitudes toward the Irish.

            Prime Minister Peel initially confronted the disaster by secretly commissioning the purchase of American Indian corn.  Peel authorized agents to purchase £100,000 of corn for shipment to Cork harbor.[52]  The corn was to be sold, not distributed freely, in an effort to keep food prices down when the market required stabilization.  The purchase of American corn did not compromise English farmer’s interest since no trade in Indian corn existed. 

            In a wonderful example of English ineptitude in the face of the disaster, the shipment confronted the English with a number of problems.  The grain, called ‘flint corn’, was quite hard to grind on a conventional steel mill.  In addition, the corn was highly susceptible to temperature changes and spoiled quickly while waiting to be ground.  Lastly, once ground, the corn presented the Irish tenant with an immense challenge.  The Irish did not, for the most part, eat bread and were not familiar with baking procedures.  Most Irish tenant homes did not boast an oven since cooking was done over an open fire.  Eventually, a solution was found.  The corn was mixed with other grains, double ground to achieve a fine enough texture for cooking, and sold to the starving Irish.[53]

            In addition to the limited distribution of Indian corn, the Irish turned to a variety of alternative food sources.  Boiled turnips (still called “Famine food”) and fish, when it could be obtained by illegal or legal means, graced the tables of the most fortunate families. Where wheat had been grown to supply thatching -straw, people began to use the oats as food, preparing a porridge of oats soaked in water called sowans.   Those who still owned cattle and were reluctant to slaughter them would have blood extracted from the animals (a pint at a time).  The blood was saved in a jar, salted, and then made into “relish cakes” by mixing the mixture with wild mushrooms.  Certain place names in Ireland which reflect centres for this practice survive to the present day.[54] Those Irish with less resources subsisted on seaweed and dandelion soups. 

            Essential to the limited relief measures taken to ameliorate the impact of the Famine was the continued operation of workhouses throughout Ireland.  The Irish Poor Law Bill, passed in 1838, was based on the English relief system which defined the workhouse concept.  In Ireland, workhouses were funded by taxes imposed on landlords (under the Labor Rate Act of 1846) and were intended, partially, to stop Irish laborers from crossing the Irish Sea to seek part-time work in England.  Payments were assessed based on each the number of holdings and further economically burdened Irish landlords who thus funneled even less money into improvements.            

            Under the workhouse system, the country was divided into 130 administrative units known as unions, each of which was to boast a workhouse.  By 1845, 118 workhouses had been built.  Their combined resources were able, however, to accommodate only 100,000 people.[55]  In addition, one had to be totally destitute to receive soup kitchen[56] or workhouse relief which was given only to an entire family unit.  A tenant in possession of even 1/4 acre of land could not be considered destitute.[57]  Because of this, many needy did not seek relief since they did not want to give up their tenancies.  Faced with the choice of retaining their holding or taking a chance of the relief system, many tenants opted to die on their land.

            As a result of the increase in tenant evictions and land clearances during the Famine, social unrest manifested itself in the assault and assassination of a few land agents and landlords.  In January 1846, Queen Victoria herself articulated the need to protect the Irish land owners from peasant violence, supporting Parliament’s passage of a Coercion Bill.  The Bill imposed a penalty of 14 years imprisonment for any one found out of his house from dusk to dawn.  A similar measure, limiting the right of travel during this period, was a Parliamentary measure called “The Punishment of Vagrants Deserting or Neglecting Wives and Children” of 1847.[58] The Act stipulated that the requirement for an arrest warrant was waived in the case of beggars and wanderers found on the roads of Ireland.

            More than two million people emigrated from Ireland between 1845-55.[59] The emigration levels were not significantly affected by the first famine in 1845 which was seen at the time as a temporary agricultural failure. This perception changed as the disaster worsened. By the second crop failure, in the summer of 1846, Irish emigrants were willing to undertake the dangerous winder crossing, willing even to undertake the voyage without sea stock (private food stores).  Leaving Ireland, which had been looked upon as banishment, was not regarded as a release from the agony of hunger.  

            Following repeal of the Corn Laws in 1846, American ships which had transported Indian corn to Ireland’s ports were free to fill up with emigrants to finance the trip back across the Atlantic.  In like fashion, ships from New Orleans loaded with cotton for Liverpool’s markets carried emigrants to New York and Canada.  The cheapest steerage was 75s and the voyage lasted 40 days.  Not one vessel in 50 carried a medical officer and disease was rampant.[60]  During 1847, 1 in 9 passengers from Cork to North American died en route of disease.[61]

            Government encouragement of emigration had been advocated by a majority of the parliamentary commissions charged with examining the Ireland since 1820.  A population drain, through systematic emigration, was supported by the Devon Commission in 1845 which saw encouragement of this policy as one solution to the Gordian knot that was the “Irish Problem”.  The English did not, however, implement this suggestion until a Whig government took office in 1846.  By that time the added benefits of colonization which would result from state sponsored emigration became evident, and Irish emigration began to be encouraged on a limited basis. 

            The English government was cognizant of the fact that the colonies of New South Wales and Australia desperately needed adult, physically fit settlers to deal with the rapid expansion of mining and agricultural enterprises.  Even before government encouragement, many Irish did emigrate to these colonies to escape the horrors of the Famine.  Although emigration to North America might be viewed as a temporary measure, emigration to Australia was another matter.  In addition to undertaking a grueling three month sea voyage, the passage cost £20, five times higher than a ticket to North America. 

            London subsidized the emigration to Australia of orphan children and the destitute of Ireland’s workhouses.  The majority of those sent were young girls who were in a position to serve as wives to the settlers, vitally important since “respectable” European women of marriageable age were in high demand.  Selection was carried out in the workhouses by emigration officers who sorted through the girls, choosing those deserving of emigration.

            Irish landlords had long encouraged emigration as a cheap solution  to overpopulation and an easy method of affecting land clearances.  During 1846, in the face of only mild government funding of emigration efforts, landlord assisted emigration increased dramatically.  Limerick and Dublin were the processing centers for the movement which sent over 5,000 tenants to Canada in the following year.[62] 

            The economic devastation of the Famine years was most sorely felt in the south and west of Ireland since the marshy bogland was vulnerable to disease.  In addition, these areas boasted no significant industry.  Although in the 18th and 19th centuries County Cork became the linen manufacturing center of the area, this industry declined following the end of the war with France.  Likewise, the sailcloth industry which had centered around Cork City experienced a similar decrease.[63]  In addition to the fall off in demand, the lack of industrialization throughout southern Ireland’s linen industry precluded successful competition with  the Scottish linen industry which, by the 1820’s, was mechanized.  Similar technological advancements were not found in Ireland where traditional methods like hand-spinning were, by the 1840’s,  still being used.[64]

            One area where industrialization did take place was the brewing industry.  By the late 18th Century, industrialization along the lines of London businesses was evident in the main breweries in Dublin and Cork City.  Barley was easily grown in the south and there was a small export trade which flourished in the Cork port area.  Total output of these breweries was unaffected by the Famine, and increased steadily throughout the latter half of the 19th Century. Public work projects which led to the building of more roads and laying of railroads aided the breweries’ internal distribution efforts. [65]

            The impact of the Famine was less severely felt in the north of Ireland for a variety of reasons.  First, the north was less vulnerable to the failure of a single crop as it enjoyed a wider  variety of food sources.[66]  Second,  Ulster enjoyed greater economic stability.  By 1839, 35 linen mills provided alternative employment to laborers, offering cash income to people who would have been without means (or required to take loans) in the summer months before the new potato crop ripened.[67]            

            Third, in Ulster the tenant right system guaranteed security of tenure.   This custom of holding land provided for more moderate rental rates than in the south, primarily because tenants were more empowered.  The tenant right system was extended to both Roman Catholics and Protestants.  Under the doctrine, the tenant continued in undisturbed possession of his holding so long as he paid rent and did not give his landlord reasonable cause to evict him.  When the tenant  wanted to quit the holding he was entitled to sell his interest in the holding; the value of the right was generally between £10 and £25 per acre.  In addition, the tenant had the right to transfer his interest to an assignee or leave it to his heir.  The tenant right custom was not limited by the type of tenure and applied to the sale of farms held for as little as one year.  

 

Aftermath

            During the Famine of 1845-49, over 1 million Irish died of starvation and disease.   By 1851, Ireland’s population was 6.5 million, instead of an anticipated 9 million.  The density of the population dropped from 217 per square mile to 164.  The highest death rates were experienced in the south and west, where tenant sub-division was the greatest[68]. The population decline was 29% in Connaught, 23% in Munster, 15% in Leinster and 16% in Ulster. [69]  The staggering loss these deaths represented to Irish culture and society is incalculable.

            The loss of 1.5 – 2 million Irish through emigration was just as devastating.  Those strong enough to emigrate usually represented the most industrious and enterprising classes.  Disproportionately drawn from the West where Gaelic was the lingua franca, the loss of these emigrants was especially devastating to a society struggling to retain its ethnic identity.

            After the Famine, Irish Catholics turned increasingly to Rome for guidance and reassurance.  This shift resulted partly from the guilt felt by those who survived the disaster after witnessing the death of so many.  It was also rooted in a superstitious fear that the Famine was punitive in nature.

            By 1849, ‘the tenants looked as though they had just come out of their graves, while the landlords looked as if they were just entering theirs’.[70]  1/3 of all Irish landlords were financially ruined.  By 1844, the courts of Chancery and the Exchequer had assumed responsibility for 1,322 properties which had been so sorely mismanaged that official oversight was warranted.  These estates had annual rents of £1,000,000.[71]  The situation was so grave that, in 1849, Parliament passed the Encumbered Estates Act.[72]  This Act created an encumbered estates court empowered to purchase debt ridden estates and vest them with indefeasible title.  The landlord who purchased the new title received an estate cleared of debt. The new law provided no compensation, however, to the tenant who had improved the holding during his tenure.   Because so many estates were ‘dumped’ during this period, the market became saturated and land values plummeted.[73]

            The goal of the legislation was to allow professional businessmen to take over the management of the land. 90% of the 8,000 new buyers were Irishmen who were speculators in land intent on making a profit.  They pushed, in the name of economic viability, for the passage of the Civil Bills Act in 1851 which allowed for easier eviction for tenants in arrears.[74]  In addition, clearances and the reform of holdings resulted in a major shift in  the average size of land holdings.  A comparison of the number of holdings in 1841 with those held in 1851 reveals the following[75]:   

            1 acre & under[76]            1-5 acres           5-15 acres         15-30 acres       over 30

1841     135,314                        310,436            252,799            79,342             48,625

1851     37,738                        88,083              191,854            141,311            149,090

            By 1857, 3,000 estates had been processed by the encumbered estates courts, with most of the funds received from these sales passing to creditors.  Due to the success of the system, by 1858, the courts had assumed responsibility for processing non-encumbered estates also.[77]   Between 1850 and 1901, 1/6 of all Ireland moved to new owners.[78]

            In recognition of the corruption and nonviability of the land tenure system, Parliament passed the Landlord and Tenant Law Amendment Act, Ireland, (Deasy’s Act) in 1860.[79]  As a result of this Act, all letting agreements were designated as contracts and were no longer interpreted in terms of tenure of service.  A manifestation of mercantile, free trade policies, this change led to greater alienability of land since the tenant could be viewed as merely hiring the use of a holding, not possessing it.  The effects of custom were replaced with rigid commercial principles which profoundly changed the nature of the relationship between tenant and landlord.   In addition, the Act eliminated reversions; established set-offs to rent; formalized the rights of assignees of landlords and tenants against each other; implied good title to make a lease; included a right to quiet enjoyment; and, guaranteed the value of improvements to the tenant who undertook to make them.[80] 

            By the time a Liberal government took office in 1868, Deasy’s Act had come to be viewed as ineffective and unable to solve the basic land tenure problem in Ireland.  Gladstone’s efforts to address the Irish issue are beyond the scope of this paper but the passage of the Irish Land Act in 1870[81] and the Land Act of 1881[82] signaled an abandonment of totally free market theories regarding property law in Ireland and acknowledged the importance of customary law (and the Ulster tenant right) in land ownership. 

Conclusion

            Normative conceptions of the role law plays in human relations and society do not contemplate the use of legal authority to legitimize morally egregious acts. Despite this, an historical review of relations between England and Ireland reflects a pattern of aggressive measures taken against the Irish minority under the legitimizing authority of the common law. The English legal system, which should have protected Irish tenants as equal subjects of the Commonwealth, was instead perverted and abused when applied in Ireland.  The land law subjugated, dominated and violated the Irish population.  The legal status quo formalized and institutionalized a system of land ownership which disenfranchised the Irish in their own land.   Reduced to a laborer class, the Irish tenant was stripped of basic human rights due him as a citizen of the Commonwealth. 

            The Famine has most often been understood within an interpretative context defined by 19th Century economic theory and Malthusian fatalism.  The disaster should, instead, be viewed within the parameters of state-sanctioned agrarian aggression which manifested itself through the land laws.  Seeking to deprive the Irish tenant of regional identity, stability and continuity, English land law attacked the very fabric of Celtic society, physically separating families and clans and encouraging internecine warfare between and among tribal units as resources became scarce.  In severing the connection between land and laborer in an agrarian society, such a land tenure system is inherently violent.

            The living and working conditions of the mid-19th Century Irish tenant were wretched beyond description. Tied to an agricultural system which was stretched to the limit, and facing rising rent payments for ever shrinking tenancies, the Irish lived in a semi-slave state.  An inability to meet crop quotas demanded by landlords, even in Famine times, led to the tenant’s ejectment from land holdings which were vital to survival.  Eviction from the land meant disaster delivered in the form of confinement to a workhouse or imprisonment, both solutions virtually guaranteeing destruction of the family unit.

            It can be argued that the land tenure system amounted to a transfer to the landlord class of an “inalienable entitlement” (life and liberty) held by the Irish.[83]  Entitlements exist as a mechanism by which an individual’s ability to convey away basic rights (i.e., the sale of a kidney, sale of one’s body for prostitution) is limited.  Akin to unconscionability in contract law, this theory expands the doctrine of unjust enrichment into a moralistic sphere.  The attitude, perhaps paternalistic, which underlies the argument empowers the state to prevent an individual from ‘trading’ away an interest of such value that it is deemed protected.  The feudal land system as applied to Ireland so infringed upon the inalienable entitlements of the Irish that it can be argued England was under a duty to intervene.

            The laissez faire economic doctrines of the English, combined with land policies designed to disenfranchise the Irish and affect the short-term depletion of the agricultural value of land, contributed heavily to the Famine disaster.  Economic policies which should have yielded to human needs were pursued long after they were in any way viable.  The limited measures taken to ameliorate the social impact of the Famine were always viewed through the prism of a financial equilibrium which had ceased to exist.    Pursuing free market theories in the face of national catastrophe, Parliament’s inability to adjust its policies in the light of mass starvation borders on the criminal. England’s policies amounted to a decision to allow one segment of the Commonwealth to starve to death so that another might survive and flourish.

           
 

[1]For an overview of early Celtic practice, see W. Montgomery, The History of Land Tenure in Ireland (Cambridge, 1889) and N. Patterson, Cattle Lords & Clansmen (London, 1994).   Sept (sub-tribe) lands were held under Gavelkind (gabhail-cine) whereby property rights were vested in the community as a whole.   A sept was defined as those relatives sharing common liability for the payment of a dire, or honor price.  (Each member of early Celtic society was assessed a value to the community in the form of an honor price which would be paid at his death, dismemberment or impairment at the hands of another).   The chief of the sept was elected for life (unless he was disabled in war or otherwise disgraced) under a system of Tanistry

[2]The paradigmatic example of Norse assimilation, and an early model of the collaboration and internecine warfare which has split Irish society to the current day, is found in the story of Strongbow.  Dermot MacMurrough, a regional Irish king, attempted to resolve a long-standing property dispute with his neighbor and enemy, Tiernan  O’Rourke, by soliciting the aid of the English Earl of Pembroke, Strongbow.  Offering his kingdom and the hand of his daughter, Eva, in marriage as reward the Irishman  invited the Englishman to invade Ireland and subdue his enemy.  Strongbow accomplished this, defeating the Danes and taking Dublin city in the bargain.

[3] Strongbow had become so firmly ensconced in Ireland after taking over the kingship of Leinster following the death of MacMurrough that Henry II began to question his loyalty.  Sensing this, Strongbow met the King in Wales to report on the advisability of a massive invasion of Ireland.  His only request to Henry II was that he be allowed to retain control of Leinster; although his title of regional king was lost, he retained the use of the lands as a vassal of the King of England. 

[4]There is some dispute as to whether the Bull Laudabiliter said to be issued by the English Pope, Adrian the Fourth, was genuine or not.  No original copy of the Bull has been found in the Vatican and some scholars posit that the Pope may simply have authorized Henry II to proceed to Ireland to suppress a rebellion.  In 1172, however, Pope Alexander II did send Henry II three letters congratulating him on his success.

[5]F.H. Newark, ‘The Bringing of English Law  to Ireland’,  Northern Ireland Legal Quarterly 23, (1972) 3-15. 

[6]One of the best contemporary sources regarding how  these events unfolded was Giraldus Cambrensis, a Welsh Churchman, who accompanied the invading army in 1171.  His book, Expugnatio Hibernica, The Invasion of Ireland, resulted from information gathered at the time and was supplemented by two additional visits to the island.

[7]One section prohibited the Biblically sanctioned marriage between a man and his deceased brother’s wife.  In Western thought, this marriage came to be seen as forbidden as the definition of ‘kinship’ became expanded.

[8]W. Montgomery, The History of Land Tenure in Ireland (Cambridge, 1889), p. 43.

[9]A.J. Otway-Ruthven, A History of Medieval Ireland (New York, 1993), p. 102-3.

[10]E. Hooker, Readjustments of Agricultural Tenure in Ireland (Chapel Hill, 1938), p. 25.

[11]W. Butler, Confiscation in Irish History (New York, 1970), p. 197.

[12]Id, p. 9-10.

[13]D. Giesen, ‘The Law and Religious Minorities in Post Tudor Ireland:  Some Reflections Against the Background of Irish Legal and Social History’, University of Tasmania Law Review (1983), p. 126.

[14]Act of Union 1800, 39 & 40 Geo. III, c. 67.

[15]Wolfe Tone, who had sought French intervention in Ireland’s battle with England, was rebuffed by a Napoleon who had shifted his attention to the Egyptian campaign.  Nevertheless, he did recruit sufficient French military advisors to support an armed rebellion in Ireland.  Condemned to die as a result, Tone met his death in the uniform of a French colonel.  He was buried alongside his nationalist brother “in the ‘green grave’ which Ireland cherishes as the most precious thing she owns”, Seamas MacManus, The Story of the Irish Race (London, 1969), p. 25.

[16]C. Woodham-Smith, The Great Hunger:  Ireland 1845-1849 (London, 1962), p. 25.

[17]W. Montgomery, p. 103

[18]33 Geo. III, c. 21.

[19]G. O’Brien, The Economic History of Ireland from the Union to the Famine (London, 1921), p.105.

[20]Disenfranchisement of the forth-shilling freeholds resulted from 10 Geo. IV, c. 8.

[21]10 Geo. IV, c. 7.

[22]See:  C. Smith, ‘The Land Tenure System in Ireland:  A Fatal Regime’; 76 Marq. Law. Review 469 (1993).

[23]See:  C. Smith, The Great Hunger, for a general, if emotional, overview of the Famine period.

[24]Yearly tenancies were established as a result of Potkyns case in the 16th Century.  The case described a ‘lease for the term of a year to commence at Michaelmas and continue until the end of the said year, and so on to the next year, de anno in annum, as long as the parties pleased.’

[25]J. Pomfret, The Struggle for Land in Ireland, 1800-1923 (Princeton, 1930), p. 18.

[26]Devon Commission Report, p. 425.

[27]J. Pomfret, p. 8.

[28]W. Blacker, An Essay on the Best Mode of Improving the Condition of the Laboring Classes of Ireland (London, 1846), p. 12.

[29]5 Geo. II c. 4; 25 Geo. II c. 13

[30]R.B. O’Brien (ed.), Two Centuries of Irish History (London, 1888), p. 488.

[31]A.M. Sullivan, New Ireland (London, 1877), p. 353.

[32]W.E. Vaughn, Landlords and Tenants in Mid-Victorian Ireland (Oxford, 1994), p. 22

[33]Id, p. 24-25.

[34]29 Geo. III c. 88; 58 Geo. III c. 39; 1 Geo IV c. 87.

[35]See:  J. Scott, Weapons of the Weak:  Everyday Forms of Peasant Resistance (New Haven, 1985).

[36]J. Lee, ‘The Robbonmen’ in T.  Williams (ed.), Secret Societies in Ireland (Dublin, 1973), p. 25-35.

[37] K. Hoppen, Ireland Since 1800 Conflict and Conformity (London, 1989), p. 33-59. 

[38]J. Pomfret, p. 16, quoting Irish Census, 1901, General Report.

[39]See:  J.S. Mill, Political Economy, Vol I, (London, 1849) concerning Ireland’s growth rate.  Mill posits that as a result of a land tenure system where the Irish laborer had no incentive to work harder, raising a family became one of the few joys open to him.

[40]The Irish acre (called ‘plantatin’)  measure used traces its development to the Tudor era and is the equivalent of 1.6 American acres.

[41]J. Pomfret, p. 6.

[42]J.E. Bicheno, Ireland and It’s Economy, Vol. II (London, 1827) p. 779.

[43]The Devon Commission was appointed in 1843 by Sir Robert Peel to examine the nature of tenure in Ireland.  Staffed by landlords, the Commission gathered evidence for two years (interviewing 1,100 people) and issued a final report in 1845.

[44]1 & 3 Wm. IV, c. 33.

[45]Although similar crop failings had occurred in Scotland in 1836-7 and 1846-7, the impact was not nearly as great as in Ireland.  For a general overview of famine in Scotland see: T.M. Devine, The Great Highland Famine:  Hunger, Emigration and the Scottish Highlands in the Nineteenth Century (Edinburgh, 1988).

[46]G. O’Tuathaigh, Ireland Before the Famine 1798-1848 (Dublin, 1972), p. 204.

[47]See:  J. Guttmann, ‘The Economics of Tenant Rights in Nineteenth Century Irish Agriculture’, 18 Econ. Inquiry 408 (1980).  The potato, a unique source of vitamins, minerals & protein, can effectively be employed as a sole dietary source with limited deleterious health effects.

[48]phytophthora infestans

[49]E. Crawford, Famine:  The Irish Experience 900-1900 (Edinburgh, 1989), p. 112-114.

Pre-Famine potato yield per acre                    6 tons

1845 harvest                                                     4.5 tons

1848 harvest                                                     3.9 tons

[50]D. G. Boyce, Nineteenth-Century Ireland:  The Search for Stability (Dublin, 1942) p. 111.

[51]R.B. McDowell, Public Opinion and Government Policy in Ireland, 1801-1846 (London, 1952), p. 229.

[52]For the 2 million Irish suffering by this time, this amounted to 12 pence per person.

[53]Peel’s attempts during this period to repeal the Corn Laws. which guaranteed English farmers a set price for their produce and imposed heavy taxes on imports, contributed to his political downfall in 1846.  

[54]Bogach na fola (the moor of the blood) in co. Mayo is one example.

[55]E. Crawford, p. 159.

[56]See:   Attachment B.

[57]Gregory Clause, 10 Vict. c. 41

[58]10 & 11 Vict. c. 84.

[59]Edwards, The Great Famine (Dublin, 1956), p. 328.

[60]Id, p. 365.

[61]Id, p. 366.

[62]Id, p. 333.

[63]Cork’s industry was originally established by weavers from Ulster who centered their trade in Blarney, with weavers working as far away as the Dingle Peninsula. 

[64]See:  M. Berg, The Age of Manufacturers 1700-1820 (London, 1985).

[65]See:  A. Bielenberg, Cork’s Industrial Revolution 1780-1880 (Cork, 1991) for a general overview of similar industrialization in the distilling industry, although this declined in the latter half of the 19th Century.

[66]L. Kennedy, An Economic History of Ulster, 1820-1940 (Manchester, 1985). p. 29.

[67]D. Boyce, Nineteenth Century Ireland:  The Search for Stability (Dublin, 1990), p. 102.

[68]See Attachment A.

[69]Census of Ireland, 1851, cited in The Irish Year Book, 1922.

[70]J. Pomfret, p. 43.

[71]P. Roebuck, ‘Landlord Indebtedness in Ulster in the Seventeenth and Eighteenth Centuries’ in J.M. Goldstrom and L.A. Clarkson (ed.), Irish Population, Economy and Society:  Essays in honour of the late K.H. Connell (Oxford, 1981) p. 135.

[72]11 & 12 Vict. c. 48 and 12 & 13 Vict. c. 77.

[73]See:  G. Fitzgibbon, The Land Difficulty in Ireland (London, 1869) for an overview of the economic impact of this massive transfer of wealth.

[74]14 & 15 Vict., c. 57.  The formality of issuing yearly quit notices was no longer necessary.

[75]Census of Ireland, 1871, General Report

[76]Holdings under one acre were not reflected in the census.

[77]21 & 22 Vict. c. 72

[78]W. Montgomery, p. 125.

[79]23 & 24 Vict. c. 154

[80]For an overview of the set-off allowed under Section 48 of the Act, see A. Dowling, ‘Set-Off Against Rent’, Northern Ireland Legal Quarterly (Autumn 1988).

[81]33 & 34 Vict., c. 46

[82]44 & 45 Vict., c. 49.

[83]See:  G. Calabresi & A. Melamed, ‘Property Rules, Liability Rules, and Inalienability:  One View of the Cathedral’, 85 Harvard Law Review 1989 (1972).

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6 Responses to Historical Overview

  1. Monica Dobbyn Watkins says:

    I do not see how it would be possible for an Irish child to learn history (even basic history) without developing a hatred of the English. I mean the atrocities were endless, decade after decade. The English learn very little of this themselves. If you mention ‘The Famine’ they say, “Oh we had famines here too”.
    They should learn the truth and they should apologise ‘profoundly’ to the people of Ireland.

    • a says:

      Monica,
      I take your point, yet it’s worth remembering that an Irish internal dispute brought Strongbow there, although the Plantagenets would have put boots on the ground eventually. Still, nothing good can come of inviting occupation to resolve a civil war (as we see today). As for hatred, there is so much shared experience, so much emigration both ways across the Irish Sea, so many ties that bind, that I don’t see that. The relationship may not be what America’s is with Britain, but then we beat them militarily and, come to find out, that matters. It puts America in a position Ireland, Palestine, India, etc. aren’t. All were defeats for the Empire, but not the same. One final note: when it came time to fight the British in the 20th Century, the significance of Bobby Sands’ civil disobedience resonates profoundly. For the hunger strikers – for Famine descendants – to starve themselves…it’s perverse. So disturbing. Yet politically very powerful.

  2. Monica Watkins says:

    I am very familiar with the Irish sea, having crossed it first in November 1940 at the age of six weeks. Your point of the folly of asking foreign nations for help is well taken, indeed when Vortigern, that stupid British king, invited the Saxons in to help fight the Picts, it was an even worse result than that experienced by the Irish; the British men were slaughtered and the Saxons bred with the Celtic women. Those of us who could escape fled to France and established Brittany indeed many of the Hiberno-Normans are also of ancient Celtic origin.
    I take it you are an American. In actual fact the American War of Independence was won due to the King of France’s admiration for the Irish Brigade that fought for France for one hundred years. They were of course the Wild Geese who left Ireland after William of Orange won the Battle of the Boyne. King Louis funded the American revolutionaries in return for trade treaties, that America promptly threw out after the war was won. King Louis on the other hand lost his head. He had spent so much for the Americans that France was broke. Had the French fleet not shown up and bottled in Cornwallis that would have been the end of the revolution. some years later Cornwallis went to Ireland to teach them a lesson because he felt they were the reason for the loss of the American colonies.
    The English are totally ignorant of the bloody history they inflicted upon Ireland. They are not taught.
    The difference between America and Ireland is the difference between the Atlantic Ocean and the Irish Sea. And being part of the British Union is like being married to Dracula.
    By the way I am one third Irish, one third British and one third Norman. And I had English relatives who came to America and fought as Revolutionaries.
    I still say England should get down on it’s knees and beg forgiveness for their brutality towards the Irish.

    • a says:

      I don’t agree with all you say, Monica, but I thank you for taking the time to comment. As you can imagine, we Americans take exception with the assertion that we have France to thank for our independence (but you would expect me to say that!); however, I’m sure you would agree that Scotland’s recent rejection of self-rule is impossible for us to understand. Yes, of course, the centuries have worn that conflict smooth, but it is still beyond imagining.

  3. Monica Watkins says:

    I too was disappointed with Scotland, having spent a good deal of my childhood in Edinburgh.
    However, it really is two separate countries. The true Scots are in the Highlands, the Lowland Scots are really Anglo. The only people who would rather starve than be dominated are the Irish. The Scots say “How much will it cost?”
    The most interesting thing next to watch are the overtures that England is making towards Ireland. It probably has something to do with the oil that has been found off the southern coast of Ireland. Just don’t let England know there is also some gold left in the old mines!

    • a says:

      I didn’t know about the gold; but, then, our most precious resource is people and those losses can never be recovered any more than the forests of oak trees can be replaced.

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