This work is an expansion of a paper read at the meeting of the Royal Historical Society in May, 1875, and will be published in the volume of the Transactions of that body. But as it is an expensive work, and only accessible to the Fellows of that Society, and as the subject is one which is now engaging a good deal of public consideration, I have thought it desirable to place it within the reach of those who may not have access to the larger and more expensive work.

I am aware that much might be added to the information it contains, and I possess materials which would have more than doubled its size, but I have endeavored to seize upon the salient points, and to express my views as concisely as possible.

I have also preferred giving the exact words of important Acts of Parliament to any description of their objects.

If this little essay adds any information upon a subject of much public interest, and contributes to the just settlement of a very important question, I shall consider my labor has not been in vain.


WATERFORD, November 3, 1875.

I do not propose to enter upon the system of landholding in Scotland or Ireland, which appears to me to bear the stamp of the Celtic origin of the people, and which was preserved in Ireland long after it had disappeared in other European countries formerly inhabited by the Celts. That ancient race may be regarded as the original settlers of a large portion of the European continent, and its land system possesses a remarkable affinity to that of the Slavonic, the Hindoo, and even the New Zealand races. It was originally Patriarchal, and then Tribal, and was communistic in its character.

I do not pretend to great originality in my views. My efforts have been to collect the scattered rays of light, and to bring them to bear upon one interesting topic. The present is the child of the past. The ideas of bygone races affect the practices of living people. We form but parts of a whole; we are influenced by those who preceded us, and we shall influence those who come after us. Men cannot disassociate themselves either from the past or the future.

In looking at this question there is, I think, a vast difference which has not been sufficiently recognized. It is the broad distinction between the system arising out of the original occupation of land, and that proceeding out of the necessities of conquest; perhaps I should add a third - the complex system proceeding from an amalgamation, or from the existence of both systems in the same nation. Some countries have been so repeatedly swept over by the tide of conquest that but little of the aboriginal ideas or systems have survived the flood. Others have submitted to a change of governors and preserved their customary laws; while in some there has been such a fusion of the two systems that we cannot decide which of the ingredients was the older, except by a process of analysis and a comparison of the several products of the alembic with the recognized institutions of the class of original or of invading peoples.

Efforts have been made, and not with very great success, to define the principle which governed the more ancient races with regard to the possession of land. While unoccupied or unappropriated, it was common to every settler. It existed for the use of the whole human race. The process by which that which was common to all became the possession of the individual has not been clearly stated. The earlier settlers were either individuals, families, tribes, or nations. In some cases they were nomadic, and used the natural products without taking possession of the land; in others they occupied districts differently defined. The individual was the unit of the family, the patriarch of the tribe. The commune was formed to afford mutual protection. Each sept or tribe in the early enjoyment of the products of the district it selected was governed by its own customary laws. The cohesion of these tribes into states was a slow process; the adoption of a general system of government still slower. The disintegration of the tribal system, and dissolution of the commune, was not evolved out of the original elements of the system itself, but was the effect of conquest; and, as far as I can discover, the appropriation to individuals of land which was common to all, was mainly brought about by conquest, and was guided by impulse rather than regulated by principle.

Mr. Locke thinks that an individual became sole owner of a part of the common heritage by mixing his labor with the land, in fencing it, making wells, or building; and he illustrates his position by the appropriation of wild animals, which are common to all sportsmen, but become the property of him who captures or kills them. This acute thinker seems to me to have fallen into a mistake by confounding land with labor. The improvements were the property of the man who made them, but it by no means follows that the expenditure of labor on land gave any greater right than to the labor itself or its representative.

It may not be out of place here to allude to the use of the word property with reference to land; property - from proprium, my own - is something pertaining to man. I have a property in myself. I have the right to be free. All that proceeds from myself, my thoughts, my writings, my works, are property; but no man made land, and therefore it is not property. This incorrect application of the word is the more striking in England, where the largest title a man can have is "tenancy in fee," and a tenant holds but does not own.

Sir William Blackstone places the possession of land upon a different principle. He says that, as society became formed, its instinct was to preserve the peace; and as a man who had taken possession of land could not be disturbed without using force, each man continued to enjoy the use of that which he had taken out of the common stock; but, he adds, that right only lasted as long as the man lived. Death put him out of possession, and he could not give to another that which he ceased to possess himself.

Vattel (book i., chap, vii.) tells us that "the whole earth is destined to feed its inhabitants; but this it would be incapable of doing if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share, and it has no right to enlarge its boundaries or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries." He adds (chap. xx.), "When a nation in a body takes possession of a country, everything that is not divided among its members remains common to the whole nation, and is called public property."

An ancient Irish tract, which forms part of the Senchus Mor, and is supposed to be a portion of the Brehon code, and traceable to the time of St. Patrick, speaks of land in a poetically symbolic, but actually realistic manner, and says, "Land is perpetual man." All the ingredients of our physical frame come from the soil. The food we require and enjoy, the clothing which enwraps us, the fire which warms us, all save the vital spark that constitutes life, is of the land, hence it is "perpetual man." Selden ("Titles of Honor," p. 27), when treating of the title "King of Kings," refers to the eastern custom of homage, which consisted not in offering the person, but the elements which composed the person, EARTH and WATER - "the perpetual man" of the Brehons - to the conqueror. He says:

"So that both titles, those of King of Kings and Great King, were common to those emperors of the two first empires; as also (if we believe the story of Judith) that ceremonies of receiving an acknowledgment of regal supremacy (which, by the way, I note here, because it was as homage received by kings in that time from such princes or people as should acknowledge themselves under their subjection) by acceptance upon their demand of EARTH and WATER. This demand is often spoken of as used by the Persian, and a special example of it is in Darius' letters to Induthyr, King of the Scythians, when he first invites him to the field; but if he would not, then bringing to your sovereign as gifts earth and water, come to a parley. And one of Xerxes' ambassadors that came to demand earth and water from the state of Lacedaemon, to satisfy him, was thrust into a well and earth cast upon him."

The earlier races seem to me, either by reasoning or by instinct, to have arrived at the conclusion that every man was, in right of his being, entitled to food; that food was a product of the land, and therefore every man was entitled to the possession of land, otherwise his life depended upon the will of another. The Romans acted on a different principle, which was "the spoil to the victors." He who could not defend and retain his possessions became the slave of the conqueror, all the rights of the vanquished passed to the victor, who took and enjoyed as ample rights to land as those naturally possessed by the aborigines.

The system of landholding varies in different countries, and we cannot discover any idea of abstract right underlying the various differing systems; they are the outcome of law, the will of the sovereign power, which is liable to change with circumstances. The word LAW appears to be used to express two distinct sentiments; one, the will of the sovereign power, which being accompanied with a penalty, bears on its face the idea that it may be broken by the individual who pays the penalty: "Thou shalt not eat of the fruit of the tree, for on the day thou eatest thereof thou shalt die," was a law. All laws, whether emanating from an absolute monarch or from the representatives of the majority of a state, are mere expressions of the will of the sovereign power, which may be exacted by force. The second use of the word LAW is a record of our experience - e.g., we see the tides ebb and flow, and conclude it is done in obedience to the will of a sovereign power; but the word in that sense does not imply any violation or any punishment. A distinction must also be drawn between laws and codes; the former existed before the latter. The lex non scripta prevailed before letters were invented. Every command of the Decalogue was issued, and punishment followed for its breach, before the existence of the engraved tables. The Brehon code, the Justinian code, the Draconian code, were compilations of existing laws; and the same may be said of the common or customary law of England, of France, and of Germany.

I am aware that recent analytical writers have sought to associate LAW with FORCE, and to hold that law is a command, and must have behind it sufficient force to compel submission. These writers find at the outset of their examination, that customary law, the "Lex non scripta," existed before force, and that the nomination to sovereign power was the outcome of the more ancient customary law. These laws appear based upon the idea of common good, and to have been supported by the "posse comitatus" before standing armies or state constabularies were formed. Vattel says (book i., chap. ii.), "It is evident that men form a political society, and submit to laws solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens. The sovereign thus clothed with the public authority, with everything that constitutes the moral personality of the nation, of course becomes bound by the moral obligations of that nation and invested with its rights." It appears evident, that customary law was the will of small communities, when they were sovereign; that the cohesion of such communities was a confirmation of such customs of each, that the election of a monarch or a parliament was a recognition of these customs, and that the moral and material FORCE or power of the sovereign was the outcome of existing laws, and a confirmation thereof. The application of the united force of the nation could be rightfully directed to the requirements of ancient, though unwritten customary law, and it could only be displaced by legislation, in which those concerned took part.

The duty of the sovereign (which in the United Kingdom means the Crown and the two branches of the legislature) with regard to land, is thus described by Vattel:

"Of all arts, tillage or agriculture is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase. It forms the surest resource, and the most solid fund of riches and commerce for a nation that enjoys a happy climate. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible.... Notwithstanding the introduction of private property among the citizens, the nation has still the right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible. The cultivation of the soil deserves the attention of the Government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind."

Sir Henry Maine thinks that there are traces in England of the commune or MARK system in the village communities which are believed to have existed, but these traces are very faint. The subsequent changes were inherent in, and developed by, the various conquests that swept over England; even that ancient class of holdings called "Borough English," are a development of a war-like system, under which each son, as he came to manhood, entered upon the wars, and left the patrimonial lands to the youngest son. The system of gavel-kind which prevailed in the kingdom of Kent, survived the accession of William of Normandy, and was partially effaced in the reign of Henry VII. It was not the aboriginal or communistic system, but one of its many successors.

The various systems may have run one into the other, but I think there are sufficiently distinct features to place them in the following order:

1st. The Aboriginal.

2d. The Roman, Population about 1,500,000.

3d. The Scandinavian under the ANGLO-SAXON and Danish kings - A.D. 450 to A.D. 1066. The population in 1066 was 2,150,000.

4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the latter year was 3,350,000.

5th. The Plantagenet, from 1154 to 1485; in the latter the population was 4,000,000.

6th. The Tudor, 1485 to 1603, when the population was 5,000,000.

7th. The Stuarts, 1603 to 1714, the population having risen to 5,750,000.

8th. The Present, from 1714. Down to 1820 the soil supported the population; now about one half lives upon food produced in other countries. In 1874 the population was 23,648,607.

Each of these periods has its own characteristic, but as I must compress my remarks, you must excuse my passing rapidly from one to the other.