has for the whole department the same pow- | nicipalities, and in charging the councils or ers as the mayor for his commune. But he committees of the Kreis to keep guard over has them in a higher degree, since he can them. In France the process has been the annul the municipal regulations. Moreover, same; but the guardianship comes back to the prefect is a political personage, who pos- the councils general of the departments. sesses in a special way the confidence of the The law of the 18th of July 1866 shows Government. This explains why the muni- that the prefects have been deprived of nucipal law of 1855 took the police from the merous decisions, which will in future be jurisdiction of the mayor of communes of given by these councils. At present the 40,000 souls and upwards, while the law of great corporation which is called the depart1867 gave it back to them, with this restric- ment can administer its own interests almost tion, that the prefect should appoint the without restraint; and if there are restriccommissary of police on the presentation of tions, they chiefly concern the services of the the mayor. The commissaries of police are State intrusted to the departmental authoria second means of reducing the influence of ty. The last concession that has been serithe mayor, without appearing to do so. ously demanded is that the councils geneThe commissary of police is legally the sub- ral should have power to elect their preordinate of the mayor; but he is also the sidents. This concession has been made subordinate of the prefect, with whom he is by the Government; and it may be said that in direct communication. And he is again in this way departmental self-government is the subordinate of the Procureur-Général, organized in a manner to satisfy the great for whom he commences the judicial inquiry majority of Frenchmen. It is not possible or instruction. Besides, the mayor is not here to compare in detail the laws of 1866 paid; and he is often a man who is not and of 1838 upon the councils general; but young, who has other occupations, who con- the circular of the Minister of the Interior, tents himself with the administrative or even of the 4th of August 1866, makes this comwith only the honorary part of his work, parison in a very clear and intelligible manand willingly leaves to the commissary, who ner. Anyhow, the improvement is inconis paid, the unattractive duties of the police. testable, and ought to be recognised as such The functionaries charged with police duties by the federalists, though of course it can-the prefect, the mayor, and the commis- not completely satisfy them. This is not sary-cannot sary cannot inflict any punishment, whether the place to examine their theory, which fine or imprisonment. The law fixes all pe- moreover differs in the hands of different nalties: the justice of the peace or the tribu- advocates. It is enough to have exhibited nal of police applies them. some of the recent facts which indicate a tendency prevailing on the Continent, and to have compared the different ways by which two great nations have arrived at a like result. Their progress in each case bears fresh witness to the immense influence which the former history, and the manners, customs, and aspirations of a people exercise on the development of its laws. In Prussia, the police of large towns is in the hands of the Government. The second section of the law of the 11th of March 1850 reserves it to the State functionaries in towns where there is a Regierung, or where there are tribunals, in fortified towns, and, generally, in towns where there are more than 10,000 inhabitants. In other towns it is the burgomaster who has the charge of it. In towns where the State appoints the officers of police, it also pays them. In the rural communes the police is to be in the hands of the bailiffs; hitherto it has been in the hands of the owners of knights' fees, and has also been exercised in part by the Landrath, by the Head of the Kreis, and by the Schulze, or Head of the rural commune. The authorities charged with the local police have the right to proclaim penalties. As in France, the superior authority (Regierung or Prefect) can annul police regulations published by the burgomaster or commissary of police. * ART. VI.-HISTORY OF IRISH LAND Tenures. THE attempt to impose laws on a people from without, whilst their customs and native legislation are ignored, can rarely be successful. Unexpected results follow from measures so devised; and those who have sown without studying the nature of the soil are made to wonder at the strange fruit of their labours. Especially is this likely to be the case when former errors have to be corrected, and when the nation to be dealt with is one which has held stead We have seen that in Prussia the complement of decentralization, or rather, the extension of self-government, has consisted both in augmenting the powers of the mu- ministration française, for 1867. *See Dr. Maurice Block's Annuaire de l'Ad fastly to its own traditions against the ad- | certain lands, "with the men thereof," were verse legislation of many hundred years. made over to it. The Black Book of LisIt is essential, therefore, in practically treat- more contained a reference to another class, ing such a question as that of the Irish land, and to their duties: "It is to be noted,” not only to collect the wishes of the Irish runs the extract given by Ware, "that every people, but also to investigate their antece- Caruc of the Betagii ought every year to dents. The ancient laws and customs of plough for the lord (the bishop) one acre at Ireland are not singularities to be stared at the season of wheat, and one acre at the and written down, but active forces which season of oats, etc., likewise the Betagii have influenced the nation continuously and ought to draw home the corn of their lord.” deeply to the present hour. There cannot This was villein service; and Ware informs be an intelligent and hopeful Irish policy us that in that book, since burned, "the Bewithout a careful study of Irish history. tagii are distinguished from the tenants." But such a study is far from easy. Until But he does not state in what the distincof late years the treasures of the old Celtic tion consisted. He adds, however, that lore were almost totally neglected; and men of this servile condition were not perthough the day of spurious ore has gone by, mitted to have any military employment. still the specimens that have been brought Little else appears to have been known in to the surface inadequately represent the his time. Reference to "lands free and unmine beneath. This puts a difficulty in the free" appears in the Annals of the Four way, at the outset, in any endeavour to in- Masters, under the year 1585; and the vestigate the social position of the Irish editor explains (wrongly) that free lands Celts in relation to the land. meant land held by the chief's relatives, free of rent, and (rightly) that unfree land was land held by strangers, or natives who had forfeited their privileges by crime or otherwise, at high rents, and for services of an ignoble nature. The publication of the first volume of the Ancient Laws added incidentally some authentic details; but as it is chiefly concerned with an exposition of the Law of Distress, it gives no satisfactory description of the relations of the inhabitants to the land. There are, however, many striking analogies in it with the common law of England. The Law of Distress itself bears a close resemblance to the English law, even as modified by modern statutes. From before the introduction of Christianity into Ireland to the arrival of the AngloNormans, there were two great classes of inhabitants there-free and base. Prisoners of war and persons who did not perform their contracts might be reduced to servitude. St. Patrick himself was made a bondman, and the Acts of the Council of Armagh in 1171 show that there had been a custom of buying Anglo-Saxons from merchants, robbers, and pirates, and that they were held in servitude even in that year; for it was decreed "ut Angli ubique per insulam servitutis vinculo mancipati in pristinam revocentur libertatem."* These were slaves. By an ancient Irish canon the oath of such a slave, unknown to his master, was void; and by the Celtic laws the contract of a mog (translated "labourer") without his chief was void. There were slave-labourers; but there were also other classes of base or bondmen. Thus it was recorded in the Black Book of The existence of different grades of peo Annals of the Kingdom of Ireland by the Four Masters, edited and translated by John O'Donovan, LL.D., M.R.I.A., vol. v. p. 1842, note. + Ibid. Christ Church, Dublin, that certain lands Compare, for instance, these two passages:were (A.D. 1042) granted by the Danish King Sitricus of Dublin to that Church, "cum villanis, vaccis, et bladis," "with the villeins, cattle, and corn."§ And acts of this kind were not peculiar to the Danish colony for the Register of the Priory of All Saints, Dublin, contained a charter from Dermot, the Irish king of Leinster, in which "There is distress of five days' stay for the last of half a year, he (the chief) dies, and if he die fleece," i.e. "at the end of the year, or at the end before it, the opinion is that nothing is due in that case (i.e., the second food-rent, upon the death, is due from the tenant), if the time for supplying the food-rent had not arrived when the he died, and it is not himself that exacts it."chief died, i.e., the food-rent of the year in which Ancient Laws of Ireland, vol. i. pp. 185-7. "As a consequence of the determination of the estate of a tenant for life the moment of his death, it was held in old times, that if such a tenant had let the lands reserving rent quarterly or halfyearly, and died between two rent-days, no rent was due from the under-tenant to anybody from the last rent-day till the time of the decease of the tenant for life."-Williams, Principles of the Law of Real Property. The chief had only a life tenure of his chieftainship and mensal lands. In The land of each district was divided into commonage land, office or mensal land, and land held by individual ownership. From such individual ownership, seven classes derived the dignity of their grades of nobility. One of these nobles might (it is known) be elected president or king over the district; another, vice president.* such case, the petty king retained his own real property, and had a life possession of the mensal lands, and an official dominion over the common land. There were seven other grades of chiefs who farmed land, but whose dignity was ascertained by the amount of their personal or chattel property, the number of cattle they owned. ple was markedly indicated by the provisions | who have looked upon them from without. of this Irish law. Thus, no slave-labourer, We shall here give only a brief statement of "fuidir," shepherd, cow-herd, etc., could be that fraction of his discoveries which it is distrained for debts due from himself or absolutely necessary to know in order to others, nor for offences against the district understand the position of tenants, and the laws; but his foot was fettered, a chain was bearing of those laws which we shall have put round his neck, and he was kept on occasion to indicate. light diet, until his chief or lord settled the matter, and gave bail for him, or until he became forfeit in the ordinary course of poundage law. There was not only immediate distress, but distress with one or more days' stay, or grace, during which time the chattels seized were not taken to pound. The distress on those who paid food-rent had only one day's grace; the distress on those who paid cess or rent had three. Every prince and noble had a right to food-tribute from a limited number of base tenants. This food-tribute, however, was given in return for stock: the petty king gave his base tenants one hundred of each kind of cattle.* Beyond the statements that there were hired labourers as well as slaves, that there were free tenants as well as base, and that there were three kinds of rents,-rackrent from a person of a strange tribe, an easy rent from one of the tribe, and a stipulated rent that may be paid by the tribe and strangers, there is little more to be learned on the subject from this volume of the Ancient Laws, or from any published work. The word ciss, which is translated "rent," might with at least equal propriety be translated "tax" or "tribute." In the absence of more detailed information, it is not to be wondered at that the most fanciful views have been expressed about the state of society in Ireland. Generally speaking, writers content themselves with the opinions of Spenser and Sir John Davis, and do not even consult recent publications. Professor W. K. Sullivan, however, has gone to the root of the subject in his very important introduction to the second series of O'Curry's lectures. The work is still in the press; and we are indebted to the author's kindness for the use of it. The ancient customs and laws which he has exhumed afford a perfect solution of many historical difficulties, and supply the reasons and grounds of national landcustoms which have perplexed or misled all "Every king has seven base tenants, . . and the amount of stock which he gives to the seven base tenants is equal to the number of Seds that a Brewy cedach should have, and a Brewy lethech should have twice as many."-Ancient Laws of Ireland, vol. i. p. 61. The Brewy lethech has two hundred of each kind of cattle, except dogs and cats, and two hundred men in the condition of workmen," i. e., slave-labourers.Ibid. p. 47. The land-noble kept a portion of his land as demesne land. This he had cultivated by labourers or villeins of three kinds, who possessed no political rights, and to whom we shall refer presently. The other portion of his land was distributed amongst two classes of tenants, called Saer Ceili and Daer Ceili, usually translated "free tenants " and "base tenants." The Saer Ceili or free tenants gave him "military service and an annual tribute, helped him to bear the burthen of the tribe, paid his mulcts and fines, ransomed him or any of his family who might be taken as hostages." This kind of tenure seems to have represented tenure by knight's service, exempt from some of its more grievous burthens, such as maritagium, livery, and wardship. In that respect it resembled the beneficial tenure of free and common socage. The Daer Ceili or base tenants held by a tenure which also had some of the marks of common socage; but as they * Or Tanist, i. e. "Second," hence what is called the law or custom of Tanistry, on which Spenser writes, and about which Sir John Davis complains. The Tanist succeeded to the kingship when the king died. Sir John Davis confounded their tenure of office with their ownership of property. Sullivan's work with this: "The tenant" (who + Compare the above extract from Professor held by knight's service) "was at first expected, and afterwards obliged to render to his lord pecuniary aids, to ransom his person if taken prisoner, to help him in the expense of making his eldest son a knight," etc.-Williams, Principles of Real Property, p. 97. The custom of Gavel-kind, providing for the equal division of property amongst children on their parents' decease, existed in Ireland as in Kent. The Kentish tenure is defined as socage tenure subject to the custom of gavel-kind, in were ascribed to the glebe (so long as they retained stock and possession only, however), and were charged with frequent contributions, it may probably have been more closely represented by what is sometimes called villein socage. They yielded military service, which mere villeins did not. Their characteristic render, however, was non-military or rural service: "their chief rent consisted of victuals [foodtribute] given at two periods of the year, contributions at certain festivals, Cai or 'coshering,' that is, entertainment given on collecting their tribute," and other levies. With respect to the commons, Professor Sullivan says: "No one had any right, save by permission of the tribe council, to the possession of a special part of the common land except from year to year. A re-division of it took place annually in each township, in many localities, under the directions of a local court." "It was," he adds, "this annual division of the common land" with other things, "that gave rise to the idea that all land was held in common, and divided annually." The tenants were not subject to ejectment. "All Ceili, whether free or base, had certain definite rights in the territory, such as the right to have a habitation and the usufruct of land." The importance of this fact is self-evident. Below the Saer Ceili and Daer Ceili were the three classes mentioned above as cultivating the land-noble's demesne lands, and possessing no political rights. These were the Bothachs, the Sencleithe, and the Fuidirs. The Bothachs, or Cottiers, free and base, had a right of settlement, served the land-noble as hired and farm-labourers, and performed menial services. The Sencleithe, or old adherents, were the descendants of mercenaries and prisoners "who had acquired the right of settlement." Like the Bothachs, they "did not possess the political rights of freemen; but they formed part of the affiliated family or clan, and were thus secure of shelter and relief, and were irremovable from the estate of the lord." The Fuidirs were of two kinds, bond and free. The bond Fuidirs were convicts, prisoners, and degenerate free Fuidirs. The free Fuidir was a freeman, but a stranger, an individual of another tribe or district. If he wished to retain the rights and privileges of a freeman, he could only hold from year to year; " if he entered into longer engagements than one year with another than his own chief, he lost his rights, and became permanently a Fuidir." In that case, he became a bond or base Fuidir. But if he served then continuously under two lords succeeding one another, he acquired, on the accession of the third lord, free rights. In any case, bondage did not extend to his grand-children. Thus even the Fuidirs acquired perpetuity of tenure. Professor Sullivan draws attention to this important fact, as in part explaining the traditional right of fixity claimed in the present day by peasants. He says: "This circumstance explains the expression so often heard among the Irish peasantry, when they complain of being ejected by their landlords: My father and grandfather were there before me,' or 'My grandfather was a tenant of his grandfather.' He shows likewise how the Irish law reveals the cause why rack-rented tenants, as Spenser remarked, would only hold "from year to year" and preserved their "liberty of change." The wars dispossessed many free tenants; and, whilst seeking a livelihood, they yet would not do anything to forfeit their ancient free rights, or bar their claims to their ancient holdings. On the other hand, it was the interest of alien or new lords to reduce all tenants to this rack-rented condition. Yet these Fuidirs, whose lot was regarded as one of hardship by the Irish law, had a right to all their improvements; and it has been shown that in the third generation, or at the election of the third lord, they obtained a security of tenure equal to that enjoyed by English copyholders, who, like them, originally emerged out of a state of villenage. Thus under the ancient laws of Ireland there were compensations for improvements in the case of the temporary yearly tenant, occupancy titles, security of tenure, and certain rents. The questions next arise: How long did these laws continue to govern and influence the population; at what time or times were they replaced by others; and what were the laws and customs set up in their stead? These questions can only be satisfactorily answered by an historical examination of the fortunes and conduct of the colonies that entered Ireland from Britain. The men who settled among the ancient Celtic colonizers, before the Norman invasion, were not essentially different from them in their land-views. The Norse system resembled the Irish in a marked manner; and, although the Danish settlements were principally confined to a few the Third Annual Report of the Real Property towns on the sea-coast, Scandinavian famiCommissioners, p. 7. lies had rooted themselves like ancient silio regis provisum est, quod omnes leges et consuetudines que in Regno Anglie tenentur in Hiberniâ teneantur.' trees far inland, and intermarriages be- | terrarum regis, rex vult et de communi contween the princely families of the Irish and Norse were of no unfrequent occurrence. The constant and friendly intercourse that existed between the Anglo-Saxons and Irish Celts, during the seventh and part of the sixth century, combined with the influence of the great Irish schools, tended to modify any differences. At the least, Anglo-Saxon settlers were thus made acquainted with the principles of the Irish law, and could comprehend and adopt them. Professor Sullivan considers that the land-systems were, in many respects, remarkably alike. The Anglo-Normans introduced the feudal system officially; but how far was this a real and solid introduction? Formally, Henry 1. bestowed upon ten of his principal adherents the entire land of Ireland, by charters drawn up in accordance with Norman law; but actually his adherents formed only a small cluster on the eastern coast, replacing and representing the Danish colony. John, though he claimed to be Lord of Ireland, did not assume the title of King of the Irish-a distinction with a difference. The Irish were long called "enemies;" the AngloIrish insurgents were always called "rebels." Dominion was claimed over the soil rather than over the people; it was of more importance to adventurers that the soil should be called under the law than the people. In the reign of John the English territory was divided, on paper, into twelve counties; and the nobles were sworn to obey the laws of England. The "War of Chicane," which Burke described as following the War of the Sword, began in the Anglo-Norman settlement with John's arrival; for new adventurers intrigued for the possessions of veteran invaders. On his death, one of the first public acts of the Earl Marshal was the proclamation of a general amnesty in Ireland. The Great Charter was extended to Ireland in 1216, and solemnly confirmed in 1227, when Henry III. directed the Lord Justiciary to call before him the archbishops, bishops, earls, barons, knights, freeholders, and bailiffs of counties, to read it publicly before them, and to swear the magnates of Ireland firmly to hold, observe, and enforce the laws and customs of England. The laws and customs were insisted on in various writs; thus in 1245 a writ was issued confirming former ones, and among other things containing these expressions:-"Rex, etc., quia pro communi utilitate terre Hiberniæ et unitate *Topographical Poem, by O'Dugan, Bard of O'Kelly, A.D. 1570. + Saga of Burnt Njal, translated by G. Dasent. War of the Galls and Gaels, edited by Dr. Todd. + Gilbert, Viceroys of Ireland. The Welshmen who accompanied or followed the first adventurers, and whose language and customs were almost identical with those of the Irish, had already doubtless settled down, finding it easy to conform to Irish habits, though they may have ousted some landholders. In the Great Charter, the liberties and customs of the inhabitants of Wales were acknowledged and confirmed. It would have been well if the same principle had been applied to Ireland. But even if the magnates of Ireland had faithfully followed and enforced the customs and laws of England, compensation would have been allowed to tenants for improvements, and the humbler tenants would have grown up from a state of insecurity to one of security, as the villeins grew to be copyholders, and as customary freeholders were developed. The tendency, however, has been directly the reverse; and it is interesting to note the early indications of what is literally the de-grading system, the enforcement of which has caused innumerable disturbances, and given support to not a few attempts at insurrection in Ireland. Curiously enough, the first case of collision between landlord and tenant occurred abou tthe time of the extension of Magna Charta to Ireland. Henry de Londres, the landlord concerned, was not only Archbishop of Dublin and Papal Legate, but also Justiciary. He seems to have found some difficulty in distinguishing between his functions; for he had to be prohibited by royal writ from drawing temporal causes into ecclesiastical courts, and his conduct in excommunicating keepers of the King's Wood for resisting his wood-cutters was one of the causes of his deposition. From his general conduct to his tenants, and on account of the following circumstance in particular, he became popularly known as "Scorch-villein" (perhaps, "Ecorche-vilain").† When he The first case of legal action by landlord against tenant in the Pale appears to have been taken under the Statute of Westminster 2, 13 Edw. I., which took effect in Ireland, as the fol minster 2, 13 Edw. I. gives the writ of cessavit lowing extract shows:-" The Statute of Westagainst the tenant for recovery of lands holden, who for two years ceases doing the services reserved by tenure. This is an introduction and new law, as is observed by Fitz Herbert, and wherein Ireland is not yet named; yet that Statute was there received and put in execution in the same King Edw. I. his time, as we may see |