clansmen by Gavelkind. In 1608 the Judges, after hearing arguments for and against, had decided that the law could not recognize descent by Tanistry, and two years before "it was resolved and determined by all the judges that the Irish custom of gavelkind was void and unreasonable in law. … And all the lands of these Irish countries were adjudged to descend according to the course of the common law."[1] The proviso was added that anyone who possessed and enjoyed any portion of land by the custom of gavelkind up to the commencement of the King's reign should not be disturbed in his possessions; but that afterwards all lands should be adjudged to descend according to the Common Law.[2]
Now the effect of these two decisions was practically to reduce all Irish claimants to land in virtue of the two customs condemned to the position of mere squatters.[3]
There remained the grants to the chiefs and to certain prominent members of the clans. Some of these could not be got over; but with others a means was found.
In some of the grants, based on a surrender by the chiefs, there was an express condition that the
- ↑ Quotation from the resolution of the Judges given in A. Ua Clerigh: History of Ireland to the coming of Henry II., p. 237.
- ↑ As a matter of fact the Books of Survey and Distribution clearly show cases in Connaught of lands divided according to gavelkind as late as 1641.
- ↑ Vol. 625 of the Lambeth MSS. founds the King's "general title" to these districts on the two facts that the chieftainships went by tanistry, but that there was no estate of inheritance thereby by the common laws of the Realm, but only a temporary taking of the profits thereof; and that those who held land by gavelkind have no estates therein by the common laws of the Realm.
