Gavelkind and Ancient Tenures

The term “Gavelkind,” according to Coke originated from the words Gave all kinde; but, according to O’Brien, the word in Irish is Gabhail-Cine, pronounced “Gavalkine,” and appears to be derived from “Gabhail,” a taking or share, and “Cine,” a kindred or tribe: thus signifying the share of a kindred. This ancient tenure, by which lands were equally divided amongst the different members of a family, prevailed amongst the Celts in Britain and in Ireland, and was also adopted amongst the Anglo-Saxons, and is still continued in Kent.

The English Gavelkind differed from the Irish: in Ireland, the lands were divided only amongst the sons of a family, and the illegitimate as well as the legitimate got a share; while all the females were excluded, but got (instead of lands) a dowry or marriage portion, in cattle, goods, money, etc. On the deficiency of sons, the lands of the Irish chiefs were “gavelled” amongst the males next of kin, but the chiefs themselves, and the Tanists, had certain mensal lands, which were hereditary, and appropriated for their support, and were never subject to Gavelkind. With regard to the rights of property, the tribe or clan had an allodial and original right to the tribe lands, and could not be deprived of them; but different persons held them by turns, and paid tribute or rents to the chief. By “allodium” was meant a freehold, or land held in one’s own right, and not by feudal tenure. The chief himself had no hereditary estate in his lands, but merely held them for life; the inheritance rested in no name. When the chieftains died, their sons or next heirs did not succeed them; they were succeeded by their Tanists, who were elective, and mostly purchased their election by “strong hand.” When any any one of the sept or tribe died, his portion was not divided amongst his sons, but the chief of the sept made a new partition of all the lands belonging to the sept, and gave every one a share according to his seniority. Sir John Davis ascribes the violent contentions of the Irish chiefs to this uncertainty of tenure, and the constant changes and partition of lands. It would indeed appear that those who held lands under the tenure of Tanistry were a sort of tenants-at-will; but if the chief removed any of them, he was bound to provide for them other lands on the tribe territory, which must always continue in possession of the clan. Many of the great Anglo-Irish families, particularly the Fitzgeralds of Munster, and the Bourkes of Connaught, adopted the Irish language, manners, and customs, and the laws of Tanistry; but, by the “Statute of Kilkenny” and other Acts, such practices were punished as treason or felony. Notwithstanding many penal enactments to the contrary, however, the laws of Tanistry and Gavelkind continued to be used in Ireland down to the reign of James the First, when they were abolished by Act of Parliament. The Brehon laws, though very defective in many points, were founded in a spirit of mildness and equity, and, if properly administered, might prove advantageous; but, according to the learned Charles O’Conor, in his “Dissertations,” the laws administered in Ireland during the English period, from Henry the Second to Elizabeth, were so oppressive, that “during these times of desolation, the manners, customs, and condition of the Irish proceeded from bad to worse: their own ancient laws were for the most part useless, hurtful, or impracticable; and they were thrown out of the protection of those of England.” Of Ireland and the Irish, Sir John Davis, in his “Tracts,” p. 227, says:

“There is no nation or people under the sun that doth love equal and impartial justice better than the Irish, or will rest better satisfied with the execution thereof, although it be against themselves, so as they may have the protection and benefit of the law, when upon just cause they do desire it.” Lord Coke says, in his “Institutes,” Book IV., 349, “I have been informed by many of those that have judicial places in Ireland, and know partly by my own knowledge, that there is no nation of the Christian world that are greater lovers of justice than the Irish, which virtue must of course be accompanied by many others.”