|Ireland: Serfs not Citizens
Featured article from Issue 8, June 2009 and Issue 9, September 2009, of Tinteán, the quarterly journal of the Australian Irish Heritage Network (now online @ Tinteán.org.au/
A synopsis (16K words reduced to 3K words) of Chapter 8, Ireland: Serfs not Citizens from the book Who Owns the World by Kevin Cahill, extracted and summarized by Mairéid Sullivan, with permission and support provided by Kevin Cahill, for publication in two parts.
WHO OWNS THE WORLD presents the results of the first-ever landownership survey of all 197 states and 66 territories of the world, and reveals facts both startling and eye-opening.
You'll learn that:
--Only 15% of the world's population lays claim to landownership, and that landownership in too few hands is probably the single greatest cause of poverty.
--Queen Elizabeth II owns 1/6 of the entire land surface on earth (nearly 3 times the size of the U.S.).
Who owns the world?
By Kevin Cahil
Synopsis / extract written by Mairéid Sullivan
June 1st, 2009
The following two-part article is an edited extract of Chapter 8 “Ireland: Serfs not citizens” from the book ‘Who owns the world’ by Kevin Cahill. (See the accompanying review ‘Reinvigorating old ideas: Who Owns the World?’ by Mairéid Sullivan, Tinteán (Issue 7, 2009)
A beautiful place in summer, the Irish winter is as unforgiving as it is in any other part of northern Europe. Without shelter and stricken by the potato blight, a million or more starving and sick Irish peasants perished during the Great Famine of the 1840’s. The main culprits in Ireland for this enormous tragedy were the landlords and the law. The law that denied land ownership to the peasantry, Quia Emptores Act of 1290 AD, is still on the Irish statute book.
It is this basic feudal law, restated, which placed the actual ownership of all physical land in the hands of the Crown. Subsequently this law was placed in the hands of the Irish Free State, thus making all ‘land owners’ in Ireland tenants of the State, having to pay rent in contradiction of their alleged status as ‘freeholders’. The underlying principle in Quia Emptores also underlaid the Acts of Settlement which evicted the native Irish ‘landowners’ and substituted English and Scottish settler landowners in the 17th and 18th Century. The basic argument in law was that the Irish ‘landowners’ were mere tenants of the Crown, and the Crown could dismiss and evict its tenants, legally, as indeed it could, under Quia Emptores and associated laws. The completion of the dispossession of the Irish peasantry, and the exemplification of the dangers inherent in bad laws, were the anti Catholic penal laws of the 17th and 18th century which denied the Catholic peasantry any form of tenure on the grounds of their religion. It allowed landlords to evict people ‘at will’ even if they had just paid the cash portion of the rent. So was the stage set for the famine deaths, by statute, – as all land was owned by the Crown, the people were deprived of any right of redress when they were evicted and lost their only means of livelihood.
To be a citizen is to have the innate right to obtain and own land. There is a direct connection between the first human right, the right to life, and the right to land, which is seldom raised, especially by lawyers. To make the right to life functional, three other attached and inseparable rights have to be considered. The right to life itself has no meaning if not accompanied by a right to water, to food and to shelter. It is this last attendant right, the right to shelter, which brings us to the connection between basic human rights and land. Shelter, to be meaningful, has to be secure. A bunch of branches that provides cover for a few days serves no meaningful purpose in lives that are meant to endure for decades. The securest form of shelter is a hard built home, owned outright by the person or family living in it. The right to secure shelter accompanies the other two attendant rights to the right to life and is inseparable from them because in most practical situations, water and food will not keep you long alive, if you have no shelter. The Irish Famine of 1845-1847 is one of the grimmest examples of why the first right and its three attendant rights must be pursued and considered together. The common perception is that the million or more who died at the time of the famine, died because the staple food of the peasantry, the potato, failed due to blight. Here, however, is how an eyewitness to the famine, an American journalist, Henry George, saw it.
When her (Ireland’s) population was at its height, Ireland was a food exporting country. Even during the famine, grain and meat and butter and cheese were carted for exportation along roads lined with the starving and past trenches into which the dead were piled.
There was no actual shortage of food in Ireland during the famine. There was plenty of water. But note where Henry George found the peasantry, on the side of the road – shelterless, or in the ditches – dead. The Irish peasantry, about 98% of the then population of Ireland, were not permitted to own land, or even to have secure tenancies. They were slaves. They were on their patch of land, in their hovels, at the will of their landlord. By law. When they could not feed themselves due to the potato blight, and could not supply the feudal due of labour as well as cash rent to their landlord masters, they were turned out on the side of the road, by law. By law, their hovels were torn down and they were hunted out of what shelter they could find in holes in the ground. The law permitted landlords to drive food past the dying, and have no responsibility, in law, for the consequences. The law was not an ass. It was a murderous obscenity.
It is worth quoting Henry George’s final comment on the famine.
The potato blight might have come and gone without stinting a single human being of a full meal.
When the third British Empire created Dominion status for Canada, Australia and New Zealand, in the 19th and early 20th century it forgot its neighbour, Ireland. It was part of Britain, a part of the foundation stone of the first Empire. To let Ireland go the way it was clamouring to go, out of Empire and into a Republic, was unthinkable to the Imperial bureaucrats even though the Irish were in a state of perpetual rebellion for independence. Then, right in the middle of World War 1, on Easter Sunday morning 1916 even while 150,000 Irish men were fighting in the trenches for the Empire, a small group of Irish men and women staged an unsuccessful and profoundly unpopular, armed uprising in the Irish capital, Dublin. The fighting ended before the week was out. The leaders of the rebellion were executed by firing squad, an act that initiated a profound change in Irish public opinion, eventually leading to the creation of a Free State within the Commonwealth in 1921. The first Constitution of the Irish Free State followed in 1922.
Two things had convinced the Irish that independence without possession of the land itself by the native people was meaningless. The first was the criminalisation of the entire native population by the penal laws in the 18th century, enforced by law by their own local landlords and against which they were powerless. The second even more traumatic event was the Famine and the vast toll it took on the native population, in lives and in emigration. It remained vivid in the minds and memories of virtually the entire native Irish population at the beginning of the 20th century. Nothing did more to persuade the Irish that only the possession of their own land in their own hands and having their own government could protect them from legally created disasters like the Famine.
Ownership of land in Ireland in the 21st century
The position of land ownership in Ireland is unique. Between 79% and 82% of all Irish homes are privately held in freehold tenure. This is the highest level of private home ownership in the developed world. All farmland is privately held. This leaves the Irish Government as the formal owner of the woodland of 1.1 million acres, of 210,000 acres of the 2.9 million acres of peat bogs and of its own urban buildings. This is, at most, 7.5% of the country. In practical terms 85.5% of the Irish population have de facto ownership of about 92.5% of the country. Based on private home and private farm ‘ownership’, 92% of the population have a stake in privately held property. Irish private ‘landownership’ is higher than the USA, where private home ownership stands at about 70%, and private farm sole ownership stands at about 67% with the Federal Government owning 33% of the USA. In Ireland most land ‘ownership’ is in the form of ‘freehold’. Those with a ‘freehold’ believe that they have actual ownership of the physical land their home stands on, and the building itself. Likewise for farming families and the land and buildings they hold ‘freehold’. In this they are mistaken.
Correcting a feudal error – a misunderstanding of ‘freehold’
The reality is that the Republic continues in law as a feudal state. The State owns all land as feudal superior. This situation is fixed in the current Irish Constitution of 1937, as amended. The constitutional position is articulated in statutes, some going back to the early occupation of the country by the English in the 13th century. Those statutes were adopted by the State in its first constitution in 1922. The Irish State, as the successor to the original feudal superior, the Crown of England and Great Britain, owns all the land (and buildings) in the country. What individuals and families hold, not own, is an interest in an estate in land, in fee simple.
The purpose of the feudal system and its structure of land laws was to preserve the position of the Crown or monarch as the sole owner of the ‘physical’ land and to ensure that the bulk of the population did not own land. The feudal system imposed on England by William the Bastard (of Normandy) in 1066, was illegal according to the laws of the time. It was theft. All subsequent feudal land law was created to protect this theft, and to keep the stolen land in the hands of the Crown and out of the hands of the population. It was an immensely successful endeavour. The English Crown, the successor to William the Bastard, owns all land in England and UK territories. The Crown’s British subjects, 70% who are ‘freeholders’ are not owners of land, but feudal tenants of the Queen. As recently the second Doomsday in 1872-1876, only 2% of the Irish population even had the status of feudal tenants. The remaining 98% of the Irish population owned nothing at all, not a blade of grass. They were not feudal serfs. They were slaves.
The people who risked and gave their lives to create the Irish Republic, did not do so in order that they and their children might have ‘an interest in an estate in land, in fee simple‘. They fought and died for absolute allodial ownership, even if they had never heard of the word. The men and women of 1916 did not line the windows of the GPO shooting and shouting “Give us an interest in an estate in land“! Perish the thought. They fought and died that their people might be full property owners and landowners in their own country, that they might be true citizens, in the real sense of having personal, legal possession of the sole final guarantee of survival, land. No one planned and took part in a rebellion against English rule in order that the freeholders of Ireland should be serfs of the Irish State nor that it should be their landlord.
The Irish Law Reform Commission
September 1st, 2009
The principle which enshrines feudal law and land tenure in Irish law and makes all Irish citizens feudal tenants of the State, is Article 10 of the current (1937) Irish Constitution. This states (10. 2) that: ‘All lands – which belonged to Saorstat Eireann immediately before the coming into operation of this constitution belong to the State to the same extent as they then belonged to Saorstat Eireann.’
The relevant Article in the Saorstat Eireann constitution, is Article 11: ‘All lands and waters – hitherto vested in the State shall, from and after the coming into operation of this constitution, belong to the Irish Free State’. Article 10.2 of the present constitution operates in conjunction with article 43.2 of the same constitution: ‘The state accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.’ However ‘Property’ here does not include and cannot include land, since the state has taken possession of all land in the Republic in Article 10.2.
The constitution of Saorstat Eireann did not mention anywhere the issue of private rights to the ownership of land. The Irish document delegated ownership of land to the contents of the statute book, which vested all land in the monarch, a right that the Free State assumed in Article 11 of its constitution.
Into this situation came the Irish Law Reform Commission (2004). Their viewpoint was that the issue of feudal ownership is taken as read. The Law Reform team members were all lawyers. Their consultation paper states: ‘that what is “owned” under the current Irish land laws, is ‘the somewhat metaphysical notion of an estate or interest in the land’ (par 1.03. p.10). The Commission earlier in the same paragraph states, (erroneously) that; ‘In strict theory, no person or body owns “the land” (the physical entity comprising the surface of the earth), as well as buildings and other structures erected on it (par 1.03. p.10). Eventually they made two major recommendations for reforms to Irish land law:
One: The Law Reform commission provisionally recommends that ‘the concept of tenure should be abolished, and that old statutes relating to tenure should be repealed.’ (par 2.09 p. 41). There is no mention of the Constitution.
Two: contradicting the above recommendation, the Commission provisionally recommends that the concept of an estate in land should be retained (par 2.13 p.42). This is despite having observed that ‘The time has surely come to recognise that the feudal concept of tenure has no place in the Irish legal system of the 21st Century.’ (par 2.07 p. 36).
The Legal Researcher for the project, Professor Wylie, came to Ireland steeped in English concepts of tenure, and in England’s unwritten constitution. Faced with a familiar form of law but with a flanking attack from the Irish in the team, who assured him that feudal tenure had to go, he tried to retain the feudal concept of an estate – but agreed with the team that feudal ownership had to be replaced by direct ownership. The Irish Constitution’s underpinning of the feudal overlordship by the state was ignored so Professor Wylie has sent to the Irish Parliament a bill that cannot be enacted, and which fails to achieve any of its five goals. Much rubbish will be swept off the Irish statute book, but the thrust of the reform has been lost. This is why the Commission’s first recommendation cannot be implemented without two amendments, one to article 10, the other to Article 43 of the current Constitution. The second recommendation cannot logically be implemented, if the first recommendation is implemented.
The Commission produced its report without addressing how land, citizens, and the state itself, are defined and relate to each other in the modern world. Society and the key relationships between citizen, state and land, have changed. Now the people possess the entire land of the Republic. It would seem logical to suppose that what is needed now is a body of new law that reflects this new reality, and not a rehash of the laws that were written to make the situation we now have – universal possession – impossible. On historic grounds alone, the assumption that any of these laws should be retained, in any form, is questionable in the extreme.
The Commission and land law in Ireland
The unstated assumptions in the Commission’s proposal is that existing land law is about land. It is not.
The Commission notes, ‘It is remarkable that much of our current law stems from the introduction of the Norman feudal system of landownership. That system was imposed on England and Wales following the Norman Conquest beginning in the 11th Century.’ That remark can be emphasised by this entry in the explanatory notes to the Land Registration Bill 2001, of the United Kingdom. ‘The Crown is the only absolute owner of land in England and Wales’
The purpose of those laws was to maintain a system in which the monarch, (or in this case, the Irish State) owned all the land and the population owned none. That is the key: that the population should own no land at all. It bears repetition. The purpose of all the feudal land laws, derived from the fundamental principle of the feudal system, including those currently extant in the Irish state, was to prevent the population owning land.
The feudal state is the antithesis of a people’s republic. The Irish Constitution (1937) is essentially feudal. It betrays the deepest motivation amongst the rebels who drove the creation of the state; the right of the people to own the land directly. In the feudal state the purpose of the person is to serve, not his or her own interests, but those of the master, which in the implications of the 1937 Constitution, is the state. The feudal tendency inherent in the Irish Constitution is exemplified in Article 10, in which the state is superior to the subject, in every key situation. The people, from whose hearts and souls have sprung the state, are its sovereign, and not, as the constitutional situation of the 1937 Irish Constitution implies, its servants.
In fairness, the 1922 Constitution was the best the Rebels were going to get, and it provided a workable start for the new state. Certainly, it was beyond the safe powers of the government of the Free State to make explicit the fact that it owned the physical land, while all the citizens owned was ‘an interest in an estate’. While there is no mention of the right to own property in the 1922 constitution, a deceptive mention comes in the 1937 Constitution, in Article 43. Rather a long way down the line, after the TDs and the Judges, the Captains and the Commandants, comes the citizens’ most basic right, the right to own land, except land is excluded. Article 10 narrows the meaning of ‘property’ in Article 43, to things which are not land.
As the occupants of a state, its citizens are the sole source of its authority, and the sole reason for the state’s existence. The only existence a state can have is conferred on it by its citizens. They do this via a constitution. Both Irish constitutions acknowledge this.In the 1922 Treaty Article 2 states: ‘All powers of Government and all authority, legislative, executive and judicial in Ireland are derived from the people of Ireland.’ By 1937 the role of the people dropped lower in things constitutional and God arrives. In article 6.1 the Constitution states that: ‘All powers of Government, legislative, executive and judicial, derive under God, from the people.’
The Commission first recommends the obvious:‘that this should be changed’ and that ‘statutory provision similar to those enacted in various states in the United States, should provide for its (feudal tenure) abolition and declare that all land in the state is allodial’ (directly owned, in its physical form) (par 2.07 p. 33). Then the Commission gets cold feet and recommends the retention of precisely that device which medieval lawyers constructed, in order to enable business to be done (section 2.10 p. 41). This is the concept of ‘an interest in an estate’. The Commission argues ‘It does not follow from the proposed abolition of tenure that the other fundamental concept which was part of the feudal system, the concept of ‘estates’ should also be abolished’. However, there is one sentence in the argument for the retention of ‘estates’, which goes to the heart of the Commission’s contradictions. ‘On balance the conclusion has been reached that at this stage replacement of a well established and understood concept is not justified and might do more harm than good’ (par 2.11 p. 42).
A possible way out of the dilemma
Who in Ireland understands the principle of feudal tenure, of ‘estates’, underlying Irish freehold? The answer is no one in the general ‘freeholding’ population. Those who ‘own’ their homes ‘freehold’ believe that they actually have alloidal ownership already, that they do own the land as well as the buildings, absolutely. The American Constitution, referred to by the Commission, points the way. That constitution locates the authors of the state, its architects and its constructors, in that most memorable of phrases: ‘We the people.’
Any state that is real, logical and legal, must be so created that it addresses, as its first concern, the protection of the citizen’s first right and its attendant rights. This is done initially and practically by recognising and defending the right of each individual in the state to own land. With that right secured constitutionally, all other rights can be logically derived, and a constitution can become what it should be; a statement of citizens’ rights that the state is created to defend and enhance.
Kevin Cahill (with Mairéid Sullivan | maireid.com)
Kevin Cahill is an Irish born author and investigative journalist now based in Devon, England. He is a Fellow and South West regional secretary of the Royal Society of Arts (RSA), a Fellow of the Royal Geographical Society, and a Fellow of the Royal Historical Society.
Who Owns the World (UK 2006 - USA 2009) is published by Mainstream Publishing, Edinburgh, Scotland, and is available from www.whoownstheworld.com and amazon.co.uk