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Trinity College and its influence on Irish Law

"Between the accession of George the Third in 1760 and the last appointment by England in 1921, a hundred and forty-five men were raised to the bench. Of these Dublin University claimed as alumni as many as a hundred and eleven."

The above quotation is taken from F.E. Ball's "The Judges in Ireland, 1221-1921", published in New York in 1927. To state the matter plainly, more than two-thirds of the judiciary were Trinity educated, and of the remainder most were English appointees. Thus, over a period of 250 years the tilt away from Irish law was greatly facilitated.

As was so effectively pointed out by William T. Cosgrove in 1923, in a letter quoted by A.G. Donaldson in his concise but comprehensive "Some Comparative Aspects of Irish Law", published by the Duke University Commonwealth Studies Center in 1957:

"In the long struggle for the right to rule in our own country there has been no sphere of the administration lately ended which impressed itself on the minds of our people as a standing monument of alien government more than the system, the machinery, and the administration of law and justice, which supplanted in comparatively modern times the laws and institutions till then a part of the living national organism. The body of laws and the system of judicature so imposed upon this Nation were English (not even British) in their seed, English in their growth, English in their vitality. Their ritual, their nomenclature, were only to be understood by the student of the history of the people of Southern Britain. A remarkable and characteristic product of the genius of that people, the manner of their administration prevented them from striking root in the fertile soil of this Nation."

An inquiring mind might turn to J.C.W. Wylie's 914-page tome, "Irish Land Law", published in 1975 by Professional Books Limited, London. Wylie was then editor of the "Northern Ireland Legal Quarterly", and had as consultant editor for the Republic of Ireland the Hon. Mr. Justice Kenny of the High Court in Dublin. In a foreword Kenny writes:

"I hope that this book will lead to the more frequent citation of Irish authorities in court and that it will induce those practising and studying law in the Republic of Ireland and in Northern Ireland to take pride in our joint inheritance."

The brehon laws are a cardinal feature of that inheritance, but, as Wylie writes (p. 16):

"As things have developed, only in comparative modern times has reference been made in Irish courts back to the brehon system, e.g. in an attempt to solve difficult questions relating to fisheries."

Note once more the phrase "comparatively modern times", used by W.T. Cosgrove in 1923, and by Wylie in 1975, but in altogether different contexts. To Cosgrove "comparatively modern times" covered centuries when English law was imposed on Ireland; to Wylie the phrase denotes cases heard in the 20th century, several of them dealing with fisheries rights and ownership.

How often was English law used to declare Irish law null and void? Secondary school students are familiar with one of the earliest such cases, the Statute of Kilkenny in 1336, which forbade English settlers, who were to become known as the old Gall, or old English, to use brehon law to settle their legal disputes. Laws passed by the Patriot Parliament of 1689 were similarly declared null and void only six years later. The precedent of declaring null and void laws passed by a previous authority has a long history, and has been followed by successive regimes in many, many jurisdictions. The evolution of land law in Ireland was tortuous, and reformation of the law was only won after strenuous battles, political and otherwise.

Of especial interest is law governing common rights to river waters, and to fish in "all tidal rivers and waters." A pertinent reference by Wylie (p. 310) states:

"It has now been settled in a series of cases concerning some of the main rivers of Ireland that, while the Crown was free to grant individual or several fishery rights to specified parts of tidal and navigable waters prior to Magna Carta, 1215, that charter prohibited the granting of any new fisheries thereafter. It was, however, accepted that those fisheries existing before Magna Carta, whose survival in private hands could be established, remain valid to this day."

In essence, fisheries confiscated during the Plantation of Ulster and granted by the Crown to servitors and adventurers, were thought to be illegally granted, at least according to England's Magna Carta.

But the writ of Magna Carta did not run in many parts of Ireland, particularly the Northwest, which (see Wylie, p. 310 f. 54) "did not come under the influence of the English feudal system introduced by the Normans until the late sixteenth or early seventeenth century...Until then the system of law in force in the North West of Ireland was the brehon system, which does not seem to have recognised private property rights in several fisheries, though this is a matter of dispute among Irish scholars. Note the evidence given by scholars of ancient Irish law in R. (Moore) v. O'Hanrahan [1927] I.R. 406; Moore v. Att.- Gen [1934] I.R. 44; Foyle and Bann Fisheries Ltd. v. Att.-Gen [1949] 83 I.L.T.R. 29."

Faced with the impending reunification of the six counties of Northern Ireland with the twenty-six counties of the Republic of Ireland, the question of which land laws shall apply warrants a careful revisitation, giving weight to the mass of English precedent but with equal weight accorded "the laws and institutions till then [the advent of English rule] a part of the living national organism."

To the descendants of English and Scottish planters, and to the descendants of the original Irish owners of the land, the issue is as relevant today as when first voiced by W.T. Cosgrove in 1923, a very, very comparatively modern time. And what will be the influence of Trinity College?

Postscript: The interest shown in last week's review of the origins of Trinity College and its massive land grants in Donegal and Munster, in the latter case principally in Kerry, prompts the addition of a few further details.

Following the rebellion of 1641, Provost Samuel Winter set about strengthening Trinity's financial situation, and succeeded "thanks largely to journeys undertaken by the Provost himself to Donegal and Kerry to make arrangements for the regular collection of rents".

The words quoted above are to be found at pp.17 and 18 of "Trinity College Dublin, 1592-1952", an academic history by R.B. McDowell and D.A. Webb (Cambridge University Press, 1982), a most informative work, although in its ending still pleading "the beal bocht".

In Appendix 3 "College finance and academic salaries" at page 509, the authors stated:

"Our curves start in the economic doldrums which followed the famine, though the College, thanks to its policy of letting largely to middlemen, suffered much less than did most landlords. Nevertheless, arrears of rent and fall in student numbers combined to drag the total income down from about 73,000 in 1830 to 55,000 in the middle fifties. Soon after 1860, however, recovery began, and the curve for income rises slowly but steadily, with only small but short-lived setbacks, until the departure of students to war in 1914 caused a sudden and fairly serious fall."

The role of middlemen during the Irish Famine has already been noted in the series "The Famine--"The Times"--and Donegal." That Trinity should have used their services to its own benefit is not surprising.

Its later reaction to the Land League, and to the Wyndham Act under which "the College was bought out" (p. 280) was fully in keeping with its financial policy during the Famine:

"The attitude of the College to the [Land War] was simple; it did not mind what purchase schemes were devised so long as its own income from land (which represented about half the total income) was not sensibly reduced. During the various campaigns for the witholding of rents the College was in a relatively strong position, since it had used the enlargement of its leasing powers granted in 1851 to let most of its property in large blocks to perpetuity tenants; these were men of some substance, and when they asked the College for a scaling-down of rents the Board could give them a dusty answer without exposing itself to the charge of grinding the faces of the poor. Its refractory tenants in the fifties and sixties had included Lord Chief Justice Lefroy and the Earl of Leitrim. The latter was murdered in 1878 as a rack-renting landlarodl, but this did not prevent his nephew and heir from addressing the House of Lords a few years later to plead the cause of distressed tenants against their flinty-hearted landlords (in his case Trinity College). Although the obduracy of the Board led to considerable arrears of rent its policy paid of well in the end, for when the College was bought out under the Wyndham Act the purchase price was based on the somewhat unrealistic rentals which the Board had insisted on maintaining."

In what was dubbed "the financial crisis of 1919-1923", McDowell and Webb detailed the fall-off in funding Trinity had experienced, and its attempt to secure financial assistance from the newly independent Irish government. A barney erupted between the new Department of Finance and the College, with the latter claiming it was now the only university "in the British Isles" not receiving a grant from public funds. Diplomacy was not Trinity's strong suit when approaching the recently elected national government. But, as McDowell and Webb added (p 428):

"Shortly afterwards the Government made a reasonable settlement with the College in relation to a complex financial liability arising from the Land Act of 1903. The Government agreed to make over to the College for investment a balance of 76,000 in the hands of the Public Trustee, representing money which might have been made payable to the College if its loss in income from compulsory land purchase had been greater than in fact it had been. In return, the College agreed to accept an annual grant of 3,000 on the understanding that it would abandon all further claims in connexion (sic) with land purchase. By this means the College secured an immediate increase of about 4,000 in its annual cash income, though much of it was to be later eroded by land purchase on relatively unfavourable terms. The Government, on its side, released itself from a rather tiresome contingent liability."

A.G. Donaldson at page 243 of his "Some Comparative Aspects of Irish Law", recalls the enactment, by England, of the Renewable Leasehold Conversion Act of 1849 which enabled landholders to issue perpetually renewable leases, and Donaldson adds that in 1851 "a private act (14 & 15 Vict. c.cxxvii) enabled Trinity College, Dublin, to grant similar perpetuity interests to its long lessees and sublessees. Thus, a general act and a private one gave legislative sanction for the transmutation of leasehold interests into fee farm grants, but usually only the larger landholders benefited, although there are still instances of small holdings held on conversion grants."

What of Trinity's own interests during "comparatively modern times", to use Cosgrove's memorable phrase? It must be recalled that Trinity, as late as 1850, retained 95,000 acres of Irish land seized from its native owners.

What is the extent of Trinity's holdings today, 147 years further on? In recent years has any parliamentary committee made inquiries similar to those made by the committee which led to the passing of the Courts of Justice Act of 1924? Although seemingly unrelated, Cosgrove's administration in 1923 exposed to a much wider audience than the legal fraternity, the seed, breed and generation of English laws which, in their application over "comparatively modern times" benefited Trinity so singularly, so lucratively, and for so long.

Much of the foregoing has been given on the assumption that readers who have persisted thus far have a fair knowledge of events in Ireland following the dispossesion of the native Irish from their lands in various confiscations, but mainly in the Plantation of Ulster from which all past and present-day ills and aspirations have sprung.

Until "comparatively recent times" Trinity College was viewed by the vast majority of the people of Ireland as dominated by the descendants of Planters, and enrollment of Catholics in its student body actively discouraged. Only in 1970, a very recent time, was the ban on entry of Catholics to Trinity removed.

The End

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