The Gazette 1976

GAZETTE

January-February 1976

SYMPOSIUM OF BOOK REVIEWS ON IRISH LAND LAW The publication of any book on Irish Land Law is an event, and the publication of John Wylie's learned work is an outstanding event. In order to emphasise its importance, it has been decided that a Symposium of Reviews should be published in this issue. The contributors include the Hon. Mr. Justice Henchy of the Supreme Court, a former Professor of Juris- prudence; Mr. Ronan Keane, a leading Senior Counsel and University Extern Examiner in Irish Land Law; Mr. Maurice Curran, a member and Mr. Hugh Fitz- patrick, a recently qualified solicitor who represents the students' point of view. WYLIE, J. C. W. Irish Land Law (Consultant Editor for the Republic—Mr. Justice Kenny). Professional Books Ltd., Abingdon, England, 1975, 25cm. cxii, 914p. £16.50 (including V.A.T. £18.15). Available from the Society to members ra) £17.00 while stocks last. Hon. Mr. Justice Henchy Irish land law is to a large degree a blurred reflection of the history of English law in Ireland. The protracted English conquest of Ireland was in reality a drawn-out war for the ownership of the land of Ireland. From the Pale, in now swelling, now ebbing waves of pene- tration, the feudal land laws of medieval England spread outwards until by the beginning of the seven- teenth century the King's writ ran throughout the island and every piece of land was owned and fell to be transmitted according to English law, or more properly, according to English law as it found expression in Ireland. What followed since then has been a series of accretions from judicial decisions, from devolved Irish parliaments, from the Westminster parliament and, finally, from the Acts of the Oireachtas. The result is a strange amalgam of medieval and modern. Statutes of the middle ages, doctrines evolved in the Court of Chancery in the eighteenth century, rules directed at the landed gentry of Victorian times, modern Irish statutes regulating the ownership, use and devolution of land, all combine to make up the corpus of land law in this State. It is a cumbersome body of law which cries out for modernization and rational- ization, if not codification. Wylie's Irish Land Law is, by any standards, a work of remarkable achievement. It tackles the whole span of this unwieldly subject, putting it in its historical per- spective, tracing its doctrines and rules from their origins in statute or court promulgation down to their most recent judicial exposition, and taking into account the bifurcation that resulted from the establishment of two jurisdictions in Ireland consequent on the Anglo- Irish Treaty of 1921. The result is that for the first time one can look up in a single book the relevant law on almost any aspect of land law in Ireland and find an answer that will meet the problem on hand, whether it be a problem from the Republic of Ireland or one from Northern Ireland. At least it can be said, if this book will not provide the answer, it will in all probability direct one to where the answer can be got. And, as most practitioners will ruefully agree, that is a service that is lacking in almost every other branch of law in this State today. An idea of the scope and comprehensiveness of this

book may be conveyed by giving some facts and figures. In giving a historical conspectus and an up-to-date analysis of the land law of this State, Mr. Wylie refers to over 260 statutes—and that is exclusive of Northern Ireland statutes and British statutes since 1922. Over 5,500 judicial decisions are referred to or quoted from, including many important nineteenth-century Irish decisions which had fallen into obscurity because practitioners are in the habit of tracing Irish judicial authorities no further back than through Maxwell's Digest for 1894-1918. Practically every modern reported and unreported Irish decision bearing on the topics dealt with in the book is referred to, a feat which in itself will commend the book to those who labour in this field of law and have had to rely on English text- books, which are apt to mislead because the statutes are different, or on Irish textbooks, which are also in many cases undependable because they have not been kept up to date by new editions or supplements. The author's treatment of each topic is supplemented by references in the footnotes to the main textbooks dealing with the topic, as well as to specialist articles in legal journals. The result is that the book is not merely a detailed study of different aspects of land law in Ireland: it is also a comprehensive guide for those who wish to pursue into its wider context any of the topics discussed. The book commences with a valuable historical résumé of land law in Ireland from the period of ancient Irish law to the present day. The pre-twelfth century era of ancient Irish or brehon law is disposed of in three pages. Such a compression obviously defeats the possibility of giving any full picture of the nature and scope of land law under native Irish law, but un- fortunately the treatment of the topic is otherwise below the high standard set elsewhere by Mr. Wylie. For example, fuidir is misspelled fiudir , and to equate the tuath with the clan or tribe is less than accurate. However, when Mr. Wylie passes on to deal with the introduction of the English common law to Ireland, the sureness of his touch returns, and in dealing with the historical aspects of land law under the common law in Ireland he shows sound scholarship on his own part as well as drawing on the most up-to-date research of legal historians. * To set out the headings under wbicn Mr. Wylie covers his subject—Estates and Interests; Co-Owner- ship; Settlements, Trusts and Powers; Mortgages; Succession; Landlord and Tenant; Covenants, Licences and Similar Interests; Registration; Extinguishment of Interests; Disabilities—falls short of indicating the full scope of the book. Having been sponsored by the Arthur Cox Foundation, the author does not seem to have been completely restricted to the narrow confines of his subject by the usual inhibitions of publishing costs. Consequently, the fruits of his learning and re- search spill over into areas not normally associated with land law. For example, in dealing with the in- junction as one of the remedies evolved by Equity, he makes reference to most of the modern leading Irish decisions on injunctions in trade union cases. On the other hand, there are, surprisingly, only passing references to the constitutional limitations in the Republic of Ireland in regard to property, or to planning legislation, or to the Housing Acts (for example, no reference to the important extended powers 15