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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
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