Irish Geography
Vol. 41, No. 3, November 2008, 313328
Some nineteenth-century Irish litigation over commons and enclosures
W.N. Osborough
School of Law, University College Dublin, Dublin, Ireland
The investigations of the Irish municipal corporations commissioners in the 1830s furnish
most of the readily accessible data on one key category of Irish common land borough
commons.1 Even so, any additional information to be gleaned is very welcome, and here we
are in luck. Lawsuits exist, ones reasonably well reported, and these do indeed add
something to our quantum of knowledge, if rather less than might have been hoped.
Twenty years ago J.H. Andrews, relying on O’Higgins listings (O’Higgins 1986), drew
attention to the dearth of legal commentary on Irish commons and enclosures, a criticism
that was well deserved (Andrews 1987). Sadly, this state of affairs was to persist, so that
what follows here is to be regarded as an attempt to go at least part of the way to remedy
this neglect.
The first lawsuit to call out for our attention is that associated with the administration
of an area known as The Cottyn, borough common land at Cashel, Co. Tipperary.
Protracted litigation extending over a decade resulted in a major decision handed down in
January 1843 by Sir Edward Sugden, the Irish Lord Chancellor (later to be ennobled as
Lord St Leonards).2 Why this Cashel case should have taken quite so long to resolve is not
immediately clear. It is possible, however, that the occurrence after 1832 the year legal
proceedings were commenced of the appointment of the Irish municipal corporations
inquiry itself contributed in some fashion to this delay. The condemnation by the
commissioners in their report of 1835 of abuses linked to the leasing of borough common
land, and drawing attention, in particular, to the conduct of local authorities at Naas, Co.
Kildare as well as at Cashel in this connection, undoubtedly altered ‘the political climate’.3
Relating that to Lord Chancellor Sugden’s eventual decision would necessitate further
detective work, even so.
It was not the first occasion that the lands embraced by The Cottyn at Cashel had
prompted recourse to the law. In 1545, royal commissioners three judges, Gerald
Aylmer, Thomas Houth and Walter Kerdyffe, along with Patrick Barnewell had sought
to buy peace for an earlier generation by declaring, in a suit between the portrieve
and commons of Cashel, on one hand, and Richard Fitz-Theobald and others, on the
other hand, that the corporation of Cashel, their successors and assigns, should have
and possess ‘the commons’ and every part thereof, without let or hindrance.4 This
sounds like a successful action by the municipality to stigmatise and reverse an act of
encroachment.
The suit, commenced by two citizens of Cashel in 1832, Paul Phelan and John O’Brien,
and aimed at the corporation itself, together with prominent members of the corporation,
William Pennefather and others, involved a somewhat more oblique challenge over the
ISSN 0075-0778 print/ISSN 1939-4055 online
# 2008 Geographical Society of Ireland
DOI: 10.1080/00750770802506998
http://www.informaworld.com
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management of The Cottyn. The two citizens procured an information, to be amended in
1837, and brought in the name of the then Attorney General to secure the setting aside of a
lease of lands on The Cottyn made in favour of Richard Pennefather in September 1830.
The lease had been made for 99 years, and the gravamen of the complaint was that it had
been made at a gross undervalue. Richard Pennefather died in 1831, his interest in the lease
being inherited by his son William who, remarkably, at the time of the granting of the lease
itself had been mayor of Cashel, in which capacity he had also executed the lease on behalf
of the corporation. (A charter of Charles I had replaced the portrieve with the mayor.) The
lands in question were substantial, comprising some 1548 acres (some 200 acres more than
an earlier calculation) to the south-east of the town. They had been delineated in the Down
Survey as the ‘Commons of Cashell called Cottin’, and in the printed rental for the
corporation of Cashel, drawn up in 1833, were stated to comprise the following plots:
Attykett; Carrigfreagh, Loughnamaine and Foxes’ Den; Fowke’s Lot; Owen and Biggs’
Lot; Gortnadring, alias Rathnaduring, Glanmore, Knockdermiddybuck, Cussaneduffe
and Knockanena; Christteen; Harrison’s Lot, St Nicholas Gatehouse and Pulvertoft’s
Garden.5
The complainants of 1832 were to seek not only the cancellation of the lease of 1830
but also an accounting for the rents and profits accruing since 1830. A crucial contention
was that the lands in question were impressed with a trust in favour of the citizens of the
town and that this trust had been breached. Evidence of the trust went back as far as the
year 1230 and, inevitably, a great deal of documentary material relating to the commons at
Cashel became part of the record in the case. The identical historical evidence was also to
be examined exhaustively by the municipal corporations commissioners.6
The grant by Henry III to Marian (Maurianus) O’Brien, Archbishop of Cashel, in 1228
of the town of Cashel was the first piece of relevant documentary evidence to be adduced.7
This granted the Archbishop the town to hold by frankalmoign. An indictment on a plea
role of Edward III (now lost) furnished the proof:
Henry:
Know ye that we, &c. have remitted and quitted claim, for us and our heirs
for ever, to Father Maurianus, archbishop of Cashel, and his successors,
the contention and claim which we had moved against the said archbishop
upon the new town of Cashel: and we have granted the same town with its
appurtenances, henceforth of us and our heirs, to hold to the said
archbishop and his successors in free, pure, and perpetual alms,
free from all exaction and secular service.
(An inspeximus of this grant in favour of Maurianus was found in a copy of an enrolment
of a charter relating to Cashel made in 1557 by a later Archbishop of Cashel, Archbishop
Roland Baron; although the admission in evidence of this inspeximus was challenged in the
proceedings of 183243, Sir Edward Sugden eventually allowed the evidence to be given.8)
Maurianus, granted Cashel by the Crown, later, in 1230, with the consent of the Dean
and Chapter, then granted to the provost and burgesses of Cashel the town itself, except
‘the bakery and the shambles’, with a right to free pasture and with authority to hold a
hundred and a court baron. A chief rent of nine marks was reserved. The controverted
inspeximus attached to the copy of the enrolment of a later Elizabethan charter of
Archbishop Roland furnished the ipsissima versa of the concession of free pasture in favour
of the provost and burgesses:
Likewise, we have also given, &c. to the said Provost and Burgesses who now are, and for the
time shall be, for ever, free pasture for all and every of the animals of them and their tenants
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whomsoever, and of all persons inhabiting and sojourning in the said town and the burgage
thereof, in all our lands, except meadows, standing cornlands and manors.
As we have seen, in 1557 Archbishop Roland confirmed the arrangements made by
Maurianus. The next development occurred in the thirteenth year of Charles I when a new
charter was created for the town. This charter also confirmed the town’s boundaries. A
fresh charter two years later (15 Charles I) established that the new corporation could
grant and demise any property, a concession stated to be in lieu of any licence to take lands
in mortmain up to the value of £30 per annum. This left untouched specific rules on the
granting of leases to be found in the oath of office mayors of the corporation were obliged
to take under the charter of 13 Charles I:9
You shall procure such things to be done, as may honestly and justly be to the profit and
commodity of this city and corporation; you shall not consent to pass any estate of inheritance
in mortgage, or otherwise, in the common lands of Cashel, called the Cottyn, or any part or
parcel of the same whatsoever, during your office, and you shall not give any way, nor consent
that any assignment shall be made of or for any rent, that now is, or hereafter shall be, issuing
out of the said Cottyn or any part thereof, unto any manner of person or persons whatsoever,
for longer time than one year, unless it be for the redemption or acquittal of some part of the
lands that be in mortgage from this city.
In light of this historical evidence, it appeared undeniable that the corporation could grant
leases of any lands it held, but in relation to the commons that embraced The Cottyn,
granted originally for the purpose of free pasture by Archbishop Maurianus, no lease could
be granted for more than one year. The complainants of 1832 urged that the leasing powers
of the corporation should be exercised in such a fashion as to maximise profit for the
benefit of all the citizens: this had not been done when Richard Pennefather, William’s
father, had been given his 99-year lease for £97 6s. 6d. per annum (a more realistic income
would have been £2000 per annum). William Pennefather contended, for his part, that the
lands covered by his father’s lease formed no part of Maurianus’s original grant, and the
conditions attached to the trust impressed on the lands of The Cottyn did not, therefore,
apply. It was indeed striking, as if to lend some sustenance to this argument, that the
annual reserved rent of nine marks had never been paid; at least there was no record that it
ever had been.10 This led Lord Chancellor Sugden to state a case for decision by a common
law jury as to whether the lands granted by the lease of 1830 in favour of Richard
Pennefather did in fact constitute part of The Cottyn in Maurianus’s grant.
In December 1842, a jury sitting in the court of Common Pleas reached the verdict that
the lands in question did come to the corporation by way of Maurianus’s grant.11 In
January 1843, buttressed by that decision, Lord Chancellor Sugden set aside the lease of
1830, ordered an account of the rents and profits since then, and instructed the master in
Chancery to evolve a scheme for the application of this income.12
One direct consequence of the report of the Irish municipal corporations commissioners was the enactment of the Municipal Corporations (Ireland) Act of 1840,13 which
introduced various reforms besides abolishing altogether a large number of the existing
corporations. Among those destined for extinction and listed in schedule I was the
corporation of Killyleagh in Co. Down.14 Because the corporation there, through the
mechanism of its so-called corporation jury, had assumed responsibility for managing
the commons at Killyleagh from early in the eighteenth century, abolition had created an
administrative vacuum. The scheme of the legislation of 1840, however, did provide a
remedy. Section 2 preserved the rights of inhabitants of corporate towns over lands held by
the towns for charitable purposes and section 112 enabled the court of Chancery to
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appoint new trustees to administer charitable trusts administered previously by the
erstwhile corporations. Thus did there come to pass the proceedings In the matter of the
Commons of Killyleagh and the Act of 3 & 4 Vict., c.108.
In 1613 Killyleagh received a charter from James I.15 The provost and commonality
soon benefited from the generosity of Viscount Claneboy, the major landowner in the
district. He was purposely ‘to lay off’ out of his manorial lands commons for the benefit of
the inhabitants who lacked any land of their own possessed no ‘town acres’ either, as it
was put, ‘for corn or grass’.16 Claneboy’s son, the second Viscount, reported in 1652 that
matters had not turned out as his father had wished, his father’s ‘good intention . . . they
had been deprived of, since the breaking out of the rebellion, by the richer and abler
sort’.17 By deed poll, then, on 8 March 1652, a solution was attempted, the second
Viscount requiring and authorising the provost ‘to appoint and agree with a herd for the
cattle belonging to them in the town which want land, charging him to preserve the said
commons for their only use’.18
Some insight into the management of the Killyleagh commons is to be found in the
report of the commissioners on Irish municipal government in 1835.19 The commons itself
had shrunk from 100 acres to 57. It was controlled by a corporation jury that had enforced
a rule that any inhabitant of the town had to be resident for seven years before he became
eligible to benefit from Claneboy’s trust. The jury collected £14 a year from owners of
cattle seeking to graze them on the commons, the resultant income being expended on
‘necessary outlays’. The commissioners also reported, however, that Claneboy’s original
intentions were not being fulfilled, the corporation jury gifting the right of commonage
both to themselves and to others who did not qualify under the terms of the original
grant.20
The dissolution of Killyleagh corporation, which took effect in October 1841, created
the vacuum to which reference has already been made. The two principal local landowners,
Lord Dufferin and Captain Hamilton of Killyleagh Castle, eventually seized the initiative
to fill it through reliance on section 112 of the Municipal Corporations (Ireland) Act. In
1849, they moved a petition before the Irish Lord Chancellor, at the time Maziere Brady, to
have the whole matter regularised with a view to the appointment of trustees to manage the
commons by way of replacement for the dissolved corporation and the corporation jury.
They also sought sanction for the imposition on a master in Chancery of responsibility for
drafting a fresh scheme for the entire management of the commons.21 The master, William
Brooke, spent the next few months publicising what he was doing, finally producing a
detailed report, which besides nominating 11 trustees headed by Dufferin and
Hamilton also set out, as had also been requested, a detailed scheme for the management
of the commons. The report and Brooke’s scheme received the imprimatur of the Lord
Chancellor on 23 April 1852.
Brooke’s report is of exceptional interest.22 He reported first on the commons itself. He
estimated its size at 74.5 acres, rather more than the Municipal Corporations Report’s
estimate of 57 acres, but certainly less than the original 100 acres, if indeed that was the
original figure. Of these 74.5 acres, one-quarter constituted ‘good arable ground’, onequarter ‘shallow . . . arable’, one-quarter ‘low, swampy, boggy arable’ and one-quarter
‘rocky pasture’. The whole, however, was covered with furze. The herd had the care of the
cattle on the commons and drove them in in the morning and out at night. He was paid
one shilling per head of all cattle grazing usually between 30 and 50 beasts at any one
time. He himself was allowed to graze his own two cows, a horse and a few goats. He had a
residence on the commons and a patch of ground adjoining it for tillage, on which he paid
a nominal rent. The breach of the trust designed to restrict entitlement to use the commons
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to ‘poor persons, labourers or mechanics not having other lands’ had occurred by the need
to generate funds to deal with essential maintenance and upkeep.23 Grazing money was
collected on each 12 May. Individuals were charged three shillings each but this could rise
to 5s. 6d. on account of tithe rent-charge. Annual receipts amounted to roughly £13. After
paying the herd, what was left over was spent on stubbing the furze, repairing fences and
gates and carrying out a little drainage. There had been a small amount of ‘embezzlement’.
The lands themselves were in an unsatisfactory condition ‘of little benefit to the poor’. Not
only was the ‘eatage’ covered with furze, but the surface was much injured by water and
there were deep gravel pits composed of large loose stones.
A range of improvements was called for drainage, levelling, stubbing of furze and
clearing of stones. More fencing was also required. A judicious course of cropping before
pasturage was resumed was also indicated perhaps potatoes, other root crops and species
of vetch. The sowing of corn or flax was also recommended. Several acres of ‘scanty, rocky
pasture’ were quite irreclaimable. Here trees should be planted which with pollarding could
provide paling for the fences. The commons was at present ‘an eyesore’, but there was no
reason why, with a belt of planting and the construction of a walk, it could not be turned
into ‘a wholesome place of recreation’. Master Brooke then turned to the position of the
herd. He, he thought, ought not to be allowed his patch of tillage but should be paid a
proper wage. He ought also to be provided with a gatehouse or lodge. The 11 trustees,
headed by Dufferin and Hamilton, should possess the power to rate the cattle, appoint the
herd and straighten boundaries.
Disputes over ownership of borough commons as at Bangor, Co. Down, between
the corporation and the Lord of the Manor,24 and as at Carrickfergus, Co. Antrim, between
the corporation and the town’s freemen (Nicholson 1986/1987) are as much part of the
historical record as disputes over encroachments and overstint.25 With the movement in
favour of parliamentary enclosure, starting in Ireland at the end of the eighteenth century
and continuing to the 1860s, a completely novel species of litigation was destined to make its
appearance: legal contests over the methods of the various enclosure commissioners and
objections to the validity of the awards these assorted commissioners were to draw up.
Andrews lists 12 enclosure Acts for Ireland between 1800 and 1840.26 This was two short,
the two missing from his list being the Act for Gowran, Co. Kilkenny in 1814 and that for
Mealiffe, Upper Church and Temple Beg, Co. Tipperary in 1834. In addition, after 1840, two
more Acts were passed in 1859 and 1862. There is thus a grand total of 16. By comparison
with Wales27 and, of course, England, this is a very small number. Only one of these 16, that
concerning Dromiskin, Co. Louth, was enacted by the pre-Union Irish Parliament, as it
chanced in 1800, the last year of that Parliament’s existence.28 Five of the remaining 15 Acts
make an appearance in the printed volumes of the series of Local and Personal Acts, a series
that begins in 1797 and continues long after the Union itself. Others again surface in the
category of printed Private Acts (commencing in 1815), and among these is one Act of
particular interest here, the 1816 Act for enclosing lands within the parish of Saggart in Co.
Dublin.29 The author of an article on the local history of Portrane in North Co. Dublin has
drawn attention to the circumstances that another enclosure Act, that of 1804 dealing with
Portrane and Donabate, is similarly not as accessible to the researcher as might be desired even less so, as the Act of 1804 is relegated to the category of unprinted Local and Personal
Acts (Moylan 196061). Difficulties of accessibility are unfortunate, especially in the case of
the Saggart legislation, for the series of events linked to the parliamentary adoption of
enclosure for Saggart was, as we are about to discover, destined to generate an exceptional
amount of recorded litigation and even at the last moment remedial legislation designed to
reverse a key judicial pronouncement. The inference in undeniable: the successive awards
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drawn up by the enclosure commissioners for Saggart, in circumstances about to be
explained, did not command universal support: far from it.
The legislation of 1816 for dividing the commons of Saggart named three commissioners whose task it would be ‘to divide, allot and inclose’ the lands in question: John
Burne of Merrion Square, William Gerald Baggot of Castle Baggot and Samuel Percy Lea
of Dublin Castle.30 The legislation provided for the replacement of any commissioner
retiring or dying, the relevant section of the Act envisaging that any replacement
appointment should occur within 20 days of the news of the retirement or death being
made known to the other commissioners.31 William Gerald Baggot died on 14 December
1821 and steps were taken to apprise both Burne and Lea of the circumstance.32 Baggot’s
eventual replacement, Hartstonge Robinson, was not, however, appointed within the 20
days plainly contemplated by the Act of Parliament. At some point after Baggot’s death,
the Dean of St Patrick’s Cathedral wrote to Burne at Cheltenham, Gloucestershire, in
England, recommending Baggot’s replacement by Robinson. On 17 August 1822, Burne
responded. ‘I . . . most willingly give my consent’, he told the Dean:
that Mr. Robinson shall be nominated a commissioner for inclosing the commons of Saggart in
the place of Mr.Baggot. I have not had the pleasure of knowing Mr.Robinson, but from your
account of him he seems a very proper person to be appointed.33
The other surviving commissioner, Mr Lea, expressed his agreement subsequently,
certainly no later than December 1822, nearly a year after Mr Baggot had died.
Messrs Burne, Lea and Robinson then proceeded to undertake their task of devising a
scheme for the dividing up of the lands at Saggart authorised by the Act of 1816. The
eventual award, announced in August 1824, was executed by only two of the
commissioners Lea and Robinson as the legislation itself allowed,34 and it was this
award that was duly enrolled in accordance with the enabling Act of Parliament, following
the publicising of the award in the manner prescribed.
Edward Dowling did not observe the award’s terms, forcing one individual who
benefited from it, and in order to protect his position, to commence legal proceedings
against him. Thus did Lessee of the Governors of St. Patrick’s Hospital v. Dowling come to
be heard before Chief Justice Bushe and his colleagues in the court of King’s Bench in
Dublin in 1826.35 Dowling queried the validity of the award on the basis of which the
plaintiff had taken him to court. The time it had taken to appoint Robinson as the
replacement for Baggot was well in excess of the 20 days mentioned in section 2 of the Act
of Parliament. Could the surviving commissioners, he asked, wait 20 or 40 years to name a
replacement? Bushe was to dismiss the argument. Reference to the 20 days within which to
name a replacement was to be treated not as obligatory but merely directory.36 Dowling,
however, had another trick up his sleeve, an argument which, as a fall-back position, might
yet be accepted which, if that was to occur, could result in everything that Robinson, the
replacement commissioner had done, being deemed null and void.
The procedure employed to substitute Robinson for Baggot, on any fair view, was
certainly informal. Such informality had, however, so far as enclosure in England and
Wales was concerned, been brought to an end by provisions in the General Inclosure Act
of 1801.37 This declared that no person was to act as an enclosure commissioner unless he
signed the notice of the first meeting sanctioned under the relevant local Act of Parliament
and also took the prescribed oath.38 The terms of this oath were important. The text read:
I, A.B., do swear . . . That I will faithfully, impartially, and honestly, according to the best of
my Skill and Ability, execute and perform the several Trusts, Powers and Authorities vested
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and reposed in me as a Commissioner, by virtue of an Act for [here insert the title of the Act]
according to Equity and good Conscience, and without Favour or Affection, Prejudice or
Partiality, to any Person or Persons whomsoever.39
Chief Justice Bushe was thus faced with a crucial point to decide. Did the Act of 1801
extend to Ireland or did it not? Counsel for the two protagonists in the lawsuit of 1826
devoted a considerable amount of their talents to the two opposing contentions. The
evidence from the Act itself, and from later developments in the statute-book, was not as
clear-cut as might have been wished. Bushe, however, was to conclude in the end that the
Act of 1801 had not been extended to Ireland. Thus once again Dowling was the loser.40
When Bushe reached his overall decision in the case, it became plain that the plaintiff
had by no means secured all that he had set out to achieve. There had been a signal defect
in the commissioners’ global award, of which cognisance had already been taken by the
Chief Justice in earlier proceedings before him alone. Here Bushe had awarded the plaintiff
an entitlement to occupy lands to the extent of one rood and six perches, constitutive of
one portion of the commons.41 That, however, was the extent of the entitlement. There had
been a serious flaw in regard to the rest of the commissioners’ award. Over the lands in
question there had occurred an encroachment dating back for more than 30 years. Such
lands were therefore removed statutorily from the category of commons available for
division and allotment and, at Saggart as elsewhere, under the general legislative pattern
fell outwith the purview of commissioners for the enclosure of commons.42 This
adjudication, only partly favourable to the plaintiff, was thus endorsed in the later
proceedings before the full King’s Bench court.
A second flaw in the procedure followed by the enclosure commissioners at Saggart was
highlighted by Chief Justice Bushe in further proceedings inspired by the same local
controversy and heard in 1827: Jones d. Byrne v. Humphreys.43 Here the claim related to an
award concerning part of the Upper or Mountain Commons of Saggart and made by the
enclosure commissioners in the same August of 1824. It became necessary for the
resolution of this particular lawsuit to rehearse exactly what the rules to be observed by
the commissioners actually were. Two key meetings were prescribed. Under section 3 of the
enabling Act for Saggart, 10 days’ notice of the special meeting at which proposals for the
division of the commons would be entertained had first to be given. This was a
responsibility of the commissioners. Such notice had to be posted up on the wall of the
parish church at Saggart and also advertised ‘in the Dublin Evening Post or Correspondent,
if then published, and, if not, in some other newspaper printed in the said county or city of
Dublin’. On the conclusion of their business, that is, devising a scheme for dividing up the
commons on the basis of claims presented, the commissioners were to draw up their
award.44 To make this award binding, more publicity was of the essence. It was to be read
and executed in the presence of the interested proprietors at a meeting of which six days’
notice had been given. It was then to be proclaimed the next ensuing Tuesday in the public
street of Saggart between the hours of 1 p.m. and 2 p.m.45
The flaw that came to light and which concerned Chief Justice Bushe was that while
the meeting to publicise the award had been summoned validly for Thursday 26 August
1824, the award itself had not been executed until the following day, Friday 27 August, and
no evidence had been furnished that there had been an authorised continuation or
adjournment of the meeting concerned for the 26th. On this basis, Bushe upheld a motion
for the non-suit of the plaintiff at the behest of the defendant, unless the plaintiff indicated
a preparedness to seek a new trial (to enable deficiencies in proofs regarding the
continuation or adjournment of the meeting of the 26th to be rectified) and also to pay
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the costs.46 Chief Justice Bushe’s ruling was clearly dated 8 February 1827. To judge from
subsequent events, it does not appear that the plaintiff exercised successfully the option
made available to him by the Chief Justice.
There was to be a 14-year interval before the next and final legal instalment in the
controversy over the Saggart enclosure came before the courts, in 1841. In this case Jones
d. Burrowes v. Lynam47 the plaintiff commenced an action in ejectment in the Queen’s
Bench before Mr Justice Crampton and a jury in an endeavour to recover lands occupied by
the defendant. These lands, some 100 acres in extent, straddled the Blessington to Dublin
road in the parish of Saggart. The plaintiff maintained that the lands in question constituted
part of the Saggart commons and that these lands, having been encroached upon within the
critical 30-year period, had quite properly been the subject of an award in his favour as a
neighbouring proprietor under the terms of the Saggart enclosure legislation of 1816. The
award upon which the plaintiff based his claim was one made by the enclosure
commissioners in 1827. This had replaced the award of 1824 which the King’s Bench, in
the earlier case of Jones d. Byrne v. Humphreys, had set aside as a nullity citing procedural
irregularities, as we have seen.48 The 1827 award, however, as we are about to discover, was
also to come under assault for somewhat different reasons. But this is to anticipate.
The plaintiff, Jones possibly the same protagonist as in 1827 traced his title back to
one Byrne. The defendant Lynam’s principal argument was devastating in its implications:
he contended that no evidence had been adduced that Byrne had ever enjoyed title to land
in the parish of Saggart which alone would have entitled Byrne to the benefit of any
award.49 In a reprise of the line of argument presented in Lessee of the Governors of St
Patrick’s Hospital v. Edward Dowling,50 Lynam also cited the lack of evidence
demonstrating that the actions of the enclosure commissioners complied with the statutory
requirements the posting of notices, the reading of the award, the appointment of the
substitute commissioner, Hartstonge Robinson.51 On the strength of these contentions,
Lynam moved for an immediate decision in his favour, inviting Mr Justice Crampton to
non-suit the plaintiff. This Crampton refused to do, whereupon Lynam introduced new
arguments which substantially altered the complexion of the litigation a manoeuvre
which recalled the tactics of Dowling in the earlier lawsuit.52 Lynam now argued that he
had enjoyed the lands at the core of the dispute by adverse possession.53 Crampton then
left to the jury the question as to whether this was so, and whether the defendant had thus
enjoyed exclusive possession. The jury having returned a verdict to the effect that this had
indeed been the case, Crampton entered judgement for Lynam.54
Jones, having obtained a rule nisi to have the verdict of the jury set aside and the whole
matter reopened, his action for ejectment came before the full Queen’s Bench court (Bushe
C.J., Burton, Crampton and Perrin JJ.). Jones now relied upon an entirely fresh point.
Crampton’s direction to the jury, he urged, was flawed, in so far as he had failed to allude
to the circumstance that Lynam had never sent in any claim for consideration by the
enclosure commissioners. Section 6 of the 1816 Act, along with comparable provisions in
other enclosure acts, had invited all persons:
having or claiming to have any estate or property, right of common, or other right or interest
whatsoever in, to, or over, or upon the lands and grounds thereby directed to be applotted,
To send in notice of such claim to the commissioners, it being added that, in case
of default i.e., a failure to do so they would be excluded from any right or interest in the
commons that is, they would forfeit the right to benefit from any award. Jones contended that Lynam had lodged no claim; he was therefore estopped from seeking to do so
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now55 a state of affairs confirmed by English precedent Joe d. Watson v. Jefferson56 which was immediately in point.
Another twist to the proceedings ensued. Lynam did not deny what section 6
stipulated, but he went on to argue that the section only applied to persons having estates
immediately adjoining the commons and claiming rights over it alone. This did not reflect
his personal circumstances. He was not a parishioner of Saggart. He resided rather in
Tallaght where his principal lands lay.57 For good measure, Lynam rehearsed another key
argument which we will have heard before. There had been a sufficiently long period of
adverse possession on the part of himself and of those through whom he might claim longer, inferentially, than the prescribed 30-year period so as to exclude the lands in
question from the jurisdiction of the commissioners. It will be recalled that where an
encroachment could be shown to have existed for over 30 years, the lands where such
encroachment had taken place could not feature in any award drawn up by the enclosure
commissioners.58 The Queen’s Bench preferred, for the moment at least, to reject one
challenge to the award under which Jones claimed, the challenge founded upon an
allegation of lack of evidence regarding the propriety of the actions carried out by the
enclosure commissioners.59 They concluded, however, that the question Crampton had put
to the jury regarding the defendant Lynam’s legal position had not been correct. In their
view, the correct question on which the views of the jury should have been sought was this:
had Lynam’s encroachment on the lands been made within 30 years or had it not? Lynam
was again denied a non-suit and Jones won an entitlement to a fresh trial.60
Later, in 1841, this fresh trial came again before Mr Justice Crampton and a jury. The
jury’s verdict indicated that their view was that Lynam’s encroachment had occurred within
the critical 30-year period, so that the enclosure commissioners had had jurisdiction.
Crampton was thus finally prepared to enter judgement on the action for ejectment in
favour of Jones but, in the light of fresh difficulties that appear to have arisen, perhaps at a
late hour, made such judgement conditional on the assessment by the full Queen’s Bench
court that the award upon which Jones staked his claim was a valid award.61
It is now necessary to retrace our steps and pursue the precise sequence of events from
1824 onwards. Any objection to the manner in which Hartstonge Robinson had been
selected to replace Mr Baggot had been turned down, but the award itself, signed by two of
the original commissioners together with Robinson, had been set aside in the absence of
the proof that the crucial meeting convened for 26 August 1824 had been properly
continued or adjourned to the 27th.62 The plaintiff in the dispute that led to this set-back
was invited to mend his hand, but while there is evidence that he had attempted to do so
these efforts were not greeted with success.63
In 1827, however, a fresh award, virtually identical with that drawn up in 1824 which
had been invalidated, was executed on 2 June of that year and enrolled on 25 June. In
the protracted Jones v. Lynam saga, where final victory for Jones threatened, Lynam was
able to produce a trump card at the last moment. The award of 1827 had only been signed
and executed by two enclosure commissioners and that, in his view, was a fatal defect. The
full Queen’s Bench, presided over by Chief Justice Pennefather following the retirement of
Bushe earlier in 1841, agreed.64
In 1826 John Burne, one of the original Saggart enclosure commissioners, had died.65
When W.G. Baggot had died in 1821 he had been replaced by Hartstonge Robinson, but
this was not done when Mr Burne died. In 1827, the then two surviving commissioners Mr Lea and Mr Hartstonge signed and executed the new award. But was this good
enough? A unanimous Queen’s Bench thought not. Where three commissioners were
appointed, with power, in the case of the death of one, for survivors to elect a successor
322
W.N. Osborough
with the proviso that the acts of any two should be valid, this was to be interpreted to mean
‘any two of the three’, with the consequence that an award signed by two commissioners
after the death of the third, no successor having been appointed, was invalid. This followed
even though evidence had been adduced that, in advance of the award being executed, the
third commissioner, subsequently deceased, had assented to its terms.66 Counsel for Lynam
had produced a rationalisation for the rule. ‘It is impossible’, he argued:
to say that circumstances might not have arisen between the preparing of the draft and the
death of the third commissioner, which, had he been alive, would have altered his views as to
the award.67
‘Up to the time of signing’, he added, ‘the commissioners had the power of altering and remodelling’. While judgement in the end was entered for the defendant with costs, Chief
Justice Pennefather did not entirely conceal certain doubts he might have entertained
personally. This was perhaps also underlined in Mr Justice Crampton’s elaboration of one
situation where action by two commissioners alone could be sustained an illustration
nevertheless that highlighted the anomalies that might be thought to have existed in the
area. ‘If three commissioners are in existence’, the judge wrote:
and one of the three refuses or neglects to act, having had opportunity so to do, the act of two
shall be valid without the junction of the third; but this does not apply to the case of
survivors.68
The decision of the Queen’s Bench in 1841 in the case of Jones d. Burrowes v. Lynam69
caused understandable consternation. The award of 2 June 1827 (which had superseded
that of August 1824) had been acted upon for a long series of years as a valid award only
for everything now, some 14 years later, to be thrown into doubt. The obvious solution was
to press for an Act of Parliament to uphold the award of June 1827 in its entirety and to set
aside the implications of Jones d. Burrowes v. Lynam. This was what was to occur,
Parliament in 1843 passing an ‘Act for rendering valid a certain award as to the Commons
of Saggart within the Parish of Saggart in the County of Dublin’.70 The preamble to this
measure recited that many allotments, since the execution of the award of June 1827, and
on the faith of it, had been ‘settled to make provision for families and creditors, most of
whom would be seriously injured were said award to be now held invalid or be set aside’.
The Act went on to provide that ‘every allotment, partition, exchange, conveyance,
assignment, limitation, clause and provision’ contained in the award was ‘to be deemed to
be good in law’. All this, it was stated, was to avoid ‘confusion and distress’.
It is not an easy matter to chart the consequences, in either the short or longer term, of
the various lawsuits dealt with above. There is but one exception. The second of the
Saggart cases, Jones d. Byrne v. Humphreys71 led, as we have seen, to the annulment of the
enclosure award of 1824 and the pronouncement of the substitute award of 1827, which
despite the successful attack in the case of Jones d. Burrowes v. Lynam72 was to be upheld
legislatively. What happened thereafter over the erstwhile Saggart commons is not known.
Nor is it known what precisely transpired following Lord Chancellor Sugden’s decision in
the Cashel case in 1843, A.G. v. Corporation of Cashel,73 or the length of time Master
Brooke’s scheme for the Killyleagh commons, that received its imprimatur from Lord
Chancellor Brady in 1852, In the matter of the Commons of Killyleagh and the Act of 3 & 4
Vict., c. 108,74 was administered regularly (assuming that it was, in the end, introduced
locally). Sadly, that is the way with judgements and decrees of the courts. It is rarely made
anyone’s business to pursue the question of what happened next. The deficiency,
inseparable, as it seems to me, from this species of legal source-material, cannot do
Irish Geography
323
anything other than depress the would-be social historian, who wants above all to discover
exactly what difference any piece of litigation that produced a seemingly significant result
actually made to the subsequent ownership and use of the lands concerned. Further work
would need to be carried out, such as utilising map evidence from the Down Survey and
estate maps to compare with the first-edition Ordnance Survey maps, and consulting
sources such as the Tithe Applotment Books and the Griffith Valuation to track occupiers.
That Saggart in Co. Dublin long supplied a fertile battle-ground cries out for just this
kind of work. And here, unlike in the case of the other locations mentioned, there is just a
modest amount of additional information that he has come to hand aside altogether
from the extraordinary legislative intervention of 1843. Prior to the promulgation in
August 1824 of the first Saggart award, one of the enclosure commissioners, Mr Lea, wrote
on 5 February to the Dean and Chapter of St Patrick’s Cathedral, apprising the latter of
the terms of the proposed award as it affected the Cathedral Chapter.75 The chapter had
long held an interest in lands in the area, and it will be recalled that it was the then Dean of
St Patrick’s who, following the death of one of the original statute-appointed enclosure
commissioners, Mr Baggot, had taken the initiative in securing the appointment of a
replacement, Mr Hartstonge Robinson,76 probably the young barrister of that name listed
in the King’s Inns admission papers (Keane et al. 1982).77 Lea wrote as follows:
The commissioners for enclosing the commons of Saggart have allotted a portion of common
to the dean and chapter of St. Patrick’s amounting to something about two hundred acres
which has been valued by their surveyor on oath at £47 annually. The allotment is a mountain
tract full of stones and ‘skinned’78 to the gravel by the poor people for fuel.79
He went on to make various suggestions as to how the Cathedral Chapter might maximise
its rental income from such unsatisfactory terrain. The chapter considered Mr Lea’s letter
and the proposals that accompanied it, accepting the latter at a meeting on 13 February.
What is interesting for present purposes is an addendum to Mr Lea’s letter. The land in
question, he wrote:
has been time out of mind the receptacle of stolen cattle and the rendezvous of robbers and
nightly depredations and to effect an enclosure could never be done without a strong police
station and the land.80
This immediately conveys a sense that peace and quiet as enclosure at Saggart was to
proceed could by no means be guaranteed. The prospect should not have occasioned
surprise. From 1814 onwards the villagers at Otmoor in Oxfordshire were in a state of
turbulence over a local enclosure there, sanctioned finally by legislation in 1815. Notices
posted up on church doors were torn down and the later boundary fences put up were
destroyed. Forty-four arrests were made after a singularly violent riot in 1829 (Hoskins and
Stamp 1963, 5860). Affairs of this sort had had a long history in England. In the
thirteenth century the ‘privatisation’ of supposed common land at Little Gransden in
Cambridgeshire had not gone unremarked, the villagers fighting this in the courts and on
occasion, so the record has it, ‘ with Gunns, pistolls, halberts, pikes, swords, pitchforks,
great Clubbs and some of the women with stones in their Aprons’ (Rackham 1986, 338).
The record, on account of its silence, alas, does not tell us what shape the ‘nightly
depredations’ at Saggart had assumed.
We know that enclosures in Ireland were not bereft of a violent aftermath either. Eleven
years after Mr Lea’s correspondence with the Dean and Chapter of St Patrick’s Cathedral,
the Leinster Express reported a murder from Queen’s Co. that seemingly was related.81 In
April 1835, the newspaper reported, one William Carter, a Protestant farmer in occupation
324
W.N. Osborough
of around 80 acres of mountainous farmland, under Lord Maryborough, near Mountrath,
and who had held the land for nearly 30 years, was killed in a dispute over the enclosure of
land. Crown counsel at the ensuing assizes was to claim that the enclosure had ‘created an
animosity towards Carter among his poorer neighbours, who had been in the habit of
trespassing and feeding their cattle on his land’. There had been a history of harassment
of the Carter family going back to 1820 (McMahon 2007). Clare (2004) supplies instances
of violence attending the implementation of commons enclosures between 1816 and 1846
in various townlands of counties Kildare, Dublin and Wicklow: at pp. 22 (Ballymore
Eustace, 1816, 1819, 1820), 23 (Loughlinstown, 1847), 28 (Ballinascorney, and Fox and
Geese, 1824), 4147 (Long Hill Commons, Ballinteskin, 18381840, 18451846).
Notes
1. See First report of the Commissioners appointed to inquire into the municipal corporations in
Ireland, H.C. 1835, xxvii, xxviii and H.C. 1836, xxiv.
2. A.G. v. Corporation of Cashel (1843) 3 Drury and Warren 294.
3. Mun. corp.Ire., rep., H.C. 1835, xxvii, p. 34. At the time of the granting of the controverted lease
of 1830 the bone of contention in the lawsuit the mayor and 16 of the 17 aldermen of Cashel
were all members of the Pennefather family or related to it by marriage. Ibid., app., pt 1, p. 464.
4. Decree of 8 March 1545: Cal. pat. rolls, Ire., Henry VIII Eliz., p. 112.
5. Mun. corp. Ire., rep., H.C. 1835, xxvii, app., pt 1, pp. 461, 468469.
6. Mun. corp. Ire., rep., H.C. 1835, xxvii, app., pt 1, pp. 459475; inquiry by William Hanna and
Maurice King, commissioners, 25 October1 November 1833.
7. The account that follows is based on material assembled by the municipal corporations
commissioners which is also set out with additions in the report of A.G. v. Corporation of Cashel;
see too Cotton (1851), and Cal. pat. rolls, Ire., Eliz., pp. 236237.
8. A.G. v. Corporation of Cashel, 3 Drury & Warren at 301303.
9. Set out, ibid., at p. 298.
10. 3 Drury & Warren at 304.
11. Ibid., at 313.
12. Ibid.; typescript copy of a master in Chancery Master Lytton’s scheme of 2 January 1844 for
applying to local improvement a fine of £6000 imposed on William Pennefather on account of the
illegality of his former lease of Cashel corporation lands: NLI, Ms. 17978. Pennefather’s income
had been secured out of lands comprising over 1300 acres.
13. 3 & 4 Vict., c.108.
14. See s.13.
15. Conveniently reproduced in Lowry (1867), app., p. lxiii.
16. Reproduced, ibid., p. lxxiin.
17. See ibid.
18. Ibid.
19. Mun. corp. Ire., rep., app., pt 2, pp. 925929, which is reproduced in Lowry (1867), app., at pp.
lxx1xxvi.
20. Mun. corp. Ire., rep., app., pt 2, p. 928.
21. Lowry (1867), app., pp. lxxiinlxxiiin.
22. Ibid., app., pp. lxxiiinlxxvn.
23. This, indeed, was also offered in other places as justification.
24. Mun. corp. Ire., rep., app., pt 1, p. 691.
25. See, e.g. O’Sullivan v. O’Connor (1980) 114 I.L.T.R. 63 (Coolcumisk Mountain, Killarney, Co.
Kerry) and Gingles v. Magill [1926] N.I. 234 (Star Bog Mountain).
26. Andrews (1987), p. 12. A map based on the Andrews list and showing the location of all these
Parliament-sanctioned enclosures will be found in the Atlas of the Irish rural landscape (Aalen
et al. 1997), p. 138.
27. Seventy-six parliamentary enclosure Acts were adopted for Wales in the first 15 years of the
nineteenth century: Watkin (2007), p. 161.
28. An Act for dividing, allotting and enclosing the Commons, Commonable and Waste lands of
Dromiskin, within the parish of Dromiskin, in the county of Louth, 40 Geo. III, c.97.
Irish Geography
325
29. For an updated and, hopefully, comprehensive listing, together with the appropriate statute-book
references (and explanations), see Appendix I. Clare (2004) is also in error in claiming (at p. 21)
that there were less than 12 Irish enclosure Acts. The preamble to the Saggart Act of 1816 (56
Geo. III, c.25) is set out in Appendix II.
30. S. 1. Correspondence from Mr Lea over the first of the eventual awards is extant; see below,
p. 323.
31. S.2.
32. These and ensuing details are furnished in the leading resultant lawsuit: Lessee of the Governors
of St. Patrick’s Hospital v. Edward Dowling (1826) Batty 296.
33. Quoted, Batty at 297.
34. But only where three commissioners were in existence at the time a qualification subject to
extended discussion in a linked subsequent case, Jones d. Burrowes v. Lynam (184142) Jebb &
Bourke 131. See further, p. 321322.
35. (1826) Batty 296.
36. Batty at 300 and 303.
37. An Act for consolidating in One Act certain Provisions usually inserted in Acts of Inclosure; and
for facilitating the Mode of proving the several facts usually required on the passing of such Acts:
41 Geo. III, c.109.
38. S. 1.
39. Ibid.
40. It had been pointed out by counsel for Dowling that, in the case of the local Act of 1821 dealing
with the enclosure of the commons of Tallaght, Co. Dublin, the provisions of the general Act of
1801 (41 Geo.III, c. 109) were made to apply.
41. See Batty at 298.
42. See s. 14 of the Act of 1816. Later enclosure Acts were to exempt from division and allotment
encroachments extending over a much shorter period.
43. (1827) 1 Hudson & Brooke 26.
44. S.42 of the Act of 1816.
45. S.43. Later enclosure Acts usually prescribed a public reading outside the appropriate parish
church (Church of Ireland) after ‘divine service’ on the next ensuing Sunday.
46. 1 Hudson & Brooke at 31.
47. (1841) 2 Jebb & Symes 590.
48. 1 Hudson & Brooke 26.
49. 2 Jebb & Symes at 590.
50. (1826) Batty 296.
51. 2 Jebb & Symes at 591.
52. Ibid.
53. Ibid.
54. 2 Jebb & Symes at 592.
55. 2 Jebb & Symes at 594595.
56. (1824) 2 Bing, 118; 130 Eng. Rep. 250. This was a case concerned with the enclosure of lands in
the parish of Brumfield or Bromfield in Cumberland.
57. See 2 Jebb & Symes at 595596.
58. S.14 of the Act of 1816.
59. 2 Jebb & Symes at 601.
60. Ibid.
61. Jones d. Burrowes v. Lynam (184142) Jebb & Bourke 131.
62. See Jones d. Byrne v. Humphreys (1827) 1 Hudson & Brooke 26.
63. See 1 Hudson & Brooke at 2728.
64. Jones d. Burrowes v. Lynam, Jebb & Bourke 131.
65. See Jebb & Bourke at 132.
66. Jebb & Bourke at 139 (Crampton J.).
67. At 135.
68. At 139.
69. 2 Jebb & Symes 590.
70. 6&7 Vict., c.24.
71. (1827) 1 Hudson & Brooke 26.
72. (1841) 2 Jebb & Symes 590.
326
W.N. Osborough
73. (1842) 3 Drury & Warren 294. Although, presumably, steps were taken to implement the master
in Chancery’s scheme of 1844 on how the rental income William Pennefather had enjoyed from
a lease held invalid was to be spent for the betterment of the inhabitants of Cashel: see NLI, Ms.
17978.
74. Lowry (1867), p. lxxiin.
75. R.C.B. Library, Chapter Act Book for St Patrick’s Cathedral for 181936, C2/1/3/11, pp. 184
185. I am grateful to Kenneth Milne for this reference.
76. Lessee of the Governors of St. Patrick’s Hospital v. Dowling (1826) Batty at 297.
77. A good proportion of enclosure commissioners appointed by statute appear to have been
attorneys or barristers.
78. There is a lengthy note on the practice of ‘skinning’ in the municipal corporation commissioners’
report on Carrickfergus. Mun. corp. Ire., rep., app., pt 1, pp. 780781. The neglected state of the
commons there, too, had provoked ‘a new and destructive practice of stripping off the surface or,
as it is called, ‘‘skinning’’ the commons, and of burning the soil upon the mountain for manure’.
At Carrickfergus such sods were even ‘brought down openly from the commons and exposed for
sale in the market place’. Legislation was enacted in 1789 and again in 1791 targeting the practice
of skinning see an Act for preventing the Commission of Waste on the several Commons in this
Kingdom, 29 Geo. III, c. 30, and an Act to amend an Act, Entitled, An Act for preventing the
Commission of Waste, on the several Commons of this Kingdom, 31 Geo. III, c. 38 but in
Carrickfergus at least, by the late 1820s, was by no means universally observed, the
commissioners responsible for the inquiry into Carrickfergus (W.E. Hudson and M.R. Sausse)
reporting that, although there had in recent times been fines imposed on several persons for
cutting ‘tours’ and ‘scraws’, ‘now the country people will no longer inform one against another;
the waste is continued and goes unpunished’: Mun. corp. Ire., rep., app., pt 1, at p. 780.
79. R.C.B. Library, Chapter Act Book (St Patrick’s), 181936, pp. 184185.
80. R.C.B. Library, Chapter Act Book (St Patrick’s) 181936, p. 185.
81. Leinster Express, 18 July 1835.
References
Law Reports
Batty, 1828. Espine Batty. Reports of cases argued and determined in the court of King’s Bench in
Ireland, from the commencement of Michaelmas term 1825, to the end of Michaelmas term 1826.
Dublin: Richard Milliken & Son.
Bing, 182434. Peregrine Bingham. Reports of cases argued and determined in the court of Common
Pleas and other courts. 10 vols. London: J. Butterworth & Son.
Drury & Warren, 184346. William B. Drury and Robert T. Warren. Reports of cases argued and
determined in the High Court of Chancery, during the time of Lord Chancellor Sugden. 4 vols.
Dublin: Hodges and Smith.
Eng. Rep., 190030. The English Reports. 178 vols. Edinburgh: William Green and Sons/London:
Stevens and Sons.
Hudson & Brooke, 182946. William Elliott Hudson and John Brooke. Reports of cases argued and
determined in the courts of King’s Bench and Exchequer Chamber in Ireland. 2 vols. Dublin: Richard
Milliken and Son (vol. 1); Hodges and Smith (vol. 2).
Irish Law Times Reports (I.LT.R.)
Jebb & Bourke, 1843. Robert Jebb and Richard Bourke. Reports of cases argued and determined in the
court of Queen’s Bench in Ireland, from Michaelmas to Trinity term, 5th Victoria. Dublin: Andrew
Milliken.
Jebb & Symes, 184042. Robert Jebb and Arthur R. Symes. Reports of cases argued and determined in
the courts of Queen’s Bench and Exchequer Chamber in Ireland. 2 vols. Dublin: Milliken and Son/
London: Saunders and Benning.
Northern Ireland Reports (N.I.)
See further Paul O’Higgins, 1986. A bibliography of Irish trials and other legal proceedings. Abingdon,
Oxon: Professional Books.
Other
Aalen, F.H.A., Whelan, K., and Stout, M., eds., 1997. Atlas of the Irish rural landscape. Cork: Cork
University Press.
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Andrews, J.H., 1987. The struggle for Ireland’s public commons. In: P. O’Flanagan, P. Ferguson, and
K. Whelan, eds. Rural Ireland, 16001900: modernisation and change. Cork: Cork University Press,
123.
Clare, L., 2004. Enclosing the commons: Dalkey, the Sugar Loaves and Bray, 18201870. Dublin: Four
Courts Press.
Cotton, H., 1851. Fasti ecclesiae Hibernicae: i (Munster). Dublin: Hodges and Smith.
Hoskins, W.G. and Stamp, L.D., 1963. The common lands of England and Wales. London: Collins.
Keane, E., Phair, P.B., and Sadleir, T.U., 1982. King’s Inns admission papers, 16071867. Dublin:
Stationery Office for the Irish Manuscripts Commission.
Lowry, T.K., ed., 1867. The Hamilton manuscripts: containing some account of the settlement of the
territories of the Upper Clandeboye, Great Ardes and Dufferin in the county of Down, by Sir James
Hamilton, knt. Belfast: Archer & Son.
McMahon, R.J., 2007. Homicide, the courts and popular culture in pre-Famine and Famine Ireland.
University College Dublin, PhD thesis.
Moylan, T.K., 196061. The peninsula of Portrane. Dublin Historical Record, 16, 22.
Nicholson, C.A., 1986/1987. The Great Commons of Carrickfergus. Carrickfergus & District
Historical Journal, 2, 38 (1986); 3, 29 (1987).
O’Higgins, P., 1986. A bibliography of periodical literature relating to Irish law. Belfast: Northern
Ireland Legal Quarterly.
Rackham, O., 1986. The history of the countryside. London: J.M. Dent.
Watkin, T.G., 2007. The legal history of Wales. Cardiff: University of Wales Press.
Appendix I
Parliamentary enclosure Acts for Ireland
Irish Parliament
1800 Dromiskin, Co. Louth
United Kingdom Parliament
1803 Garristown, Co. Dublin
1804 Portrane and Donabate, Co. Dublin
1811 Lyons, Kill, Clonoclis, Celbridge and Donnacomport, Co. Kildare
1814 Ballymore Eustace, Co. Dublin
1814
1816
1818
1819
1821
1824
1829
1834
1839
1859
1862
40 Geo. III, c.97
43 Geo. III, c.xxix
44 Geo. III, c.5
51 Geo. III, c.xcviii
54 Geo. III,
c.lxxxviii
Gowran, Co. Kilkenny
54 Geo. III, c.cxlvii
Saggart, Co. Dublin
56 Geo. III, c.25
Kilmainham, St James, Clondalkin, Crumlin, Newcastle and Rathcoole, 58 Geo. III, c.28
Co. Dublin
Clane and Manheim, Co. Kildare
59 Geo. III, c.3
Tallaght, Killsillaghan and Luske, Co. Dublin
1&2 Geo. IV, c.21
Castle Island, Co. Kerry inclosure and allotment of land
5 Geo. IV, c.31
Callan, Coolagh and Knocktopher, Co. Kilkenny
10 Geo. IV, c.27
Mealiffe, Upper Church and Temple Beg, Co. Tipperary
4&5 Will. IV, c.34
Rathkeale and Croagh, Co. Limerick
2&3 Vict., c.46
Bray Commons, Co. Wicklow
22&23 Vict., c.lxxv
Dollow and Kilmore Commons, Co. Tipperary
25&26 Vict., c.7
Notes: all the above Acts are printed with the exception of the 1804 Portrane and Donabate Enclosure Act. Acts
with a chapter number given in lower-case Roman numerals will be found in the series of Local and Personal Acts;
those with a chapter number given in italicized Arabic numerals (with the exception of the unprinted Portrane and
Donabate Act of 1804) in the series of Private Acts commencing in 1815. These are modern conventions. Under
contemporary conventions confusion abounded, as it was common practice to cite all Acts, whatever the series Public General, Local and Personal or Private by chapter numbers in unitalicised Arabic numerals.
328
W.N. Osborough
Appendix II
The preamble to the Saggart Enclosure Act of 1816
Whereas there are within the Parish of Saggart, otherwise Tassaggart, in the County of Dublin,
several Commons and Waste Grounds containing by Estimation about Nine hundred Acres or
thereabouts: And whereas the Governors of Saint Patrick’s Hospital, commonly called Swift’s
Hospital, in the City of Dublin, are Lords of the Manor or reputed Manor of Saggart, otherwise
Tassaggart, in and extending over the said Parish, and Owners of Messuages, Lands, Tenements, and
Hereditaments within the same; and several other Persons are owners of Messuages, Lands,
Tenements, and Hereditaments within the said Parish, and as such are interested in the said Lands
and Grounds: And whereas the said Lands and Grounds are in their present State incapable of any
considerable Improvements, and it would be advantageous to the said Owners and Proprietors, and
all other Persons interested therein, if the same were divided, allotted, and inclosed, but as such
Division, Allotment and Enclosure cannot be effected without the Aid and Authority of
Parliament . . .