gavelkind, case of

gavelkind, case of, a special ruling by the Irish judges in 1606, recorded by Sir John Davies's Reports (1615). This abolished partible inheritance (gavelkind) in Gaelic districts. Hitherto, all lands, except those pertaining to the office of chief or tanist (see tánaiste), had been periodically divided between the male members of the clan. The methods varied across the country—divisions could take place annually, after a set number of years, or when the chief died; in some places the shares were equal, in others they were apportioned according to age and status. English rulers found these practices, which created fractionalized holdings and continual shifting of abode, inimical to stable property rights and agricultural improvement.

The Irish system gave full rights to illegitimate children and disqualified the claims of widows and daughters. Therefore the judges declared that land in Irish parts would henceforth be held and passed according to common law (the eldest legitimate male inheriting). The judgement was converted into an act of state by the Irish privy council which declared void all gavelkind settlements since the accession of James I.

This ruling allowed an attack on the Gaelic lords of Ulster by the creation of freeholders under common law tenures in Fermanagh and Cavan in 1606. The judicial overthrow of the Gaelic system was consolidated by the 1608 decision in the case of tanistry. The act of state on gavelkind was claimed by the privy council as a precedent for its capacity to rule on land matters in its dealings with Adam Loftus in the late 1630s. Ironically, having gone to great lengths to establish primogeniture in Ireland, the Act for Preventing the Further Growth of Popery (1704) (see penal laws) ordered that the lands of papists who refused to conform should descend ‘by nature of gavelkind’.

Hiram Morgan