UC-NRLF B 3 flbfl ISM wmm mM mm mBimm m M mm- mmMm Hi 11m • REESE LIBRARY - OF Tin: < UNIVERSITY'OF. CALIFORNIA. \ •liecewed .. . APR 21 1893 /,99 . i Accessions No. ^ 1 10 7.. Class No. THE HISTORY OF LAND TENURE IN IRELAND. aottUon: C. J. CLAY AND SONS, CAMBKIDGE UNIVEKSITY PKESS WAREHOUSE, AND STEVENS AND SONS, LIMITED, 119 AND 120, CHANCERY LANE, LAW PUBLISHEES and BOOKSELLERS. flCambritiee: DEIGHTON, BELL AND CO. ILcipjts : F. A. BROCKHAUS. i^eto gorfe: MACMILLAN AND CO. THE HISTOKY OF LAND TENUKE IN IKELAND. BEING THE YORKE PRIZE ESSAY OF THE UNIVERSITY OF CAMBRIDGE FOR THE YEAR 1888. BY WILLIAM ERNEST MONTGOMERY, M.A., LL.M., I > CLAKE COLLEGE, CAMBRIDGE ; AND OF THE INNER TEMPLE, BARRISTER-AT-LAW. UNIVERSIT CAMBRIDGE : AT THE UNIVERSITY PRESS. 1889 [All Rights reserved.] Si lb 1 PRINTED BY C. J. CLAY, M.A. AND SONS, AT THE UNIVERSITY PRESS. PREFACE. THE Yorke Prize was founded, under the sanction of the Court of Chancery, from the bequest of Edmund Yorke, M.A., late Fellow of St Catharine's College, Cambridge. It is awarded annually to such graduate of the University, of not more than seven years' standing from his first degree, as shall be the author of the best essay upon some subject relative to " The Law of Property, its Principles and History in various Ages and Countries." The subject announced for the year 1888 was " The History of Land Tenure in Ireland," and the following pages owe their existence to the conditions of the Prize which direct that the successful Essay shall be printed and published. The immense range of an adequate history of Irish land tenure is manifest, and the present slight sketch can of necessity give but an outline of this involved subject. I may, however, briefly point out a few of the most prominent difficulties met with in tracing the troubled history of Irish land law, and explain the basis upon which the present Essay has been constructed. In the case of the Brehon Law there is undoubtedly a large opening for original work, but the initial difficulty inseparable from an entire dependence on translations, is enhanced by the complex nature of the Laws themselves. I have therefore when dealing with this branch of the subject given full references to the authorities relied on. Passing from the archaic law to English legislation I have throughout assumed that the forces of social disunion, which hindered the VI PREFACE. working of broad legislative measures, are of more importance than the multitude of petty and inefFectual experiments with Irish land law with which the Statute Book is crowded. Minor enactments have therefore been passed over in order to examine more fully those of extended scope. The national, religious, and political bias which has coloured so much of the literature connected with Ireland creates an obstacle in the way of an attempt to write an impartial history of the land law. In addition much of the recent land legislation is so involved with current politics as to render it hard to avoid the vexed questions of the day. I have, how- ever, endeavoured to the best of my ability to write without prejudice and to carefully eschew present political controversy. Wm. E. MONTGOMERY. 2, The Cloisters, Pump Court, Temple. CONTENTS. PART I. IRELAND THE ENEMY. PAGES Chap. I. The Agrarian Community of the Irish Celts . 3 — 18 Chap. II. The Brehon Law 19—39 Chap. III. The Colony of the Pale (from Henry II. to Henry VII.) 40—54 Chap. IV. The Colony of the Pale (from Henry VIL to James I.) 55 — 64 PART II. IRELAND THE SLAVE. Chap. V. The substitution of English Tenures and the era of Protestant Ascendency . . . 65 — 88 Chap. VL The Land and the People . . . . . 89—101 Chap. VIL Ireland from 1800— 1850 102—114 PART III. THE IRELAND OF TO-DAY. Chap. VIII. Ulster Tenant-Right and the Devon Commission 115 — 123 Chap. IX. Free Trade in Land . . . . . . 124—134 Chap. X. The Act of 1870 135—155 Chap. XL „ 1881 156—171 Chap. XII. Recent Legislation 172 — 181 Table of Statutes cited 182—185 Index 186—191 •' No rule of law dealing with the contracts of owners and hirers of land is in itself objectively good or bad ; the law which is most advantageous in one society would, if suddenly introduced into another, seem unjust, and probably prove mischievous ; the good or evil effects of any law depend upon its being applicable or inapplicable to the social condition of the society into which it is introduced." — A. G. Eichey. " There has in general survived to the Irish farmer, through all vicissitudes, in despite of the seeming or real veto of the law, in apparent defiance of political economy, a living tradition of possessory right, such as belonged, in the more primitive ages of society, to the status of the man who tilled the soil." — Report of the Bessborougfi Commission. M. PART I. IRELAND THE ENEMY. UNIVERSITY CHAPTER I. The Agrarian Community of the Irish Celts. The genesis of Irish social and political organization is found, said the late Sir Henry Maine, as in all the Aryan, Semitic, and Uralian races, to lie in the Family group \ Amongst the Irish Celts in the earliest times to which modern research has penetrated, a social organization built upon the actual or constructive kinship of members of the community, based on the real or theoretical descent from a common ancestor, can be traced. Such an organization finds its most perfect type in the joint family of modern India, (composed of those persons who would have taken part in the funeral ceremonies of the common ancestor), and corresponds to the Agnatic family of the Romans^. To the original conception of an organization of this nature the idea of individual property in the land is totally foreign; the rights of the individual being at most merely a more or less temporary usufruct of the soil by consent of the family group, the reversion remaining in the community. Peculiar interest, moreover, attaches to the development of the Irish agrarian system from the fact that the direct influence of that tremen- dous legislative engine the Roman Law has been absent^, and even its indirect influence has been so slight that it may fairly be treated as unimportant ^ Practically independent of ex- 1 Early History of Institutions, pp. ^ Mr Pearson says, " Ireland ex- 65, 66. It is worthy of note that when piated dearly its independence of the the first English emigrants settled in Roman dominion, the secret of its long New England, they distributed them- anarchy being in fact that it was selves in village communities. Christianized without being civilized." 2 Primitive Property, Emile de La- Hist, of Eng. during Early and Middle veleye, p. 123. E. Hist, of Inst. pp. Ages, Vol. i. p. 516. 106, 107. ^ Sullivan's Intro, p. 5, Manners and 1—2 4 THE AGRARIAN COMMUNITY [CHAP. ternal pressure, primitive Aryan custom developed into a more advanced stage, and the theory of the family was extended and modified in the attempt to fit it to the needs of increasing population \ In the Brehon Laws (which will be more fully dealt with hereafter) exists a more or less fragmentary collec- tion of some of the legal theory, if not practice, of this later stage of growth. It is endeavoured in this chapter to trace the expansion of the simple family system into the more com- plicated social organization presented by the Brehon Code ; and at the same time to mark the gradual development of separate ownership in the land, which at this later period was already being evolved from the original conception of corporate posses- sion. The Irish Celts, when ceasing to be nomad and settling upon definite areas of land, exercised apparently a social eco- nomy in which the possession of land may at first be deemed an accidental feature ; cattle constituting the only property to the possession of which much importance was attached, and remaining, even when property in land was held an integral item of the social system, the standard of value by which other things were calculated^ It would seem that in the earliest form of an ascertainable land system the head of the family group made a yearly or triennial allotment of lands ^ to the members of the family for the purpose of cultivation, and at the end of this period a redistribution was made. No right what- ever was acquired by the allottee to the piece of land thus held Customs of Ancient Irish, E. O'Curry. forming the Duthaig fine, or the sept Of the Brehon Law it may also be said in its narrower sense, as found in the that it was uninfluenced by Roman law, Brehon laws. despite that certain Roman law max- 2 Celtic Scotland, Vol. iii. c. iv. ims are incorporated in the text, and Skene. that a Roman jurisconsult is men- ^ Prof. Sullivan and the writers of tioned, for these slight touches may be the school who have endeavoured with • ascribed to contact with Churchmen. but little foundation to magnify the E. Hist, of Inst. p. 55. civilization of the early Irish Celts, 1 To this modification of the origi- hold that the tribe-land was universally nal theory of family unity we may held in severalty at the time of the ascribe the curious division of the Brehon laws, and that these periodical Irish family into the Geilfine, Deir- allotments extended only to the corn- fine, larfine, and Indfine, together mon lands. I] OF THE IRISH CELTS. for a year, he had merely by consent the usufruct thereof for such time. The tribal group is but an enlarged model of the family group, the members of the original cluster being repre- sented by the allied sub-groups. Thus in its full expansion the tribe or fine^ is found, with a chieftain or king at its head, formed of an aggregate of groups each a miniature of the larger tribe, and in their turn composed of other clusters until the lowest item of the social organization is reached in the family group or sept'^ Such sept being the unit of a society^ in which an individual as distinct from a member of a family group had scarcely in theory a proprietary existence. The mode of dealing with the land gradually underwent change, the yearly allotment passed into an allotment for life, the reversion being in the sept. It should be remembered, however, that in early times the portions of land allotted to members ^ "The term 'fine' or 'family' is used to designate all subdivisions of Irish society, the tribe in its largest extent, the sept or the sub-tribe," Systems of Landliolding ^ C. D. Field, p. 239. Sir H. Maine held that the 'fine' translated ' tribe ' in the Corns Bescna was the sept. In the Tripartite Life of St Patrick, where information might have been hoped for, no direct light is thrown upon the subject (see Vol. i. p. clxviii.). - Mr F. Seebohm says, "A sept consisted of a number of actual or re- puted Uood relations bearing the same family names, and bound together by other and probably more artificial ties, such as common liability for the pay- ment of eric, or blood fines." The English Village Community^ c. vii. p. 219. The exact model of the sept is the joint family of modern India. It is a corporate, self-supporting unit, with " a perpetual existence like a so- ciety in mortmain;" it is "a juristic person and holds and acquires pro- perty ;" its continuity depends on the land occupied by it, " but it is not merely a land-owning body, it has live chattels and dead chattels distin- guished from those of individual tribes- men. Nor is it purely a cultivating body, it may follow a professional calling." Maine, Laveleye, Field. From surveys of the country as late as the year 1600, in which the names of tenants are given, it is evident that they were blood relations, "with a care- fully preserved genealogy guarding the fact of their relationship and conse- quent position in the tribe. ' ' Seebohm. " Survey of County Monaghan in 33 Eliz." Inquisitiones Cancellariae Hi- berniae ii. pp. xxi. and xxiii. and ex- tract therefrom quoted at p. 216, See- bohm. 3 Mr Skene, however, holds that the tuath or tribe preceded the sept, and ascribes the origin of the fine or sept, which is found at the time of the Brehon Laws, not in any way to a development of family relations, but to what may be termed the wealth- family of the Bo-Aire and his depend- ents. See Celt. Scot. Vol. iii. p. 171. 6 THE AGRARIAN COMMUNITY [CHAP. of the tribe would form but a comparatively small portion of the tribal territory, which would be divided into (1) pas- turage ground held by the tribe in common, (2) unoccupied and waste lands at first common property but in later times much trenched upon by the chief, (3) the usufructuary allotments of arable land\ The mode of succession to land at the time of the Brehon Laws was the custom of Gavelkind ^ by which on the death of a member of the sept the portion of land which had been allotted to him passed back into the general stock and the chief made a redistribution. It is pointed out by Mr Seebohm that the clustering of households so frequently met with in the early Irish surveys, and the runrig^ form of the open field allotments, were the natural modes of conducting a co-operative and shift- ing agriculture*. In the ancient Irish law it is clear that though the tribe is settled on the land, it yet holds, and is in- fluenced by, ideas derived from the time when kinship and not property was the bond between its members — this being the explanation of Gavelkind succession. It is only necessary to imagine the bonds of kinship further relaxed, and the connec- tion of each family to the land strengthened till the tempo- rary allotment to the household has become its actual property, 1 See Skene, Celt. Scot. Vol. iii. p. finny apr^s le mort de chescun terte- 139. nant que avait competent portion de 2 And as regards the chieftain " Ta- terre, assemblait tout le sept, et aiant nistry," this will be dealt with later. mis touts lour possessions en hotch- Gavelkind is from gabhail-cine=ac- pot fesait nouvel partition de tout : en cepted from the tribe. Although ori- quel partition il ne assignait a les fils ginally upon a death all the lands in de cesty que mourust le portion que the sept were re-distributed, eventually lour pere avait; mes il allotait al chas- it would seem that only the lands held cun del sept solonque son antiquity." by the deceased were so dealt with. Davies' Reports : Le Irish Custome de (Field.) The custom of Gavelkind was Gavelkind (quoted Laveleye). thus described by Sir John Davies — ^ Eundale, runrigg or runacre (said "Issint les terresde nature de gavelkind to be derived from Celtic roinn-diol, ne fueront partibles enter le prochen i.e. having a share in distribution: heires males de cesty qui morust sei- Laveleye) ... Similar systems prevailed sie, mes enter touts les males de son till quite lately in the Scottish High- sept en cest manner. Le canfinny, ou lands. E. Hist, of Inst. p. 101. chief del sept, fesait toutes les parti- 4 English Village Community, Sec- tions per son discretion. Cest can- bohm, p. 230. I.] OF THE IRISH CELTS. 7 to see the basis of the English custom of Gavelkind which is often erroneously contrasted with the archaic Irish mode of succession bearing the same name. But though this custom of Gavelkind (in its large sense) was still at the time of the Brehon Laws generally accepted as the theory of succession to land, and the proprietary rights were theoretically vested in the community, there is evidence to prove that much individual property actually existed ; so much so indeed that at the end of the 10th or beginning of the 11th century the Irish people were in a state of transition from common property to several ownership, the Brehon writers themselves rather favouring the theory of private property \ Many causes went to produce this alteration in the nature and conception of ownership. As a primary factor in causing the change stands the increase of population, aided by the fact that in certain instances the temporary occupation of tribe-land by the individual tended, through the sufferance or consent of che community, to become permanent^: lasting possession being probably generated by the scarcity of land rendering a higher degree of cultivation necessary than the periodical division every year or every three years would allow, and the extra labour expended fostering the idea of property I In addition, a change which took place in the social organization of society, namely the increase in the power of the chief, had a large influence in breaking up the archaic theory of communism in the soil*. The original notion of Father of the community 1 The book of the Dun Cow (Lebor 2 ^_ [jist. of Inst. p. 95. na Huidre) compiled in the 7th century ^ Prim. Prop. p. 125. by the Abbot of Clanmacnois, known •* " It may now, however, be laid to us in an Irish ms. of the year 1100, down without rashness that Property says " Round the field there was neither in Land, as known to communities of ditch, hedge, nor stone wall, and the the Aryan race, has had a twofold land was not divided till came the origin. It has arisen partly from the period of the sons of Aed Slane (7th disentanglement ofthe individual rights cent.), but only smooth fields.... It was of the kindred or tribesmen from the in consequence of the great number of collective rights of the Family or Tribe, families at this time that divisions and partly from the growth and trans- and boundaries of the soil were intro- mutation of the sovereignty of the duced in Ireland." Seebohm, p. 225 Tribal Chief." E. Hist, of Imt. ip. 120. and Prim. Prop. Laveleye, p. 125. 8 THE AGRARIAN COMMUNITY [CHAP. became merged in that of Leader of the clan, and even the idea of kinship amongst members of the tribe was assimilated to that of a bond of subjection to a common authority, in the further growth of which idea lies the root of the pseudo-clanship of the fuidhir tenants \ In order to understand the position of the chief with regard to the land it is necessary to appreciate the mode of succession to the chieftaincy — as regulated by the custom of Tanistry. A chief was elected for life by the whole tribe or sept, usually by show of hands, and his successor was in most cases chosen in the same way"^ during his lifetime. Though this successor (who when elected was termed the ' Tanaist ') was nominally supposed to be the next of blood who was eldest and worthiest ^ it is easy to see how great weight the wishes of the existing ruler would have in regulating the choice of the clan. It is evident that a door was here opened for easy inroad on the corporate ownership of the tribe-land. When the Tanaist was a near relation of the then chief, landed property held by such chief in his private capacity would be likely on his death to be continued to his descendants with a lofty disregard of the customs of Gavelkind. Moreover even if it were appropriated by the Tanaist on his accession to the chieftaincy as being part of the appanage of office, and thus his due by the custom of Tanistry, it would by increasing the vassals and hence the power of the new ruler render further depredation by him from the tribe the more easy. The chief on election became, by virtue of such election, the proprietor of a seigniory over all 1 Post, pp. 9, 17. =^ The Cain. Aigillne A. L. of I. Vol. - Field, p. 242.... "When the claimant ii. p. 279 says *'The head of every was powerful even the form of election tribe... should be the man of the tribe was occasionally dispensed with. It is who is the most experienced, the most hard to overrate the power of * the noble, the most wealthy, the wisest, strong man armed ' in troublous times. the most learned, the most truly popu- Strongbow himself is said to have been lar, the most powerful to oppose, the raised to the post of Roydamna during most steadfast to sue for profits and the lifetime of Dermot MacMurrough to be sued for losses." The chief- and hence to have claimed to succeed taincy being elective, a power seems him. Hume says " The usual title of also to have rested with the clan, and to each petty sovereign was the murder have been sometimes exercised, of re- ef his predecessor." moving a chief for mal-administra- I.] OF THE IRISH CELTS. 9 the lands of the tribe, and his power was greater still over the waste-lands \ From these latter, indeed, more than from in- equitable re-allotment of occupied tribe-lands, it is probable that his accession of those allodiaP lands was made, which by the facilities they offered for the support of his retainers and servile dependents became the mainstay of his power and the stepping-stone to increased conversion of tribal territory into private property. The very nature of the tribal system fostered this germ of despotism, for recurring once again to the archaic theory of the family community, and endeavouring to realize what was the position of a member who from any cause was expelled from its charmed circle, it is found that becoming a very Ishmael without a social, political, or legal existence no course was open to him but to endeavour to assimilate himself by some means to another kindred association. The only means by which this could be accomplished was by becoming the per- sonal retainer of some chief, who in return for his services would give protection, and by subjection to whose authority he would gain a pseudo-kinship with the members of the tribe. In this way arose the class of Fuidhirs, strangers or fugitives from other tribes ; and the tribal chief who extended his aegis over the outcast would in all probability allot for his use a portion of the waste-land of the tribe I Such land, held theo- retically at the will of the tribe, but practically from the chief, in return probably for military or agricultural service, soon became looked upon as a portion of the chief's demesnes (if it tion. See case of Donell O'Garmleay, subject E. Hist, of Inst. p. 93. quoted p. 70, Vol. ii. of Ware's An- ^ It is surely justifiable to use this tiquities of Ireland. term here. 1 Whilst dealing with the various ^ ^g jg pointed out by Mr Justice causes that broke up the theory of Field, the 'Senchus Mor ' alludes to common ownership and established three rents, a rack rent or extreme rent severalty, it must be remembered that from one of a strange tribe (the Fuid- on the waste-lands near the border, hir), a fair rent from one of the tribe, cultivators of servile status were per- the stipulated rent paid alike by him mitted to squat, and cultivating set- of the tribe and him of a strange tribe, tlements of tribesmen occasionally Landholding and the relation of Land- took possession thereof; in many of lord and Tenant in various countries. these cases something resembling in- 2nd Ed. p. 240. See also E. Hist, of dividual property arose. See on this Imt. 10 THE AGRARIAN COMMUNITY [CHAP. is admissible to use the English manorial term) ; and the abso- lute dependence of the fuidhir tenant is well shown by the passages in the Brehon Law^ sanctioning distress from a chief who did not aid his fuidhir against injustice. In addition to his seigniory over the lands of the tribe, and his more extensive power over the waste-lands of the commu- nity, the chief had also certain lands allotted to him in a special way as appurtenant to his state, termed mensal lands, and these descended from chief to chief according to the custom of Tanistry as the appanage of office^. In these lands, separated from the common stock to support the dignity of the chief- taincy, is to be traced one of the very earliest signs of the decay of the system of corporate possession by the tribe, and in all probability the lever which opened the door to the earliest instances of separate property. The great power pos- sessed by the chief over the tribe and the unsettled state both of society and law makes it apparent that the lands which were given as an attribute of the chieftaincy as to a corporation sole would be very liable to be retained by the nearest relatives of the chieftain in private ownership on his death. By the time of the Brehon Laws the power of the chief had so increased over certain members of the tribe as to reduce them to a position of dependence^ by the development of Saer and Daer tenancy, with the result that the lands originally occupied by them in ordinary common ownership with the rest of the clan had come to be held in many cases at what is equivalent to a rent. To properly understand the growth of these tenancies it is necessary to bear in mind that despite any amount of ultimate possession or control which was exercised over the land by the head of the clan, the germ of his power lay in the possession of cattle. These, the natural spoil of war to the conquering chief, were in the early agricultural commu- nity of more intrinsic value than land, of which there was at first a surplusage* ; and it is in a great measure to the power 1 Sen. Mor {A. L. of I. Vol. i. pp. 125 System of Ireland, Law Quarterly Re- and 139). view, 1887, pp. 135 and 136. O'Con- 2 E. Hist, of Inst. p. 92. nor Morris. 3 Much as the Patrician obtained ^ One is struck instantly in the power over the Plebeian debtor. Land Brehon Law, with the immense import- I.] OF THE IRISH CELTS. 11 over a tribesman acquired by the chief to whom he was in- | debted for a loan of cattle, that the origin of the idea of rent for the soil may be traced \ ~^ Saer and Daer stock tenancies are the names given to the relation subsisting between chief and tribesman, when a loan of cattle has been advanced by the former to the latter ; the difference between Saer and Daer tenancy resting in the fact that in the first where only a portion of the tenant's stock is provided by the chief the tenant debtor remains a freeman, in the latter where all the stock is found he becomes a villanus'' or at any rate is in a semi-servile state. Such loans, probably one of the most formidable agencies in increasing the power of the chief, were it would appear largely imposed upon those who being tribesmen were obliged to receive the charge from their head^ and were always resorted to by those whose poverty pre- vented the acquisition of cattle (that is of the means of tillage) by independent means. The complicated rules of these tenancies will be referred to later on whqn the enactments of the Brehon Law will be more fully dealt with. Here they are only im- portant in so far as they represent another factor in the influences breaking down the theory of common ownership of the soil by the clan, and laying the foundation of ownership of land held from a chief. The inroad made by these tenancies upon the original theory of tribal constitution becomes far more apparent when it is found that they were not confined to chief and tribesmen of one clan, but might be created between ance attached to the possession of base wages from any man unless it be cattle. his own will to do so, andT it is com- 1 Sir H. Maine held that the rent petent for him not to accept Saerrath payable in the produce of the stock (free wages) from anyone but from a and refections ultimately became a king, but he is not entitled to refuse rent payable in respect of the land. the free wages of his king. Every The stock lent was termed 'Taurcreic' man in the Tuath is bound to receive and the food rent *Besa,' see E. Hist. the wages of the Eig Tuatha (king of of Inst. p. 160, and Skene Vol. iii. the territory)," and says "Theoretical- p. 146. ly speaking no freeman need become 2 Field, pp. 241 — 242. the dependent of another save the 3 Prof. Sullivan quotes the following king of his territory, but the condition enactment of the Brehon Law. "It is of dependence was imposed upon him competent for a man never to accept by the circumstances of his position." 12 THE AGRARIAN COMMUNITY [CHAP. members of different clans ; the tribesman of one becoming the Daer-stock tenant of another. The social connection between the chief and his tenants is stated in the Senchus Mor^ to be "That he (the chief) is to give them stock and returnable *seds,' and to protect them against every injustice that he is able, and they are to render him victuals and labour, and respect, and to return the 'seds' to his heir, or for his heir where it is right (to do so). The chief has {power to pronounce) judgment, and proof, and witness, upon his Daer-stock tenants ; but his Saer-stock tenants can oppose them, and bear witness against his tenants if they be impartial witnesses." These Saer and Daer tenancies are also important in their bearing on the modifications of the land system, for their tendency was un- doubtedly to reduce the debtor to vassalage ; and in this fact probably lies the explanation of the origin of many of the complicated servile groups with which we are confronted in the Brehon Laws and in all early Irish history^. The theory of common ownership recognized no right of alienation by the individual of his share of the tribe-land ^, and even in the Brehon Laws this doctrine holds, " every tribesman is able to keep his tribe-land, he is not to sell it, or alienate it, or conceal it, or give it to pay for crimes or contracts "*. The original universality of the rule was, however, infringed by exceptions and in certain cases a portion at least of his tribe- land might be alienated by the tribesman by grant, contract, or bequest. As regards the property which his own effort had ac- quired, a larger power of alienation was possessed by the tribes- man than he had over that obtained by allotment. Again in the Cortis Bescna a still further distinction is drawn between the property which a man has acquired by special industry and that which is merely the produce of the land in the ordi- nary course of husbandry, the former being regarded as more 1 Ancient Laws of Ireland, Vol. ii. ' commendation ' are thus produced." p. 345. E. Hist, of Inst. p. 158. 2 "It is by taking stock that the ^ g^ve by consent of the corn- free Irish tribesman becomes the Ceile munity. or Kyle, the vassal or man of his chief, ^ A. L. of I. Vol. ii. p. 283, and see owing him not only rent but service E. Hist, of Inst. p. 108. and homage. The exact effects of I.] OF THE IRISH CELTS. 13 particularly his own property and hence his right of alienation being greater over it. An examination of the Brehon Laws shows that there can be little doubt that the growth of this power of alienation found if not its origin at least its most fostering element in the influence of the Church \ How early such influence began to work it is impossible to say, for there is negative evidence that for some time after the arrival of St Patrick Christianity had not spread throughout Ireland I Still it is certain that beginning from about the time of St Patrick the ecclesiastical element entered the Irish legal system, and many of the increased facilities for the alienation of land, and much of the advancement of the idea of the binding nature of contract are due to the efforts of the monks. The Christian influence on the law tended in the direction of increasing the property of the Church, with a view to which it favoured free- dom of alienation. Thus despite that the Brehon Law lays down that 'no tribesman is to sell, alienate, or conceal his tribe-land or to give it to pay for his crimes or contracts V yet under certain circumstances exceptions were made, and in its original conception the grantee contemplated is without doubt the Church* which is indebted to this source for its term on lands. The position of the Church with regard to the land at the time of the Brehon Laws is thus explained in the Senchus Mor^, " The social connection which subsists between the church 1 A curious side light is thrown he was killed by the sun and wind, on this by the fact that in the Tri- " Laeghaire, son of Niall, died partite Life of St Patrick, the word for On the side of Caissi, green its bequest occurs four times and always land ; in connection with ecclesiastics. The elements of God, whose guar- 2 For example see a passage in the antee he had violated, Annals of the Four Masters, Vol. i. Inflicted the doom of death upon pp. 143, 145 (quoted in Pritchard's the king." Physical History of Mankind, p. 140), This quatrain is quoted in The Four where it is stated that Laeghaire, the Masters, p. 145, and also in Lehor na son of Niall, having been in the year Huidre, but the author is unknown. 457 taken captive in a battle against ^ A. L. of I. Vol. ii. p. 283. the inhabitants of Leinster, swore by ^ E. Hist, of Inst. p. 108. the sun and the wind that he would ^ Sen. Mor (A. L. of I. Vol. ii. never again demand a tribute for his pp. 345 and 347). cows. The oath having been violated 14 THE AGRARIAN COMMUNITY [CHAP. and its tenants of ecclesiastical lands is, preaching and offer- ing: — and requiem is due from the church to its tenants of ecclesiastical lands, and the receiving of every son for instruc- tion, and of every (such) tenant to right repentance ; tithes, and first fruits, and alms, are due of them to her, and full honor price when they are in strong health, and one-third honor price at the time of death ; and the church has (the power of pro- nouncing judgment), and proof, and witness upon its tenants of ecclesiastical land, both Saer-stock tenants and Daer-stock tenants ; and upon every other layman, even though he be a Saer-stock tenant of ecclesiastical lands, unless there is another church of equal dignity claiming him." This extract shows conclusively how large a temporal power had been acquired by the Church, and it is plain how potent an influence it must have exerted in moulding the Brehon Law. It is far from improbable also that the power of the Church was felt in the local laws which influenced petty communities to a larger extent than is shown by the laws of Tara. Mr Skene, who lays stress on the laxity of sexual relations in the earliest times of Irish history, would also ascribe in the main to the influence of the Christian church^ the practical creation of the paternal power ^, and would defer till this time the real existence of the family group with the father as its head. It seems probable, however, even if the marriage bond was not held binding, that he has under- rated the eagerness with which sons (the warriors of the future) and daughters (by whose means valuable alliances could be contracted) would be claimed by the father as members of his family I Though the various causes'* which tended to break down the original theory of family unity, to disintegrate collective 1 The Early Irish Ecclesiastical the legitimation not only of the Law limited marriage relations strictly. bastard, but of the adulterine bastard, Canones S. Patricii {Councils and Ec- and measures the compensation to be clesiastical documents of Great Britain paid to the putative father." E. Hist, and Ireland, A. W. Hodden and W. of Inst. p. 59. Stubbs). ii. Synod xxv — xxviii. See ■* The influence of the more ad- The Celtic Church by F. E. Warren. vanced civilization of foreign nations 2 Skene's Celt. Scot. Vol. in. p. 138. was scarcely felt by the early Irish com- 3 " The 'Book of Aicill' provides for munity, and is only treated of in two I.] OF THE IRISH CELTS. 15 ownership and to establish the theory of several possession, have been touched on, it must not be imagined that in the Brehon Laws ownership in severalty was recognized as the rule. On the contrary the property, social, and juristic rights of indi- viduals are still theoretically merged in the system of the family group, but the numerous exceptions which are apparent show clearly the effects of the attacks made on the original conception of ownership. There is clearly traceable the pro- gress of what may be termed the natural feudalization of the land, retarded indeed by the want of a strong centralized government and doomed never to be consummated in the natural order of things, (since the Brehon Law was roughly rooted up, and a more advanced system thrust on a nation unfit to receive it) but 'Undeniably present. Before commencing an examination of the extant tracts of the Brehon Law it is necessary to treat more fully than has yet been done of the relation of the landholding classes between themselves in early Irish society. In the earliest times the inhabitants of Ireland are found divided into the two great classes, free and unfree\ and these two classes seem to have been divided into many grades. Amongst the free the division is one which may almost be termed that of the " classes and masses." The former order, the Aires, being again subdivided into the two classes of (1) Flaths and (2) Bo- Aires ^ The Flaths represented an aristocracy of instances in this essay (1) where the influence of the Church is incidentally dealt with in this and the following chapter, (2) where the effect of the establishment of the Colony of the Pale is treated of in chapters III. and IV. 1 " The acts of the Council of Armagh in 1171 show that there had been a custom of buying Anglo- Saxons from merchants robbers and pirates ; for it was decreed ' ut Angli ubique per insulam servitatis vinculo mancipati in pristinam revocentur libertatem.' " (See Sigerson quoting Girald. Camb. Expugnatio Hibernica, L. I. c. xviii.) Some very ancient Canons of the Church (quoted c. 20 Ware) also point to this, and we learn from Seyer's History of Bristol that slaves were ex- ported from England even as late as the reign of King John. See also William of Malmesbury de Vit Wlstani. In the Book of Rights, printed by the Celtic Society, p. 174, and quoted by Skene in Vol. iii. p. 140, the legendary origin of the class of the unfree is given. In the main slavery was due to the successive waves of conquest and to the effect of internal wars. - See Sullivan's Intro, to O'Curry, pp. c. and ci. 16 THE AGRARIAN COMMUNITY [CHAP. birth, their wealth lying in land and their rank being hereditary; whilst the Bo-Aires or Cow- Aires represented an aristocracy of wealth, or those who from the amount of their possessions in cattle rose above the ordinary tribesman, and whose descendants under certain circumstances were capable of rising to the rank of Flaths. These two classes of Aires alone possessed to the full the rights of freemen \ but the possession of sufficient wealth entitled any free native to become a Bo-Aire. The ordinary free tribesman was the Fer Midba, or inferior man, and of this class there are two divisions (1) those over the age of 14 and under 20, who though emancipated were not in pos- session of their full privileges, and (2) those over the age of 20, entitled to a separate residence and a share of the tribe-land I When the tribesman had received a loan of cattle he became a member of the class of Ceiles. The Ceiles were divided into the Saer, that is free, Ceiles and the Daer or base Ceiles. The relation of these two classes to the chief to whom they were indebted for the loan of cattle has been already remarked under the short description given of Saer and Daer stock holdings, and will be more fully dealt with later. Although the Daer Ceiles were base tenants they were yet possessed of certain definite rights in the tribe and in the tribal territory, and in this were widely separated from the servile classes of the Bothacks, Sencleiths and Fuidhirs whose rights were few, and who were almost in a state of complete servitude ^ These latter classes cultivated what in default of a better word may be termed the chief's demesnes, and possessed no political rights. " The Bothacks* or Cottiers, Saer and Daer, had a right of settlement, served the land noble as hired and farm labourers and performed menial services^" The Sencleiths appear to have been old adherents of the Flath, the descendants of old and ^ See Sullivan's Intro, to O'Curry, Bothacks seem to have been possessed p. cix. of no property save a cabin on the lands 2 See Skene's Celt. Scot. Vol. iii. p. of the Flath whom they served ; the 143. ' Daer Bothacks were farm labourers. 3 Sullivan's Intro, to O'Curry, p. cxv. ^ Sigerson's History of Land Tenures * Bothack fromBoth, a shed or cabin. and Land Glasses in Ireland, p. 9. Prof. Sullivan says that the Saer L] of the IRISH CELTS. 17 privileged servants or persons who at some time by favour had acquired a right to settle on the demesne \ The Fuidhir or refugee tenants have been treated of before, but it should be noticed that a great point of difference existed between them and the classes of Bothacks and Sencleiths; for whilst the latter formed part of the affiliated family or clan known in the Brehon Law as the ' Fine Flatha,' and were entitled as of right to susten- ance, habitation, and to the usufruct of the soil, the former class were strangers and outcasts, their rights in the clan, if any, being based on a contract with its chief. The free Fuidhirs indeed possessed in some degree the rights of freemen, being in reality strangers from other tribes, who, in consideration of only holding their Fuidhir tenancy of the land from year to year^, were allowed to retain certain rights. The Daer Fuidhirs on the other hand^ were in all respects in a position of the most servile dependence and were the victims of great hardships, their rights and liabilities being in almost all cases merged in those of the Flath on whom they were dependent, and whose chattels to all intents and purposes they were. These Daer Fuidhirs were mostly prisoners taken in war^, escaped criminals who had been given shelter, defaulting debtors, and outcasts of every kind. It seems, however, that a man might voluntarily become a Daer Fuidhir, and that he might become so for a limited number of years ; while a family of this class who remained nine times nine years on the land became entitled to rank with the Sencleiths. The following table purports to show the relation of the social orders of the tribe ^ or Tuath. 1 For example mercenaries. diffidence the subject being much in- 2 Prof . Sullivan says " If he entered volved. For authorities see Skene, into longer engagements than one Vol. iii. p. 142 — 147, also Ancient Laws, year with another than his own chief Vol. iv. p. 299, also Sigerson and Sul- he lost his rights and became per- livan. The classes of the Bo-Aires of manentlya Fuidhir." Intro. to O'Curry, which the Aire coisring "who repre- p. cxxv. sented the people before king and sy- 3 The Brehon Law draws a very nod " was the highest, and the Ogaire or sharp line of demarcation between the 'young lord' the lowest, differed merely Saer and Daer Fuidhir. in their degrees of wealth. The classes * St Patrick was of this class when of the Flaths are based on the number he was first brought to Ireland. of Ceile tenants each possessed, the ^ This table is put forward with Aire-forgaill being the most important M. 2 18 THE AGRARIAN COMMUNITY OF THE IRISH CELTS. Free 1. The Ri or king 2. The Tanaist 3. The Aires Flaths Bo-Aires fAi JAi Aire-forgaill Aire-tuise L 4. The Fer Midba Unfree « r Receive stock from the Ri j direct ^ I Receive stock r Aire-ard I from a •) Aire-echta L Flath ( Aire-desa Aire-coisring Ferfothla Bruighfer Febhsa Aitheck or Athreba 'L Ogaire Saer Ceile Semi-servile ( Daer Ceile r Possessing some rights in f the tribe, but none in J Saer Bothacks tribal territory only in ] Saer Sencleiths chief's demesne [_ Possessing very few rights ] Daer Bothacks Servile -i ^^ *^® *^^^® i Daer Sencleiths the Grad Flath the Grad Feine the Fine Flatha or affiliated family or clan. T).^«c«««,•v,., ^^ ^,-„v,+c ;r, fv,« I Saer Fuidhirs (had some rights as Possessmg no rights m the J fj-gemen). ^^ ^ ' Daer Fuidhirs (no rights whatever). and being also probably the Flath Geilfine or Geilfine chief. Though the above table gives the organization of a complete tribe, such tribe would not probably stand alone but would be linked by certain ties to other Tuaths, and the body thus constituted would represent that larger tribe known as the Mortuath. CHAPTER II. The Beehon Law. Having sketched the various causes which chiefly tended in Ireland to mould into a more complex form the original conception of ownership by the clan, and the disintegrating influences which tended to develop ownership in severalty, it is proposed in this chapter to examine more carefully the exact nature of land holding as recognized by the Brehon Laws. These Laws were the work of a particular class — the Bre- hons (Brithemain), a hereditary caste of lawyers. It has been suggested that these Brehons were substantially identical with the class of Druids found amongst the Celts of the Continent ^ and it may be that on the introduction of Christianity the Irish Druids concentrated their attention on the study and ex- pansion of the laws, a subject which had formerly been only a portion of their duties I This supposition goes far towards accounting for a great mass of semi-barbarous and semi-chris- tian but altogether religious doctrine in the secular Brehon Law. It is specially noticeable as affording an explanation of the comparatively insignificant relation of the sanctions to various offences by suggesting the existence, at the time of the inception of the rules ^, of a moral sanction forming the understood complement of each material enactment and reme- dying its deficiencies. 1 See E. Hist, of Inst. p. 35. ^ Notice on this subject the late Sir 2 The Sen. Mor ascribes the good H. Maine's remarks on " Sitting judgments of the Brehon Law to the Dharna," and the statement in the influence of the Holy Spirit on just Sen. Mor {A. L. of I. Vol. i. p. 113) men who were in the island of Erin that notice and fasting precede dis- before its conversion. A. L. of I. In- tress in the case of a chief. tro. Vol. I. p. viii. 2—2 20 THE BREHON LAW. [CHAP. Generally of Royal blood and standing in the relation of ad- viser to the chief ^ while in many cases little if at all his inferior in prestige^; the representatives of culture as opposed to crass ignorance, and claiming through St Patrick a semi-inspired origin for their legal rules', the Brehons in the earlier phases of Irish history possessed in themselves, and transmitted to their rules, an authority which it is hard for those trained in modern ideas to realize. The weight attaching to the dicta of the Brehon was the more remarkable as the system was based on mere voluntary references to arbitration*, and as the sanction was a factor conspicuous mainly by its absence or insufficiency ; while even when existent it appears to have been irregularly and intermittently enforced owing to the want of a strong cen- tralized government. The great antiquity of the system whose legal rules of social relations and public polity the Brehon Laws profess to expound and regulate, render it a matter of deep regret that there is a scarcity of ancient Irish MSS. The limited amount of authentic documents, however, is no matter of wonder when it is re- membered that anarchy reigned supreme in early Irish history, and that the absence of walled towns and stone buildings ren- dered the preservation of manuscripts difficult ; while, in addi- tion, during the earlier part of the 18th century it was a serious matter to be as much as found in possession of an Irish book^. The Brehon Laws, as far as extant, consist of certain tracts, the text of which is glossed and expanded by later commentaries. Commissioners were appointed for the purpose of selecting and translating the Ancient Laws of Ireland, and the four volumes published by them contain translations of the Senchus Mor with its subtracts ^ the book of Aicill, the Crith Gabhlach, and 1 A. L. of I. Vol. IV. p. 341. 4 See — in one of the prefaces to 2 " For the king excels, for he can 3rd Vol. of Ancient Laws. In the decide against every kind of person Sen. Mor it is stated that any foreigner except those of the two orders of re- or stranger was entitled to be judged ligion and learning who are of equal by any Brehon he might choose, rank with himself." Sen. Mor, Gloss. 4. L. o/I. Vol. i. p. 7. ^. L. o/I. Vol. I. p. 85. 5 guUivan's Intro, to O'Curry, p. 3 See the account given by the Sen. xix. Mor of the origin of the Brehon Law. ^ The Senchus Mor is divided into II.] THE BREHON LAW. 21 certain smaller tracts on judgments of co-tenancy, of divisions of land, of divisions of the tribe and territory, of crimes, of rights of water and so forth, with a tract on bee judgments. The date of the ancient law tracts is very uncertain ; the Senchus Mor is stated in the Annals of the four Masters to date at 438 A.D., but the principal extant Brehon manuscripts are pro- bably not older than the 14th century, some being even as recent as the beginning of the 15th\ The obsolete form of language of much of their text, however, and the portions of old versified law embedded in it, point to a probability of these manuscripts being in the main transcripts from older writings, many of the glosses being as much translations as explanations^. But even taking this into ' consideration the language in which the manuscripts are written will not carry us back much farther than the middle of the 9th century^, and the late Sir Henry Maine thought that the dates of the Senchus Mor and the book of Aicill were the 11th and 10th centuries respectively. The Senchus Mor itself indeed claims to have been coeval with St Patrick; and Professor Sullivan argues from the internal (1) the law of distress, (2) Services of for my soul. This is Christmas night, Hostage Sureties, (3) Fosterage, (4) and on this night I place myself under the two laws of tenure Saer-Stock the protection of the King of Heaven (Cain Law) and Daer- Stock (Cain and earth, beseeching that He will Aigillne), (5) social connexions, (6) bring me and my friends safe through customary law (Corns Bescna). The this plague." remainder is lost but is supposed to ^ Prof. Sullivan instances the case have consisted of a tract on fines for of Druim Gall, a legal scribe in the stealing from a church or termon county of Clare between 1509 — 1511, lands. who confessed he could not understand 1 Dr O'Donovan translated a mar- the organization or functions of the ginal note which purports to have been ancient courts of Ireland (at this date written in 1350 on one of the Dublin the Irish laws were still in force in manuscripts of the Sen. Mor to show Clare, which was the last part of Ire- that it existed at that time. It runs land where the judgment of a Brehon " One thousand three hundred ten and was delivered) and says, "Here we forty years from the birth of Christ to have decisive evidence of a consider- this night ; and this is the second year able lapse of time between the period since the coming of the plague into when the courts were held in their Ireland. I have written this in the full state and the beginning of the 16th twentieth year of my age. I am Hugh, century." Intro, to O'Curry, p. xv. son of Conor Mac Egan, and whoever ^ ^^ jj^gt qJ j^f^ p. 12 ; Sullivan's reads it let him offer a prayer of mercy Intro, to O'Curry, p. xvi and xvii. 22 THE BREHON LAW. [CHAP. state of Ireland after the commencement of the Danish wars that the laws must be prior to the beginning of the 9th century, surmising that the three centuries after St Patrick (practically the only period of even comparative tranquillity which the early history of Ireland records) were the parents of the Brehon Laws. But it is open to doubt whether legal activity will only co- exist with political quiescence. If this is indeed the date of the Brehon Laws being first committed to writing, their codifi- cation may rather be ascribed to the stimulus given to intellec- tual activity by the educational influences of the Church. The early Irish law has many strong points of similarity with the laws of Wales ^ subject, however, to the important difference that the influence of the to some extent authoritative central government, which has fixed its seal on the Welsh laws, is absent in the Brehon code. The comparison nevertheless is of value as illustrating with much clearness that the alleged differences between Aryan sub-races are rather differences in their degrees of development than essential discrepancies ^ The Brehon Law, despite its pretensions to being a code, is rather " an accretion of rules which have clustered round an older nucleus ^" portions of the ancient versified law being, as has been stated, incorporated in the Senchus Mor and the book of Aicill. The late Sir Henry Maine held that probably each tract was the property of some individual legal school and exhi- bited its particular tenets*. In support of this it should be remembered that these laws were not in reality a " legislative structure," but were composed of the dicta of certain learned Brehons^ upon sets of facts, either submitted to them or hypo- thetically stated by them. This juridical interpretation stood alone as the source of the Brehon Law, and bears a strong surface 1 See Ancient Laws of Wales, pub. judgment, e.g. " Sean, son of Aighe, by Comm. ; History of Wales, by John passed the first judgment concerning Jones. distress." Sen. Mor, A. L. of I. Vol, 2 E. Hist, of Inst. p. 96. i. p. 79. 3 E. Hist, of Inst. p. 10. ' ^ E. Hist, of Inst. p. 24, instancing ^ E. Hist, of Inst. p. 16, and this the book of Aicill, by its own statement would perhaps account for the way in composed of the judgments of two Bre- which stress is laid in many cases on hons, Cormac and Cennfaeladh. the name of a Brehon who passed a II.] THE BREHON LAW. 23 analogy to the " responsa prudentum " of the Roman law, but the difference caused by the absence in the former case of the machinery of the courts and the sanctioning power of a cen- tralized government prevents any true similarity. It is a matter of great difficulty to know what stress to lay upon individual statements in the tracts, for in not a few cases the rules have evidently been constructed through certain given facts having suggested a number of hypothetical cases to the mind of the Brehon, upon which, though the law is laid down with great nicety and assurance, it is hard to imagine it possessed of a binding force. In the absence of that authority which can only be existent in conjunction with a strong central- ized government, bald statements of supposititious law\ not sanctioned by immemorial custom, could scarcely have carried any widespread authority. Not a few of the cases given are so trivial as to strongly suggest that they were merely illustrative examples used by the Brehon to instruct his pupil in the ex- pansion of particular rules I This theory of development also possesses inherent probability, for had the aim of the Brehon lawyer been directed to ascertaining general principles instead of particular applications, a more advanced law would have been obtained, but the greatest proof of the genuine antiquity of the system would have been lost. The difficulty of justly estimating the relative value of the statements of these archaic laws is increased by the fact that a large proportion of their contents have palpably been evolved by successive generations; partly from the pre-existing law tenets, either oral or written, of the founder of the school, but also partly from the real or imaginary needs of increasing popu- lation, enlarged learning, and more diffused culture. These later additions have been sheltered under the cloak of the founder's supposed semi-divine^ infallibility, and have been 1 "Much of the commentary is con- 3 «(The early Brehon, possessing in fessedly speculative, and does not re- his own breast the whole law, assumed present any existing customary law." a mysterious character, and was treated A. L. of I. Intro. Vol. iii. p. x. as an inspired or quasi-divine person- 2 This is particularly noticeable in age." A. L. of I. Intro. Vol. iii. p. the tract on bee judgments. xxxi. 24 THE BREHON LAW. [CHAP. incorporated into his system by what may almost be termed mental ' commendation \' Another difficulty also is met with at the outset of an enquiry into the Brehon Law in the ambiguity of the meaning of the terms used : thus, to take a well-known example, the word 'fine' is used (1) to denote those related within certain degrees of consanguinity, (2) the lord and his relatives together with his dependent Ceiles and Fuidhirs, (3) the whole tribe in its broadest sense. The amount of con- fusion caused by this looseness of expression can be better imagined than described. In the preceding chapter the classes of society which appear to have been in existence at the time of the Brehon Laws were dealt with, and the more or less complete disuse of the original practice of common possession of the tribe-land was traced. Turning now to the period of the fullest development of the archaic code it is striking how seemingly complex a social system is revealed, when the simplicity of the tribal system as described by Sir John Davies so many centuries later is remembered. The native land law recognized by the Attorney-General of James the First will be dealt with in a subsequent chapter, but it is perhaps possible that the explanation of its apparent dis- crepancies with the scheme revealed in the Brehon Law is to be found in the fact that Sir John Davies was content to deal with the broad outlines of the case presented to him, while many of the provisions of the ancient laws were theoretical rather than practical. The ancient Irish land system, when viewed in the light of the Brehon Laws, shows the 'Tuath,' or territorial possession of the tribe, divided into the following parts ^ — (1) The ' Deis ' or lands of inheritance (orba). (2) Office or ' mensal ' lands. (3) ' Termon' lands — the possessions of the Church. (4) Pasture lands. (5) Arable lands. 1 Notice some remarks by tlie late supposed to be sacred even to an inno- Sir H. Maine in Early Law and Gus- vating Brehon. tovi on literary fosterage as exemplified ^ See Skene, Celt. Scot. Vol. iii. p. in the laws of Menu, poems of Homer 148. It is the territory to which by (taking Grote's theory) and the Brehon this time the word Tuath is properly laws. The Senchus Mor, however, was applied. The tribe is now ' Ciniol.' II.] THE BREHON LAW. 25 The first group, that is the lands of inheritance, stand upon a new basis altogether foreign to the theory of the primal tribal community, and are either (1) the private possessions of the Ri, as distinguished from the mensal lands which he held as the appanage of office, or (2) the private possessions of the Aires (or rather Flaths) which were either (a) ancient allodial lands\ or (/S) had become property in severalty by prescription, or (7) had been amassed by the Flath in the same manner as the Ri had gathered his more extensive possessions, or (S) had been granted as the reward of public service, or (e) had been granted originally for life, and not returned into the public stock on the death of the usufructuary. It is doubtful if these inheritance lands were governed by any real rules of descent save that of possession by members of one family as apart from the tribe ; and it is probable that they devolved by that most potent of all titles in troublous times, the right of might. On the death of the Flath, therefore, the most powerful member of his family would succeed to the lands ; while the ingrained notion of common ownership would be still so fixed in the other members that they would hold themselves in theory, if not in fact, joint possessors with him ; and submit- ting by force of circumstances to his nominal succession, w^ould gain a very practical share of the inheritance by quartering themselves upon him, and looking to him for support. Considerable stress may indeed be laid on this view of the family rights in inheritance lands, despite the fact that in the book of Aicill the rights of the Duthaig fine, that is, the group of the seventeen nearest kinsmen (divided into their four groups of Geilfine, Deirbhfine, larfine, and Indfine'^) to succeed to the Dibad, or inheritance land of the chief, are fully expressed, and their reciprocal rights elaborately defined. The whole arrangement of the Duthaig fine, though held by 1 It is certainly doubtful if the word received stock from the chief), and the allodial should be used, both on ac- receipt of the Taurcrech by the Ceile, count of the theoretical reversion of the these appearing to acknowledge some tribe and also on account of the pay- dominion by the chief. Compare Sul- ment of Bestigi by the Ceile to the livan, p. cxliii. chief (for even the Flath seems to have ^ a. L. of I. Vol. i. p. 261. 26 THE BREHON LAW. [CHAP. the late Sir Henry Maine to show signs of being developed from accustomed rules of family relationship \ is strikingly arti- ficial, and appears to be rather a learned Brehon's elaboration of what the rights of family succession should be, than of being a workable system of succession, more especially in troublous times and among a semi-barbarous community. Mr Skene calls attention also to the passage with which these rules end, "and the whole number of the seventeen men are then forth- coming, and if they be not, there shall be no partition but the nearest of kin shall take^:" if the next of kin happened to be powerful, judging from the record of bloodshed with which Irish history abounds, he would have been likely to take very practical measures to prevent the symmetrical Duthaig fine from interfering with his title to the inheritance^. Dealing with these lands of inheritance there is no more striking illustration of the unsettled state of the country than the apparent absence of even the germ of customary tenures. No sooner has the chief become possessed of private lands, and allowed the settlement upon them of servile dependents, than the gradual establishment of some base tenure similar to that of English copyhold might have been expected ; but while the existence of this servile class is one of the most prominent features of the early Irish society, there is no trace of any definite rights being gained by them: on the contrary, the large number of social outcasts, devoid of tribal rights, appears merely to have encouraged the growth of unlimited exactions by the chief The extent of the lands of inheritance would tend largely to increase as time went on, for the chief would employ his wealth in cattle in Saer and Daer stock loans to freemen occupying the tribe-land, and it seems certain that the rent payable in produce of stock and refections developed, at least in many cases, into rent payable for the land*. If the 1 Being apparently founded on a or tribe of the red-handed, composed of principle similar to the Eoman law those who had killed, or attempted to method as to the emancipation of sons kill the senior members of the fine in from the patria potestas. order to gain their property, is an illus- 2 Gelt. Scot. Vol. III. p. 178. tration of this. Sullivan, p. clxvi. 3 The existence too of the Dergfine, ^ ggg e. Hist, of Inst. p. 160. II.] THE BREHON LAW. 27 Ceile fell into arrears in his produce payments, and the stock originally advanced by the chief was either destroyed by disesuse or carried off by raiders, the easiest mode for the chieftain to recoup himself would be to appropriate the Ceile's allotment of tribe-land as a portion of the demesne, and to reduce the Ceile to the status of a villein cultivator: nor is the shadowy right of reversion existent in the tribe likely to have afforded any sufficient barrier to such action. There are also significant signs that a process similar to 'commendation' was not unknown as an operant factor in ex- tinguishing the original tribal freeman. One modern writer* appears to carry the view of the growth of a territorial basis of society so far as to hold that the original family ties are completely merged in the land-bond; pointing out that "the possession of Deis or inheritance land which gave its owner the title of Aire, was also essential to his acquiring the privi- leges of. the chief of a fine." Without being prepared to go quite to this length, it is certain that at the period of latest development of the Brehon Law the Ceile is found in a position in many ways assimilated to that of tenancy; the ' coyne, livery and cosherings ' to which he was liable bearing a strong resemblance to the onerous incidents of feudal tenure. It was doubtless the case nevertheless that the idea of tribal possession was deeply ingrained in the Celtic race at the time when Sir John Davies commuted the Irish tenures. However far in reality the steady march of time had advanced that feudalization of the land, which in Aryan races seems always to have gone hand in hand with increase of population and the growth of the power of the chief, the idea of landlord and tenant was still strange to the Irish mind and its com- pulsory imposition on an unwilling people was probably a fatal mistake. It is so evident that in the Ceile dependents of the chief is to be traced the germ of the relation of landlord and tenant, that an examination of the Brehon rules regulating the cattle loans, which brought the free tribesman into a subordinate position, is an essential preliminary to a right appreciation 1 See Skene's Celt. Scot. Vol in. p. 175. 28 THE BREHON LAW. [CHAP. of the nature of the Irish land system for which the English tenures were substituted. The two subtracts of the Senchus Mor in which the rules of these loans are dealt with are termed the Cain Sereath and the Cain Aigillne. From these it ap- pears that the usual period of a Saer-stock tenancy was seven years ; during this period the young of the cattle lent, the milk, and the manure, were taken by the chief The tenant did homage, rendered help in reaping the harvest and, if required, in repairing or building the castle {dun) of the chief or following his banner in war. There seems to have been no fixed rule as to the amount or frequency of the services to be rendered, and here as throughout the Brehon Laws there arises the appa- rent difficulty of the want of a sufficient sanction, for no penalty is specifically mentioned for the non-performance of these services, save that a seeming diminution in the honour price of the tenant took place on his default \ After the end of the seven years the cattle became the property of the Ceile. The chief appears to have always lent the stock without security, and though no tribesman was compelled to take stock from his immediate chief yet he had no power to refuse to do so from the Ri or king^ These stock tenancies were terminable at will by the return of the loan. If the chief reclaimed his cattle before the end of the agreed term and the Saer Ceile expressed willingness there- upon to hold as a Daer- stock tenant he either did so (an extra amount of cattle being granted him) or the chief was liable to forfeit one-third of the original stock lent^ Daer-stock tenure differed in many ways from the comparatively free tenure of the Saer Ceile ; the tribesman so holding received a larger amount of stock, and some security was required from him by the chief The stock advanced was made up of two portions, one being somewhat similar to that dealt with in Saer tenancy, that is to say being proportionate to the reserved rent in kind, and the other being estimated with regard to the 1 A. L. of I. Vol, III. Intro, p. xlix. apply to Daer-stock tenants, A. L. of 2 A passage in the Cain Aigillne I. Vol. ii. p. 223. seems to show that this rule did not ^ Intro, to Vol. ii. A. L. of I. p. xlix. II.] THE BREHON LAW. 29 honour price* of the tenant. The exact amount of the rent in kind varied, and the Cain Aigillne is full of elaborate regula- tions as to the amount of stock proportionate to particular food-rents. One example will show the nature of these rules, " the proportionate stock of a cow with its accompaniments is thirty ' seds,' besides the returnable seds" (that is to say twenty- four cows). Thus for such a loan of twenty-four cows the food- rent would be one cow and accompaniments^. The severity of the Daer-stock tenure, however, lay not in the food-rent, but in the services exacted from the tenant and in such incidents of the tenure as * refections.' Under this right of * refection ' the Irish chieftain came with his followers and quartered himself upon the unhappy Daer-stock holder, chief and retinue living at his expense. This right was probably of ancient origin ^ and is frequently alluded to in the Cain Aigillne, but from very early times it seems to have led to grave abuses. It was the pre- cursor of ' coyne, livery and cosherings,' forms of exaction which are bitterly denounced by Spenser and which were some of the chief causes of complaint on the part of the English settlers*. There are many provisions in the rules of Daer-stock tenancy tending to show that in some respects a sort of contractual relation on fairly equal terms, and with reciprocal rights and duties, was regarded as being created between the chief and the tenant^ These points are of interest as the after fate of the Daer-stock tenant was one of complete servitude, and it is therefore important to notice that by the rules of the Brehon Law he should have been in no small degree protected. Thus, theoretically it was possible for the Daer Ceile, without 1 That is the price paid for injuring cess see a letter of Sir H. Sydney's to him. Queen Elizabeth (Sydney Papers). 2 A. L. of I. Vol. II. p. 261. There is an allusion to coyne and ^ The customary entertainments livery in Baron Finglas' Breviate of given by the tenant to the chief are Ireland (quoted in Harris' Hibernica) treated in the Corus Bescna under the which is a proof of the light in which head of ' human feasts' — and in them these exactions were regarded, it states originated many abuses afterwards that " they would destroy Hell if they included under cess. A. L. of I. were used in the same." Intro. Vol. III. p. xlviii. s gge preface A. L. of I. Vol. ii. 4 For an account of the exaction of p. lii. 30 THE BREHON LAW. [CHAP. the consent of the chief, to terminate the relation between them by returning double the stock and seds, and paying a double food-rent for the year in which they were so returned; again, if the chief determined the tenancy without due cause he had to forego his right to one-third of the stock and returnable seds, and to forfeit one year's food-rent ; while if the chief insulted the tenant in withdrawing the stock the Daer holder was allowed in addition to retain that portion representing his honour price. Other rules provided for double food-rent be- coming due if the tenant neglected his duties, while he was excused payment in cases of poverty \ At the end of seven years on the death of the chief the cattle became the property of the tenant ; while if the tenant died within the term the chief was able to claim a submission from his co-heirs. Before leaving the subject of lands of inheritance it is im- portant to notice that in the later periods of the Brehon Law this separate property appears to have been distinctly recog- nized, and the power of disposing of it not to have been in any way fettered. The mode of disposal, however, presents both curious and characteristic traits, for, unlike most archaic systems, the consensual relations of the contracting parties rather than the formalities observed by them in carrying out the transfer, are looked to as constituting the binding matter. The mode of disposing of land, moreover, seems to have presented few differ- ences from the informal transfers of personal property. The traces of a basis of contract in the relations of early Irish society to the land are of much interest ; not only as a great contrast to most archaic theory, but also in view of the events of modem history, when the application of a system of free contract to Irish land was treated as the panacea for the accu- mulated evils of centuries. The ' Mensal ' lands descended by the custom of Tanistry as the appanage of office, and here again the claims of power are prominent. Despite the nominally elective nature of the chief- 1 See A. L. of I. Intro. Vol. ii. p. li. on the keen sense of wrong felt by the and Hi. Bearing in mind the curious tenants in after times on capricious vitality of old-established ideas these evictions and evictions for non-pay- provisions possibly throw some light ment of rent when caused by poverty. II.] THE BREHON LAW. 31 taincy (which even in its latest development was elective in the individual though hereditary in the family) might constituted the pre-eminent title. The king once chosen, the Tanaist seems always to have been selected from that branch of the family which came next in power : for example, as pointed out by Mr Skene "the sovereignty over the whole of Ireland fell for several centuries into one branch of the great family called the Northern Hy Neill and the throne was filled alternately from two branches of it\" The mode of succession by Tanistry was not a feature peculiar to the Irish tribe, for customs analogous to it are to be traced in many other races. A prominent example of this is pointed out by Mr Justice Field ^ in the mode of succession to the Raj existing in many parts of India, where on the decease of the Rajah the succession goes not to his son but to the eldest male of the family. In this case also the same distinction is drawn between lands which are the appanage of office and those which are the private property of the Rajah ^. Mensal lands were originally intended to supply the chief with the necessary regal state, but the principle seems to have eventually been extended, and lands were set apart for the support of the public officers of the community such as the Bard, Brehon, Historian, etc. In later times the revenue of the chiefs was far more derived from the "cuttings, cosherings and other Irish exactions, whereby they did spoil and impoverish the people at their pleasure ^" than from the genuine products of their Mensal lands. All the lands of whatever kind held by the Church are grouped under the heading of Termon lands, so called, accord- ing to Sir John Davies, " because they were ever free from all impositions and cuttings of the temporal lords, and had the privilege of sanctuary." The Brehon Law recognized the claim of the Church to tithes, firstfruits, and firstlings, under which last head a most curious development of tenure arose: the firstborn son was claimed as a right by the Church, and though he obtained his equal share of the family property he held it as 1 Gelt. Scot. Vol. III. p. 150. prevailing amongst the Scottish Celts. 2 Judge of the High Court in Bengal. ^ Sir John Davies' Discoverie of 3 Field p. 242 (note), and see also Ireland, p. 169. Sir H. Maine as to similar customs 32 THE BREHON LAW. [CHAP. a Saer-stock tenant from the Church. It is probable that this right was not generally exacted, but it stands entirely alone as an instance of clerical power, and it is perhaps a justifiable theory that some of the Church lands were obtained as gifts in consideration of not enforcing this demand. The Church lands were in the first place probably granted by the tribe from the common stock, and the Brehon Law recog- nizes to a very remarkable extent the claims of 'the tribe of the Saint' to support. The most important influence exerted by the Church on the system of land holding is that it un- doubtedly did much, from more or less selfish ends, to aid free alienation of land. The Corns Bescna shows that in the case of acquisitions the Church had made great inroads on the re- strictions imposed on alienation by the tribal system ; and that even in allotments a successful attack had been made on the original inviolability of tribal possession, as far as regards alienation to the Church. There is a curious similarity between the structure of the religious bodies and the primitive theory of the clan. The subdivision of the religious organization shows the same aggre- gate of septs, and the growth and development of each religious body appears to have exactly resembled the progress of the secular tribe. We find this assimilation to the general model even in the fragments of the tribe, the very Fuidhir tenants, and the servile groups generally, seeming instinctively to have moulded themselves in the general form, so it is perhaps not remarkable that the religious community was framed on the same lines. The relation of the Church to the tenants of ecclesiastical land is closely analogous to the dealings of the chief with the tribesman to whom he supplied stock, and the Saer Manaich and Daer Manaich holders are the exact equivalent of the Saer and Daer stock holders of the temporal community. It is far from unlikely that the extent to which lands were granted to the Church, and the way in which the original strictness of the tribal rules as to alienation were relaxed in her favour, may be traced to the fact that the pos- session of lands by a corporation, the existing members of which were probably allied by blood to the secular tribe, seemed a II.] THE BREHON LAW. 33 very different thing from permitting ready alienation of land to all the members of the tribe, a course which might tend to pass the lands into the keeping of a temporal enemy. The ingrained theory of tribal ownership and the absence of any real concep- tion of tenure in the way in which the word is now used, would prevent those objections to Mortmain, which would at once occur to those trained under the feudal system, from possessing weight. The artificiality of construction shown in the similarity of the terms and ideas used in the religious clan to those used in the secular tribe must also have had the effect of strengthen- ing the apparent unity of the two bodies, and so have lessened the antagonism to alienation. It must, however, be borne in mind that this analogy to tribal organization is not confined to the structure of the early Irish Church, but is also to be traced in many early forms of guilds and partnerships, associations which are now considered as springing solely from contract ; and it has been argued that barrenness of imagination and the slow generation of ideas is responsible for the similarity, and is a distinguishing characteristic of the archaic community\ Passing from the Termon lands to those still held in common by the secular tribe, under a more or less modified form of the original tribal ownership, they fall naturally into two divisions: — (1) The Common Pasturage, open to every free tribesman for the use of his cattle. In this is to be traced the origin of some of the common lands, which in later times afforded one of the subjects of contention between the landlord class and the peasant holders. Two theories of the origin of commons are advanced, termed respectively the legal and the historical I The former^ traces them to grants from the lord ; while accord- ing to the latter" their origin is to be found in the decay of the Mark or Teutonic village community of freemen cultivating their lands in common. It is evident that neither of these theories is completely applicable to the Irish land system. The Celtic community of the Brehon Laws is found thoroughly 1 E. Hist, of Inst. p. 229 and 232. 3 For an ingenious advocacy of which 2 See an article by Mr Scrutton see Seebohm's English Village Gomrnu- in Law Quarterly Review 1887, also riity. See also Blackstone, Vol. ii. p. 92. Mr Scrutton's Yorke Prize Essay on * See Digby's History of Real Pro- Commons and Common Fields. perty Law, 3rd ed. p. 155 et seq. M. 3 34 THE BREHON LAW. [CHAP. started on an agricultural structure of open fields, and common tillage \ with the power of the chief greatly developed, but yet not having attained the recognized position necessary to make him ultimate reversionary owner of the lands, or the head of a manorial community. For a land system in this archaic state was suddenly substituted in the reign of James the First the fully developed feudal system with all lands held by tenure from the lord. Commons, therefore, which were at this time recognized, were clearly not derived from any grant from the lord, but existed either as the survival of the old rights of common user by the members of the tribal community, or were created by the English lawyers in the methodical plans on which the various territorial settlements were based; while any power exercised by the lord in such lands trenches on pre- existing rights instead of extending them. This fact would not have precluded the subsequent creation of commons by grant had a recognized system of manorial colonies grown up. There is no trace, however, of this development : the lowest tenants remained fixed in a state of servile dependency ; and the origin of the common lands (the enclosure of which was in later times so bitterly resented by the Irish peasantry as to give rise to the forcible resistance of the ' Levellers ') may therefore be ascribed partially to the portions of land in common ownership which were retained by the English lawyers as commons after the destruction of the tribal system, and which were regulated and limited by such statutes as 16 Car. I.^ but rarely extended; and partially to rights of user acquired in the lands which at the time of the English settlements were left as unappropriated wasted (2) The Arable Lands, or common tillage, which were held in more or less permanent allotments by the members of the tribe, the allottee being merely entitled to the usufruct. To the allotment of such lands the possession of cattle was generally, if not always, a condition precedent ; as also to the right to 1 There are passages in the Brehon ^ These rights in their inception Law showing the existence of common probably resembling common pur cause ploughing. de vicinage. 2 c. 33. II.] THE BREHON LAW. 35 possess a habitation in the township. It was to these lands, and to the Gavelkind rules which regulated the succession to them, that the attention of the English lawyers of the reign of James the First was most directed. If the statements of the Brehon Law, which point strongly to the existence of individual property, are compared with the statements of Sir John Davies, who seems to have considered separate property (with the exception of the chiefs demesnes) as non-existent, the difference between the two views of the same system is certainly remarkable. The truth lies proba- bly somewhere between the two, and the manner in which Sir John Davies regarded the holdings can be accounted for by the fact that his attention was doubtless most attracted by the portion of the system most foreign to English notions ; nor is there any doubt that the rules of Gavelkind did apply to by far the largest portion of the Irish lands. According to these rules, as has been said, on the death of one of the sept his lands returned again into the common stock, and the " Canfinny " made a redistribution. In this distribution bastards were in- cluded, but no woman was entitled to a share. The arguments against the Irish system of Gavelkind, on the strength of which by a decision of all the judges the custom was abolished, will be treated of later under the celebrated "Case of Gavelkind": it is only necessary here to point out that far from being radically different from the Kentish custom it was in reality merely a more archaic form of the same usage, and that under it an undoubted right to the soil was vested in each member of the sept. An example of such a sept is quoted by Mr Seebohm from the State Papers of James the First ; it con- sisted of " 124 persons nearly all bearing the surname of Grame. They were divided into families, 17 of which were set down as possessed of £20 and upwards, 4 of £10 and upwards, 6 of the poorer sort, 6 of no abilities, while as dependents there were 4 servants of the name of Grame, and about a dozen irregular hangers on\" Allusion has been made to the heavy exactions by the chief recognized under the Brehon Law, and much of the abuse of the '■ English Villaye Community, p. 219. 3—2 36 THE BREHON LAW. [CHAP. English critics of the Brehon system, headed by Spenser \ is levelled at them. Such exactions as the " eric " composition for murder, which is perhaps the one which both most attracted and biased the criticisms of the English writers, are not within the scope of this enquiry; but there were certain customs mainly in the nature of the exactions of food supply by the chief and his followers, which demand particular notice. These customs were perhaps neither very unnatural nor very serious in their inception, but they increased to an alarming extent as cen- tury after century of war rolled by, and the English colonists both adopted them as a ready means of exacting spoil from their dependents, and also it would seem increased their severity. Under the early tribal system, where the chief was regarded as the father of the community, these payments probably repre- sented no great hardship, being exacted in a very intermittent manner and with some show of consideration ; but in the hands of the degenerate English and the debased race of warlike adventurers, who in later times represented the Irish chief- taincy, they became terrible engines of oppression, and were adopted as a means of raising money even within the Colony of the Pale. The growth of these exactions has usually been ascribed to the abuse of power by the Norman settlers who, even when they had degenerated into tribal chieftains, were deemed to have been out of sympathy with the class ruled. An explanation which was offered by Dr Sullivan and adopted by the late Sir H. Maine is more probable, namely, that it was owing to the great increase of the Fuidhir tenants (a natural result of warlike times) who were in a state of servile depend- ence, and to whose outcast condition no tribal immunities attached. These exactions are met with in many forms and under 1 There is a marked bitterness of was embittered by the failure of his tone in Spenser's View of the State of venture. A striking proof of the up- Ireland, though it bears every trace of heavals of society undergone on the being in the main a truthful state- resettlements of Irish land is found in ment. He was himself a colonist the fact that a descendant of Spenser (receiving an allotment of some 3,000 was ejected from this allotment under acres on the plantation of the Desmond the Cromwellian settlement, estates) and it is not unlikely that he il] the brehon law. 37 various names, but they are all of a very similar character, consisting of a levy of food, usually exacted in primitive fashion by the chief and his followers quartering themselves for a more or less lengthy period on the tenant. There appears little doubt that their origin lay in the tribal obli- gation to support the chief, but they certainly afterwards developed into something closely resembling the incidents of tenure, and were always regarded in this latter light by the English settlers. In very early times Bonaght^ (that is, money, food and entertainment for his soldiers, and forage for their horses) was exacted by the chief at pleasure, and the later de- velopment of the same custom is found in the coyne and livery* alluded to in the Irish statutes as a " damnable custom," and regarded with such fervent hatred by the English settlers*. Ancient exactions of a similar nature to ' Bonaght ' were ' Sorohen,' ' Kernetty,' * Gillycone,' ' Mosyorowne,' ' Gillen- inny,' and the levy of ' South ' which we find constantly alluded to in the History of the Colony of the Pale under the name of ' cuttings '. ' Coshery,' an exaction of provisions and lodgings for himself and his retinue levied by the chief, is met with again and again until the reign of James the First; and * Refection,' a similar custom (though in its original form con- fined to a right of the lord to be entertained for one night), expanded into a most heavy burden on the tenant*. 'Cess' was the name given to an English exaction founded on the Irish model, which appears to have been first established in the reign of Edward the Second, and consisted of a tax of five marks on every ploughland discretionally levied under the pretence of prerogative by the chief governors of Ireland for the support of themselves and the soldiers in garrison ^ 1 This was of two kinds, Bonaght •'' John Cottrell was put to death Bur and Bonaght Beg, the former "because he had introduced and being at the discretion of the lord, the practised many grievous, foreign and latter according to agreement. Ware, intolerable laws." Vol. II. p. 74. 4 Notice also a provision of drink 2 Maurice Fitz Thomas is stated to termed ' satellitum poturae,' the ex- have been the first of the English to actions termed 'Cuddies' and *Shragh impose this tax, doing so in the time and Mart.' Ware, Vol. ii. p. 74 and 75. of Edward II. ^ Jq the reign of Elizabeth we find 38 THE BKEHON LAW. [CHAP. It would be impossible to overrate the evil effects of these levies. They utterly prevented proper cultivation of the land, as the tillers of the soil saw the fruits of their labour liable to be snatched from them at any time. They diminished the estimation of all honest industry, to so great an extent that fre- quently the free members of the sept would not work, lest their having done so should lower them in the opinion of the chief, and cause them to be excluded from the partition of tribal lands in Gavelkind. A further expansion of the same idea being seen in the class of descendants of a chief, who, when prevented from living by a system of wholesale plunder, would rather perish miserably than stoop to what they deemed menial pursuits. Special attention is drawn to these exactions from the fact that they were the moral justification advanced for the complete substitution of English tenures for the Brehon system. That, as has been stated, they constituted a most crying evil is doubt- less true, but perhaps it is often forgotten that the English law which was substituted for them was neither a very enlightened nor a very humane institution : for example, the eric fine is certainly repugnant to notions of right, and is palpably open to abuse in the hands of the wealthy and unscrupulous ^ but the penal code substituted for it would nowadays be considered a flagrant evil. It is almost certain also that there was a dis- tinction between the free tenant and the fuidhir settled on the waste as regards the liability to the exactions of food levies, and that the rights of the former have often been .confused with the servile liabilities of the latter. When dealing with the substitution of the English for the Brehon Law one is struck with the entire variance which the two systems seem to represent, and it is hard to realize that they are in reality merely different stages of development of kindred institutions, and that " the germs of feudalism lay deep in the more ancient Irish social structure." The Brehon Laws certainly show^ a system to which the notion of feudal owner- ship is completely foreign ; but, as has been shown, these primi- tive tribal conceptions had been greatly modified, and the pre- a protest against the increase of this ^ E. Hist, of Inst. p. 170. tax. See Ware, Vol. ii. p. 77. II.] THE BREHON LAW. 39 eminent power of the chief would seem to have been in some respects a greater evil than the summary feudalization of the land. Spenser, whose account, if prejudiced, is yet seldom really inaccurate, states that the chiefs ''use most shamefully to racke their tenants, laying upon them coin and livery at pleasure, and exacting of them besides their covenants what he pleaseth\" and Sir John Davies stated that " the lord was an absolute tyrant and the tenant a very slave*." 1 Spenser, p. 57. ^ Sir J. Davies' Discoverie, p. 179. CHAPTER III The Colony of the Pale (from Henry II. to Henry VH.). The influence of the more advanced civilization of foreign nations was little felt by the early Irish laws and institutions; and the various predatory incursions, which in early times ravaged the coasts of Ireland, left no permanent mark on the tribal system of land-holding, the Norse land system indeed differing but little from the Irish. From the time of Henry the Second of England, however, a new feature was introduced by the appearance of feudal tenures. It is true that though nominally spread all over the country it was only — until the time of Elizabeth — within a comparatively limited area that these tenures for any length of time held sway ; still from the latter part of the twelfth century, some portion of the land of Ireland was always so held. The two systems of land-holding, Brehon and feudal, existed side by side; but save where the latter had been imposed by force of arms, it gained no converts from the native race, and failed to alter their ideas of the relation of the occupier to the land. On the other hand the Brehon Law secured many adherents from among the English invaders. The causes of this were various. As Mr Froude observes, " the Irish Celts possess on their own soil a power greater than any known family of mankind of assimilating those who venture among them to their own image \" and the intermarriages of the English settlers'* with the native popu- 1 The English in Ireland, VoL i. p. daughter of Dermot Mac Murrough, 21. and his followers also largely con- * Strongbow married Eva, the tracted Irish marriages. CHAP. III.] THE COLONY OF THE PALE. 41 lation created a class of Anglo-Irish who, bom in the country and imbued with the native ideas, were galled by the re- strictions of the feudal tenures by which their lands were held*. The customs of Gavelkind and Tanistry also attracted the younger sons and bastards, whom the strict rules of feudal descent excluded from a share in the inheritance'"^. In result, until the time of James the First, save in the Colony of the Pale^, the feudal tenures did not hold, and in no way modified the Brehon rules which were observed in the rest of Ireland. It was pointed out by the late Sir Henry Maine'' that to the existence of the English Colony, we are indebted for much of the archaic nature of the Brehon Law being preserved to so late a date in history as it was. The Colony " acting as a running sore" prevented the internal disturbances of Ireland from self-adjustment by the natural process of the merger of all lesser states in one great master kingdom. Had such arisen it would have established a centralized government, and thus by endowing the Brehon Code with the force of more certain judicial sanctions would have greatly modified the loosely administered and in many cases conflicting laws, and even in the end have changed the theory of land-holding by the simple process of development. The English invasion of Ireland took place towards the latter part of the reign of Henry the Second (though it is evident by the Bull obtained from Adrian the Fourth in 1155^ 1 There is ample proof that they a double ditch, six feet high *on the regarded with even more dislike than side which meared next to the Irish- did the native Irish, the aids, reliefs, man' (see Field, p. 249). In the earlier &c. of the feudal tenures. periods of English rule the district 2 Primogeniture, however, though occupied by the English was termed by this time fairly established as a * the land of Ireland.' characteristic of the feudal system, was ^ E. Hist, of Inst., pp. 54 and 55. not a feature of the early feud, which ^ This Bull reserved a payment of descended to all the sons equally, while Peter's pence to Kome, and was in from Glanville we know that as late as fact a bold attempt to make Ireland Henry II. land held in socage frequently a spiritual fee — it was confirmed by descended to all the sons equally. Alexander III. The Papal claim of 3 The term * Colony of the Pale ' right to make this grant was based on arose from the provision of Poyning's the forged donation of Constantine, law (1494) which enjoined on the which gave all islands to the see of English colony the maintenance of Kome. 42 THE COLONY OF THE PALE [CHAP. that Henry had early* meditated a descent upon that country) when, urged by the tempting bribes offered by Dermot Mac Murrough to those who would assist him to recover the kingship of Leinster, an expedition of Norman and Welsh adventurers landed in Ireland in May, 1169^ The command of this expedition was ultimately assumed by Richard de Clare, Earl of Pembroke, better known as Strongbow, who landed near Waterford with some 1200 men and 200 knights on the eve of St Bartholomew, 1170. Besides many small tribes there were at this time five principal sovereignties in Ireland, Munster, Leinster, Meath, Ulster, and Connaught, the leader of the most powerful of these being termed monarch of Ireland, and holding Meath as an appanage of office. This post was then occupied by Roderic O'Connor, king of Connaught, against whom the efforts of the English expedition were directed. Strongbow was successful in gaining the more or less complete possession of Dublin, Meath, Leinster, and Water- ford as far as Dungarvan; but the expedition, which at first had the countenance of the English king, ere long incurred his displeasure. Strongbow, finding his supplies from England cut off, and his precarious position in Ireland rendered practi- cally untenable, offered to Henry the lands he had won^. After some delay, and after an interview had taken place at Gloucester between the Earl and the King, Henry accepted the surrender of Dublin and all other ports and fortresses then (or to be) conquered in Ireland, and granted to the Earl 1 Henry is sometimes thought to with the following letter, "My sove- have originally intended Ireland for reign lord, I came into this land, and his brother William, for whom no (if I remember aright) with your per- pro vision had been made by their late mission, for the purpose of restoring father (see Moore's Hist, of Ireland, your liegeman Dermot Mac Murrough, Vol. II. p. 205). William the Con- and whatsoever the favour of fortune queror had planned the conquest of has bestowed upon me, whether from Ireland, William Eufus had had simi- his patrimony or from any other lar designs. See Pearson, p. 520 quot- source, as to your generous munifi- ing A. S. Chron. and Girald. Camb. cence I owe it all, so shall it all return 2 This date is sometimes given as to you, and be placed at the disposal 1170. of your absolute will and pleasure. '^ Strongbow first despatched Kay- See Moore, Vol. ii. p. 235. mond Le Gros to Henry in Normandy III.] FROM HENRY II. TO HENRY VII. 43 and his heirs for ever all his other acquisitions, to be held as fiefs of the English crown. From this period dates the authority of the English monarchs over Ireland, and the exist- ence of the feudal tenures in that country. In October 1171 \ Henry himself landed in Ireland with 500 knights and about 4000 men ; the chief event of his stay of importance as affecting the land law of Ireland being the holding of a Curia Regis at Lismore'^ at which Council it is stated that the laws of England were accepted under oath by those present ^ It is probably incorrect, however, to imagine that the English law was ever intended to apply to the mass of native Irish ; for at the Synod of Cashel the Irish clergy were specially exempted from the payment of the eric fine*, and from coyne and coshering — provisions which would be meaningless unless such incidents of the Irish land system had been contemplated as remaining in force amongst the native race^ In support of this view it is noticeable that when a confirmatory grant of the laws and customs of England was given by John, and again by Henry the Third, it was confined to such of the Irish as became liege subjects; also there are large numbers of Royal grants of naturalization made upon petition to the offspring of Anglo-Irish marriages, giving them the benefit of the English laws and franchises I Henry's ^ This date is often stated to be Oct. is made among the lay people, for any 1172, but see Dr O'Connor's criticisms murther, that no person of the clergy on Leland, Rer. Hib. scrip., torn. ii. (though he be kin to any of the parties) cxv.; see also Lord Lyttelton's Life of shall contribute anything thereto, but Henry II. , Field, p. 244. Girald. Camb. as they be guiltless from the murther, gives date as 1172. so shall they be free from payment of 2 Whatever laws were enacted at this mony, for any such earick or release time are lost, but we find an allusion for the same." See Cox's History of to one of the statutes passed by Henry Ireland, p. 23, and Giraldus Cambreu- in 2 Rich. III. c. 8. sis. Rolls Series, Vol. v. ch. 35, p. 3 "Sed rex pater, antequam ab Hy- 281. hernia rediret, apud Lissemor conci- ^ Thomas Moore's History of Ire- lium congregavit, ubi leges Angliae ab land, Vol. ii. pp. 258, 259. omnibus sunt gratanter acceptae, et, ^ See Warner's History of Ireland, juratoria cautione praestita confirma- p. 93, and Moore, Vol. ii. p. 332 (note), tae." Matth. Paris. " Historia An- says, "among the records of the Irish glorum." Rolls Series, Vol.i. p. 371. Rolls office are many of these licenses •* "That when earick or composition granted to particular Irish to use the 44 THE COLONY OF THE PALE [CHAP. object was not so much to regulate the customs and manner of the minor and native Irish holdings, as to obtain a public ratification of his feudal lordship from the English settler barons, and from the more important Irish chieftains. Never- theless all the laws enacted by him when in Ireland followed the feudal polity, and the estates he granted were in con- sideration of homage, fealty, and military or honorary service; the grantees under tenures then created being tenants in capite, examples being the tenure on which Strongbow re- ceived the principality of Leinster, and Hugh de Lacy the seigniory of Meath\ It should be remembered that the English feudal system of this date was a more complete engine of monarchical power than continental feudalism, which possessed a weak point in the absence of immediate relation between the tenant of a mesne lord and the feudal sovereign. William, on the conquest of England, utilized the existence of the 'trinoda necessitas' as a lever for remedying this blot^ and by the time of Henry the Second the doctrine that where land was held of a mesne lord, the service was due to the king, was firmly established; the form of homage adopted after the Conquest to create the feudal tie between a mesne lord and his tenant always containing a saving of the allegiance due to the king. The system in Ireland was, however, in many cases different ^ The large English laws, some of them being Irish crown, and by this grant Hugh de women whose husbands were English." Lacy obtained about 800,000 acres, Attention is also called to the careful held by the tenure of fifty knights' exclusion of the native Irish as a mass service. The Baronial Courts held from English privileges. A grant is within this area eventually became so quoted of English privileges to two powerful that they were suppressed as Irishmen, given in the Close Koll 37 interfering with the rights of the crown, Henry III., where the writ especially see Moore's History of Ireland. This states that this favour was granted large grant was evidently made with them "notwithstanding that they were a view to counterbalancing the power Irish," Vol. III. p. 22. Notice also two of Strongbow. records, viz. 2 Ed. III. Claus. Membr. ^ Notice the oath at Sarum, a.d. 17, and 28 Ed. III. quoted in the 1086. ' Case of Tanistry.' Davies' Keports, ^ For example in the cases of Strong- p. 103. bow and de Lacy, and later in the 1 Meath, as the former appanage of cases of the Butlers and Geraldines. Irish Koyalty, had passed to the English III.] FROM HENRY II. TO HENRY VII. 45 grants which Henry made were grants which carried also the privileges of a county Palatine \ and gave to the grantee the right of civil and criminal jurisdiction independent of the crown '^ The lord of such a fee could enfeoff tenants to hold of himself, escheats for treason accrued to him instead of to the crown, and the king's process ranged only in the church lands I Henry did not assume the title of king of Ireland, but seems to have been satisfied with being acknowledged a sort of * paramount power".' It has been asserted, and is not unlikely, that much of the readiness with which the Irish chieftains sub- mitted to him was due to the fact that they merely understood the feudal bond as binding them to a general support of the king by military service, and were in complete ignorance of the change in the title to their lands which the subtle and intricate system of the Norman lawyers deduced from the apparently simple ceremony of homage and fealty. Mr Pearson says " From the English point of view, the kings of England were henceforth lords-paramount of Ireland, with the fee of the soil vested in them, and all Irish princes in future were no more than tenants-in-chief From the Irish point of view, the Eng- lish kings were nothing more than military suzerains in the districts outside the Pale''." Roderic O'Connor, though crippled in power by the con- quests of Strongbow and reduced to treat for peace, was still far from conquered at the time when the English king visited Ireland, and it is probable that steps would have been taken to reduce him to subjection had not the investigation then pending into the death of Becket forced Henry to return home in April 11 72^ Ireland was then, in name at least, completely conquered, 1 In the proceedings of the Irish enter all franchises for the apprehen- Parliament in 1467 among the un- sion of felons or traitors. printed statutes is one enacting that ^ It is noticeable that even the the Palatine liberty of Meath, despite Leinster provinces of Strongbow, its merger in the crown by inherit- though acquired in right of his wife, ance, should continue. were surrendered and reconveyed in 2 Hallam's Const. Hist., Vol. iii. feudal form. chapter 18, p. 347. ^ jjig^^ ^y ^j^g^ during Early and ^ But by the statute of Kilkenny Middle Ages, Vol. i. p. 531. the king's sheriffs were entitled to t^ Whence it is said he sent a 'modus 46 tHE COLONY OF THE PALE [CHAP. Ulster alone being admittedly unsubdued. In 1175 a treaty was concluded at Windsor between Henry and the emissaries of Roderic, by which Roderic, in consideration of having done homage and undertaking an annual tribute for himself and the Irish at large of one merchantable hide for every tenth head of cattle killed in Ireland outside the English provinces, was to hold his lands peaceably, as a king under Henry, and to have dominion over all Ireland save the then English possessions of Dublin, Meath, Leinster and Waterford\ provided he remained faithful and preserved his covenants ^ If Roderic regarded this treaty but lightly the English king also seems not to have felt in the least fettered by it, and it is probable that he had from the first only regarded it as another means of asserting his paramount suzerainty over the whole of Ireland : for despite its provisions "all Ireland was by Henry the Second cantonized amongst ten of the English nation, and though they did not gain possession of one-third of the kingdom, yet in title they were owners and lords of all, as nothing was left to be granted to the natives ^" The policy of Henry is evident; he intended that the feudal grantees should subdue this turbulent kingdom, and in serving their own ends establish also the dominion of the English kings over the whole of Ireland. One cannot but wonder that the far-sighted scheme was not fulfilled in history. That the de- scendants of the chivalry, which only a hundred years before tenendi Parliamenta ' to Ireland, but ei tributum : totam illam terrain .. the authority and antiquity of this habitatores terrae habeat sub se ; .. document cannot be maintained despite Justitiae ut tributum Kegi Angliae the championship of it by Sir Edward integre persolvant, per manum ejus Coke. sua jura sibi conservent, .. illi qui 1 Waterford that is to say as far as modo tenent, teneant in pace, quamdiu Dungarvan. manserint in fidelitate Eegis AngHae, 2 Quod Kex Angliae concedit prae- .. fideliter .. integre persolverint tribu- dicto Roderico, Ligeo homini suo tum, .. alia jura sua quae ei debent, Kegnum Conaciae, quamdiu ei fideliter per manum Regis Conaciae, salvo in serviet, ut sit Rex sub eo, paratus ad omnibus jure .. honore Domini Regis servitium suum, sicut homo suus .. ut Angliae .. suo, etc. etc. — Cox's Hist. teneat terram suam ita bene, .. in pace, of I. page 29. sicut tenuit, antequam Dominus Rex ^ Sir John Davies' Discoverie, p. Angliae intravit Hiberniam reddendo 137,— and see Field, p. 244, 245. III.] FROM HENRY IT. TO HENRY VII. 47 rode rough-shod over Saxon England, and a century and a half before that wrested Normandy from "Frank Noblesse and Romanesque provincials," carving so goodly a heritage with the sword, should have failed for centuries to subdue an uncivilized people, is in many ways remarkable. The Irish, despite their valour, were most contemptible adversaries to Norman disci- pline, and that civilization should have failed to follow the victorious banner is a curious problem. Stranger still is it to find that as time went on not only did the English power in Ireland wane, and the limits of the Colony of the Pale become more and more contracted, but also that the glamour of the Celt was over all the land; that proud de Burgh and courtly Geraldine had become mere tribal chieftains^; that the Butlers ruled but as half civilized petty kings; and that the descendants of the frugal, scholarly, priest-army of the Conqueror William had sunk to lives of debauchery and rapine. The children of a race who had written their laws in blood on the English statute book threw oft' the shackles of the system their ancestors had so laboriously welded, and assimilated themselves to the social condition and primitive land system of the Brehon Law to such an extent that the law of England was never " properly applied unto the Irish nation as of a purposed plot of government^" until James the First. In May 1177 Henry (having obtained a permissive Bull from Pope Alexander the Third) in Council at Oxford con- stituted John, a child of eleven, king of Ireland^ ; the Legate Vivianus having shortly before this held a Synod at Dublin in which he published the king's title. The Prince, however, is always termed merely Lord of Ireland and Earl of Moreton. The 1 Land System of Ireland^ O'Connor The matter was mooted before the Morris, L. Q. R. 1887, p. 137. English judges in the decision on the 2 Spenser's View and perfect Bis- precedent of the Staple Act (2 Hen. covery of Ireland, edition 1633, p. 10. VI.). Chief Justice Coke, Sir J. Davies 3 This donation of Ireland to John and Molyneux have all treated at has given rise to many controversies length of the matter, and reference (1) as to whether it created Ireland a should be made to Sir J. Davies' separate kingdom from England, (2) speech in 1613 when Speaker of the as to whether it prevented the laws of Irish House of Commons. See Moore, England being binding on Ireland. Vol. ii. p. 329. 48 THE COLONY OF THE PALE [CHAP. feudal grants before made by Henry were confirmed with alterations by new charters under which the lands were gene- rally held from John instead of from the king\ These grants, however, are very inconsistent, Henry's opinion of the wisdom of the step he had taken in constituting John king of Ireland seeming to vary from time to time. Frequently the appoint- ment appears to have been altogether disregarded : there are grants by Henry, subsequent to the Council at Oxford, in which lands are granted to be held of himself alone and his heirs, while others grant by tenure from him and John and their heirs I Grants of fiefs not formerly existing were also made at this time^ (many of which were never more than nominal, the grantees failing to reduce them to subjection), and the policy of Henry for the subjection of the land was followed by his grantees who largely subinfeudated their possessions. In 1185 John, then only nineteen years of age, landed at Waterford with a considerable force. His stay, which might have ended in the complete subjection of the Irish, was really the commencement of that decay of the English power which left the Colony of the Pale at the close of the fifteenth century possessed of merely a strip of land round Dublin. The offence given by the Prince and his followers to the Irish tributary chiefs, the impolitic resumption of the royal demesnes, and the unjust and shameful expedition of Philip of Worcester into Ulster, sowed the seeds of wide-spread revolt and suc- cessful retaliation; whilst the recall of John and the appoint- ment of de Courcy as governor came too late to be availing. The succession of Richard the First to the English crown did not interfere with the nominal lordship or kingship of John over Ireland, and for the next hundred years the history of this unhappy country is a record of bloodshed and rapine. The English settlers strove by force to gain possession of the broad lands so glibly granted them, and "they built castles and made freeholds but no tenures or services were reserved to the crown"*;" while both the Irish chieftains and English 1 e.g. The new grant of Meath to ^ e.g. The grant of Limerick or Hugh de Lacy. North Munster. 2 See Moore, Vol. ii. p. 330. 4 ggg Field, p. 245. III.] FROM HENRY II. TO HENRY VII. 49 lords warred amongst themselves as well as against one another. As still further extending the titular claims of the English to the Irish soil a surrender should be noticed in 1205 by Cathal, son of Roderic, to John. This arrangement finally abandoned the violated treaty of Windsor, delivered to the English crown two-thirds of Connaught, and acknowledged John's lordship over the remainder by the annual payment of one hundred marks\ In 1210 John, this time in the full dignity of King of England, but under the ban of ex- communication, again visited Ireland, and received the homage of many Irish princes and settler barons. To this date is ascribed the division of the English provinces into shires and counties; and it is also stated that an abstract of the laws and customs of England was placed in the Exchequer at Dublin. An allusion to this gift of the English laws is con- tained in the writ of 11 Hen. III.^, but as has been before stated neither of these grants seems to have had any real application to the native Irish ^ The visit of John, as indeed the whole of his reign, advanced but little the summary feudalization of the main body of Ireland. Within the English colony, however, the feudal system was fully followed, at any rate in its most onerous incidents, for there are many writs of this reign extant demanding 'consilium et auxilium*'. The reign of Henry the Third of England produced also but little benefit; the Irish Charter proved a worthless gift, and was never intended to reach the case of the native race. A variety of new grants in feudal form^ are noticeable, chief among which is that of the whole of Connaught to Richard ^ John was allowed, it would seem, by a landlord within the Pale seems to choose his portions from the best to be under Stat. West. 2nd (13 of the province. See letter to Meiler Edw. I.) which gave a right to a writ Fitz-Henry, quoted by Leland, Vol. i. of cessavit against the tenant for two p. 175. years' default in the reserved services. 2 See Cox, p. 51, where the writ of See Sigerson, pp. 15, 16 (note). Henry HI. is quoted. s Henry HI. made his son Edward 3 See ante, p. 43. 'lord of Ireland,' and a writ {Rot. ^ See Moore. In the Incorporation Pat. 40 Hen. HI. m. 12) authorised the Charter of Dublin given in 1192, bur- Prince's seal as the great seal of Ireland, gage tenure is established. The first see Constitution of England and Ireland, case of legal action against a tenant by Sir W. Betham, p. 254. M. 4 50 THE COLONY OF THE PALE .- [CHAP. de Burgh, in utter defiance of John's re-grant to Cathal on his surrender of that province which has been alluded to before \ The conflicting titles'"^ to the Irish provinces at this time were of themselves sufficient to stir up war, independent of the national animosities involved ; and murder, massacre, and treachery form the staple of the history of this period. In 1272, a century from the installation of the English power in Ireland, a petition was presented to Edward the First asking for the extension to the Irish of the laws and customs of England. The petitioners were most likely the inhabitants of the districts adjoining the Colony, and the memorial does not seem to have been considered until 1280, or to have led to any important result, but it is a significant proof of the failure of English civilization to extend outside the limits of the Pale I Maddened by oppression and outrage^ the native race sought in 1315 the assistance of Bruce to destroy the English dominion, but upon the failure of his expedition they merely found themselves in worse case than before, and fresh exactions and severities were heaped upon 'the mere Irish.' Slowly but surely, however, the Celtic race had been absorbing to ^ See ante, p. 49. " until the terra rolls, from the portly 2 As late as 1220 the Pope in send- size of from 60 to 90 membranes, for ing letters to Connaught, Ulster and the proceedings of each, are shrunk Munster, addressed the kings of Con- to four." Constitution of England and naught, Cork, Limerick and Ulster. Ireland, p. 350. See Church History of Ireland, S. Ma- ^ How really great were the wrongs lone. of the Irish people is shown by the '^ Attention was called by Sir W. statement of their case forwarded to Betham to the fact that the size of the Pope about this time, by O'Neil, the Placita Kolls of the Courts are an prince of Tyrone, which appears to be indication by which the extent of no exaggerated catalogue of injustice English law and power at different and crime; and by the record cited by times may be judged. During the Sir John Davies {Discoverie, p. 109), reigns of Henry III. and Edward I., 4 Edw. II. where a murderer's defence Edward II. and Edward III. they are reads "bene cognovit quod prsedictum large and well-written, " pleas and as- Johannem interfecit ; dicit tamen quod sizes were held by the justices itinerant per ejus interjectionem feloniam com- in most parts of Ireland, and the plead- mittere non noluit, quia dicet quod ings exhibit an exact sequence and all praedictus Johannes fuit purus Hi- regularity of form and precedent." bernicus." After these reigns they steadily decrease III.] FROM HENRY II. TO HENRY VII. 51 itself and incorporating in its being the descendants of the proud Norman settler barons. Severed from England and tied to the land of their adoption, the subtle influence of the soil and the alteration in the blood by admixture of race, had their natural effect. The amalgamation was aided, moreover, by the wild anarchy of the land, for in times when every man's hand was against his brother, an English lord of an Irish fief must have owed all his chances not only of supremacy but of actual existence to the loyalty to his banner of his Irish de- pendents; and while "to the Irish kern it mattered little whether his chief was a Geraldine or an O'Connor; it mattered much whether he was to be ruled under the imported laws of the stranger or by the customs and traditions of his own people.... The baron and his Irish retainers found the rela- tions between them grow easy when the customs of the country were allowed to standi" So, by a strange irony of fate, the very men and means designed for the subjugation of the native system endowed it with a stubborn vitality quite foreign to its natural character. The defection of the English-born subjects of the crown was not tamely countenanced by either the home government or the English Colony, and in 1341 the policy of the English king was specially directed towards breaking the power and wealth of these descendants of the first Anglo-Norman conquerors of Ireland. The first step taken was "a general resumption of all the lands, liberties, seigniories, and jurisdictions that had been granted in Ireland not only by Edward the Third himself but also by his father I" Next followed in 1342 the removal of the Anglo-Irish from offices under the crown ^; and in 1355 came a series of ordinances forbidding intermarriages betwixt English and Irish, and rendering illegal the practice of foster- ing* which was largely carried on. * English in Ireland, Fronde, Vol. i. the administration of justice in Ire- p. 24. land. 2 Moore, Vol. iii. p. 95. 4 xhis practice of fostering was of 3 Close Roll, 15 Edw. III. In the great antiquity, and Dr Whitley reign of Edw. III. also was passed an Stokes, in the Tripartite Life of St " Ordinatio pro statu terrae Hiber- Patrick, Vol. i. p. clxix, says, " The niae," 31 Edw. III. st. 4, to amend relations of fosterer and fosterling seem 4-^2 52 THE COLONY OF THE PALE [CHAP. Some doubt has been expressed as to the way in which English statutes were made to apply to Ireland. It is cus- tomary to find in the Irish enactments allusions to the English statutes as though without any formality they were as a matter of course part of the law of Ireland : it is most likely that they were introduced by the simple process of sending them over under the great seal, the methods of legislation being at this date arbitrary in the extreme \ Gradually but surely as time went on the power of the Celtic customs made head against the English laws, and the Anglo-Irish rulers became more and more synonymous with the native race. At length in 1367 was passed the memorable Act known as the Statute of Kilkenny, by which a determined effort was made, on the part of those settlers and colonists who were still loyal to the English rule, to stem the tide of Celtic influence^. By this statute it was made treason for one of English birth or blood to accept or rule by the Brehon Law ; and to intermarry, or to permit the fosterage of children^ with the Irish : whilst the penalty of forfeiture was attached to those who adopted the names, tongue, or manners of the mere Irish. The efforts of civilization to reclaim her errant children came, however, too late, and from this time the legislation of the English colony is occupied more in repeated and futile at- tempts at the repression of the alien and degenerate English in Ireland to have been of almost more se governent as Maniers, guise, et lang importance than those of parent and des Irrois enemies, et auxaint ownt fait child;" he mentions that there was divers mariages et aliaunces enter eux frequently a plurality of fosterers, in- et les Irrois enemyes" (quoted by Si- stancing Cormac, the son of Enda, gerson from "Tracts relating to Ire- who had four, and the curious ques- land," Irish Archffiological Society), tion addressed to St Patrick as to This statute was renewed by every whether ' God's son had many foster Parliament until 1452. fathers' (si filium ejus nutrierunt ^ xhe subject of fosterage as dealt multi). with in the Brehon Law will be found 1 See Eeeve's History of the English in the 'Cain larrath,' one of the sub- Law, Vol. II. p. 249, 250. tracts of the Senchus Mor. It presents 2 How strong this influence had a glimpse of the social life of the Irish become is shown by the following ex- worthy of much attention, — for an tract. "Et ore plusors Engleis de la able resume see the introduction to dit terre guepissant la lang, gis, mon- the second volume of the Ancient Laios ture, leys, usages. Engleis vivent et of Ireland. III. FROM HENRY II. TO HENRY VII. 53 than in a struggle against the purely native race. When Richard the Second in 1394 came over to Ireland, the force at his command, it is true, for a time brought the lapsed chiefs again to their allegiance, but the revival of English authority was only temporary. The absenteeism of many of the loyal lords prevented any possibility of the retention of power over the Anglo-Irish chieftains, and the prohibition of absenteeism under pain of forfeiture does not appear to have efficaciously grappled with the difficulty. The circle of the English colony grew steadily less, and in the reign of Henry the Fourth there are significant proofs of the decreased power of the Pale and the formidable encroachments upon it by the Irish, in the licenses given to particular colonists to war with " the enemy," In addition there are licenses to trade, and (despite the Statute of Kilkenny) to intermarry and to enter into gossipred and fosterage with the Irish, which are manifestly concessions to the exigencies of circumstances^; a fact further shown by the payment of ' black rent ' by the English authorities to buy off the hostility of neighbouring chieftains. Towards the end of this reign it was admitted in Parliament by the Speaker of the English House of Commons that the greater part of Ireland had been 'conquered' by the natives'^; and the conquests of Henry the Fifth in France prevented a great military genius from employing in the subjugation of what was nominally his own kingdom, the army with which for a time France was ' re- duced to an English province^.' 1 Instances of these licenses are quoted by Moore, Vol. iii. pp. 148, 149:— (1) Tomake war... "Rex, pro eo quod maneria et possessiones Cornelii Epis- copi in Lym. in frontura raarchiarum inter Hibernicos inimicos et Anglicos rebelles sita sunt, concessit ei, tenen- tibus et serventibus suis quod ipsi cum dictis Hibernicis, etc. tractare possent." Pat. Roll 10 Hen. IV. (2) For fosterage... "Rex, pro servicio, licentiam dedit Willielmo filio Henric. Betagh quod ipse Elizam filiam suam cuidam Odoni Oraylly Hibernico dare possit ad nutriendum." Pat. Roll 7 Hen. IV. 2 See Lingard's Hist, of Eng.^ Vol. II. p. 320. 3 A military expedition round the borders of the Pale was indeed carried out with success during this reign by Sir John Talbot, but it was productive of no lasting effect and is mainly no- ticeable from the fact that the ill-paid soldiery levied 'coyne and livery' on the inhabitants of the Colony ; a curi- ous instance of the vitality of the Irish customs. 54 THE COLONY OF THE PALE, [CHAP. IIL The inattention displayed by the conqueror of Agincourt to the needs of Ireland was not caused by any want of energy on the part of the English colony there in proclaiming their grievances. In the Close Roll of 9 Henry V. is a most lengthy petition^ for redress of their wrongs, which amongst other points complains to the king that "his poor lieges are dis- tressed, and his land, for the greater part, wasted and de- stroyed by the Irish enemies and English rebels, as well by their continual wars on his said lieges in each country of his said land, as by divers extortions, oppressions, non-payments and evil coignes by divers lieutenants and by default of due execution of his laws." Henry the Fifth, however, was totally engrossed by continental conquest, and no heed seems to have been paid to the representations from Ireland. On his death the guardians of Henry the Sixth had more im- portant matters to deal with at home, and the result of this neglect was soon apparent. About this time it was stated "yr is not left in the nethir parties of the counties of Dyvelin (Dublin), Mith (Meath), Loueth and Kildare, that yoynin to gadyr, oute of the subjection of the saide enemyes and rebels scarisly xxx miles in lengthe, and xx in brede ther, as a man may surely ride other go, to answerre to the Kynge's writtesl" 1 Quoted in full by Sir W. Betham, sent to Hen. VI. which are in the The Constitution of England and Ire- Close KoU 7 Hen. VI. and 14 Hen. VI. land, pp. 335 — 350. respectively, both are quoted by Be- ^ Sigerson, p. 21 : see also two re- tham, pp. 353—365. presentations of the state of Ireland CHAPTER IV. The Colony of the Pale (From Henry VII. to James I.). When the House of Tudor ascended the English throne a marked change came over the relations of England to Ireland. Following out in succession that bent for the establishment of law and order which was the distinguishing characteristic of these powerful sovereigns, a determined effort was made to reduce to subjection the turbulent country. Henry the Seventh was not firmly enough seated on the English throne to accomplish much, but after the defeat of the Anglo-Irish ex- pedition in favour of Simnel at Stoke he sent Sir Richard Edgecombe in 1488 to exact new oaths of allegiance from the Irish feudatories \ It is curious, therefore, to note that Henry the Seventh seems to have considered that the policy of Henry the Second as to the subjection of Ireland by the agency of feudal lords, was the best plan of introducing order into the country ; whereas in England his efforts were directed to break- ing the power of the barons. After the Warbeck plots the famous Statute of Drogheda termed 'Poyning's Law^' was passed, which restricted the holding of Parliaments in Ireland save when the causes and considerations of Acts intended to be passed had been approved by the English King and Council^ It was to the provision of this law respecting the maintenance of a frontier fortification by the English settlement that the term 'Colony of the Pale' is due. Acts of this date also revive the Statute of Kilkenny*; contain many provisions for 1 Field, p. 248. then sent into Ireland as deputy. 2 Passed at Drogheda in November, ^ iq Henry VII. c. 4 (Irish). 1494, called after Sir Edward Poyning, * lb. c. 8 (Irish). 56 THE COLONY OF THE PALE [CHAP. the better protection of the Marches^; and deal with the heavy exactions by the lords^ a very necessary step, for " doomed to suffer by the peculiar oppressions of both countries, Ireland was harassed not only by her own ancient exactions, coyne and livery, but also by the English mode of extortion, pur- veyance I" Eventually Henry the Seventh seems to have abandoned his original plan of ruling by means of the Anglo-Irish barons, for, with a view to crushing their power, an Act was passed for the resumption of the greater part of the crown grants made since the time of Edward the Second*. It is important to bear in mind that though when first made laws practically affected merely the Colony of the Pale, yet as the power of the crown extended over Ireland so did the statute law. On the accession of Henry the Eighth a policy, at once more extended in its aims and more vigorous in its execution than had before characterized the English relations with Ire- land, was entered upon. This as first carried out was free from the severity which it afterwards developed^ Still fol- lowing the idea of obtaining subjection by means of crown feudatories Henry strove to resuscitate the system of Anglo- Irish lords, and to assimilate the native Irish Princes to the same model. The desire to vest large estates in the grantees of the crown evidently aimed at the hold which would be thus obtained upon such grantees by the forfeiture to which their estates would become liable in case of treason; and it was doubtless considered that the antagonism of interest created between the feudal grantee and tribal usage would lead to the total overthrow of the popular system I To the ever recurrent overthrow of schemes which the English, to do them justice, considered great reforms, must be ascribed much 1 10 Henry VII. c. 10 (Irish). doned most of the great men who had 2 lb. c. 18 (Irish). been engaged in the Warbeck Plot, 3 Moore, Vol. iii. p. 221. By 10 and the Liberties and Charter of Hen. VII. c. 22 all the statutes made Youghal were restored and confirmed, in England relating to the public weal Cox, p. 192. were made good and effectual also ^ O'Connor Morris, L. Q. Revieic^ as regards Ireland. 1887, p. 138. ^ Cox, p. 189. Henry however par- ^ See Intro. A. L.of I. Vol. iii. IV.] FROM HENRY VIL TO JAMES I. 57 of the bitterness of feeling with which Irish customs were regarded. A report prepared for Henry the Eighth in 1515^ gives a graphic description of the state of Ireland at that time ; after prefacing that " Ther byn more than 60 countryes, called Regyons, in Ireland, inhabytyd with the Kinges Irish enymyes ; some region as bygge as a shyre, some more, some lesse, unto a lytyll ; some as bygge as halffe a shyre and some a lytyll lesse ; where reygneith more than 60 chyef Capytaynes wherof some callyth themselffes Kynges, that lyveyth onely by the swerde, and obeyeth to no other temperall person, but onely to himself that is stronge ; and every of the said Capytaynes makeyth warre and peace for hymself, and holdeith by swerde, and hath imperiall jurysdyction within his rome, and obeyeth to noo other person, Englyshe ne Iryshe, except only to suche persones, as maye subdue hym by the swerde:" it deals at some length with the native Irish and the Anglo-Irish leaders, and says " The names of the Countyes subjett unto the Kinge's lawes Halff the countye of Uryell (Louth) by estimation „ „ Meath Dublyn Kyldare „ „ Wexford. "All the comyn peoplle of the said halff countyes, that obey- eth the Kynge's lawes, for the more parte ben of Iryshe byrthe, of Iryshe habyte and of Iryshe langagel" The report con- tinues that tribute was paid by the English settlement to the wild Iryshe : — "The countye of Uryell payeth yerely to the great Oneyll 40£ Meath „ „ to Ochonour 300£ „ „ Kyldare „ „ to the said Ochonour 20£ ^ State of Ireland and a Plan for its ments in the same volume of the State Reformation, State Papers, Henry VIII. Papers, pp. 338—481 as to the scarcity Vol. II. part iii. pp. 1—30. This report of English. is founded mainly on the ' Salus Po- 2 state Papers, Henry VIII. Vol. 11. pwh'' of Pandarus. Compare also state- pt. iii. p. 8. 58 THE COLONY OF THE PALE [CHAP. The Kynge's exchequer payeth yerely to M^Murho 80 markes „ Countye of Wexfor „ „ „ „ &toArteOboy 40£\" And it is plain how greatly the means of exaction of both the Irish and the English landed systems were pressed upon the inhabitants of the Pale, for the report says that : — " What with the extortion of coyne and lyverye dayly, and wyth the wrongful exactions of osteing money, and of caryage and cartage dayly, and what with the Kinge's greate subsydye yerely, and with the said trybute and blak rent to the Kynge's Iryshe enymyes, and other infynyt extortions and dayly exactions^," they were even more heavily oppressed than the inhabitants of the Marches. Henry endeavoured to change this state of affairs by the enforcement of English rule, and was to a certain limited extent successfur\ His assumption of the title of King of Ire- land was well received ; and by bribing the leading native chiefs with the spoils of the Church, in the shape of lands formerly belonging to the Irish abbeys*, he induced some of them to surrender their lands and receive them again as feudal tenants. It would seem, however, that the Irish Princes reserved to themselves all their former privileges I Mr Froude observes "Henry did not insist that the Irish, ill-trained as they had been, should submit at once to English law. ... He disavowed all intentions of depriving the chiefs of their lands, or of con- fiscating their rights for the benefit of Englishmen. He desired to persuade them to exchange their system of election for a feudal tenure, to acknowledge by a formal act of sur- render that they held their lordships under the crown... in return they might retain and administer the more tolerable of their own Brehon laws, till a more settled life brought with it a desire for the English common law^" By similar gifts of Church lands Henry won over many of the degenerate 1 State Papers, Henry VHI. VoL ii. by small crown rents is derived from pt. iii. p. 9. these grants. ^ lb. pp. 9, 10. ^ See Spenser's View of the State of 3 O'Connor Morris, L. Q. Review^ Ireland, 1633, p. 4. 1887, p. 138. ^ The English in Ireland, Froude, 4 Some of the land in Ireland held Vol. i. pp. 37, 38. IV.] FROM HENRY VII. TO JAMES I. 59 barons', and he also endeavoured to prevent absenteeism, and thus to strengthen the loyal element within the Pale. This policy, if carried out to the full, might at least have largely increased the English power in Ireland, even if it had not ultimately led to the subjection of the whole island^; but the narrow aims of the colonists of the Pale, whose desires appear to have been centred in universal spoliation, and who aimed at nothing but the division of the lands of ' the enemy ' between themselves, opposed a barrier to the more liberal methods of the English king. Before long also the religious animosities^ arising out of the reformation added fuel to the raging furnace of national passions, and brought all the powers of bigotry and intolerance into play in the death struggle of Irish independence. At first the efforts of Henry to introduce the reformation into Ireland did not raise as much opposition as might have been expected from the Irish lords*, though the resistance of the clergy^ rendered the attempt futile. The wars of Elizabeth were in reality inspired by the lust of conquest and the an- tagonism of race rather than by religious fervour; but from the time when the Stuarts ascended the English throne the crusade of religion began in earnest ; and Cromwell and his fanatical soldiery gained those substantial temporal possessions in Ireland (which for the first time justify its being termed a completely conquered country) under the banner of religious bigotry, and in the cause of religious intolerance. 1 Land holding in various countries^ the minds of the vanquished race. Field, p. 250. The new feud of Protestant and Papist 2 O'Connor Morris, L. Q. R. p. 138. inflamed the old feud of Saxon and 3 " The patriotism of the Irish had Celt." Lord Macaulay's Hist, of Eng- taken a peculiar direction. The object land, Vol. i. p. 34. of their animosity was not Rome but ^ But the Geraldines were a conspi- England; and they had especial rea- cuous exception. son to abhor those English sovereigns ^ Cromer, Archbishop of Armagh who had been the head of the great and Primate of Ireland, was a vigorous schism, Henry the Eighth and Eliza- opponent of Henry. This is the same beth. During the vain struggle which Cromer who in 1553 obtained a formal two generations of Milesian princes pardon for having made use of the maintained against the Tudors, reli- Brehon laws. (Pat. and Close Rolls of gious enthusiasm and national enthu- Chancery in Ireland, 24 and 25 Hen. siasm became inseparably blended in VIII.) 60 THE COLONY OF THE PALE [CHAP. The earlier portion of the reign of Elizabeth was marked by the theoretical confiscation of Ulster, which, however, re- mained practically unsubdued ; by an attempt to levy assess- ments by Royal authority independent of the sanction of Parliament ; and finally by some claims to lands in Cork under alleged charters dating from the time of the old Norman feudal grants \ Plans for colonization also were laid before the English government by those who had no title, but offered to defray the costs of conquest in consideration of grants from the conquered territory'^. The Anglo-Irish lords and Irish chieftains, with no small reason, felt that the seal of doom was upon them, and the brewing trouble took form in the rising at first headed by Sir John Desmond, the treacherous murderer of Henry Davels, and afterwards by the Earl of Desmond. Religious motives strengthened this outbreak, and indeed almost created it ; but although aided by a small expedition of Italian and Spanish volunteers, the futile effort ended in desolation and despair, and so complete was the ravage and wreck in Munster that "the lowing of a cow or the sound of a ploughboy's whistle was not to be heard from Valentia to the rock of CasheP," From the widespread confiscations which followed, a supply of lands was obtained, sufficient, it would seem, to have been a most potent bribe to the new settler class that it was the policy of the English crown to plant on the Irish soil. Half a million acres'* escheated to the crown, and were divided into lots of 12,000, 8,000, 6,000 and 4,000 acres respectively. The rents reserved were practically nil, an estate at fee farm of 12,000 acres being only rented at £33. 6s. 8d. for three years, and then at £66. ISs. 4td. The scheme designed for the plantation was briefly that every 1 Field, pp. 250 and 251. in towns and cities ; nor yet see any 2 This method of raising money from beasts but the very wolves, the foxes, * Undertakers ' afterwards became com- and other ravening beasts." Quoted by mon. Hallam, Const. Hist, of Eng. vol. iii, 3 " Whosoever did travel from one pp. 366, 367. And see John Hooker's end to the other of all Munster, even dedicatory epistle to Girald. Cambr. in from Waterford to Limerick which is Holinshed's Chronicles^ vol. i. about six score miles, he should not •* 574,628 acres, meet any man, woman, or child, saving IV.] FROM HENRY VII. TO JAMES I. 61 seigniory should be inhabited within seven years on the fol- lowing system: — "every undertaker of 12,000 acres was bound to plant eighty-six families : his own family was to have 1,600 acres, one chief farmer 400, two good farmers 600, two other farmers 400, fourteen freeholders (each 300) 4,200, forty copy- holders (each 100) 4,000, twenty-six cottagers and labourers 800. Other undertakers being bound proportionately \" In 1586 an immense quantity of fertile land was practically going begging ; lands were offered at twopence an acre with no rent to be required for the first three years'^ yet the fruitful soil scarce found an owner. By the original design of the plantation the grants of land were to have been conditional on the settlement on the soil by the undertakers of English tenants, but the idea had to be abandoned. The practical failure of the plantation, at any rate, to answer the purpose for which it was designed, i.e. the ousting of the native popu- lation, was mainly due to (1) the extensive grants made to particular individuals^ who themselves remained absentees, making but small and unsuccessful efforts to plant English sub-tenants, and who moreover were not averse to an Irish tenantry (since they paid higher rent than any for which English small holders* could be induced to settle) ; and (2) the short terms for which lands were granted by the English undertakers. The uncertainty of possession and the exactions levied on the tenants prevented any real improvement of the land, and led to its being wastefully impoverished. No buildings worthy of the name were erected, and the wretched slave of the soil lived a life but one degree above that of the animals he tended. Any gathering of wealth brought ruin ; coshered by some wandering ex-chief, or rack-rented by some English undertaker, the small holder presented an em- blem of misery. When dealing with the reorganization of much of the Irish land system which took place during the reign of Elizabeth, the 1 Sigerson, p. 33. * See a passage from Kobert Paine's 2 Field, 251. Briefe Description of Ireland (1589), ^ Sir Walter Raleigh obtained 42,000 quoted p. 35 Sigerson. acres in Cork and Waterford. 62 THE COLONY OF THE PALE [CHAP. * Composition of Connaught,' planned under a Commission issued in 1585, with the object of inducing the nobles of Connaught to surrender their titles and hold instead by letters patent^ from the crown, should not be passed over. It was one of the first of a succession of legal devices for the change of Irish tenures into feudal ones. Few chieftains, however, agreed to the change, which would have greatly altered the relations of chiefs and people both inter se and towards the land. The principle proposed in the change was that a pay- ment of IO5. for every 120 acres should operate as a discharge from all cess, taxation tallage, charges, bearing of soldiers, &c., and that a rent should be payable for the lands ; while the customs of Gavelkind and Tanistry were to be abolished. In several of the indentures^ also the mean freeholders were placed in direct dependence on the crown, a remarkable fact bearing a strong resemblance to the effect of 'quia emptores,' and establishing something greatly like a peasant proprietary. Though this abortive scheme is not of great importance, for few chieftains surrendered under it (though the surrender was widespread under the commission of James the First), still when the plans of Wentworth with regard to Connaught are remem- bered, an interest is felt in the nature of the titles so un- scrupulously attacked : and in regard to those of the Irishry who had surrendered their estates and received a re-grant, it is hard to find words strong enough to describe the injustice of the pretext on which it was attempted to oust them. In August 1598 the flame of open revolt again broke out, this time in Ulster under Hugh O'Neil (afterwards Earl of Tyrone), and O'Donnell. With the war-cry of religion added to the stored wealth of national hatred^, indued with a fury 1 By 12 Eliz. c. 4 (Irish) a power ^ This enactment is to be found in had been given by which any of the the indentures for Eoscommon, Sligo, Irishry or degenerate EngUsh were Mayo and Leitrim — and Dr Sigerson enabled on surrender to obtain grants suggests it may have had a bearing on of their lands by letter patent from "the after quietness of the western the crown— defects appearing in the provinces," p. 31. letters patent issued under this Act, ^ -jhe dispossession of the Catholic they were remedied by James I. in 1615 clergy by Elizabeth and the substitu- by new surrenders and re-grants. tion of what has been well termed ' a IV.] FROM HENRY VII. TO JAMES I. 63 such as is almost without parallel, the strife raged. Philip of Spain, smarting from the defeat of his designs on England and burning with a lust for revenge, sent aid, and O'Neil was no ordinary leader; but the doom of destruction was on the Celts. Ravage and ruin was spread broadcast through the land, but the result of the struggle was never really in doubt. No sooner was the conduct of the war entrusted to Mountjoy than the fate of the Irish was sealed, and in 1602 all was over. From the horrors of the prolonged war, as from so many another blood-stained page of Irish history, one can but turn with loathing. The revolt is important in its ultimate bearing on the history of the Irish land, though no important forfeitures were immediately exacted. The leaders of the rising were treated with singular mercy as one by one they surrendered, O'Neil himself being left in his Earldom ; but O'Neil and O'Donnell were marked men. Elizabeth again tried the policy, so often unsuccessful, of a leniency which was neither respected nor understood. Four years later, in the reign of James the First, O'Neil and the Earl of TyrconneP, detected in planning another outbreak, fled the country, and their immense estates escheated to the crown. Some two millions of acres — the counties of Donegal, Derry, Cavan, Fermanagh, Armagh and Tyrone — were thus placed at the disposal of the English; but, only 511,465 were actually taken up by the crown. The way in which this half million of acres was primarily granted is shown by the following table ^ : To the Londoners and other undertakers : 209,800 The Bishops' mensal lands 3,413 „ „ termons and erenachs 72,280 „ College of Dublin 9,600 college of shepherds without sheep' would have been tried by the Desmonds let loose upon the people a body of and Tyrones, independent of this ecclesiastics, who, themselves smarting motive. under their injuries, helped to stir i Brother of the O'Donnell of the that spirit of rebellion which was revolt, who died in Spain, simmering throughout the country ; 2 Taken from Short Hist, of Irish but as is remarked by Hallam (vol. People, A. G. Kichey, p. 605. III. p. 365) the chances of insurrection 64- THE COLONY OF THE PALE. [CHAP. IV. For free schools 2,700 To Incumbents for glebes 18,000 The old glebes 1,268 To Deans and Prebends 1,473 „ servitors and natives 116,330 „ impropriations and abbey lands 21,552 The old patentees and forts 38,214 To new corporations 8,887 Restored to Maguire 5,980 Restored to several Irish 1,468 The scheme of plantation drawn up in 1609^ provided for the settlement upon these lands of large numbers of small tenants, and a colony of Scotch and English Protestants, mainly 'labourers, weavers, mechanics, farmers and merchants/ was established on the escheated territory. Frugal and hard- working the new settlers established an era of apparent pros- perity, and until 1641 lived side by side with the native race^ with less open hostility than might have been expected. 1 Fully treated of in the next Chapter. tory, some million and a half acres, 2 To whom the unappropriated terri- had been restored. PAKT II. lEELAND THE SLAVE. M. CHAPTER V. The substitution of English Tenures and the Era of Protestant Ascendency. There is every reason to believe that the changes first systematically introduced in the reign of James the First were conceived in a liberal spirit, and honestly designed to benefit an unhappy country groaning under the yoke of heavy oppres- sions ; but the fatal mistake of implanting a comparatively ad- vanced civilization upon a society unfit to receive it converted what was intended as a benefit into a curse. What would have been the effect of a recognition of the Brehon Law, and an application of the machinery of Courts and determinate sanc- tions to its system is difficult to say, probably it would have forced into unnatural prominence many customs which had only a theoretical existence^; but it is hard in the light of later events not to think that this might have been the less of two evils. The history of the final abolition of the Irish code is simple. Two decisions of the Courts in the reign of James the First, whereby the whole land system of the Brehon Law was crumbled into dust, became of great importance, since they followed the conquests of war, and hence affected practically the whole of Ireland. One, by the decision of all the Judges ('per tons les justices') declared void in law the Irish custom of Gavelkind succession, while the other abolished Tanistry. The judgment in Gavelkind which is fully reported by Sir John Davies is worthy of close examination. The reasons given in it for the decision are : — ^ Sir H. Maine considered that this cognition in India of the Indian cus- has largely been the result of our re- toms. 0—2 68 THE SUBSTITUTION OF ENGLISH TENURES [CHAP. (1) That the frequent partitions and the removals of the tenants from one portion to another caused great uncertainty of possession to be felt, and led to no civil habitations being erected, or enclosures and improvements made (instancing the case of Ulster, "which seemed to be all one wilderness before the new plantation made by the English undertakers there"). (2) That it differed from Kentish Gavelkind^ in that the latter : — i. Only parted the lands between the next heirs male, who took estates of inheritance. ii. Excluded bastards. iii. Endowed the wife with a moiety. iv. Permitted females to take in default of males ; none of which characteristics were present in Irish Gavelkind. (3) That in several ways it resembled the custom of Gavelkind used in North Wales, which was abolished by 34 Hen. VIII. c. 28. The judgment therefore says that " for these reasons and because all the said Irish countries, and the inhabitants of them, from henceforward, were to be governed by the rules of the Common Law of England, it was resolved and declared by all the Judges, that the said Irish custom of Gavelkind was void in law, not only for the inconvenience and unreasonable- ness of it, but because it was a mere personal custom and could not alter the descent of inheritance. And therefore all the lands in these Irish countries were now adjudged to descend according to the course of the Common Law, and that wives should be endowed, and the daughters should be inheritable to these lands notwithstanding this Irish usage or custom I" This judgment was, by the special order of the lord deputy, registered amongst the Acts of Council^. 1 Of which in reality, however, it ^ And this provision was added ** if was but a more primitive form. For a any of the mere Irish had possessed contemporary account of Kentish Ga- and enjoyed any portion of land by velkind see A Treatise of Gavelkind, this Irish custom of Gavelkind before by William Sumner, London, 1660. the reign of James the First, they 2 Hill, 3, Jacobi. Davies' Reports, should be continued and established pp. 134 — 138. in it, but that all such should hence- v.] AND THE ERA OE PROTESTANT ASCENDENCY. 69 Not less important than this decision is the one by which the custom of Tanistry was declared void. It was given upon a special verdict found in ejectment between Murrough Mac Bryan, plaintiff, and Cahir O'Callaghan, defendant ; the ques- tion being whether the title of the heir at Common Law, which lay in the defendant, or the title of the Tanaist, which was the estate of the plaintiff, should prevail. The case remained in the King's Bench for three or four years, and was argued several times, while the Judges on different occasions delivered their opinions on the various points raised. The suit termi- nated in an agreement by consent for a division ; it was, how- ever, finally settled by the Court that "the said custom of Tanistry was void in itself, and abolished when the Common Law of England was established." By these two decisions the law of a nation, which, whatever its faults, was ingrained in their national life, and regarded by them with that unreasoning devotion which is one of the curious contradictions of the Celtic nature, was swept away. While giving all due credit to the disinterested motives of the English Crown and its advisers, and to the strict impartiality of the judicial decisions, there seems to be no doubt from the lesson of history that a grave error was committed and a sub- stantial injustice done. Despite the recognition by the Brehon Laws of the existence of individual property, a large majority of the land seems to have been ruled by a more or less modified form of the customs of Tanistry and Gavelkind ; and though the extensive growth of the power of the chief makes it evident that in reality the practical development of tenure, and even of primogeniture, was not far distant, still the native Irish were as far from recognizing the fact as were the English rulers who implanted the feudal system upon them. The ignorant Irish tribesman had no notion that the exactions of his chieftain were by imperceptible degrees taking the form of rent, on the contrary he was driven by them to cling more closely to the soil by a hundred ties of attachment ; while the chief more forth be adjudged and descend accord- Plowden's Historical Review of the ing to the Common Law." See also state of Ireland. Furlong's Landlord and Tenant; and 70 THE SUBSTITUTION OF ENOLISH TENURES [cHAP. and more regarded the land as a mere source of revenue. Into the hands of the law officials of James the First was in- trusted the impossible task of solving satisfactorily a land problem in which each free member of a tribe who received land in fee would think that he got no more than his due, while those who were neglected, or whose portions not being to their taste must have longed for the old system of redistribution, would imagine themselves forcibly robbed. To these we must also add a certain class of tribesmen, owners of small portions of the tribe-land, who were altogether disregarded by Sir John Davies. The Attorney-General in his letter to the Earl of Salisbury in 1607 when describing the manner in which the land was portioned amongst the septs, and pointing out that almost every acre had a several owner owing to the expansion of the system of distribution by Gavelkind, says, " we made every en- quiry what portion of land or services every man held in every ballibetagh\ beginning with such first as had lands and ser- vices ; and after naming such as had the greatest quantity of land and so descending into such as possess only two taths; then we stayed, for lower we could not go, because we knew the purpose of the State was only to establish such freeholders as are fit to serve on juries I" It is necessary also to bear in mind the position of the next generation of 'mere Irish' to those to whom the grants were made. Thus A, a free member of the sept, receives a grant of lands in fee — he has issue four sons, B, C, D and E. Under the old system each on his birth would have become a member of the sept, he would have looked on all the lands of the sept as in a sense his property, since from them in due course his allotment would have been received. Under the new system B, the eldest, is alone entitled to lands, and these only on his father's death. Assuredly C, D and E 1 The ancient Irish land measures ballybetaghs is well nigh as large as differ so much that it is hard to ex- Monaghan which contains 100. See plain what extent of land is denoted fully on this subject Skene's CeZf. «Scof., by any term. According to Sir John Vol. iii. pp. 153 — 170. Davies, in Fermanagh a ballybetagh is ^ Appended to the early editions of equal to 16 taths, but he then goes on the Discoverie. to say that Fermanagh containing 51 v.] AND THE ERA OF PROTESTANT ASCENDENCY. 71 (and probably B also) would think that the hated English had robbed them of their birthright. The task of Sir John Da vies was truly no light one, and the way in which he viewed the situation and his manner of dealing with it are worthy of the closest attention. Speaking of Tanistry and Gavelkind he says, "these two Irish customs made all their possessions uncertain, being shuffled, and changed, and removed so often from one to another, by new elections and partitions ; which uncertainty of estates hath bin the true cause of such desolation and barbarism in this land, as the like hath not been seen in any country that professed the name of Christ \" He goes on to state that the Act passed in 12 Eliz.^, enabling the Lord Deputy to take surrenders and re-grant estates to the Irishry, was defective, since (1) few lords made such surrenders, and (2) "they which made surrenders of entire counties obtained grants of the whole againe to them- selves only, and to no other, and all in demesne. In passing of which grants there was no care taken of the inferiour Septes of people, inhabiting and possessing these counties under them, but they held their severall portions in course of Tanistry and Gavelkind, and yielded the same Irish duties or exactions, as they did before ^" Then alluding to the two Commissions which issued under James the First, the one to accept sur- renders and to make re-grants, and the other to strengthen defective titles, he states ; " in the execution of which Com- missions there hath ever bin had a special care, to settle and secure the Under-Tenants, to the end that there might be a repose and establishment of every subject's estate^;" the fol- lowing being the plan adopted ; " when an Irish lord doth offer to surrender his country, his surrender is not immediately accepted, but a commission is first awarded to enquire of these special points. First, of the quantity and limits of the land * Discoveries p. 170. 4 Irish) recites that the Irish had - The instructions given to the Earl petitioned to surrender and authorizes of Suffolk in 1560 by Elizabeth sug- the granting of letters patent. gested that the Irish chiefs should sur- ^ Discoverie, pp. 270, 271. render their estates and take grants in ^ Discoverie, p. 273. tail male ; the Act of 1569 (12 Eliz. c. 72 THE SUBSTITUTION OF ENGLISH TENURES [CHAP whereof he is the reputed owner. Next how much himself doth hold in demesne, and how much is possessed by his tenants and followers. And thirdly, what customs, duties and services he doth yearly receive out of those lands. This in- quisition being made and returned, the lands which are found to bee the lord's proper possessions in demesne, are drawn into a Particular ; and his Irish duties ; as cosherings, cessings, Rents of Butter and Oatmeale and the like ; are reasonably valued and reduced into certaine summes of Money to be paide yearely in lieu thereof This being done, the surrender is accepted ; and thereupon a grant passed, not of the whole country, as was used in former times, but of those lands only, which are found in the lord's possession, and of those certaine summes of money, as rents issuing out of the rest. But the lands which are found to be possessed by the tenants, are left unto them, respectively charged with these certain rents only, in lieu of all uncertain Irish exactions. In like manner upon all Grants which have passed by virtue of the Commission, for defective titles, the Commissioners have taken special caution, for the preservation of the estates of all particular tenants." Sir John Davies had, it is evident, clearly grasped the fact of the proprietary rights of the members of the tribe in the tribe-land ; but the sweeping nature of the change introduced, and the conflicting character of the rights involved, rendered his settlement an unstable one. Even if the inferior members of the sept were, as stated by him, satisfied and encouraged by the settlement and security of their tenure, the chief was grievously wounded by the restriction of what he considered his inalienable rights^; and subsequent events almost obliterated the class of freehold owners which Sir John Davies had laboured to create. The mode, however, in which the Irish tribesmen were considered in relation to the land is plain, and the system adopted amounts to an acknowledgment of the claims of the tribal freeman to an estate in the land. The injury inflicted iTpon the Irish peasantry lay indeed not so much in the 1 See " The Historical Claims of January, 1881, p. 27, Seebohm. Tenant-Kiglit," Nineteenth Century, v.] AND THE ERA OP PROTESTANT ASCENDENCY. '73 introduction of the English tenures, as in the after refusal to recognize the rights of the tenantry established under the compulsory reorganizations of the land system. In the Com- mission for making shires in 1605 the principle of the ex- istence of tenant-right was also recognized: for the conduct of many persons who, pretending to be lords, had expelled ancient tenants or imposed exactions upon them "under pre- tence that the said tenantes or freeholders are but tenantes- at-will, albeit they and their ancestors have enjoyed the same by course of descent for many hundred yeares past," is repro- bated \ In 1608, on the flight abroad of the two Earls^ their estates were, as has been described in the last chapter, forfeited to the Crown. It will be necessary to go at some length into the nature and regulations of the colony which was planted on the most fertile portion of this territory, and it will be seen that at first sight the plan devised was not inequitable. Still it must be remembered that in many ways this plantation was a deliberate undoing of the work of Sir John Davies. The rights of the newly created freeholders obtained little recognition, and were frequently infringed on behalf of the settlers, and even where their rights were not actually dis- turbed a feeling of insecurity was given to the new tenures, the one thing it was most important to avoid. It is perhaps worthy of note that it has been alleged that the disgavelling which preceded the forfeitures Was part of a deep plot of the English, who considered, on the analogy of the Gavelkind lands in Kent, that Irish Gavelkind lands would be more protected against escheat than those held by knight-service. The faults of the suggestion are obvious. It is true that the very nature of the Brehon Law is far too archaic to recognize such forms of ownership as the principle of escheat involves, but the theory of Gavelkind had never before been allowed to interfere with the rights of the Crown in Ireland to escheats, and both Earls held from the Crown long before the 'Case of Gavel- kind.' The suggestion is a very fair example of the amount of 1 Sigerson, Hist, of Land Tenure ^j ggg ante, p. 63. and Land Glasses, p. 104 (note.) 74 THE SUBSTITUTION OF ENGLISH TENURES [CHAP. ingenious perversion which is always applied to the acts of the English in Ireland. The plantation of the colony in Ulster was evidently ela- borated with no small care by James the First and his ad- visers \ who adopted in the main a project drawn up by the Privy Council of Ireland ^ Orders and Conditions^ were issued for the guidance of the undertakers who applied for grants of land, commencing as follows: — "His Majesty in his princely bounty, not respecting his own profit, but the public peace and welfare of the kingdom, is graciously pleased to distribute the said lands to such of his subjects, as well of Great Britain as of Ireland, as being of merit and ability shall seek the same with a mind not only to benefit themselves, but to do service to the Crown and common wealth," The most noticeable points of the proposed scheme of plantation were that the lands to be distributed were divided into lots of 1,000, 1,500 and 2,000 English acres respectively, and the undertakers to whom such lots were committed were separated into three classes, namely : (1) " English or Scottish, as well servitors'' as others, who are to plant their portions with English, or inland Scottish inhabitants." (2) " Servitors in the kingdom of Ireland, who may take mere Irish, English or inland Scottish tenants at their choice." (3) " Natives of Ireland who are to be made freeholders ^" The rents of the English and Scottish undertakers were fixed at £5. 6s. Od. for every 1,000 acres, and no charge of rent was to be made for the first two years. The nature of their tenure was as follows. Every grantee of 2,000 acres was to hold by knight's service in capite ; and every grantee of 1,000 acres was to hold in common socage, no wardships being ex- acted upon the first descent of that land. The undertakers and their tenants were to erect within two years castles and 1 Though the plantation was pro- project is quoted in full, pp. 105 — 120. j acted by the king and by Bacon it was 3 gee Harris' Hibernica, p. 123 et chiefly carried into effect by Sir Arthur seq. Chichester, who appears to have dis- ^ The servitors were of two kinds, played great resources, and who received (1) great officers of the state, (2) rich a large allotment himself. adventurers from England. 2. See Harris' Hibemica, where this ^ Harris' Hibernica, p. 114. v.] AND THE ERA OP PROTESTANT ASCENDENCY. 75 buildings ; they were forbidden to alienate their holdings to the ' mere Irish/ and were not allowed to create tenancies at will. The undertakers were bound within two years to place upon their lands a competent number of tenants and the rent was to be a fixed sum; special proviso being made against cuttings, cosherings, and other Irish exactions \ The above rules appear to be framed in a liberal and thoughtful spirit, and show much consideration for the best interests of the land. The rules applicable to the Irish natives who were admitted as freeholders also seem to be both mag- nanimous and well considered. 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Cla y &= Sons, Cambridge University Press Warehouse, Ave Maria Lane. 32 PUBLICATIONS OF CAESAR. DE BELLO GALLICO COMMENT. I. With Maps and English Notes by A. G. Peskett, M.A., Fellow of Magdalene College, Cambridge, is. 6d. CAESAR. DE BELLO GALLICO COMMENT. II. III. By the same Editor. 2s. CAESAR. DE BELLO GALLICO COMMENT. I. II. IIL by the same Editor. -i,s. CAESAR. DE BELLO GALLICO COMMENT. IV. and V. and COMMENT. VII. by the same Editor. 2s. each. CAESAR. DE BELLO GALLICO COMMENT. VI. and COMMENT. VIII. by the same Editor, is. 6d. each. CAESAR. DE BELLO CIVILI COMMENT. I. by the same Editor. [/;, ^/^^ p^.^^^ CICERO. ACTIO PRIMA IN C VERREM. With Introduction and Notes. By H. Cowie, M. A., Fellow of St John's College, Cambridge, is. 6d. CICERO. DE AMICITIA. Edited by J. S. Reid, Litt.D., Fellow and Tutor of Gonville and Caius College. New Edition. 3^. 6d. "Mr Reid has decidedly attained his aim, namely, 'a thorough examination of the Latinity of the dialogue. 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