Landholding in Ireland

The History of Landholding in Ireland Author(s): Joseph Fisher Reviewed work(s): Source: Transactions of the Royal Historical Society,
Vol. 5 (1877), pp. 228-326+424 Published by: Royal Historical Society Stable URL: http://www.jstor.org/stable/3677953 . Accessed: 18/08/2012 02:02
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228
THE HISTORY OF LANDHOLDING

BY JOSEPH FISHER, EsQ.
IN IRELAND.
FELLOW OF THE ROYAL HISTORICAL SOCIETY.
IN the paper which I read last year upon the Historyof whichunLandholding in England, I describedthe principles derliethedistribution land amongtheaboriginalinhabitants, of the primal occupiers of the soil. It is not necessarythat I should now dwell at much length upon that portion of the refer two authorities to whichhave subject. I would,however, in relationto the allotmentof lands. weight Sir William Blackstonesays, vol. ii.,p. 3,and reasonhe who first "By thelaw ofnature began to use the a land acquiredtherein kindof transient that possession, lastedas it longas he was using and no longer;or to speakwith greater pre. the of continued thesametimeas theact for cision, right possession is in ofpossession lasted. Butthere no foundation nature natural or a law why setofwords should thedominion uponparchment convey of land; whya son shouldhavea right exclude fellow-creato his a from determinate ofground tures becausehis father done had spot him." so before A more recentwriter, Kenelm E. Digby (" History of the Law of Real Property," 3), says,p. " However origin to be accounted thisidea as to prois its for, in in communities. universal primitive The perty land is nearly as of land is regarded theproperty thecommunitylarge, indiat and rule as of viduals a general haveonlytemporary or rights possession The land is public uponthe lands of the community. enjoyment or land-agerpublicus,-folc-land,landofthepeople. Dealingwith of is of folc-land themostimportant the functions the chiefof the in with he alwaysacts,not it community timeofpeace. In dealing but as supreme landowner, as the head of the community, conin of with leaders thesecondrank." the junction
THE HISTORY OF LANDHOLDING IN IRELAND.
229
call studies-ledmesome My inquiries-I can hardly them in of to attempt sketch thechanges thesystem a of yearsago inthevarious ofEurope;since abler then countries landholding mindshaveworkedin thesame field. As I pursued inmy the fell and thatthe quiriesI thought systems intogroups, was to institutions are owing race; identical similarity mainly of traceable kindred races. The necessities humanity among of were similarly expressed. Land is the sustainer life. In thelanguage the" SenchusMor" it is "perpetual of man." Hencearosetheneedofappropriatingportion every to a man, who wouldotherwise his lifeto him who possessedthe owe land and supplied himwithfood. of Time is a solvent; increase population, division the of the of of to the labour, growth exchange products,'ledsomechanges. of ideas. The The necessities conquestset aside primeval of carried liveduponthelabour theweaker.Invaders stronger were subwith them,and abnormal theircustoms systems be in merged the deluge. The same usage will sometimes is but in found twoormorecountries, ifthematter followed up from samecause. The metayer the to itwillbe found proceed traceableto of system parts of France and Italyis clearly formed two armies, the inroads of the Burgundians; they the in settled France, otherin Italy,and under one ofwhich from farming or thenameofHospitalities, payments the occuannual oftheconquered lands,exacteda stated portion pants to of oftheproduce theland; hencetheword metayer,measure. led me to grouptheland systems;thereare My inquiries but the Teutons were not one of the ancientraces; the
and Scandinavian,the Sclavonian,the Mongolianor Scythic, the Gothic,some preferusing the term Teutonic, the Celtic,
which have thoseof thepeninsulas, Spain,and Italy, Turkey, than the northern overrun been more frequently parts of olderhistorians applythe Europe,and to whoseinhabitants of of termScythic, theinhabitants theshores theMediterbut with the Scythiansof ranean should not be confounded Asia. Northern of of The diffusion men consequent upon the confusion
16*
230 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

* tongues led the sons of Japheth to settle.in Europe, while those of Shem and Ham took Asia and Africa. The seven sons of Japhethwere Gomer, fromwhom the Celts are dethe Mongols or Scythians; Madai, the scended; Magog, Sclaves; Tubal, the Goths; Tiras, theScandinavians; 5avan and Meshech, inhabitantsof the isles of Greece, Turkey, the but mustnot be Italy,and Spain,t who were called Scythians, withthe Mongols,or Magode, who are traced by confounded Josephusto Magog. Some recentwritersoverlook the most ancient and trustof and preferthe writingsof Herodotus or worthy histories, Strabo to those of Moses. The latter are, in my opinion, more authentic,and tell us that the descendantsof Noah peopled the whole earth. The new theory of development,whichis pushed veryfar,not only with regard to the origin of the human race, but to the origin of institutions,
"The sons of Japheth; Gomer,and Magog, and and Tubal, and Meshech, and Tiras. And the sons Madai, and Javan, and Riphath,and Togarmah. And the sons of of Gomer; Ashkenaz, and Dodanim. By these were Javan; Elishah, and Tarshish,Kittim, theisles ofthe Gentiles dividedin their his one lands; every after tongue, in after their nations." families, their to to continued apply theracesinhabiting t The Israelitesand theJews the the shores of the Mediterranean names of theirancestors. Thus in the Isaiah, chap. xxiii., predicting fall of Tyre,says," Howl, ye ships of Tarshish; forit is laid waste,so that thereis no house,no entering the in from land of Chittim." And again,chap. lxvi. I9, " I will send to thosethatescape untothenations, Tarshish, Pul, and Lud, thatdraw the bow, to Tubal, and _avan, to the isles afar off." This was but it showsthatthe Jewsof about 1,700yearsafter deluge, the written of the the thatday preserved nomenclature a bygone age, and attributed to of of three whomare settlement the Mediterranean thesonsofJapheth, of statedby namein the latterpassage. Ezekiel,speaking Tyre(chap. " was thy merchant reasonof themultitude of writes, Tarshish by xxvii.), all kinds of riches; withsilver,iron,tin,and lead, theytradedin thy fairs. 7avan, Tubal, and Meshech, theywere thy merchants: they tradedthe personsof men and vessels of brass in thymarket. They tradedin thyfairs withhorsesand horsemen ofthehouse of Togarmah and mules. The menof Dedan [Dodanim]were thymerchants;many of isles werethemerchandise thinehand."
* Gen. x. 2-5:
231
traces man to the monkey; those who advocate this theory have never shown when the power of developing monkeys into men, if it ever existed, ceased. If it existed it would or continue; and unless they can produce a man-monkey, a fail to prove that a monkeyever developed monkey-man, they into a man, and leave the Biblical narrative intact. institutions have followed the path of Language and conquest. Mr. Latham, one of the most painstakingwriters of philology,asks (" Elements of Philology,"p. 6I I),"Has the Sanskritreached India from Europe, or have the the Slavonic,the Latin,the Greek,and the German, Lithuanic, evidence wanting, India? If historical be reached the Europefrom is must history silent, ipriori presumption be considered. I submit of and that presumptions in favour thesmaller the are classhaving rather thanviceversa. been deduced from area of the larger, the is If so, thesitus of theSanskrit on the eastern south-eastern or is and of frontier theLithuanic, itsorigin European." He adds," A whatever itis measured end and from mileis a mile, a leaguea league, ; the Danube to the Indus thanfrom from the and it is no further but entirely in its lost so region, onlyprojected, to say,to another but own, is anything unique. There is no Englishin Germany. in is of A better of however, found the Magyar Hungary, example, within some 700 milesof itspresent which traceis to be found no hundred old is area. Yet theMagyar nottwelve years in Europe." is The absence of English from Germany, quite in harmony that theAnglo-Saxons were Scandinavian, withmy assertions and that therewas a complete migrationof the Jutes,the Angles, and the Saxons, from the north of the Elbe into and sixth centuries. England, in the fifth Looking at settlementsfroma philological point of view, it appears that the use of duplicate words is evidence of conquest; that such words as omnipotent, almighty, bear theimpress ox, omniscient, all-seeing, beef,sheep,mutton, of two races, the conquerorand the conquered. Institutions to bear the same imprint, thoughit is more difficult separate than it is to follow the stream of their component parts
Indus to the Danube. .
. .
The fact of a language being not
language; but if we could follow back the branch to the we should arrive at the point of separation, which trunk, is also the point of union. Herodotus gives the Celts the large domains of Central Europe north of the Danube, extending from the Black Sea to the ocean. There has been a westwardmovementof ancient races; the Mongols have possessed themselves of parts of the land of the Scandinavians and the Sclaves, the Scandinavians,of some of those of the Celts,theSclaves have taken those of the Goths,the Goths have swarmedover into Celtic possessions,and also into the peninsulas of Italy and Spain; while the Turks, the only Asiatic rulers in Europe, have held for several centuries part of the domains of the SouthernScythians. I have depicted upon maps of Europe the location of these races,in ancient and in the presenttime, and may perhaps publish them and the result of my retime. searches at some future task is to deal with that portionof the Celtic My present race whichsettledin Ireland,and where, being out of the high remaineduneffaced road of invasion,the ancient institutions after they had disappeared elsewhere. The general long characteristicof the Celts was an unwarlike disposition; being the original occupiers of fertileregions, they spread westward, foundnothingto war with,hence there was an yet or absence of any domineering defensiveorganization. Their institutionsappear to have been expressed in the cry of Celtic France at the end of the eighteenth " century, Equality, The descendants of Gomer, the parent Liberty,Fraternity." each governed of the Celts, broke up into separate families, the was by a patriarch;disintegration followedby integration, familygrew into the clan, sept, or tribe whichwas the joint owner of the land occupied by the progenitor,with a life possession to each of his descendants. There was a distinctlimitation thelands to thewhole of his descendants, of not to one portion to the detrimentof others,each genefor ration had the power of apportionment life, and hence a in the size of the possessions. The lands bedissimilarity
233
the but longedto theCommune, primal owners, wereapportioned theindividuals to theCommune, according composing to their and worthiness. howThis arrangement relates, age to for was ever, solely landwhich created theuse of man,and did not affect which being the productsof each chattels, were his or man's industry, the resultof his self-denial, and property at his owndisposal. The necessity combined of actionfordefensive purposes led to the unionof tribesundera commonchief, but each its preserved ownleaderand usages,and hencearosewhatis called "Customary laws." These wereat varioustimescollectedand written and formthe basis of the Brehon down, in from Brehons judgeswhowereinstructed and the or code, from administered The land system called Tanistry, it. is the whosemain electedto succeedthechieftain, Tanist,an officer office to dividethe land of the tribeamongthe living was members and he a thereof; was,infact, trustee heirto theland of each of the sept or clan, and made such a divisionas suitedthe circumstances the case. I shall hereafter deof thatprocess detail: in scribe about Irelandappearsto havebecome to known the Greeks calls it "1 Hibernia,"and says it was about halfthesize of is England. Ptolemy givesa map of Ireland,which superior in accuracy that of Scotland. The Belga had colonized to the easterncoasts of England about two centuriesbefore Caesar's in invasion., It is supposedthatthey settled Ireland, wheretheywerecalled Firbolgs; the Romans called them in Scuti,and theland Scota, by whichname it was known Europeuntilthetwelfth century. the considered Gauls and Irishwere Hume,whoevidently Celts,writes (Essay xi. vol. ii. p. 463),had that Gauls no fixed the " Weareinformed Caesar property by in in land,butthatthe chieftains, anydeathhappened a when madea newdivision all the land amongthe several of family, which of of members thefamily. Thisis thecustom tanistry so in longprevailed Ireland."
200 years B.C.;they gave it the title of "Juveonei;" Caesar
Tacitus, who wroteA.D. 78, says of Ireland," The soil and climate, and the disposition and habitsof the differ much theapproaches thecountry not from to Britain; people, and its ports betterknownthrough commercial are the intercourse ofmerchantmen." This implies a state greatlyin advance of that whichprevailed eitherin Gaul or Britain. The Psalter of Cashel assertsthat Milesius,who had thirtytwo sons, of whom eight arrived in Ireland, landed in that country1,300years beforethe birthof Christ. Amongst the successorsof the sons of Milesius,were Heber-Heremonand Ish, and Gadelas, fromGawth Del, a lover of learning; of these kings it is said,and "A hundred ninety-seven complete years The Tuathaah Danaus,a famous colony The Irishsceptre swayed." The mostcelebratedof these monarchs was Ollamb Fodhla, who reignedA.M. 3082. Keating, the historian, says," He summoned principal his and the his nobility, Druids, poets, to meethimina full at Tara oncein every historiographers assembly to three the laws, years, revise bodyoftheestablished and to change them the exigence affairs as or correct of of required;in testimony thisI shall producethe following versesof greatantiquity, to and in be found writings good authority of :" Thelearned Fodhla ordained Ollamb first The great where nobles met, assembly Andpriests, poets, philosophers, and and To make lawsandtocorrect old, new the Andtoadvance honour thecountry."' the of Plowden (" Historical Review of Ireland," p. 15) thus describesthe assemblage of the Irish chaptersin the reignof Ollamb Fodlah:" Under himwas instituted greatFes at Tramoror Tarah, the in fact, triennial which a of convention theStatesor Parliament, was, of the members whichconsisted Druidsand other of learned men the who represented people in thatassembly. Thus the monarch who had the executive and theprovincial other and kings powerin
THE HISTORY OF LANDHOLDINGIN IRELAND.
235
formed wholeof the withthe deputies the people on the other, of to themselves the devoted theancient legislature.Theyparticularly and annals of examination settlement the historical and antiquities
and their hands one side, thephilosophers priests, on and together
and of thekingdom; were rehearsed privately by inspected a they
of theyweretranscribed passedthe approbation the assembly which calledthe was of chronicle thenation, intotheauthentic
or of register Psalter Tarah." indicated by hanging their coats of arms on the wall over them,thus evincinga completeknowledgeof heraldry.
selectcommittee the mostlearnedmembers. Whentheyhad of
of The seats of the members the great councilwere
of The Brehon Code datesas farback as thereign Ollamb of untilthe invasion and existedunbroken Fodhla,850 B.C.,
direct tracesof evangelization Christian periodhas distinct in stone,the Irish round fromSyria. Those problems and studyof so whichhave excited the curiosity towers, a have solution, men, learned affordingtangible many without
and the postranean, most probably of a Semitic character,
of of the Irishjudges. Ollamb Fodhla was a contemporary of Hezekiah kingof Judah. The codification theIrishlaws took place beforethe Median kingdomarose, beforethe beforeRome was founded. wereformed, Grecianrepublics to of justice,and suited Beingbased uponprinciples natural the it of the requirements humanity, survived fall of these a and states, was displacedto makeroomfor system greater but whichdoes not possessthe same advantages, givesthe of control the land to a small class,and leaves the mass of for thepeopleto struggle its possession. The historyof landholdingin Ireland possesses an additionalattraction, throwslightupon the earlier in.it of stitutions the Celtic race. The Irish were not an unmixedrace. The pre-Christian period of Irish history is markedwith tracesof an invasionfromthe Mediter-
HenryII., 1171 A.D.,a period of over two thousandyears. It continuedto be the law of that portion of Ireland not under English rule until 1603,when it was abolished by resolutions
236 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF always appeared to me to be of Semitic origin. The poetic remains of Irish historypoint to an invasion of Ireland from Egypt, on the expulsion of the dynasty when "a king arose who knew not Joseph." The milder climate of the East permittedthe unroofedexistence of the sacred fires,which in the humid climate of Ireland required some covering; the round towers,from their elevation, would display the sacred gleams to large districts. The introduction Christiof led to the erection the churchin proximity of anity naturally to the round tower,and in some cases to its use as a belfry. The abrasions fromthe friction a rope or chain on some of the window-sills that therewas a rude adaptation of of prove an existingedificeto more modernrequirements. The land system of the earlier Irish race is describedby the term TANISTRY. It is derived from the officeof the Tanist, whose duty was to divide the land of the sept or tribe among the members. The tribe selected the tanist, who succeeded to the chiefryupon the death of the chief. I shall have to referto his mode of election and duties further but it may be convenient to divide the subject on, into the following:-Ist. The Tanistry, or Communal. 2nd. The Scandinavian, or Mixed. 3rd. The Norman, or Feudal. 4th. The Stuart,or Confiscation. 5th. The Hanoverian, or Unsettled. 6th. The Present. PART I.-THE TANISTRY OR COMMUNALPERIOD. The term tanistry was applied to a systemof landholding in whichthe land belonged to the communewhilepossession the was given to the individual. It took its name from Tanist, to and whowas next in pointofrankand influence thechieftain, succeeded to the vacant chiefry. He was elected by the sept or lineage, and was the distributorof its lands. The inasmuchas no man held Tanistrysystem,thoughcommunal, in the land in severalty,differed many respects from the
237
of village communities Russia and India. It approachedvery to that of New Zealand. The ancient Irish law tracts, nearly neither enact to which I shall hereaftercall your attention, nor describe it. The systemappears to have been antecedent to any written law,and to have been recognisedas an existing institution the same way that customs in England prove in common law rightswhichrestupon the lex nonscripta. The descriptions whichwe possess of this systemare comEdmund parativelymodern,and theyare written strangers, by Spenser in the reignof Queen Elizabeth, and Sir John Davis in that of James I. The latter filledthe officeof attorneygeneral, and both looked upon the Irish Tanistry systemas uncouth and barbarous. The customsof the Irish people, as described by Spenser and Davis, must have been more or less tinged by the intermixtureof Scandinavian,Norman,or feudal ideas, fromcontact withthe Easterlings,the Danes, and the Anglo-Norman for who had partly occupied or ruled the country invaders, several hundred years before Spenser. Yet its inherent and adaptation to thewants of humanity, vitality, its thorough intact. The author of "The Faerie Queen'" preserved it residenton the bordersof the counties was an Irishlandholder, Cork and Waterford. In his "View of Ireland," he thus whichexisted at thattime:describesthe systemof tanistry " There be manywide countiesin Ireland whichthe laws of established noranyacknowledgment subof werenever in, England jectionmade,and also even thosewhichare subduedand seem to yet the same Brehonlaw is practised acknowledgesubjection, as thatdwelling they whole themselves reason nations do, by amongst without Englishman and septsoftheIrishtogether, any among them, in had no estate anylands,seignancestors the Irishsaythattheir their own lives, they thanduring as or longer ories, hereditaments, is which (say landbytanistry, forall the Irishdo holdtheir allege, that but no more personal estateforhis lifetime, is tanist, by they) of he thereunto election thecountry. that is admitted reason by after all " It is a custom among the Irishthat presently the death assemble do of anyof theirchieflordsor captainsthey presently untothem, and to to themselves a place generally appointed known
in whenthey nominate electfor do and the chooseanother his stead, mostpart not the eldestson, nor anyof the children thelord of to of is but deceased, thenext him blood that theeldestandworthiest, as commonly nextbrother the untohimifhe haveany,or thenext as or kindred sept, and then next or cousin, so forth, anyelderin that who to himdo they choosethenextof the blood to be tanist, shall if him succeed inthesaid captaincy he livethereunto. next chieftain " Theyuse to place himthatshallbe their upon a stone for and reserved thatpurpose, placed commonly upona hill, always a and engraven foot, in someof whichI have seen formed which he of first wherein standfoot, sayis themeasure their captain's they an all former customs iningreceives oath to preserve the ancient and and to histanist, violable, to deliver thesuccession up peaceably thenhatha wanddelivered untohim by some whoseproperoffice which thatis; after from stonehe turneth the himself descending thrice and backward. forward thrice round, " For whentheir if shoulddescendto dieth, theseignory captain his child, an another and he perhaps infant, step might peradventure in between thrust out witha strong him and hand. The tanistis if to known, it should happenthecaptain ready always suddenly die, or to be slainin battle, to be out of the country defend or to and all keepit from doubtsand dangers. For whichcause the tanist allotted him, to hathalso a shareof thecountry and certain cuttings all theinhabitants under lord." and spendings the upon It is well to bear in mind that this description of the of and inauguration the tanist,the object of his appointment, is the duties he was expected to perform, fromthe pen of an in and written the latterportionof the sixteenth Englishman, afteran interval of several hundred years fromthe century, of landing of Henry II., which event followedthreecenturies the Danes and Easterlings. against struggle A few years later, in the early part of the seventeenth Sir century, John Davis, also an Englishman,who occupied to the positionof attorney-general JamesI.,and wholooked on wrotethus the existingsystemas a lawyer, ("Reports," p.134):-"First, it is to be knownthatthe land possessedby themere or and the Irish were divided into several territories counties, weredivided Irishcounty of intoseptsor lineages. inhabitants every
239
and was a lord or chieftain, there Second,in everyIrishterritory a tanist, who was his successor and of everyIrish sept apparent; or lineagethere was also a chief, wascalledCean Finny who (Cean all ran within theseIrishterritories always Fini). Third, possession in the course of tanistry, in course of gavelkind. Every or or with of seignory chiefry, the portion land whichpassedwithit, went or to who cameinby election without partition the tanist, always were tenancies hand,and not bydescent;butall the inferior strong the between males in gavelkind. Yet the estatethe lord partible had in chiefry, the inferior had was tenants in gavelkind, not an or estateof inheritance, of temporary transitory but or possession. the For as the nextheirto the lordor chieftain notto inherit was of but the eldestand worthiest the sept,who was often chiefry, removedor expelledby another who was moreactiveand strong thanhe,so the lands of the nature gavelkind werenot partible of the nextheirsmale of himwhodied seised, among but the among or :-The Caen finny chiefof a sept (who was sept in thismanner at the of commonly mostancient thesept),made all the partitions his discretion; who and after the death of any ter-tenant, had a and all the of competent portion land,assembled sept, havingthrown their madea newpartition all,in which of into possessions hotchpot, he partition did not assignto the son of himwhodied the portion his father to to had,but he allotted each of the sept according his the or or seniority better greater portion;theseportions purparties and enjoyedaccordor being so allotted assignedwere possessed untila new partition made,whichat thediscretion will was or ingly oftheCaen finny to be madeon thedeath eachinferior was of tenant." The great difference betweengavelkindand tanistry* in lay divided a man's land betweenhis this,-the former, gavelkind, sons, each of whom therebyacquired as large an estate in his separate portion as his fatherhad, and on his death it was again divided between the sons of each of them, it being did tanistry, not essentiallya divisionper stirpes. The latter, a man's land to his sons,it reverted the sept, and each to give of the sons got a portionof the lands of the sept, but it was only a lifeenjoyment. Undergavelkindtherewas ownership in severalty, whichdid not exist undertanistry. * The proper would Gableach term be cime.
240 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF The tanistry system seems to have been based upon the idea expressed in Sir John Davis's description, lineage; the land had been the possession of some remoteancestorand all his lineagewere providedforout of it. The Caen finnyand tanist appear to have held the same office,and its -main functionwas the equitable division of the land among the lineage of the far-awayoriginal chieftain. It may sound trite say thatevennoweveryman has onlya lifepossessionor to life estate,for all love to think that theycan exercise a sort of ownership over theirlands afterdeath has put them out of a This righthad no place in the tanistry system, possession. man enjoyedthe land allotted to himwhile he lived,but when he died the livingdealt withit as they deemed best fortheir own interests. But thissystemwentfurther."Land was to themperpetual man," the staple of his existence,therefore every one of the lineage possessed his share forlife. The lands of the chiefdid went to the not descend to his children, they with his office the lands of the tanistto his successor. All the other tanist, lands of the sept were divided among the members; there was no tenancyin the sense in whichwe use the word; there was no rent,no eviction,none of the powers claimed under the feudal systemby the tenantsin fee. This system of tanistrywas essentially republican in its the character, land vested in the people, not in the Crown; of its divisionwas arrangedby the elected officer the sept or all its members were joint owners of the common lineage; settled in tail to the whole of the estate,whichwas strictly No man could sell the inheritanceof his children, lineage. and there were neither landlords nor tenants. The two the chief and the tanist, had their administrative officers, whichdid not descend to theirchildren, own official demesnes, but went like church land, or clerical income, to him who succeeded to the office. A system so unique differs many respects from that in of any of the more ancient semi-civilized nations. The for Egyptians appear to have owned their land in severalty,
THE HISTORY
OF LANDHOLDING
IN IRELAND.
241
for theysold it to Joseph Pharaoh. The Israelites, though from theirland in perpetuity, couldmortprevented selling the landscouldnot gage it until year of jubilee. The tribal whichreachedback to a severalty.The tanistry system, of thanthe foundation Rome,appearsto periodmoreremote have arisen and over island, to have simultaneously the entire untilit was existed, many notwithstanding isolatedinvasions, of thelanding theAnglo-Normans, and by partially displaced but was whollyabrogated, not by legislation, by a legal in of decision thereign JamesI. to ProfessorSullivan's introduction O'Curry's Essays of describes division theIrishpeopleintoclasses. I have the to his thus:-In Ireland, endeavoured condense statement as otherpart of Europe,we can tracetheexistence in every of the thetwogreatclasses, freeand theunfree. Amongst the were classescalledA ires: there there free weretwo privileged or Deis, whowere thosewhopossessed classesofAires, land, and thosewhopossessed cows or othercattle, calledFlaths, calledBo A ires. The classoftribesmen called Ceiles whowere the intotwocategories, Saer or freeCeiles,and weredivided the Daer or base Ceiles; an ancientmanuscript, 3, 18, H. for T.C.D., p. II9, says, " It is competent a man neverto any manunlessit be his ownwillto acceptbase wages from for do so, and it is competent himnotto receive Saerrath fromany one buta king, he is notentitled but wages) (free to refusethe freewages of his king. Every man in the is wagesofa Rig Tuatha." Tuat/i boundto receive free whether or base,had certain definite All Ceiles, rights and in the territory, had the rightto havea habitation and of the usufruct the land. The freeCeilespaid Bes Tigi,or Biatid. If a Flath exacted the house tribute, base Ceiles, more Biatid, &c., than he was legally entitledto,he was his bound to recompense Ceileby additionalwages. The of the formed body-guard the chief. The Daer Saer Ceile beneficesof land. In a lower received Ceiles sometimes R 17
leave the tribe,theydescended to the childrenor next of kin. The Greeks and Romans both recognised ownership in
242
TRANSACTIONS
OF THE
ROYAL HISTORICAL
SOCIETY.
the position in the social scale were the Bothacksor cotters, Leu Cluthesor house servants, and the Fueders or strangers, outdoorlabourers; thelatterwere Saer Fueder,freelabourers, and Daer Fueder or base, servilelabourers. The Daer Fueders became tenantsfromyear to year,but if theyserved forthree generationsthey acquired rightsto the possession of land. The Flat/ could have Bothacksor Fueders of any class on his land. The Ceilesalone had political rights, that is, a definite in the tribe or Tuath/. The Bo A ire, if wealthy, position became a Flath. It is obvious that the main distinction lay between the "lineage," the members of the family, and who had either been captured in battle,been purstrangers chased as slaves in England, or come amongst the sept in search of fortune. The Ceiles appear to have been part of the "lineage," and as such entitledto greaterprivilegesthan captives,slaves or aliens. This view is borne out by one of ancientIrishdocuments, CrithGablack; the the mostimportant of is in theform questionand answer; it relates to the classes it of society,and their privilegesamong the ancient Irish. It commences," What is CrithGablach?-Answer : The thing whichthemanof a tribe accuin for till mulates his benefit the territory he is admitted therank of the legitito of or increase whichdistinction givento matepossessors the territory; other is by thegradesofthepeople."
There is herean evidentdistinction betweenthe "man ofthe tribe,"the lineage, and strangers. It will be seen he should the and by prove his worthiness increasing wealthof the tribe, was then placed by the tanist among "the legitimate posor sessors of the territory," receiveother distinction. The of the people were "a Fer-Midbe, a Bo-Aire, grades an Aire Dessa, an Aire Tuise, an Aire Forgaill, and a Ri. They were ennobled by the possession of Deis-land, which was in the award of the tanist,and they ranked in the tribe and out of it, according to the rank which theywon. The Tanose Rigk (tanestof a king) was so called because he was elected by the wholeterritory. The sevenoccupations in law for of a King were-Sunday, ale-drinking, he is not a lawful Flath who does not distributeale everySunday. Monday,
THE IhISTORY OF LANDHOLDING IN IRELAND.
243
at legislative governmentof the tribe; Tuesday, at chess; the Wednesday, seeing greyhounds coursing; Thursday, pleasures of love; Friday, at horse-racing; Saturday, at judgment. The Flath could eitherworkhis land withFueders,or let it to Ceiles,but as his own holding terminated with his life,the lettingswere usually of short duration. Any buildings became the propertyof the Flath at a valuation,but if evicted beforethe expirationof the term, occupierwas entitledto the his buildings,and if evictedwithoutcause he was entitled to his rentas well as his house. Village land let forthe purpose of growinga manuredcrop revertedto the owner at the end of the term; if no termwas specified hirerof the land was the entitledto its possession,untilhe had exhausted the manure. With reference the quantity land attached to a dwellingto of house he says (p. xxxix.) " The NorseBo'l and By appearto be synonymous; leastthere at wasa mansion principal or is no doubtthatBy originally farmhouse, sufficient tokeepa family independence. in land of including, course, of In Irelandthisappearsto havebeen thequantity land sufficient of thelegalqualification a cowsor three to grazetwenty-one cumals, man havingpolitical that is, of a free Bo Aireofthelowest class, a and sufficient of and in addition certainquantity forest, rights, Irish fodder. The following curious winter landto provide meadow such a typical to represent in theBook of Armagh appears entry with and Ochter-u-Achid homestead Cummen Brethan :-" purchased with both itsappurtenances, woodand plain and meadow, together and itshabitation itsgarden." The annals of the Four Masters,a work of some authority, informsus that gold was smelted in Ireland and made into &c., as early as 354 B.c.,that cloths were dyed. cups,brooches, Each rank was known by the number of colours in their were kings wearingsix colours,while the peasantry garments, to wear a dress of one colour. Rings and chainswere obliged worn by the kings and chieftains. The Irish Seisreackwas the extent of land whichoccupied one plough,and representedthe ploughland or carracuteof
244 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY. England, and the Saxon "hide of land." According to a curiouspoem attributed the antediluvianFuitan, but which to in substance,though not in language, to about the belongs sixth or seventh century,has been published by Professor O'Curry in his tracton the battle of Moylena,there were in Ireland 184 Trincha Cids; 5,520 Baile Biatacks; 22,080 or Caethranekadhs quarters; and 66,240 Siesreachs,or ploughor lands, whichwould be equal to 132,480 Ballyboes, habitations of freeholders, 7,948,800 Irish acres,the remainder, or acres, 5,ooo000,00ooobeing bog or mountain. At presentthereare 325 Baronies, and 62,205 townlands,the average acreage of acres. the latterbeing 324"6 I have already referred the assemblage of the legislators to by Ollamb Fodhla, and to the collectionof the laws made by Irish records him; they are called the Psalter of Tara. to also refers the Psalter of Caskel. The annals of the Four us Mastersinform thatin A.D.266 Cormaccollectedthelaws and them into a book knownas the Psalter of Teamhair. formed It contained a survey of the land of Ireland, and articles to &c., and relating Irish laws,genealogy,history, topography, at a late period,at the suggestionof St. Patrick,the laws were again collected,and the Seanchusand Feanchus,(i. e., history and law), now called SenchusMor, or Cain Phadrig (Patricks) that law, was compiled. It was esteemed of such authority no individual Brehon dared to abrogate it. This collection of laws, though more recent than the others I have named, possesses great antiquity,and was compiledbeforeeitherthe or Justinian the Theodosian codes. The work of the several assemblies appears to have been one of compilation'or collection,ratherthan of legislation, to and in this thereis a close resemblance thetheocracyof the law withstrictinjuncIsraelites,who receiveda heaven-given neither tionsto observeitsdictates,'but nor judges,priests, kings were authorizedto alter its conditions. There was no such its Bill; theform of its enactments, requirethingas a Re-form and its penalties were prescribed, and therewas therements, them. Legislation in Ireland fore no need of re-forming
245
appears to have been tribal,and to have rested upon patriarchal institutions the systemwould be properly describedby ; the words "customary law." The collection or codification which took place tended to secure uniformity over the whole but the highestofficer, Rig Tuatha, or king,was the country, neitherendowed withthe rightof legislationnorthe power to enforce laws. These privilegesappertainedto the sept or the and tribe which acted through electedofficers, chieftain the its tanist. The laws were expounded and explained by the Brehons,who appear to have possessed functionssimilar to those of the courts of equity,in applying to a new class of incidentsthe principlesof existinglegislation. Much jealousy existed as to the ownership these ancient of were preservedwith the most watchful care, psalters. They and classed among the choicesttreasures.* The more recent
of beingselectedand editedby Mr. Gilbert, the Public Record present whichwillbe one of Office Ireland. The first of of the collection, part is interest Irishscholars, nearly to profound completed. We learn from of a report issued,thatamongthe documents, fac-similes whichhave just " been prepared, a Latinpsalter is styled Cathach,"or the " Fighter." It and is ascribed to the hand of St. Columba,who made Iona famous, receives name from antique metal casketin whichit is preserved. its the with St. Finnen, in Ulster, he The legend is that,while sojourning withtheaid in this and "copied it furtively his church, borrowed psalter, Finnenclaimedthe copy as his in thenight-time." ofmiraculous light, and his but property, Columbadid notrecognise right, King Diarmidwas appealed to. His Majestydecided "that as to everycow belongsher book belongsits copy." Columbadid not see the force calf,so to every and kept the treasure. The psalter was of his analogical reasoning, among his kindredthe O'Donels, who preservedas a sacred heirloom of ruledin themostwestern partof thenorth Ireland,styledTir Conaill, their of or theland of Conaill,from name,andnowknown progenitor that casketwas made towards eleventh the century as Donegal. The present of by the direction Cathbar O'Donell, head of the clan. It was long was bornethrice before battle on the breast believedthatifthe Cathach wouldbe of a sinless cleric roundthe troopsof the O'Donels, victory in to secured them a just cause. "To openthe Cathach,"says thereport " was thought and be unlawful, would,it was thought, followedby death came intotheposses. and disasters amongthe O'Donels." It ultimately in sionof Daniel O'Donel, whoraiseda regiment Ireland forJames IL,, 17*
* AN ANCIENT of PSALTER.-Fac-similes Irish nationalMSS. are at
246
TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.
of these law tracts is the Senchus Mor. Its text and a has been publishedby thecommissioners translation appointed in 1852. It has formed the basis of Sir Henry Maine's justly celebrated essay on ancient institutions; it is said to have been compiled by nine eminentmen,a treble trinity,Kings, Brehons, and Prelates: King Laighaire, King Daire, King Core ; Rossa, Duththack, Fergus; St. Benignus,St. Patrick, and St. Caernech. It is not my object to give you any descriptionof this body of ancient Irishlaw,I only mean to deal with that portionrelatingto landholding. As I have already these law tracts do not either give or define the remarked, possession of land, nor do they allude to any rentexcept that whichis called " food rent,"to whichI shall presently refer. The transcripts were made by the late Dr. O'Donovan and the late ProfessorO'Curry,fromlaw tracts in the Irish language in the librariesof TrinityCollege, Dublin, of the Royal Irish Academy, of the British Museum,and in the Bodleian made by Dr. O'Donovan Library at Oxford. The transcripts extend to nine volumes,comprising 2,491pages, and the tranmade by ProfessorO'Currey are contained in eight scripts volumes, extending to 2,906 pages. They did not live to reviseand completetheirtranslations. The preliminary translation executed by Dr. O'Donovan is contained in twelve volumes, and the preliminarytranslationexecuted by ProfessorO'Curryin thirteen volumes. are now in course of publicationunderthe titleof the They Senc/us Mor, the great laws. Sir Henry Maine says of them,"The Senchus Mor, the greatbook of the ancientlaws, was a doubtless most to preciouspossessionof thelaw schoolor family
and afterwards becamea brigadier theFrenchservice. It remained in on theContinent until1802, whenit was transferred Sir Hugh O'Donel, of to in of Newport, the county Mayo. In 1814his widowbeganproceedings in Chanceryagainst Ulster King of Arms, for having opened the Cathachwithout it permission. The manuscript, is said,nowconsistsof leaves of vellum, are fifty-eight many of whichat the commencement
damaged.
247
in whichit belonged, and its owners have joined to it a preface which semi-divine a the it. Odhran, is claimedfor authority boldly and charioteer St. Patrick-sosaysthepreface,-had of beenkilled, the question shoulddie,or whether arosewhether Nuada theslayer thesaint was boundbyhis own principles unconditional to forgivedid ness. St. Patrick notdecide the point himself.The narrator, in true tells professional according spirit, us thathe settheprecedent to whicha stranger from beyond the sea always selectsa legal adviser. He chose to go according the judgment the royal to of Mac na Lugair, he' blessed and poet ofthemenofErin,Duththach the mouth'of Duththach. A poem,doubtless much antiquity of and celebrity, then intothe mouthof the arbitrator, by is and put the judgment it Nuada is to die; but he ascends straight in into heaventhrough intercession St.Patrick.Then KingLaighaire the of for other law said,' It is necessary you, O men of Erin,thatevery should settledand arranged wellas this.' 'It is better do be as to was ordered cxhibit to all so,' said Patrick. It was then Duththach and no human Brehonof the Gaidhilis able to abrogateanything found theSenchus in Mor." The manuscriptfromwhich the " Senchus Mor " is translated and published containsthe following touchingnote: three the hundred two-and-forty from birth years "One thousand till ofChrist thisnight;and thisis thesecondyear sincethecoming this oftheplagueintoIreland. I havewritten in thetwentieth year ofmyage. I am Hugh,son of ConorM'Egrim, whoever and reads of for a it,let himoffer prayer mercy mysoul. This is Christmas I place myself underthe protection the Kingof heaven of night. Him that He will bringme and myfriends and earth, beseeching the this safethrough plague. Hughwrote in hisfather's book own in theyearofthegreat plague." Anotherof the manuscripts containingIrish law tractshas the following entry:of and me " This is theeve of the greatfestival Mary, it grieves of the thatDonoughO'Brienis in danger deathfrom son oftheEarl and to Cuirbre courting is ofOrmond, it is a wonder me that council fromConnor. The Park is myresidence. MagnusforDomhnall Eiri and himself travelling, AD. 1567."
the and all thepoetry Ireland, and everylaw whic pre. of judgments vailed amongthemenof Erin . . . This is the Cain Patraic,
These laws treatof the mode of recovering debts, and give the law of distress at considerable length,but they do not recitethe originof the division of land among tribes,or the subdivision among the membersof the sept. There was, as I have alreadystated,no such relationas landlordand tenant, and I am informed that thereis not a word in the Irish language which can fairly be translated to mean the Saxon derivative," a holding," or the Latin derivative,tenureor tenement.The absence of any such words in the language is an indicationthat the Irish institutions only recognised one withthe institutions estate in land; in this it was in harmony of the more ancientsystems. The creationof twoestates,the and the estate of use, was the ownershipor quasi-ownership, of the Romans, and was adopted by those countries invention whose systems were moulded upon the jurisprudence of Rome. I do not findin the " Senchus Mor" distinctindicationsas to the mode of distributing chattels,yet I am disposed to Sir JohnDavis's view,that theywentin gavelkind; but adopt it seems that some men had cattle withoutland, while others had land without cattle; or the expressionmay be qualifiedby one man had land in excess of his stock,while saying that anotherhad stock in excess of his land. Hence arose a sortof and partnership, the Brehon code deals at lengthwiththe circumstancesarisingfromone man using the stock of another. These laws appear under two distinctheads, Cain Saerrath as and Cain Aigillue: the former, I am informed,means honouror personal relations,and the latter,"tribute or fine," and " forfeit." I am assured that thereis nothingin the Irish words to justifythe translation which appears in the preface as well as in the margin,Saer-stock tenureand Daer-stock tenure. The addition of the word "tenure" conveys an incorrect idea,.and the writersof the preface,as well as Sir Henry Maine, who has adopted theirviews,have applied the word " tenure" to the land and not to the stock. There was undoubtedlya "holding" of the cattle,as they were rented or hired,but therewas no claim upon the land in consequence
249
of these relations. The writers the prefaceto vol. ii.,p. 49, of thus describe the law: without "In 'Saer '-stocktenurethechief requirgavethestock of from the tenant. He gave it in consideration ing anysecurity an of of for receiving annualreturn sevenyears one-third thevalueof of in claimthisreturn the form thestock given. The chiefmight manual or labourat thetimeoftheerection his ' dun' fort, ofthe of he of did labour, reaping hisharvest;or ifthechief notneedmanual exhimin a military the tenant attend to might require 'saer '-stock of and to pedition, to senda manto do homage himat thepayment rent." This passage would read quite as well ifthe word"tenure" in the firstline and tenantnear the end were omitted: they suggest ideas with regardto the land quite at variance with the Brehon code. The stockholderheld the stock, he was tenantof the stock,and paid rentor tributeforthe stock,but none of these capacities affected ownership his lands. his of The prefaceto vol. ii. of the " Senchus Mor," p. 1.,adds," The Irish tenure appearsto have been ' daer'-stock principal into whichthe tenantentered choice,and in whichhe tenure, by for was requiredto give security the stock he used. From the it the nature thetenure, law respecting was called 'Cain of optional in thatis, the' Cain' lawofoptions tenure. The securities Aigillue,' them to kinsgivenwerecalled'Giallna' securities, distinguish from ' The ' CainAigillue contains traces of men'ssecurities ...... the for termination careful against arbitrary provisions guarding very tenure whenonce entered of' chief tenant daer'-stock or by either into." The laws appear to be based upon the principleof making for the stock borrower pay the stock lender double food-rent the year if he returnedthe stock withoutthe consentof the for lender,inasmuchas he mightnot have grazing-ground the stock so returned. If the stock lender recalled his stock the was entitledto one-thirdof it, and was exempted borrower his land might frompaymentof his honourprice ; otherwise lie idle. did not in any way affectthat which These arrangements we understandby the word "tenure,"that is, a man's farm,
but they related solely to cattle, which we consider a chattel. It has appeared necessaryto devote some space to this subject,inasmuchas that usually acute writerSir Henry " Maine has accepted the word " tenure in its modern interand has built up a theoryunder which the Irish pretation, chief" developed " into a feudal baron. I can findnothing in the Brehon laws to warrantthis theoryof social Darwinism, and believe further study will show that the Cain Saerrath and the Cain A igillue relate solely to what we now call chattels, and did not in any way affectwhat we now call the the freehold, possession of the land. There is nothing in the Senchus Mor at all contradictory of the statementsmade by Spenser and Sir JohnDavis, that the tanistry systemgave every member of the sept or tribe the lifeownershipof a portionof its lands; that the official lands attached to the positionof Chieftainand Tanist were not divisible,but partook of the natureof a benefice; they and went whole and undivided to the successorto the office, I can find nothingto warrant the conclusion arrivedat by the Sir Henry Maine, that the chieftaincould give strangers of the sept. Fosterage was a portion of the tanistry lands system,and those who were adopted by the sept shared in and enjoyed a portion of the lands. The its responsibilities chieftainand tanist each enjoyed his lands for his own they had no power of givingthemaway; life,and therefore were tilled by the Fueders or Bothacks. they Afterthe Norman invasion,and during the unsettledstate the of the country, chieftains may have imitatedthe example of the Norman barons,and strivento make forthemselvesa title similar to that importedinto Ireland by the strangers, but I doubt if anythingof this kind existed while the Brehon code was in full force,beforethe invasion of the Danes and the Normans. The early Norman and English settlers denounced the tanistry system as barbarous and uncivilized,and acted towardsit in the same manneras the English of recenttimes have acted towards the Hindoo and New Zealand land
251
they have looked upon the Zemindar, systems; in the former as and in the latterthe chieftain, enjoying the same rightsas the feudal baron. The English in both these countries ownerswhich have done the same injustice to the inferior membersof the Irish sept to the inferior their forefathers did or tribe. Mr. Thornton, a writerwhose very able works deservethe serious considerationof our statesmenand legislators,has shownthe mannerin whichthe estate of the ryots transferred a class who were to was, by mistakenlegislation, mere tax-gatherers; and thus in India as in Ireland the sympathies of the mass of the people was estranged from Britishrule,the people regarded the invaders as spoliators, who had not only assumed the government,but deprived them of theirrights. As I shall have to speak hereafterof these changes I shall not dwell on them now; but beforeI close this portionof my subject would like to give you some idea of the state of Ireland whenthe unmixedtanistry system of and elevated by the introduction prevailed. It was refined but Christianity, was brokenin upon by the incursionof the Danes. The earliest missionariesare dubious. The Irish traced theirChristianity through Irenaus to St. John,thus carrying back their faith to the Holy Land; the bull of Pope to Clementine Palladius,who visitedIrelandbeforethe landing in of St. Patrick,authorizeshim to visit "our brethren Christ of in Ireland," thus assertingthe previousintroduction Christianity. But it must have been confinedto special districts, forthereappears to have been a wide fieldforthe labours of been a puzzle to learned men St. Patrick. It has, however, how so many of the ritesof the Eastern or Greek to discover Church were implanted or existed in Ireland for many centuries. It is said, "If St. Patrick was the real founder of Irish Christianity,and was connected with the Latin Church, how does it come to pass that the Irish Church in corresponded its formulewiththe Greek Church,and why did it teach its ritesin Scotland, England, and France ?" I cannot solve this difficulty, it seems to imply a settled but
252
churchwithestablishedformulae beforeSt. Patrick'svisit,and it is quite clear he did not disturb these usages, and that his after death. they continuedforcenturies It had been the custom to misrepresent systemof landthis and to describeit as barbarous and inequitable, but holding, more recentinquirers, the Continentas well as in England, on the are beginning take a different and to recognise equity to view, and humanityof the Brehoncode. It may not be out ofplace to glance at the historyof Ireland to ascertainwhat was the the effect the tanistry of system,and of the laws regulating possession of the soil. Land is a bond ofunion. Its produce satisfiesman's physical wants. Its distributionis the basis of legislation. During the existence of tanistry,Ireland was the ark, in which the knowledgeof the Western world rode secure amid the turmoilof the Gothic invasion. It was the school of learningforWesternEurope. King Alfred mastersto was educated in Ireland, and it furnished the first the Universitiesof Paris and Padua. The scholastic institutionsof Bangor, in the county Down, and Lismore, in the educated thousands of pupils. Bangor county Waterford, alone is reportedto have had five thousandstudents. The Irish missionaries visitedand settled in the south of Scotland, where the north of England, in France, and in Switzerland, the memoryof an Irish scholar is perpetuatedin the name of and to St. Gall. Ireland gave bishops to Northumberland and she then receivedfromEurope the titleof "the Germany, Isle of Saints." One of her learned sons, Donatus, who succeeded Albinus as head of the college at Padua in the ninth century,left a Latin descriptionof Ireland at that time:lies "Far westward anisleof ancient fame,
blessed,and Scotia is hername, By nature is Enrolledin books; exhaustless herstore Of veinysilverand of goldenore; soil Her fruitful foreverteemswith wealth, and herair withhealth; Withgemsherwaters, withmilkand honey fields Her verdant flow, fleeces withvirgin vie Her woolly snow;
TIHE HISTORY OF LANDHOLDING IN IRELAND. Her wavingfurrows withbeardedcorn, float And armsand artsherenviedsons adorn. No savage bear withlawlessfury roves, No rav'ning lionthrough sacredgroves, her No poisonthere no infests, scalysnake the Creepsthrough grass,norfrogs annoythelake; An islandworthy its piousrace, of In wartriumphant, unmatched peace." and in
253
The venerable Bede, in his history, tells of the munificence of and liberality the Irish. He says,weremost received theScots "These visitors the willingly [thusheterms by owncharge, themat their themwithbooks, whomaintained Irish], supplied fee without orreward." teachers their andbecame
This passage of Bede should never be quoted withouta recollectionof the commentpresented by Lord Lyttleton,. not who stylesit " a most honourabletestimony, only to the to the hospitality and bounty of the learning,but likewise Irish nation." JohnSulgen, son of Sulgen who was Bishop of St. David'sin the year Io70, thus describesthe conditionof Ireland, and theirbountytowardsstrangers. He thus wrotein the life of his father :love learning "Withardent for Sulgen sought his had in The school which fathers beentaught; isle his To Ireland's sacred hebent way, Butlo ! an unforeseen impediment as he Hisjourney interrupted went; the where toward country abode Forsailing in word God, of famous the Thepeople and winds tempests His bark, adverse by tossed, on to Was forced enter another coast; the the Andthus Albanian [Scotch]coast traveller gained, remained. for successive Andthere five years on Atlength [Irish] soil, arriving theScottish toil. to himself studious He soonapplies now The HolyScriptures histhoughts engage,
o'erthe oft-read And muchhe ponders page, and glorious Wheresciencebeamedwithbright ray.
mine the carefully secret Exploring in law treasure the divine; Ofprecious
254 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY. Till thirteen and yearsofdiligence pain Had made himaffluent heavenly in gains, And stored amplemindwithrichsupplies his Of costly goods and sacredmerchandise; name, Then,havinggaineda literary In highrespect learning, for homehe came, His gathered storeand goldengainsto share friends followers and there." Amongadmiring
The late Rev. ArthurWest Haddan, in an articleupon the Scots (Irish) on the Continent, whichwill well repay perusal, of the race of scholars, who fromthe sixth to the speaks tenth century went forth from Bangor and Lindisfarne upholding Greek learning and philosophic speculation, assertingthe freedomof the will, believing in the existence of the Antipodes, by far the best astronomersof their time, who well nigh anticipated the theory of Copernicus. This remarkable and interestingschool followed in the wake Of intofamous societies at Luxeuil, St. St. Columbanus forming into minorfoundations at Gall, and Bobbio, and branchingoff Reichenau,Disentis,Remiremont, Lure,Jouarre, Faremoutier, Fontenelle,and Jumieges. Lagny, Hautvillers,Moutier-en-Der, Mr. Haddon says of Ireland: " In thegradual of in she development thePapal power remained herisolation standing a of unknown of to proof thenovelty theories in the Church earliertimes, livinginstance whathad formerly a of been heldfor an not absorbedbytherising of waters the truth, island thetwelfth indeed, Papacy,until, century." A curious though well-authenticateddiscussion as to the position of the Irish Church occurred at the Council of Constance, A.D. 1414 :"Therewasan ancient custom those of in councils voting 'Nations, by as itwascalled. Four'nations' were France, acknowledged-viz., Spain, and werenot'kingdoms.'Each was Germany, Italy. These'nations' of had a collection several They thelists; and kingdoms. independent found thateach'nation'comprised or eightkingdoms, six whose they were ofeachother.Atthe Council Constance, of independent governments
whichwas heldA.D. 1414,the King of Englandclaimedthatthe English
be as a should acknowledged a separate 'nation,' having voteoftheir and owninthecouncil. The Kingof Francewas very jealousat this, his to ordered ambassadors protest againstit in the council;their
255
protestis givenin the appendixof the councilto whichhe had referred. The ambassadorsinsistedthatEngland had alwaysbeen reckoned part of the German'nation' in all general councils; and they maintained thatit oughtto be so still,for, England had onlytwenty-five as bishops, it was absurd that so few should have a separatevote in the council. The ambassadorsof the Englishkingwereheard in reply, theydid and notdenyeitherof the above statements; theysaid, in answerto the but fewnessof theirbishops,that the Irish,who had sixtydioceses,were unitedwiththemin the'Anglican nation,' and taking theWelsh,and in some Scotch bishops who joined with them,therewere I10 bishops that England had always altogether. And in answerto the statement been countedpart of the Germannation, and nota nationin itself, they did notdenyit; on the contrary, seemedto admitthatthiswas true; they the as butthenthey quotedSt. Albert Greatand Bartholomaeus follows:' That the wholeworldbeing dividedinto threeparts, viz.,Asia, Africa, and Europe; Europe is dividedinto fourkingdoms-first, Roman; the the the of third, kingdom Ireland,which secondly, Constantinopolitan; the kingdomof is now translatedto the English; and the fourth, Spain. Fromwhichit appearsthatthe KingofEnglandand his kingdom and themostancientkingsand kingdoms all of are of themosteminent of the whichprerogative kingdom France cannotobtain.' Such Europe, of was thedefence theambassadorsofEngland. Theydid notresttheir but the of claim upontherights England itself, on herinheriting ancient in of Ireland; and thus England obtained dignity Europe and rights in influence Christendom her union withIreland. For this defence by having been heard by the Council of Constance,they decided that England and Ireland unitedshouldvote and rankas a separatenation, in thusgivingthem an influence the councilwhichthe King of France lost if England and which would have been wholly to prevent, sought of had stood alone. As an appropriate acknowledgment their obligation in to Ireland,the 'Anglican nation' was thoroughly represented that councilby 'Patrick,Bishopof Cork."'
as I have endeavouredas briefly possible to convey a correct idea of the land systemof this period,which comprised the and during latterportionIreland nearlyeighteencenturies, was renowned for its learning and civilization. The Irish people naturallyrevertto this portion of their historywith both English and and later writers, pride and satisfaction, and excelare disposed to do justice to the humanity foreign, of the Brehon code of laws and the tanistry lence system of landholding.

PART II.-THE SCANDINAVIAN OR MIXED PERIOD.
THE comparatively peacefuland prosperousstate of Ireland the which existed underthe Tanistrysystemof landholding, was Brehon social code, and the sway of Christianity, broken in upon by the incursionsof the Scandinavian sea robbers. They were called Esterlings or Ostmen, and also Galls, or foreigners. Their piratical expeditions commenced about the end of the eighth century, and whilst they infested England and France, Ireland did not escape. Their first invasionswere made in small parties,forthe sake of plunder, and theywere frequently repulsed. By degreesthe invaders, eitherby force or treaty, obtained sortiesmall settlements. had no The Irish,though too prone to predatoryincursions, no national armament, united force to meet the disciplined hosts thrownupon their shores. Ireland had enjoyed such a state of peace, that therewere no fortified places, no baronial and hence it was easily overrunand ravaged. residences; But the people rallied,and waged a not unequal war withthe invaders,who failed to establisha dynastyin Ireland,though they did so in Normandy and England. The aboriginal English succumbed to the Anglo-Saxon, but the Irish resistedand defeatedthe Danes. shocks of their invasion fell with great severity The first a people without central government, none of whose upon could bringinto the fielda forcenumericallyequal chieftains to that of theinvaders; theyweredefeatedin detail. The Irish chieftainand the Tanist were both elected by the sept which t4ere was no spontaneouslyupheld theirauthority;therefore need of the feudal castle withits band of armed men. The services of the tribes were not compulsory. The AngloSaxon thane, or earls, surroundedtheir dwellings with a moat or ditch,they were approached by a drawbridge, they and gates,theywerefurnished witha portcullis wereprotected with armed men, and from the lofty keep the watchman in gazed with unweariedeye over the country orderto detect the approach of a foe and give timely warning of danger,
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The Celtic chieftainneeded none of these safeguards. The or clans mighthave wars with neighbouring otherclans, and in warlike expeditions, but the rights of might engage individualsbecame so mergedin the general interestsof the clan as not to produce the evils which arose from the rule of petty chiefs. This comparative confidence arbitrary and had its own peculiar evil; the countrywas unprotected, when invaded, either by the Danes or the Normans, there were fewfortified places to retardtheirmarch. The rapidity with which these invaders overspread the nation is attributedby Sir John Davis to the absence of castles and fortified places. He wrote,and " Thoughthe Irishry a nationof greatantiquity, wanted be have receivedthe Christian and neither norvalour, though wit they and wereloversof poetry, above 1,200 years faith music,and since, and all kindsof learning, were possessedof a land in all things to did for strange be related, they necessary thecivillifeofman,yet, some fewpoorreligious or neverbuild any housesof brick stone, of before reign KingHenry though were the housesexcepted, they II., and before sincetheconquest hundred lordsoftheIrishmany years by attempted theEnglish. Albeitwhentheysaw us buildcastles of the somefew their pilesfor captains the borders, erected they upon I dare boldlysay thatneverany particular person, country, yet or before since,did build any brickor stonehousesforhis either accordestates obtained but habitation, such as have lately private did of ingto thecourse thelaw of England. Neither any of them or settlevillagesor towns, in all timeplantanygardenor orchard, for makeanyprovision posterity." We have here the pictureof a nationenjoyingall that coneitherto the wants or luxuries of life,and yet in the tributes justice enjoymentof laws whichpromotedsuch commutative that at a period when nearly the whole of NorthernEurope castles,the residences of spoilers was studded with fortified the and oppressors, Irish people enjoyed their"poetry,music, and all kinds of learning;" they "possessed all thingsnecessary for the civil life of man," and yet were free fromthe continuedapprehensionthat some neighbouringlord would
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258 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF swoop from his eyrie, and seizing their lamb in his powerfultalons,bear it to his hold. The debauch and riot which disgraced the baronial hall, and debased alike the were unknownamid the purer knight and the man-at-arms, life of the Celts, who,actuated by noblerpurposes,cultivated their own minds and then became missionaries, carryingto the outer world the sublime truths of Christianityand philosophy. In the year A.D. 795 the first attack of the Danes upon the coast of Ireland was made. They laid waste the island of Rathlin,offthe coast of Antrim. In 798 they attacked the coast of Ulster,and in 802 set fireto the monastery Iona, of and destroyed many of the monks. In 807 they effected a landing in Ireland, and penetrated as far as Roscommon, which they then destroyed,laying waste the surrounding us country. The French annals inform that in A.D. 812 :" The fleetof theNormans attackedIreland(the island having a oftheScots),after battle had beenfought withthe Scots,and no small part of the Normanskilled,returned home in disgraceful flight." Father Walsh thus expresses his sorrowat the devastation of the Danes :in "There was no monarch Irelandnow (the ninth but century) thesaddest ever had or heathen interregnum any Christian people enemiescould wish. No more king over the people but that barbarous nowtheislandofsaints, nor Turgesius. No more heathen mart literature.No moreBeauchun of (Bangor)to be seen,but in ashesnowa secondtime, theholymonks all thereof murdered the by cruelDanes,and buried its under rubbish. No morethemonastery at of Fionbaur, Cork,at which conventual and monks, together 700 them at with seventeen devoted bishops, one timewholly themselves life. to a contemplative No morethatwonderful cloister all for of visions communications St. Mochada,at Ruthin and under angelical and no than oo of themost first, thenat Lismore, containing fewer monksforsanctity remarkable thathave everbeen of any age or the nation. No more celebrated cellsof Maghbile, any at all of or
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so many the holyplaces echoingforth continually praisesof God. schools of Dundaleagthghlus, No more the renowned Armagh, or or or Lismore, Cashel. No morea university, academy, college of learning all theland,norforeigners in to or coming admire study in them." These cruelties of Turgisius were avenged by Olchoban Mac Knee, who was at firstAbbot and Bishop of Emly, but was afterwardsraised to the throne of Cashel or Munster. In 846 Emly was invaded, and the residence of the bishop attacked. This roused the spiritof the warlike bishop,who attackedand defeatedTurgisius. The cruelchieftain gathered his adherentsand again attacked and expelled the Primate, Foraina, and his clergy,and burned the place. He was attacked by Melsiachlin,King of Ireland, and defeated and killed. Colgan says that duringthe several invasions of the twice laid waste,and Danes, Armagh was six timesplundered, thirteentimes burned. Kells was five times ravaged and times thirteentimes burned. Kildare was ravaged fourteen and burnedten times; Clomacnoise was burnedeleven times times; and Cork was ravaged five and plunderedtwenty-three times and set fireto seven times. In 853 the NorwegianPrince Amlave (whose name is also came to Ireland, accompanied by his written Olaffor Auliffe) brothersSitiu and Ivar. One of them built Dublin, another Limerick,and the thirdWaterford. They became converts or and to Christianity, Olaff, Saint Olaff,gives his name to one of the parishesand a churchin the city of Waterford. In the beginningof the tenth centurythe power of the Danes received a check. Flan Sivima was then King of Ireland; he repeatedlydefeatedthe Danes. The uncultivated dared to show lands began to be tilledagain, and Christianity its face once more,and the seminariesof learningbegan to withnew vigour. Cormac,King ofMunster, collected flourish whichare knownas and compiledthe Irish historicalrecords, and built the beautifulsmall church on the Psalterof Cishel, the Rock of Cashel called Cormac's Chapel. In his reignthe Northmen or Danes returned,and after his death they
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attackedIreland withfresh Cork,Lismore, vigour. Waterford, felttheirfury. They again spread misery and Agaboe first variousparts of the isle. During this and desolationthrough the war betweenthe Irish and the Danes was waged century with varying success, until at length they were defeated by Brian Boroimheat the battle of Clontarfin 1014, at whichhe and his son Morogh, and his grandsonTuriogh,were slain. were Churches, schools, and other religious establishments roads and bridgeswereconstructed erectedand rebuilt, through and the public highwaysput into repair. The the country, lands, too, which had been usurped by the Danes were restored to their original proprietors, the pagan foreigners from them. being expelled of The necessity defending themselves from invasion foreign led to changes in the social system of the Irish,and to the of disturbance that orderwhichprevailedforcenturies. Force was required to repel force; hence organisms arose quite foreignto its ancient institutions. The existence of armed ambidisciplinedbodies which sprungfrominvasionfostered tion that led to schemes of conquest and disorder. Those who had taken up arms to defend their rightsbecame themselves aggressors. There was no sufficiently strong central to repress violence; hence disorder and confusion authority prevailed to a greaterextent than formerly. The presenceoftheforeign elementacted like a cancerin the and led to the further interference strangers, of and system, unhappilythe religiouselementplayed an importantpart in and aggravated the evil. The IrishChurch these transactions maintaineda semi-independent existence,and enjoyed until a ritual almost identicalwiththe Eastern the twelfth century or GreekChurch. The invaders, to however, havingan affinity themselvesunder the bannerof the Latin the Normans, placed Church. When William of Normandy secured the English aside the Saxon prelates, he throne thrust and placed Lanfranc, an Italian, in the see of Canterbury. The Danish settlersin Ireland,being of the same race as the Normans,seized upon of the opportunity winningfor themselvesforeignaid. The
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citiesofDublin,Limerick, Waterford almostsimultaneously and elected bishops, but,instead of having them consecrated in Ireland or in connection withthe Irish Church, they sent them to England, and thus established an Episcopacy in Ireland, not in connection withthe Irish Church,and givingthe see of over Armagh. Patrick, who was Canterburya pre-eminence chosen Bishop of Dublin in 1074,went to England to be consecrated by Lanfranc,Archbishop of Canterbury, and made the following of obedience:profession " Whoever not to overothers to presides ought to scorn be subject to in but makeit hisstudy others, rather humbly render God's name to hissuperiors obedience which expectsfrom he the thoseplaced elected underhim. On thisaccountI, Patrick, to prelate govern the metropolis Ireland,do offer of reverend father Dublin, thee, of and Primate Britain Archbishop theHoly Church of of Lanfranc, and I promise obey of thischarter my profession; to Canterbury, in thee and thy successors all things to appertaining theChristian religion." The submissionof even a portionof the people in Ireland to the rule of the Norman tempted William I. to invade of Ireland,but death preventedthe fulfilment his intentions and delayed that event. The period of Danish irruptions was, however,like the seedtime, in which, amid apparent defeat,the ploughshare and the harrow tore the social system asunder and spread seeds destinedto affectthe entire system. Nor were other influences wanting. The Irish Churchheld, on variouspoints, more in accordance with the Greek than the Latin dogmas Church,and some historiansassert that the authorityof the was not as implicitly Roman Pontiff acknowledgedas in other and parts of WesternEurope. In Northumberland in France were denounced for holding views difthe Irish missionaries ferentfrom those of the Latin Church. The Irish archbishops did go to Rome for the pallia. Indeed, Cardinal Barnabo goes so faras to declare that the Irish,at this period, were schismatics. Some of the Irishecclesiastics,who derived weredesirousof securing theirordersfrom Canterbury, greater
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OF 262 TRANSACTIONS THE ROYAL HISTORICAL SOCIETY. and one eminentprelate died in Switapparentuniformity; zerland on his second visit to Rome to promote this object. These negotiations led to the visit of Cardinal Papire, or Papeson, who came to Ireland as Legate in 1148,and in I 15I and fourpalls were summoneda council of 3,000 ecclesiastics, solemnly received from the Pope by the Archbishops of Armagh,Dublin, Cashel, and Tuam. At the same time the celebrationof Easter was adjusted accordingto the usage of the Latin Church. This was the natural outcome of the electionof bishops by the Danes and their consecrationby at the Archbishopof Canterbury. Unfortunately, this juncthe pontifical tiara graced thebrowsof the onlyEnglishture, man (Nicholas Brakespeare)who ever filledthe highest office in that Church, and some historians assertthat he went so far as to confer the sovereigntyof Ireland upon the English monarch. I have seen what purportsto be the Bull of Pope Adrian IV., in whichhe claims that all theislandsuponwhich " Christ,the Sun of Righteousness,hath shone, belong, of to right, the see of St. Peter's,"and proceeds to give Ireland to Henry II., on conditionthat he would " establishtherights of the Holy Roman Churchand pay Peter's pence." Adrian IV. was elected Pope in the same year (1154) that Henry II. succeeded to the kingdom; the Papal Bull is dated I 155. Its who authenticityis denied by some later Catholic writers, even if it were issued,it became inoperative, accordingto say, canon law, as it was not acted upon withina year; but older authoritiesadmit its authenticity and validity. Matthewof an Westminster, ancientwriter, says :" Aboutthesametime, solemn Henry, King of England, sending to ambassadors Rome,requested Adrian(who had recently been made Pope, and whosefavour confidently he hoped to obtainas that Ireland in beingan Englishman) he wouldlicensehis entering and a hostile and manner, allow him to subduethat country bring inhabitants holding faith Christ a more to back itsbeastly the of in and inducethemto becomemoredutiful children manner, seeming of of theChurch Rome,exterminating monsters iniquity the of that in were be found thecountry, which to requestthe Pope graciously
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the and sent the monarch following letter, granting compliedwith, thesanction desired." Then followsthe letter. Cardinal Pole, in a speech to Parliament in the reign of Queen Mary, 1554,said:-was an Englishman, tendency add to the to "That as Adrian the madehim willingly and dominion England of accede to the power ambassadors." madeby Henry's request adds :Matthewof Westminster towards Michaelmas the same year, " King Henry,therefore, (of in in with 1155), held a Parliament Winchester, whichhe treated the his nobles concerning conquestof Ireland; but because the of the was thing opposedtothewishes hismother Empress (Matilda), time." to was thatexpedition putoff another Henry became occupied with his continentaldominions, and became embroiled in the feud with the Church which eventuatedin the murderof St. Thomas-a-Becket(the Archbishop of Canterbury). These events delayed the projected invasion. The Irish kings and chiefswere aware of Henry's and theirknowledgemay have broughtabout the intentions, events which subsequentlytook place. No great pretence could be assigned for such an invasion as Henry contemand except upon plated. Ireland was entirelyindependent, therewas not a pretextforsuch an outrage religiousgrounds forward but eventswere hurrying which upon her nationality, ultimate subversion of her institutions and the led to the of destruction her independence. The Scandinavian incursions did not, as far as I can discover,make any alteration in the systemof land-holding. They ravaged and destroyed,but did not attempt to build up, and, with the exception of some seaports and cities,they do not appear to have acquired permanentterritorial rights. and Tanists,continued The Irish Septs, withtheirChieftains to own the land, and the Brehon Code was their legal system.
264 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY. PART III.-THE NORMAN OR FEUDAL PERIOD.
in IT happens not infrequently political affairsthat events of an apparently secondary character tend to promote primaryobjects unattainable by direct means. The opposition of the queen mother, the Empress Matilda, the of indifference the English nobles, and the feud with the Church, seemed to have put an end to Henry's ambitionto add Ireland to his otherdominions; but an event in no way connected with the main design brought about that which had seemed improbableand remote. Dermod MacMorrough, and inhuman King of Leinster,whose tyrannical, profligate, made him an object of terror and hatredto almost disposition every one who knew him, had provoked the vengeance of RoderickO'Connor,King of Ireland, who expelled himfrom his dominions,A.D. I167, in consequence of hisviolentabductionof the wifeofTiernanO'Ruarc. This IrishversionoftheIliad, led had desertedhimin the Dermod,whose immediatedependants hour of his distress, seek the aid of Henry. That monarch to was, in France, and Dermod followed him,claiming his aid, and promising that ifhe would restorehim to his kingdom he would become Henry's vassal. Dermod was not king of Ireland, he was one of the subordinate kings, and having been guilty of crime, was lawfully expelled from his dominions. If he became vassal to Henry,that monarchwould -supposing he legally stepped into Dermod's position-have been subordinate to the King of Ireland. But Henry, however desirous of reaching the object of his ambition, was personallyunable to accompany Dermod to Ireland. Wishof of ing to avail himself the opportunity gaining a footing for the English in Ireland, he gave Dermod the following letter:Duke of Normandy, Earl of "Henry,King of England, Aquitane, Anjou,&c.
' Unto all his subjects, English, Normans,Welsk,and Scots,and toall nationsand peoplebeinghis subjects, greeting, " Whereas Dermod, Prince of Leinster,most wrongfully he in(as
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cravedour aid,therefore banished of his own country out formeth) forso much we havereceived intoourprotection, him as grace,and will untoourcommand, whosoever within nation, our favour, subject aid and help himwhom have embraced ourtrusty for friend as we therecovery hislands, himbe assured ourfavour licence and of of let in that behalf." This document proves that Dermod only claimed to be "Prince of Leinster,"and the aid to be given him was "for therecovery his land." Notwithstanding of Henry's lettersof license, Dermod did not for several months succeed in obtaining succour. At lengthhe prevailedon Richard,Earl of Pembroke, generally called Strongbow,to espouse his himhis daughterEffaor Eva in marriage, cause, by promising and with her the inheritanceof the princedom. This bait was swallowed by Pembroke. According to Irish law, which Dermod could the princedomwas an elective office, not bestow. Strongbow secured the aid of Robert Fitzstephen and Maurice Fitzgerald, Hervey of Mountmorris, and Maurice de Prendergast, on condition of ceding to as them the town of Wexfordwitha large adjacent territory soon as by their assistance he could be reinstated in his the act of rights. The invasion of Ireland was, therefore, private adventurers; and as Dermod could not legally give them more than he possessed himself,the giftswere liable to all Dermod's obligations in relation to the lands. Fitzstephen and Fitzgerald landed in I170 with 390 men. and landed in Strongbow with Raymond le Gross followed, Dublin Leinster was overrun, Waterford 23rdAugust, I170. was captured, and Dermod was restoredto his princedom, which he did not long enjoy,his death taking place in May, the I171. It does not appear that he ever performed act of bestowed the order vassalage, or that Henry,as his superior, whichwas part of the feudal system. Strongof investiture, bow assumed the principalityof Leinster as the dower of his wife; this, though consonant with English feudal law, was contrary to the Brehon Code, and, had right prewere vailed, Strongbow's claims,and those of his followers,
OF 266 TRANSACTIONS THE ROYAL HISTORICAL SOCIETY. subject to the obligations of that code, as they represented Dermod. Henry became jealous of the risingpowerof Earl Strongbow, and he addressed the following inhibition to the English in Ireland:-no henceforth thatfrom and "We, Henry, &c., &c., forbid inhibit or shalltraffic pass into from place in ourdominion Ireland, ship any and likewise thatall oursubjects upontheirdutyand allegi. charge from thenceto Englandbefore ance whichare there shallreturn of and Easternextfollowing, pain of forfeiture all their lands, upon theperson disobeying be banishedfrom our land and exiled to so forever." who did not wishto lose his English possessions, Strongbow, or to exchange them forthose he acquired in Ireland, sent the following replyby Sir Raymond le Gros to Henry. I land " Mostpuissant Prince, dreadSovereign, cameintothis my leaveand favour faras I remember) aid with to (as yourMajesty's what havewonwith sword, I servant Dermod the MacMorrough; your whatwas given life me,I giveyou; I am yours, and livingat your command." This answer appeased Henry; the Earl remained at the head of the English and native forces. But Henry was of not satisfiedwiththis acknowledgment his position. He out an expedition; called his vassals around him and fitted and in October, 1171, he landed at Waterford with 500 knightsand 4,000 men-at-arms. historian,gives the Roger of Hovenden, a contemporary account of Henry's proceedingsin Ireland:following the "On thenextdayafter comingof the King Englandto of, on of Octoberthe I8th, the festival St. Ireland, namely, Monday, he Luke theEvangelist, and all his armiesproceededto Waterford, his an Episcopalcity. And therehe foundWilliamFitz-Adholm, othersof his own and and RobertFitz-Reinard, certain brother, him from he whom senton before England. And therehe family, and fifteen (until there cometo himthekings nobles had days stayed Andthere cameto him, his ownorder, King the of thecountry). by and the King of Ossy and the of Corkand theKing of Limerick
THE HISTORY OF LANDHOLDINGIN IRELAND. 267 and King of Meath,and Reginaldof Waterford, almostall the who of the princes Irelandexcept KingofConnaught, said thathe was of right lordof all Ireland. The King of England,howthe couldnot by any possibility to ever, attempt crushhimin war at in consequenceof the floodedstate of the that wintry season, and and mountains desert woldsthatlaybetween country therugged therecame to theKing of Englandin the place them. Moreover all above mentioned thearchbishops, and of bishops, abbots all Ireland, him kingand lord of Ireland,swearing and they received for fealty and of to himand hisheirs, thepower reigning overthemforever, and thereupon gavehimtheir of they papers[in theform deedswith the sealsattached], after exampleset themby the clergy and the of and princes Irelanddid in like manner aforesaid receive kings for Kingof England, lordand kingof Ireland,and became Henry, to hismen,and swore all fealty himand to hisheirs against men." Henry left Waterfordfor Dublin on the 2nd November, II171,and arrived in that city on the IIth November. He remained in Ireland until the 17th April, 1172. No battle while he was in the country. He was receivedby was fought the Irish princes more as a protectorand patron than an enemy. Henry assumed the title of Lord of Ireland, and one blow, or buildingone castle, or departed withoutstriking one garrison. Such was the conquest of Ireland by planting as Henry II., whichwas as unjustifiable it was inefficient. in the time of James I., Sir JohnDavis, Attorney-General thus describesthe excursionof Henry II. into Ireland :without one or out "He departed ofIreland striking blow, building the one left or one castle, planting garrison among Irish; neither he morethanthosehe found thereat his himone truesubject behind over,whichwere onlythe Englishadventurers spokenof coming towns Leinster in and Munster, whohad gainedtheport before and someslopes land thereunto of adjoining, partly Strongby possessed and the with Lord of Leinster partly plaininvasion bow'salliance by and conquest. The partof thisislandwhichwas occupiedby the roundDublin,and some of adventurers, consisting a smalldistrict thesouthand east coasts,was taken underthe direct portsalong the of dominion theKing of England, placedunder feudal law,-and
268 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY. in on the organized thefeudal system; restremained thejurisdiction chiefs under Brehon Irishlaw." and of thenative the or Roderic O'Connor, King of Ireland, who had expelled Dermod forhis conducttowardsO'Ruarc, Prince of Breffrey, but in to refused at first acknowledge Henry's sovereignty, I 1175, four years later,he entered into a treatywith Henry, whichcommencesin the following manner:-on "This is thefinal agreedto at Windsor the octavesof treaty of our St. Michael's Day,in theyear gracei 175,between LordHenry, son of theEmpress and Roderic,King Matilda, King of England, the of of Connaught, through agencyof Catholicus, Archbishop Abbotof St. Brendan, MasterLaurence, and Tuam,and Cantordes, of Chancellor the King of Connaught. "To wit,that the King of England grantsto the aforesaid Roderic his liegeman,King of Connaught, long as he so serves him, that he shall be a king holding under faithfully him and readyto servehim as his own man, and that he is to retain possessionof his presentterritories, firmly as and that before ourlordtheKingof England as he heldthem peaceably him cameintoIreland, and that is to have under he paying tribute; and his superintendence jurisdiction wholeof theremaining the part so of thelandand itsinhabitants, as thatthey shallpaytheir tribute in full theKingof England his to shall through hand; and thatthey and ownrights, that present the stillenjoytheir holders shallcontinue remain to holdin peace,so longas they faithful theKingof Eng. to and and dues land,and payhimfaithfully in fulltheirtribute other the owehimthrough hand of the King of Connaught, which they the in and of saving all things privilege honour ourlordtheKing of and his 'own' [i. e., therights, of King Roderic]." &c., England The tributeconsistedof one hide for everytenthhead of cattle killed in Ireland. The king reservedto himself Dublin and its appurtenances, all Meath and Leinster, besides Waterfordand Dungarvan,whichhad been the territories of Dermod, King of Leinster. Roderic was King of Ireland, and the treaty proves that Henry limited his claims to that part of the land of Ireland of which Dermod MacMorrough was prince,and even in
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that portionHenry did not acquire any rightsnot possessed by Dermod, and the inferior estates of the chiefs and members of the clans were not disturbed by the proffered vassalage. The tributelevied on the rest of Ireland was a sort of black mail to avert injury, but the fact that Henry nevervisitedConnaughtor acquired possessionof theland was pleaded in an action in Galway, in the reignof Charles I., when the jury found that Henry had not acquired these lands. Ireland was, according to the MultifinanMSS., divided as followsforfiscalpurposes :Munster Leinster 31 Connaught30 Ulster 35 I8 Meath Total
70 cantreds, 2,Ioo town lands, I6,8oo carracutes.
,, ,, ,, ,,
930 goo 1,050 540
,, ,, ,, ,, ,,
7,400 7,200 8,400 4,320
,, ,, ,, ,,
184
5,520
44,120
,,
Each carracutewas about 120 acres, and this would make thegrazingland 5,254,400acres ; the area undertillagein 1875 of was 5,332,813 acres; the number cattle thenwas 1,656,000; in 1848 it was 1,435,291. The tribute paid by Roderic O'Connor would make the number of cattle in Connaught 270,000,in 1841 it was 298,877. One of the reasons which conduced to Henry's ready receptionby the Irish princeswas the hope that it would tend to secure better order and tranquillityin the realm. Radulphus de Diceto, Dean of London, under King John,A.D. I197, says:who flourished the "When thepeople of Irelandsaw how wholly mindof the and was setuponpromoting establishing peace,he Kingof England evil treatneither countenanced deeds by indulgent beingone that of sentence deathagainst mansummoned nor any ment, issuedhasty for cameto himsuing peace." they by hisedict, Jan. 1172 Henry convened the Council of Cashel, of which Giraldus Cambrensisobserves:-
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in of "While theislandwas therefore silent thepresence the thus a tranquil themonarch, influenced a calm, by enjoying wisely king, to of desire magnify honour God'schurch theworship the and strong in of a of Christ thoseparts, summoned councilof theentire clergy Irelandto meetat Cashel." Amongst the enactmentsare those for the payment of tithes, the honouring of churches with due devotion, and constant attendance at them, labouring by every means to reduce the state of the Churchto the model of the Churchof England. Some time afterthis council,King Henry sent to Rome to Pope Alexander III. a copy of the decrees passed at it and a copy of the deeds of submissionto himself,as king and lord of the newly-acquiredisland which he had received fromthe archbishopsand bishops, and the pontiff confirmed him and to his heirs to "by his apostolic authority the kingdomof Ireland accordingto the formof the deeds of the archbishopsand bishops of Ireland." Pope Alexander all wrotethreeletters, bearingdate the 2othSeptember, 172, I one addressed to the prelates of Ireland, another to Henry II., and another to the Irish nobles. The firstis addressed to Christian, Bishop of Lismore, legate of the apostolic see, Galasius, Archbishopof Armagh, and the archbishops and bishops of Ireland. He tells them that he is thankfulto and triumph, God forgrantingto Henry such a noble victory and urges them to be very zealous in supportinga monarch a who was so " magnificent personage and so trulydevout a son of the Church,"and that they should assist him to the and best of theirpower in retaining possession of the country, if any of the kings,princes,or other people of the country should attemptto act in oppositionto the oath of fealtythey had made to King Henry,they,the bishops of the Church, and then, to were first admonish him concerninghis offence, if their admonition were unheeded, to visit him with the of terrors ecclesiastical censure. "Be sure," says he, "that execute our commands with diligence and earnestness, you that as the aforesaid king, like a good Catholic and truly Christianprince,is stated to have paid to us a pious and
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benign attention in restoringyou, as well the tithes as the other ecclesiastical dues, so you likewise may yourselves maintain,and as far as in you lies, procurethat othersshall maintainwhateverprivilegesappertainto the king'pdignity." The letterto King Henry praises himforhis efforts extend to the powerof the Church; he asks the king " to preserveto us in the aforesaid land the rightsof St. Peter; and, even if the said Churchhave no suchjurisdiction thatyourHighness there, should assign and appoint it forher." In the third letterto the Irish princes,he tells them how happy he had been to learn that they had wisely submittedto such a potentand that magnificent king as theirsovereignlord ; a circumstance theircountry, he tells them,much greaterpeace, as promised and improvement, and he exhorts them to be tranquillity, the good subjects of King Henry, and to observe carefully fealty and allegiance which they had promised on their oath to that prince. In 1177 Henry II., having obtained license fromPope Alexander III., appointed his son John,King of Ireland in the presence of the bishops and peers, and in I186 Pope Urban sent over two legates into Ireland to crownJohn,the king's son, there. The relativevalue of Ireland and England in the reign of King John may be judged by the fact that when that miserable king by an instrumentor charter granted to England and the whole kingdomof Ireland, and took back an estate thereof by an instrumentsealed with a seal of lead, he undertookto pay 700 marksa year forEngland and 300 marks a year for Ireland. Ireland was then in point of inhabitedhouses consideredto be to England in the ratio of two to seven. Ireland at the presentday is to England in point of income as one to fourteen, though the population is about in the ratio of one to four. The recently published State papers, 1171 to 1251, do not contain any grant of land in Ireland during the reign of Henry II. Many were made in the reignof King John. The first, July
InnocentIII. and his successorsthe whole kingdom of
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6, I 199, was made to the KnightsTemplars. It was followed by two grants to Walter Cross, one of the two islands of Asmudesty and Clere, for which the King received forty marks and the service of one and a-half knight's fee,the second gave one knight's fee at Karventhi and Kalke, two knights' fees at Kildeyn in the cantred of Huhene, and of fiveburgages withinthe walls of Limerick. Sept. 6 of same year there is a grant to Hamon de Valoignes of the two cantredsof Hochenel in the land of Limerick to hold of the and the same date a grant King by theserviceof ten knights, to Thomas Fitzmaurice of five knights' fees in the fee of Eleuri and cantred of Fontunel,and of fiveknights'fees in the feeofHuamerithin Thomond,on the river Shannon,and a burgage near the bridge on the left within the walls of Limerick. The same date thereis a grantto William de Naas, of the castle of Karaketel, with five knights' fees in the fee of Syachmedth and cantred of Huhene and also of a burgage within the walls of Limerick. The same date a grant to William de Burgh of Aspatria, of the rest of the cantred of Fontunel, remainingin the king's hands,by the service of threeknights' fees. The same date of a grantto Lambekin Fitzwilliamof a fee of five knights in the cantred of Hueme, and a burgage withinthe walls of Limerick,and the same day a grantto Robert Seignel of one knight's fee in Chonchuherdechan, the fee of Huerthern,and a further grant of fourburgageswithinthe walls of Limerick. Sept. 12, same year,thereare grantsto Elyas Fitz-Norman, of the vill or adlongport, the river Sur, to Humphreyof on Tekeull of Kilduna, with three circumjacent knights' fees and a burgage in Limerick. Sept. 12. Grant to Milo de Brit of twelvecarracutesof land at Long in the fee of Othohel and cantred of Huheme. Then follow at intervals grants to Gerald Fitzmaurice, GeoffreyFitzrobert,John de Gray, Hugh Hose, William de Burgh, the Knights Hospitallers, Meyler Fitzhenry, to the Cistercian monks, to Thomas Abbot of Glendalough, to the abbey and monks of Blessed Mary, in Mayo, to
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de de Geoffrey Costentus, Geoffrey Marisco,Richardde Felder, and many others. In most cases a finewas paid to the king as well as the knights' service. Thus I find, Jan. 12, 1200, William de Breonne gives the king 5,000 marks tha the may have the honour of Limerick. The king retains in his demesne the city of Limerick, the gift of all bishoprics and abbeys and all royalties, the cantred of the Ostmen and the Holy Isle, and the tenements and service of William de Burgh,three cantredsin Cork to hold by the serviceof ten knights. To Philip de Prendergastof forty knights' fees,of which fifteenwere between Cork and Insovenoch. To William Marshall,Earl of Pembroke,of his land in Leinster, to hold by service of Ioo knights. To Murad O'Brien of cantred in Thomond, and to Richard de Burgh of all the land of Connaught which William his father held of the King. One of the early English settlersaffords instanceof the an way in whichtheywere disposed to act towardstheoccupiers. Henry de Londres was not only Archbishop of Dublin and an Papal Legate, but he was also Justiciary, officeequivalent to that of Lord Lieutenant. After his instalmentas archbishop (1212) he summoned all the tenants and farmersof the see to appear beforehim on a day appointed,and to bring withthem such evidences and writings they enjoyed their as holdings by. The tenants, at the stated time, presented themselves,and showed their evidences to their landlord, "mistrusting nothing;" but beforetheir faces, on a sudden, he cast them all into a fire secretlyprepared. This fact amazed some that theybecame silent,and moved othersto a strong choler and furiousrage that they regarded neither place nor person, but broke into irreverent speeches: "Thou an archbishop! nay, thou art a scorch-villain." Another drew his weapon, and said, "As good for me to kill as be killed, for when my evidences are burned and my livingtaken away fromme I am killed." The archbishop,seeing this tumultand imminent danger,went out at a back door; his chaplains, registers, and summonerswere
19 T
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well beaten,and some of them leftfordead. They threatened to firethe house over the bishop's head; some means were taken to pacifytheiroutrage,withfairpromisesthat all hereaftershould be to theirown content: upon thistheydeparted. See Ware's "Annals of Ireland." King John,as well as his son, Henry III., attemptedto introduce English laws into Ireland, but their policy was frustratedby the barons,who preferred leaving the native Irish to be governedby theirown laws and customs,which,being framedfora peaceful,contentedpeople, gave more power to the strangersto persecute and oppress them; for, as the King's courtswere not open to the Irish,who continuedto be governedby the BrehonCode, the Normans could,ifthe blood of a relativewas shed, plead that he was only an Irishman, and thus be secured fromhumanvengeance. The unfortunate the inhabitants, perceiving advantage to be derivedfrom English laws, petitionedEdward I. to admit them to the protection of Britishlaw, and offered him a purse containing8,ooo marksas an acknowledgment return thedesiredbenefit. in for Twice theyurged the appeal, and twice the king received it into favourable consideration,but evil influencesprevailed, and the heartlessrulersof Ireland succeeded in defeatingthe of good intentions the King and the just claims of an oppressed people, and in 1315 "Donald O'Neyl, King of Ulster and rightful successorto the throneof all Ireland,and the princesand nobles of the said land, as well as the Irish people," addressed Pope JohnXXII. They say,"That Pope Adrian, Englishman, the falsesuggestion an at of madeoverto himthe dominion ourrealm," of II. Henry say, they of honour without offence ours, of " we weredespoiled ourroyal any and handedoverto be lacerated teethmorecruelthanthoseof by anywildbeasts." " For since that timewhenthe English, upon of under maskofa kindof outward the occasion thegrant aforesaid, and crossed borders ourrealm, the of wickedly sanctity religion, they with and haveendeavoured all their act might, with every oftreachery could employ, exterminate completely eradicate to and to our they the and peoplefrom country, bymeansof low crafty scheming they
THE HISTORY OF LANDHOLDING IN IRELAND,
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have so farprevailed without us us, against thatexpelling violently, habitations to of from spacious our regard theauthority anysuperior, in and patrimonial us inheritance, have forced to repair, the they and hopes of savingour lives, to mountainous, swampy, woody, barren themselves theutmost their to of spots; and exerting power to drive from us and soil them, to seizeuponevery partofournative for in to themselves, ; asserting, theextreme contrary all right falsely whichblinds them, that we have no rightto any free frenzy in of dwelling-place Ireland,but that the whole property the said country of to belongs entirely right themselves." The documentgoes on to expose the treatmentwhich the Irish received,and begs the Pope to appoint Edward Bruce to be king over them,and prayed that, out of a regard to the Pope would "forbid the justice and public tranquillity, to of England and ouradversaries molestus for thefuture; King to us at least,kindlyvouchsafe executefor upon themthedue or, of thisappeal, requirements justice." The Pope, on receiving to addressed a remonstrance King Edward, in which he reminds him that God hears the groans of the oppressed,and urges the expediencyand advantage whichwould arise to the his king from lookinginto the wrongsof the Irish and grantthem redress,so as to cut off all occasion of just coming plaint. The Irish princesand nobles also complainedto Pope John XXII. of the exclusion of Irishmenfrompositions in the and referred the decreeof the Councilof Kilkenny, to Church, whichtotallyexcluded all Irishmen fromordination or admissioninto the religiousbodies. The inhabitants were classifiedby the Duke of York, in his despatchesto Richard II., as follows:-" Ist. Liegemen, goodsubjects. 2nd. Irishenemies or who had to and in a state submitted thegovernment, whowere, never indeed, warfare withit. 3rd. Rebels,who,from of almostconstant being the had against subjectsby birthand submission, takenup arms lawsand institutions." State,or at leastrenounced English In the reignof Henry III. the rightsof ladies withregard
to the succession to land became the subject of legislation, and an Act was passed (14 Henry III.) whichsays,and Lord ofIreland, &c.,&c. Certain "Henry,KingofEngland the to havemadeapplication the kingrespecting of knights Ireland sisters in Ireland,whether younger the descent land to sisters of or should homage theeldersister to theking. The reply to do was, and held as co-partners, each thatbythe customof Englandthey be shall that custom to do should homage theking; anditenacts this to ourdominion Ireland, be straitly of kept." throughout proclaimed The sovereigntriedto check the lawlessnessof the English settlersand the king's officers; but as their object was to obtain the lands of the Irish people, the statutes of the sovereignbecame a dead letter. The 17thEd. II., A.D. 1323, enacts,lands in Ireland shall not purchase " I. Thattheking'sofficers to it and ifanydo thecontrary,shallforfeit theking without licence; and hisheirs. take of offices victualsof shallnotbycolour their " 2. Thatthey hiswill. against anyperson or shallnotarrest " 3. Thatthey shipsor other goodsofstrangers their and ourownpeople,but thatall merchants others maycarry of forth our realmof corn and othervictualsand merchandises and Ireland into our realm of England, unto our land of Wales, under penaltyof double damages,and shall also be grievously by punished us." Edward IV. sought to break down the existence of the clan or sept,which,as joint owner of the land of the tribe, continuedto maintainits existence,and a law was passed in the fifth year of his reign,which sought to abolish the clan names. It enacted,in the "That theIrishdwelling amongst English the countiesof and Kildare, Moth(Meath),Urul(Louth and Monaghan), Dublin, but be no should longer calledbythenameof their sept or nation, of either his a takeuponhimself severalsurname, each one should or of or or trade faculty, of some quality his bodyor mind, of the one from so he placewhere dwelt, as every to be distinguished the other."
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of It is not my object to writea history Ireland, or to give any account of the unhappy incidents which arose fromthe weakeningof the ancientsystemof laws and the absence of a' competent jurisdiction. Sir John Davis, whose leanings were towardsthe English,observes,and "Though HenryII. had the titleof sovereign lordoverthe which thetrue are in Irish, did he notputthosethings execution yet
and over them; to punishand pardonmalemagistrates officers of factors;to have sole authority makingwar and peace,and the II. marks sovereignty, KingHenry had notin of which like,are true all theIrishcountries; theIrishlordsdid still retain theseprebut theirpeople by the to rogatives themselves;fortheygoverned and Brehonlaw; theymade theirown magistrates officers, they all countries within their several and ; pardoned punished malefactors madewarand peace onewith without another and controlment, they thisthey notonlyduring reign HenryII., but afterwards did the of in all times, evenuntil reign Queen Elizabeth." the of The only object of the English appears to have been to and few crossed to Ireland for acquire territories themselves, except rude and barbarouswarriors.The English adventurers the and colonies planted took land from Irish,yet they, well as of as the Irish,stroveto be independent the Crown,and rose in frequently rebellion. In this state of disturbancemany of the Irish were anxious to obtain the protectionof English laws. The Brehon Code did not impose capital punishment, and if an Englishman murderedone of the mere Irish he claimed to be tried by Brehon law; while, if an Irishman murderedan Englishman, it was avenged with the utmost rigour. of " As longas they Irish)wereoutof theprotection English (the Davis," so as every Englishman might law,"saysSirJohn oppress, how controlment, was it possiblethey spoil,and kill themwithout thanoutlaws enemies thecrown England and to of should other be ? of wouldnotadmit themto the condition subjects, If theking how learnto acknowledge obeyhim as theirsovereign and couldthey ? withanycivil men,no or notconverse commerce Whenthey might 19+
marks of sovereignty. For to give laws unto a people; to institute
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enter intoanytown city should or without whither lives, periloftheir and live in a wildand they but intowoodsand mountains, there fly manner? For,in a word, English barbarous would neither the in thembylaw,nor in war root them bythesword; out peace govern in must not in sides they needsbe pricks their eyesand thorns their end tilltheworld's ? " Where such a writeras Sir John Davis speaks of rooting out an entirepeople withthe sword,we may easily fancythe feeling that actuated more ignorant and barbarous men. The object of the adventurerswas to acquire the lands of the Irish; they were harassed and tormented. Maurice Fitzthomas, of Desmond, began that system of extorting coin and livery, called in the old statutes a damnablecustom, the imposingand taking of whichwas made high treason. in "Besides,"saysDavis,"the Englishcoloniesbeing dispersed of wereenforced keep continual to every province this kingdom, roundabout them, which guardsupon the bordersand marshes of were likewise as guards consisting idle soldiers imposed a continual burthen and the upon the poor Englishfreeholder tenants, great lordsand captains had powerto imposethischarge when English and where of were pleased; many thepoorfreeholders glad to they a landsto holdthe restfree giveuntotheselords great partof their from extortion; many and that notbeingable to endure that others, intolerable did freeholds returned and to oppression, utterly their quit colonies England. BythesemeanstheEnglish grew poorandweak, the richand mighty; they lordsgrew for though English placedIrish tenants thelandsrelinquished theEnglish, upon by uponthemthey leviedall Irishexactions, withthemthey married and fostered, and madegossips; so as within age theEnglish, one bothlordsand freebecamedegenerate mereIrishin their and in holders, language, their in arms and manner fighting, all other of and customs apparel, their whatsoever." of life This sad pictureshows how a noble people, intelligent and and oppression. highlycultivated,sunk undertyranny One of the Lord Deputies, in the reign of Henry VIII., gives the followingpicture of that portion in the possession of the English:-
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be of officershislandof Ireland outofsaidlandof Ireland thecomby their of mandmenttheKingorhisHeirs, Lieutenants, Deputies, Justices, of thattheir or theKing'sCouncil Ireland, lands,Tenements, Rents, whatsoever theirsaid or or by possessions Benefices, Offices, other or or into King'shands hisheirs, shallnotbe seized taken the nor absence said be offices and if so fortune anyofthe officers taken that their void; return or that at or ill-doers enemies, they, their bypirates anyother or of said their offices, notwithstanding any grant gift thesaid may occupy or in and madeto anyother offices absence, ifanyservice person their and for the be be gift madetothecontrary, sameshall void holden none,"
* The 25thHenryVI., cap. 2, and 25th HenryVI., cap. 9, runsthus, or "Also it is ordainedand agreed thatif any of the King'sliegemen
"The Pale is overrun withthievesand robbers. The soldiers so beggarly they that the couldnotlivewithout oppressing subjects. the Leinster harassedby the Tooles,Burns, was &c., but especially of was almostdesolate. Munster, the dissencounty Kilkenny by ruined. sionsbetween Earls ofDesmond Ormond, almost the was and the Earl of was almostwastedby the feudsbetween Connaught Clanricarde and Ulsterwas in open and McWilliamOughton, rebellion with ShanO'Neil." One of the State Papers addressed to King Henry VIII. about the year 1515, thus describesthe land of Ireland,it "If theland of Irelandwereputoncein order, wouldbe none in thana very and of other delicious, all pleasaunce respect paradise, as was landin this of world. Inasmuch there never regard anyother smallor great, or who wouldavoid therefrom stranger alienperson, if the by his will,notwithstanding misorder, he mighthave the meansto dwelltherein. How muchmorewouldbe his desireto if dwelltherein the land wereonce put in order." was The puttingin orderwhichappears to be contemplated the land of the Irish the handingover to the English settlers owners. The historyof land in Ireland is almost an unvarying tale of spoliation. to lands held in Absence fromIreland was sufficient forfeit whichtheselands wereheld that country. The condition upon in impliedresidence,forit was found necessary, the reign of to pass an Act by whichsuch lands would not be Henry VI.,* in forfeited cases in which the person was employed upon the king'sbusiness.
The English settlers, descendantsof the Roman barons, the became less and less civilized,and they were describedin the i. language IHibernus ipsis Hiberniores,. e., more Irish than the Irish themselves. Rapine, injustice,and spoliation were the rule of these lords; and suffering, and destitution the misery, lot of the Irishpeople,who weredeprived theprivilege the of of mild laws of the Brehon code, whichwere unequal to control Norman violence,and who did not receive the compensating advantage of the English common law; and the difficulties of the Irish were aggravatedby an enactment whichmade the head ofthesept answerablefor one ofthe sept,and bound every him to producehim whenchargedwithtreason, or felony, any other heinous crime; thus the innocentwere made to suffer withthe guilty, and the lands of the whole sept were liable to fine for the non-jurisdiction one of the real or supposed of members of the sept. They were punished without trial, judgment preceded inquiry,and innocence and guilt were confounded in indiscriminate retribution. VIII. altered the title borne by his predecessors, Henry and by an Act passed in the thirty-third of his reign, that year monarchtook "for himself, heirsand successors,the style his and title of King of Ireland." The Act provided that "the king shall enjoy that style and title and all other royal preeminences, prerogatives,and dignities, as are united and annexed to the imperialcrownand realm of England." Yet the Irish asserted their rights to their land, for Spencer relates: " That theIrishhavealways their ownlaw,which the is preserved Brehonlaw, and thatat the Parliament held by Sir Anthony St. in of Leger,Lord Deputy the reign Henry VIII., theIrishlordsin for reserved unto themselves acknowledging Henry their sovereign all theirformer and titles, tenures, privileges, seigniories invalidate, and thattheirancestors had no estatein anylands,seigniories, or hereditaments their own lives, all the Irish for longerthanduring do holdtheir landbytanistry, which no more a personal is but estate for life, is tanist, reason his that that is admitted he thereunto by by theelection thecountry." of
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Henry VIII. appears to have grappled very resolutely with one of the evils of English rule-the non-residence the of nobles. This, thoughthe subject of previouslegislation,was not enforced withvigour,but an Act in relation theretowas of passed in the twenty-eighth his reign,whichis so quaint in its language, and so descriptive the state of Ireland,that I of its preamble at length. It declares,quote
thisthe King'sland of Ireland heretofore and in due being inhabited, obedienceand subjectionto the King'? most noble progenitors, Kings of England,whoin those days in rightof the crownof England had the same land, hath prinwithin great possessions,rents,and profits and into rebellion, decay,by occasionthat grown ruin, desolation, cipally within same land as wellby the lands,and possessions great dominions, as and otherwise descended the King's grants by course of inheritance to noblemenof the realm of England, and especiallythe lands and of dominions theearldoms Ulsterand Leinster, in whohavingthe same within said realm boththey their and heirsbyprocessoftimedevising the ofEngland,and notproviding thegood orderand.surety thesame for of in their absenceand by their suffered there, their possessions negligences thoseof the wild Irishmen, being mortaland naturalenemies to the to KingsofEngland and English dominion, enterand hold the same the in without thereof thebeginning not resistance, conquestand winning but onlycosttheking'ssaid nobleprogenitors chargesinestimable, also thoseto whomthe said lands were given, then and many years after said land noblydefended same againstall the King's the abidingwithin and also keptthe same in suchtranquillity good order said enemies, and as the KingsofEnglandhad due subjection theinhabitants of the there, were duly answered, laws obeyedand oftheir revenuesand regularities within realmof England,and afterthe giftor as in anyother where the descentof the said lands, possessions,and dominionsto the persons and their heirsabsented out themselves of the said land aforesaid, they within realmof England, pondering regardof Irelanddwelling the not nor the thereof, towns, ing thepresentation castles,and garrisonsappertaining untothemfellin ruinand decay,and the English inhabitants there, and justiceand by compulsion those of Ireland of in default defence of the wereexiled, lost dominions whereby saidking's progenitors as welltheir as and subjections and theirsaid revenuesand profits there, also their or the and enemies re-adopting attaining said lands,dominions, possesby and puissance sions wereelevatedintogreatdominion, strength, power, of of forthe suppressing theresidueoftheking'ssubjects thislandwhich time to time theyfrom whereby they dailyever since have attempted,
and as that 28th VIII., c. 3.-Forasmuch itis notorious manifest Henry
282 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY. and encroached whichhathbeen the usurped upontheking'sdominions, cause of the miserable estatewherein is at the presenttime, it principal and thoselands and dominions negligence in defaultof the very and by after inheritors, this mannerlost may be good exampleto the King's the of and majestienowbeingintending reformation thisland,to foresee thatthelike shallnotensuehereafter. It enactsthatthe lands prevent of Thomas Harvard,Duke of Norfolk, Lord Berkely, co-partner and his in Carlow, Old Ross, and other manors;thoseof GeorgeTalbot,Earl of and Waterford Salop in Wexford, the heirs general of the Earl of and of Ormonde;theAbbotof Furness; theAblbot St. Augustine's, Bristow; the Priorof Chad Church, the Canterbury; Priorof Lanthony;thePrior of Cartmel;theAbbotofKentisham;theAbbotand Priorof Oswy; the Abbotand Prior of Bath,and the Masterof St. Thomas Acres, should of forfeit their lands to the king,savingtheright all suchas dwellin the land exceptthosenamed,and savingalso the rightof John Barnewall, and Lord Trimleton, PatrickBarnevale.
Mr. Smith,in his workon the Irish,alludes to the following curiouscircumstance. He says (p. Ioo),when the septsof O'More and "In the reignof Queen Mary, the could O'Connellwereattainted, septspleadedthatthe chieftain he which hadnever forfeit septs' the notbyattainder lands, possessed. at havebeendifficult thattimein thecase of any It wouldperhaps thatthe land to of thegreatforfeituresmeet thisplea. A feeling wereunjustly and was still theirs, thatthey keptoutof their possesin thesevast confiscations the sions, seems long to have survived minds thenative of proprietors." Ireland, and that the obligation imposed upon the sept and fromthose whichexisted between Crown were quite different and lord underthe feudal system. The latter was liegeman and did not possess the sept was merely an elected officer, the land of the clan. the that elapsed from landing A reviewofthe fourcenturies of the English to the accession of Queen Elizabeth leaves by upon the mind the impressionof evil unmitigated a single tintof good. The landing of the English cannot be elevated into the ranksof conquest,inasmuchas ittookplace upon the
was continued in This showsthatthesystemof Tanistry
the and support;while, chiefof tie a mutual of dependence
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invitation a wicked prince,to reinstatehim in the of dominions whichhe had been evictedforhis crimes. from The Englishmonarch as accepteda subordinate position an Irish Princeor chieftain, and despoiledhis own subjects. The acquisition partof Irelandadded no lustre strength. or of to the EnglishCrown; on the contrary, like all great it and its crimes, brought own punishment, was a sourceof weakness. It opened a fieldfor truculent English nobles, wars withthe who,uncurbed the sovereign, waged petty by them their lands. The of Irishfor purpose despoiling the of the Baronsbecame rebels. The Irish became disorganised, to the clanswereforced into a warlike quite foreign position and of of possessions, genius theBrefion code,in defence their the head of armedforcesimitated the the chiefs placed at to evilexampleof theEnglishbarons,and tried acquirethe of rightover the joint property the sept. Two hereditary of had the full systems jurisprudence yet prevailed, neither of the administrative of the Crown. The support power Irish were refusedthe advantagesof education,and forbidden to ministerin the Church. The object of the was lustedfortheposgovernors spoliation;theadventurers ofthe landsof Ireland; and as there session couldbe neither rebellion forfeiture nor was neither nor there where authority the Norman invadersresorted brute force; to obligation,
"lauv lauder enaughter,""the strong hand uppermost,"
of became the mottoof one of the most influential the the and swayed policyofall theothers. To Englishfamilies, of the this was superaddedthe bitterness religiousstrife, aid of foreign powerwas evoked by the rebellious English of and subjects theQueen. The Desmonds,the Geraldines, the De Burghos and roseagainstthe Crown, sought only not the aid of the more powerful Irish chieftains, such as the O'Neils, but also that of Spain. An armylanded in the south, and it required20,ooo English troops to subdue Ireland. The Crown seized upon the lands of its own subjects, and Elizabeth rewarded Sir Walter Raleigh, Edmund Spencer,and othersby the gift forfeited of lands.
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Resgestce nglorum Hibernia, havesaid,A in to
But the Irish executive did not wish for order or peace, and one of Elizabeth's ministersis stated by Lascelles, in
"Should we exertourselves reducing in thiscountry English to andconsequence. order civility must it and soonacquire wealth, power, will The inhabitants thus alienated will from be England; they either cast or castthemselves thearmsof someforeign into power, perhaps state. Let us rather themselves into a separate and independent conniveat theirdisorders; a weak and disordered for people can never succeedin detaching of themselves thecrown England." from mode of proTrue policy would have suggesteda different scheme was that of repeopling ceeding. Elizabeth's favourite it by an English colony; she issued letters to everycounty in England. encouragingyoungerbrothersto become underlands of the takers in a plantation of Ireland. The forfeited Desmonds were 574,628 acres,ofwhich244,o80 were granted to the undertakers, and the remainderwere restoredto such of the formerpossessors as had been pardoned, and leases were made to the native Irish tenantry; thus those whom Elizabeth wishedto settle in Ireland defeated her intention, and instead of resident proprietors they became absentee middlemen." Four Acts,the IIth, 13th,27th,and 28th of Elizabeth,were the passed forthe purpose of confiscating lands of the O'Neil of in Ulster,those of the Knight of theValley in Munster, the White Knight in Munster,and of Viscount Baltinglass and the Desmonds in Leinster. Spenser,who lived forsome years in Ireland, thus speaks of the country :as and beautiful sweet "And sureit is yeta most country anyunder with stored rivers, replenished heaven;being goodly throughout many withmanyvery withall sort of fishmostabundantly; sprinkled will carry lakes like littleinlandseas,that and goodly islands sweet adorned withgoodly evenshippes wood,evenfit upon theirwaters, as so houses and shippes, commodiously, thatif some for building wouldsoon hopeto be lordsof had them, in they princes theworld
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thesea and erelong of all theworld; also fullof good portsand us to as havens, opening uponEngland, inviting to come untothem, see whatexcellent can that commodities country afford; besidesthe soilitself that most fit fertile, to yieldall kindof fruit shallbe committed most mild temperate, and the and thereto, lastly, heavens though somewhat in towards west." the more moist theparts Ireland was invadedby the English forthe avowed purpose of improving conditionof the people of the country; it the had been held forabout fourhundredyears,and let us ask, what was its condition what were the benefitsit received? ? The principalwitness I shall produce is an Englishman,the of gentleauthorof the " Faerie Queene,"who by thegift Queen and resided formany years Elizabeth became an Irish settler, upon the bordersof the countiesof Cork and Waterford. He says :that "1Notwithstanding the same was a mostrichand plentiful as to yet country, theywere brought such wretchedness thatany stonyheartwouldrise at the same. Out of everycornerof the camecreeping forth for woodsand glensthey hands, their upontheir of them; theylooked like anatomies death; legswould not carry out they spakelike ghosts crying of theirgraves;theydid eat the couldfind when deadcarrions, them, andoneanother yea, happy they as carcasesthey soonafter, insomuch thevery sparednot to scrape out of theirgraves; and if theyfounda plot of watercresses or therethey flocked to a feastfora time, not able as shamrocks, yet was there so to continue withal, thatin short spacethere nonealmost and plentiful and a most left left, populous country suddenly voidof manor beast." Nothingcan be more sad than this pictureof the state of in Ireland. The same writer 1596 added,"cTherehave been diversgood plots devisedand wise counsels about thereformation thatrealmof Ireland. But of cast already, it is the fatal destiny thatland, that no purposes of theysay whichare meantforgood will prosperor take good whatsoever effect." Spenser thus recommends husbandry:-
which unto "Becausebyhusbandry, necessary supplieth us allthings for it we food, live, provided whereby cheerfully thereforeis to be first for. The first we to therefore, ought drawthese new tithing thing, mento ought be husbandry.First, to becauseit is themosteasyto be learned, the labourof the body,next,because it needingonly is most and lastly, because it is the enemy warand most to natural; as thepoetsaith,hateth unquietness;
* * * "Bella execratacolonis;"
for and of of the husbandry, being nurse thrift thedaughter industries and labour, all detesteth thatmayworkher scath, and destroy the travailof her hand, whose hope is all herlives,comfort unto the plough." As to the increaseof cattle in Ireland he says,wish weresome ordinance "I would, made therefore, that there thatwhosoever kineshouldkeepa them, amongst keepeth twenty for all and plough going, otherwise menwouldfallto pasturage none to husbandry, whichis a greatcause of thedearth nowin England, and a cause of the usual stealths Ireland. For look intoall in countries thatlivein such sortby keeping cattle, you shall of and find thatthey bothvery are and uncivil, also greatly barbarous and the the givento war. The Tartarians, Muscovites, No rwegians,the the Armenians, manyothersdo witness same,and and the Goths, since the desire war therefore, nowwe purposeto draw just from of and tumult, theloveofpeaceand civility, is expedient abridge to it to theirgreatcustom herding, to augment of and trade tillage of their and husbandry." The State Papers describe the conditionof Ireland in the
following language (vol. ii., p. 14) :--
" Whatcommon folkin all theworldis so poor,so feeble, evil so beseenin town field, bestial, greatly and so so and oppressed trodden underfoot, faresso evilwithso greatmisery, withso wretched and life as thecommonfolkof Ireland Whatpity herewherewith ? is ! to report there no tongue is thatcan tell,no personcan write. It far and the of passeth theorators Musesall to show order thenobles, and how crueltheyentreatthe poor common people. What God to suffer land,whereof his he dangerit is to theking against
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bearsthechargeand the cure temporal, be in thesaid misorder to so long without his remedy! It were morehonourto surrender claimthereto, make longer and no than thereof, to suffer prosecution his poor subjectsalwaysto be so oppressed, all the noblesof and thelandto be at warwithin of themselves, always shedding Christian bloodwithout The herdmust account hisfold, the for and remedy. for his." king The effect the injusticewhichhad been perpetrated of and heaped up withcontinuousand increasingviolence upon the Irish people was most deplorable. The dissemination their of embittered their and drove themintohostility minds, property to government. The refusalto admit the Irish to holy orders deprived the Church of the power and influencewhich it the lot of mighthave used to repress injustice and to soften those who were exposed to it. The constantly recurring rebellions of the Anglo-Norman nobles, who threwoffthe power of the Crown and assumed the title and state of princes, the wars between the Desmonds, Geraldines, and tended to create and aggravate the confusion. The Butlers, was thedegradationof the native consequence of ill treatment it became demoralized and degraded. I cannot do race, better to illustratetheir position than quote the words of Edmund Burke,who wrote,menpatient underthedeprivation all therights of "To render of whichcould give thema knowledge humannature, or everything was of forbidden.To render rights, nationally feeling those humanity it thatit shouldbe degraded." fit be insulted, was fit to Elizabeth had a long and most severe struggleto establish in her authority Ireland,and at the end of a war of upwards of seven years' duration,in whichas many as 20,000 English troops were engaged, a finalcapitulationwas agreed upon, but she did not live to see it perfected; it was signed a few worn out with this long days afterher death. The country, and tedious war, was at length prostrateat the foot of the sovereign. The Plantagenets leftto a new dynastythe duty
of reconstruction restoration, and and we shall see how that trustwas fulfilled. PART IV.-THE STUART OR CONFISCATIONPERIOD.
AFTER the rebellionand assassinationof Shane O'Neil, 1568, his estates and those of his adherents,being most of the seignoriesand countiesof Ulster,were confiscated the I Ith by Elizabeth, c. i., 1569, and vested in the Crown. The lands were given to English adventurers, they found it imposbut sible to hold theirgroundagainst the originalinhabitants. In 1588 O'Neill, the Earl of Tyrone,and other lords of Ulster, enteredinto a combinationto-defend theirlands and religion. This war lasted fifteen years, and terminatedin 1603. No crueltieswere spared by the Lord Deputy Mountjoy to put them down. He made incursionson all sides, spoiled the corn,burntall the houses and villages, and the people were reduced to live like wild beasts. Ireland,whichhad a population of two millions, was reduced to one-half. "The multiSir John Davis, " being brayed as it were in a tude," says mortarwithsword,famine, and pestilencetogether, submitted to the English Government." All commoditieshad risen in value: wheat had advanced from 36s. to 180s. per quarter; oatmeal, from5s. to 22s. per barrel,and other things in proof portion. The submission in 1603 led to the settlement Ulster by James I. In I586 the large estates of the Earl of Desmond in the counties Cork, Limerick, Kerry, Waterford,Tipperary,and Dublin, comprising 524,628 acres (statute measure), were escheated,not forany overtact of treason,but on account of his quarrelswiththe Earl of Ormonde. These large possessions were a strong temptation to the Irish governors,but in they found some difficulty passing a bill of attainder. A claim was also set up by theCrownto thewholeofConnaught and the county Clare, and an arrangementwas made with the Lord Deputy, Sir JohnPerrott, that the lords and gentlemen of that districtshould surrenderthem to the Crown
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and receiveback, Royal Letters Patent. The surrenders were and the patents were not delivered. James I. not enrolled, and re-convey issued a commissionto receive the surrenders the estates, by new patents, to the lords and gentry,they in paying ?3,ooo fortheirenrolment chancery. Though the was duly paid the enrolment was not made, and the money claimed the land. The titleswerepronounced defective, king and the whole districtwas adjudged to vest in the Crown. This unfortunately resulted either from the negligence or wickeddesign of the officials, based, as Carte observes, " on made use of a mere nicetyof law whichoughtto be tenderly in derogationof the faith and honour of the king's broad seal." The lords and gentry put no faithin the king's sense of equity; they appealed to his necessities,offereddouble and to pay a fineof i1o,ooo. The theirannual compositions, scheme of plantaand the western was entertained, proposal tion was suspended. The jurors were coerced or bribed into findingfor the were rewarded. Sir Crown. The judges and law officers Arthur Chichester largepossessionsin Ulster, whichremain got in his familyto the presentday, his descendant, the Marquis of Donegal, having large estates in Ulster. Sir John Davis witha grantof4,ooo acres in the same province. was rewarded "No means of industry," says Leland, "or devices of craft were left untried,and there are not wanting proofs of the most iniquitouspracticesof hardenedcrueltyor vile perjury and scandalous subornation, employedto despoil the fairand of proprietor his inheritance." unoffending "Where no grant appeared, or descent or conveyance in pursuanceof it could be proved (says Carte), the land was adjudged to belong to the Crown. All grants immediately taken from the Crown since Ist Edward II. till Ioth Henry and the lands of all VIII. had been resumedby Parliament, out and of all thatweredriven by theIrish, were, absentees, by various acts, vested again in the Crown. . . . Nor did even later grants affordfull security; for if there was any former grantin being,at the time they were made, or if the U 20
patents passed in Ireland were not exactly agreeable to the fiat,and both of these to the king's original warrant transif from mitted England-in short, therewas any defectin exor the tenure, any mistake in point of form,there pressing was an end of the grantand the estate underit." lands in Ireland,were The following statutes, confiscating passed :of 3 Philipand Mary, and4, cap.i.,ii. Disposing LeixandOffaly.
,, ,, Elizabeth, ,,
,,
,,
,,
the Sep.4,cap.ii. Restoring EarlofKildare.
wastegrounds cap. iii. Diversand sundry intoshiregrounds. 2, cap. vii. Restitutionof the hospital of St. John's. Eustace. 3, cap. iii. Lands ofChristopher of ,, , cap. i. Attainder Shane O'Neile. of ,, cap. iii. Thomas Knight theValley. of cap. viii. Attainder SirOswaldeMassingbred. 2, cap. v. Attainder of all indicted for treason,fromApril I, I569, to AprilI, 1571.
,,
,, ,,
Sep.2,cap.v. John Fitzgerald,theWhite Knight. of 28,cap.vii. Attainder Earl of Desmond. Attainder John of Browne and others.
of 27, cap. i. Attainder JamesEustace.
Mr. H. C. Hamilton,F.S.A., AssistantKeeper of the Public to Records,in the introduction the Calendar of State Papers, 1509-1573, says:" The powerof the English Irelandhad so much in decreased in thattheold Irishsystem governmentclansor of in VII.'s time Henry smallnations revived wasin full had and force the separate throughout and we greater of the land. Of thisgovernment its workings part havethebestand most in ampleaccounts thesepapers. The wars of Henry and revealthewholestrength and VIII., Mary, Elizabeth, weakness thesystem, showhowthesuperior of and combination of theEnglish, of from supported continual by supplies menand money over and home, prevailed thecraft daringof the nativechiefsand favourite generalissimos."
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In thearguments thecase ofTanistry, James I., itwas in 5th "thatKing Johnonlymade twelvecountiesin Leinster alleged and Munster, viz., Dublin, Meath, Uriel, Kildare, Catherlough,Kilkenny,Wexford,Waterford, Limerick, Cork,Kerry, and Tipperary. But the other provinces and territories of this kingdom, whichare now divided into twenty-one counties at large,being theninhabitedforthe greaterpartbythe mere Irish,were out of the limitsof shiregroundfor the space of 300 years afterthe makingof the firsttwelve counties,and therefore was impossiblethat the common law of England it could be executed in these counties and territories:for the law cannot be put in executionwherethe king's writs cannot or run,but wherethereis a countyand a sheriff, othermember of the law, to serve and return king's writs." the It was further urged that if a conquerorreceivesany of the native inhabitants into his protection, and avoweth them for his subjects,and permitteth themto continue their possessions and remainat peace and allegiance, their heirs shall be adof judged in by good titlewithoutgrantor confirmation the conqueror. The example of the Norman conquerorand that the of Wales wereinstancedas proving legalityof pre-existing customs and rights, and it was urged that James I., by special proclamationin the thirdyear of his reign,declared and published that he received all the natives of Ireland into his royal protection, which it was clearly resolved by that the common law of England was thereby established in universally the kingdom of Ireland. The commonlaw of England, however,recognisesexisting customs,and, should have legalized tanistry. English Sovereignsand statesmenappear to have feltthat the Irish chieftains who had never held theirlands from the Crown, owed it no fealty. Many descendants of English into Irish families,and adopted the settlers intermarried to Tanistrysystem. An effort substitute holdings under the Crown forthe Irish system was made by the xii. Elizabeth, and freecap. 5 ; it enables " the pretendedlords, gentlemen, holdersof the Irishryand degeneratedmen of English name,
292 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF to theirlands to holdingtheirland by Irishcustom, surrender the Queen, and of taking estates by letters whichshall patent, be good and effectual the law, against all persons except in those who have estate,title,or rightto the said lands by the due course of the commonlaw." In I604 Sir ArthurChichester was appointed deputy,and, says Lascelles,"A Commission GRACE of was issued underthe greatseal of the to of England,empowering chiefgovernor accept surrenders those Irish lords who held of old on precarious tenure. Many embraced opportunityconverting tenure lifeintoone this their for of offee,which should descend theirchildren. Others to dreaded the of and were impatient to legal consequences theirlate treason, receive their So this possessions a newinvestiture. that commisby sioninstantly a of surrender lands. No chieftaincies produced general were now granted letters of by patent; no officers justiceto be or an stationed, to exercise Irishseigniory.The lord by his new withthe landsfoundto be in his patentwas to be invested only immediate as a domain. His followers wereto be conpossession firmed theking their in subordinate tenures condition on of by only the in Irishexacpaying lordthestated rent, place of all uncertain wereto follow tions. Building, planting, cultivation, civilization ahd in thetrain these of towns were induced to regulations.The trading follow the exampleof the lords; theysurrendered old and their with and as acceptednewcharters suchregulations privileges tended to keepthem subjection theCrown." in to " King JamesI.," says Plowden, ioo, Ior, "in ordermore pp. to the both of the Irish and their effectuallysecure fulldominion a which usually is property, published proclamation, calledtheComof mission Grace, securing subjects Ireland for the of all against claims oftheCrown. The chief was to governor thereby empowered accept thesurrender thoseIrishlordswhostill of heldtheir estatesor possessions the old tenure tanistry gavelkind, to regrant of or and by themin fee simpleaccording the Englishlaw, thusconverting to theestates lifeof the chieftains estatesin fee simple. For for into thisthere were twoobvious reasons Statepolicy: the of first that was in case offorfeiture whole the wouldbecomevested theCrown in by the attainder theforfeiting of if person; whereas bythe old tenure of tanistry remained tenants life, estatescould onlyin for the they
THE HISTORY OF LANDHOLDINGIN IRELAND. 293 suchcases be forfeited the Crownforthe lifeof theforfeiting to whichbythe old and men, person, wouldbe savedto all remainder Brehon tenure werein fact wholesept. The secondreasonwas, the thatbyvesting fee simplein the chief, whichby the courseof the to it law English madeit descendable his eldestson or heir-at-law, excluded septfrom reversionary the distributive of the rights gavelkindupon thedeathof the tenant life, for and thusdetachedthe withtheir and chief bondof interest union from common that septs and consequence, neceswhich and them firmness, consistency, gave under power more the thus them threw disjointed immediately sarily or to of the sovereign, leavingonlyone freeholder tenant the by werelimited the to to in Crown eachsept. The newgrants thelords and actual possession, thoselands whichanyof his lands in their Irishtenures thechief of wereconheld followers on very precarious also to firmed the mesne to tenant, in fee,upon paying the lord a interest theservices in to certain rent, equivalent thelord'sbeneficial of or tenure his tenant. Thus was the whole landedinterest of and of newmodelled, the exampleof thesenew patentees Ireland townsand corporations the Crownwas followed many trading by surrendered old and accepted their the they throughout kingdom: from charters theCrown." new in Travelling was difficult those days, and there was too holders littledispositionto preservethe rightsof the inferior or ter-tenants. The chieftainwentthroughthe ceremonyof the surrendering estate of the clan or sept,yet he was only owner with others, and got a new title to the whole joint estate. He would not immediatelyproceed to enforcehis and theoccupants, no new seigniorialrights, finding change in the patent as a confirmation of their treatment, regarded which entitledthemto the possessionof theirexistingrights, the land subject to the payment of tribute. Hence arose assertionof whichis a continuing the claim for tenant right, the ancientrightof the occupiers. The existence of patents and gave the Crown increased rightsof forfeiture, we shall see how they were exercised,and in the change of presently and were further disregarded, superiorsthe rightsof inferiors were the real ownersof the land were reduced to those who tenancyor serfdom. 20
members of the claims by the inferior Any proprietary but set aside, not by legislation, sept were, however, rudely a resolutionof the judges, in regard to which,Professor by to Sullivan, in the introduction O'Curry's Lectures,says:-all wereset aside by a judgment "In Ireland the Irishcustoms whichmorethanany othermeasure, not givenin the year 60o5, the the and excepting repeated confiscations, injured country, gave riseto most thepresent of evilsoftheIrishlandsystem." These resolutionsare reportedby Sir JohnDavis, and as they are very importantI give them in extensis; but I cannot findthat the case was argued beforethe court,or that therewas eitherplaintiff defendant. or Hill, iii.Jacobi,reportedby Sir JohnDavis," The resolution thejudges touching Irish custom gavelthe of of kind. " Firstbe it knownthatthe lands possessedby the meerIrish within realm this weredivided intoseveralterritories countries, and Irishcounty and theinhabitants every of weredividedintoseveral septsorlineages. Irishterritory was a lord or chieftain, there in "Secondly, every and a tanist who was his successor Irish apparent. And of every was or lineage whowas called a canfinny, there also a chief or sept cognationis. caput within theseIrishterritories all " Thirdly, thepossessions (before was in law thecommon of England established thisrealm it now as in or either courseof tanistry in courseofgavelkind. is) ranalways with of orchiefry, theportion landwhich with Every seigniory passed who without cameinbyelection went tothetanist, always partition it, and notby descent; but all the inferior or strong tenancies hand, malesingavelkind.Yet the estate which werepartible between the the tenants ingavelkind, had or lordhadin hischiefry, which inferior but or was not an estateof inheritance, a temporary transitory was possession. For,as thenextheirof thelordor chieftain notto the but of inherit chiefry, the oldestand worthiest the sept(as is in who removed shown thecase oftanistry), was often and expelled another was more who activeand strong thanhe,so thelandsof by of werenotpartible thenature gavelkind the male among nextheirs
THE HISTORY OF LANDHOLDINGIN IRELAND. 295 ofhimwhodiedseised,butamongall themalesofhis sep t,inthis manner:-The canfinny, chiefof a sept(whowas commonly or the at and mostancientof thesept),made all partitioners discretion; after deathof anyter-tenant, had a competent the who of portion all all thrown their land,assembled thesept, and,having possessions of into hotchpot, made a new partition all; in which he partition his did notassignto theson ofhimwhohad diedtheportion which father to had,but he allottedto each of the sept, according his These portions purparor or thebetter greater portion. seniority, werepossessedand enjoyed ties,being so allottedand assigned, was until newpartition made,which, thediscretion at a accordingly, or willof thecanfinny, to be madeon thedeathof eachinferior was and so, by reasonof these frequent transmissions reand tenant, from one portion another, of to or movals, translations the tenants of were uncertain;and the uncertainty the all the possessions causethatno civilhabitations erected, were was possessions thevery was or no enclosure improvement made of the land in the Irish was in of countries wherethe custom gavelkind in use,especially before newplanthe which to seemed be all one wilderness Ulster, tationmade by the Englishundertakers there;and thiswas the fruit thisIrishgavelkind." of bastardshad their "Also by this Irish customof gavelkind, and excludedof withthe legitimate, wiveswere utterly portions had their father and daughters notinheritable, were although dower, fromthe issue male. So thatthis customdiffered died without in of custom gavelkind Kent,in four points." and " For, i, bythecustom Kentthelandofthenature tenure of malesonly; and such the nextheirs, is of gavelkind partible among in of estate inheritance have a certain after co-parceners, partition, all their portions." to are equallywiththe " 2. The bastards not admitted inherit sons." legitimate is of " 3. The wifeof everytenantin gavelkind endowirable a moiety." and the heirsfemale of inherit, therefore "4. In default males, used in Kent hathbeen alwaysallowed of the custom gavelkind custom thelawofEngland." of and approved as good andlawful by in was agreeable several of of "But thisIrishcustom gavelkind was in use in North which of to thesepoints the custom gavelkind
296 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF and reformed the stat.of Wales,whichcustomwas reproved by made12 Ed. I. See thestat.of 34 H.. VIII., c. 28,where Rutland, the customof gavelkind Wales is utterly and divers in abolished, other of other usagesresembling customs theIrish." and "For thesereasons, becauseall the said Irishcounties and theinhabitants themfrom were of henceforward to be governed by the rules of the commonlaw of England,it was resolvedand declaredbyall the judges, of thatthesaid Irishcustom gavelkind was voidin law,not onlyforthe inconvenience the unreasonand ableness it,butbecauseit was a merepersonal of and custom, could notalterthedescent inheritance." of "And therefore thelands in theseIrish counties werenow all todescend to the course common and that law, adjudged of according thewivesshouldbe endowed, thedaughters shouldbe inheritand ableto these or this lands,notwithstanding Irishcustom usage." " Andwhere wivesof Irishlordsor chieftains claimto have the sole property a certain in the with of portion goodsduring coverture, to the power disposeofsuchgoodswithout assentoftheir husbands, it wasresolved declared all the judges thatthe property and of by suchgoodsshould adjudged be inthehusbands notin the and be to as law wives, thecommon is in suchcases." This resolutionof the judges, by the special order of the lord deputy, was registered amongsttheActs of Council ; but then this provision was added to it, "that, if any of the meer Irish had possessed and engaged any portion of land by this custom of Irish gavelkind, beforethe commencementof the reign of our lord the king who now is, he should not be in disturbed his possession, should be continuedand estabbut lished in it. But thatafter commencement his Majesty's the of reign all such lands should be adjudged to descend to him by commonlaw, and should be adjudged fromhenceforward possessed and enjoyed accordingly." This resolutionor decision,fairly carried out, would have each memberof the sept the estate in fee of the land given whichhe held at the commencement the reignof James I., of it would have remained in his familyand become an estate of inheritance, in therebyeffecting Ireland a change very
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similarto that whichtook place in France, Switzerland, and Belgium, whereby the lands owned in common became and a class, most usefulto the compossessions in severalty, was created, who are now calledpeasant proprietors, munity, but thisbreakingup of the lands in Ireland did not suit the who wished to have them designs of the English adventurers, in large lots, that they might be forfeited and re-granted. It is now almost impossibleto trace the means by whichthe decision of the Irishjudges was defeated,but it is apparent that it gave every one of the ter-tenants estate in fee an of the lands in his possession. It must be borne in mind that America, Australia, and India did not then offer fields for the settlementof English while Ireland was looked upon as the almost adventurers, only place for their migration. The existence of a large numberof small estates would not have suited the views of who desired large possessions, and found these adventurers, them more accessible when in fewhands. In 1604 Sir John Davis wroteto Cecil about the state of the Church,and we may judge from it of the anarchy of otherholdings:" Thereare tenarchbishops, underthemare, or shouldbe, and for the most part bishops at least. The Churchmen twenty the are mere idols and ciphers,and such throughout kingdom as cannotread, if they should stand in need of the benefit of their clergy; and yet most of those whereofmany be servingmen and some horse boys are not withouttwo or benefices three all apiece, forthe Courtof Facultiesdoth qualify and dispense with manner non-residence all mannerof persons, of and pluralities.For an exampleof pluralities Archbishop the of to Cashelis worthy be remembered, now in his handsfour having and Emly, and threescore Cashel,Waterford, Lismore, bishoprics, besides. Shouldcorrupt lordship and seventeen his livings spiritual if tell too much he should himhowthey disinherit churches these by beingno suchlawshereas in Englandto restrain longleases,there is of them. Butwhat the effect theseabuses The churches ? are downto the ground all parts thekingdom. and fallen in ruined of
298 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF no of no Thereis no divineservice, christening children, receiving no thesacrament, Christian or no, meeting assembly; notonceinthe no thanamongst of year: in a word, moredemonstration religion Tartars cannibals." or In anotherletterto the same statesmanhe saystwoorthree "If justice welland soundly herebutfor be executed he will and in good-faith thekingdom growrichand happy, years and willno more, thelean cowin Pharaoh's like thinks dream, loyal, realm England." of the devour fatof thehappy was the A case immediatelyaffecting question of tanistry broughtbefore the Court of King's Bench, in Hilary Term, in the 5th of James I. It is reported by Sir JohnDavis as follows:betweenMurrough "In Ejectione Firmae, plaintiff, MacBryan, of on and Cahir O'Callaghan defendant, (ancestor Lord Lismore), a to issue joined,the juryfound specialverdict thiseffect, general where entry and ejectment the viz., that the castle of Dromineen, a of is supposedto be made,lie within certain place or precinct otherwise within land calledPubli-Callaghan, O'Callaghan's country, and timeoutof mindhave been of the tenure of thecounty Cork, in and and of and nature tanistry; that all landsof thetenure nature hathbeen suchcustom within of tanistry aforesaid, Publi-Callaghan out died time ofmind, thatwhen person used and approved viz., any and of seisedof anycastles, manors, land,or tenements the nature then such castles, tenureaforesaid, manors, lands,and tenements usedtodescend, out and to seniori ought descend, havetime ofmind
of vero sanguiniset cognominis such personwho so died et dignissimo
of or seised; and thatthedaughter daughters such personso dying of werenotinheritable suchlands or timeoutof mind, from seised, them. or tenements anypartof find "The jury further thatDonoughMacTeige O'Callaghan, or of his name,was seised of the seigniory chieftainship chiefof to thecustom and of thelandsaforesaid, according Publi-Callaghan, and being so seised had issue Conogher and courseof tanistry; had issue Teige and Eleanor; Teige had O'Callaghan;Conogher to issueDonoughMacTeige theyoungerEleanorwasmarried Arl and Teige,his son,diedin thelifeofDonough O'Keeffe;Conogher
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the MacTeigetheelder; afterwards said DonoughMacTeige the elderbyfeoffment, of to law, according thecourse common executes an estate DonoughMacTeigethe younger, to theheirsmale to and of hisbody, heirsof the feoffor. remainder the right to Donough theelderdied,and Donough died MacTeige MacTeige the younger without issuemale; after death another whose O'Callaghan, Conogher of of beingthe oldestand mostworthy the blood and surname and claimedto hold it entered theland whereto into O'Callaghan, as lordand chieftain Publi-Callaghan, of to according the courseof lex seisedproest postuce. and tanistry, was thereof "'Andthey find further thatthesaid Conogher beingso seisedsurin rendered said landand all hisestate, the and interest title, right, it to Queen Elizabeth;on whichthe said queen,in consideration the of thesaid surrender, regranted said land to the said Conogher and and his heirs, one who entered enfeoffed Fagan,whoenfeoffed the of BryanMacOwen, lessor theplaintiff. "And theylastlyfindthatArl O'Keeffeand Eleanor his wife and enfeoffed theirdeathManus O'Keeffeentered died,and after the and who the CahirO'Callaghan, defendant, entered ejected lessee the and upon all thismatter jurorspraythe of Bryan MacOwen, &c. adviceof thecourt, the one " Upon which mainquestion ariseth, whether titleof viz., of or the theheirat common which defendant hath, thetitle the law, estatethe lessorof the plaintiff which hath,shouldbe pretanist, of as ferred thiscase is. And in thediscussion this questionthree weremovedand argued. points principal was of the " Ist. Whether said custom tanistry voidornotin itself, law of of abolished the introduction the common or otherwise by ? England " 2nd. Admitting it was a good custom, notabolished and that by and it common whether be discontinued destroyed the the law, by an and which fqoffment, created limited estatetail in the land, acto thecourseof thecommon so as thatit shall not be law, cording whenthe estatetail is deterreducedto the course of tanistry, ? mined ConogherO'Callaghan,who enteredas tanist "3rd. Whether estate hissurrender tail the after estate determined, by gaineda better madeto himbyletters and ?' to Queen Elizabeth there-grant patent and The arguments in this case were very lengthened
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curious. It depended in the King's Bench for the space of three or four years, and was argued several times, in the course of which the Justicesresolved:" That as Donough MacTeague held as tanist,whichwas not an estatein commonlaw, the re-grant Queen Elizabethin by of of consideration thesurrender suchestatewas void in law,and shall not be said to be in actualpossession that Queen Elizabeth as of the land by reason of the first conquest, it did not appear to had appropriated himby some reason that the conqueror selfas a parcel of his properestate,and Sir JamesLey, chief receiveth natives had laid downthatif the conqueror any justice, and into his protection, avoweththem to be his subjects,and and remain his in theirpossessions them to continue permitteth their heirs shallbe adjudgedin by good title and allegiance, peace or and their without by grant confirmationtheconqueror, shallenjoy to hathallowed landaccording therulesoflawwhich conqueror the Winchbeing chief Sir or established:but afterwards, Humphrey with the cameto an agreement justice, parties, leaveofthecourt, by division madeofthisterritory was a which reasonable them; amongst the inwhich division castleand landin question others were amongst and now,besides allottedto Cahir O'Callaghan,the defendant; severalgrants theirmutualassurance, have obtained from the they of for defective titles." king, virtue a commission strengthening by of The main fact of interestis the finding the jury that had existed time out of mind in this the custom of tanistry and thatall the lands had timeout of minddescended district, seniori et dignissimo vero sanguinis et cognominis the of who had died so seised. It was, therefore, custom a person at common law, and as such could only be altered or set aside by statute law. In 1612 James I. proceededto the settlement the of O'Neil estate in Ulster, and we have three Acts of Parliain mentof that year relating to the forfeiture the north of Ireland; but the most important incident of this reign occurred in the followingyear, when the flightof Tyrone, of and the insurrection Sir Cahir O'Dogherty, led to the of confiscation their land, amounting to 500,ooo acres, in
THE
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Donegal, Tyrone, Derry, Fermanagh, Cavan, and Armagh, and enabled James to try his plan of a plantation. Three classes of settlerswere encouraged,-undertakers, servitors, and the old inhabitants. The first class was confined solelyto the Britishand Scotch; thesecondwerepermitted take their to tenantsfromIreland or Britain, providedthey were not recusant, and the third were permittedto retain their old religion,and to take the oath of supremacy. The undertakers withthe places of most strength, servitors were entrusted the and the stationsofmostdanger, thethird class theopen country. The properties wereto consistofthreeclasses : Ist, 2,ooo acres ; the escheated 2nd, I,5oo acres; and 3rd, I,ooo acres ; one-half lands were to consist of the smallest class, and the other half divided between the two larger classes. Their estates were limited to them and to their heirs. The undertakers got 2,ooo acres, which they held of the king in capite; the servitors1,500acres,whichtheyheld by knight'sservice,and the third I,ooo acres, which were held in common socage; all were to reside upon the lands and build upon them. The undertakerswere to keep in their own hands a demesne of 6oo acres; to have four fee farmersof 12o acres each, six leaseholders of Ioo acres each, and on the rest eight families and of husbandmen, artificers, cottagers,and the others lay underlike obligations proportionately. No lease was to be less than twenty-one years or three lives. In order to assist scheme James I. created 200o baronets,who each paid a the to men in Ulster forthreeyears sum sufficient maintainthirty at 8d. per day. Such was the general scheme of this plantato tion. It was founddifficult obtain Britishtenants. Buildings were slowlyerected,the lands were let to the old natives, who offered higherrents,and the conditionsofresidencewere not compliedwith; and Sir John Davis, who was attorneygeneral in this reign,thus speaks of the English systemof government :the to " Theypersuaded KingofEnglandthatit was unfit com. the municate lawsofEnglandto theIrish, thatitwas thebestpolicy as to holdthem aliensand enemies, to prosecute and them conwith
302 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF tinualwar. Herebytheyobtainedanother and royalprerogative in which to makewarand peace at their was own pleasure, power, which gave theman absolutecommand partof thekingdom, every and goodsoftheEnglish here." overthebodies, lands, subjects One of the objects which JAmesI. had in view in the of settlement Ulster, i. e., the formation an independent of withperpetuity tenure, of was defeatedby the conyeomanry duct of the patentees, and in 1615 a commissionwas sent over from England to inquire to what extent the articles whichprohibited the undertakersfromdevising any portion of theirlands at will, and enjoined them to make to their tenants certain estates for life, for years, in tail, or in fee simple, at fixed rents, had been observed. Sir Nicholas Pynmer,one of the commissioners, reportedthat in many cases the articleshad been brokenand no estates granted by the undertakers. This reportwas shortlyafter followed by filedin the Star Chamber A.D. 1637, against an information, the Irish Society and some of the London companies,the result of whichwas a judgmentof forfeiture against the companies because they had not complied with the plantation but let their lands to the highest bidders, without articles, and withouta fixed tenure or a conditionsof improvement certainrent. The companies,thoughdisregardingthe latter of the articles,were forcedto treattheirtenantsaccordingto theirspirit, and it was held that,as the company could only an estate in perpetuity, the tenant had obtained such grant an estate,even though there was no deed to prove it, and hence arose the custom of "Ulster Tenant Right,"whichis a legitimateand legal deduction from the articles granted to who were properly the undertakers, regardedas havinggiven of theirtenantsthat fixity tenurewhichthey were bound to of give. Under thisconstruction the patents,land held without lease passed fromtenantto tenantas if it were assigned by deed, and men acquired the title without lease which the originalarticlesmeant themto deriveunder deeds. The success of the Ulster plantationsencouragedJames to attemptthe same elsewhere. Sixty-six thousand acres be-
303
tweenthe riversArklow and the Slade, which were for ages to possessed by the Irish septs,were foundby inquisition vest in the Crown; and 385,000 acres in Leitrim,Longford, Westmeath,and King's and Queen's Counties. It was found that some parts were possessed ancientlyby English settlers, who, in the disordersof the kingdom,had been expelled by the and natives; otherland appeared to be forfeited rebellion, by these lands, as the lands of absentees, vested in the Crown. Old titleswere invalidated: jurorsthat would not findforthe Crown were finedand punished. If the slightestinformality were found in the letterspatent the lands were seised by the king,who thoughttherebyto increasehis income. In several grants reservationsof rent had been made to the Crown, which for ages were not put in force; all such rentswere now demanded,or acquittancesforthe same, and when they were not producedthe lands were forfeited. the manner in which the property In order to exemplify was dealt with in the time of James I., we of Irish owners make the followingextractfromCarte's Life of the Duke of Ormonde,vol. i., pp. 27, 28 :and was in "One case in truth very extraordinary, contains it such and cruelty in a scene of iniquity that,considered all its circumin of it stances, is scarceto be paralleled the history anyage or any lord of theByrne now Byrne, country.Pieagh MacHIugh territory, in in towards calledRanelagh, thecounty Wicklow, beingkilled arms of she to end thelatter of thereign Queen Elizabeth, byher letters then directed letters and to Loftus Gardiner, lords justices, patent be his madeoutfor AfacPheagh, eldestson,to haveto him and Pdelim his and thecounty landsof which father hisheirs PheaghMacHugh seised. died to did in the "King Jamescoming the crownnot long after, for likedirections passing saidinheritofhisreign the give beginning an of ance to Phelim. This,Sir RichardGraham, old officer the and to thereto endeavoured obstruct, in order sent outa comarmy, Parsonsand others inquire to to directed Sir William into mission it and that the were thesaidlands, upontheinquisitionwasfound they father Phelim, were and to of inheritance PheaghMaclRugk Byrne,
304 TRANSACTIONS THE ROYAL HISTORICALSOCIETY. OF thenin PhelimMacPheagh's possession. King James,therefore, that directed Ranelagh, all the lands whereof and by a secondletter Phelim MacPheagh and Brian his son werethenseised should be passedto them and theirheirs letters in patent, consequence by whereofanother officewas taken, in which the lands were was found in theformer. as office notyetfiled, Richard Sir The first Graham and having opposedit,and byhis interest the creditof a of bookwhich produced, possession partof Phelirn's he general got Fitzlandsbyvirtue a warrant from Lord Deputy. SirJames the of likewiseto get another Piers Fitzgerald partof them attempted but the passedto himuponthelikeauthority, Bryan, son in whose at Sir possessiontheywere, complaining thecouncil-table, James's was patent stayed." but we must Carte describes the subsequent proceedings, the facts. Bryan petitioned the king against Sir condense Richard Graham,and the case was remittedto the Council and Sir Richard Graham Board whichexamined the matter, of was summonedto England. A commission four gentlemen were then appointed to examine the matter,and Graham, was likelyto go against that the final determination finding him, adopted the expedient of alleging that these lands belonged to the king, and that neither Byrne nor himself had any right. James, always glad to get estates into his possession fromdefectivetitles,issued a new commissionto Sir William Parsons and others to inquire into the title, Bryan's patron,the Duke of Buckingham,had just gone to Spain, and anotherpatron,the Duke of Richmond,died suddenly, and his enemies,taking advantage of it, Sir William Parsons got the Lord Deputy's warrant to the Sheriffof Wicklow to put him out of the part Phelim enjoyed,and Sir William Parsons and Lord Esmond divided these lands between them. Bryan maintained his right to the lands, were arrested by the conspirators and and he and his brother in Dublin Castle. Informaimprisonedon 13thMarch, 1625, tions were sent to two grand juries at Carlow,who did not findthe bills, and theywere prosecuted in the Star Chamber were kept close prisoners until and fined. The two brothers
305
Bryan allowed the libertyof the house. He was set at on Eve. As they continued theirappeal liberty Christmas fortheirlands, a new prosecution set on foot, was and on were sent to Dublin in ironsand comNov. 2, 1627,they and his fivesonsweresentto trial mitted jail, and Phelim to at Wicklow. Sir JamesFitz-PiersFitzgerald, enemy an of and theirs, who had part of theirestates, though havingno in was property Wicklow, foreman.The Lord Chief Justice, of the evidence, the expresseda doubtwhether upon sight would creditit, upon whichSir HenryBillingpressed jury that the him to sign thebill,and said he would undertake or findit. The jurywere the friends allies of jury should Lord Esmond,Sir WilliamParsonsand others, who had an and the grandjuryfoundthe bill. in interest Byrne's estate, The friends thepersecuted of the gentlemen petitioned king, was and a commission sent over to inquireinto the affair, the of whichconsisted the Lord Primate, Lord Chancellor, and Sir of theArchbishop Dublin,the Lord ChiefJustice, It sat in November Arthur and December,1628. Savage. When the foul conspiracy against the Byrneswas made to theywere restored theirliberty, thoughnot to apparent their a their during estate, considerable having, part imprisonunderletters ment,passed to Sir WilliamParsons, patent, datedthe4thofAugust, Car. I. 4 of Lord Bacon ascendedthethrone England, WhenJames what Ireland barbaroushas proved; beware of Ireland was civilized." The policyhe inaugurated adaptedto retard of and the orprevent civilization Ireland. His deputies repreof forthe possessions the people,lashed sentatives, greedy land because themintorebellion, thenseizedupontheir and resisted. They thusbecame possessedof the land of they theoppressed. The exampleset by James and his deputy,Chichester, in was followed thereignof his unfortunate and by his son, ministers.CharlesI. not having able but unscrupulous the
x addressed him in the following language:-" You have found
of whenTurlogh was enlarged and uponparole, 20oth August,
21
306
that and promised gracesshouldbe granted hisMajestyas by The a compensation. principal and gentry assembled, nobility a and offered contribution a yearfor three years, of?4o,ooo on certain the terms, amongwhich subjectswere securedin the possession theirlands by a limitation the king's of of antecedent titletosixty and a renunciation all claims of years, of an earlierperiod. The inhabitants Connaught of were to admitted securetheirtitlesfrom futurelitigation a by of newenrolment theirpatents, and a parliament to be was summoned a confirmation theirseveralestatesto all for of theproprietors their and heirs. Charlesacceptedthe money, he trifled but with the latter Lord Falkland, who made the promise, was condition; and was his recalled, Wentworth appointed.Soon after arrival in Ireland he determined subvert titleof every to the estate in Connaught, whichhad been principally granted the by of commission defective titlesin the previousreign. He ordered as inquisitions to titleto take place in each county inthatprovince, attended and theseinquisitions, accompanied a forcesufficient overawe jurors. Those of Rosto the by commonand Leitrim wereso muchintimidated that they for found theCrown; thoseof Mayo and Sligo followed the of example. The jurors Galwaywere privately encouraged Earl of Clanricarde, was a favourite who by Ulricde Burgo, withCharlesand residedat the Englishcourt, resist to the of the lord deputy, and at the inquisition 1635 in designs the curious :-" verdict That the acquitheyfound following of sition Connaught HenryII. was nota conquest, a but by of submission theinhabitants; thatthegrant Roderic and of was barely a composition, the king had only whereby and not the property the land." The lord in dominion,
theirnumber, caused themto be quartered several on in and the counties towns Ireland, inhabitantswhich of were them with to supply and other clothes, expected provisions, for necessaries threemonths eachplace in turn. Lord at the a cheerful recommended Falkland, deputy, submission,
and being anxiousto increase meansof payinghis troops,
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deputy was enraged at this decision, he fined the sheriff to ?I,ooo for summoning such jurors, and bound them to answer for their offencein the Castle Chamber, appear Dublin, where each of themwas fined?'4,ooo, and sentenced to imprisonment until the fine was paid. Some of them died in prison. A fresh inquisition was held, when the jurors were more submissive, and found for the Crown. Ulric de Burgo used his influenceto procure the release of the obstinate jurors,and some of them were set at liberty. The lord deputy's scheme of plantation was abandoned, in and the inhabitantswere confirmed theirproperty. The litigationwhich ensued upon the schemes of Wentworth led to a remarkable trial, and subsequently to the publication of Sir Henry Spelman's treatise on feuds. of The case affectedthe property Lord Dilton, and in the prefaceto Spelman on feudsit is thus described:and within counties the manors estates "The several Roscommon, of Sligo, Mayo, and Galway,in the kingdom Ireland, being as unsettled to their dated2nd titles, KingJamesI., by commission did certain comyear March,in the fourth of his reign, authorize missioners letters patentto make grantsof thesaidlands and by to manors theirrespective letters several owners, whereupon patent to thateffect of passed underhis Majesty'sGreatSeal by virtue of for the said commission the strengthening titlesthat might in seem defective. And afterwards, the reignof King otherwise into title CharlesI., upon an inquiry his Majesty's to the county of all therewas an Act of Statepublished commanding those Mayo, the Crownto produce who held any land by letters patentfrom the before Lord Deputy thereof and Councilby for them enrolment be to the end thattheymight securedin thequiet a certain day, in were allowedby of possession theirestates, case the said letters in thatboard to be good and effectual law. letters several of wereproduced, " In pursuance thisorder, patent the andparticularly Lord Viscount Dillon's,which, upontheperusal to werethought thereof his Majesty's by Council, andconsideration it and be voidin law,and therefore was ordered theLordDeputy by Council thatthedoubt arising upon the letters patentshould be drawninto a case,and thatcase shouldbe openlyarguedin the
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OF TRANSACTIONS THE ROYAL HISTORICALSOCIETY.
Council Board. The case was drawnup in thesewords: 'King underthe GreatSeal, dated the 2nd day James, commission by of March,in the fourth certain year of his reign,did authorize to of commissioners grantthe manor Dale, by letters patentunder to and theGreat Seal of thiskingdom, A. and hisheirs, thereis no the to duration touching tenure be given in the said commission of reserved. There areletters patent colour the said commisby serviceas of sionpasseduntoA. and hisheirsto holdbyknight's the castle in Dublin. It was askedwhether deficiency his Majesty's to the the of the tenuredid so faraffect grantas wholly destroy be good as to the the or whether letters letters patentmight patent, ? land,and void onlyas to the tenure The questionwas argued whatthe had in theyear1637,and thecourt to inquire several days it of reservation tenureis to the grant?whether be a part of the or it and thing grant themodusconcessionis, whether be a distinct ? and aliud fromthe grant For,' it was said, 'if the reservaof and the grant theland be aliudand aliened, tionof the tenure of in two distinct things the consideration the wholegrantmade, for and theauthority thereof, given thecommission the making by and the thenthepatent good for grant maybe voidas to tenure, yet of unto of the land. Butifthereservation the tenurebe incident of and the authority includedwithin and the reservation the it, of and so tenure thegrant theland make up but one entire grant, of and the reservation the tenure thattheone is partof the other, a of then be modusconcessionis, the granting the land reserving tenureto thatwhichtheir did or diverse contrary (nude)authority alio modo, so thewhole and in them reserve doingofidem to warrant act is void." Those who pleaded for the validityof the letters patent as to the lands, and their being void only as to tenure, urged into among otherargumentsthat tenurein capitewas brought England by the Conquest,but grantswere by common law, and thereforegrants being more ancient than tenure, the tenuremustof necessitybe aliud fromthe thinggranted. of This led the courtto a consideration the question as to tenures:Saxon that thosecalled'Thanislajores or ThanisRegis " It wasargued tenantsof lands whichtheyheld by werethe king'simmediate
309
as or personalservice, of the king'spersonby grandseigniority in service capite. The landso heldwas, was said,inthose it knight's timescalled Thaneland, land holdenin locage was called Reveas land so frequently theDoomsday in the Book. After Norman conto Baron and quest the titleof Thaneand Thaneland gave place and whichunder of Barony, thepossessions theabbotsand bishops, theSaxonswerefree all from secular weremade subjectto services, service capite, thesepossessions but into wereconverted in knight's whilethanelands as tenure before. The wereheldbythat baronies, in and king'sthanewas a tenant capite, the middlethanea tenant for reliefs earlsand also service. It was contended that by knight's thaneswerein existence and provedbythe laws of Edwardthe thatwardships werealso in use both in Englandand Confessor; Scotland before Norman after the therefore, conquest. The judges, fullargument, thatfeudal before the held in existed England tenures Norman conquest." This contradicted the assertions made by Sir Henry Spelman in his Glossary, wherein he described feuds as having come into use with the Conquest. It led him into a fullerexamination of the question, and to his writing his celebratedtreatiseupon Feuds. The question raised was," Whether said letters as or the be patent voidonthewhole only to thetenure." The case was argued on several days, firstby Nicholas Plunket forLord Dillon, and Serjeant Catlor fortheking,and because it was a case of great weightand importanceit was delivered unto the judges, and they were required by the Lord Deputy and Council to considerit, and to returntheir resolutiontouching it; but they not agreeing in opinion, it was thought necessaryfor public satisfactionthat it should be argued solemnlyby themall; and consequently, Trinity in Term, the case was argued before the judges, who held by a majorityoffiveto two,(the Commis"I. That the commissioners the commission by sion of Grace)have a good and legal and sufficient power and to authority grant. 21 *
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TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY*
madeuponthiscommission which in patent "2. Thatallletters in havepursued their are they authority good and effectual law where have either an tenure knight's reserved express they by in a in or for the service capite, no tenure, then lawimplies tenure " 3. But the the reserve tenure whole where commissioners a mean is void." patent for Theygivesevengrounds thisdecision, beingprincipally have exceeded their that they authority.For thesereasons theydid resolvereservation of tenure (knight's express service) a mean " Thatthis and makes voidin of it to tends thedestructionthewhole patent, and both tothelands tothetenure." as law, The councilboard on the I3th July, 1637,issued a proclamationdeclaringthe said letterspatent to be wholly all void in law, and disallowing such letters patentforany in or hereditaments any of the counties lands, tenements, Roscommon, Sligo, Galway,or the countyof the townof Galway. created These proceedings disaffecnaturally wide-spread in but was tion. A parliament convened 1634, greatcarewas of and takenin thenomination thesheriffs, in theprocuring of candidates. Wentworth ofthe return Government then succeededin votingthe supplies,but he prevented the of thegraces, and he further succeededin inducing passing themto assure theking that he was not bound, either in or to the honour, conscience, perform solemn justice, promise he had made. His theory was thatthe king'sIrishsubjects of the had forfeited rights menand citizens. An ancient State describes headsof the causeswhichmoved the which paper, " to theIrish takearmsin 1641, were says, Manyofthenatives out of their and as manyhangedby possessions, expelled law martial without causeandagainst lawoftherealm, the any and made awayby sinister and manydestroyed meansand practices." fromwhichso much was expected The parliament was
capite.
311
without prorogued passingthe bills,and the hopes of the king's Irish subjects were extinguished. Their earnest remonstrances been continuously had and respectful spurned, weredriven desperation." Half therealmwas found to they to belong his Majesty, hisancient to as demesnes inheritand ance,upon old, feignedtitles of 300 years past by juries and who law,their evidence, conscience, were against corrupted to find said titles,uponpromiseofpart of thelands so the for found thekingor other rewards or elsedrawn thereto ; by or of threats thejudgesin thecircuit, heavy and fines, mulcts, and of censures pillory, crueland unusual sty-marking, other punishments." was hoisted thepeopleof Ulster, : The bannerof revolt in theirhomesto starve woodsandforests, from driven swept over to like a torrent theplainswhichbelonged them,and in oneweekO'Neil was at the head of 30,0oomen. The lords of of and gentlemen thePale,whowere descent, mostly English to in great numbers Dublin, and applied to the repaired to and for themselves the on Government arms authority array wasinsultingly but sideof theCrown, their application refused, ordered proclamation date October and theywere by bearing wereforcedinto revolt. The Lords JusticesDorlase and " their Parsons by justified conduct declaring,The morerebels, forfeitures theprincipal Extensive were confiscation." themore and theirfriends."Whatever ofthe chiefgovernors object the were they really theirprofessions,onlydanger apprehended of wasthatofa speedy suppression therebels."Troopsarrived and Scotland. The English with from Parliament, the England of consent theking, reluctant passedan Act (theAct of Subforfeited theinsurgents security as to havebeenalready for by advanced in England for the expensesof the war. money were" towound, to in of The orders thelords council thearmy all and destroy therebelsand theiradherents and kill,slay, and destroy, and burn,spoil,waste, and consume, relievers,
acres of arable scriptionof Charles I.) reserving2,500,ooo000 meadowand pastureland in Ireland,out of 1o,ooo,ooo assumed hours. They 28, 1641,to leave Dublin within twenty-four
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demolish places,towns, all and houseswheretherebels were or havebeenrelieved harboured, all the cornand hay or and and to kill and destroy the men thereinhabiting all there, able to bear arms." In the execution theseordersthe of LordsJustices declare all thatthesoldiersmurdered persons not not the and promiscuously, sparing women, sometimes the children. The downfall Stafford to theappointment a comof of led mittee theIrishLords and Commons, of whodemandedthe of graces as a settlement the land question. The delayof Charlesin acceding theirwishesalienatedthemfrom to the and entered correspondence into with monarch, thecommittee theleadersof thedisaffected of portion the EnglishParliament. The Marquis Ormonde appointed of was LordDeputy, and becameleaderof the Irishroyalists, adhered the who to cause of Charleswithgreater than could havebeen fidelity their ill-treatment. the mass of Yet expectedfrom previous theIrishpeoplewho had been deprived their of possessions of by the displacement the tanistry systemof landholding weredisaffected theroyalcause. A largesectionofthem, to theadviceof the papal nuncio, refused hearty a coguidedby and embarrassed king'sforces. the operation, this naturally heldmostof thefortified Ormonde placesin Ireland;Dublin, Belfast were only the of Derry,and strongholds theParliament. The successof Ormonde induced Parliament appoint the to Cromwell Lord Deputy,and he was accompanied Ireland to bya considerable army. He completely brokethe powerof theroyalists. The sack ofDrogheda was a fearful exhibition of hispower; he showedno mercy. Otherfortresses were the wereput to thesword, wholecities and captured, garrisons wereleft unpeopled. success was followed the expatriation Cromwell's of by had troublesome theyremained home. They entered at the serviceof foreign and formed celebratedIrish the states, was recruited a further which in Brigade, by expatriation the The gallantconductof the Irish of William III. reign
30,000 to 4o,ooo able-bodiedmen, who mighthave been very
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at the battle of Dettingenled George III. to exclaim, "Accursed be the laws whichhave deprivedme of such of forcedthe families those who had subjects!" Cromwell enteredforeign them to serviceon board ship,and carried theWest Indies. The numbers variously at are estimated from to Ioo,ooo. Four Parliamentary Commissioners 6,ooo were named to governIreland. Their courtswere called "Cromwell'sslaughterhouses." The crywas for blood,and came as sheep to the slaughter. The nextact was to they banishall " theIrish"intoConnaught Clare. The object and was to leavetheother to Englishand Scotch three provinces settlers. The design being to obtain the land by the first Act of Settlement, forfeituretwo-thirds their of estates of the had been pronounced those who had borne arms against and of forces, oneagainstthe Parliament England or their thirdagainst thosewhohad resided Irelandanytimefrom in serviceof Parliament, supported interests.By the its or secondAct of Settlement was providedthat all persons it should get not a claimingunder the former qualification of theirland,but an equal area at the westof the portion Shannon Connaught Clare. in or These vastappropriations enabledthatambitious soldier to disbandan armyof whichhe was afraid; to removefrom whomight havebeenunruly, Puritans, Englandthe extreme and to diverttheirattention from policyto thatof those his whom a they displaced.The landso seizeduponprovided fund from whichhe was able to discharge theirarrearsof pay without raisingtaxes,whichmightproveobnoxious. The which firstshowed itselfagainstthe queen of animosity Charles I. found ample vent in Ireland against her coissued in 1652 debenturesin the religionists. Cromwell following form:there deductions remaineth from Com"All lawful due the made, to andassigns, , hisexecutors, monwealth administrators, the the until datehereof, sum of sum , which is to be out satisfied of the rebels' and lands, houses, tenements, hereditaOct. I, 1649, to Nov. I, 1650, and had not been in the actual
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TRANSACTIONS OF THlE ROYAL HISTORICAL SOCIETY.
mentsin Ireland,in the disposalof the Commonwealth Engof land. "Dated the dayof I65--." These debentures bear upon their face a falsehood; the Irishwere not rebels against the English Parliament. They inasmuchas they had not forfeited their lands by rebellion, owed it no allegiance. To carryout the iniquitous designs of the regicides,it was necessary that theyshould get rid of their own army. They lacked the means of payment, and provided it out of the lands of the Irish. Courts were of established in Dublin and Athlone for the determining claims which should be made; a limited time only was of allowed. Four Commissioners Parliamentweresent over,Edmund Ludlow, Miles Corbet,JohnJones,and JohnWeaver. within The Irishweredrivenacross the Shannon,and confined its limitsbya chainofgarrisons.The adventurers accepted as a lands in nineprincipal of the fullsatisfaction moiety theforfeited counties. A revenue was reservedfordisabled soldiers,and forthe widows and orphans of those who had fallen in the service (except a part of the lands of bishops, parliamentary and of deans and chapters, granted to the Universityof lands in the counties of Dublin); these, with the forfeited Dublin, Kildare, Carlow,and Cork,remainedunappropriated, and were reserved by Parliament for futuredisposal. In 1653 the debentures were sold freely and openly for 4s. and 5s. per pound; and 20s. of debentures,one place with did purchasetwo acres of land, at which rate all the another, land of Ireland, estimated at 8,000,000 of profitable acres, mighthave been had for?I,ooo,ooo, which in 1641 had been worthabove ?8,ooo,ooo. Sir Dr. (afterwards William) Petty arrivedin Waterfordin 1652 as physicianto the army in Ireland. On the I Ith of December,1654,he obtained a contractfromthe Government lands intended for Cromwell's foradmeasuringthe forfeited soldiersat the rate of ?7 3s. 4d. per I,ooo acres. By this more got contracthe gained ?9,ooo, and he afterwards ?900oo lands. Throughthese means of the adventurers' fora survey
THE HISTORY OF LANDHOLDING IN IRELAND. 315 and his privatesavings he realized about CI 3,ooo,withwhich sum he bought up soldiers' debentures,and acquired large lands intended for them. When subseportionsof forfeited quentlyaccused of having obtained his vast estates through undue influences, defended himself by explaining, as he he afterwardsstated in his will, that he had "raised about kI3,ooo in ready money at a time when,withoutart,interest, or authority, men bought as much land for los. in real money as in this year, 1685, yields los. per annum above quit rents." To such an extent was the removalof the people of some districts carried,that Sir William Petty states,"The people of Tipperary have more universally obeyed the order transportation other than of counties had generally done; that and becameso uninhabited wastethatit was impossible to county find meansto do thework well." tolerably An orderwhichwas made in the Privy Council during the Protectorateproves the extent of the depopulation. It runs thus :of "Whereas Mr. HenryPain, late one of the Commissioners us hathinformed thatthe transplantation hath Revenueat Clonmel, carriedon in the countyof Tipperary, been so effectually and in thebarony Eliogarty, no inhabitant the Irish of that of especially in the is whichmaybe a nation thatknows country left the barony, for to theCommonwealth, wantofinformationthe of prejudice great and territories the lands thereinupon bounds of the respective ordered thatit be referred the it to admeasurement; is therefore of Commissioners Loughreato considerif fourfitand knowing removed of the barony out of into lately persons the Irishnation, them with their families reside ornear and to return to in Connaught, for of theirold habitations, the due information the surveyors boundsofeachparcelof landadmeasuroftherespective appointed until there further order. able,and to continue 1654. "Dublin, 20 December, " THOMAS HERBERT, " ClerkoftheCouncil." of An almost completetransplantation the people of Tip-
316
peraryinto Connaught took place. The new settlerswere not secure as to theirtitle,and many of themobtainedforced conveyances and re-leases from the former proprietors. Clarendon,in his life,says," Whatshould do to they ? Theycouldnotbe permitted go out to of thisprecinct shift themselves and without their for elsewhere; muststarvethereas many in did die they assignment Connaught condition under and this every ofthefamine.In thisdeplorable day themselves consternation found to they obligedto acceptor submit and suchconveyances re-leases thehardestfconditions,so signed and for as wereprepared them." The war of extermination was carriedto such a fearful extent that it was made lawfulforany of the English settlersto kill any Irish person,man,woman, or child, that was found east of the Shannon, and the common expression of these murdererstowards theirvictimswas, " To hell or Connaught withyou!" Humanity recoils and shudders at the fearful and historyhas no blacker atrocitieswhichwere committed, that whichrecordsthe sufferings inflicted page than upon Ireland duringthe Protectorate. the population of Ireland very Under these circumstances diminished. Sir William Pettyestimatedthe loss of seriously population between 1641 and I682 at So4,ooo,and Clarendon tells us,of was " That there a largetract land evento thehalfof theprofrom restof Irelandbya that the vinceofConnaught was separated and andwhich plague manymassacres andlarge by remained moor, long of almost desolate; intothisspaceand circuit landthey the required the Irishto retire sucha day,under penalty death, all who of and by thattimebe foundin anypartof the kingdom, shouldafter man, or child,should be killed by anybody who saw or met woman, them." Sir William Petty, in 1672, estimated the population of Ireland at about a millionone hundredthousandpersons.
an ColonelLawrence, eye-witness, writes:-
"About the year 1652-1653,the plague and faminehad so
317
that or travel swept awaywholecountries a manmight twenty a living mileswithout or either creature, man, beast, seeing thirty all deadorhaving Our thedesolate bird, being they quitted places. soldiers would stories where sawa smoke dayor fire tell of they by orcandle night, when did meet and we with twoor three by poor nonebutvery and children those cabins, women, (and agedmen, with prophet the havecomplained, are become a as 'We might in bottle thesmoke, skinis blackas an oven our because the of in terrible were famine') found them." The restoration CharlesII. was seizeduponby his supof as theirestates; those who porters thesignalforresuming had been deprived theirlands returned repossessed of and themselves their of evenbefore king the patrimonies force by was proclaimed.This rashness represented a newrewas as and for alarmed their bellion, theCromwellian settlers, possesan Act of indemnity before the king landed, sions,procured which excludedall those whothustried regain to their lands. It was so worded to amount theexclusion thewhole as to of of the Roman Catholic party. On the king's arrivalin Londonhe issued proclamation a the commanding continuance of undisturbed to and possession adventurers soldiersof all manors, houses,and lands as theythen held untillegally or withtheadviceofParliament, should invested, his Majesty, in measures theseaffairs.At length, take further after much formed theEarl ofOrrery, John on a calculation Sir by delay, it and besides Clotworthy, Sir Arthur Mervyn, wasfound that, thelandpossessed thesoldiers, remained comto by enough or all and Charles Irish, pensate theinnocent meritorious pubfor lishedhis famous declaration the settlement the kingof dom. were the in By thisdeclaration adventurers to be confirmed on thelandspossessed them the7thMay, 1659,according by whichtheywere to to theActs madein the previous reign, and all deficiencies were to holdin feeand common socage, before Withtheexceptionof ecclebe satisfied May,I660. the siasticallands and some otherprovisoes, soldiers were in for confirmed thelandsallotted their pay,which theywere
318
to hold by knights'servicein capite; officers who had served beforeJune, 1649,were to receive I2s. 6d. in the pound by estates and other securities. Protestants,unless they had been in rebellionor had taken decrees forland in Connaught or Clare, were to be restoredto theirlands. InnocentCatholics were restoredto theirestates,and Catholicswho submitted and adhered to the peace of 1648 were to be restoredto their ancient propertiesupon the reprisalof those who held them. This declarationof settlement gave little satisfactionto any The Royalist officersreceived but little more than party. half theirpay, and the ancientlandholders,who had suffered forthe royal cause and were in a state of poverty,were excluded fromtheirestates until they could repay those who had been quarteredupon them by Cromwell. The commissionersappointed to carrythe declaration of settlementinto effect were partial to the soldiers and adventurers, and threw in much difficulty the way of the Catholic proprietors, who tried to establish theirinnocence. The Parliament whichwas convened in I661 to confirm Act of Settlement the was mainly elected by those in illegal possession of the estates. It tried by statute to exclude the Catholics,many of whom claimed the propertyfromParliament. An inquirywas instituted by the House of Lords, which revealed many malpractices by the commissioners. Widows were deprivedof their jointures, ordersof the king for the restitutionof particular persons were eluded; the Lords resolved to address the king to revoke the illegal grants made by the commissioners, a and waited on Charles in London claimingredress. deputation The Irish Cromwellians accepted the restorationwithout much difficulty, they kept a firmgrasp on their lands. but Aftera long struggleof controversy, and intrigue on bribery, the part of the claimants, and wavering and irresolution on the part of the Government, Puritanscarriedthe day and the kept their lands. The Acts of Settlement and explanation which closed the question of proprietorship, having been called the great charterof this party, they decided the title to the lands; yet,formany years afterthis time,a great part
319
of theland of Irelandcontinued be held by forcible to and disputed possession.

of the information Petty'sPoliticalAnatomy Irelandcontains following to relating thisperiod:Area of Ireland
. . .
. 1641. Belongingto Papists and seques. 5,200,000 tered Protestants . . To the Church . . . 300,000
Rivers, loughs, &c. Unprofitable land Arable and pasture
acres. 10,5oo,00ooo
. . .
,500oo,ooo 1,500oo,00ooo0 7,500,000 10,500,000
,,
Protestants planted by Elizabeth and

James . . .
.
2,000,000 7,500000 40,000 130,000 40,000

210,000 ,,
who proved of good Restored to twenty-six affection . . . The Duke of Ormonde . . . Lord Inchiqun, Lord Roscommon, &c. . Innocent Papists The Church Duke of York . . . . . . 1,200,00ooo 20,000
120,000
To Letterers InnocentIrishmen6o0,00ooo & To PapistsperprovisoColkin 360,000 Leftin the common stock.

To adventurers . . . . Soldiers seised . To forty-nine officers 390,000 . 280,000
1,340,oo0 420,000
80,000
--- 470,000
1,440,ooo
To Protestants proviso per decrees Upon transplantation

Restored to mortgagees .
270,000
Ioo,ooo
700,000
550,000
800,000
the Oflandsseised usurpers by haverecovered. 2,340,000 Papists

New Protestants churches and Of a moreindifferent nature
additional . .
.
5,200,000
,,
2,400,000
460,000
5,200,000
,,
320
TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY. acres good 7,5oo,ooo

I,5oo,ooo ,, coarse . . ? o90,000 162,000 216,0oo 432,000
. . 9,ooo,ooo acres,worth. . Quit and Crownrents Tithes . . . . . Benefit leases and tenants' of improvements Landlords . . . . .
900oo,ooo
He divides: The landlords' shareofthis . . 2,520,ooo acres gainedby the Rebellion . . . . . . and Adventurers soldiers . Soldiersalone. . .
900 oo,ooo
?432,ooo
144,ooo io8,ooo 86,400
338,4oo "----The Kinggained:-the the . ?77o,ooo Augmented Church, Duke ofYorkand others Paid adventurers officers and . . . 670,000 Gained on usual revenue above . of . . . 80,000 Or at fifteen years'purchase?I,20oo,ooo gained,the year's . . . . value,&c., worth . 300,000 of Freed himself thearticles withthe Irishof 1648. . 800,000ooo Population :-Papists . English . Scots . Irish .
Non-Papists .
. 200,000 . oo,ooo . 800,ooooo I,oo,ooo

2-200,000
300,000 1,100,000
Houses :-i6o,ooo without chimneys at 24,ooo, I chimney, ?5 2 to 3 chimneys, ? at 6,800oo, 2,500, 7 ,, 9

700,
5,600, 4 ,, 6
400, 13 ,, 20
0o ,, 2
,,
,,
,,
,,
,,
,,
100
. 40
I2,00ooo 272,000 750,000

420,000
300
6oo00
560,000
20 transcendental houses
,0
,,
I,000
400,000
78,ooo
?2,60oo0,ooo or in Cattle,6,ooo,ooo, equivalents horsesand sheep --- . 3,000,000 Ireland . . . Exportsfrom ?500,000 &c. Absentees' . rents, 2oo,ooo Cattleexports . . . . .140,000 The wholesubstance Irelandwas worth . of . ?I6,ooo,ooo exceeded revenue The customs ?32,ooo . . .
THE
HISTORY
OF LANDHOLDING
IN IRELAND.
321
The defeat of James II. and his flight fromIreland led to a reversalof his policy,but his troops,aftera gallant contest with the veterans of William III., made terms with him. The Treaty of Limerick, whichshould have formed basis of the futurelegislation,contained a provisionthat the Irish should enjoy the same privilege in the exercise of religion as they had done in the reignof Charles II., and that they should be real and personal, and in all reinstated in their properties, their rights,titles, and privileges, on taking the oath of allegiance to King William. The Irish Parliament of 1695 annulled the Act of James II., and confirmed and explained the Act of Settlement. Large forfeitures were made, and of William, who, from the insufficiency the parliamentary was unable to reward his dependants,adopted the supplies, Cromwellian plan, and made seventy-sixgrants out of the Irish forfeited estates. Eight of these grants were as follows:135,820 acres to Lord Woodstock (van Bentinck). Earl of Albemarle (van Keppel). 108,633 ,, Countess of Orkney (Miss Eliz. Villiers). 95,649 ,, Lord Romney (Sidney). 49,517 ,, Earl of Rochford(de Zuleistan). 39,871 ,, Earl of Galway (de Ravigney). 36,148 ,, Marquis de Pursai. 30,512 ,, Earl of Athlone (de Ginkel). 26,480 ,, 522,630 The Parliamentwere offendedat this Act of Prerogative, and the English Commons charged the king with a breach of to promise in not having leftthe forfeitures the disposal of Parliament for the dischargeof the public debts. It passed an Act forsending seven commissionersto inquire into the value of the confiscated estates, and the reason of their "The alienation,and upon the reportof these commissioners, Act of Resumption" (II & 12 Will. III., c. 2, Engl.) was passed, A.D. 170oo; it avoided all royal grants of land made after the I3th February,1788, and directed an absolute sale Y 22
322
of all Irish estates which had belonged to James II. or his adherents. The English Commons were so aware of the violenceof theiract thattheyvoted,contrary constitutional to that no petition should be recorded against it. Yet rights, and the trusteeswere petitions were sent in large numbers, with injustice and venality. The granted lands, charged whichwere valued at ?i,500,ooo, hardlyrealized one-third of that sum. A more recent authority, who can hardly be accused of partialityto the Irish-Lord Chancellor Fitzgibbon (Earl of Clare)-in a speech made in I799, said," After expulsion James from throne England, of the II. the of the old inhabitants madea finaleffort the recovery their for of ancient in wereonce moredefeated an Englisharmy, power, which they by and theslender relics Irishpossession of becamethesubject fresh of Fromthereport madebythecommissioners confiscation. appointed of by the Parliament Englandin 1698, it appearsthatthe Irish of for outlawed therebellion 1688 amounted 3,978, to and subjects as as Irishpossessions, far couldbe computed, wereofthe thattheir
value of ?210,623,
of to underthe authority an EnglishAct of Parliament, defray the the in incurred England reducing rebels 1688, the of and by expenses It into sale introduced Irelanda newsetof adventurers. is a very to lookback to the forfeitures and of curious important speculation in contents the of Irelandincurred thelastcentury.The superficial
island are calculated at 11,042,682 acres. Let us now examine the
was sold, acres. This fund comprising i,670o,792
stateoftheforefeitures. of I. In thereign James thewholeoftheprovince . 2,836,837 was confiscated, ofUlster acres. containing
Let outby theCourtof Claims at theRestoration 7,800,000 . I,o60,792 of . . . Forfeitures i688 Total . . ,, ,, ,,
. I1,697,629
withthe So that the wholeof yourisland has been confiscated, of of or of blood,some exception theestates four six families English in of whom had been attainted the reignof HenryVIII., but their beforeTyrone'srebellion, had the and recovered possessions to inflicted republic goodfortune escape the pillageof the English
323
of by Cromwell;and no inconsiderable portion theislandhas been in confiscated twice perhaps or thrice the courseof a century.The standsunof at situation, therefore, theIrishnation the Revolution of world. If the warsof paralleledin the history the inhabited had the carried herefrom reign Elizabeth beenwaged on of England their wouldhave retained the againsta foreign enemy, inhabitants and their law the under established of civilized nations, possessions have to as Empire." country beenannexed a province theBritish land were most injurious; that, Some of the laws affecting for example, which enacted that no Papist should have a horse of greater value than ?5, so deterioratedthe breed of horses that an enactment, Anne, c. iii.,s. 34, was passed as 8 follows: "And whereas thelawsofthislandPapistsarenotqualified to by or of which been has mare, gelding above -?5value, keepanyhorse, so forth thesamerelates studmares, it as be found to prejudicial far no that studmarekeptforbreeding enacted nor stallion kept only, no as such,and for other to use,shallbe deemedor taken be within ' of the intention the Act entitled,An Act forbetter the securing Government disarming Papists,'but thateveryPapist,and the by reputedPapist,maykeep such studmares and stallionsnotwiththe and standing said Act,or anylawto the contrary, the breed or the thereof under age offive and produce years, nototherwise." The law which prevented "Papists" having any greater tenure than thirtyyears, where the rent reserved was less than two-thirdsof the value, was calculated to prevent any improvementin their condition or in the system of agriculture. This policy was the result of the abnormal relationsof two classes-the plunderersand the plundered, the ownerand the occupier. The former, possessed of political and supported by the armies of England, enacted power and theconlaws; the statute-book oppressiveand restrictive of all authoritiesprove that it was their current testimony sternresolvethat the mass of the people should be denied all in interest the lands whichtheycultivated,and be condemned for to live on the coarsestfood,and reside in habitationsunfit
324
human beings,while the utmost rent was wrung from them. Dean Swift,writingin 1729, says,the of "Upon determination all leases made before year I69o, a his thinks has but indifferently he improved estateif he gentleman but roll. Leases are granted fora small has onlydoubledhisrent and are term years, of tenants tied down to harshconditions, disto thebestadvantage thelandthey from occupy cultivating couraged beingraisedon the expiration they bythecertainty haveof therent to of their leases,proportionate the improvements shall make. they and is is Thus it is thathonest industry depressed, thefarmer a slave to thelandlord." The complaint made by Dean Swift is in effectthat the of labour or the representative the labour of the tenantbecame withoutany compensationthe propertyof the landlord,and that he who expended his labour and capital upon the land which he was compelled to pay anotherman for the property and labourhad created. by his industry I shall conclude the history of this period, and the of descriptionof the effects these laws, with the following of extractfromthewritings Edmund Burke:of "The laws,"sayshe," havedisabledthree-fourthstheinhabitestateof inheritance life, for or antsof Irelandfrom any acquiring on of whatsoever whichtwo-thirds the imor anycharge for years, for value is not reserved thirty years. This confineproved yearly and preventing free to its landedproperty one setof hands, of ment is the community, a mostleadingarticleof ill circulation through to policy; becauseit is one of themostcapitaldiscouragements all on be employed thelasting of the which improvement may industry aboutland. A tenureof thirty soil,or in anywayconversant years to to to no is evidently tenure uponwhich build, plant, raise enclosures,to change the natureof the ground,to make any new or whichmight improve agriculture, to do anything experiment the and answer immediate momentary of calls morethanwhat may and leave subsistence the tenantand his to rentto the landlord, a and possession, you at once family. Confine man to momehtary which wisestatehas cherished cut off laudableavarice that as every of one ofthefirst principles itsgreatness.Allowa man but a tem-
THE
HISTORY
OF LANDHOLDING
IN IRELAND.
325
possession, it downas a maximthathe nevercan have porary lay turn and and anyother, youimmediately infallibly himto temporary of the and theseenjoyments never pleasures labour are enjoyments; and free the it andwhosequality is to famish present hours, industry, and squanderall upon prospectand futurity; they are, on the life. The and thoseof a thoughtless, contrary, loitering, dissipated habitsmerely must inevitably be to suchpernicious people disposed from shortduration their the whichthe lawhas allowed. tenure of of But it is notenough is thatindustry checkedby the confinement itsviews, is further it of the limitation itsowndirect discouraged by of object,profit. This is a regulation extremely worthy our attento but tion,as it is not a consequential, a direct discouragement as as 'Thou amelioration, directly ifthelawhad said in direct terms, shaltnotimprove.' Butwe havean additional to argument demonstratethe ill policyof denying occupiersof land any solid the in property it. Irelandis a country wholly unplanted. The farms have neither nor dwelling-houses good offices;nor are the lands. withfencesand communications; a almostanywhere, in provided in state. The landowner never takes there word, a very unimproved to upon him, as is usual in thiskingdom, supplyall these conand to set downhis tenant what in veniences, maybe called a comwill furnished farm. If thetenant notdo it,it is never done. pletely and This circumstance showshowmiserably peculiarly it impolitic has been in Irelandto tie downthebodyofthetenantry short to and and tenures. A finished furnished house willbe taken unprofitable foranytenure, however the short;if the repairlies on the owner, shorter better. Butno one willtake one,not onlyunfurnished, the but buthalfbuilt, upona term which calculation answer on will with all his charges. It is on thisprinciple theRomansestabthat profit or lishedtheirEmphyteosis, feefarm; for although extended they of theordinary term location onlyto nineyears, they encouraged yet to a morepermanent withthe condition improveof letting farms, on as the where ment, wellas annualpayment thepartofthetenant, this land had been roughand neglected; and therefore invented in came whenproperty holding the latter times, speciesofingrafted intoa fewhands." to be worsedistributed falling by The laws to whichMr. Burke referred this passage were in thosewhichwere enacted in thereignof the last of the Stuart of monarchs. The first this race abolishedthetanistry system, 22*
326
whichgave each man a life interestin a certain portion of the soil, and so forfeited large districts. His successors followedin the path of spoliation; a newclass of ownerscame of into possession,whose laws preventedthe improvement the and thus lessened the supply of food,and diminished land, the population. The tide of confiscationebbed and flowed but in so doing the nativepossessors were duringthesereigns, almost entirely swept away.
ERRATA. linecall, 47, dog, 7, tragicaL Pagenage for dag. 15, ,, 47, awful, ,, lawful. ,,), read ,, 17, ,, 53,,, ,, aloes. 53,,, agunt. ,, 30,,,,, 17, ,, 58, aIces, ,, ,,,)egunt, 280, Norman. Roman, x, ,, ,, ,, ,, ,, Hibernus, 280,i,, Hibernis. ,, ,,3, ,,Howard. Harvard 282,,, 7, letter. 1, ,, ,, ,, 1111Dilton, 302, ,, latter, 23, Dillon. 1, i, ))15, ,, 307, Strafford ,, 312, ,, 8,Staffbrd,
ERRATA. readdag. Page 47, line7,for dog, ,, 47, ,, 15, ,, nage call, ,, tragical ,, lawful. ,, 53, ,, 17, ,, awful, ,, aloes. 53, ,, 30, ,, alces, ,, ,, agunt. ,, 8 ,, 17, ,, egunt, ,, 280, ,, x, ,, Roman, ,, Norman. ,, 280, ,, 3, ,, Hibernus, ,, Hibernis. ,, 282, ,, 7, ,, Harvard ,, Howard. ,, letter. ,, 302, ,, 23, ,, latter, ,, Dillon. ,, 307,, i 15, , Dilton, 312, ,, 8, ,, Staffbrd, ,, Strafford. ,,

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Landholding in Ireland

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The History of Landholding in Ireland Author(s): Joseph Fisher Reviewed work(s): Source: Transactions of the Royal Historical Society,

THE HISTORY OF LANDHOLDING

FELLOW OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

230 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

The fact of a language being not

232 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

234 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDINGIN IRELAND.

and their hands one side, thephilosophers priests, on and together

and of thekingdom; were rehearsed privately by inspected a they

selectcommittee the mostlearnedmembers. Whentheyhad of

of The seats of the members the great councilwere

and the postranean, most probably of a Semitic character,

THE HISTORY OF LANDHOLDING IN IRELAND.

238 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

THE IhISTORY OF LANDHOLDING IN IRELAND.

THE HISTORY OF LANDHOLDING IN IRELAND.

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

248 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

250 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

256 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND

THE HISTORY OF LANDHOLDING IN IRELAND.

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

930 goo 1,050 540

7,400 7,200 8,400 4,320

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

InnocentIII. and his successorsthe whole kingdom of

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND,

276 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

marks of sovereignty. For to give laws unto a people; to institute

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

280 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

and as that 28th VIII., c. 3.-Forasmuch itis notorious manifest Henry

was continued in This showsthatthesystemof Tanistry

the and support;while, chiefof tie a mutual of dependence

THE HISTORY OF LANDHOLDING IN IRELAND.

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

Resgestce nglorum Hibernia, havesaid,A in to

THE HISTORY OF LANDHOLDING IN IRELAND.

286 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

288 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

THE HISTORY OF LANDHOLDING IN IRELAND.

290 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY.

the Sep.4,cap.ii. Restoring EarlofKildare.

THE HISTORY OF LANDHOLDING IN IRELAND.