"A.D. 1186. Hugh De Lacy, the profaner and destroyer of many churches, Lord of the English of Meath (the Irish cannot call him their lord), Breffni, and Oirghialla, he who had conquered the greater part of Ireland for the English, and of whose English castles all Meath, from the Shannon to the sea, was full, after having finished the castle of Der Magh, set out accompanied by three Englishmen to visit it . . . . One of the men of Tebtha, a youth named O'Miadhaigh, approached him, and with an axe severed his head from his body."
So wide-reaching and comprehensive was the plan of the invaders from the beginning that they felt confident of holding possession of Ireland forever; and to effect this they must certainly have intended to destroy or drive out the native race, or at best to make slaves of as many of them as they chose to keep. Thus they had prophecies manufactured for the purpose, and Cambrensis, in his second book, chapter xxxiii., says confidently: "Prophecies promise a full victory to the English people. . . . and that the island of Hibernia shall be subjected and fortified with castles--literally incastellated, incastellatam--throughout from sea to sea."
Meanwhile, together with the building of castles, the partition of the territory was being carried out. The ten great lords, among whom, according to Sir John Davies, Henry II. had cantonized Ireland, saw the necessity of giving a part of their large estates to their followers that so they might occupy the whole. McGeohegan compiles from Ware the best view of this very interesting and comparatively unexplored subject. Curious details are found there, showing that, with the exception of Ulster, not only the geography, but even the most minute topography of the country, had been well studied by those feudal chieftains. Their characteristic love for system runs all through these transactions.
But the Irish had now seen enough. The whole country was in a blaze. That kind of guerilla war peculiar to the Celtic clans began. The newly built castles were attacked and often captured and destroyed. Strongbow was shut up and besieged in Water- ford, which fell into the hands of the Danes. The latter sided everywhere with the Irish. Limerick changed hands several times, until Donnall O'Brian, who was left in possession, set fire to it rather than see it fall again into the hands of the invaders.
In Meath, where the numerous castles of De Lacy were situated, a war to the knife was being waged. O'Melachlin first tried persuasion, but in conference with De Lacy he dared inveigh loudly against the King of England, and, as his words must have expressed the feelings of the great majority of the people, we give them:
"Notwithstanding his promise of supporting me in the possession of my wealth and dignities, he has sent robbers to invade my patrimony. Avaricious and sparing of his own possessions, he is lavish of those of others, and thus enriches libertines and profligates who have consumed the patrimony of their fathers in debauchery."
This manly protest was answered by the stroke of a dagger from the hand of Raymond Legros, and, after being beheaded, 0'Melachlin was buried feet upward as a rebel.
The monarch himself, Roderic O'Connor, finally appeared on the scene, beat the English at Thurles, and, marching into Meath, laid the country waste.
Henry at last saw the necessity of adopting a milder policy, and O'Connor dispatching to England Catholicus O'Duffy, Archbishop of Tuam, Lawrence O'Toole, of Dublin, and Concors, Abbot of St. Brendan, the Treaty of Windsor was concluded, which was really a compromise, and yet remained the true law of the land for four hundred years. It may be seen in Rymer's "Foedera."
Sir John Davies justly remarks that by the treaty "the Irish lords only promised to become tributaries to King Henry II.; and such as pay only tribute, though they are placed by Bodin in the first degree of subjection, yet are not properly subjects, but sovereigns; for though they be less and inferior to the princes to whom they pay tribute, yet they hold all other points of sovereignty.
"And, therefore, though King Henry had the title of Sovereign Lord over the Irish, yet did he not put those things in execution, which are the true marks of sovereignty.
"For to give laws unto a people, to institute magistrates and officers over them, to punish or pardon malefactors, to have the sole authority of making war or peace, are the true marks of sovereignty, which King Henry II. had not in Ireland, but the Irish lords did still retain all those prerogatives to themselves. For they governed their people by the Brehon law; they appointed their own magistrates and officers; . . . . they made war and peace one with another, without control; and this they did not only during the reign of Henry II., but afterward in all times, even until the reign of Queen Elizabeth."
By an article of the treaty the Irish were allowed to live in the Pale if they chose; and even there they could enjoy their customs in peace, as far as the letter of the law went. Many acts of Irish parliaments, it is true, were passed for the purpose of depriving them of that right, but without success.
Edmund Spenser, himself living in the Pale in the reign of Elizabeth, speaks as an eye-witness of "having seen their meeton their ancient accustomed hills, where they debated and settled matters according to the Brehon laws, between family and family, township and township, assembling in large numbers, and going, according to their custom, all armed."
Stanihurst also, a contemporary of Spenser, had witnessed the breaking up of those meetings, and seen "the crowds in long lines, coming down the hills in the wake of each chieftain, he the proudest that could bring the largest company home to his evening supper."
Here would be the proper place to speak of the Brehon law, which remained thus in antagonism to feudal customs for several centuries. Up to recently, however, only vague notions could be given of that code. But at this moment antiquarians are revising and studying it preparatory to publishing the "Senchus Mor" in which the Irish law is contained. It is known that it existed previous to the conversion of Ireland to Christianity, and that the laws of tanistry and of gavelkind, the customs of gossipred and of fostering, were of pagan origin. Patrick revised the code and corrected what could not coincide with the Christian religion. He also introduced into the island many principles of the Roman civil and canon law, which, without destroying the peculiarities natural to the Irish character, invested their code with a more modern and Christian aspect.
Edmund Campian, who afterward died a martyr under Elizabeth, says, in his "Account of Ireland," written in May, 1571: "They (the Irish) speak Latin like a vulgar language, learned in their common schools of leechcraft and law, whereat they begin children, and hold on sixteen or twenty years, conning by rote the aphorisms of Hippocrates, and the Civil Institutes, and a few other parings of these two faculties. I have seen them where they kept school, ten in some one chamber, grovelling upon couches of straw, their books at their noses, themselves lying prostrate, and so to chant out their lessons by piecemeal, being the most part lusty fellows of twenty-five years and upward."
It was then after studies of from sixteen to twenty years that the Brehon judge--the great one of a whole sept, or the inferior one of a single noble family--sat at certain appointed times, in the open air, on a hill generally, having for his seat clods of earth, to decide on the various subjects of difference among neighbors.
Sir James Ware remarks that they were not acquainted with the laws of England. He might have better said, they preferred their own, as not coming from cold and pagan Scandinavia, but from the warm south, the greatest of human law-givers, the jurisconsults of Old Rome, and the holy expounders of the laws of Christian Rome.
What were those laws of England of which Ware speaks? There is no question here of the common law which came into use in times posterior to Henry II., and which the English derived chiefly from the Christian civil and canon law; but of those feudal enactments, which the Anglo-Normans endeavored to introduce into Ireland, for the purpose of supplanting the old law and customs of the natives.
There was, first, the law of territory, if we may so call it, by which the supreme ruler became really owner of the integral soil, which he distributed among his great vassals, to be redistributed by them among inferior vassals.
There was the law of primogeniture, which even to this day obtains in England, and has brought about in that country since the days of William the Conqueror, and in Ireland since the English "plantations" of the sixteenth and seventeenth centuries, the state of things now so well known to Europe.
There was also the long list of feudal conditions to be observed, by the fulfilment of which the great barons and their followers held their lands. For their tenure was liable to homage and fealty, as understood in the feudal sense, to wardships and impediments to marriage, to fines for alienations, to what English legists call primer seizins, rents, reliefs, escheats, and, finally, forfeitures; this last was at all times more strictly observed in England than in any other feudal country, and by its enactments so many noble families have, in the course of ages, been reduced to beggary, and their chiefs often brought to the block. English history is filled with such cases.
The law of wardship, by which no minor, heir, or heiress could have other guardian than the suzerain, and could not marry without his consent, was at all times a great source of wealth to the royal exchequer, and a correspondingly heavy tribute laid on the vassal. So profitable did the English kings find this law, that they speedily introduced it into Church affairs, every bishop's see or monastery being considered, at the death of the incumbent, as a minor, a ward, to be taken care of by the sovereign, who enjoyed the revenues without bothering himself particularly with the charges.
There were, finally, the hunting laws, which forbade any man to hunt or hawk even on his own estate.
Such were the laws of England, which Sir James Ware complains the Irish did not know.
In signing the treaty of Windsor, the English king had apparently recognized in the person of Roderic O'Connor, and in the Irish through him, the chief rights of sovereignty over the whole island, except Leinster and, perhaps, Meath. But, at the same time, a passage or two in the treaty concealed a meaning certainly unperceived by the Irish, but fraught with mischief and misfortune to their country.
First, Roderic O'Connor acknowledged himself and his successors as liegemen of the kings of England; in a second place, the privileges conceded to the Irish were to continue only so long as they remained faithful to their oath of allegiance. We see here the same confusion of ideas, which we remarked on the meaning given to the word homage by either party. The natives of the island understood to be liegemen and under oath in a sense conformable to their usual ideas of subordination; the English invested those words with the feudal meaning.
All the calamities of the four following centuries, and, consequently, all the horrors of the times subsequent to the Protestant Reformation, were to be the penalty of that misunderstanding.
Let us picture to ourselves two races of men so different as the Milesian Celts on the one side, and the Scandinavian Norman French on the other, having concluded such a treaty as that of Windsor, each side resolved to push its own interpretation to the bitter end.
The English are in possession of a territory clearly enough defined, but they are ever on the alert to seize any opportunity of a real or pretended violation of it, in order to extend their limits and subjugate the whole island. Yet they are bound to allow the Brehon Irish to live in their midst, governed by their own customs and laws. Moreover, they acknowledge that the former great Irish lords of the very country which they occupy are not mere Irish, but of noble blood; for, from the beginning, the English recognized five families of the country, known as the "five bloods," as pure and noble, in theory at least.
The Irish without the Pale are acknowledged as perfectly independent, completely beyond English control, with their own magistrates and laws, even that of war; subject only to tribute. But, at the same time, this independence is rendered absolutely insecure by the imposition of conditions, whose meaning is well known and perfectly understood in all the countries conquered by the Scandinavians, but utterly beyond the comprehension of the Irish.
The consequence is clear: war began with the conclusion of the treaty--a war which raged for four centuries, until a new and more powerful incentive to slaughter and desolation showed itself in the Reformation, ushered in by Henry VIII.
First came a general rebellion. This is the word used by Ware, when John, a boy of twelve years of age, was dispatched by his father Henry, with the title of Lord of Ireland, to receive the submission of various Irish lords at Waterford, where he landed. "The young English gentlemen," says Cambrensis, who was a witness of the scene, "used the Irish chieftains with scorn, because," as he says, "their demeanor was rude and barbarous." The Irish naturally resented this treatment from a lad, as they would have resented it from his father; and they retired in wrath to take up arms and raise the whole land to "rebellion."
This solemn protest was not without effect in Europe. At the beginning of the reign of Richard I., Clement III., on appointing, by the king's request, William de Longchamps, Bishop of Ely, as his legate in England, Wales, and Ireland, took good care to limit the authority of this prelate to those parts of Ireland which lay under the jurisdiction of the Earl of Moreton-- that is, of John, brother to Richard. He had power to exercise his jurisdiction "in Anglia,, Wallia, et illis Hiberniae partibus in quibus Joannes Moretonii Comes potestatem habet et dominium."--(Matth. Paris.) It would seem, then, that Clement III. knew nothing of the bull of Adrian IV.
The war, as we said, was incessant. England finally so despaired of conquering the country, that some lords of the court of Henry
The result was that, at the end of the reign of Henry VI., the Irish, in the words of the same author, "became victorious over all, without blood or sweat; only that little canton of land, called the English Pale, containing four small shires; maintained yet a bordering war with the Irish, and retained the form of English government."
Feudalism was thus reduced in Ireland to the small territory lying between the Boyne and the Liffey, subject to the constant annoyance of the O'Moores, O'Byrnes, and O'Cavanaghs. And this state of affairs continued until the period of the so-called Reformation in England.
Ireland proved itself then the only spot in Western Europe where feudal laws and feudal customs could take no root. Through all other nations of the Continent those laws spread by degrees, from the countries invaded by the Northmen, into the most distant parts, modified and mitigated in some instances by the innate power of resistance left by former institutions. In this small island alone, where clanship still held its own, feudalism proved a complete failure. We merely record a fact, suggestive, indeed, of thought, which proves, if no more, at least that the Celtic nature is far more persevering and steady of purpose than is generally supposed.
But a more interesting spectacle still awaits us--that of the English themselves morally overcome and won over by the example of their antagonists, renouncing their feudal usages, and adopting manners which they had at first deemed rude and barbarous.
The treaty of Windsor, which was subsequently confirmed by many diplomatic enactments, obliged King Henry III. of England to address O'Brien of Thomond in the following words: "Rex regi Thomond salutem." The same English monarch was compelled to give O'Neill of Ulster the title of Rex, after having used, inadvertently perhaps, that of Regulus.--(Sir John Davies.) Both O'Brien and O'Neill lived in the midst of a thickly populated Irish district, with a few great English lords shut up in their castles on the borders of the respective territory of the clans.
The Norman lords in many parts of the country lived right in the midst of an Irish population, with its Brehon judges, shanachies, harpers, and other officers, attached to their customs of gossipred, fostering, tanistry, gavelkind, and other usages, which the parliaments of Drogheda, Kilkenny, Dublin, Trim, and other places, were soon to declare lewd and barbarous. The question of the moment was: Which of the two systems, clanship or feudalism, brought thus into close contact and antagonism, was to prevail?
Ere long it began to appear that the aversion first felt by the English lords at such strange customs was not entirely invincible, and many of them even went so far as to choose wives from among the native families. In fact, there lay a great example before their eyes from the outset, in the marriage of Strongbow with Eva, the daughter of McMurrough. Intermarriage soon became the prevailing custom; so that the posterity of the first invaders was, after all, to have Celtic blood in its veins.
Hence, a distinction arose between the English by blood and the English by birth. The first had, indeed, an English name; but they were born in the island, and soon came to be known as degenerate English.--That degeneracy was merely the moral effect of constant intercourse with the natives of their neighborhood. - -The others were continually shifting, being always composed of the latest new-comers from England.
It is something well worthy of remark that a residence of a short duration sufficed to blend in unison two natures so opposed as the Irish and the English. The latter, not content with wedding Irish wives, sent their own children to be fostered by their Irish friends; and the children naturally came from the nursery more Irish than their fathers. They objected no longer to becoming gossips for each other at christenings, to adopt the dress of their foster-parents, whose language was in many cases the only one which they brought from their foster-home.
Thus Ireland, even in districts which had been thoroughly devastated by the first invaders, became the old Ireland again; and the song of the bard and the melody of the harper were heard in the English castle as well as in the Irish rath.1 (1 The process of gaining over an Englishman to Irish manners is admirably described in the "Moderate Cavalier," under Cromwell, quoted by Mr. J. P. Prendergast in his second edition of the "Cromwellian Settlement," p. 263. If this process were common with the Protestant officers of Cromwell, how much more so with Catholic Anglo-Normans!)
The nationalization of their kin, which received a powerful impetus from the fact that the English who lived without the Pale escaped feudal exactions and penalties from the impossibility of enforcing the feudal laws on Irish territory, alarmed the Anglo-Normans by birth, in whose hand rested the engine of the government; and, looking around for a remedy, they could discover nothing better than acts of Parliament.
We have not been able to ascertain the precise epoch in which the first Irish Parliament was convened; indeed, to this day, it seems a debated question. The general belief, however, ascribes it to King John. The first mention of it by Ware is under the year 1333, as late as Edward III., more than one hundred and fifty years after the Conquest. But the need of stringent rules to keep the Irish at bay, and prevent the English from "degenerating," became so urgent that, in 1367, the famous Parliament met at Kilkenny, and enacted the bill known as the "Statutes of Kilkenny," in which the matter was fully elaborated, and a new order of things set on foot in Ireland.
The Irish could recognize no other Parliament than their ancient Feis; and, these having been discontinued for several centuries, they showed their appreciation of the new English institution in the manner described by Ware under the year 1413: "On the 11th of the calends of February, the morrow after St. Matthias day, a Parliament began at Dublin, and continued for the space of fifteen days; in which time the Irish burned all that stood in their way, as their usual custom was in times of other Parliaments."
The reader who is acquainted with the enactments which go by the name of the "Statutes of Kilkenny" will scarcely wonder at this mode of proceeding.
Neither at that period, nor later on save once under Henry VIII., was the Irish race represented in those assemblies. In the reign of Edward III. no Irish native nor old English resident assisted at the Parliament of Kilkenny, but only Englishmen newly arrived; for all its acts were directed against the Irish and the degenerate English--against the latter particularly. How the members composing these Parliaments were elected at that time we do not know; but they were not summoned from more than twelve counties, which number, first established by King John, gradually dwindled, until, in the reign of Henry VII., it was reduced to four, so that the Irish Parliament came to be composed of a few men, and those few representatives of purely English interests.
A true history of the times would demand an examination of the various enactments made by these so-called Irish Parliaments, as setting forth more distinctly than any thing else could do the points at variance between the two nations. Our space, however, and indeed our purpose, forbids this. In order to put the reader in possession of at least an idea of the difficulties on either side, we add a few extracts from the very famous "Statutes of Kilkenny."
The preamble sets forth "that already the English in Ireland were mere Irish in their language, names, apparel, and their manner of living, and had rejected the English laws and submitted to the Irish, with whom they had many marriages and alliances, which tended to the utter ruin and destruction of the commonwealth." And then the Statutes go on to enact --we cull from various chapters: "The English cannot any more make peace or war with the Irish without special warrant; it is made penal to the English to permit the Irish to send their cattle to graze upon their land; the Irish could not be presented by the English to any ecclesiastical benefice; they--the Irish--could not be received into any monasteries or religious houses; the English could not entertain any of their bards, or poets, or shanachies, " etc.
This extraordinary legislation proves beyond any amount of facts to what degree the posterity of the first Norman invaders of Ireland had adopted Irish customs, and made themselves one with the natives.
The Irish, therefore, had, in this instance, morally conquered their enemies, and feudalism was defeated. Another example was given of the invariable invasions of the island. The enemy, however successful at the beginning, was compelled finally to give way to the force of resistance in this people; and the time- honored customs of an ancient race survived all attempts at violent foreign innovations. The posterity of those proud nobles, who, with Giraldus Cambrensis, had found nothing but what was contemptible in this nation, so strange to their eyes, who looked upon them as an easy victim to be despoiled of their land, and that land to be occupied by them, that posterity adopted, within, comparatively speaking, a few years, the life and manners of the mere Irish in their entirety. Feudalism they renounced for the clan. Each of the great English families that first landed in the island had formed a new sept, and the clans of the Geraldines, De Courcys, and others, were admitted into full copartnership with the old Milesian septs. This the two great families of the Burkes in Connaught called their chiefs McWilllams Either and McWilliams Oughter. The Berminghams bad become McYoris; the Dixons, McJordans; the Mangles, McCostellos. Other old English families were called McHubbard, McDavid, etc.; one of the Geraldine septs was known as McMorice, another as McGibbon; the chief of Dunboyne's house became McPheris.
Meanwhile, "it was manifest," says Sir John Davies, "that those who had the government of Ireland under the crown of England intended to make a perpetual separation and enmity between the English settled in Ireland and the Irish, in the expectation that the English should in the end root out the Irish."
There is no doubt that, if these laws of Kilkenny could have been enforced and carried out, as they were meant to be, the effect hoped for by these legislators might have been the natural result. Yet even much later on, at a period, too, when the English power was considerably increased, under Henry VIII., a very curious discussion of this possibility, which took place at the time, did not by any means promise an easy realization. The following passage of the "State Papers," under the great Tudor, contains a rather sensible view of the subject, and is not so sanguine of the success of the hopes cherished by the attorney-general of James I.:
"The lande is very large--by estimation as large as Englande--so that, to enhabit the whole with new inhabiters, the number would be so great that there is no prince christened that commodiously might spare so many subjects to depart out of his regions. . . . But to enterprise the whole extirpation and totall destruction of all the Irishmen of the lande, it would be a marvellous and sumptuous charge and great difficulty, considering both the lack of enhabitors, and the great hardness and misery these Irishmen can endure, both of hunger, colde, and thirst, and evill lodging, more than the inhabitants of any other lande."
There were, therefore, evidently difficulties in the way; yet it is certain that the question of the total extirpation of the Irish has been entertained for centuries by a class of English statesmen, and confidently looked for by the English nation. Sir John Davies, as we see, attributes no other object to the Statutes of Kilkenny.
But could those statutes be enforced? were they ever enforced? The same writer pretends that they were for "several years;" but the sequel proves that they were not. The reason which he assigns for their execution--that for a certain time after that Parliament there was peace in the island--leads us to believe the contrary; for if, as he himself justly remarks before, the intention of the legislators was to create a perpetual separation and enmity between the two races, the promulgation and strict execution of those statutes would have immediately enkindled a war which could have ended only with the total extirpation of one race or the other.
And the further fact that it was thought necessary to reenact those odious laws frequently in subsequent Irish Parliaments proves that they were not carried into execution, since new legislation on the subject was demanded.
It is true that events, transmitted to us either through the Irish annals or the English chronicles, show that several attempts were made to enforce those acts of Kilkenny, chiefly against the Fitz-Thomases or Geraldines of Desmond, who pretended, even after their enactment, to be as independent of them as before, and refused to attend the Parliament when convoked, claiming the strange privilege "that the Earls of Desmond should never come to any Parliament or Grand Council, or within any walled town, but at their will or pleasure." And the Desmonds continued in their persistent opposition to the English laws until the reign of Elizabeth.
But it was against Churchmen chiefly that they were carried out in full; for we occasionally meet in the annals of the country with instances where some English prelate in Ireland had been prosecuted for having conferred orders on mere Irishmen, and that some Norman abbots had been deposed for having received mere Irishmen as monks into their monasteries.
With the exception of a few cases of this kind, no proof can be furnished that any material change was brought about in the relations of the old English settlers with their Irish neighbors. In fact, matters progressed so favorably in this friendly direction, that at length the descendants of Strongbow and his followers became, as is well known, "Hibernis Hiberniores," and the judges sent from England could hold their circuit only in the four counties between the Liffey and the Boyne; and the name given to the majority of the old English families was "English rebels," while the natives were called "Irish enemies."
Sir John Davies himself is forced to admit it: "When the civil government grew so weak and so loose that the English lords would not suffer the English laws to be executed within their territories and seigniories, but in place thereof both they and their people embraced the Irish customs, then the state of things, like a game at Irish, was so turned about, that the English, who hoped to make a perfect conquest of the Irish, were by them perfectly and absolutely conquered, because Victi victoribus leges dedere."
The truth could not be expressed in more explicit terms. Yet all has not been said. The same persevering character, making headway against apparently insurmountable obstacles, shows itself conspicuously in the Irish, in the preservation of their land, which, after all, was the great object of contention between the two races.
The first Anglo-Norman invaders, including Henry II himself, had no other object in view than gradually to occupy the whole territory, subject it to the feudal laws, give to Englishmen the position of feudal lords, and reduce the Irish to that of villeins, if they could not succeed in rooting them out.
A few years later, by the Treaty of Windsor, the king seemed to confine his pretensions to Leinster, and perhaps Meath, and expressly allowed the natives to keep their lands in the other districts of the island. Yet none of his former grants, by which "he had cantonned the whole island between ten Englishmen," were recalled; the continued as part of and means to shape the policy of the invaders, and subsequent Parliaments always supposed the validity of those former grants made to Strongbow and his followers.
It is true that those posterior Acts of Parliament did not merely rely for their strength on the first documents, but on the pretence that the Irish chieftains and people outside of Leinster and Meath had justly forfeited their estates by not fulfilling the conditions virtually contained in the Windsor Treaty, in which they had professed homage and submission to the English king. It is clear that, lawfully or unlawfully, the Anglo-Normans were determined to gain possession, sooner or later, of the whole island.
To secure their end, they declared that the natives would not be subject to the English laws, but retain their Brehon laws, which in their eyes were no laws at all, and which the Parliament of Kilkenny had declared to be "lewd customs." Henceforth, then, the natives were out of the pale of the law, could not claim its protection, but became subject to the crown of England, without political, civil, or even human rights.
They were soon, by reason of the constant border wars all around the Pale, declared "alien and enemies." And these expressions became, in the eyes of the English lawyers, identical with the Irish race and the Irish nature; so that at all times, peace or war, even when the Irish fought in the English ranks, aiding the Plantagenets in their furious contests with the Scotch or the French, they were still "Irish enemies;" "aliens" unworthy human rights, villeins in whose veins no noble blood could flow, with the exception of five families.
All the rest were not only ignoble, but not even men; nothing but mere Irish, whom any one might kill, even though serving under the English crown, at a risk of being fined five marks, to be paid to the treasury of the King of England, for having deprived his majesty of a serviceable tool.
This (to modern eyes) astounding social state demands a closer examination in order to see if, at least, it had the merit of finally procuring for the English the possession of the land they coveted.
We find first that Henry II., John, and Henry III., would seem on several occasions to have extended the laws of England all over the island. But all English legists will tell us that those laws were only for the inhabitants of English blood. The mere Irish were always reputed aliens, or, rather, enemies to the crown, so that it was, " by actual fact, often adjudged no felony to kill a mere Irish in time of peace," as Sir John Davies expressly points out.
Five families alone were excepted from the general category and acknowledged to be of noble blood--the O'Neills of Ulster, the O'Melachlins of Meath, the O'Connors of Connaught, the O'Briens of Munster, and the McMurroughs of Leinster.
Those five families, numerous certainly, but forming only as many septs, were, or appeared to be, acknowledged as having a right to their lands, and as able to bring or defend actions at law. We say, appeared to be, because they found themselves on so many occasions ranked as mere Irish, that individuals of those septs, induced by sheer necessity, were often driven, in spite of an almost invincible repugnance, to apply for and accept special charters of naturalization from the English kings. Thus in the reign of Edward IV., O'Neill, on the occasion of his marriage with a daughter of the house of Kildare, was made an English citizen by special act of Parliament.
In reality then, even the most illustrious members of the "five bloods" were scarcely considered as enjoying the full rights of the lowest English vassals, although their ancestors had been acknowledged kings by former Anglo-Norman monarchs in public documents: "Rex Henricus regi O'Neill," etc.
But if there was some shadow of doubt with regard to the political and social rights of those great families, such doubt did not exist for the remainder of the Irish race. They were absolutely without rights. Depriving them of their lands, pillaging their houses, devastating their farms, outraging their wives and daughters, killing them, could not subject the guilty to any civil or criminal action at law. In fact, as we have shown, such acts were in accordance with the spirit, even with the letter of the law, so that the criminal, as we should consider him, had but to plead that the man whom he had robbed or killed was a mere Irishman, and the proceedings were immediately stopped, if this all-important fact were proved; and in case of homicide the murderer escaped by the payment of the fine of five marks to the treasury.
To modern, even to English ears, all this may sound incredible. Many striking examples of the truth of it might be produced. They are to be found in all works which treat of the subject. Sir John Davies, that great Irish hater, evidently takes a genuine delight in depicting several such instances with all their aggravating details, scarcely expecting that every word he wrote would serve to brand forever with shame Anglo-Norman England.
Under such legislation it was clear that life on the borders of the Pale was not only insecure, but that the soil would remain in the grasp of the strongest. Any Anglo-Norman only required the power in order to take possession of the land of his neighbor.
But it is not in man's nature to submit to such galling thraldom as this, without at least an attempt at retaliation. Least of all was it the nature of such a people to submit to such measures--a nation, the most ancient in Europe, dating their ownership of the soil as far back as man's memory could go, civilized before Scandinavia became a nest of pirates, Christianized from the fifth century, and the spreader of literature, civilization, and the holy faith of Christ through England, Scotland, Germany, France, and Northern Italy.
If we have dwelt a little, and only a little, upon the intensity of the contest waged for four hundred years previous to the added atrocities introduced by the Reformation, we have done so advisedly, since it has become a fashion of late to throw a gloss over the past, to ignore it, to let the dead bury their dead--all which would be very well, could it be done, and could writers forget to stamp the Irish as unsociable, barbarous, and bloodthirsty, because with arms in their hands, and a fire ardent and sacred in their souls, they strove again and again to reconquer the territory which had been won from them by fraud, and because they thought it fair to kill in open fight the men who avowed that they could kill them even in peace at a penalty of five marks.
The contest, therefore, never ceased; how could it ? But, in that endless conflict between the two races, the loss of territory leaned rather to the English side. If, with the help of their castles, better discipline, and arms, the English at first gained on the natives and extended their possessions beyond the Pale, a reaction soon set in--the Irish had their day of revenge, and entered again into possession of the land of which they had been robbed. In order to repair their losses, the Anglo-Normans had recourse to acts of Parliament, which could bind not only the English of the Pale, but also those of other districts, who, enjoying the privileges of English law, were likewise bound by its provisions.
In order rightly to understand the need and purposes of those enactments, we must return a moment to the days of the conquest.
The case of Strongbow will illustrate many others. He married Eva, the daughter of McMurrough, and thus allied himself to the best families of Leinster. On the death of his father-in-law, he received the whole kingdom as his inheritance. The greater part of his dominions, which he either would not or could not govern himself, he was compelled to distribute, in the usual style, among his followers. He distributed large estates as fiefs among those who had followed his fortunes, but he could not forget his Irish relatives, to whom he had become strongly attached. He secured, therefore, to many Irish families the territory which was formerly theirs, and many of his English adherents, who, like himself, had married daughters of the soil, did the same in their more limited territories. This explains fully why Irish families remained in Leinster after the settlement of the Anglo-Normans there, who established their Pale in it, as also why they continued to possess their lands in the midst of the English as they had formerly done in the midst of the Danes.
The same thing took place in the kingdom of Cork, on the borders of Connaught, and around the seaports of Ulster, wherever the English had established themselves and erected castles and fortifications.
But, over and above the Irish families, which, by their alliance by marriage and fosterage with the English, retained their lands and gradually increased them, many others, natives of the soil, reentered into possession of their former territory by the withdrawal of the Anglo-Norman holders of fiefs. Constant border wars, the necessary consequence of the English policy, could not but discourage in course of time many Englishmen, who, owning large possessions also in England and Wales, preferred to return to their own country rather than remain with their wives and children in a constant state of alarm, compelled to reside within their castles, in dread of an attack at any moment from their Irish neighbors.
Moreover, the vast majority of the Irish, who did not enjoy the benefit of these special privileges, who, deprived of their lands at the first invasion, had remained really outlaws, and never entered into matrimonial or social alliance with their enemies, these men could not consent to starve and perish on their own soil, in the island which they loved and from which they could not--had they so chosen--escape by emigration. One resource remained to them, and they grasped at it. They had their own mountain fastnesses and bogs to fly to, and from those recesses they could harass the invader, and inch by inch win back their lawful inheritance.
They were often even encouraged in their attacks and depredations by the English of the Pale and out of it, who, unwilling longer to submit to the grinding feudal laws and exactions, could prevent the English judges, sheriffs, escheators, and other king's officers from executing the law against them, and thus they held out in their mountains, bogs, and rocky crags, in the midst of the invaders of their soil.
A necessity arose then, on the part of the English rulers, of adopting measures calculated to prevent a further acquisition of territory by the Irish, if not to extend the English settlements. They saw no other remedy than acts of Parliament, which they thought would at least prevent the subjects of English blood from assisting the Irish to reenter into possession, as was then being done on so extensive a scale.
To effect this they revived the former statutes by which the Irish were placed without the protection of the law, were declared aliens and enemies, and were consequently denied the right of bringing actions in any of the English courts for trespasses on their lands, or for violence done to their persons.
They soon advanced a step beyond this. The Irish were forbidden to purchase land, though the English were at liberty to occupy by force the landed property of the Irish, whenever they were strong enough to do so. An Irishman could acquire neither by gift nor purchase a rood of land which was the property of an Englishman. Thus, in every charter afterward granted to the few Irishmen who applied for them, it was expressly stated that they could purchase land for themselves and their heirs, which, without this special provision, they could not do; while for an Englishman to dispose of his landed property by will, gift, or sale to an Irishman, was equivalent to forfeiting his estate to the crown. The officers of the exchequer were directed by those acts of Parliament to hold inquisitions for the purpose of obtaining returns of such deeds of conveyance, in order to enrich the king's treasury by confiscations and forfeitures; and the statute-rolls, preserved to this day in Dublin and London, show that such prosecutions often took place, with the invariable result of forfeiture.
The decision of the courts was always in favor of the crown, even in cases where the deed of conveyance or will was of no benefit to the person in whose favor it was drawn, but simply a trust for a third person of English race. And the great number of cases in which the inquisitions were set aside, as appears from the Parliament-rolls, for the finding having been malicious and untrue--the parties complained of not being Irish but English-- prove what we allege, namely, that an Irishman could not take land by conveyance from an Englishman.
Yet, as Mr. Prendergast justly says: "Notwithstanding these prohibitions and laws of the Irish Parliament, the Irish grew and increased upon the English, and the Celtic customs overspread the feudal, until at length the administration of the feudal law was confined to little more than the few counties lying within the line of the Liffey and the Boyne."
Let us now glance, in conclusion, at the result of more than four centuries of feudal oppression.
Ireland rejected feudalism from the beginning, and this at a time when Europe had been compelled to adopt it, more or less, throughout.
The distinction between lords and villeins, so marked in all other countries, remained at the end as it was at the beginning of the contest, a thing unknown in the island. Even in the Pale, the presence of the O'Moores, O'Byrnes, O'Kavanaghs, and other septs, protested against and openly denied, from moor and glen and mountain fastness, that outrage on humanity, which bestows on the few every thing meant for all. The Brehon law was in full force all over the island, and if the Irish allowed the English judges to ride on their circuits within the four counties, it was on the full understanding that they would administer their justice only to English subjects, and levy their feudal dues, and pronounce their forfeitures and confiscations on such only as acknowledged the king's right on the premises. The laws enacted in the pretended Irish Parliament were only for such as called themselves English by birth; for even the English by blood, whose ancestors had long resided on the island, frequently refused to submit to the laws of Parliament, where they would not sit themselves, although possessing the right to do so.
In vain was the threat of compulsion held up again and again before the eyes of the great lords of Desmond, Thomond, and Connaught. If they chose, they went; if they chose not, they remained at home; and obeyed or disobeyed at will the laws themselves, according as they were able or unable to set them at defiance.
The castles which had been built all over the country by the first invaders, as a means of awing into subjection the surrounding districts, were at the beginning of the fifteenth century no longer feudal castles. They had either been destroyed and levelled to the ground by the Irish, or they were occupied by Irish chieftains; or, stranger still, if their holders were English lords, they were of those who had been won over to Irish manners. In their halls all the old customs of Erin were preserved. One saw therein groups of shanachies, and harpers, and Brehon lawyers, all conversing with their chieftain in the primitive language of the country. Hence were they called degenerate by the "foreigners" living in Dublin Castle. The mansions of the Desmonds, of the Burgos, of the Ormonds, were the headquarters of their respective clans, not the inaccessible fortresses of steel-clad warriors, who alone were possessed of social and civil rights. If the master of the household held sometimes the title of earl, or count, or baron, he was careful never to use it before his retainers, whom he called his clansmen. When he went to Dublin or to London, he donned it with the dress of a knight or a great feudal lord; on his return home he threw it aside, resumed the cloak of the country, and was Irish again.
The subject of feudal titles in Ireland has not been sufficiently studied and elucidated. A clearer light thrown on this question would, we have no doubt, show more conclusively than long discussions with what stubbornness the Irish refused to submit to the reality of feudalism, even when consenting to admit its presence and phraseology. It is a fact not sufficiently dwelt upon, that the few Irishmen, who subsequently consented to receive English titles from the king, were regarded by their countrymen with greater abhorrence than the English themselves, though in most cases the titles were empty ones, which affected nothing in their mode of life. Yet were they looked upon as apostates to their nation, and after the Reformation such a step was often the first to apostasy of religion, the deepest stain on an Irish name.
Feudalism had also its mode of taxation which failed with the rest in Ireland.
In feudal countries the lord imposed no tax on his villeins; these were mere chattels, ascripti gleboe, who tilled the land for their masters, and, as good serfs, could own nothing but the few utensils of their miserable hovels. They were just allowed what sufficed to support their own life and that of their families, and consequently they could bear no additional tax. But, in the complicated state of society brought about by feudalism, the inferior lord was taxed by his superior, a system that ran down the whole feudal scale, and it would take a lawyer to explain aids, talliages, wardships, fines for alienation, seizins, rents, escheats, and finally forfeiture, the heaviest and most common of all in England.
The Irish fought valiantly against the imposition of those burdens, and aided the English settled among them to repudiate them all in course of time.
It must be said, however, that they did not succeed in preventing their own taxes, according to the Book of Rights, from becoming heavier under the ingenuity of the English who were established among them and admitted to all the rights of clanship. We see by documents which have been better studied of late, that the great Anglo-Irish lords had succeeded in increasing the burdens in the shape of exactions, which were never complained of by the Irish.
On this subject Dr. O'Donovan, in the preface to his edition of the "Book of Rights," is worthy of perusal.
But it is chiefly in the very essence of feudalism that the failure of the Anglo-Normans was most signal. Feudalism really consisted in the status given to the land, the possession of which determined and gave all rights, so that, according to it, man was made for the land rather than the land for man. He was placed on the land with the beasts of the field as far as tillage and production went, until the system should round to perfection and finally bring to the surface the new principles of social economy, according to which the greater the number of cattle and the fewer the number of men, the more prosperous and happy might the country be said to be.
The Irish staked their existence against those principles, and won. So complete was their victory that the feudal barons who first came among them finally yielded to clanship, became the chiefs of new clans, and opened their territories to all who chose to send their horses and kine to graze in the chief's domains. In vain did Irish Parliaments issue writs of forfeiture against the English lords who acted thus, for between the law and its execution the clans intervened, and no sheriff or judge could step beyond the bounds of the four counties of the Pale to enforce those acts.
It is told of one of the Irish chieftains that on receiving intimation from a high English official of a sheriff's visit on the next breach of some new law or ordinance, for the safety of which sheriff he would be held responsible, he replied: "You will do well to let me know at the same time what will be the amount of his eric, in case of his murder, that I may beforehand assess it on the clan."
This story may tend better than any thing else to give a clear reason for the failure of feudalism in Ireland.