Ireland under the Tudors, with a Succinct Account of the Earlier History. Vol. 1 (of 3)

Growth of representative institutions

Accepting 1295 as the date at which English Parliamentary representation settled down into something like its modern shape, we find that the great Plantagenet was not unmindful of Ireland. In that same year the justiciary Wogan issued writs to the prelates and nobles, and also to the sheriffs of Dublin, Louth, Kildare, Waterford, Tipperary, Cork, Limerick, Kerry, Connaught, and Roscommon, and to the seneschals of the liberties of Meath, Wexford, Carlow, Kilkenny, and Ulster. The sheriffs and seneschals were ordered to proceed to the election of two good and discreet knights from each county or liberty, who were to have full power to act for their districts. It does not appear that cities and boroughs were represented on this occasion; but in 1300, Wogan being still justiciary, writs were directed to counties for the election of three or four members, and to cities and boroughs for the election of two or three. The King’s principal object was to get money for his Scotch war; and, with this view, Wogan visited Drogheda and other places and extorted benevolence before the Parliament met. A certain supremacy was not denied to the English Parliament, for in 1290 a vast number of petitions were made to the King in Parliament at Westminster. Among the petitioners was the Viceroy, John Sandford, Archbishop of Dublin, who begged the King to consider the state of Ireland, of which he had already advised him through Geoffrey de Joinville, a former Viceroy, who was sitting in Parliament with others of the King’s Council in Ireland. Edward I. answered that he was very busy, but that he had the matter much at heart, and that he would attend to it as soon as he could.40

Parliament of 1295

Of the Parliament of 1295 a particular record has fortunately been preserved. Each sheriff was ordered to make his election in the full county court, and each seneschal in the full court of the liberty, and they were to attend Parliament in their proper persons – to verify the returns no doubt. The personal attendance of the sheriffs was required in England until 1406. The magnates who were summoned to Wogan’s Parliament behaved as we might expect to find them behave. The Bishops of the South and East came. The Archbishop of Armagh and his suffragans sent proctors with excuses for non-attendance. The Archbishop of Tuam and his suffragans neither came nor apologised. The absence of Hugo de Lacy, one of those elected by the county of Limerick, is particularly noted, whence we may infer that the other shires and liberties were duly represented. Richard, Earl of Ulster, was present. This Parliament principally occupied itself with making regulations as to the treatment of the Irish, and in devising means for checking their inroads upon the colonised districts. The descendants of the first conquerors were already beginning to adopt Celtic customs.41

Parliaments of Edward II. and Edward III

Under Edward II. Parliaments were frequent; and writs are extant which show that he, as well as Edward III., intended them to be held annually. Cases occur of bishops, priors, and temporal peers being fined for non-attendance in this reign, and there is good reason to believe that those who were summoned to Parliament generally came. In 1311 writs for a Parliament to be held at Kilkenny were issued by the justiciary Wogan to Richard, Earl of Ulster, and eighty-seven other men of name, to the prelates and ecclesiastical magnates, and to the sheriffs. The sheriffs were ordered to summon two knights from every county, and two citizens or burgesses from every city or borough, who were to have full power to act for their several communities in conjunction with the magnates, lay and clerical. Owing probably to the shape which Bruce’s invasion gave to the English colony, the Parliaments of Edward III. are more strictly confined to the districts where the King had real as well as nominal authority. The murder of the last Earl of Ulster in 1333, and the conversion of the De Burghs into Irishmen, almost completed the work of destruction which Bruce had only just failed to effect. To the Parliament of 1360, the Archbishops of Dublin and Cashel, the Bishops of Meath, Kildare, Lismore, Killaloe, Limerick, Emly, Cloyne, and Ferns, and the Abbots of St. Mary’s and St. Thomas’s at Dublin were the only prelates summoned. The Earls of Kildare and Desmond and eight knights were called up by name. Writs for the election of two knights were issued to the sheriffs of the counties of Dublin, Carlow, Louth, Kildare, Waterford, Limerick, and Cork, and of the crosses of Meath, Kilkenny, Wexford, and Tipperary; and to the seneschals of the liberties of Kilkenny, Meath, Tipperary, and Wexford. Writs for the election of citizens and burgesses were no longer directed to the sheriffs, but the mayor and bailiffs of Dublin, Drogheda, Cork, Waterford, and Limerick, the sovereign and bailiffs of Kilkenny and Ross, and the provost and bailiffs of Clonmel and Wexford were ordered to return two members each. The sheriff of Kildare and the seneschal of the liberty of Kilkenny were told what individuals they were expected to see elected. The House of Commons was then supposed to consist of twenty-eight knights and twenty-four citizens and burgesses; but the counties of Dublin and Carlow were ‘justly excused’ on account of the war, and the members for Drogheda, who omitted to come, were summoned before the Council under a penalty of 40l.42

Parliament of Kilkenny

The famous Parliament which Lionel, Duke of Clarence, held at Kilkenny in 1367 was probably attended by representatives from a very limited district; for there were but forty members of the House of Commons in March 1374, and of these four came from the county of Dublin. But in November 1374 the number was fifty-four; in 1377 it rose to sixty-two; and in 1380 and 1382 it was fifty-eight. We may, therefore, take the number of county and borough members at the close of the fourteenth century as about sixty. The counties generally represented were Dublin, Kildare, Carlow, Meath, Louth, Waterford, Cork, Limerick, and Wexford, the liberties of Ulster, Meath, Tipperary, Kerry, and Kilkenny, and the crosses of Ulster, Tipperary, Kilkenny, and Kerry. The cities were Dublin, Cork, Waterford, Kilkenny, and Limerick, and the towns were Drogheda, Youghal, Ross, Wexford, Galway, and Athenry. Longford was a county in 1377, but was not maintained as shire ground. Many Parliaments met during the fifteenth century, but their action was more and more confined to the district round Dublin, which about the middle of the century came to be called the Pale.43

Hereditary peers

1295 will probably be accepted as the date when English barons who had once sat in Parliament claimed an hereditary right to their writs of summons. It would seem that the origin of the Irish peerage, using the word in its modern sense, must be referred to a somewhat later date; for eighty-seven persons, who were perhaps all tenants of the Crown, were summoned by name to the Kilkenny Parliament in 1311. The subject is not of great historical importance, because the period of transition coincides with that in which the encroachments of the natives reduced feudal Ireland to its lowest estate. In the sixteenth century the title of baron was still popularly given to the heads of some families who had formerly been barons by tenure, but who had lost all Parliamentary rights. As in England, the knights of the shire had become the proper representatives of the gentry, and peerage grew to be the special creation of the Crown. In the Parliament of 1560 there were twenty-three temporal peers, and of these eight had been created within the century. It will be safe to assume that the number of temporal peers sitting in the Irish Parliament at any time during the one hundred years preceding Elizabeth’s accession was well under thirty.44

Spiritual peers

The number of spiritual greatly exceeded the number of temporal peers. There were four archbishops from the first sending of the palls in 1151. If we take the year 1500, after some unions had been effected and before the great quarrel between King and Pope, we find that there were twenty-six bishops in Ireland. Some of the more distant ones were perhaps never summoned to Parliament, and long before the close of the fifteenth century we cannot doubt that many had ceased to attend the shrunken legislature of the Pale. In 1293 John, Bishop of Clonfert, an Italian and the Pope’s nuncio, was fined for non-attendance; and similar penalties were imposed on Bishops of Ferns, Ossory, Cork, Ardfert, Limerick, Down, and Emly, during the reigns of Edward II., Edward III., and Richard II. There were thirteen mitred Abbots of the Cistercian order, ten mitred Priors of Augustinian canons; and the Grand Prior of Kilmainham, who represented the wealth and importance of the proscribed Templars as well as of the Hospitallers, had always a seat in Parliament. The Prior of Kilmainham was so important a person that upon the suppression of the order of St. John, Henry VIII. made its last chief a peer. The Abbot of St. Mary’s and the Prior of St. Thomas’s were always summoned, but it is clear that in earlier days all the mitred heads of houses were considered real as well as nominal spiritual peers. The Prior of Athassel was fined for non-attendance in 1323, the Abbot of Owney in 1325, and the Abbot of Jerpoint in 1377. Much obscurity hangs over the mediæval House of Lords in Ireland; but it must generally have rested with the Viceroy whether the temporal or spiritual peers should be most numerous in any particular Parliament.45

The clergy as a separate estate. Proctors

The existence of the clergy as a separate estate in Ireland is less clear than in England; but they had the right of taxing themselves, for in 1538 the Lords Spiritual were thanked by Henry VIII. for granting him an annual twentieth of all their promotions, benefices, and possessions. Proctors of the clergy attended the Lower House, and when Henry VIII. undertook his ecclesiastical innovations, they claimed the right to veto bills. It was, however, easily shown that their consent had not formerly been held necessary; and in 1537 an Act was passed declaring the proctors to be no members of Parliament. The preamble states that two proctors from each diocese had been usually summoned to attend Parliament; but that they had neither voice nor vote, and were only ‘counsellors and assistants upon such things of learning as should happen in controversy to declare their opinions, much like as the Convocation within the realm of England.’ Their pretensions to a veto were formally pronounced baseless, and it was declared once for all that the assent or dissent of the proctors could have no effect on the action of Parliament.46

The Viceroy

The representative of the King in Ireland was generally styled justiciar for a long time after the first invasion. His powers were analogous to that of the great officer of State in England who had the same title, and who acted as regent during the frequent absences of the kings. The title of justiciar continued to be given to the Irish viceroys long after the English justiciarship changed its character – that is, about the close of Henry III.’s reign. The first person who had the title of Lord Lieutenant, if we except the early case of John de Courcy, appears to have been Lionel, Earl of Ulster and Duke of Clarence, who was sent to Ireland in 1361. Afterwards it became a common practice to make one of the royal family Lord Lieutenant, the duties being usually performed by a deputy. But the title of Lord Lieutenant, though considered higher than any other, was not confined to princes. In time the title of Deputy was given to Governors of Ireland, even when no Lord Lieutenant intervened between them and the King. Richard of York was the last Lord Lieutenant of royal blood who actually ruled at Dublin. After his time the real government was in the hands of the Earls of Kildare, who were Lords Deputy, with but brief intervals, from 1478 to 1526. During that period the title of Lord Lieutenant, but the title only, was enjoyed by Edward, Prince of Wales, by John de la Pole, Earl of Lincoln, by Jasper, Duke of Bedford, and by Henry VIII. before his accession to the Crown. In the meantime, the word justiciar, or Lord Justice, had come to mean a temporary substitute for the Deputy or Lieutenant. When a sovereign died, or when a viceroy suddenly left Ireland, it became the business of the Council to elect some one in his room. When giving leave to a governor to leave his post, the sovereign sometimes named the Lord Justice. Lord Capel, who was appointed in 1695, was the last chief governor who had the title of Deputy. Since the Revolution, the head of the Irish Government has always been a Lord Lieutenant, and during his absence one, or two, or three Lords Justices have been appointed by the Irish Privy Council.47

CHAPTER VIII.

THE REIGN OF HENRY VII

Accession of Henry VII., 1485

Ireland was destined to give the victor of Bosworth much trouble, but his accession made little immediate difference to the Anglo-Irish community. Kildare continued to act as Chief Governor, and on the nomination of Jasper, Duke of Bedford, to the Lord Lieutenancy, he was formally appointed Deputy under him. His brother Thomas was allowed to retain the Great Seal. While thus leaving the administration of the island to the Yorkist Geraldines, Henry lost no time in restoring the rival House, which had suffered in defence of the Red Rose. Sir Thomas Butler was by Act of Parliament at once restored in blood, became seventh Earl of Ormonde, and was taken into high favour. The practical leadership of the Irish Butlers was, however, never held by him, and the disputes concerning it had no doubt great effect in consolidating Kildare’s power.

The Ormonde family. Sir Piers Butler

John, sixth Earl of Ormonde, who never lived in Ireland, appointed as his deputy his cousin, Sir Edmund Butler. Earl John dying in Palestine, his brother Thomas succeeded him, and continued Sir Edmund in the custody of the Irish estates. Sir Edmund by will granted to his son Piers the same power as he had himself held, but it does not appear that this curious bequest was acknowledged either by the Earl of Ormonde or by the people of Kilkenny and Tipperary. Sir James Ormonde, as he is called, a bastard son of the fifth Earl, became the real chief of the Butlers, and is often called Earl by Irish writers; the rules of legitimate descent being then very lightly regarded in Ireland. Sir James received a regular commission from Thomas, Earl of Ormonde, as his deputy, supervisor, ‘and general and special attorney’ in Kilkenny. Strong in the confidence of the rightful Earl and in the estimation of the people, Sir James became Kildare’s chief opponent; who to weaken him espoused the cause of Sir Piers, to whom he gave his daughter Lady Margaret in marriage. ‘By that means and policy,’ says the ‘Book of Howth,’ ‘the Earl of Wormond (i. e.

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1

As to the divisions and sub-divisions of the ancient Irish people, I prefer to give the following statement of Dr. Sullivan: – ‘The unit territory was the Tuath, each of which had a Ri, or chief. Three, four, or even more Tuatha were connected together for military and other purposes as a Mór Tuath; the king or chief of the confederacy, who acted as Commander-in-Chief, was the Ri Mór Tuatha, or great chief. This group corresponded to the Gothic Thiuda, old Norse Thjoth. The Irish unit Tuath corresponded to the Norse Fylk, the Teutonic Gavi or Gau, the Greek Phyle, and the old Latin Tribus; it was at first genealogical, but acquired a geographical and political signification. The tribe or Tuath consisted in some cases of a Clann, the progeny or descendants of a chief. Sometimes a Clann embraced several Tuatha. Clann was strictly genealogical, Tuath both genealogical and geographical. The Clann consisted of families or houses called Fine, equivalent to Cognatio– the Anglo-Saxon Maegth. The head of a Fine was the Cendfinne or chieftain. The Fine was a sept. The Clann therefore consisted of several septs, and the land of the tribe or Tuath was divided between the septs or Fine composing it. The Fine or sept is one of the most important parts of the Irish organisation, but the word is used in several senses: thus, the relatives of a chief or other tribesman to the fifth degree constituted the true Cognatio or Geilfine, i.e. Hand-fine. The Fine or sept was in fact an independent unit, which paid Erics for all its members, and received Erics or fines for the killing of one of its own members, and also took possession of the Dibad or property of its deceased members. But when the sept did not fulfil its obligations, the Ri of the Tuath was bound to enforce justice. So when the Tuath itself failed in its obligations and duties, the Ri Mór Tuatha or superior chief was bound to enforce justice in the recalcitrant tribe. The Ri Mór Tuatha, or Ri buiden, or king of companies, corresponded to the Anglo-Saxon Heretoga or Dux. The King of the Great Tribe received hostages from the sub-reguli of his territory for their Ceílsine or fealty, and he might call upon them to support him with a levy of their tribes.’

2

‘The existence of the Irish Pentarchy,’ says Dr. Sullivan, ‘was as real as that of any similar confederacy among nations in a tribal stage, and the means of enforcing the orders of the over-king were not very different or less effective than in many federal states – ancient, mediæval, and modern.’

3

‘It is quite true,’ says Dr. Sullivan, ‘that the central power was not always strong enough to enforce rights, and in many instances was defeated in its attempt to do so. But in what does this differ from other federal states, ancient and modern? The Emperors of Germany were not always able to subdue and to enforce their decrees against the princes and nobles of the Empire, and in numerous instances the decisions of the imperial chancery might be regarded in precisely the same light – as mere arbitrations. To say there was no law, properly speaking, seems to me wholly irreconcilable with actual facts, and especially with the existence of a rich and elaborate nomenclature of native terms not borrowed from Roman law. This nomenclature implies an equally elaborate machinery. It was the existence of this legal system which kept out the canon law, which never, for instance, succeeded in suppressing or even modifying the marriage customs. In discussing the laws and institutions of early nations we are liable to go to one or other of two extremes: – (1) We represent the laws, &c., in terms of modern law, by which we make inchoate institutions full-grown, while the germs of a legal system are represented as a fully developed code; or (2) we deny the existence of all law and legislation. You are right I think as regards the Church; for owing to the organisation of the old Celtic Church it was perfectly acephalous. Whatever influence it did exert was individual and never official, and, therefore, not continuous – it might be described in fact as sporadic influence.’

4

‘All through the laws,’ says Dr. Sullivan, ‘there is ample evidence to prove that the tribesmen, or Aires, were bound to take stock from the Ri, or chief, only. The amount of this stock, called Saer, or free-stock, is strictly laid down, and the amount of the tribute payable for this stock, called Bestigi, or house-refection, or tribute, is also strictly laid down. But if the Ri were wealthy he might offer more stock to his Ceiles, clients or vassals, on condition of paying him certain dues, called Biatad. The stock so given was called Daer, or base-stock; and its acceptance by a tribesman made a Daer-ceilé of him, and placed him very much in the power of the Ri, or chief. No tribesman could accept Daer-stock without the consent of his Fine, or sept, which would be bound by the acts of its members. A tribesman, with the consent of his Fine, might accept Daer-stock from any Flath, or lord, in his own Tuath, or tribe. All the above applies to the tribesmen, or Aires, who alone constituted the free class. But besides the Ceiles, or clients, or free tribesmen, or Aires, there was another class, called Fuidirs. The markland of the tribe and the land held in severalty of the Ri, and the similar land of the Cendfinne, or chieftain (or captain, as he is called in the Scottish Highlands) of a sept was let out to various classes of Fuidirs. Some were Saer, or free Fuidirs, and others Daer, or base Fuidirs. The Saer-fuidirs, again, were of two sorts – broken tribesmen who went into another Tuath and got stock as well as land from a Ri, or Flath, and Saer-fuidirs who possessed some stock of their own which they grazed on land of a chief or of a Flath. Some of these free Fuidirs entered into daer, or servitude, by accepting stock under certain conditions. The Fuidir classes were the true tenants at will. The Aires were of the clan, the Fuidirs, Bottachs, or cottiers, and other servile classes, belonged to the clan. The giving and taking of Daer-stock depended upon the impoverishment of a sept through cattle murrain, the levying of blood-fines on account of the misconduct of some of its members, &c. But the whole thing was voluntary, and depended on the poverty of a sept and the wealth and ability of the Ri, or Flath.’

5

Dr. Sullivan does not think Christianity was fully established by the middle of the seventh century. ‘The Irish Church organisation,’ he says, ‘was ill calculated to influence the social habits and the political life of the people; unlike the diocesan and centralised system of the Latin Church. Hence a high spiritual life and intellectual cultivation within the numerous cœnobiums was quite compatible with practical paganism and disorder outside.’

6

‘At all times’ must be understood to refer only to those comparatively modern ages above mentioned.

7

‘The election,’ says Dr. Sullivan, ‘was always from the Geilfine, or relatives within the fifth degree. Should the Geilfine fail, or be all killed in battle, the Derbfine, or relatives from the fifth to the ninth degree, came in.’

8

‘This,’ says Dr. Sullivan, ‘is not right. There was the “joint undivided family” formed by the Bo-aire class, or freemen possessed of cattle. The poorer Flaths, or heads of septs, did not gavel their possessions, but either elected a tanist or formed a “joint undivided family.” When the property of an Aire was not sufficient to gavel, so as to qualify one or more Aires, the division of the inheritance did not take place, but the parties agreed to form a “joint undivided family.” In such a family one was head, and as such was an Aire. Bo-aires of this class, to avoid the gavelling of their property, elected a Tanist– the Tanaise Bo-aire. Poor and broken tribesmen, not having sufficient wealth to qualify them as Aires, formed a “joint-family,” or Congilda. Every Flath, or head of a sept, had a tanist also. The Irish “joint-family” was an institution of great importance and of surpassing interest in the comparative history of the Aryan family.’

9

‘This account of Davies,’ says Dr. Sullivan, ‘is entirely wrong. The law of the distribution of the property of a deceased tribesman was most carefully laid down. No doubt then as now, and naturally more frequently then than now, a chief, or head of a sept, or of a Treb (homestead) might usurp power he did not possess, and do wrong.’