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Beatrix Färber (ed.)
Prof. Ian Gentles, Dept of History, Tyndale University, Toronto (ed.)
Beatrix Färber (ed.)
Benjamin Hazard (ed.)
Benjamin Hazard (Data capture)
Hiram Morgan (ed.)
This tract was not ascribed to a particular author either in the Huntington Library's catalogue or in Analecta Hibernica VIII (1938) which contains an inventory of the Irish material in Huntington's Ellesmere collection. When it was first published in extenso in the Irish Jurist (1995-6), I established that the author was Sir John Davies, the Attorney-General of Ireland, and dated it to 1609/10. This attribution was straightforward because numerous sentences and passages recurred in Davies' important book A Discovery of the true causes why Ireland was never entirely subdued or brought under obedience of the Crowne of England untill the beginninge of His Maiesties happie reigne (London, 1612). Since then I have come across a letter from Davies, who was in London dealing with proposals for a plantation of Ulster, written to Robert Cecil, the earl of Salisbury, dated 21 January 1609. This note, now deposited amongst the Irish State Papers, is clearly an original covering letter and as such establishes the context in which the tract was written. The conception of the document had its origins in a discussion between Cecil and Davies about the policy of surrender and regrant in Ireland whereby Irish lords surrendered territories held under native tenure to the crown and received them back in the form of royal grants as feudatories of the crown. This policy had been pursued on and off in Ireland since 1541 and had recently gathered finishing momentum with the completion of the Elizabethan conquest. There was also a specific context which brought the policy to Cecil's attention because in December 1608 and January 1609 Brian Kelly, who had served with the English army in the Netherlands, was at court petitioning to surrender and have a regrant of his late father's lands in Connacht. On the day prior to this letter of Davies' to Cecil, the English Privy Council headed by Cecil had written to Sir Arthur Chichester, the Lord Deputy of Ireland, to have Kelly's claim investigated and settled.1 As a result Sir John Davies took the opportunity to write a note on Irish law, which included the matter of tenures, to Cecil. It was an opportunity to ingratiate himself with Cecil, the Lord Treasurer of England, and to show off his knowledge about a relatively obscure subject. He further sought to ingratiate himself by making him a gift of booksworks by continental authors on commercial and civil law and also the medieval writings of Giraldus Cambrensis on Ireland which had recently been put into print by the antiquary William Camden.2 In this last regard Davies made the claim that Cecil, with Giraldus Cambrensis and his own note on Irish laws to hand, would know everything he needed to know about Ireland. This is quite a claim on Davies's part. Not only does he to reckon his own importance as an analyst but he also implies that little had changed since the first attempt at an English conquest of Ireland in the late twelfth century! It is not known what impact this tract had on Cecil. At any rate it did not survive amongst his papers but amongst those of Thomas Egerton, Baron Ellesmere and Lord Keeper of England. Either the tract was passed onto the latter by Cecil or else Davies sent him a copy of the 'Laws' as well in a similar attempt at ingratiation.
Some passages in the Lawes of Ireland were incorporated anonymously into the Irish section of William Camden's Britain (London, 1610).3 This interest on Camden's part may have been an encouragement for Davies to publish on his own account. In this way Lawes of Ireland may be considered a prototype for the Discovery, though the information is used to support a different argument on the second occasion. As it stands, the Lawes of Ireland has two related themesthe development of the common law in Ireland (and by proxy the constitutional status of the kingdom of Ireland, especially its parliament, in relation to England) and the peculiar nature of the legal system used by the Gaelic inhabitants of Ireland. This second aspect is of great value because of what it tells us about the workings of Gaelic society. Much of this had been gleaned by Davies from his judgements as the chief Irish law officer and from his travels round Ireland on various judicial commissions to establish English law in Irish areas following the defeat of the great lords in the Nine Years War.4 The tract also shows how Davies' views on the subject developed between the cases of gavelkind and tanistry of 1606 and 1608 respectively and his book of 1612.5 Ellesmere 7042 deserves wider circulation because Davies was the most important commentator on Gaelic society in his day and had the influence to translate his views into policy. It also serves in a general fashion to justify the arguments advanced by Hans S. Pawlisch's award-winning Sir John Davies and the conquest of Ireland: a study in legal imperialism (Cambridge, 1985).
Sir John Davies to Salisbury, from the Middle Temple, 21 January 1609.
My most honorable good lord. The other day, your lordship, having occasion to speake of the surrenders of the Irish lords was pleased to ask mee, what estates they had in their possessions. I then made answer that it required a larger discourse then was fitt to troble your lordship withall at that tyme; but that I would find a tyme to expresse it in writing, so as your lordship might read it at your best leasure.
Accordingly I have, out of some notes and collections of mine owne, made a breef report of the Lawes of Ireland; wherein (among other things) I have declared, in what course the Irish possessions and inheritances did passe, before they tooke estates according to the course of the common law.
This breef discourse I have added to the Booke of Giraldus Cambrensis, who hath written of all particularities concerning Ireland except the lawes only.
To accompany Giraldus, I have made choise of 2 other bookes, which for the subject thereof, ar fitt for the library of a Lord Treasourer; the one De Mercatura,6 treating how Merchants may negotiate by the law of Nations, and the rules of the Civill law; the other de Nummis7 conteyning almost all the discourses, that have been published in print, touching that subject.
I humbly beseech your lordship to accept the same, as from a poore student, who shall ever studdy & make it his principall studdy to expresse his gratefull hart unto your lordship in all his humble duty and service. So praying the divine maiestie to send your lordship as many happy days as there ar letters in these books.I humbly take my leave and continew your lordships in all duty and service. Jo: Davyes
Irelande is nowe fully conquered and subdued to the Crowne of Englande, but this Conquest was not made alltogether at one tyme but by parcells and by seuerall attempts in seuerall ages; And therefore though Giraldus Cambrensis doe entitle his second booke de Hibernia Expugnata, yt is most certen that though he ouerlived kinge Henrye the second, And though hee were amonge the adventurers in the first attempt in his tyme, ffor yt was not the submission of the fickle Irish lords to K H 2 with theyr tribute of cowe hides nor the Popes donacion with a crowne of peacocks feathers, that could make a perfitt conquest of Irelande, as long as the natives used theyr owne lawes, choise theyr owne cheeftaines and magistrates, made warr and peace at theyr pleasure, and soe retayned still the true markes of soveraignety amonge themselves, for as Dion sayeth of Britaine that the Romaines had not conquered yt because suis regibus concessa suis legibus usa est; soe say I of Ireland, that twoe third partes thereof were never conquered till of late yeares because the Irishe lordes which possessed the countryes therein were absolutely kinges or Tyrants over the people and did never admitt the English lawe or the English magistrate, but ever used theyr owne barbarous lawes and customes; And the state of England was soe farr from disallowinge the same, as that our kinges did not communicat the benefitt of theyr lawes to the Irish but uppon specyall grace unto specyall persons or families namelie to the five principall bloodes or septs of the kinges of Irelande, Oneale, OKonnor, OBrien, Omclaghlim and Mcmurragh: And therefore in all the old statutes the Irish are called Ennimies, and the English rebells, And the Irish were accounted mere aliens as borne out of the alleageance of the Crowne of England, And disabled to bringe any acctions, as appeareth by manie recordes: And in the Rolles of the Chauncerye in Irelande there are founde pattentes of denizacion of the Irish purchased from tyme to tyme even untill the later times of Queen Elizabeth.
Among the rest of the recordes there is one more notable then the rest in the Courte of Common pleas in Ireland of a judgment given in the tyme of K E 2: the effect whereof is this, One William Neale brought an accion of Transgressio quare clausum fregit in the countye of Dublin, the defendant plead that the plainant was mere Hibernicus et non de quinque sanguinibus to whome the kinges progenitores had graunted that they should enioy the benefitt of the Lawes of England and demaunded judgment if he should bee aunswered. The plainant replyed that he was of the Oneales of Ulster et sit quinque sanguinibus whereupon yssue was taken whether the plainant were of the Oneales of Ulster or noe. And yt was founde hee was of the Oneales of Ulster and thereupon the defendant was ruled to pleade some other plea.
Trewe yt is that Kinge John devided the lande possessed by the English colonies in Leinster and Mounster into 12 shires namely Dublyn, Uriel nowe called Louth, Meth, Kildare, Catherlagh, Kilkenny, Wexford, Waterford, Cork, Limerick, Kerrey, Tepperary and by this writt or mandate under the greate seal of England did commaunde that English lawes and customes should bee observed in Ireland.9 And this appeareth by a record of 30 H 3 among the patent rolls in the Tower in these woordes: Quia pro communi utilitate terre Hiberniae et pro unitate terrarum 10 provisum est quod omnes leges et consuetudines quae in regno Angliae tenentur in Hibernia teneantur et eadem terra iisdem subiaceat ac per easdem regatur sicut Johannes rex cum illuc esset statuit et firmiter mandavit. Ideo volumus quod omnia brevia de Communi Iure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo regis &c: In cuius rei testimonum &c: Teste meipso apud woodstocke &c.
In this manner was the common lawe established in Ireland and statute lawes of England made before any parliament were held in Ireland, were allsoe transmitted by the kinges writt under the great seale of England whereof wee finde divers presidents in the whyte booke of the exchequer in Ireland in this forme
p.3Dominus rex mandavit breve suum in haec verba Edwardus dei gracia rex Anglie dominus hiberniae dux Aquitaniae cancellario suo Hiberniae salutem. Quedam statuta per nos de assensu praelatorum comitum baronum et comunitatis regni nostri nuper apud Lincolne et quaedam alia statuta post modum apud Eborum facta: quae in dicta terra nostra Hiberniae ad communem utilitatem populi nostri eiusdem terrae observari volumus vobis mittimus sub sigillo nostro mandantes quod statuta illa in dicta cancellaria nostra custodiri ac irrotulari et ad singulas placeas nostras in terra nostra Hiberniae et singulos commitatus eiusdem terrae mitti faciatis per brevia nostra sub dicto sigillo nostro ministris nostris placearum illarum et vicecomitibus dictorum comitatuum mandantes, quod statuta illa coram ipsis publicari et ea in omnibus et singulis suis articulis observari firmiter faciatis. Teste meipso apud Notingham &c.
In this manner the statute lawes of England were transmitted and became of force in Ireland before the Kinges livetenauntes or Justices had power to call parliamentes there which began in the tyme of Kinge Edward the third by an ordinaunce made in England which is founde amonge many other ordinances in the tower Pro statu hiberniaein these words volumus et praecipimus quod nostra et terrae nostrae negotia, praesertim maiora et ardua per peritos consiliarios nostros ac prelatos et magnates et quosdam de descretioribus hominibus in parliamentis tractentur discutiantur et termininentur &c.
After this Ireland had her proper parliamentes and therefore was not bounde by the statutes of England untill the 10th yeare of K H 7 when in a parliament holden before Sir Edward Poyninges, all statutes made in England before that tyme were enacted ratified and made of force in the Realme of Ireland.
The Common lawe and statute lawes of England being thus transmitted and established in Ireland were put in execucion only in the English colonies, for the Irish were not permitted to have the benefitt and protection thereof, but were left to bee governed by their owne lord and lawes, And therefore the Statute of Kilkennye which maketh yt treason for anie English to use the Brehon lawe, extendeth not to the Irish, likewise the statute for English apparrell and for ridinge in Sadles and the like were made only for the English and not for the Irish: Soe as our lawes were current but within a small circuit ffor whereas Ireland doth nowe conteyn 34 shyres at large, besides the cities and townes which were made peculiar counties, for the space 360 yeares after K H 2nds conquest there were twelve counties and those not entirely possessed by the English, for halfe Dublyn, half Meth, half Wexford, more than half Cork, Catherlagh and Tipperary were possessed by the Irish whose persons were not subiect to the English lawes noe more than the rest, whoe lived in the countries not reduced to shire groundes, which conteyned 2 thirds of the kingdome at least, And therefore the kinges writt did runne but by sundry counties palatyne and royall liberties which the great English lords had obteyned allmost in euery countie, namely in Meth, Kildare, Wexford, Kilkenny, Kerry and Tipperary.
But when by reason of the warres of Lancaster and Yorke the English grew weak and were not able to defend theyr borders, soe as the Irish overcame the whole kingdome, except the English Pale, such of the English colonies as remained in other partes became degenerate and meere lrishe in manners language and apparrell and like a people conquered by the Irish receaved their lawes and customes and rejected the English and were ruled by the Irish lawes in soe much as the Earl of Desmond and the lords of his sort the Viscountes Roch and Barry and all the lords of Mounster had theyr Brehons.11
And governed theyr countryes by the Irish lawe, soe did the Bourckes in Connaght, and other English lordes in other partes of Ireland, the English lawes being noe where obeyed but within the fower shyres of the English Pale, And soe yt came to passe that because wee did not give lawes to the Irish, the Irish gave lawes to us.
And this course had the English in Ireland from the tyme of K John who first published the same in that lande until the reigne of Queene Marie, when the Earle of Sussex being governor of that kingdome reduced Leix and Offaly in Leinster and made 2 counties thereof and devided Meth into twoe shyres: After him Sir Henry Sidney made the Offeralls countrey shyre ground and called yt the Countye of Longford: And withall devidinge the whole province of Connaght into 6 shyres established one provinciall government there and another in Mounster: After him Sir John Perrott made 9 counties in Ulster: howbeyt the common lawe had no cleare passage in those provinces neither did the Justices of Assize make any circuits out of Leinster untill the end of Tirones great rebellyon, wherein the Irish were soe broken and as yt were braied in morter, as they were made apt to receive English government, And nowe the common people being delivered from the Tiranny of their pettie lords and restored to the libertie of liegemen and subiectes of the Crowne of Englande doe take singuler comfort in the English lawes, whereof they have tasted the sweetnes for the space of 5 yeares the same being derived by commissions into every corner of the kingdome.
Thus much concerninge the course of the English lawes in Ireland.
Nowe lett us see what was the Irish lawe whereby the auncient natives and the degenerated English were gouerned untill this late full conquest and generall reformation of that kingdome.
The statute of Kilkenny which was made in 40 E 3 Lionell duke of Clarence being then livetenaunte doth call the Irishe lawe the Brehone lawe and sayth yt was noe lawe but a lewd custome.
The English gave it that name because the Irishe doe call theyr Judges Brehons. Of these Brehons having mett with divers of them in my circuits and journies I had a curiosity to learne some of the Rules of the lrishe lawe, especially touching the course of their enheritances and the manner of transferring of the possessions, bycause thereupon did some questions arise in our court in Dublyn, And allsoe touching criminall offences and other causes personnall.
The groundes which I learned amonge the best learned of them ar those.
First touching theyr Inheritaunces and possessions. The severall countreyes or territories possessed by the Irish were in number 60 and upwardes, and some beinge greater and some lesse did in extent and scope of lande conteyne 2 third partes of the kingdome at least.
In every one of these countries there was a chiefe lord or captaine and under him a tanist which was his successor apparent, Both these were ellected of the country whoe commonly made choice of such as were most active and had most swordsmen and followers dependinge upon them.
The chief lord had certen landes in demesne which were called his loughty, or mensall landes wherein
p.7hee placed his principall officers, namely his Brehons, his marshall, his cupbearer, his Phisicion, his surgeon, his Chronicler, his Rimer, and others, which offices and possessions were hereditary and peculiar to certen septs and families.
Hee had allsoe certen small rentes of monney and cowes and customarie duties of Oatemeale, Butter and the like out of all the landes in the countrey except the landes of the church and such of his kinsmen or followers to whome he graunted a specyall dischardge or freedome.
Besides hee had a generall tallage or cutting high or lowe at his pleasure uppon all the enhabitantes which hee tooke commonly when hee made warr either with his neighbours or against the Crowne of Englande, or made a journey to the State, or gave anie straungers entertainment.
Soe as the whole profitts of the countrey were at his disposicion when hee listed: And soe made the enhabitantes like the villaines of England uppon whom theyr lordes had power to Tallier haut and bas: as the phraise of our lawe is, whereupon the English gave this kinde of exaccion the name of cuttinge. The chief lord had likewise his cosheris uppon his tenauntes that is hee and his retinewe would lye uppon them untill they had eaten up all theyr provisions, hee would likewise imploye uppon them his horsemen, his kerne, his horseboyes, his doogg Boyes and the like to bee fedd and mainteined by them, which kept the poore people in continual slaverye and beggerye.
The tanist had allsoe a specyall porcion of land and a certen cheefrie proper to the tanist, and within the limittes of his portion hee had allsoe his cuttinges and his cosheries.
The rest of the landes being distributed among severall septes, every sept had a cheefe or canfinny as they called him with a tanist of that sept, both which were chosen
p.8by the chiefe lord or captaine of the countreye and likewise theyr severall porcions and cheefries.
These captaineshipps or cheefries were not partible but were entirely enioyed by such as were ellected thereunto.
All the rest of the landes except the porcions of the cheefes and tanistes discended in course of gavelkinde and were partible amonge the males onlye, in which division the bastardes had their porcions as well as the legitimate.
The particion was ever made by the canfinny or cheefe of the sept, and was made to continewe sometimes for 3 yeares, sometymes for 7 yeares and for shorter or longer tearmes, which being ended, they made a newe division and seldome or never did make a particion in perpetuity.
This custome of Gavelkinde being receaved generally among the Irish, doth argue that the Iland was inhabited by the old Britaines among whom the Custome of Gavelkinde was in use which custome the Walshemen have reteyned untill this daye.
Uppon the death of the Captain of the Countrey or of the Cheefe of the sept, theyr porcions of land and cheefries fell to the tanist which was the successor elected, and not the eldest sonne of the captaine or cheefe, unles he had been ellected Tanist in the lief of his father, And uppon the death of the tanist there was a newe ellection, for his son enherited not that place, but the eldest sonne and other children both of the captaines cheefes and tanistes did take their porcions among the rest of the sept in gavelkinde uppon a new division made amongst them.
If anie of the inferior tennaunts whose landes were partible in gavelkinde had died, his sonnes within age, they were bred up by their fosterers.
p.9But uncles or next of kin did enioye their porcions of land untill they were able to stock and manure the same, and then uppon a new particion they had the possession delivered unto them.
Their wifes had noe dower but a porcion of goods, neither were their daughters inheritable of lande or cheefrie, but they had certen marriage goodes from their fathers and fosterers. Only the wife of the chief lord had a porcion of lande free from all exaccions, and certen goodes, in both which shee had a sole interest and property during the life of her husband, as the Queene the kinges wife hath by our lawe.
In this course went all theyr possessions, the chainge and translacion whereof by soe manie elections and partitions was the cause that there were noe howses built nor townes erected among the Irish, And the not building of howses and townes was the cause of their Barbarisme and incivility and theyr want of all thinges necessary for the life of men.
Besides the devision of theyr landes into small porcions in gavelkinde made them all poore and idle, for the younger Brothers went not abroade, but rested uppon theyr porcions not seeking to better theyr fortunes which. increased their surnames and famelies in one place and bred factions and gave: them opportunity to conspire and to rise in multitudes against the Crowne.
Touching theyr purchases and alienacions, they never sold or bought anie lande but by waye of mortgage without anye daye of redemption, soe as there was never anie absolute alienacion but the sept of the mortgagor had a perpetual title and clayme to the land neyther did the mortgagee ever repute that lande his owne enheritaunce but in nature of a chattell like unto the money for which it was pawned
p.10soe as he might dispose the same to his wife or daughters which otherwise were not capable of anie land.
Of theyr goodes they made wills and tooke letters of administracion and towching the properties thereof the civill and common lawe was theyr rule.
For offences and matters criminall none was soe heynous or of soe high a nature as that yt was capitall. For treason against the chief lord, and murder were but finable, the fine they called an Ericke, which was assessed by the lord and his Brehons.
In case of treason the lord had all the fine, in case of murder the lord had one moyetye and the kindred of the partye slayne the other moity soe as they never forfeited theyr porcions of theyr land for anie offence. Howbeit theyr landes were sometimes seised by the lord for their fines, untill the same were levied thereupon, and then restored, Rape was finable in like sort, but theft deserved praise and reward if the stealth were brought into the countrey, bycause the lord had a share, and the countrey thereby became the richer. But if the theft was committed in the countrey and carried out, if the thief were apprehended before his friends made offer of his fine, hee was commonlie punished with death, But the lord in that case might take an Ericke if he would.
Uppon the stealth of anie cattell if the owner followed the track (wherein the Irish are incredibly cunninge in soe much as they will finde the same by the bruising of a grasse in the summer tyme) if the partye unto whose land the track is brought, cannot make yt of to some other land hee is to answere the stealth to the owner: And this being an Irish lawe or custome is at this daye observed both by the English
p.11and the Irish, the same being ratified by an Act of the Counsell in the Earl of Sussex his Goverment as fitt and necessary for that kingdome.
The Brehons assisted by certen schollers who had learned manie and civill rules of the Common lawe rather by Tradition then by readinge gave judgment in all causes, and had the eleventh parte of the thinge adiudged for theyr fee. And the Chiefe Lordes Marshall did execucion.
These are the principall rules and groundes of the Brehon lawe which the makers of the statutes of Kilkenny did not without cause call a lewd custome; for yt was the cause of much lewdnes and barbarisme, yt gave countenaunce and encouragment to theft rape and murder, yt made all possessions incerten, whereby it came to passe, that there was noe buildinge of howses and townes, noe educacions of children, in learninge or civilitye nor exercise of trades or handycrafts, noe improvement or manuring of the land, noe industry or vertue in use among them, but the people bred in loosenes and Idlenes which hath bin the true cause of all the mischiefs and miseries in that kingedome.
But nowe god be blessed that lewde lawe or custome is utterly abolished and the just and honorable lawe of England planted in place thereof, and such magistrates and offices ordayned, as have not only infflicted due punishment uppon all those capitall offences; soe as at this daye there are not soe many malefactors founde in all the circuits of Ireland as in one circuit of England but have taken such care to settle the Irish possessions, as that of those threscore Irish countreys or territories which rann in the course of
p.12Tanistrie there are not above three remaininge in the landes of the Irishe which are not surrendred to the Crowne and graunted back by letters patents to hold the same accordinge to the course of the common lawe, soe that wee maye nowe justly say, as I said in the beginning that Ireland is now fully conquered and subdued to the Crowne of England, bycause the streames of the English justice whereof his maiesty is the fountaine, are derived into all partes of that kingdome, All the people both of the English & Irish race being receaved into the kings protection and yeldinge respectively due obedyence to his majesty which is not one of the least felicetyes which hath risen to his maiestie since these 2 kingdomes descended unto him and is a greater glorye then anie of his auncestors have attained before him.