Chapter XVIII · ON THE CONSTITUTION OF IRELAND

Ancient state of Ireland.—The antiquities of Irish history, imperfectly recorded, and rendered more obscure by controversy, seem hardly to belong to our present subject. But the political order or state of society among that people at the period of Henry II.'s invasion must be distinctly apprehended and kept in mind, before we can pass a judgment upon, or even understand, the course of succeeding events, and the policy of the English government in relation to that island.

It can hardly be necessary to mention (the idle traditions of a derivation from Spain having long been exploded) that the Irish are descended from one of those Celtic tribes which occupied Gaul and Britain some centuries before the Christian era. Their language however is so far dissimilar from that spoken in Wales, though evidently of the same root, as to render it probable that the emigration, whether from this island or from Armorica, was in a remote age; while its close resemblance to that of the Scottish Highlanders, which hardly can be called another dialect, as unequivocally demonstrates a nearer affinity of the two nations. It seems to be generally believed, though the antiquaries are far from unanimous, that the Irish are the parent tribe, and planted their colony in Scotland since the commencement of our era.

About the end of the eighth century, some of those swarms of Scandinavian descent which were poured out in such unceasing and irresistible multitudes on France and Britain, began to settle on the coasts of Ireland. These colonists were known by the name of Ostmen, or men from the east, as in France they were called Normans from their northern origin. They occupied the sea-coast from Antrim easterly round to Limerick; and by them the principal cities of Ireland were built. They waged war for some time against the aboriginal Irish in the interior; but, though better acquainted with the arts of civilised life, their inferiority in numbers caused them to fail at length in this contention; and the practical invasions from their brethren in Norway becoming less frequent in the eleventh and twelfth centuries, they had fallen into a state of dependence on the native princes.

The island was divided into five provincial kingdoms, Leinster, Munster, Ulster, Connaught, and Meath; one of whose sovereigns was chosen king of Ireland in some general meeting, probably of the nobility or smaller chieftains, and of the prelates. But there seems to be no clear tradition as to the character of this national assembly, though some maintain it to have been triennially held. The monarch of the island had tributes from the inferior kings, and a certain supremacy, especially in the defence of the country against invasion; but the constitution was of a federal nature, and each was independent in ruling his people, or in making war on his neighbours. Below the kings were the chieftains of different septs or families, perhaps in one or two degrees of subordination, bearing a relation, which may be loosely called feudal, to each other, and to the Crown.[463]

These chieftainships, and perhaps even the kingdoms themselves, though not partible, followed a very different rule of succession than that of primogeniture. They were subject to the law of tanistry, of which the principle is defined to be, that the demesne lands and dignity of chieftainship descended to the eldest and most worthy of the same blood; these epithets not being used, we may suppose, synonymously, but in order to indicate that the preference given to seniority was to be controlled by a due regard to desert. No better mode, it is evident, of providing for a perpetual supply of those civil quarrels, in which the Irish are supposed to place so much of their enjoyment, could have been devised. Yet, as these grew sometimes a little too frequent, it was not unusual to elect a tanist, or reversionary successor, in the lifetime of the reigning chief, as has been the practice of more civilised nations. An infant was never allowed to hold the sceptre of an Irish kingdom, but was necessarily postponed to his uncle or other kinsman of mature age; as was the case also in England, even after the consolidation of the Anglo-Saxon monarchy.[464]

The land-owners, who did not belong to the noble class, bore the same name as their chieftain, and were presumed to be of the same lineage. But they held their estates by a very different and an extraordinary tenure, that of Irish gavel-kind. On the decease of a proprietor, instead of an equal partition among his children, as in the gavel-kind of English law, the chief of the sept, according to the generally received explanation, made, or was entitled to make, a fresh division of all the lands within his district; allotting to the heirs of the deceased a portion of the integral territory along with the other members of the tribe. It seems impossible to conceive that these partitions were renewed on every death of one of the sept. But they are asserted to have at least taken place so frequently as to produce a continual change of possession. The policy of this custom doubtless sprung from too jealous a solicitude as to the excessive inequality of wealth, and from the habit of looking on the tribe as one family of occupants, not wholly divested of its original right by the necessary allotment of lands to particular cultivators. It bore some degree of analogy to the institution of the year of Jubilee in the Mosaic code, and what may be thought more immediate, was almost exactly similar to the rule of succession which is laid down in the ancient laws of Wales.[465]

Rude state of society.—In the territories of each sept, judges called Brehons, and taken out of certain families, sat with primeval simplicity upon turfen benches in some conspicuous situation, to determine controversies. Their usages are almost wholly unknown; for what have been published as fragments of the Brehon law seem open to great suspicion at least of being interpolated.[466] It is notorious that, according to the custom of many states in the infancy of civilisation, the Irish admitted the composition or fine for murder, instead of capital punishment; and this was divided, as in other countries, between the kindred of the slain and the judge.

In the twelfth century it is evident that the Irish nation had made far less progress in the road of improvement than any other of Europe in circumstance of climate and position so little unfavourable. They had no arts that deserve the name, nor any commerce, their best line of sea-coast being occupied by the Norwegians. They had no fortified towns, nor any houses or castles of stone; the first having been erected at Tuam a very few years before the invasion of Henry.[467] Their conversion to Christianity indeed, and the multitude of cathedral and conventual churches erected throughout the island, had been the cause, and probably the sole cause, of the rise of some cities, or villages with that name, such as Armagh, Cashel, and Trim. But neither the chiefs nor the people loved to be confined within their precincts, and chose rather to dwell in scattered cabins amidst the free solitude of bogs and mountains. As we might expect, their qualities were such as belong to man by his original nature, and which he displays in all parts of the globe where the state of society is inartificial: they were gay, generous, hospitable, ardent in attachment and hate, credulous of falsehood, prone to anger and violence, generally crafty and cruel. With these very general attributes of a barbarous people, the Irish character was distinguished by a peculiar vivacity of imagination, an enthusiasm and impetuosity of passion, and a more than ordinary bias towards a submissive and superstitious spirit in religion.

This spirit may justly be traced in a great measure to the virtues and piety of the early preachers of the gospel in that country. Their influence, though at this remote age, and with our imperfect knowledge, it may hardly be distinguishable amidst the licentiousness and ferocity of a rude people, was necessarily directed to counteract those vices, and cannot have failed to mitigate and compensate their evil. In the seventh and eighth centuries, while a total ignorance seemed to overspread the face of Europe, the monasteries and schools of Ireland preserved, in the best manner they could, such learning as had survived the revolutions of the Roman world. But the learning of monasteries had never much efficacy in dispelling the ignorance of the laity; and indeed, even in them, it had decayed long before the twelfth century. The clergy were respected and numerous, the bishops alone amounting at one time to no less than 300;[468] and it has been maintained by our most learned writers, that they were wholly independent of the see of Rome till, a little before the English invasion, one of their primates thought fit to solicit the pall from thence on his consecration, according to the discipline long practised in other western churches.

It will be readily perceived that the government of Ireland must have been almost entirely aristocratical, and not very unlike that of the feudal confederacies in France during the ninth and tenth centuries. It was perhaps still more oppressive. The ancient condition of the common people of Ireland, says Sir James Ware, was very little different from slavery.[469] Unless we believe this condition to have been greatly deteriorated under the rule of their native chieftains after the English settlement, for which there seems no good reason, we must give little credit to the fanciful pictures of prosperity and happiness in that period of aboriginal independence, which the Irish, in their discontent with later times, have been apt to draw. They had, no doubt, like all other nations, good and wise princes, as well as tyrants and usurpers. But we find by their annals that, out of two hundred ancient kings, of whom some brief memorials are recorded, not more than thirty came to a natural death;[470] while, for the later period, the oppression of the Irish chieftains, and of those degenerate English who trod in their steps, and emulated the vices they should have restrained, is the one constant theme of history. Their exactions kept the peasants in hopeless poverty, their tyranny in perpetual fear. The chief claimed a right of taking from his tenants provisions for his own use at discretion, or of sojourning in their houses. This was called coshery, and is somewhat analogous to the royal prerogative of purveyance. A still more terrible oppression was the quartering of the lords' soldiers on the people, sometimes mitigated by a composition, called by the Irish bonaght.[471] For the perpetual warfare of these petty chieftains had given rise to the employment of mercenary troops, partly natives, partly from Scotland, known by the uncouth names of Kerns and Gallowglasses, who proved the scourge of Ireland down to its final subjugation by Elizabeth.

This unusually backward condition of society furnished but an inauspicious presage for the future. Yet we may be led by the analogy of other countries to think it probable that, if Ireland had not tempted the cupidity of her neighbours, there would have arisen in the course of time some Egbert or Harold Harfager to consolidate the provincial kingdoms into one hereditary monarchy; which, by the adoption of better laws, the increase of commerce, and a frequent intercourse with the chief courts of Europe, might have taken as respectable a station as that of Scotland in the commonwealth of Christendom. If the two islands had afterwards become incorporated through intermarriage of their sovereigns, as would very likely have taken place, it might have been on such conditions of equality as Ireland, till lately, has never known; and certainly without that long tragedy of crime and misfortune which her annals unfold.

Invasion of Henry II.—The reduction of Ireland, at least in name, under the dominion of Henry II. was not achieved by his own efforts. He had little share in it beyond receiving the homage of Irish princes, and granting charters to his English nobility. Strongbow, Lacy, Fitz-Stephen, were the real conquerors, through whom alone any portion of Irish territory was gained by arms or treaty; and, as they began the enterprise without the king, they carried it on also for themselves, deeming their swords a better security than his charters. This ought to be kept in mind, as revealing the secret of the English government over Ireland, and furnishing a justification for what has the appearance of a negligent abandonment of its authority. The few barons, and other adventurers, who, by dint of forces hired by themselves, and, in some instances, by conventions with the Irish, settled their armed colonies in the island, thought they had done much for Henry II. in causing his name to be acknowledged, his administration to be established in Dublin, and in holding their lands by his grant. They claimed in their turn, according to the practice of all nations and the principles of equity, that those who had borne the heat of the battle, should enjoy the spoil without molestation. Hence, the enormous grants of Henry and his successors, though so often censured for impolicy, were probably what they could scarce avoid; and, though not perhaps absolutely stipulated as the price of titular sovereignty, were something very like it.[472] But what is to be censured, and what at all hazards they were bound to refuse, was the violation of their faith to the Irish princes, in sharing among these insatiable barons their ancient territories; which, setting aside the wrong of the first invasion, were protected by their homage and submission, and sometimes by positive conventions. The whole island, in fact, with the exception of the county of Dublin and the maritime towns, was divided, before the end of the thirteenth century, and most of it in the twelfth, among ten English families: Earl Strongbow, who had some colour of hereditary title, according to our notions of law, by his marriage with the daughter of Dermot, king of Leinster, obtaining a grant of that province; Lacy acquiring Meath, which was not reckoned a part of Leinster, in the same manner; the whole of Ulster being given to De Courcy; the whole of Connaught to De Burgh; and the rest to six others. These, it must be understood, they were to hold in a sort of feudal suzerainty, parcelling them among their tenants of English race, and expelling the natives, or driving them into the worst parts of the country by an incessant warfare.

Forms of English constitution established.—The Irish chieftains, though compelled to show some exterior signs of submission to Henry, never thought of renouncing their own authority or the customs of their forefathers; nor did he pretend to interfere with the government of their septs, content with their promise of homage and tribute, neither of which were afterwards paid. But in those parts of Ireland which he reckoned his own, it was his aim to establish the English laws, to render the lesser island, as it were, a counterpart in all its civil constitution, and mirror of the greater. The colony from England was already not inconsiderable, and likely to increase; the Ostmen, who inhabited the maritime towns, came very willingly, as all settlers of Teutonic origin have done, into the English customs and language; and upon this basis, leaving the accession of the aboriginal people to future contingencies, he raised the edifice of the Irish constitution. He gave charters of privilege to the chief towns, began a division into counties, appointed sheriffs and judges of assize to administer justice, erected supreme courts at Dublin, and perhaps assembled parliaments.[473] His successors pursued the same course of policy; the great charter of liberties, as soon as granted by John at Runnymede, was sent over to Ireland; and the whole common law, with all its forms of process, and every privilege it was deemed to convey, became the birthright of the Anglo-Irish colonists.[474]

These had now spread over a considerable part of the island. Twelve counties appear to have been established by John, comprehending most of Leinster and Munster; while the two ambitious families of Courcy and De Burgh encroached more and more on the natives in the other provinces.[475] But the same necessity, which gratitude for the services, or sense of the power of the great families had engendered, for rewarding them by excessive grants of territory, led to other concessions that rendered them almost independent of the monarchy.[476] The franchise of a county palatine gave a right of exclusive civil and criminal jurisdiction; so that the king's writ should not run, nor his judges come within it, though judgment in its courts might be reversed by writ of error in the king's bench. The lord might enfeoff tenants to hold by knight's service of himself; he had almost all regalian rights; the lands of those attainted for treason escheated to him; he acted in everything rather as one of the great feudatories of France or Germany than a subject of the English Crown. Such had been Chester, and only Chester, in England; but in Ireland this dangerous independence was permitted to Strongbow in Leinster, to Lacy in Meath, and at a later time to the Butlers and Geraldines in parts of Munster. Strongbow's vast inheritance soon fell to five sisters, who took to their shares, with the same palatine rights, the counties of Carlow, Wexford, Kilkenny, Kildare, and the district of Leix, since called the Queen's County.[477] In all these palatinates, forming by far the greater portion of the English territories, the king's process had its course only within the lands belonging to the church.[478] The English aristocracy of Ireland, in the thirteenth and fourteenth centuries, bears a much closer analogy to that of France in rather an earlier period than anything which the history of this island can show.

Pressed by the inroads of these barons, and despoiled frequently of lands secured to them by grant or treaty, the native chiefs had recourse to the throne for protection, and would in all likelihood have submitted without repining to a sovereign who could have afforded it.[479] But John and Henry III., in whose reigns the independence of the aristocracy was almost complete, though insisting by writs and proclamations on a due observance of the laws, could do little more for their new subjects, who found a better chance of redress in standing on their own defence. The powerful septs of the north enjoyed their liberty. But those of Munster and Leinster, intermixed with the English, and encroached upon from every side, were the victims of constant injustice; and abandoning the open country for bog and mountain pasture, grew more poor and barbarous in the midst of the general advance of Europe. Many remained under the yoke of English lords, and in a worse state than that of villenage, because still less protected by the tribunals of justice. The Irish had originally stipulated with Henry II. for the use of their own laws.[480] They were consequently held beyond the pale of English justice, and regarded as aliens at the best, sometimes as enemies, in our courts. Thus, as by the Brehon customs murder was only punished by a fine, it was not held felony to kill one of Irish race, unless he had conformed to the English law.[481] Five septs, to which the royal families of Ireland belonged, the names of O'Neal, O'Connor, O'Brien, O'Malachlin, and MacMurrough, had the special immunity of being within the protection of our law, and it was felony to kill one of them. I do not know by what means they obtained this privilege; for some of these were certainly as far from the king's obedience as any in Ireland.[482] But besides these a vast number of charters of denization were granted to particular persons of Irish descent from the reign of Henry II. downwards, which gave them and their posterity the full birthrights of English subjects; nor does there seem to have been any difficulty in procuring these.[483] It cannot be said, therefore, that the English government, or those who represented it in Dublin, displayed any reluctance to emancipate the Irish from thraldom. Whatever obstruction might be interposed to this was from that assembly whose concurrence was necessary to every general measure, the Anglo-Irish parliament. Thus, in 1278, we find the first instance of an application from the community of Ireland, as it is termed, but probably from some small number of septs dwelling among the colony, that they might be admitted to live by the English law, and offering 8000 marks for this favour. The letter of Edward I. to the justiciary of Ireland on this is sufficiently characteristic both of his wisdom and his rapaciousness. He is satisfied of the expediency of granting the request, provided it can be done with the general consent of the prelates and nobles of Ireland; and directs the justiciary, if he can obtain that concurrence, to agree with the petitioners for the highest fine he can obtain, and for a body of good and stout soldiers.[484] But this necessary consent of the aristocracy was withheld. Excuses were made to evade the king's desire. It was wholly incompatible with their systematic encroachments on their Irish neighbours to give them the safeguard of the king's writ for their possessions. The Irish renewed their supplication more than once, both to Edward I. and Edward III.; they found the same readiness in the English court; they sunk at home through the same unconquerable oligarchy.[485] It is not to be imagined that the entire Irishry partook in this desire of renouncing their ancient customs. Besides the prejudices of nationality, there was a strong inducement to preserve the Brehon laws of tanistry, which suited better a warlike tribe than the hereditary succession of England. But it was the unequivocal duty of the legislature to avail itself of every token of voluntary submission; which, though beginning only with the subject septs of Leinster, would gradually incorporate the whole nation in a common bond of co-equal privileges with their conquerors.

Degeneracy of English settlers.—Meanwhile, these conquerors were themselves brought under a moral captivity of the most disgraceful nature; and, not as the rough soldier of Rome is said to have been subdued by the art and learning of Greece, the Anglo-Norman barons, that had wrested Ireland from the native possessors, fell into their barbarous usages, and emulated the vices of the vanquished. This degeneracy of the English settlers began very soon, and continued to increase for several ages. They intermarried with the Irish; then connected themselves with them by the national custom of fostering, which formed an artificial relationship of the strictest nature;[486] they spoke the Irish language; they affected the Irish dress and manner of wearing the hair;[487] they even adopted, in some instances, Irish surnames; they harassed their tenants with every Irish exaction and tyranny; they administered Irish law, if any at all; they became chieftains rather than peers; and neither regarded the king's summons to his parliaments, nor paid any obedience to his judges.[488] Thus the great family of De Burgh or Burke, in Connaught, fell off almost entirely from subjection; nor was that of the Earls of Desmond, a younger branch of the house of Geraldine or Fitzgerald, much less independent of the Crown; though by the title it enjoyed, and the palatine franchises granted to it by Edward III. over the counties of Limerick and Kerry, it seemed to keep up more show of English allegiance.

The regular constitution of Ireland was, as I have said, as nearly as possible a counterpart of that established in this country. The administration was vested in an English justiciary or lord deputy, assisted by a council of judges and principal officers, mixed with some prelates and barons, but subordinate to that of England, wherein sat the immediate advisers of the sovereign. The courts of chancery, king's bench, common pleas, and exchequer, were the same in both countries; but writs of error lay from judgments given in the second of these to the same court in England. For all momentous purposes, as to grant a subsidy, or enact a statute, it was as necessary to summon a parliament in the one island as in the other. An Irish parliament originally, like an English one, was but a more numerous council, to which the more distant as well as the neighbouring barons were summoned, whose consent, though dispensed with in ordinary acts of state, was both the pledge and the condition of their obedience to legislative provisions. In 1295, the sheriff of each county and liberty is directed to return two knights to a parliament held by Wogan, an active and able deputy.[489] The date of the admission of burgesses cannot be fixed with precision; but it was probably not earlier than the reign of Edward III. They appear in 1341; and the Earl of Desmond summoned many deputies from corporations to his rebel convention held at Kilkenny in the next year.[490] The Commons are mentioned as an essential part of parliament in an ordinance of 1359; before which time, in the opinion of Lord Coke, "the conventions in Ireland were not so much parliaments as assemblies of great men."[491] This, as appears, is not strictly correct; but in substance they were perhaps little else long afterwards.

The earliest statutes on record are of the year 1310; and from that year they are lost till 1429, though we know many parliaments to have been held in the meantime, and are acquainted by other means with their provisions. Those of 1310 bear witness to the degeneracy of the English lords, and to the laudable zeal of a feeble government for the reformation of their abuses. They begin with an act to restrain great lords from taking of prises, lodging, and sojourning with the people of the country against their will. "It is agreed and assented," the act proceeds, "that no such prises shall be henceforth made without ready payment and agreement, and that none shall harbour or sojourn at the house of any other by such malice against the consent of him which is owner of the house to destroy his goods; and, if any shall do the same, such prises, and such manner of destruction, shall be holden for open robbery, and the king shall have the suit thereof, if others will not, nor dare not sue. It is agreed also, that none shall keep idle people nor kearn (foot-soldiers) in time of peace to live upon the poor of the country, but that those which will have them, shall keep them at their own charges, so that their free tenants, nor farmers, nor other tenants, be not charged with them." The statute proceeds to restrain great lords or others, except such as have royal franchises, from giving protections, which they used to compel the people to purchase; and directs that there shall be commissions of assize and gaol delivery through all the counties of Ireland.[492]

These regulations exhibit a picture of Irish miseries. The barbarous practices of coshering and bonaght, the latter of which was generally known in later times by the name of coyne and livery, had been borrowed from those native chieftains whom our modern Hibernians sometimes hold forth as the paternal benefactors of their country.[493] It was the crime of the Geraldines and the De Courcys to have retrograded from the comparative humanity and justice of England, not to have deprived the people of freedom and happiness they had never known. These degenerate English, an epithet by which they are always distinguished, paid no regard to the statutes of a parliament which they had disdained to attend, and which could not render itself feared. We find many similar laws in the fifteenth century, after the interval which I have noticed in the printed records. And, in the intervening period, a parliament held by Lionel Duke of Clarence, second son of Edward III., at Kilkenny, in 1367, the most numerous assembly that had ever met in Ireland, was prevailed upon to pass a very severe statute against the insubordinate and degenerate colonists. It recites that the English of the realm of Ireland were become mere Irish in their language, names, apparel, and manner of living, that they had rejected the English laws, and allied themselves by intermarriage with the Irish. It prohibits, under the penalties of high treason, or at least of forfeiture of lands, all these approximations to the native inhabitants, as well as the connections of fostering and gossipred. The English are restrained from permitting the Irish to grace their lands, from presenting them to benefices, or receiving them into religious houses, and from entertaining their bards. On the other hand, they are forbidden to make war upon their Irish neighbours without the authority of the state. And, to enforce better these provisions, the king's sheriffs are empowered to enter all franchises for the apprehension of felons or traitors.[494]

Disorderly state of the island.—This statute, like all others passed in Ireland, so far from pretending to bind the Irish, regarded them not only as out of the king's allegiance, but as perpetually hostile to his government. They were generally denominated the Irish enemy. This doubtless was not according to the policy of Henry II., nor of the English government a considerable time after his reign. Nor can it be said to be the fact, though from some confusion of times the assertion is often made, that the island was not subject, in a general sense, to that prince and to the three next kings of England. The English were settled in every province; an imperfect division of counties and administration of justice subsisted; and even the Irish chieftains, though ruling their septs by the Brehon law, do not appear in that period to have refused the acknowledgment of the king's sovereignty. But compelled to defend their lands against perpetual aggression, they justly renounced all allegiance to a government which could not redeem the original wrong of its usurpation by the benefits of protection. They became gradually stronger; they regained part of their lost territories; and after the era of 1315, when Edward Bruce invaded the kingdom with a Scots army, and, though ultimately defeated, threw the government into a disorder from which it never recovered, their progress was so rapid, that in the space of thirty or forty years, the northern provinces, and even part of the southern, were entirely lost to the Crown of England.[495]

It is unnecessary in so brief a sketch to follow the unprofitable annals of Ireland in the fourteenth and fifteenth centuries. Amidst the usual variations of war, the English interests were continually losing ground. Once only Richard II. appeared with a very powerful army, and the princes of Ireland crowded round his throne to offer homage.[496] But, upon his leaving the kingdom, they returned of course to their former independence and hostility. The long civil wars of England in the next century consummated the ruin of its power over the sister island. The Irish possessed all Ulster, and shared Connaught with the degenerate Burkes. The sept of O'Brien held their own district of Thomond, now the county of Clare. A considerable part of Leinster was occupied by other independent tribes; while, in the south, the Earls of Desmond, lords either by property or territorial jurisdiction of the counties of Kerry and Limerick, and in some measure of those of Cork and Waterford, united the turbulence of English barons with the savage manners of Irish chieftains; ready to assume either character as best suited their rapacity and ambition; reckless of the king's laws or his commands, but not venturing, nor upon the whole, probably wishing, to cast off the name of his subjects. The elder branch of their house, the Earls of Kildare, and another illustrious family, the Butlers, Earls of Ormond, were apparently more steady in their obedience to the Crown; yet, in the great franchises of the latter, comprising the counties of Kilkenny and Tipperary, the king's writ had no course; nor did he exercise any civil or military authority but by the permission of this mighty peer.[497]

English Law confined to the pale.—Thus, in the reign of Henry VII., when the English authority over Ireland had reached its lowest point, it was, with the exception of a very few sea-ports, to all intents confined to the four counties of the English pale, a name not older perhaps than the preceding century; those of Dublin, Louth, Kildare, and Meath, the latter of which at that time included West Meath. But even in these there were extensive marches, or frontier districts, the inhabitants of which were hardly distinguishable from the Irish, and paid them a tribute, called black-rent; so that the real supremacy of the English laws was not probably established beyond the two first of these counties, from Dublin to Dundalk on the coast, and for about thirty miles inland.[498] From this time, however, we are to date its gradual recovery. The more steady councils and firmer prerogative of the Tudor kings left little chance of escape from their authority either for rebellious peers of English race, or the barbarous chieftains of Ireland.

I must pause at this place to observe that we shall hardly find in the foregoing sketch of Irish history, during the period of the Plantagenet dynasty (nor am I conscious of having concealed any thing essential), that systematic oppression and misrule which is every day imputed to the English nation and its government. The policy of our kings appears to have generally been wise and beneficent; but it is duly to be remembered that those very limitations of their prerogative which constitute liberty, must occasionally obstruct the execution of the best purposes; and that the co-ordinate powers of parliament, so justly our boast, may readily become the screen of private tyranny and inveterate abuse. This incapacity of doing good as well as harm has produced, comparatively speaking, little mischief in Great Britain; where the aristocratical element of the constitution is neither so predominant, nor so much in opposition to the general interest, as it may be deemed to have been in Ireland. But it is manifestly absurd to charge the Edwards and Henrys, or those to whom their authority was delegated at Dublin, with the crimes they vainly endeavoured to chastise, much more to erect either the wild barbarians of the north, the O'Neals and O'Connors, or the degenerate houses of Burke and Fitzgerald, into patriot assertors of their country's welfare. The laws and liberties of England were the best inheritance to which Ireland could attain; the sovereignty of the English crown her only shield against native or foreign tyranny. It was her calamity that these advantages were long withheld; but the blame can never fall upon the government of this island.

In the contest between the houses of York and Lancaster, most of the English colony in Ireland had attached themselves to the fortunes of the White Rose; they even espoused the two pretenders who put in jeopardy the crown of Henry VII.; and became, of course, obnoxious to his jealousy, though he was politic enough to forgive in appearance their disaffection. But, as Ireland had for a considerable time rather served the purposes of rebellious invaders than of the English monarchy, it was necessary to make her subjection, at least so far as the settlers of the pale were concerned, more than a word. This produced the famous statute of Drogheda in 1495, known by the name of Poyning's law, from the lord deputy through whose vigour and prudence it was enacted. It contains a variety of provisions to restrain the lawlessness of the Anglo-Irish within the pale (for to no others could it immediately extend), and to confirm the royal sovereignty. All private hostilities without the deputy's licence were declared illegal; but to excite the Irish to war was made high treason. Murders were to be prosecuted according to law, and not in the manner of the natives, by pillaging, or exacting a fine from the sept of the slayer. The citizens or freemen of towns were prohibited from receiving wages or becoming retainers of lords and gentlemen; and, to prevent the ascendency of the latter class, none who had not served apprenticeships were to be admitted as aldermen or freemen of corporations. The requisitions of coyne and livery, which had subsisted in spite of the statutes of Kilkenny, were again forbidden, and those statutes were renewed and confirmed. The principal officers of state and the judges were to hold their patents during pleasure, "because of the great inconveniences that had followed from their being for term of life, to the king's grievous displeasure." A still more important provision, in its permanent consequence, was made, by enacting that all statutes lately made in England be deemed good and effectual in Ireland. It has been remarked that the same had been done by an Irish act of Edward IV. Some question might also be made, whether the word "lately" was not intended to limit this acceptation of English law. But in effect this enactment has made an epoch in Irish jurisprudence; all statutes made in England prior to the eighteenth year of Henry VII. being held equally valid in Ireland, while none of later date have any operation, unless specially adopted by its parliament; so that the law of the two countries has begun to diverge from that time, and after three centuries has been in several respects differently modified.

But even these articles of Poyning's law are less momentous than one by which it is peculiarly known. It is enacted that no parliament shall in future be holden in Ireland, till the king's lieutenant shall certify to the king, under the great seal, the causes and considerations, and all such acts as it seems to them ought to be passed thereon, and such be affirmed by the king and his council, and his licence to hold a parliament be obtained. Any parliament holden contrary to this form and provision should be deemed void. Thus, by securing the initiative power to the English council, a bridle was placed in the mouths of every Irish parliament. It is probable also that it was designed as a check on the lord-deputies, sometimes powerful Irish nobles, whom it was dangerous not to employ, but still more dangerous to trust. Whatever might be its motives, it proved in course of time the great means of preserving the subordination of an island, which, from the similarity of constitution, and the high spirit of its inhabitants, was constantly panting for an independence which her more powerful neighbour neither desired nor dared to concede.[499]

Royal authority revives under Henry VIII.—No subjects of the Crown in Ireland enjoyed such influence at this time as the Earls of Kildare; whose possessions lying chiefly within the pale, they did not affect an ostensible independence, but generally kept in their hands the chief authority of government, though it was the policy of the English court, in its state of weakness, to balance them in some measure by the rival family of Butler. But the self-confidence with which this exaltation inspired the chief of the former house laid him open to the vengeance of Henry VIII.; he affected, while lord-deputy, to be surrounded by Irish lords, to assume their wild manners, and to intermarry his daughters with their race. The counsellors of English birth or origin dreaded this suspicious approximation to their hereditary enemies; and Kildare, on their complaint, was compelled to obey his sovereign's order by repairing to London. He was committed to the Tower; on a premature report that he had suffered death, his son, a young man to whom he had delegated the administration, took up arms under the rash impulse of resentment; the primate was murdered by his wild followers, but the citizens of Dublin and the reinforcements sent from England suppressed this hasty rebellion, and its leader was sent a prisoner to London. Five of his uncles, some of them not concerned in the treason, perished with him on the scaffold; his father had been more fortunate in a natural death; one sole surviving child of twelve years old, who escaped to Flanders, became afterwards the stock from which the great family of the Geraldines was restored.[500]

The chieftains of Ireland were justly attentive to the stern and systematic despotism which began to characterise the English government, displayed, as it thus was, in the destruction of an ancient and loyal house. But their intimidation produced contrary effects; they became more ready to profess allegiance and to put on the exterior badges of submission; but more jealous of the Crown in their hearts, more resolute to preserve their independence, and to withstand any change of laws. Thus, in the latter years of Henry, after the northern Irish had been beaten by an able deputy, Lord Leonard Grey, and the lordship of Ireland, the title hitherto borne by the successors of Henry II., had been raised by act of parliament to the dignity of a kingdom,[501] the native chiefs came in and submitted; the Earl of Desmond, almost as independent as any of the natives, attended parliament, from which his ancestors had for some ages claimed a dispensation; several peerages were conferred, some of them on the old Irish families; fresh laws were about the same time enacted to establish the English dress and language, and to keep the colonists apart from Irish intercourse;[502] and after a disuse of two hundred years, the authority of government was nominally recognised throughout Munster and Connaught.[503] Yet we find that these provinces were still in nearly the same condition as before; the king's judges did not administer justice in them, the old Brehon usages continued to prevail even in the territories of the new peers, though their primogenitary succession was evidently incompatible with Irish tanistry. A rebellion of two septs in Leinster under Edward VI. led to a more complete reduction of their districts, called Leix and O'Fally, which in the next reign were made shireland, by the names of King's and Queen's County.[504] But, at the accession of Elizabeth, it was manifest that an arduous struggle would ensue between law and liberty; the one too nearly allied to cool-blooded oppression, the other to ferocious barbarism.

It may be presumed, as has been already said, from the analogy of other countries, that Ireland, if left to herself, would have settled in time under some one line of kings, and assumed, like Scotland, much of the feudal character, the best transitional state of a monarchy from rudeness and anarchy to civilisation. And, if the right of female succession had been established, it might possibly have been united to the English Crown on a juster footing, and with far less of oppression or bloodshed than actually took place. But it was too late to dream of what might have been: in the middle of the sixteenth century Ireland could have no reasonable prospect of independence; nor could that independence have been any other than the most savage liberty, perhaps another denomination of serviture. It was doubtless for the interest of that people to seek the English constitution, which, at least in theory, was entirely accorded to their country, and to press with spontaneous homage round the throne of Elizabeth. But this was not the interest of their ambitious chieftains, whether of Irish or English descent, of a Slanes O'Neil, an Earl of Tyrone, an Earl of Desmond. Their influence was irresistible among a nation ardently sensible to the attachments of clanship, averse to innovation, and accustomed to dread and hate a government that was chiefly known by its severities. But the unhappy alienation of Ireland from its allegiance in part of the queen's reign would probably not have been so complete, or at least led to such permanent mischiefs, if the ancient national animosities had not been exasperated by the still more invincible prejudices of religion.

Resistance of Irish to act of supremacy.—Henry VIII. had no sooner prevailed on the Lords and Commons of England to renounce their spiritual obedience to the Roman see, and to acknowledge his own supremacy, than, as a natural consequence, he proceeded to establish it in Ireland. In the former instance, many of his subjects, and even his clergy, were secretly attached to the principles of the reformation; as many others were jealous of ecclesiastical wealth, or eager to possess it. But in Ireland the reformers had made no progress; it had been among the effects of the pernicious separation of the two races, that the Irish priests had little intercourse with their bishops, who were nominated by the king, so that their synods are commonly recited to have been holden inter Anglicos; the bishops themselves were sometimes intruded by violence, more often dispossessed by it; a total ignorance and neglect prevailed in the church; and it is even found impossible to recover the succession of names in some sees.[505] In a nation so ill predisposed, it was difficult to bring about a compliance with the king's demand of abjuring their religion; ignorant, but not indifferent, the clergy, with Cromer the primate at their head, and most of the Lords and Commons, in a parliament held at Dublin in 1536, resisted the act of supremacy; which was nevertheless ultimately carried by the force of government. Its enemies continued to withstand the new schemes of reformation, more especially in the next reign, when they went altogether to subvert the ancient faith. As it appeared dangerous to summon a parliament, the English liturgy was ordered by a royal proclamation; but Dowdall, the new primate, as stubborn an adherent of the Romish church as his predecessor, with most of the other bishops and clergy, refused obedience; and the reformation was never legally established in the short reign of Edward. His eldest sister's accession reversed of course, what had been done, and restored tranquillity in ecclesiastical matters; for the protestants were too few to be worth persecution, nor were even those molested who fled to Ireland from the fires of Smithfield.

Protestant church established by Elizabeth.—Another scene of revolution ensued in a very few years. Elizabeth having fixed the protestant church on a stable basis in England, sent over the Earl of Sussex to hold an Irish parliament in 1560. The disposition of such an assembly might be presumed hostile to the projected reformations; but, contrary to what had occurred on this side of the channel, though the peers were almost uniformly for the old religion, a large majority of the bishops are said to have veered round with the times, and supported, at least by conformity and acquiescence, the creed of the English court. In the House of Commons, pains had been taken to secure a majority; ten only out of twenty counties, which had at that time been formed, received the writ of summons; and the number of seventy-six representatives of the Anglo-Irish people was made up by the towns, many of them under the influence of the Crown, some perhaps containing a mixture of protestant population. The English laws of supremacy and uniformity were enacted in nearly the same words; and thus the common prayer was at once set up instead of the mass, but with a singular reservation, that in those parts of the country where the minister had no knowledge of the English language, he might read the service in Latin. All subjects were bound to attend the public worship of the church, and every other was interdicted.[506]

There were doubtless three arguments in favour of this compulsory establishment of the protestant church, which must have appeared so conclusive to Elizabeth and her council, that no one in that age could have disputed them without incurring, among other hazards, that of being accounted a lover of unreasonable paradoxes. The first was, that the protestant religion being true, it was the queen's duty to take care that her subjects should follow no other; the second, that, being an absolute monarch, or something like it, and a very wise princess, she had a better right to order what doctrine they should believe, than they could have to choose for themselves; the third, that Ireland, being as a handmaid, and a conquered country, must wait, in all important matters, on the pleasure of the greater island, and be accommodated to its revolutions. And, as it was natural that the queen and her advisers should not reject maxims which all the rest of the world entertained, merely because they were advantageous to themselves, we need not perhaps be very acrimonious in censuring the laws whereon the church of Ireland is founded. But it is still equally true that they involve a principle essentially unjust, and that they have enormously aggravated, both in the age of Elizabeth and long afterwards, the calamities and the disaffection of Ireland. An ecclesiastical establishment, that is, the endowment and privileges of a particular religious society, can have no advantages (relatively at least to the community where it exists), but its tendency to promote in that community good order and virtue, religious knowledge and edification. But, to accomplish this end in any satisfactory manner, it must be their church, and not that merely of the government; it should exist for the people, and in the people, and with the people. This indeed is so manifest, that the government of Elizabeth never contemplated the separation of a great majority as licensed dissidents from the ordinances established for their instruction. It was undoubtedly presumed, as it was in England, that the church and commonwealth, according to Hooker's language, were to be two denominations of the same society; and that every man in Ireland who appertained to the one ought to embrace, and in due season would embrace, the communion of the other. There might be ignorance, there might be obstinacy, there might be feebleness of conscience for a time; and perhaps some connivance would be shown to these; but that the prejudices of a majority should ultimately prevail so as to determine the national faith, that it should even obtain a legitimate indulgence for its own mode of worship, was abominable before God, and incompatible with the sovereign authority.

This sort of reasoning, half bigotry, half despotism, was nowhere so preposterously displayed as in Ireland. The numerical majority is not always to be ascertained with certainty; and some regard may fairly, or rather necessarily, be had to rank, to knowledge, to concentration. But in that island, the disciples of the reformation were in the most inconsiderable proportion among the Anglo-Irish colony, as well as among the natives; their church was a government without subjects, a college of shepherds without sheep. I am persuaded that this was not intended nor expected to be a permanent condition; but such were the difficulties which the state of that unhappy nation presented, or such the negligence of its rulers, that scarce any pains were taken in the age of Elizabeth, nor indeed in subsequent ages, to win the people's conviction or to eradicate their superstitions, except by penal statutes and the sword. The Irish language was universally spoken without the pale; it had even made great progress within it; the clergy were principally of that nation; yet no translation of the scriptures, the chief means through which the reformation had been effected in England and Germany, nor even of the regular liturgy, was made into that tongue; nor was it possible, perhaps, that any popular instruction should be carried far in Elizabeth's reign, either by public authority, or by the ministrations of the reformed clergy. Yet neither among the Welsh nor the Scots Highlanders, though Celtic tribes, and not much better in civility of life at that time than the Irish, was the ancient religion long able to withstand the sedulous preachers of reformation.

It is evident from the history of Elizabeth's reign, that the forcible dispossession of the catholic clergy, and their consequent activity in deluding a people too open at all times to their counsels, aggravated the rebellious spirit of the Irish, and rendered their obedience to the law more unattainable. But, even independently of this motive, the Desmonds and Tyrones would have tried, as they did, the chances of insurrection, rather than abdicate their unlicensed but ancient chieftainship. It must be admitted that, if they were faithless in promises of loyalty, the Crown's representatives in Ireland set no good example; and, when they saw the spoliations of property by violence or pretext of law, the sudden executions on alleged treasons, the breaches of treaty, sometimes even the assassinations, by which a despotic policy went onward in its work of subjugation, they did but play the usual game of barbarians in opposing craft and perfidy, rather more gross perhaps and notorious, to the same engines of a dissembling government.[507] Yet if we can put any trust in our own testimonies, the great families were, by mismanagement and dissension, the curse of their vassals. Sir Henry Sidney represents to the queen, in 1567, the wretched condition of the southern and western counties in the vast territories of the Earls of Ormond, Desmond, and Clanricarde.[508] "An unmeasurable tract," he says, "is now waste and uninhabited, which of late years was well tilled and pastured." "A more pleasant nor a more desolate land I never saw than from Youghall to Limerick."[509] "So far hath that policy, or rather lack of policy, in keeping dissension among them prevailed, as now, albeit all that are alive would become honest and live in quiet, yet are there not left alive in those two provinces the twentieth person necessary to inhabit the same."[510] Yet this was but the first scene of calamity. After the rebellion of the last Earl of Desmond, the counties of Cork and Kerry, his ample patrimony, were so wasted by war and military executions, and famine and pestilence, that, according to a contemporary writer, who expresses the truth with hyperbolical energy, "the land itself, which before those wars was populous, well inhabited, and rich in all the good blessings of God, being plenteous of corn, full of cattle, well stored with fruit and sundry other good commodities, is now become waste and barren, yielding no fruits, the pastures no cattle, the fields no corn, the air no birds, the seas, though full of fish, yet to them yielding nothing. Finally, every way the curse of God was so great, and the land so barren both of man and beast, that whosoever did travel from the one end unto the other of all Munster, even from Waterford to the head of Limerick, which is about six-score miles, he should not meet any man, woman, or child, saving in towns and cities; nor yet see any beast but the very wolves, the foxes, and other like ravening beasts."[511] The severity of Sir Arthur Grey, at this time deputy, was such that Elizabeth was assured he had left little for her to reign over but ashes and carcasses; and, though not by any means of too indulgent a nature, she was induced to recall him.[512] His successor, Sir John Perrott, who held the viceroyalty only from 1584 to 1587, was distinguished for a sense of humanity and justice, together with an active zeal for the enforcement of law. Sheriffs were now appointed for the five counties into which Connaught had some years before been parcelled; and even for Ulster, all of which, except Antrim and Down, had hitherto been undivided, as well as ungoverned.[513] Yet even this apparently wholesome innovation aggravated at first the servitude of the natives, whom the new sheriffs were prone to oppress.[514] Perrott, the best of Irish governors, soon fell a sacrifice to a court intrigue and the queen's jealousy; and the remainder of her reign was occupied with almost unceasing revolts of the Earl of Tyrone, head of the great sept of O'Neil in Ulster, instigated by Rome and Spain, and endangering, far more than any preceding rebellion, her sovereignty over Ireland.

The old English of the pale were little more disposed to embrace the reformed religion, or to acknowledge the despotic principles of a Tudor administration, than the Irish themselves; and though they did not join in the rebellions of those they so much hated, the queen's deputies had sometimes to encounter a more legal resistance. A new race of colonists had begun to appear in their train, eager for possessions, and for the rewards of the Crown, contemptuous of the natives, whether aboriginal or of English descent, and in consequence the objects of their aversion or jealousy.[515] Hence in a parliament summoned by Sir Henry Sidney in 1569, the first after that which had reluctantly established the protestant church, a strong country party, as it may be termed, was formed in opposition to the Crown. They complained with much justice of the management by which irregular returns of members had been made; some from towns not incorporated, and which had never possessed the elective right; some self-chosen sheriffs and magistrates; some mere English strangers, returned for places which they had never seen. The judges, on reference to their opinion, declared the elections illegal in the two former cases: but confirmed the non-resident burgesses, which still left a majority for the court.

The Irish patriots, after this preliminary discussion, opposed a new tax upon wines, and a bill for the suspension of Poyning's law. Hooker, an Englishman, chosen for Athenry, to whose account we are chiefly indebted for our knowledge of these proceedings, sustained the former in that high tone of a prerogative lawyer which always best pleased his mistress. "Her majesty," he said, "of her own royal authority, might and may establish the same without any of your consents, as she hath already done the like in England; saving of her courtesy, it pleaseth her to have it pass with your own consents by order of law, that she might thereby have the better trial and assurance of your dutifulness and good-will towards her." This language from a stranger, unusual among a people proud of their birthright in the common constitution, and little accustomed even to legitimate obedience, raised such a flame that the house was adjourned; and it was necessary to protect the utterer of such doctrines by a guard. The duty on wines, laid aside for the time, was carried in a subsequent session in the same year; and several other statutes were enacted, which, as they did not affect the pale, may possibly have encountered no opposition. A part of Ulster, forfeited by Slanes O'Neil, a rebel almost as formidable in the first years of this reign as his kinsman Tyrone was near its conclusion, was vested in the Crown; and some provisions were made for the reduction of the whole island into shires. Connaught, in consequence, which had passed for one county, was divided into five.[516]

In Sir Henry Sidney's second government, which began in 1576, the pale was excited to a more strenuous resistance, by an attempt to subvert their liberties. It had long been usual to obtain a sum of money for the maintenance of the household and of the troops, by an assessment settled between the council and principal inhabitants of each district. This, it was contended by the government, was instead of the contribution of victuals which the queen, by her prerogative of purveyance, might claim at a fixed rate, much lower than the current price.[517] It was maintained on the other side to be a voluntary benevolence. Sidney now devised a plan to change it for a cess or permanent composition for every plough-land, without regard to those which claimed exemption from the burthen of purveyance; and imposed this new tax by order of council, as sufficiently warrantable by the royal prerogative. The landowners of the pale remonstrated against such a violation of their franchises, and were met by the usual arguments. They appealed to the text of the laws; the deputy replied by precedents against law. "Her majesty's prerogative," he said, "is not limited by Magna Charta, nor found in Littleton's Tenures, nor written in the books of Assizes, but registered in the remembrances of her majesty's exchequer, and remains in the rolls of records of the Tower."[518] It was proved, according to him, by the most ancient and credible records in the realm, that such charges had been imposed from time to time, sometimes by the name of cess, sometimes by other names, and more often by the governor and council, with such of the nobility as came on summons, than by parliament. These irregularities did not satisfy the gentry of the pale, who refused compliance with the demand, and still alleged that it was contrary both to reason and law to impose any charge upon them without parliament or grand council. A deputation was sent to England in the name of all the subjects of the English pale. Sidney was not backward in representing their behaviour as the effect of disaffection; nor was Elizabeth likely to recede, where both her authority and her revenue were apparently concerned. But, after some demonstrations of resentment in committing the delegates to the Tower, she took alarm at the clamours of their countrymen; and, aware that the King of Spain was ready to throw troops into Ireland, desisted with that prudence which always kept her passion in command, accepting a voluntary composition for seven years in the accustomed manner.[519]

James I. ascended the throne with as great advantages in Ireland as in his other kingdoms. That island was already pacified by the submission of Tyrone; and all was prepared for a final establishment of the English power upon the basis of equal laws and civilised customs; a reformation which in some respects the king was not ill fitted to introduce. His reign is perhaps on the whole the most important in the constitutional history of Ireland, and that from which the present scheme of society in that country is chiefly to be deduced.

1. The laws of supremacy and uniformity, copied from those of England, were incompatible with any exercise of the Roman catholic worship, or with the admission of any members of that church into civil trust. It appears indeed that they were by no means strictly executed during the queen's reign; yet the priests were of course excluded, so far as the English authority prevailed, from their churches and benefices; the former were chiefly ruined; the latter fell to protestant strangers, or to conforming ministers of native birth, dissolute and ignorant, as careless to teach as the people were predetermined not to listen.[520] The priests, many of them, engaged in a conspiracy with the court of Spain against the queen and her successor, and all deeming themselves unjustly and sacrilegiously despoiled, kept up the spirit of disaffection, or at least of resistance to religious innovation, throughout the kingdom.[521] The accession of James seemed a sort of signal for casting off the yoke of heresy; in Cork, Waterford, and other cities, the people, not without consent of the magistrates, rose to restore the catholic worship; they seized the churches, ejected the ministers, marched in public processions, and shut their gates against the lord deputy. He soon reduced them to obedience; but almost the whole nation was of the same faith, and disposed to struggle for a public toleration. This was beyond every question their natural right, and as certainly was it the best policy of England to have granted it; but the king-craft and the priest-craft of the day taught other lessons. Priests were ordered by proclamation to quit the realm; the magistrates and chief citizens of Dublin were committed to prison for refusing to frequent the protestant church. The gentry of the pale remonstrated at the court of Westminster; and, though their delegates atoned for their self-devoted courage by imprisonment, the secret menace of expostulation seems to have produced, as usual, some effect, in a direction to the lord deputy that he should endeavour to conciliate the recusants by instruction. These penalties of recusancy, from whatever cause, were very little enforced; but the catholics murmured at the oath of supremacy, which shut them out from every distinction: though here again the execution of the law was sometimes mitigated, they justly thought themselves humiliated, and the liberties of their country endangered, by standing thus at the mercy of the Crown. And it is plain that, even within the pale, the compulsory statutes were at least far better enforced than under the queen; while in those provinces within which the law now first began to have its course, the difference was still more acutely perceived.[522]

2. English law established throughout Ireland.—The first care of the new administration was to perfect the reduction of Ireland into a civilised kingdom. Sheriffs were appointed throughout Ulster; the territorial divisions of counties and baronies were extended to the few districts that still wanted them; the judges of assize went their circuits everywhere; the customs of tanistry and gavelkind were determined by the court of king's bench to be void; the Irish lords surrendered their estates to the Crown, and received them back by the English tenures of knight-service or socage; an exact account was taken of the lands each of these chieftains possessed, that he might be invested with none but those he occupied; while his tenants, exempted from those uncertain Irish exactions, the source of their servitude and misery, were obliged only to an annual quit-rent, and held their own lands by a free tenure. The king's writ was obeyed, at least in profession, throughout Ireland; after four centuries of lawlessness and misgovernment, a golden period was anticipated by the English courtiers; nor can we hesitate to recognise the influence of enlightened, and sometimes of benevolent minds, in the scheme of government now carried into effect.[523] But two unhappy maxims debased their motives, and discredited their policy; the first, that none but the true religion, or the state's religion, could be suffered to exist in the eye of the law; the second, that no pretext could be too harsh or iniquitous to exclude men of a different race or erroneous faith from their possessions.

3. Settlements of English in Munster, Ulster, and other parts.—The suppression of Slanes O'Neil's revolt in 1567 seems to have suggested the thought, or afforded the means, of perfecting the conquest of Ireland by the same methods that had been used to commence it, an extensive plantation of English colonists. The law of forfeiture came in very conveniently to further this great scheme of policy. O'Neil was attainted in the parliament of 1569; the territories which acknowledged him as chieftain, comprising a large part of Down and Antrim, were vested in the Crown; and a natural son of Sir Thomas Smith, secretary of state, who is said to have projected this settlement, was sent with a body of English to take possession of the lands thus presumed in law to be vacant. This expedition however failed of success; the native occupants not acquiescing in this doctrine of our lawyers.[524] But fresh adventurers settled in different parts of Ireland; and particularly after the Earl of Desmond's rebellion in 1583, whose forfeiture was reckoned at 574,628 Irish acres, though it seems probable that this is more than double the actual confiscation.[525] These lands in the counties of Cork and Kerry, left almost desolate by the oppression of the Geraldines themselves, and the far greater cruelty of the government in subduing them, were parcelled out among English undertakers at low rents, but on condition of planting eighty-six families on an estate of 12,000 acres; and in like proportion for smaller possessions. None of the native Irish were to be admitted as tenants; but neither this nor the other conditions were strictly observed by the undertakers, and the colony suffered alike by their rapacity and their neglect.[526] The oldest of the second race of English families in Ireland are found among the descendants of these Munster colonists. We find among them also some distinguished names, that have left no memorial in their posterity; Sir Walter Raleigh, who here laid the foundation of his transitory success, and one not less in glory, and hardly less in misfortune, Edmund Spenser. In a country house once belonging to the Desmonds, on the banks of the Mulla, near Doneraile, the three first books of the Faery Queen were written; and here too the poet awoke to the sad realities of life, and has left us, in his Account of the State of Ireland, the most full and authentic document that illustrates its condition. This treatise abounds with judicious observations; but we regret the disposition to recommend an extreme severity in dealing with the native Irish, which ill becomes the sweetness of his muse.

The two great native chieftains of the north, the Earls of Tyrone and Tyrconnel, a few years after the king's accession, engaged, or were charged with having engaged, in some new conspiracy, and flying from justice, were attainted of treason. Five hundred thousand acres in Ulster were thus forfeited to the Crown; and on this was laid the foundation of that great colony, which has rendered that province, from being the seat of the wildest natives, the most flourishing, the most protestant, and the most enlightened part of Ireland. This plantation, though projected no doubt by the king and by Lord Bacon, was chiefly carried into effect by the lord deputy, Sir Arthur Chichester, a man of great capacity, judgment, and prudence. He caused surveys to be taken of the several counties, fixed upon proper places for building castles or founding towns, and advised that the lands should be assigned, partly to English or Scots undertakers, partly to servitors of the Crown, as they were called, men who had possessed civil or military offices in Ireland, partly to the old Irish, even some of those who had been concerned in Tyrone's rebellion. These and their tenants were exempted from the oath of supremacy imposed on the new planters. From a sense of the error committed in the queen's time by granting vast tracts to single persons, the lands were distributed in three classes, of 2000, 1500, and 1000 English acres; and in every county one-half of the assignments was to the smallest, the rest to the other two classes. Those who received 2000 acres were bound within four years to build a castle and bawn, or strong court-yard; the second class within two years to build a stone or brick house with a bawn; the third class a bawn only. The first were to plant on their lands within three years forty-eight able men, eighteen years old or upwards, born in England or the inland parts of Scotland; the others to do the same in proportion to their estates. All the grantees were to reside within five years, in person or by approved agents, and to keep sufficient store of arms; they were not to alienate their lands without the king's licence, nor to let them for less than twenty-one years; their tenants were to live in houses built in the English manner, and not dispersed, but in villages. The natives held their lands by the same conditions, except that of building fortified houses; but they were bound to take no Irish exactions from their tenants, nor to suffer the practice of wandering with their cattle from place to place. In this manner were these escheated lands of Ulster divided among a hundred and four English and Scots undertakers, fifty-six servitors, and two hundred and eighty-six natives. All lands which through the late anarchy and change of religion had been lost to the church were restored; and some further provision was made for the beneficed clergy. Chichester, as was just, received an allotment in a far ampler measure than the common servants of the Crown.[527]

This noble design was not altogether completed according to the platform. The native Irish, to whom some regard was shown by these regulations, were less equitably dealt with by the colonists, and by those other adventurers whom England continually sent forth to enrich themselves and maintain her sovereignty. Pretexts were sought to establish the Crown's title over the possessions of the Irish; they were assailed through a law which they had but just adopted, and of which they knew nothing, by the claims of a litigious and encroaching prerogative, against which no prescription could avail, nor any plea of fairness and equity obtain favour in the sight of English-born judges. Thus, in the King and Queen's counties, and in those of Leitrim, Longford, and Westmeath, 385,000 acres were adjudged to the Crown, and 66,000 in that of Wicklow. The greater part was indeed regranted to the native owners on a permanent tenure; and some apology might be found for this harsh act of power in the means it gave of civilising those central regions, always the shelter of rebels and robbers; yet this did not take off the sense of forcible spoliation, which every foreign tyranny renders so intolerable. Surrenders were extorted by menaces; juries refusing to find the Crown's title were fined by the council; many were dispossessed without any compensation, and sometimes by gross perjury, sometimes by barbarous cruelty. It is said that in the county of Longford the Irish had scarcely one-third of their former possessions assigned to them, out of three-fourths which had been intended by the king. Those who had been most faithful, those even who had conformed to the protestant church, were little better treated than the rest. Hence, though in many new plantations great signs of improvement were perceptible, though trade and tillage increased, and towns were built, a secret rankling for those injuries was at the heart of Ireland; and in these two leading grievances, the penal laws against recusants, and the inquisition into defective titles, we trace, beyond a shadow of doubt, the primary source of the rebellion in 1641.[528]

4. Constitution of Irish parliament.—Before the reign of James, Ireland had been regarded either as a conquered country, or as a mere colony of English, according to the persons or the provinces which were in question. The whole island now took a common character, that of a subordinate kingdom, inseparable from the English Crown, and dependent also, at least as was taken for granted by our lawyers, on the English legislature; but governed after the model of our constitution, by nearly the same laws, and claiming entirely the same liberties. It was a natural consequence, that an Irish parliament should represent, or affect to represent, every part of the kingdom. None of Irish blood had ever sat, either lords or commoners, till near the end of Henry VIII.'s reign. The representation of the twelve counties, into which Munster and part of Leinster were divided, and of a few towns, which existed in the reign of Edward III., if not later, was reduced by the defection of so many English families to the limits of the four shires of the pale.[529] The old counties, when they returned to their allegiance under Henry VIII., and those afterwards formed by Mary and Elizabeth, increased the number of the Commons: though in that of 1567, as has been mentioned, the writs for some of them were arbitrarily withheld. The two queens did not neglect to create new boroughs, in order to balance the more independent representatives of the old Anglo-Irish families by the English retainers of the court. Yet it is said that in seventeen counties out of thirty-two, into which Ireland was finally parcelled, there was no town that returned burgesses to parliament before the reign of James I., and the whole number in the rest was but about thirty.[530] He created at once forty new boroughs, or possibly rather more; for the number of the Commons, in 1613, appears to have been 232.[531] It was several times afterwards augmented, and reached its complement of 300 in 1692.[532] These grants of the elective franchise were made, not indeed improvidently, but with very sinister intents towards the freedom of parliament; two-thirds of an Irish House of Commons, as it stood in the eighteenth century, being returned with the mere farce of election by wretched tenants of the aristocracy.

The province of Connaught, with the adjoining county of Clare, was still free from the intrusion of English colonists. The Irish had complied, both under Elizabeth and James, with the usual conditions of surrendering their estates to the Crown in order to receive them back by a legal tenure. But, as these grants, by some negligence, had not been duly enrolled in Chancery (though the proprietors had paid large fees for that security), the council were not ashamed to suggest, or the king to adopt, an iniquitous scheme of declaring the whole country forfeited, in order to form another plantation as extensive as that of Ulster. The remonstrances of those whom such a project threatened put a present stop to it; and Charles, on ascending the throne, found it better to hear the proposals of his Irish subjects for a composition. After some time, it was agreed between the court and the Irish agents in London, that the kingdom should voluntarily contribute £120,000 in three years by equal payments, in return for certain graces, as they were called, which the king was to bestow. These went to secure the subject's title to his lands against the Crown after sixty years' possession, and gave the people of Connaught leave to enrol their grants, relieving also the settlers in Ulster or other places from the penalties they had incurred by similar neglect. The abuses of the council-chamber in meddling with private causes, the oppression of the court of wards, the encroachments of military authority, and excesses of the soldiers were restrained. A free trade with the king's dominions or those of friendly powers was admitted. The recusants were allowed to sue for livery of their estates in the court of wards, and to practise in courts of law, on taking an oath of mere allegiance instead of that of supremacy. Unlawful exactions and severities of the clergy were prohibited. These reformations of unquestionable and intolerable evils, as beneficial as those contained nearly at the same moment in the Petition of Right, would have saved Ireland long ages of calamity, if they had been as faithfully completed as they seemed to be graciously conceded. But Charles I. emulated, on this occasion, the most perfidious tyrants. It had been promised by an article in these graces, that a parliament should be held to confirm them. Writs of summons were accordingly issued by the lord deputy; but with no consideration of that fundamental rule established by Poyning's law, that no parliament should be held in Ireland until the king's licence be obtained. This irregularity was of course discovered in England, and the writs of summons declared to be void. It would have been easy to remedy this mistake, if such it were, by proceeding in the regular course with a royal licence. But this was withheld; no parliament was called for a considerable time; and, when the three years had elapsed during which the voluntary contribution had been payable, the king threatened to straiten his graces if it were not renewed.[533]

He had now placed in the vice-royalty of Ireland that star of exceeding brightness, but sinister influence, the willing and able instrument of despotic power, Lord Strafford. In his eyes the country he governed belonged to the Crown by right of conquest; neither the original natives, nor even the descendants of the conquerors themselves, possessing any privileges which could interfere with its sovereignty. He found two parties extremely jealous of each other, yet each loth to recognise an absolute prerogative, and thus in some measure having a common cause. The protestants, not a little from bigotry, but far more from a persuasion that they held their estates on the tenure of a rigid religious monopoly, could not endure to hear of a toleration of popery, which, though originally demanded, was not even mentioned in the king's graces; and disapproved the indulgence shown by those graces to recusants, which is said to have been followed by an impolitic ostentation of the Romish worship.[534] They objected to a renewal of the contribution both as the price of this dangerous tolerance of recusancy, and as debarring the protestant subjects of their constitutional right to grant money only in parliament. Wentworth, however, insisted upon its payment for another year, at the expiration of which a parliament was to be called.[535]

The king did not come without reluctance into this last measure, hating, as he did, the very name of parliament; but the lord deputy confided in his own energy to make it innoxious and serviceable. They conspired together how to extort the most from Ireland, and concede the least; Charles, in truth, showing a most selfish indifference to anything but his own revenue, and a most dishonourable unfaithfulness to his word.[536] The parliament met in 1634, with a strong desire of insisting on the confirmation of the graces they had already paid for; but Wentworth had so balanced the protestant and recusant parties, employed so skilfully the resources of fair promises and intimidation, that he procured six subsidies to be granted before a prorogation, without any mutual concession from the Crown.[537] It had been agreed that a second session should be held for confirming the graces; but in this, as might be expected, the supplies having been provided, the request of both houses that they might receive the stipulated reward met with a cold reception; and ultimately the most essential articles, those establishing a sixty years' prescription against the Crown, and securing the titles of proprietors in Clare and Connaught, as well as those which relieved the catholics in the court of wards from the oath of supremacy, were laid aside. Statutes, on the other hand, were borrowed from England, especially that of uses, which cut off the methods they had hitherto employed for evading the law's severity.[538]

Strafford had always determined to execute the project of the late reign with respect to the western counties. He proceeded to hold an inquisition in each county of Connaught, and summoned juries in order to preserve a mockery of justice in the midst of tyranny. They were required to find the king's title to all the lands, on such evidence as could be found and was thought fit to be laid before them; and were told that what would be best for their own interests would be to return such a verdict as the king desired, what would be best for his, to do the contrary; since he was able to establish it without their consent, and wished only to invest them graciously with a large part of what they now unlawfully withheld from him. These menaces had their effect in all counties except that of Galway, where a jury stood out obstinately against the Crown, and being in consequence, as well as the sheriff, summoned to the castle in Dublin, were sentenced to an enormous fine. Yet the remonstrances of the western proprietors were so clamorous that no steps were immediately taken for carrying into effect the designed plantation; and the great revolutions of Scotland and England which soon ensued gave another occupation to the mind of Lord Strafford.[539] It has never been disputed that a more uniform administration of justice in ordinary cases, a stricter coercion of outrage, a more extensive commerce, evidenced by the augmentation of customs, above all the foundation of the great linen manufacture in Ulster, distinguished the period of his government.[540] But it is equally manifest that neither the reconcilement of parties, nor their affection to the English Crown, could be the result of his arbitrary domination; and that, having healed no wound he found, he left others to break out after his removal. The despotic violence of this minister towards private persons, and those of great eminence, is in some instances well known by the proceedings on his impeachment, and in others is sufficiently familiar by our historical and biographical literature. It is indeed remarkable that we find among the objects of his oppression and insult all that most illustrates the contemporary annals of Ireland, the venerable learning of Usher, the pious integrity of Bedell, the experienced wisdom of Cork, and the early virtue of Clanricarde.

The parliament assembled by Strafford in 1640 began with loud professions of gratitude to the king for the excellent governor he had appointed over them; they voted subsidies to pay a large army raised to serve against the Scots, and seemed eager to give every manifestation of zealous loyalty.[541] But after their prorogation, and during the summer of that year, as rapid a tendency to a great revolution became visible as in England; the Commons, when they met again, seemed no longer the same men; and, after the fall of their great viceroy, they coalesced with his English enemies to consummate his destruction. Hate smothered by fear, but inflamed by the same cause, broke forth in a remonstrance of the Commons, presented through a committee, not to the king, but a superior power, the long parliament of England. The two houses united to avail themselves of the advantageous moment, and to extort, as they very justly might, from the necessities of Charles that confirmation of his promises which had been refused in his prosperity. Both parties, catholic as well as protestant, acted together in this national cause, shunning for the present to bring forward those differences which were not the less implacable for being thus deferred. The catalogue of temporal grievances was long enough to produce this momentary coalition: it might be groundless in some articles, it might be exaggerated in more, it might in many be of ancient standing; but few can pretend to deny that it exhibits a true picture of the misgovernment of Ireland at all times, but especially under the Earl of Strafford. The king, in May 1641, consented to the greater part of their demands; but unfortunately they were never granted by law.[542]

But the disordered condition of his affairs gave encouragement to hopes far beyond what any parliamentary remonstrances could realise; hopes long cherished when they had seemed vain to the world, but such as courage, and bigotry, and resentment would never lay aside. The court of Madrid had not abandoned its connection with the disaffected Irish, especially of the priesthood; the son of Tyrone, and many followers of that cause, served in its armies; and there seems much reason to believe that in the beginning of 1641 the project of insurrection was formed among the expatriated Irish, not without the concurrence of Spain, and perhaps of Richelieu.[543] The government had passed from the vigorous hands of Strafford into those of two lords justices, Sir William Parsons and Sir John Borlase, men by no means equal to the critical circumstances wherein they were placed, though possibly too severely censured by those who do not look at their extraordinary difficulties with sufficient candour. The primary causes of the rebellion are not to be found in their supineness or misconduct, but in the two great sins of the English government; in the penal laws as to religion which pressed on almost the whole people, and in the systematic iniquity which despoiled them of their possessions. They could not be expected to miss such an occasion of revolt; it was an hour of revolution, when liberty was won by arms, and ancient laws were set at nought; the very success of their worst enemies, the covenanters in Scotland, seemed the assurance of their own victory, as it was the reproach of their submission.[544]

Rebellion of 1641.—The rebellion broke out, as is well known, by a sudden massacre of the Scots and English in Ulster, designed no doubt by a vindictive and bigoted people to extirpate those races, and, if contemporary authorities are to be credited, falling little short of this in its execution. Their evident exaggeration has long been acknowledged; but possibly the scepticism of later writers has extenuated rather too much the horrors of this massacre.[545] It was certainly not the crime of the catholics generally; nor, perhaps, in the other provinces of Ireland are they chargeable with more cruelty than their opponents.[546] Whatever may have been the original intentions of the lords of the pale, or of the Anglo-Irish professing the old religion in general (which has been a problem in history), a few months only elapsed before they were almost universally engaged in the war.[547] The old distinctions of Irish and English blood were obliterated by those of religion; and it became a desperate contention whether the majority of the nation should be trodden to the dust by forfeiture and persecution, or the Crown lose everything beyond a nominal sovereignty over Ireland. The insurgents, who might once perhaps have been content with a repeal of the penal laws, grew naturally in their demands through success, or rather through the inability of the English government to keep the field, and began to claim the entire establishment of their religion; terms in themselves not unreasonable, nor apparently disproportionate to their circumstances, and which the king was, in his distresses, nearly ready to concede, but such as never could have been obtained from a third party, of whom they did not sufficiently think, the parliament and people of England. The Commons had, at the very beginning of the rebellion, voted that all the forfeited estates of the insurgents should be allotted to such as should aid in reducing the island to obedience; and thus rendered the war desperate on the part of the Irish.[548]

Subjugation of the Irish by Cromwell.—No great efforts were made, however, for some years; but, after the king's person had fallen into their hands, the victorious party set themselves in earnest to effect the conquest of Ireland. This was achieved by Cromwell and his powerful army after several years, with such bloodshed and rigour that, in the opinion of Lord Clarendon, the sufferings of that nation, from the outset of the rebellion to its close, have never been surpassed but by those of the Jews in their destruction by Titus.

Restoration of Charles II.—At the restoration of Charles II. there were in Ireland two people, one either of native, or old English blood, the other of recent settlement; one catholic, the other protestant; one humbled by defeat, the other insolent with victory; one regarding the soil as his ancient inheritance, the other as his acquisition and reward. There were three religions; for the Scots of Ulster and the army of Cromwell had never owned the episcopal church, which for several years had fallen almost as low as that of Rome. There were claims, not easily set aside on the score of right, to the possession of lands, which the entire island could not satisfy. In England, little more had been necessary than to revive a suspended constitution: in Ireland, it was something beyond a new constitution and code of law that was required; it was the titles and boundaries of each man's private estate that were to be litigated and adjudged. The episcopal church was restored with no delay, as never having been abolished by law; and a parliament, containing no catholics and not many vehement nonconformists, proceeded to the great work of settling the struggles of opposite claimants, by a fresh partition of the kingdom.[549]

Act of Settlement.—The king had already published a declaration for the settlement of Ireland, intended as the basis of an act of parliament. The adventurers, or those who, on the faith of several acts passed in England in 1642, with the assent of the late king, had advanced money for quelling the rebellion, in consideration of lands to be allotted to them in certain stipulated proportions, and who had, in general, actually received them from Cromwell, were confirmed in all the lands possessed by them on the 7th of May 1659; and all the deficiencies were to be supplied before the next year. The army was confirmed in the estates already allotted for their pay, with an exception, of church lands, and some others. Those officers who had served in the royal army against the Irish before 1649 were to be satisfied for their pay, at least to the amount of five-eighths, out of lands to be allotted for that purpose. Innocent papists, that is, such as were not concerned in the rebellion, and whom Cromwell had arbitrarily transplanted into Connaught, were to be restored to their estates, and those who possessed them to be indemnified. Those who had submitted to the peace of 1648, and had not been afterwards in arms, if they had not accepted lands in Connaught, were also to be restored, as soon as those who now possessed them should be satisfied for their expenses. Those who had served the king abroad, and thirty-six enumerated persons of the Irish nobility and gentry, were to be put on the same footing as the last. The precedency of restitution, an important point where the claims exceeded the means of satisfying them, was to be in the order above specified.[550]

This declaration was by no means pleasing to all concerned. The loyal officers, who had served before 1649, murmured that they had little prospect of more than twelve shillings and sixpence in the pound, while the republican army of Cromwell would receive the full value. The Irish were more loud in their complaints; no one was to be held innocent who had been in the rebel quarters before the cessation of 1643; and other qualifications were added so severe that hardly any could expect to come within them. In the House of Commons the majority, consisting very much of the new interests, that is, of the adventurers and army, were in favour of adhering to the declaration. In the House of Lords it was successfully urged that, by gratifying the new men to the utmost, no fund would be left for indemnifying the loyalists, or the innocent Irish. It was proposed that, if the lands not yet disposed of should not be sufficient to satisfy all the interests for which the king had meant to provide by his declaration, there should be a proportional defalcation out of every class for the benefit of the whole. These discussions were adjourned to London, where delegates of the different parties employed every resource of intrigue at the English court. The king's natural bias towards the religion of the Irish had rendered him their friend; and they seemed, at one time, likely to reverse much that had been intended against them; but their agents grew rash with hope, assumed a tone of superiority which ill became their condition, affected to justify their rebellion, and finally so much disgusted their sovereign that he ordered the act of settlement to be sent back with little alteration, except the insertion of some more Irish nominees.[551]

The execution of this act was intrusted to English commissioners, from whom it was reasonable to hope for an impartiality which could not be found among the interested classes. Notwithstanding the rigorous proofs nominally exacted, more of the Irish were pronounced innocent than the Commons had expected; and the new possessors having the sway of that assembly, a clamour was raised that the popish interest had prevailed; some talked of defending their estates by arms, some even meddled in fanatical conspiracies against the government; it was insisted that a closer inquisition should be made, and stricter qualifications demanded. The manifest deficiency of lands to supply all the claimants for whom the act of settlement provided, made it necessary to resort to a supplemental measure, called the act of explanation. The adventurers and soldiers relinquished one-third of the estates enjoyed by them on the 7th of May 1659. Twenty Irish nominees were added to those who were to be restored by the king's favour; but all those who had not already been adjudged innocent, more than three thousand in number, were absolutely cut off from any hope of restitution. The great majority of these no question were guilty; yet they justly complained of this confiscation without trial.[552] Upon the whole result, the Irish catholics having previously held about two-thirds of the kingdom, lost more than one-half of their possessions by forfeiture on account of their rebellion. If we can rely at all on the calculations, made almost in the infancy of political arithmetic by one of its most diligent investigators, they were diminished also by much more than one-third through the calamities of that period.[553]