Ireland under the Tudors. Bagwell Richard

of kine, and he extracted a sort of rent by obliging his inferiors to give them pasture. The number of cattle which he ‘grazed without loss’ upon other people’s ground was the measure of his power and popularity. There were free tribesmen the amount of whose obligation to their chief was strictly laid down, though a greater quantity of stock might be voluntarily taken under certain restrictions. But there were also servile or semi-servile classes whose comparatively unprotected condition placed them more or less in the power of the chief to whose sept they were attached. An ambitious chief would always have opportunities of aggrandisement, and his wealth enabled him to support a mercenary force, and to grow strong at the expense of his own and other tribes. Broken men who had lost their own tribal position would always flock to an ambitious chief, and the disturbing influence of such retainers was often too strong for Brehons or priests. But the growth of power by means of mercenaries was not peculiar to Ireland, and was perhaps less frequent than is commonly supposed.4

      Frequency of war.

      Whatever the advantages of a pure Celtic system, it did not secure general peace. There is no period of which Celtic Ireland may be more justly proud than that between the death of St. Columba in 597 and the death of St. Gall about 640. It was the age in which the Irish saint Columbanus bearded Thierri and Brunehaut, in which Ireland herself was a noted seat of learning, and in which the monasteries of Luxueil, of St. Gall, and of Bobbio were founded by Irishmen. Yet, under thirty years out of forty-four either battle or murder is recorded in the Chronicon Scotorum. In some years there were several battles and several murders.

In 628 Leinster was devastated. Quarrels between near relations were frequent, and often ended in murder. When we consider that the deaths of important people only are recorded, we cannot pronounce the Ireland which sent forth Aidan, and Adamnan, and Columbanus to have been at all a peaceful country. Christianity was then established, and no Scandinavian irruption had yet hindered the development of purely native ideas. But Irish chroniclers, perhaps owing to their genealogical turn, give a disproportionate space to deaths; and it may be admitted that the number of homicides was not greater in Ireland than in some parts of Germany in feudal times.5

      Celtic law of succession.

      Primogeniture, which is practically incompatible with the tribal stage of political organisation, was perhaps formally acknowledged at a very remote period, but was unknown as a rule of succession to Irish chiefries in the ages with which this book chiefly deals. In those comparatively modern times a vacancy was filled from the same family, but the person chosen was generally a brother or a cousin of the deceased. It seldom happened, perhaps, that an Irish chief, who was necessarily a warrior, attained threescore and ten years, and on an average a son would be less likely to make an able leader than one of an older generation. To avoid disputed successions, an heir-apparent, called the tanist, was chosen before a vacancy actually occurred, and sometimes probably against the wish of the reigning chief. Very often the sons refused to accept the tanist, and bloody quarrels followed. This system stank in the nostrils of the Tudor lawyers; but in the twelfth century the true principle of hereditary succession was not fully understood. It was, perhaps, a suspicion that his eldest son might not succeed him quietly that induced Henry II. to crown him in his lifetime. A later and much stronger analogy may be found in the history of the Empire. Charles V. procured the election of his brother Ferdinand as king of the Romans, and he was actually crowned. Many years later Charles wished to substitute his son Philip; but Ferdinand refused to yield, and he was sustained by the electors, who had no mind to see the Empire become an appendage of the Spanish monarchy. The influence of the Irish Brehons probably tended to prevent chiefries from becoming hereditary. In such cases as the earldom of Desmond we have a mixture of the two systems; the earls were chiefs as regarded the Irish; but their succession to the honour, and through it to the quasi-chiefry, was regulated by feudal rules.

      Tudor view of the Celtic land law.

      As the chief was elected by his tribe from among a limited number, so was the land distributed among the tribesmen within certain fixed limits. As it is with England’s treatment of Ireland that we have to do, it may be as well to let Sir John Davies himself say how the matter appeared to the Tudor lawyers:—

      Septs.

      ‘First be it known that the lands possessed by the mere Irish in this realm were divided into several territories or countries; and the inhabitants of each Irish country were divided into several septs or lineages.’

      Lord and tanist.

      ‘Secondly, in every Irish territory there was a lord or chieftain, and a tanist who was his successor apparent. And of every Irish sept or lineage there was also a chief, who was called Canfinny, or head of a “cognatio.”’

      Tanistry and gavelkind.

‘Thirdly, all possessions in these Irish territories (before the common law of England was established through all the realm as it now is) ran at all times6 in course of tanistry, or in course of gavelkind. Every lordship or chiefry, with the portion of land that passed with it, went without partition to the tanist, who always came in by election, or by the strong hand, and never by descent.7 But all the inferior tenancies were partible among the males in gavelkind.’8

      No estate of inheritance.

      ‘Again, the estate which the lord had in the chiefry, or that the inferior tenants had in gavelkind, was no estate of inheritance, but a temporary or transitory possession. For just as the next heir of the lord or chieftain would not inherit the chiefry, but the eldest and worthiest of the sept (as was before shown in the case of tanistry), who was often removed and expelled by another who was more active or stronger than he: so lands in the nature of gavelkind were not partible among the next heirs male of him who died seised, but among all the males of his sept, in this manner:—

      Partitions of tribal land.

‘The Canfinny, or chief of a sept (who was commonly the most ancient of the sept) made all the partitions at his discretion. This Canfinny, after the death of each tenant holding a competent portion of land, assembled all the sept, placed all their possessions in hotchpotch, and made a new partition of the whole; in which partition he did not assign to the sons of the deceased the portion which their father held, but allotted the better or larger part to each one of the sept according to his antiquity.’9

      Effect of frequent partitions.

      ‘These portions being thus allotted and assigned were possessed and enjoyed accordingly until the next partition, which, at the discretion or will of the Canfinny, might be made at the death of each inferior tenant. And thus by these frequent partitions and the removals or translations of the tenants of one portion or another, all the possessions were uncertain, and the uncertainty of possession was the very cause that no civil habitations were erected, and no enclosure or improvement of lands made, in the Irish countries where that custom of gavelkind was in use; especially in Ulster, which seemed everywhere a wilderness before this new plantation made there by the English undertakers. And this was the fruit of this Irish gavelkind.’

      Position of daughters and of bastard sons.

‘Also by this Irish custom of gavelkind bastards took their shares with the legitimate, and wives, on the other hand, were quite excluded from dower, and daughters took nothing, even if their father died without issue male. So that this custom differed from Kentish gavelkind in four points.’10

      Four points peculiar to Irish gavelkind.

The four points were the certainty of estate in each share, the exclusion of bastards, the admission of a widow to one moiety, and the admission of females in default