Books: Irish Race in the Past and the Present

A >> Aug. J. Thebaud >> Irish Race in the Past and the Present

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There is no doubt that, if these laws of Kilkenny could have
been enforced and carried out, as they were meant to be, the
effect hoped for by these legislators might have been the
natural result. Yet even much later on, at a period, too, when
the English power was considerably increased, under Henry VIII.,
a very curious discussion of this possibility, which took place
at the time, did not by any means promise an easy realization.
The following passage of the "State Papers," under the great
Tudor, contains a rather sensible view of the subject, and is
not so sanguine of the success of the hopes cherished by the
attorney-general of James I.:

"The lande is very large--by estimation as large as Englande--so
that, to enhabit the whole with new inhabiters, the number would
be so great that there is no prince christened that commodiously
might spare so many subjects to depart out of his regions. . . .
But to enterprise the whole extirpation and totall destruction
of all the Irishmen of the lande, it would be a marvellous and
sumptuous charge and great difficulty, considering both the lack
of enhabitors, and the great hardness and misery these Irishmen
can endure, both of hunger, colde, and thirst, and evill lodging,
more than the inhabitants of any other lande."

There were, therefore, evidently difficulties in the way; yet it
is certain that the question of the total extirpation of the
Irish has been entertained for centuries by a class of English
statesmen, and confidently looked for by the English nation. Sir
John Davies, as we see, attributes no other object to the
Statutes of Kilkenny.

But could those statutes be enforced? were they ever enforced?
The same writer pretends that they were for "several years;" but
the sequel proves that they were not. The reason which he
assigns for their execution--that for a certain time after that
Parliament there was peace in the island--leads us to believe
the contrary; for if, as he himself justly remarks before, the
intention of the legislators was to create a perpetual
separation and enmity between the two races, the promulgation
and strict execution of those statutes would have immediately
enkindled a war which could have ended only with the total
extirpation of one race or the other.

And the further fact that it was thought necessary to reenact
those odious laws frequently in subsequent Irish Parliaments
proves that they were not carried into execution, since new
legislation on the subject was demanded.

It is true that events, transmitted to us either through the
Irish annals or the English chronicles, show that several
attempts were made to enforce those acts of Kilkenny, chiefly
against the Fitz-Thomases or Geraldines of Desmond, who
pretended, even after their enactment, to be as independent of
them as before, and refused to attend the Parliament when
convoked, claiming the strange privilege "that the Earls of
Desmond should never come to any Parliament or Grand Council, or
within any walled town, but at their will or pleasure." And the
Desmonds continued in their persistent opposition to the English
laws until the reign of Elizabeth.

But it was against Churchmen chiefly that they were carried out
in full; for we occasionally meet in the annals of the country
with instances where some English prelate in Ireland had been
prosecuted for having conferred orders on mere Irishmen, and
that some Norman abbots had been deposed for having received
mere Irishmen as monks into their monasteries.

With the exception of a few cases of this kind, no proof can be
furnished that any material change was brought about in the
relations of the old English settlers with their Irish neighbors.
In fact, matters progressed so favorably in this friendly
direction, that at length the descendants of Strongbow and his
followers became, as is well known, "Hibernis Hiberniores," and
the judges sent from England could hold their circuit only in
the four counties between the Liffey and the Boyne; and the name
given to the majority of the old English families was "English
rebels," while the natives were called "Irish enemies."

Sir John Davies himself is forced to admit it: "When the civil
government grew so weak and so loose that the English lords
would not suffer the English laws to be executed within their
territories and seigniories, but in place thereof both they and
their people embraced the Irish customs, then the state of
things, like a game at Irish, was so turned about, that the
English, who hoped to make a perfect conquest of the Irish, were
by them perfectly and absolutely conquered, because Victi
victoribus leges dedere."

The truth could not be expressed in more explicit terms. Yet all
has not been said. The same persevering character, making
headway against apparently insurmountable obstacles, shows
itself conspicuously in the Irish, in the preservation of their
land, which, after all, was the great object of contention
between the two races.

The first Anglo-Norman invaders, including Henry II himself, had
no other object in view than gradually to occupy the whole
territory, subject it to the feudal laws, give to Englishmen the
position of feudal lords, and reduce the Irish to that of
villeins, if they could not succeed in rooting them out.

A few years later, by the Treaty of Windsor, the king seemed to
confine his pretensions to Leinster, and perhaps Meath, and
expressly allowed the natives to keep their lands in the other
districts of the island. Yet none of his former grants, by which
"he had cantonned the whole island between ten Englishmen," were
recalled; the continued as part of and means to shape the policy
of the invaders, and subsequent Parliaments always supposed the
validity of those former grants made to Strongbow and his
followers.

It is true that those posterior Acts of Parliament did not
merely rely for their strength on the first documents, but on
the pretence that the Irish chieftains and people outside of
Leinster and Meath had justly forfeited their estates by not
fulfilling the conditions virtually contained in the Windsor
Treaty, in which they had professed homage and submission to the
English king. It is clear that, lawfully or unlawfully, the
Anglo-Normans were determined to gain possession, sooner or
later, of the whole island.

To secure their end, they declared that the natives would not be
subject to the English laws, but retain their Brehon laws, which
in their eyes were no laws at all, and which the Parliament of
Kilkenny had declared to be "lewd customs." Henceforth, then,
the natives were out of the pale of the law, could not claim its
protection, but became subject to the crown of England, without
political, civil, or even human rights.

They were soon, by reason of the constant border wars all around
the Pale, declared "alien and enemies." And these expressions
became, in the eyes of the English lawyers, identical with the
Irish race and the Irish nature; so that at all times, peace or
war, even when the Irish fought in the English ranks, aiding the
Plantagenets in their furious contests with the Scotch or the
French, they were still "Irish enemies;" "aliens" unworthy human
rights, villeins in whose veins no noble blood could flow, with
the exception of five families.

All the rest were not only ignoble, but not even men; nothing
but mere Irish, whom any one might kill, even though serving
under the English crown, at a risk of being fined five marks, to
be paid to the treasury of the King of England, for having
deprived his majesty of a serviceable tool.

This (to modern eyes) astounding social state demands a closer
examination in order to see if, at least, it had the merit of
finally procuring for the English the possession of the land
they coveted.

We find first that Henry II., John, and Henry III., would seem
on several occasions to have extended the laws of England all
over the island. But all English legists will tell us that those
laws were only for the inhabitants of English blood. The mere
Irish were always reputed aliens, or, rather, enemies to the
crown, so that it was, " by actual fact, often adjudged no
felony to kill a mere Irish in time of peace," as Sir John
Davies expressly points out.

Five families alone were excepted from the general category and
acknowledged to be of noble blood--the O'Neills of Ulster, the
O'Melachlins of Meath, the O'Connors of Connaught, the O'Briens
of Munster, and the McMurroughs of Leinster.

Those five families, numerous certainly, but forming only as
many septs, were, or appeared to be, acknowledged as having a
right to their lands, and as able to bring or defend actions at
law. We say, appeared to be, because they found themselves on so
many occasions ranked as mere Irish, that individuals of those
septs, induced by sheer necessity, were often driven, in spite
of an almost invincible repugnance, to apply for and accept
special charters of naturalization from the English kings. Thus
in the reign of Edward IV., O'Neill, on the occasion of his
marriage with a daughter of the house of Kildare, was made an
English citizen by special act of Parliament.

In reality then, even the most illustrious members of the "five
bloods" were scarcely considered as enjoying the full rights of
the lowest English vassals, although their ancestors had been
acknowledged kings by former Anglo-Norman monarchs in public
documents: "Rex Henricus regi O'Neill," etc.

But if there was some shadow of doubt with regard to the
political and social rights of those great families, such doubt
did not exist for the remainder of the Irish race. They were
absolutely without rights. Depriving them of their lands,
pillaging their houses, devastating their farms, outraging their
wives and daughters, killing them, could not subject the guilty
to any civil or criminal action at law. In fact, as we have
shown, such acts were in accordance with the spirit, even with
the letter of the law, so that the criminal, as we should
consider him, had but to plead that the man whom he had robbed
or killed was a mere Irishman, and the proceedings were
immediately stopped, if this all-important fact were proved; and
in case of homicide the murderer escaped by the payment of the
fine of five marks to the treasury.

To modern, even to English ears, all this may sound incredible.
Many striking examples of the truth of it might be produced.
They are to be found in all works which treat of the subject.
Sir John Davies, that great Irish hater, evidently takes a
genuine delight in depicting several such instances with all
their aggravating details, scarcely expecting that every word he
wrote would serve to brand forever with shame Anglo-Norman
England.

Under such legislation it was clear that life on the borders of
the Pale was not only insecure, but that the soil would remain
in the grasp of the strongest. Any Anglo-Norman only required
the power in order to take possession of the land of his
neighbor.

But it is not in man's nature to submit to such galling thraldom
as this, without at least an attempt at retaliation. Least of
all was it the nature of such a people to submit to such
measures--a nation, the most ancient in Europe, dating their
ownership of the soil as far back as man's memory could go,
civilized before Scandinavia became a nest of pirates,
Christianized from the fifth century, and the spreader of
literature, civilization, and the holy faith of Christ through
England, Scotland, Germany, France, and Northern Italy.

If we have dwelt a little, and only a little, upon the intensity
of the contest waged for four hundred years previous to the
added atrocities introduced by the Reformation, we have done so
advisedly, since it has become a fashion of late to throw a
gloss over the past, to ignore it, to let the dead bury their
dead--all which would be very well, could it be done, and could
writers forget to stamp the Irish as unsociable, barbarous, and
bloodthirsty, because with arms in their hands, and a fire
ardent and sacred in their souls, they strove again and again to
reconquer the territory which had been won from them by fraud,
and because they thought it fair to kill in open fight the men
who avowed that they could kill them even in peace at a penalty
of five marks.

The contest, therefore, never ceased; how could it ? But, in
that endless conflict between the two races, the loss of
territory leaned rather to the English side. If, with the help
of their castles, better discipline, and arms, the English at
first gained on the natives and extended their possessions
beyond the Pale, a reaction soon set in--the Irish had their day
of revenge, and entered again into possession of the land of
which they had been robbed. In order to repair their losses, the
Anglo-Normans had recourse to acts of Parliament, which could
bind not only the English of the Pale, but also those of other
districts, who, enjoying the privileges of English law, were
likewise bound by its provisions.

In order rightly to understand the need and purposes of those
enactments, we must return a moment to the days of the conquest.

The case of Strongbow will illustrate many others. He married
Eva, the daughter of McMurrough, and thus allied himself to the
best families of Leinster. On the death of his father-in-law, he
received the whole kingdom as his inheritance. The greater part
of his dominions, which he either would not or could not govern
himself, he was compelled to distribute, in the usual style,
among his followers. He distributed large estates as _fiefs_
among those who had followed his fortunes, but he could not
forget his Irish relatives, to whom he had become strongly
attached. He secured, therefore, to many Irish families the
territory which was formerly theirs, and many of his English
adherents, who, like himself, had married daughters of the soil,
did the same in their more limited territories. This explains
fully why Irish families remained in Leinster after the
settlement of the Anglo-Normans there, who established their
Pale in it, as also why they continued to possess their lands in
the midst of the English as they had formerly done in the midst
of the Danes.

The same thing took place in the kingdom of Cork, on the borders
of Connaught, and around the seaports of Ulster, wherever the
English had established themselves and erected castles and
fortifications.

But, over and above the Irish families, which, by their alliance
by marriage and fosterage with the English, retained their lands
and gradually increased them, many others, natives of the soil,
reentered into possession of their former territory by the
withdrawal of the Anglo-Norman holders of fiefs. Constant border
wars, the necessary consequence of the English policy, could not
but discourage in course of time many Englishmen, who, owning
large possessions also in England and Wales, preferred to return
to their own country rather than remain with their wives and
children in a constant state of alarm, compelled to reside
within their castles, in dread of an attack at any moment from
their Irish neighbors.

Moreover, the vast majority of the Irish, who did not enjoy the
benefit of these special privileges, who, deprived of their
lands at the first invasion, had remained really _outlaws_, and
never entered into matrimonial or social alliance with their
enemies, these men could not consent to starve and perish on
their own soil, in the island which they loved and from which
they could not--had they so chosen--escape by emigration. One
resource remained to them, and they grasped at it. They had
their own mountain fastnesses and bogs to fly to, and from those
recesses they could harass the invader, and inch by inch win
back their lawful inheritance.

They were often even encouraged in their attacks and
depredations by the English of the Pale and out of it, who,
unwilling longer to submit to the grinding feudal laws and
exactions, could prevent the English judges, sheriffs,
escheators, and other king's officers from executing the law
against them, and thus they held out in their mountains, bogs,
and rocky crags, in the midst of the invaders of their soil.

A necessity arose then, on the part of the English rulers, of
adopting measures calculated to prevent a further acquisition of
territory by the Irish, if not to extend the English settlements.
They saw no other remedy than acts of Parliament, which they
thought would at least prevent the subjects of English blood
from assisting the Irish to reenter into possession, as was then
being done on so extensive a scale.

To effect this they revived the former statutes by which the
Irish were placed without the protection of the law, were
declared aliens and enemies, and were consequently denied the
right of bringing actions in any of the English courts for
trespasses on their lands, or for violence done to their persons.

They soon advanced a step beyond this. The Irish were forbidden
to purchase land, though the English were at liberty to occupy
by force the landed property of the Irish, whenever they were
strong enough to do so. An Irishman could acquire neither by
gift nor purchase a rood of land which was the property of an
Englishman. Thus, in every charter afterward granted to the few
Irishmen who applied for them, it was expressly stated that they
could purchase land for themselves and their heirs, which,
without this special provision, they could not do; while for an
Englishman to dispose of his landed property by will, gift, or
sale to an Irishman, was equivalent to forfeiting his estate to
the crown. The officers of the exchequer were directed by those
acts of Parliament to hold inquisitions for the purpose of
obtaining returns of such deeds of conveyance, in order to
enrich the king's treasury by confiscations and forfeitures; and
the statute-rolls, preserved to this day in Dublin and London,
show that such prosecutions often took place, with the
invariable result of forfeiture.

The decision of the courts was always in favor of the crown,
even in cases where the deed of conveyance or will was of no
benefit to the person in whose favor it was drawn, but simply a
trust for a third person of English race. And the great number
of cases in which the inquisitions were set aside, as appears
from the Parliament-rolls, for the finding having been malicious
and untrue--the parties complained of not being Irish but
English-- prove what we allege, namely, that an Irishman could
not take land by conveyance from an Englishman.

Yet, as Mr. Prendergast justly says: "Notwithstanding these
prohibitions and laws of the Irish Parliament, the Irish grew
and increased upon the English, and the Celtic customs
overspread the feudal, until at length the administration of the
feudal law was confined to little more than the few counties
lying within the line of the Liffey and the Boyne."

Let us now glance, in conclusion, at the result of more than
four centuries of feudal oppression.

Ireland rejected feudalism from the beginning, and this at a
time when Europe had been compelled to adopt it, more or less,
throughout.

The distinction between lords and villeins, so marked in all
other countries, remained at the end as it was at the beginning
of the contest, a thing unknown in the island. Even in the Pale,
the presence of the O'Moores, O'Byrnes, O'Kavanaghs, and other
septs, protested against and openly denied, from moor and glen
and mountain fastness, that outrage on humanity, which bestows
on the few every thing meant for all. The Brehon law was in full
force all over the island, and if the Irish allowed the English
judges to ride on their circuits within the four counties, it
was on the full understanding that they would administer their
justice only to English subjects, and levy their feudal dues,
and pronounce their forfeitures and confiscations on such only
as acknowledged the king's right on the premises. The laws
enacted in the pretended Irish Parliament were only for such as
called themselves English by birth; for even the English by
blood, whose ancestors had long resided on the island,
frequently refused to submit to the laws of Parliament, where
they would not sit themselves, although possessing the right to
do so.

In vain was the threat of compulsion held up again and again
before the eyes of the great lords of Desmond, Thomond, and
Connaught. If they chose, they went; if they chose not, they
remained at home; and obeyed or disobeyed at will the laws
themselves, according as they were able or unable to set them at
defiance.

The castles which had been built all over the country by the
first invaders, as a means of awing into subjection the
surrounding districts, were at the beginning of the fifteenth
century no longer feudal castles. They had either been
destroyed and levelled to the ground by the Irish, or they were
occupied by Irish chieftains; or, stranger still, if their
holders were English lords, they were of those who had been won
over to Irish manners. In their halls all the old customs of
Erin were preserved. One saw therein groups of shanachies, and
harpers, and Brehon lawyers, all conversing with their chieftain
in the primitive language of the country. Hence were they called
degenerate by the "foreigners" living in Dublin Castle. The
mansions of the Desmonds, of the Burgos, of the Ormonds, were
the headquarters of their respective clans, not the inaccessible
fortresses of steel-clad warriors, who alone were possessed of
social and civil rights. If the master of the household held
sometimes the title of earl, or count, or baron, he was careful
never to use it before his retainers, whom he called his
clansmen. When he went to Dublin or to London, he donned it with
the dress of a knight or a great feudal lord; on his return home
he threw it aside, resumed the cloak of the country, and was
Irish again.

The subject of feudal titles in Ireland has not been
sufficiently studied and elucidated. A clearer light thrown on
this question would, we have no doubt, show more conclusively
than long discussions with what stubbornness the Irish refused
to submit to the reality of feudalism, even when consenting to
admit its presence and phraseology. It is a fact not
sufficiently dwelt upon, that the few Irishmen, who subsequently
consented to receive English titles from the king, were regarded
by their countrymen with greater abhorrence than the English
themselves, though in most cases the titles were empty ones,
which affected nothing in their mode of life. Yet were they
looked upon as apostates to their nation, and after the
Reformation such a step was often the first to apostasy of
religion, the deepest stain on an Irish name.

Feudalism had also its mode of taxation which failed with the
rest in Ireland.

In feudal countries the lord imposed no tax on his villeins;
these were mere chattels, ascripti gleboe, who tilled the land
for their masters, and, as good serfs, could own nothing but the
few utensils of their miserable hovels. They were just allowed
what sufficed to support their own life and that of their
families, and consequently they could bear no additional tax.
But, in the complicated state of society brought about by
feudalism, the inferior lord was taxed by his superior, a system
that ran down the whole feudal scale, and it would take a lawyer
to explain aids, talliages, wardships, fines for alienation,
seizins, rents, escheats, and finally forfeiture, the heaviest
and most common of all in England.

The Irish fought valiantly against the imposition of those
burdens, and aided the English settled among them to repudiate
them all in course of time.

It must be said, however, that they did not succeed in
preventing their own taxes, according to the Book of Rights,
from becoming heavier under the ingenuity of the English who
were established among them and admitted to all the rights of
clanship. We see by documents which have been better studied of
late, that the great Anglo-Irish lords had succeeded in
increasing the burdens in the shape of exactions, which were
never complained of by the Irish.

On this subject Dr. O'Donovan, in the preface to his edition of
the "Book of Rights," is worthy of perusal.

But it is chiefly in the very essence of feudalism that the
failure of the Anglo-Normans was most signal. Feudalism really
consisted in the status given to the land, the possession of
which determined and gave all rights, so that, according to it,
man was made for the land rather than the land for man. He was
placed on the land with the beasts of the field as far as
tillage and production went, until the system should round to
perfection and finally bring to the surface the new principles
of social economy, according to which the greater the number of
cattle and the fewer the number of men, the more prosperous and
happy might the country be said to be.