Celtic Design

Sub-Section 5.—The Elizabethan Atrocities in their Relation to Land

From The Brehon Laws by Laurence Ginnell, 1894

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Celtic R
ETURNING to the subject of tenure; in describing the céiles I have endeavoured to give a general outline of the element in which they lived, namely, the law affecting property in land. That law was as unlike the system called Feudalism as any that ever existed; so unlike, indeed, that it has been called, and truly called, the very antithesis of feudalism. This being so, it is strange and confusing to find Irish scholars of the present day writing and speaking of Irish feudalism, and representing the ghastly struggle of Queen Elizabeth's reign as one between Irish feudalism and English anti-feudalism; the real fact being that there has never been such a thing as Irish feudalism. The feudal system of land tenure prevailed for several centuries over England, Scotland, and a large portion of the continent of Europe, and it is still distinctly traceable in the laws of those countries; so much so that a thorough knowledge of real property law at the present day cannot be acquired until one has first made himself acquainted with the leading features of the feudal system. Those features do not exist in the system I have just outlined. Feudalism never prevailed in Ireland, never existed there, and the system that did prevail was as unlike feudalism as could well be devised.

The relation between the flaith and the céile was not one of tenure at all in the proper meaning of that word. The nature of that relation is wholly misconceived by any one who looks for tenure in it. A tenure did exist, as we shall see; but it existed between the flaith and the non-free people, not between the flaith and the clansmen. The land belonged neither to the king nor to a lord, but to the clan, including high and low. What the flaith held, what the céile held, and what neither held, belonged alike to the clan. And even when a clansman sought and obtained more land than his status entitled him to, and a relation resembling tenure arose respecting this land, that relation was not with the flaith, except as the official through whose instrumentality it was contracted, but with the clan of which the céile and the flaith were alike members. The feudal principle of primogeniture was not recognised by the law in regard to either rank or property. Instead of it, and in contrast with it, the law provided for election to every office, with the addition that the most worthy should be elected, and provided that property should descend to those who had the strongest natural claim, in shares which were in effect proportioned to the strength of that claim. It is surely a strange mistake to call such a system feudalism. As Professor O'Curry says, "Feudal land laws never prevailed in any form in ancient Erinn."

One element resembling feudalism ran through the whole Irish system from the king to the humblest person who paid tribute. This was the custom according to which when any one, high or low, paid tribute he was always given something in return by the person to whom he had just made the payment. Precisely the same rule was observed on the payment of tribute by the chief of a tuath to a provincial king, and on the payment of tribute by the provincial king to the Ard-Rig. The thing given in return was usually something of little value, but the acceptance of it is interpreted by writers of the present day, arguing from the heriot of English copyhold tenure, to have been the acceptance of a position of vassalage. Personally, I believe this to be a purely gratuitous assumption based upon a false analogy. This single ceremony, even if it were shown to have had any relation to land, cannot neutralise every other fact connected with the holding of land. It is at least as likely to have been a recognition of allegiance as a yoke of tenure. What its real meaning was, since it cannot yet be determined with certainty, had better be left in honest doubt until through further research certainty is reached. In the light of our present defective knowledge, the custom appears inconsistent with the clan organisation, and yet it seems to have prevailed when that organisation was in vigour; and it certainly was entirely native and not derived from the feudalism of England or the Continent.

It is true that the Irish system was undergoing a change amounting to decay, and was drifting in the direction of feudalism at the time that feudalism was dying out in England. Various causes, political, social, and economic, contributed to this. First of all, the radical defect in the system itself in regard to the collection and disbursement of the tributes. Then of historical causes, chiefly contact and friction with non-Celtic elements, beginning with the wars with the Danes, which deranged the mechanism and disturbed the smooth operation of the Gaelic system. Before the country had recovered from the disorder thus occasioned, the Anglo-Normans arrived, prevented recovery, and contributed to the progress of decay in the following, among other ways. While as a rule adopting the Brehon Laws, so far as their personal interests were served by doing so—adopting the advantages without the correlative restraints and responsibilities—those settlers introduced to the districts grabbed by them a few of the rules of feudalism and some of the feudal spirit.

Emboldened by the force of this example, and by avarice, some of the flaiths who were the Gaelic neighbours of those settlers, and who had long been treating as their own property that which was originally official, at times of disorder and consequent relaxation of the Gaelic discipline, extended their pretensions, began to assert their personal individuality over that of the community, to regard themselves as lords in the feudal sense, to treat the tributes paid to them, and even the lands out of which those tributes issued, as in some sense their own, and to treat as tenants men who had hitherto been their fellow clansmen. The presence of two rival races in the land, and the consequent frequency of war, afforded occasions sufficiently numerous for the progress of this constitutional gangrene.

Favoured by these circumstances, and prompted by self-interest, Gaelic flaith and Norman settler alike developed a strong personality, acquired undue prominence as military leaders, prevented the regular meetings of the local assemblies, marred and paralysed them when they did meet, rendered the formation of effective public opinion impossible in any way, and reduced the former clansmen or their descendants to the position of mere retainers. True progress there could be none, and as nations seldom stand still there was a retrograde movement. The old temporary tributes here and there degenerated into permanent rents; the old tenure of cattle into a tenure of the land upon which the cattle were fed; clan rights became more and more vague, the personal rights of people of rank more and more accentuated, the personal rights of humble people less so. The situation became altogether favourable for the introduction of feudalism, but it was never introduced; for the evolution of a native feudalism, but it was never evolved. For, after all, this retrogression was comparatively late and trifling, and as a fact it never found its way into the laws at all, but was constantly localised and counteracted by the laws as a disease. It was quite alien to the laws; and, so far as it did extend, represented not Irish laws but the violation of them. Those laws continued to be the laws of the whole country except the Pale until the beginning of the seventeenth century; and long after their formal abolition under James the First, the people clung to them—as well they might—as tenaciously as they could; and the peasantry down to the present day have, in the face of stern laws, clung to the old Gaelic idea that the land belongs to the people, an idea wholly irreconcilable with feudalism.

The change in the land laws was one of the most important legal changes made by the English in Ireland. Without touching upon the question whether it was or was not necessary, it certainly could have been effected either without injustice to anybody or with very cruel injustice to the mass of the people. The latter was the method pursued. The Anglo-Norman settlers from the very beginning recognised and respected the rights conferred by tribal status. Indeed, it was impossible to do otherwise in a country where all rights were so conferred. To do otherwise would have been universal robbery, and this they were neither able nor inclined to carry out. But English rulers, from the Tudor period downwards, refused to recognise any such rights in the people, and, when it suited their purpose, conferred upon chiefs and flaiths rights which the clan system never gave them.

Though a man was in the actual possession of land descended to him in strict accordance with immemorial custom, if he was unable to show a record, or a contract on parchment duly sealed and delivered, he was treated as a mere tenant at will or a trespasser, and his land was given to an Englishman who had neither tribal nor any other right whatsoever. The Irish in general had, of course, no such muniments of title to show. They held their lands as their ancestors had held them, by right of birth in the clan. This meant to the English mind no right at all. Its assertion was rather an outrage. The general absence of contract was made a pretext for general confiscation. This, so far as relates to land law, was the real nature of the struggle that was in progress during the Tudor period, was atrociously pursued under Elizabeth, formally legalised under James the First, confirmed and rendered irrevocable by the Cromwellian and Williamite wars. It was not a struggle with feudalism, but a general confiscation of the property of Irishmen (carried out without any attempt to avoid needless injustice), and the natural resistance which that confiscation provoked.

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