The Statute of Kilkenny (2)

Eleanor Hull
The Statute of Kilkenny | start of chapter

Maurice FitzGerald, fourth Earl of Kildare (1318–90), had suffered hardly less from the malpractices of d’Ufford than Desmond had done. He was equally averse to the new policy of superseding the English born in Ireland by English born in England. He had been enticed to Dublin by d’Ufford and arrested while sitting in Council at the Exchequer. But he was released in the following year, and in 1347 was with Edward III at the siege of Calais, where he was knighted by the King. He became Justiciar in 1356, and held the office from time to time till his death. But the evil policy against which he and Desmond protested continued and gave all the old nobility a sense of insecurity which did not tend to peace.

In 1340–41 the King, weary of the tidings of incessant wars in Ireland, petulantly revoked “all grants made either by his father or himself to any person whomsoever in whatsoever way, whether Liberties or possessions or other goods,” by which measure almost the whole country was moved to insurrection.[14]

It was unfortunate that his proposal to visit his Irish dominions, made in 1332, was never carried out. His personal dealings with the Earls of Kildare and Desmond, when they sought his intervention, show that he desired to act justly toward them and to undo as far as was possible the evils caused by his representatives on the spot, but he was ill served by the men in power. In June 1364 he ordained that any Englishmen, whether born in England or in Ireland, who should raise any dissension, reproach, or debate between themselves, should be liable to a fine and two years’ imprisonment.[15] But such regulations were of little avail to stop feuds among lords surrounded by fighting kerne and jealous of each other’s greatness. He therefore, in 1361, took the step of sending his son Lionel, Duke of Clarence, brother to the Black Prince, to represent him in Ireland, ordering all nobles in England who held lands in that country to attend him.

The appointment looked like an attempt to revive the policy of Edward I, and to regard Ireland as the appanage of an elder son of the English king, who was to be resident in Ireland. The Viceroyalty of Lionel was ushered in by the creation of many new knights, whose families, such as the Prestons, Talbots, Cusacks, de la Hydes, and de la Freigne (de Fraxinis), became established in the country.

Lionel’s wife, Elizabeth, the daughter of the murdered Earl of Ulster, accompanied him. Their only daughter married Edmund de Mortimer, Earl of March, whose son Roger, made Viceroy by Richard II in 1397, was the direct heir to the throne; he laid claim to the great possessions of the de Lacys in Meath, the de Burghs in Connacht and Ulster, and the Marshals in Leinster.

It was in the desperate hope that it might still be possible to recall the semi-independent Anglo-Norman lords to their allegiance that in 1366 Lionel called together the Parliament which passed the famous Statute of Kilkenny. This Parliament was attended by a number of bishops, and on its conclusion the Bishops of Dublin, Cashel, Tuam, Lismore, Waterford, Killaloe, Ossory, Leighlin, and Cloyne fulminated an excommunication against all who should transgress the law. The lords and commons sat together at the making of the Statute of Kilkenny, and the Statute itself is in French, which was still the language of the law and of society both in England and in Ireland.[16]

It is important to remember that the Statute of Kilkenny was not aimed directly at the Irish nation, but at the Anglo-Norman lords; it was inspired by the conviction that these old English were rapidly passing away from their allegiance to the Government, and that their broad lands were dropping back into independent states; and it was an attempt to stop this process before it was too late.

The Statute was drawn up by the Irish Parliament, and represents the policy of the Anglicizing party in Ireland itself; and, as such, it is intensely anti-Gaelic in spirit. The earlier policy of endeavouring to draw the two races together was to be abandoned, and a new policy adopted of keeping them apart; it being believed that only in this way could the great principalities be preserved in any semblance of fealty to the Crown.

Bitter feeling between the two races was in the ascendant. Lionel had himself witnessed an example of this soon after his landing. He had, on his arrival, engaged in war with the O’Byrnes of Wicklow, and, as a matter of precaution, he had ordered that none of Irish birth should come near his army. He was surprised to learn soon afterward that at least a hundred of his own men were missing; and he discovered that these men were Irishmen in his own army. His English soldiers had taken advantage of his order to massacre their Irish comrades.[17] This unexpected incident so impressed his mind that he afterward “advised himself and united the people, showing a like fatherly care to all.” Nevertheless, he presided at the Parliament of Kilkenny.

Though the statutes of this Parliament are in many ways a repetition of earlier legislation, especially of the laws passed at Wogan’s Parliament, its provisions are much more detailed and explicit than any former Act had been. In its preamble it states that

“whereas for a long time after the conquest of Ireland the English in Ireland used the English language, mode of riding, and apparel, and were governed and ruled with their dependants by English law … thus living in subjection, now many English of this land forsaking the English language, fashion, mode of riding, laws and usages, live and govern themselves according to the manners, fashion, and language of the Irish enemies; and also have made divers marriages and alliances between themselves and the Irish enemies aforesaid, whereby the said land and the liege people thereof, the English language, the allegiance due to our Lord the King, and the English laws there are put in subjection and decayed, and the Irish enemies exalted and raised up, contrary to right. The King has summoned this Parliament in answer to the grievous complaints of the commons of Ireland … for the better observance of the laws, and punishment of evildoers.”

The Act deals principally with persons of English origin who are in good position, and it discourages by severe threats of punishment any imitation of or intimate connexion with the native Irish. Marriage or concubinage with them are forbidden and also the close ties of ‘gossipred,’ and fosterage (Art. II). The English language is to be spoken in English parts and English fashions kept up, and the Irish living among the English are also to use the English tongue. It would seem that things had gone so far that even many of the clergy living among the English could not speak the English tongue, and it is ordered that they shall be given a respite in order to learn it (Art. III). They must also ride with saddles in the English fashion and not bareback.

Among English people disputes are to be settled by English and not by Brehon law, and there is to be no difference made between the English born in England, or “new English,” and those born in the country, or “old English.” It would seem that the feeling between them ran so high that the one called the other “English hobbe” and “Irish dog.” It is curious to think of a de Burgh or Geraldine being styled “Irish dog” by some degenerate sycophant from the other side, and little wonder that they retorted by flinging “English hobbe” in the faces of their opponents. All are henceforth to be known alike “as lieges of our lord the King” (Art. IV).

There are several clauses dealing with peace and war, the practice of arms, and to prevent the selling of arms to the Irish. No war is to be undertaken by private persons, but only by the Council on the advice of Parliament (Arts. II, IV, X). The practice of keeping kerne at the expense of the retainers is to be stopped, and such kerne, if kept at all, must be at the lord’s expense (Art. XVII).

Inducements are held out to ‘idlemen’[18] to settle down on waste lands (Art. XVIII). An Englishman who breaks a peace or truce made by the authorities between him and the Irish is to be imprisoned and forced to make restitution (Art. XXVII).

Many of these laws were, in the circumstances of the time, just and necessary, and they protected the Irishman at peace, as they protected the Englishman, from the exactions and tyranny of their overlords. Had it succeeded, the Statute of Kilkenny might have been commended as founded in reason and necessity. But it was impossible that it should succeed. The barons to whom it chiefly applied could easily place themselves beyond the reach of the law, and in spite of punishments and excommunications no regulations such as these, which entered into every part of the family and social life, could be enforced.

Though successive Parliaments confirmed the Statute of Kilkenny with some modifications, it was practically dead, so far as its objects were concerned, almost before it could be put into operation. With the death of Lionel “the laws died with him also,” though Davies says, rather erroneously, that they “restored the English government in the degenerate colonies for divers years.”

In a country where several of the founders or leaders of the greatest Norman families had taken Irish wives whose descendants were among the chief nobility of England, such rules proved particularly difficult to enforce. These marriages went on, in spite of all laws, and at the close of the fifteenth century three heads of the junior branch of the Ormonde family married the daughters of Irish chiefs, and three daughters of Gerald, Earl of Kildare, Deputy of Ireland, followed this example. The same thing was going on in private families all over the country.

Fosterage with Irish families was adopted almost as frequently by the settlers as by the old inhabitants, and they were unwilling to give it up. Frequent petitions were made and licences granted for dispensing with this statute in particular cases. By it the Norman lord was united with his Irish tenants in the closest bond of affection and interest. In later days it was to the devotion of his foster-parents that many a hunted scion of the old Norman stock owed his safety when in hiding from the English officers of the law. But from the point of view of the maintenance of English authority it is easy to see that these customs were regarded as objectionable, making the law of the land very difficult to enforce. Nevertheless, these regulations, though impossible to carry out, formed a ready excuse in after days for the suppression of the old Anglo-Irish nobility.

The apology for the execution of the eighth Earl of Desmond was that he had broken his allegiance by an “Irish alliance and fosterage”; in 1466 an Act attainted the Earls of Kildare and Desmond and Edward Plunket “for alliances, fosterage, and alterage with the King’s Irish enemies.”

The restrictions about modes of dress, fashions of cutting the hair and beard, riding, and using native sports like hurling and ‘coiting’ might be merely irritating, though they irritated at every moment of life and at every point; but questions of marriage, fosterage, and ‘gossipred’ entered into the intimacies of family life. In spite of laws to the contrary, the day was to come when one of the greatest of Irish Deputies, Sir Henry Sidney, was to act as ‘gossip’ or sponsor to a child of Shane O’Neill.

To the native Irish dwelling among the English these laws proved short and sharp if they went into open rebellion, and very irritating if they remained at peace. Such Irishmen, whether tenants, servants, or merchants, were forbidden to use their own language, even among themselves, under pain of imprisonment and forfeiture of lands, until the offender found sufficient sureties that he would adopt and use the English tongue (Art. III). Such a law must have borne heavily on the Irish of the towns and prevented many willing Irish workers from settling where work was to be had.

All Irish minstrels, tympanours, pipers, story-tellers, rimers, and harpers were forbidden to come among the English under threat of fine or imprisonment and the forfeiture of their instruments (Art. XV). This provision was intended as a protection against spies “finding out the secrets, customs, and policies of the English, whereby great evils have often happened.” But the Irish piper and minstrel was a welcome guest at the houses of English and Irish alike, and an Anglo-Irishman could enjoy a story of Cuchulain or Finn MacCool quite as much as any O’Sullevan or O’Kelly. Even the most English circles applied at times for permission to keep rimers and minstrels in the family, for the amusement of long evenings and the pleasure of guests. That it was in their power, in the course of their wanderings from house to house, to pick up a good deal of information that was useful to the chiefs regarding the plans and dispositions of the English need not be doubted. The bards gathered news, advised, warned, and encouraged; they stirred up the lagging chief to fresh efforts and applauded his successes. For substantial rewards they sang the praises of their chiefs, welcomed their rise to power, and bewailed their deaths.[19] All this they appeared to be as willing to do for an ‘old’ English loyalist who was willing to pay the price as for any Irish ‘rebel.’ Tadhg MacDaire MacBrodin in later days (he died in 1652) could write a panegyric to an Elizabethan Earl of Thomond, or pen the praises of the Barrys, Bourkes, and Clanricardes, who were fighting against Tyrone, with apparently the same freedom from compunction and in just the same flowery language as though he was lauding his Irish chief.

To the English the bards were a well-recognized source of danger, and as such were the object of stringent laws intended to suppress their activities. When caught they were liable to be hung out of hand or driven out of their broad lands, as when, in 1415, Lord Justice Talbot “harried a large contingent of Ireland’s poets, as O’Daly of Meath, Hugh oge MacGrath, Duffy and Maurice O’Daly.” But these acts of severity were occasional; there was no general massacre of the bards as in Wales; and in Spenser’s day they were still playing and singing the beautiful native airs in English houses as freely as in the Irish houses of the chiefs, and everywhere winning praise for their skill and intelligence. Schools of bards and scribes continued to flourish all over the country, and in the Gaelic revival, which no laws could do more than check, they became like the old professional companies of early days. In 1451 Margaret O’Conor Faly, who took the bards under her special care, is recorded to have made a feast at Killeigh, in Leix, at which 2700 poets, musicians, and antiquarians were royally entertained.

The exemptions from the legal restrictions imposed by laws like those promulgated at Kilkenny were frequent, so impossible was it to carry them out. Applications from the towns for permission to trade with the Irish were especially common and seem seldom to have been refused. Applications to “parley with” the Irish of the borderlands were also frequent, such parleyings being generally carried on with bodies of troops held in readiness in case of treachery on either side. The laws were not all framed to hamper the Irishman; if he would but live at peace they helped and protected him. But to live at peace too often meant to sink into the position of a serf to his lord, and to become English in language and custom; the “Five Bloods” gradually lost their old position of superiority as the possessors of English liberty and law.

One of the most severe of the laws enacted against the Irish was that excluding them from holding any religious office in “any cathedral or collegiate church or benefice amongst the English.” It was the declared intention to fill the churches of the Pale exclusively with English clergy and the monasteries with English monks. This caused great and natural discontent among the Irish, who “looked on their exclusion from the legal profession as an offence against man, but that of keeping them out of Church dignities as offending against God.”

Up to a recent date the tendency had been all the other way. Mellifont, the first Cistercian house and the chief of Irish abbeys, admitted no monks who would not swear that they were not of English descent; and so late as 1324 Edward II complained to the Pope that the Irish refused to admit English into their monasteries.[20] The chapter of 1323 expresses its detestation of such damnable divisions, introduced by the enemy of the human race. Retaliatory laws to exclude Irishmen seem to have been passed soon afterward. In 1337 Edward III mentions that his father, Edward II, had ordained that no Irishman should be admitted to any Irish monastery, but had afterward revoked the command. He now ordains that all loyal Irishmen shall be admitted in the same way as Englishmen. But as the bitter feeling between the two nations increased, it penetrated into the monasteries of the new orders, even those of the Cistercians and the Franciscans. These had built their first friary in Dublin in Francis Street before 1232 and became missionaries to the poor.

During the campaign of Bruce many Franciscans took part with the invader openly or secretly, while others acted in close concert with the English Government. The difference became so marked that it led to a division in the society, the Southern houses, including Cork, Limerick, and Timoleague, being handed over to the English friars, while an attempt was made to concentrate the Irish friars in a group including Athlone, Galway, and Armagh. By 1327 Athlone had become a purely Irish house, while Cashel, curiously enough, was English.[21] The rapid spread of the Franciscan Society in Ireland, from its foundation in 1231–32, shows the need that existed for some organization that should come into intimate touch with the poor and the ignorant.

After the Statute of Kilkenny had been passed ecclesiastical prohibitions against Irishmen were rigorously enforced and confirmed in all particulars, a writ in this sense being promulgated in the Kilkenny Parliament of 1380, and sent to eighteen monasteries.[22] The law affected the ‘old English’ as well as the pure Irish.

In 1332 Edward III enjoined that “all holding benefices or married or estated in Ireland, but without possessions in England, be removed” and those having estates in England be substituted. This reads like a penal law of later days. Even the Popes, who in former times had set their faces against rules of mutual exclusion, now approved them, as part of their policy of supporting the English authority in Ireland.[23]

More astonishing is it to find the Irish Archbishop of Cashel, Maurice MacCarwell, approving such measures and denouncing a sentence of anathema against any who infringed the statutes of the Parliament of 1310, which enacted, among other things, that “no meere Irishman [i.e., of pure Gaelic birth] shall be received into a religious order among the English in the land of peace in any parts of Ireland,” the “land of peace” meaning those districts living under English law.[24]

In the native districts, such as Kilmore, Clogher, Clonmacnois, Derry and Raphoe, Tuam, Killaloe, Elphin and Ross, few English names occur in the lists of bishops up to the fifteenth or, in some cases, the sixteenth century; in others they are mixed or wholly English.[25]

In all cases alike the disposal of ecclesiastical dignities was claimed by the Crown. In spite of legal statutes, licences had frequently to be granted to Irish clerks owing to the lack of sufficient clergy within the Pale, it being impossible to induce priests to come over from England in the required numbers. Many of the bishops elected never went over to their dioceses at all, or speedily returned to England when they had visited them. The Church fell into a miserable condition for want of clergy; even in Dublin, at St Patrick’s Cathedral, vespers had to be given up for lack of officiating priests.

In 1565 the Privy Council complained that “as for religion, there is but small appearance of it; the churches uncovered and the clergy scattered, and scarce the being of a God known.”

Laws and regulations founded on false economic and social theories such as were those formulated in the Statute of Kilkenny, which held apart peoples naturally formed to intermingle with one another, are bound to fail; a hundred years later the districts within which these laws could be enforced had shrunk to portions of the counties of Dublin, Meath, Louth (Uriel), and Kildare;[26] and in Poynings’ Law (1494) which confirms many of the provisions of the Statute of Kilkenny, the attempt to enforce the speaking of English among Irish people or the riding with saddles is expressly abandoned, earlier laws having failed to enforce these customs.[27]

But in various ways restrictions continued to be placed on the efforts of Irish gentlemen to rise in their several callings and to fill the professions of teaching, the Church, or the law which were open to them. Much has been made of the restrictions applying to students resorting to Oxford for education. Irishmen had entered Oxford in considerable numbers from early times, and many of them had risen high in their several colleges, a native of Dundalk having become Chancellor of the University early in the fourteenth century. But laws which may have been necessary and salutary were passed from time to time, chiefly by the Irish Parliament, to prevent begging students or men “adhering to the enemies” from passing oversea “under colour of going to the schools of Oxford, Cambridge, or elsewhere.”

Poynings’ Act against Vagabonds[28] includes these men “who go about begging, not being authorized under the seal of the University” along with proctors and pardoners who also go about without authority living on the alms of the city.

It is evident that men went to England with purposes of their own under pretence that they were going as students to Oxford, and it became necessary that they should get a letter of recommendation from the Deputy or some one in authority under the Great Seal, as a passport for their good behaviour. “Clerks, beggers, chamber-deacons and unattached students” were no more welcome in Oxford than elsewhere. Nor yet were the “felonies and manslaughters” which were a main cause of the restrictions against Irishmen entering a university “which is the fountain and mother of our Christian faith.” These have been committed “to the great fear of all manner of people.” But from all these regulations “graduates of schools and professed religious persons” and also “graduates or apprentices in law” are expressly exempted. They applied only to improper or turbulent persons, not to serious scholars. Of these there was a constant supply, especially during the sixteenth century, and that no hindrance was placed in their advance to higher posts is shown by the records of Fellows of All Souls and Merton and Oriel of Irish birth, and of learned men who became schoolmasters in their own country on their return, such as Richard Stanihurst and Peter White, the former an historian, the latter a passionate student and teacher of Greek learning at his school in Waterford.[29] The difficulties they had to encounter were chiefly from unfriendly neighbours and officials in their own country.