THE HISTORY OF THE IRISH LAND TENURE.
Those who are not well acquainted with the condition of things in Ireland might easily suppose that the existence of the odious Established Church was the main cause of the dissatisfaction of the Irish people, and that they would, consequently, be satisfied with its disestablishment. This, however, is an error. The main grievance of the Irish people remains unredressed. There is still in the relation of landlord and tenant in that country a very prolific source of future difficulty. So far only as the payment of tithes subtracted from the scant earnings of the peasantry, the church establishment could be called an infringement on the rights of property; but its existence was looked upon rather as an encroachment upon abstract justice than as a source of material oppression. The evils of the land tenure, however, which had their origin many centuries ago, and which time has somewhat modified, but not obliterated, are of a far more serious and practical nature. The landlord, by every test which can be applied, has a legal right to his estates; yet the situation weighs heavily upon the tenant, and prostrates the country. Laws which should compel a proprietor to dispose of his property would be regarded as tending to agrarianism, and as an infringement upon private rights; but no country can be prosperous, or its people happy, while the great body of the population is dependent upon the power and caprice of a few landed monopolists. As the record of the past in this connection is an interesting one—a long story, dating still further back than the reign of Henry II., and the latter part of the twelfth century—we will review it briefly for the benefit of those who have never studied carefully or have forgotten the great wrong which for centuries has oppressed the Irish race.
In ancient times, in addition to the four grand divisions of Leinster, Munster, Ulster, and Connaught, there was another, the property of the paramount sovereign. As there does not appear to have been any rule of precedence, however, among the four kings, except that of their ability to repress their rivals by force of arms, the territory must have been very frequently in debate. These several kingdoms were subdivided into a large number of principalities, each inhabited by a distinct sept, and governed by its own chieftain, called a carfinny, or toparch. These petty chiefs were in their own dominions independent; they created laws, administered justice, made war or peace, and so long as they did not encroach upon the privileges of their superior sovereign, were unmolested and unquestioned. They were elective too; and in this respect the primitive institutions of Ireland were founded upon that execrable system which has distracted and destroyed every kingdom in which it has been attempted. The choice of toparchs was limited, however, by the laws of tanistry to noble families; and the tanist was always selected upon the accession and during the lifetime of the ruling toparch. Under such a system intrigue and conflict between the septs, and between individuals of the same sept, must have been perpetual; and it is easy to see that the conditions were prepared which would make eventual subjugation by foreign arms an easy task.
But we now come to a still more obnoxious feature of the institutions of Ireland under the Milesian rule; and it will be no relief to the miseries entailed upon this unfortunate island, that the same peculiarity, modified in other countries, existed very generally during the feudal ages. The property in each district was regarded as the common possession of the entire sept, but the distribution of the shares was intrusted to the toparch. The people themselves had absolutely no property in the soil; that right belonged exclusively to the chief, and tenants were removed whenever it suited his convenience or caprice. There were many causes that could lead to change. The death of the old toparch and the accession of a new one, the addition of new members to the sept, or the death of those already in the occupancy of a piece of soil, were some of the many causes that made the land tenure very precarious; and the custom of inheritance by gavelkind, which differed from the system of England and Wales, is thought to have perpetuated the evil. Females were excluded, and no distinction was made between legitimate and illegitimate children. The common people were divided into freemen and betages. The former had the privilege of changing their sept; but the latter were common property with the soil, and transferred with it in every deed or sale. Under a liberal government, and by the aid of a good administration, the people of Ireland might have been, in the course of seven hundred years, completely extricated from this situation; but, as we shall see in the sequel, it has been the policy of the Norman nobility in that country, if not of the English government itself, to maintain as far as possible the original condition of things. Such were the institutions of Ireland at the beginning of the ninth century, when the Danish monarch Turgesius overran the entire island, and subjugated the inhabitants to his authority. His dominion was of short duration, however; for at the battle of Clontarf, fought on Good-Friday, A.D. 1014, the celebrated Brien Boiroimhe gave him a permanent leave of absence from the five provinces, and a limited monarchy in the seaports. But the factions inherent in the Irish system of government at that time placed the national independence at the mercy of a foreign aggressor, and the ambition of the Norman element in England soon marked the island as a prize worthy an adventure at arms.
The immediate cause of the invasion was the act of young Dermod McMurchaid, King of Leinster, who ran off with the beautiful Devorghal, wife of O'Rourke, and princess of Breffny. Having, by reason of this outrage, been driven from his kingdom, he invited Richard Strongbow, Earl of Pembroke, and Robert Fitzstephen, to his assistance. Thus the dissensions among the Irish princes opened the way for the adventure of the Norman noblemen. A few hundred Norman cavaliers, followed by comparatively a handful of infantry, were sufficient to secure a permanent footing, an event most singular when we take into consideration the military record which those people have made since that period. But the Irish have always shown a capacity to fight better in any other cause than their own. True, the Norman adventurers from England did not succeed immediately in the subjugation of the entire island. Their dominion was limited to a small area; but they found and used those elements of discord among the native rulers which made their situation impregnable against those who still cherished the idea of freedom and independence. The Irish were worsted in every considerable conflict; not so much, perhaps, through the superiority of their adversaries as by reason of their own disunion.
The new rulers endeavored only to consolidate their power, and made no effort for the reformation of existing institutions. If they found a large proportion of the inhabitants in a condition akin to serfdom, there was certainly no motive why they should desire to change the situation. It only gave them more personal consideration and power. Hence, we find that Strongbow and his associates had hardly established themselves in their new dominions before they strove to perpetuate the old customs of tenure and descent. The distinction between the new settlers and the natives was carefully preserved; and the benefit of English laws permitted only to Normans, to the citizens of seaport towns,—who were still, it is to be presumed, in great part Danes—and to a few who had received charters of denization as a matter of personal favor. Five septs only, say the historians, were received within the English pale, and the rest were all accounted aliens or enemies, who, even down to the reign of Elizabeth, had no rights which an Englishman was bound to respect.
The Great Charter, wrested from King John, and confirmed by Henry III., did not benefit Ireland. English laws and jurisprudence were extended over those portions of the island known as the English pale, and during the reign of King John the lands subject to the crown were divided into counties, sheriffs appointed, and supreme courts of law established in Dublin. But these improvements were made rather as a convenience for the English than for the protection of the native inhabitants. During the reign of Edward I., we read that Lord De Clare, connected by marriage with the Geraldines, then the most powerful Norman house in Ireland, was granted extensive domains in Thomond. No regard was paid to the rights of native possessors in this transfer, and though a war, in which the new proprietor was defeated by O'Brien, an Irish chieftain, was the result, no considerable advantages seem to have been derived from the conflict. At the close of the century, we are told that all hopes of independence were resigned, and eight thousand marks offered to the king for the rights of British subjects. No doubt the cupidity of the monarch would have been gratified by so profitable a disposal of privileges, but the favor was not granted by reason of the opposition of the local aristocracy. At the first constitutional parliament, summoned in 1295 by Sir John Wogan, several judicious acts are said to have been passed; but we are unable to see in what manner they operated in favor of the native inhabitants. After the war caused by the invasion of Ireland by Edward Bruce, in the year 1315, the exaction of "coyne and livery" by the impoverished barons first appears, and the method of supporting an army by quartering it on the people was instituted. During a period of active hostilities, and upon the territory of an enemy, such an expedient may be pardonable; but in a country regulated by what was nominally a domestic government it would be hard to perpetrate an act of grosser tyranny.
To afford an idea of the situation of the native inhabitants at this period, we will instance the statute of Kilkenny, passed in the year 1367, by a parliament summoned by the Duke of Clarence. This precious bit of legal wisdom provides that marriage, fosterage, or gossipred with the Irish, or submission to the Irish law, should be regarded as high treason, and punished accordingly. This fosterage or gossipred, of which the English legislators were so fearful, was the practice, traditional among the Irish, of allowing the children of the nobility to be nursed by the wives of the peasantry; and the custom was thought to encourage a sentiment of reciprocal kindness between the lower and the higher orders of the population. The statute also declared that if any man of English descent should adopt an Irish name, be guilty of speaking the Irish language, or follow any of the customs of the country, he should forfeit his estate, or give security for better conduct. It made penal the act of presenting an Irishman to any benefice, or his reception into any monastery. It also forbade the entertainment of any native bard, minstrel, or story-teller; or the granting of permission for an Irish horse to graze in the pasture of a loyal English subject. To such a degree had risen the follies of the dominant race in Ireland in the last half of the fourteenth century.
During the reign of Henry VII. we begin to witness that struggle between the Anglo-Irish nobility and the crown which, in the end, without improving the condition of the masses, was the means of breaking down many noble houses, and still further adding to the distresses of the country. In the parliament of 1494, the act known as Poyning's law was passed. Its enactment was secured by Sir Edward Poyning, lord-deputy of the island, and its purpose was to prevent the assembling of an Irish parliament without the consent of the king. It is easy to see in such an act, however wise it might have been considered, the dawn of fresh conflicts of authority.
During the life of Queen Mary, we have an instance of what fearful infamy could be perpetrated under the system of the Irish land tenure. The septs of O'More and O'Carroll, two chiefs who, under a previous reign, had been arrested, thrown into prison, and left there to perish, claimed that their lands could not be justly forfeited through the offence of their toparchs; but that the ground was the property of the clans, and inalienable save through their own acts. An army was the only response to this reasonable claim, and the inhabitants were forcibly ejected. But not this only. The butcheries that signalized the act were such as to make the event infamous in history; and, in the language of a native historian, "the fires of the burning huts were slaked in the blood of the inhabitants." O'Fally and Leix, the territory occupied by the unfortunate septs, were converted into King's and Queen's counties, and the principal towns were called Philipstown and Maryborough, in commemoration of the queen and her husband. This transaction was one of the first fruits of the coming supremacy of the crown over the local aristocracy.
We now come to the reign of Elizabeth, a woman celebrated alike for her capacity and her vices; and such was her force of character, and the consummate ability of her rule, that she has impressed her policy upon the history of Ireland more deeply than any other sovereign. We have not the space to attempt to follow the incidents of this turbulent period; but must be satisfied with a short statement of the policy of Elizabeth as it seems to have been developed in her measures. When the queen was cautioned against the turbulent and designing character of O'Neill, an Irish chief, and Earl of Tyrone, she is said to have replied that she did not care for his rebellion, as it would give her possession of more lands with which to reward her faithful servants. Historians have endeavored to explain away the meaning of this expression, by attributing it to a desire to silence the enemies of the Irish nobleman; but since, from the beginning to the end of her reign, the history of Ireland proves that she acted as though determined to better the instruction, we have to conclude that in a spirit of levity she had inadvertently unmasked her deliberate policy. From first to last it is only a story of rebellions provoked for the purpose of destroying some Irish nobleman, that an English sycophant might be put in possession of his estates.
The reign of James I., which began in 1603, is regarded by English historians as favorable to Ireland; but how, it is difficult to understand. In some respects the regulations of this king were perhaps advantageous. The introduction of English law over the entire island, the abolition of tanistry and gavelkind, and the more general institution of courts of justice, had public sentiment been healthy, might have eventuated in great advantages; but the spirit of religious persecution, which was now becoming implacable, served to keep alive the animosity of the races, and all improvement was more theoretic than real. Previous to this time, patents for English tenure had been granted only to great lords and chieftains; while their vassals, still retaining their own laws and customs, owed no direct allegiance to the crown. Under the new regulation, estates were to descend by the course of common law, and the people were placed within its operation; but they had really no more interest in the soil than formerly. The king was merely substituted for the toparchs, and while the chiefs were humiliated, their subjects were not made more independent. The land held in demesne by the chieftain was all that was left under his absolute control, but his tenants were subject to an annual rent.
Another project, which originated in the fertile brain of Queen Elizabeth, we believe, but which was not successfully executed until the reign of James I., deserves especial notice. This was a plan for driving out the native settlers, that their places might be filled by adventurers from England. Six counties out of the thirty-two into which Ireland was then divided were appropriated for carrying out the experiment, and cut up into portions of one thousand, fifteen hundred, and two thousand acres each. The largest of these estates were for undertakers and servitors of the crown, consisting of great officers of state, and rich adventurers from England; those of the second-class were for servants of the crown in Ireland, and might be peopled by either English or Irish tenants; and those of the third were for natives of the province, when it suited the undertakers to permit them to cultivate the soil. This scheme of cruelty was followed by another, of a still more atrocious character—the search after defective titles. In the long period of civil commotions which preceded the reign of James I., it is to be presumed that many were occupying lands for which they could not show a very clear claim. If the crown could get possession of property through the simple loss of the proof on the part of the occupant that he was entitled to his inheritance, a source of great public profit would be opened out. Eighty-two thousand five hundred acres were by this means apportioned to English settlers, and the national exchequer was correspondingly enriched. Yet in spite of such transactions as these, the reign of King James has been pronounced a happy one for Ireland!
At the time of the accession of Charles I., Ireland was treated simply as a conquered province, not as an integral portion of the British empire, and its inhabitants still looked upon as aliens and enemies. They had no rights which the officers sent by royal authority, and controlled by cupidity, were obliged to respect, and the very desire for the possession of a piece of land inherited by a proprietor of native descent was sufficient reason for an act of attainder for treason or a search after defective titles. To such an extent was this latter species of iniquity carried that, during the first years of the reign of Charles I., and under the administration of Stafford as lord-deputy, more than a quarter of a million of acres were wrested from the real proprietors, and transferred to the hands of English adventurers. Even jurors who sat upon the causes in dispute were imprisoned, and excessive fines imposed, if they refused compliance with the wishes of the king's lieutenant.
Under these circumstances, it was only natural that the Irish should look about for some means of redress. Property was becoming daily less secure; for the successful practice of this species of plunder was a continual encouragement to fresh outrage; and there was no estimate of the degree to which the injury might be carried. But the remedies proposed in the beginning were peaceful. The lords and gentry met together and drew up a bill of rights, and offered to pay a large sum of money for the royal assent. This measure, known as the Charter of Graces, by one of its provisions proposed to limit the title of the king in lands to sixty years. Changes also were asked in the penal code, and a clause was inserted forbidding the lord-deputy, during his term of office, from coming in possession of land either by purchase or confiscation. The demands were in every respect temperate, and nothing more was asked than a reasonable security for private property, and such privileges as the dignity and self-respect of the subject would require. The king, when the charter was first presented for his signature, was inclined to look upon its provisions with favor; but through the influence, it is said, of Lord Strafford, he was induced to withhold his approval. But while this subject was agitating with alternate hopes and fears the minds of the Irish people, a new measure, or rather an extension of the old system, was planned by the lord-deputy. The success of the English colonization scheme, undertaken in Ulster during the reign of James I., had opened the way for still another attempt at dispossessing the native population of their lands; and Connaught was selected as the next field for operations. This second experiment would probably have proved as successful as the first, if the inevitable fruit of so much tyranny had not come to its maturity.
The uprising of the Irish population in 1641 occurred under more favorable auspices than any previous one, and had they made a united effort for absolute independence, England could not have resisted the forces which were brought into the field against her. But the confederates, as the Irish party was called, were composed of elements too much at variance among themselves to meet with permanent success. The Anglo-Irish inhabitants, or those of English descent, who were looking simply to the security of their property, and exemption from the tyranny of local officers, had no bond of union with the native Irish, who sought the complete recovery of their lost liberties and the rehabilitation of their ancient institutions. Here was a cause for faction which their enemies readily understood, and by which they as readily profited. The Anglo-Irish were afraid of the resumption of power by the descendants of the native chieftains, and it was natural that they should seek to avoid such a result. Nevertheless, led by officers whose exile from their country in former years had been the means of raising them to eminence in the armies of France, Spain, and Germany, the confederates were very successful, and obtained possession of almost the entire island. The peasantry came down from the mountains, whither they had been driven years before to give place to the English colonists, and, without bloodshed, again took peaceable possession of their lost domains. Owen O'Niel, an officer who had done eminent service on the continent, was the ruling spirit of the movement, and it was through his management and address that the confederacy was enabled to maintain such formidable proportions. But the various incidents of that struggle, prolonged through several years, and ending finally during the dictatorship of Cromwell, belong rather to history than to such an article as this, and we must restrict our attention to the results that followed upon the triumph of the English arms.
The troops that Cromwell had brought into Ireland were the most puritanical of his entire army. He had probably at this period begun to indulge in regal aspirations; and hence he desired the removal from England of the more ultra republican and radical of his followers. It is likewise probable that he selected this class of men because their religious fanaticism would make them more zealous in the cause. In the final settlement of the country, as Ulster and Connaught were already the property of the colonists, and not subject to confiscation, the two remaining provinces of Munster and Leinster had to satisfy the claims of the army, and were accordingly portioned out to the followers of Cromwell. The property of the lords and gentry who had joined the confederation was ruthlessly confiscated. The peasantry who had survived the long war were reduced to a state akin to slavery, and many indeed, by order of Cromwell, were sold in the Barbadoes, and in other dependencies of Great Britain. About 200,000 people in all, it is estimated, left the island, of whom 40,000 entered the various armies of continental Europe. These comprised all classes; as to the peasantry who remained, some estimate may be formed of their privileges when we state that they were forbidden to leave their parishes, or to assemble together for public worship, or for any other purpose whatever. The Cromwellian soldiers of every grade, from privates to commanding officers, had taken possession of the estates; and these were the new lords to whom allegiance was due, and by whom it was most rigidly exacted.
But the commonwealth was already crumbling to pieces. The death of Cromwell, and the dissatisfaction caused by a government which was aristocratic and despotic without being regal, soon paved the way for the accession of Charles II., and revived the hopes of those who had been unjustly deprived of their estates at the close of the war. From first to last the Anglo-Irish portion of the confederates claimed that they had been contending for Charles I., and only against his enemies and the parliament. Of the fact that they had desired simply protection, and had been more loyal than disloyal to the throne, there was abundant evidence; and it was to be presumed that the new king would look with more favor upon their claims than upon those of their opponents. To the end of recovering their property, therefore, they began to petition the king in great numbers. That there might be a semblance of justice, a court of claims was established for the ostensible purpose of adjudication. But it was soon evident that there was no intention of dispossessing the new proprietors; and when it was found that, without the most gross and palpable violations of right, it would be impossible frequently not to decide in favor of the former occupants of the confiscated estates, the court was adjourned, and was never allowed to hold another session. Many thousands, by this act, were irretrievably ruined. The Duke of Ormond, prominent throughout the rebellion, played an important part, to the disadvantage of his countrymen, in these transactions, and added enormously to his own estates. At the beginning of the rebellion his property had been about nine tenths encumbered; but by securing an act transferring all encumbrances to the king, and then obtaining a release from his obligations in that quarter, he freed himself from all his difficulties.
When James II. ascended the English throne, about two thirds of the private property of Ireland appears to have been in dispute. The dispossessed proprietors were still clamoring for their rights, and the Cromwellian settlers and the colonists were as sturdily adhering to their claims, and ready at any time to defend their new possessions by either legitimate or illegitimate means. The reign of James from the beginning was weak. The trifling rebellions in Scotland and England which disturbed the first years of his authority were easily quelled, it is true; but he seems to have been intoxicated by his success, and led to the support of measures which were not advised by either prudence or good judgment. The spirit of religious intolerance was at this time most active and implacable. It had been many years since the separation of the English Church from the Catholic authority, and the time might have been thought propitious for something like a recognition of equality between religious bodies; but James endeavored to promote the interest of Catholicity with a zeal that was not to be tolerated by the Protestant bigotry of the day, and many of his acts gave great offence. Of this character was the appointment of the Earl of Tyrconnel, a Roman Catholic, first to the command of the Irish army, and afterward to the government of Ireland itself. The Protestant inhabitants of that country, who knew by what a doubtful claim they held their estates, could not fail of taking the alarm and looking forward to the day when there would be an attempt made to dispossess them of the disputed property. The event proved, indeed, that their fears were not groundless. The act of settlement, the measure upon which the Protestant proprietors depended for the possession of their lands, became immediately the subject in debate; and it was soon evident that its repeal was intended. To comprehend fully the magnitude of such an undertaking, it will be necessary to glance at the situation of the island at this period, and see to what an extent the inhabitants of the country had been plundered of their property. The whole number of acres of land in Ireland was estimated at above 10,400,000, and of this amount 3,000,000 acres were unproductive. This would leave about 7,000,000 acres of arable and pasture land, and 5,000,000 of these, during the reign of Charles I., were still in the hands of Catholic proprietors. Then followed the revolution with the irruption of Cromwell's followers. The situation became greatly changed. At the time of the passage of the act of settlement, only about 800,000 acres remained in the hands of Catholic proprietors. Of the remainder, 800,000 acres were under the control of the government, but leased to Protestants, and 3,300,000 had gone to reward the prowess of the Protector's soldiers. This property had now been in the hands of its present occupants, or absentee landlords, for nearly forty years. To repeal the act which settled all this broad inheritance upon the adventurers was undoubtedly the intention of James; and although this was not the only charge which the British aristocracy and people made against their unpopular sovereign, it was a powerful influence in the train of events that seated the Prince of Orange on the English throne.
Exiled from London, the unfortunate James fled to Dublin. The Irish parliament of 1689, which was summoned by his authority, besides repudiating the jurisdiction of the English courts of law and of the English parliament, and proclaiming the independence of the Irish legislature, repealed the act of settlement; but, as the event proved, these acts were the mere mockery of regal and legislative enactments, and were not productive of even a temporary advantage to his adherents. The Prince of Orange, now recognized as King William of England, came in person to Ireland, and the two kings confronted each other at the battle of the Boyne. History has told the story of the discomfiture and inglorious flight of James, and of the prolonged and desperate struggle which the Irish afterward maintained against their adversaries; until finally the treaty of Limerick confirmed and strengthened the English in their possessions. Some concessions were made to the Irish, it is true, but they were of a character that affected religion more than the tenure of property; and at the final settlement, we are told, only 233,106 acres of land remained in the hands of Catholic proprietors.
This was the last great event that influenced to a considerable degree the tenure of property in Ireland. After a struggle of about five hundred years, we find the island completely at the feet of the conquerors, and the descendants of the native inhabitants with no inheritance, or next to none, upon their own territory. We might have heightened the picture by recounting the assassinations and butcheries of the various wars, the outrages of military government, and the refined cruelties of religious persecution; but these things did not enter into the purpose of this article, and we have confined ourselves to simple statements of facts in their relation to the tenure of property. We have endeavored to trace the means by which the great bulk of the real estate on the island has been transferred from those whose descent entitled them to a proprietary interest in the soil to a class of foreign and frequently absentee landlords, who manifest no interest in the country or the people save by the annual collection of their tenant dues. It cannot have failed to impress the reader that the purpose of the English government, from the beginning, has been to crush out and destroy as far as practicable the native inhabitants, and to supply their place with a foreign population. To this end only could have been designed the various colonization schemes that distinguished the reigns of James I. and Charles II.; the different edicts of expulsion, and the readiness with which the English government has always advanced the wishes of those who contemplated a voluntary expatriation from their native country. But in despite of all this, the proportional native population of the island has steadily increased, while in both Great Britain and America the Irish people have become a formidable power. Their complaints and demands for redress of grievances can no longer be passed by in silent contempt. The land question must be settled upon some basis that will not merely place the Irish peasantry upon the footing of an independent tenantry, but will enable every laborer to look forward to the eventual possession of a portion of the soil, that thus a fitting stimulus and reward may be offered to thrift and industry.