Ireland under the Tudors, with a Succinct Account of the Earlier History. Vol. 1 (of 3). Bagwell, Richard
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: —
‘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
‘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.’
‘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
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 of issue male. For which reasons, says Sir John, the Kentish custom was always held good and lawful by the law of England. He admits, however, that the Irish custom had a counterpart in North Wales, which had been totally abolished by Henry VIII., along with other usages resembling those of Ireland. Edward I. had only ventured to exclude bastards, and to give widows their dowry.11
Notwithstanding the above decision, it is probable that a description of tanistry and gavelkind does not exhaust the subject. The theoretical division among all the males of a sept is not at all likely to have been carried out, except in very early times. Human nature was against it. From the twelfth century the example of the Anglo-Normans, which cannot have been altogether without weight, was against it. The interest of the chief was everywhere against it, because it would deprive him of the means of rewarding his friends, and because he was always tempted to seize lands to his own use. The tendency to private property would be always asserting itself, but the exact historical truth can never be known. Before the close of the mediæval period, a great part of Ireland had been reconquered by the tribes from Anglo-Norman hands. Is it possible that the Irish land system can have been anywhere restored in its integrity? On the whole, it is at least probable that English statesmen in the sixteenth century made as many mistakes about tenures in Ireland as their representatives in the eighteenth and part of the nineteenth made about tenures in India. Good faith may be generally granted in both cases, but the blunders made were no less disastrous. It is at all events clear that primogeniture was no Celtic usage, that it is no part of the law of nature, and that the Tudor lawyers treated it as an end in itself, and almost as a necessary element in the eternal fitness of things. In the twelfth century Irish practice may have come much nearer to theory than in the sixteenth; at all events, Henry II.’s grants to individuals were absolutely opposed to Celtic notions of justice.
The Irish admitted composition for murder. This blood-fine, called an eric, was an utter abomination to the English of the sixteenth century, who had quite forgotten the laws and customs of their own Teutonic ancestors. To men long used to a strong central government such a custom seemed impious. It was nevertheless part of the common heritage of the Aryan race, and had been in vogue among the peoples from whom the later English sprung. The Njal Saga illustrates its use among the Icelanders by many famous cases strictly in point. The feudal system and the canon law had caused the Teutonic nations to abandon a usage which they once had in common with the Irish. Celtic Ireland had never had a very strong central government, and such as it was it had sustained serious damage. Homicide was still considered a personal injury. The rule was not a life for a life, but adequate damages for the loss sustained. The idea of public justice, irrespective of private interests, was far in advance of the stage which had been reached by the Irish Celts. Irish history cannot be understood unless the fact is clearly grasped, that the development of the tribal system was violently interrupted by a feudal half-conquest. The Angevin and Plantagenet kings were strong enough to shake and discredit the native polity; but they had neither the power nor the inclination to feudalise a people which had never gone through the preliminary stages. When the Tudors brought a more steadfast purpose and better machinery to the task, they found how hard it was to evolve order out of the shattered remnants of two systems which had the same origin, but which had been so brought together as to make complete fusion impossible. From the first the subjects of England and the natives of Ireland had been on entirely different planes. Even for us it is extremely difficult to avoid confusion by applying modern terms to ancient things. The Tudor lawyers and statesmen could hardly even attempt to look at jarring systems from the outside. They saw that the common law was more advanced than that of the Brehons, but they could not see that they were really the same thing at different stages. In fact, plain Englishmen in the sixteenth century could not do what only the most enlightened Anglo-Indians can do in the nineteenth. They were more civilised than the Irish, but they were not educated enough to recognise the common ancestor. That there was a common ancestor, and that neither party could recognise him, is the key to Anglo-Irish history both before and after the Tudor times.
The early history of the native Irish Church is shrouded in much obscurity. The best authorities are disposed to accept St. Patrick as the apostle of Ireland, the fifth century as the period of his labours, and Armagh as his chief seat. He was not a native of Ireland; so much seems certain. A more interesting, because a more clearly defined figure, is that of Columba or Columkille, who was born in Donegal in 521. The churches of Derry, Durrow, Kells, Swords, Raphoe, Tory Island, and Drumcliff, claim him as their founder; but it is as the apostle of North Britain that he is best known. He was religious from his youth, but a peculiarly serious tinge was given to his mind by a feeling of remorse for bloodshed which he had partly caused. He had surreptitiously transcribed a psalter belonging to another saint, who complained of this primitive infringement of copyright. A royal decision that ‘to every cow belongs her calf’ was given, and was followed by an appeal to arms. Exile was then imposed as a penance on Columba, whose act had been the original cause of offence. Such was long the received legend, but perhaps the exile was voluntary.12 Whether his departure was a penance or the result of a vow, tradition says that he was bound never to see Ireland again, that he landed first on Oronsay, but found that Erin was visible from thence, and refused to rest until he had reached Iona. His supposed feelings are recorded in a very ancient poem: —
‘My vision o’er the brine I stretch
From the ample oaken planks;
Large is the tear of my soft grey eye
When I look back upon Erin.
Upon Erin my attention is fixed.’
Columba
‘This account of Davies,’ says Dr. Sullivan, ‘is entirely wrong. The law of the distribution of the property of a deceased tribesman was most carefully laid down. No doubt then as now, and naturally more frequently then than now, a chief, or head of a sept, or of a
‘Marriages in Ireland,’ says Dr. Sullivan, ‘were not regulated by canon law. The Irish marriage customs were in full force long after the Norman conquest. According to these customs, which appear to have been wholly uninfluenced by the canon law, bastardy was entirely different from what that term implied in countries under canon law, and in modern times. The Irish marriage customs should consequently be taken into account here, as they sanctioned a kind of polygamy, divorce, &c. See also the excommunication in 1282, by the Archbishop of Canterbury against Llewellyn, Prince of Wales, at the request of Edward I., in which the marriage customs of the Welsh, identical with those of the Irish, constitute one of the charges.’
Dr. Sullivan believes the story of the decision against Columba to be a mere myth.