cluded from the benefit of English law in civil matters, excepting those who belonged to certain privileged families (g), or had obtained special grants from the Crown(h), conferring on them the same rights which persons of English race enjoyed. Edward II., in the fourteenth year of his reign, sent his letters patent to the Lord Justice of Ireland, commanding him to order that the Irish natives might enjoy the laws of England, concerning life and member(?), in as ample a manner as the English of Ireland enjoyed the same. By the statute(j), 40 Edward III., passed in a parliament held at Kilkenny, the Brehon law, which was the common law of the native Irish(k), was prohibited from being used amongst those who were of English race, and an adherence to the Irish laws by English subjects, was declared to be treason. These ordinances do not appear to have been obeyed, and the mere Irish were not recognised as subjects until Henry VIII. assumed the title of King of Ireland, but were called in the parliament-rolls "enemies," whilst the degenerate and disobedient English settlers were styled "rebels." The laws of the Franks, Lombards, and other Teutonic tribes were merely personal, and not territorial. After the Franks had subdued Gaul, the Roman and Burgundian settlers were permitted to retain their own laws, in the administration of such part of the lands as they were suffered to enjoy. A similar policy was pursued in Ireland, and it appears that the English settlers were strongly inclined to adopt the Irish customs, by which an authority, almost unlimited, was conferred on the lord of the soil over his vassals and tenants. By the Irish Statute(), 8 Edward IV. c. 1, all Statutes made by authority of parliament within the realm of England, were confirmed and adjudged to be of force in Ireland; and by another Statute passed during the administration of Sir Edward Poynings in Ireland(m), 10 Hen. VII. c. 22, it was enacted that all Statutes made in England concerning the public weal of the same, should be deemed good and effectual in the law within the land of Ireland. And by 10 Hen. VII. c. 8(n), the Statute of Kilkenny, except so far as it related to riding in saddles, or speaking the Irish language, was confirmed, and ordered to be executed. Notwithstanding these enactments, the Irish customs were followed (g) See Appendix, No. II. (h) See Appendix, No. III. (i) Ryley's placita Parliam. 569; Molyneux, 109. 40 Edw. III. This Statute has been printed for the first time by the Irish Archæological Society. (k) Ware's Antiq. by Harris, 70. by many of the English settlers, and the English laws(o) were only observed in fortified towns, and in such parts of Ireland as had been reduced under the king's obedience. During the reign of Edward III., the British dominion had been established over a considerable portion of Ireland(p); but at later periods, the jurisdiction was much circumscribed, and during the reigns of Henry VII. and Henry VIII.(q), did not extend beyond the limits of the English pale(r). All Statutes passed in the English parliament previously to the tenth year of Henry VII., A. D. 1494(s), regarding the public benefit, and which have not been varied, repealed, or become obsolete, still continue of force in Ireland. 15. The Irish chieftains had not estates of inheritance in their possessions: they only claimed a title to their lands for their lives, under the precarious tenure of tanistry. The whole country was distributed amongst septs or clans, which were subject to the authority of a chieftain, appointed according to the custom of tanistry(t), by which it was regulated, that the oldest and most worthy member of the ruling family should, upon a vacancy, become tanist, or coadjutor of the tribe; and in order to avoid contests for the succession, the tanist was appointed in the life-time of the chieftain, to be his successor apparent; and upon the chieftain's death to succeeed to that dignity, but neither infants, nor females, were deemed eligible for the office. The chieftain and the tanist respectively, had certain mensal lands allotted for their support, and the residue of the lands belonging to the clan were divided by the canfinny, or most ancient of its members(u), according to the Irish custom of gavelkind, amongst the community, or clansmen, at his discretion, subject to certain seignories, or duties reserved for the benefit of the chieftain; and upon the death of any considerable landholder, the sept or clan were assembled, and the canfinny made a new partition, giving to each individual a portion according to his influence or seniority. In this partition, the son did not obtain the part which his father enjoyed; no provision was made for the widow or daughters of a deceased occupier; and illegitimate children were entitled to shares in the distribution. The effect produced by the frequent change of pos (0) 1 Ware's Antiq. by Harris, 69. (p) Chief Baron Fynglass's Breviate in Harris's Hibernica. (9) State Papers containing the correspondence during the reign of Henry VIII., vol. i. p. 512, note 2. (r) The pale comprised the counties of Dublin, Louth, Meath, and Kildare. (u) Appendix, No. IV. session, and of the uncertainty of property in land was such, that in the Irish countries, whilst these customs prevailed, neither inclosures nor improvements were made, nor civil habitations erected. These customs were recognised as legal in a great part of Ireland, until the reign of James I., when they were declared unlawful in an ejectment (v) brought for lands situate within a district called Poble O'Callaghan, in the county of Cork. The custom contended for in this case was(w), that the lands holden by the tenure of tanistry ought to descend seniori et dignissimo viro sanguinis et cognominis of the person last seised, aud that the daughters of such person so dying seised, were not inheritable of such lands. It was however decided by the Irish judges, that the customs of tanistry and gavelkind were void, and that all lands in Ireland should descend according to the course of the common law, and that wives should be endowed, and daughters should be inheritable to such lands. It was also ordered by the then Lord Deputy, that if any of the mere Irish had enjoyed any portion of land by the Irish custom of gavelkind, before the commencement of the reign of King James I., they should be established and continued in it, but that all such should thenceforth be adjudged to descend to the heirs of the previous proprietors, according to the common law. 16. By the Irish Statute(x), 12 Eliz. c. 4, any of the Irishry, or degenerate English, holding by Irish customs and not by tenure, were enabled, upon surrender, to obtain grants of their lands from the Crown, to hold by such tenure, and subject to such rents and services as should be expressed in letters patent for that purpose. Many grants were made in pursuance of this Act, and of a commission which issued in the 27th year of the reign of Queen Elizabeth, according to its provisions; but various errors and defects being discovered in the letters patent which were then granted, the native Irish proprietors were invited by a proclamation of King James I.(y) to surrender their possessions, and were offered grants of their estates in fee, subject to certain small rents. This encouragement occasioned a general surrender, and the former possessors obtained grants of their estates in fee simple, by letters patent from the Crown. The greater part of the counties of Donegal, Tyrone, Derry, Fermanagh, Cavan, and Armagh, in the province of Ulster, which had (c) Murrough Mac Bryan dem. Brien Mac Owen r. Cahir O'Callaghan, Dav. Rep. 78; 5 Jac. 1, A. D. 1607; the case of Gavelkind, Dav. Rep. 134; Ware's Antiq. by Harris, 69. (w) Appendix, No. V. escheated to the Crown after the rebellion of 1641, were granted by letters patent to British undertakers, subject to various regulations. Landed property in Ireland is holden by letters patent, subject to certain small rents() called crown-rents and quit-rents. The crown-rents arise chiefly from grants of land formerly belonging to religious houses, which were suppressed or dissolved during the reign of Henry VIII., and also from grants of land situated in the six escheated counties of Ulster. The quit-rents are reserved on grants made by the Crown, pursuant to the Acts of Settlement(a) and Explanation(b). 17. During the reign of King Charles I., it became a subject of political controversy (c), whether the parliament of England had any right to make laws to bind Ireland. Several English Statutes passed prior to the reign of King Edward IV., had acquired the force of laws in Ireland, without any sanction from the Irish legislature, but during the long interval between that period and the time of Charles I., the English parliament did not exercise, or claim authority to bind Ireland by any Statute introductory of a new law. Upon the accession of William and Mary to the throne, several Statutes, as well public as private, purporting to bind Ireland, were passed by the English legislature, and acquiesced in by the Irish parliament, but in the year 1698(d) the dispute was renewed, and continued long afterwards to be a theme of vehement discussion in both countries. The controversy respecting the independence of the Irish legislature, involved the question whether a writ of error to reverse a judgement of the Irish Court of King's Bench might be granted returnable into the King's Bench of England; and also, whether the British house of peers had an exclusive right to decide upon appeals from decrees pronounced by Irish courts of equity. It appears by a record(e) still extant, that in the first year of the reign of King John, the Court of King's Bench (curia regis) of England, entertained an appeal of murder brought by the vassal and kinsmen of an English settler in Ireland, against another Englishman, where the crime was committed in Dublin. It is probable that, not long afterwards, the English courts ceased to maintain any original jurisdiction for criminal offences 31. (z) 1 Howard's Revenue Exchequer, This work is generally attributed to Charles O'Neill, formerly one of his Majesty's counsel. (a) 14 & 15 Car. II. c. 2, Irish. (b) 17 & 18 Car. II. c. 2, Irish. (c) A declaration, setting forth how the laws and Statutes of England came to be of force in Ireland, by Patrick Darcy; with the answer of Sir Samuel Mayart, one of the Judges of the Common Pleas, printed in Harris's Hibernica. (d) The case of Ireland's being bound by Acts of Parliament in England, stated by Wm. Molyneux. London, 1720. (e) See a copy of this curious record in the Appendix, No. VI. Brunus v. Warinus. committed in Ireland; but from a very early period, until the year 1782, the right of the English Court of King's Bench to examine and reverse the judgements of the Irish Court of King's Bench upon writs of error was undisputed. The British House of Lords however claimed, and in many instances exercised, the right of deciding upon appeals from decrees of Irish courts of equity, and of reviewing the judgements of the Irish Court of Exchequer Chamber upon writs of error. In the year 1719, a decree of the Court of Exchequer of Ireland(f) having been reversed upon appeal by the Irish House of Lords, upon a further appeal to the British House of Lords, the decree of the Irish Court of Exchequer was affirmed, and the order of affirmance was carried into effect. With a view of putting an end to such conflicts, it was enacted by the English Statute(g) 6 Geo. I. c. 5, that the British parliament had full power to make laws of sufficient force to bind Ireland, and that the House of Lords of Ireland had no right, or jurisdiction, to reverse or affirm any judgement or decree made in any court of Ireland, and that all proceedings before the Irish House of Lords, upon any such judgement or decree were void. This declaratory act, asserting the dependency of the Irish parliament, had the effect of increasing the evil which it was intended to remove, until at length it was repealed by the English Statute(h), 22 Geo. III. c. 53, and it was afterwards declared by another English Statute(), 28 Geo. III. c. 28, that Ireland should only be bound by laws enacted by its own parliament, and that no writ of error or appeal should lie to England from any suit decided in Ireland. By the Irish Statute(j), 21 & 22 Geo. III. c. 48, after reciting the Act 10 Hen. VII. c. 22, whereby all such Statutes theretofore made in England, as concerned the common-weal of the realm, were confirmed in Ireland, and that subsequently divers Statutes were made in the British parliament, for assuring the forfeited and other estates in Ireland; and for the regulation of trade, and other purposes, it was enacted, that all Statutes theretofore made in England, for assuring the forfeited estates in Ireland, and also all private Acts made in England, whereby any lands or tenements in Ireland, or any estate or interest therein, were holden or claimed, or which any way concerned the title thereto, or any evidence respecting the same: and also such clauses and provisions in any Statutes made in England, concerning (f) Sherlock v. Annesley. (i) 28 Geo. III. c. 28, English. |