CUSTOMS IN CONFLICT Sir John Davies, the Common Law, and the Abrogation of Irish Gavelkind and Tank try by Adam Donald Pole A thesis submitted to the Department of History in conformity with the requirements for the degree of Master of'Arrs Queen's University at Kingston Kingston, Ontario, Canada October, 1999 copyright @ Adam Donald Pole, 1999 National Library Bibliothaue nationale I*I of Canada du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wellington Street 395, rue Wellington Ol!awa ON K1A ON4 OltawaON K1AW Canada Canada The author has granted a non- L'auteur a accorde une licence noo exclusive Licence allowing the exclusive pennettant a la National Library of Canada to Bibliotheque nationale du Canada de reproduce, loan, distribute or sell reproduire, pdter, distribuer ou copies of this thesis in microform, vendre des copies de cette these sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format electronique. The author retains ownership of the L'auteur conserve la propriete du copyright in this thesis. Neither the droit d'auteur qui protege cette these. thesis nor substantial extracts from it Ni la these ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent &re imprimes reproduced without the author's ou autrement reproduits sans son permission. autorisation. I wish to Dr. Paul Chn'stirtmonfir all his direction and suggestions in supmising this thesis, as well az the assistance of Yvonne Pkzce and thp histoly dtpamnent at Wmon Hull Secondly, thanks to my brother Simon for his proofitding florts, and the moral support of my parents, Donald andjane Po&, and my aunt and unck, Sburon and UffeBhk-Andmen. A.D.P. Contents Page iv I. Introduction 1 2. Common Law Thought in Early Stuart England 8 3. Local Custom and the Common Law: Gavelkind in Kent and Wales 33 4. Gaelic Society: Law and Land Customs 59 5. Davies and the Irish Bench: The Abrogation of Irish Gavelkind 88 and Tanistry Appendix: 0 Cuhgbun Gmeaology in Tanistry Cacr (1608) 6. Conclusion 7. Bibliography 8. Vita Thesis Abstract This thesis examines the abrogation of the Gaelic Irish land customs of tanistry and gavelkind in the Dublin courts in the first decade of the seventeenth century. Sir John Davies, Solicitor- and later Attorney-Genenl of Ireland, was the key figure in using the King's Bench to reorganize Gaelic society along lines more amenable ro the Dublin administration. A key element in this anglicizing process was the abolition of Gaelic partible inheritance, known to the English as and "tanistry", which afFected the lands of the political successor to the dm chief, known as the tanist. These two customs were seen by English administrators in Ireland as perpetuating unstable political and social practices and blocking the "civilizing" influence of English legal and administrative structures. This thesis also incorporates the thought of English common lawyers concerning the status of custom and the common law. Drawing on the 16 10 parliamentary speech of Thomas Hedley and che 1615 Primer Rrport of Irish cases by Davies, it compares two common lawyers' conception of custom and the common law. Hedley presented an interpretation of the common law as based on the customary practices of the English people which met the two criteria of rationality and immemoriality, determined by the royal couns. Davies emphasized the customary and unwritten nature of the common law. In his view, English common law was comprised of rhe general customs of the English people which had developed over time, and had been observed from time immemorial. The analysis of these common lawyers will then be utilized to examine the abrogation of Irish gavelkind and tanisuy in the Dublin common law couns. It is argued chat both Irish gavelkind and tanistry met the criteria of English common lawyers for recognition as valid customs at the common law. As such their abrogation by the Dublin courts had more to do with the necessities of reorganizing Gaelic society along more English lines, than with inherent deficiencies as local customs at the common law. Partible inheritance customs in Kent and in Wales are examined to provide a comparative context. Observation and understanding of gavelkind and tanistry by English administrators in Ireland was shaped by the Wales and Kent examples. Welsh gavelkind had been abolished by the union legislation of the 1530's and 154OYs,while gavelkind in Kent remained until the twentieth century. This thesis argues that the actions of English administrators in Ireland to abolish Gaelic Irish land customs are best understood when anal~sedwithin the context of similar practices which were allowed to remain in an English county, but were abolished by statute when a non-English nation was incorporated into the English state. 1 Introduction In 1612, Sir John Davies, Attorney-General for Ireland, optimistically wrote of the Irish people chat he hoped "the next generation will in tongue and heart and every way else become English, so as there will be no difference or distinction but the Irish Sea betwixt us."' Recent events in Ireland would not have discouraged such a view. With the surrender of Hugh O'Neill to Lord Deputy Mountjoy in 1603, concluding che Nine Years War, England finally had military control over the whole island. The presence of 3 standing army in the following years enabled the Dublin administration to funher the policy of substituting English for Irish institutions. Throughout the first decade of the seventeenth century, English administrative and legal structures reached into all pans of Ireland for the first time: assize circuits and sheriffs were instituted into Ulster, the most Gaelic area of the island. Gaelic landholding and inheri cance patterns were voided and common law forms instituted; this reorganized Gaelic sociecy and undermined the power base of such great Gaelic lords as O'Neill, Earl of Tyrone, and O'Donnell, Earl of T~rconnell.Finally, with the "flight" of' the Ulster lords to the continent in 1607, a power vacuum was created in Ulster, which enabled the anglicizing process to make further inroads. The forfeited lands of the earls provided idea grounds for plantation. Ireland at no other time had seemed so pliable to the hand of English government. For Davies, the most important of these achievements was the restructuring of the Gaelic land system. Two key native land customs, which English observers called the Sir John Davia, A Discwq ofbe TNCCaum WbItchnd Wm NNIIEntireb Subdued Nor Brought (I& Obcdimce ofr/n Cmwn ofEnghd Until the Bginning of Hir Mnjny 5 Hapn Rtijp (1612), in Henry Morley, 4.. Itehnd I/.& Elzubeth And]ames rbc Fim, (London: George Roudedge and Sons. Limited. 1890), pp. 335-6. To be rekrred to hereafier as Davies, Dkcoumy. played a key role in the process of anglicizing Gaelic society and consolidating English rule in Ireland. Historians have not written a great deal on the abrogation of Irish land customs by the Irish judiciary. The issue was not seriously broached until Hans Pawlisch's I985 study, Sir John Davies and the Conquest of i&nd Other historians have sought to utilize Pawlisch's findings rather chan to delve further into issues that he raised.' Quite simply, Pawlisch was the first to examine the use of judge-made law as a means of consolidating the English conquest of Ireland. Under the guidance of Davies, he argued, matters that hindered the extension of English legal and administrauve structures were changed by the Irish courts. Judgemade law, rather than parliarnen tary statute, restricted political participation to Protestants, reformed the Irish coinage, upheld the royal prerogative by rescinding private powers to collect custom revenues, and abrogated key land customs of the Gaelic Irish.' Pawlisch argued that the Dublin administration used the law as an instrument of conquest and colonization. The common law became a means to facilitate the reorganization of Irish society dong lines more acceptable to the English governors in Ireland. Afier the military victory of 1603, "the pacification of Ireland required an instrument other than military force to bring about an orderly administration under the supervision of a central government in ~ublin."~Gaelic Irish land customs were seen by the English administration as perpetuating unstable social and political practices and blocking the civilizing anglicization of the island. Institution of the common law of England would ' Pawlisch, Sir /oh Davits and thc Conquest of lrchnd, (New York: Cambridge University Press, 1985). Earlier, F.H.Newark had recounted the arguments ofthe 1608 case oftanistry, and suggested that Davies conspired with rhe judges on hvounble legal arguments, but he did not place the issue in any wider context chan is an important legal case in Irish law. "Tfle Case ofTanistry", No~hmIrehnd &a1 Qr(rtner@, no. 4 (9) 1952. ' Pawlisch, Sirjohn Davia udthe Conqmt of Ireland; chapter six, "The mandates conuoveny and the case of Robert Llor": chapter eight, "The ay of midmoney*; chapter seven, 'The ctse of customs payable for merchdisen; and chapter four, 'The cues of gavelkind and canistry: legal imperialism in Irelandn. alter the way in which land was held and inherited, create social stability and curb the independent power of Gaelic lords. The programme of using the common law as an instrument of conquest was spelled out by Davies in his treatise on the historic failure of the Crown to subdue and "civilize" Ireland.