The history of the volunteers of 1782.

Front matter

HHH w mfS A,

THE

HISTORY

Introduction

EARLY IRISH PARLIAMENTS.

For all purposes but one, any details of the early Irish Parliaments would be unnecessary in this work. But it is thought advisable to place some facts, relative to these bodies, before the reader, for the purpose of his better understanding the struggle in which the Volunteers were engaged, and the institution they succeeded in restoring.

We must not expect to find in the first parliaments held in Ireland, much of the form or spirit of modern legislative assemblies. The growth of these institutions has been slow ; and the perfection of modern times, or any admixture of the democratic element, would be sought for in vain in the rude Baronial assemblies of ancient Ireland.

The parliaments of our early history in connexion with Britain, were assemblies in which the Irish natives had no participation of any kind. Those by whose writ or authority they were summoned, did not even assume that they had in view the interests of the people whose ancient inheritance they came to usurp ; and the statutes and ordinances which, from time to time, were passed in these parliaments, are sufficiently indicative of the spirit of hostility with which the Irish people were regarded.

If we consider the question merely in an antiquarian point of view, we can have no difficulty in determining that the origin of parliaments in Ireland, if not contemporaneous with the English invasion, is still of very remote antiquity : — but that the institution in its benefits, or in its protection, was not extended to the mass of the people until the power of England was recognised over the whole island, is a matter of equal certainty. Looking at the question politically, the Irish Parliament becomes a matter of very inconsiderable import in the history of the people of Ireland. It was an assembly summoned usually to vote supplies to the king, for the marriage of his daughters or the advancement of his sons, to carry on his wars — often against the Irish enemy — or to hear and decide certain " pleas of parliament" which came within its ill-defined jurisdiction. The entries on the rolls preserved in the Record Offices, are almost all to this effect.

Some writers on this subject have insisted that Henry the Second summoned a parliament in this country. In the learned work of Mr. Lynch on the Feudal Baronies of Ireland, the author relies upon the authority of many statutes passed in Ireland when Parliaments were without doubt held here, as proving by reference contained in them to the existence of such bodies from the time in which memory runneth 1* not, and from the acquirement of the said land, the contemporaneous existence of legislative assemblies with the first English settlement. But there were no parliamentary rolls or journals until a much later period, and the only document, of the date of Henry the Second's reign, upon which Mr. Lynch relies, is the statute Henry Fitz-Empress (another name for that monarch) passed for the election of a chief governor when that officer should vacate his office ; and by this statute or ordinance (for it may be called by either designation) it was provided that the chancellor and other officers should, with the consent of the nobles of the land, have power to elect a governor. But this act was more probably passed in a Curia Regis or Common Council, similar to that held at Lismore, in 1172, by Henry the Second ; indeed the author afterwards calls such assemblies " parliaments or public councils."*

During Henry's reign, he very probably more than once held councils of this kind, to which his nobles and prelates were summoned to consult on the affairs of the realm ; but our distinguished historian f with great justice remarks, that, to apply the term parliament to such assemblies is, if not an anachronism in language, at least a use of the term calculated to mislead, inasmuch as that form of legislative council to which we give at present that name, did not develope itself, however long its rudiments may have been in existence, for more than a hundred years afterwards. Mr. Lynch, on the other hand, relies upon the authority of the statute of Fitz-Empress, which was re-enacted in a parliament assembled in the second year of Richard the Third, and the learned author refers to the works of Hovenden, Giraldus Cambrensis, Matthew Paris, and Brompton, for accounts of the parliamentary transactions in the reign of Henry the Second. But the statements of these writers must be taken in connexion with the observations already made. They treated of the acts of bodies, to which the term parliament, in our sense of the word, cannot possibly apply ; wanting, as they undoubtedly did, all the component ingredients which make up the modern idea — wanting representation, election by votes, and all those forms by which the selection of representatives and their proceedings were guided and controlled at a later period.

In his work on the constitution, Mr. Hallam recapitulates the extent to which British laws and usages were introduced into Ireland, during the reign of Henry and his successors. Limiting the classes, to which the British constitution was in anywise imparted, to the English colony, and to the Ostmen who inhabited the maritime towns, and observing that the Irish chieftains never thought of renouncing their authority or the customs of their forefathers ; he says, that Henry gave charters of privilege to the chief towns, began a division into counties, appointed sheriffs and judges of assize to administer justice, erected supreme courts at Dublin, " and perhaps assembled parliaments, "t He does not give any reason for the supposition.

* Lynch's Feudal Baronies of Ireland, p. 38. t Moore's History, vol. 2. p. 258.

"tHallam's Constitutional Histoiy, vol. 3. p. 466.

In the reign of John, there are several instances of public councils being held ; but in all cases the writs are directed to the barons, archbishops, bishops, and to certain tenants of the King. In the third year of this monarch, writs were issued to the barons of Meath, requiring of them " to give faith to what Meiler Fitzhenry, his justiciary or chief governor, should say to them." Another instance occurred in the fifth year of his reign, in which the writs were directed to the archbishops, bishops, &c, and to the justices, sheriffs, knights, citizens, merchants, burgesses, and freeholders (that is to say, tenants of free tenure under the King ;) and they are asked to give him an aid similar to one he had already received in England. John had bound himself by Magna Charta to summon to such general assemblies the greater barons by special writs, and the lesser barons by writs directed to the sheriff. There are other instances in the same period of similar councils thus summoned, and for one specific purpose — to grant an aid or to take council on the state of the country — and we may observe the rudiments of the principles which afterwards controlled the Parliaments of Ireland, slowly unfolding themselves in these early councils. The constitution of these countries is not a system devised and propounded at any one given period, but is the cumulative result of the additions made, from time to time, of something new and required to existing forms, the slowly matured fruit of successive experiments. And the mistake which many writers have made consists in this, that they discuss these early and unshaped institutions by a standard derived altogether from their own experience of a comparatively perfect system. Hence those early Baronial Councils, called together by the exigencies of the monarch, and wanting all the spirit and characteristics of a parliament, are treated as parliaments in many of our books of historical and constitutional learning.

Several writs issued during the reign of Henry the Third, to his barons, bishops, and knights, calling them together for the purpose of giving him assistance towards marrying his son and daughter, and to enable him to execute a sworn voyage to the Holy Land, and the like.* The laws and institutions of England were, by the extension of the Great Charter in the reign of Henry the Third, conceded to Ireland, with a singular anomaly of exclusion — the people were to take no benefit by the grant. The new adventurers lived pe culiarly for the day : they did not appear to look beyond present enjoyment, and the opportunity which was afforded to them of creating an empire amongst a willing people, of laying the foundations deep and wide of a great system of civilization upon the basis of conquest and of community of laws, institutions, and customs, was thrown away on the pluudering chivalry of the Anglo-Normans. We may conclude that the natives of Ireland were but little interested in the parliamentary details of this reign. Lynch, however, gives several entries on the rolls of parliamentary grants to the monarch ; and there is no

* In Rhymer's Ftedera, will be found a writ to convene an Irish Parliament in this reign, A. D. 1253. See Grattan's Life by his Son, 1st vol. p. 10.

doubt that several councils were assembled for the usual purposes, at Dublin and Kilkenny.

The reign of Edward the First was memorable in the English annals, for it was during its continuance that the parliamentary power was moulded into its present shape. The authority of parliament previous to that period was supposed to reside in the baronage, which constituted the great councils of the nation. The only duty of the Commons was to grant money ; and their privileges did not extend further than the presentation of petitions.* It is difficult to believe that the system was more amply developed in Ireland. The country was less able to supply materials for a third estate, and all the previous parliaments were most probably little better than great councils composed of barons, prelates, and their retainers. Yet a very important assemblage was held in this reign — important in the indications it gives of the state of the country and the relations which existed between the English and the native Irish, and also important for some of the measures it adopted. It ordained a new division of the kingdom into counties ; that absentees should assign a portion of the profits of their Irish lands to maintain a military force ; that, in consequence of the incursions of the natives on the marches or borders of the English settlement, the lords marchers who should neglect the maintenance of their wards, should forfeit their lands ; that no lord should wage war without license of the chief governor or special mandate of the monarch; and that no person of any degree should harbour more followers than he could maintain. f

Perhaps the most important piece of legislation which remains to be notice], before we reach that period of our parliamentary history with which we are chiefly interested, is the Statute of Kilkenny, passed during the viceroyalty of the Duke of Clarence and the reign of Henry the Third ; because, whatever skill or learning may be expended in denning the powers and exaggerating the antiquity of legislative institutions in Ireland, it proves that for two centuries after the invasion, the people were without the benefit of English laws, and had no participation whatever in their enactment or administration. The Statute of Kilkenny was curiously happy in its tendency to effect that

* The first admission of the Commons to the English legislature comprised merely the king"s tenants in capite. In the charter of John, the words are " omnes illos qui de nobis tenent in capite." In the charter of Henry the Third it is stated that for the concessions therein contained, the " arckiepiscopi, episcopi, abbates priores, comites, barones milites, liberc tcnentes et omnes dc regno nostro," gave him a fifteenth. This was an additional element — free-holders were summoned to the councils or parliaments. In the reign of Edward the First, the confirmatio cartarum, 25 Edward I., c. 5, the king's grants " to the archbishops, &c, as also to the earls, <fcc, and all the commonalty of the land not to take aids, tasks, or prizes, due and accustomed ; and by the statutum de tallagio in the 26 Edward I., no tallage or aid is to be imposed without the will and assent of the whole, archbishops, &c, earls, barons, and knights, burgesses, and other free commons of our realm." These parliaments were composed of 169 members ; 37 shires returned two members each, and 132 boroughs returned a member each. The writs of summons of this reign direct the sheriff to return two knights for each shire, and for each borough two burgesses: the former were summoned for themselves and the commonalty of their counties — the latter were summoned for themselves and the commonalty of cities and boroughs, divisim ab ipsis. This appears the first material step towards modern classification.

perpetual separation and enmity between the English and the Irish, which Sir John Davis asserts, was a favourite object with the governments of Ireland. It was principally directed against those who were called " degenerate English ;" in other words, those who had adopted the manners and fashions of the people they dewlt amongst; but it was also filled with severe legislation against the native Irish. It destroyed the possibility of future union between the races in their social and political relations, prohibiting intermarriage with the Irish or any of those ties of gossipred,* which, dearer in their adoption than any natural link, were fondly cherished by the native people of Ireland ; making penal the adoption of an Irish name, the use of an Irish dress, language, or customs ; declaring it to be treason to submit to the Brehon law ; forbidding the English to permit the natives to pasture on their lands, or to admit their news-tellers, rhymers, or minstrels to abide with them.

One can scarcely help fancying, that it required considerable art and determination to keep those two races distinct. If we can judge by the laws what were the inclinations of the people, they appear to have been anxious to mingle in all relations, and to make common cause against the oppressions of deputed tyranny and the wrongs inflicted directly by the English government. A policy, perfectly similar to that which took its place, when differences of religion afforded a new medium of division, was adopted by the party interested in the perpetuation of discord and contention in Ireland, and its effects have been in both instances the same — the ruin of the country and the sacrifice of her freedom.

From time to time, Parliaments of a similar nature to the Parliament of Kilkenny, and abundant in similar legislation, were held in different parts of Ireland — their uniform object being to repress English degeneracy, and to organize oppression against the ancient inhabitants of the country. The facts connected with these assemblies belong to the general history of Ireland — they present no peculiar feature which bears upon the subject of this book.

Stringent, however, as their legislation undoubtedly was, and continuous as were the military efforts to reduce the country, neither parliaments nor arms made much impression. The Pale was gradually narrowing around the English power — a power which was unable to force submission, or to compensate usurpation by protection. In the reign of Henry the Seventh, the foreign rule of Ireland extended only to four counties — Dublin, Louth, Kildare, and Meath.

But the accession of the Tudors was the true commencement of Irish subjection. The English colonists, in the wars of York and Lancaster, had attached themselves to the fortunes of the White Rose, and their parliaments of the Pale had recognised and enforced the contemptible pretensions of Simnel and Warbeck. The mockery

* Another word for fostering. (See Moore, p. 108.) "Fostering hath always been a stronger alliance than blood ; and the foster-children do love and are beloved of these foster-fathers, and their sept, more than of their own natural parents and kindred, and do participate of their means more frankly, and do adhere unto them in all fortunes with more affection and constancy."

of a coronation io Christ church, which signalized the pretensions of Simnel, was followed by the invasion of England with a few thousand German adventurers and a crowd of the Anglo-Irish of the Pale. The result, after great but unavailing valour on their part, was the destruction of the invaders and the translation of Simnel to the kitchen of the King. The great lords of the Pale, who, headed by Fitzgerald, the Earl of Kildare, had taken part in the rebellion, lay prostrate at the mercy of Henry, and it is a reflection upon his policy, that he did not crush them when so fully in his power. They stood between the English sovereigns and the Irish people : many of them adopted Irish habits and formed Irish connexions, but they preserved enough of the pride of English birth, and the feeling of conquerors, to prompt them to retain in their hands all the benefits of the laws and institutions of England. It was the aristocratic party of the Pale who opposed the presumed intentions of several of the English monarchs to extend the protection of English laws to the Irish natives ; and Henry, on the failure of Simnel's rash rebellion, was in the position to adopt in Ireland the policy he so successfully employed at home, where, in the course of his succcessful and sagacious career, he destroyed the powerful class of nobility, which shared amongst its members the powers, and emulated the splendour of the monarchy. However, he did not adopt his own precedent. He permitted the Earl of Kildare, rebellious even in the chair of viceroyalty, to retain his office, and, with a few exceptions, extended his pardon to all the parties who were implicated in the rebellion. But his lenity was repaid by a repetition of the farce of an escaped prince. Under similar auspices to those which ended in the ludicrous failure of Simnel, Perkin Warbeck presented himself to the rebellious spirits of the Pale, as Richard, Duke of York, the second son of Edward the Fourth ; and he, it was said, had escaped the murderous hand of the assassin, when his elder brother was killed in the Tower. The design of setting up this Pretender, which was warmly adopted by the Anglo-Irish of the Pale, soon became known to Henry. His measures grew more consonant to his general character; he dismissed the Earl of Kildare from power, and after Warbeck had landed in Ireland, he adopted the first step which had ever been taken of real importance, " to curb the spirit of provincial despotism, which the English government itself let loose and fostered." *

The Parliament of the Pale had been always in the hands of the great lords, the ready instrument of perpetuating and strengthening their dominion, and oppressing the natives of Ireland. It was the parliament of four counties, the abject instrument of dispensing the favours of power according to the pleasure of the predominant family — Butler or Fitzgerald — and the coercive and cruel medium by which the Irish people were harassed and oppressed. But if it were the instrument of grievous wrong to the body of the nation, it was also quick to assist the great lords in every scheme of rebellion, to which their ambition or turbulence gave birth. It was a tyrant and a rebel.

* Moore's History, vol. 3, p. 217.

And it was to destroy its disturbing activity, that Henry determined to surround it with restrictions, and to reduce it from being the active instrument of mischief, into a mere court of registry to record the edicts of the English government, or its Irish deputies.

The agent for effecting this purpose was well chosen. Sir Edward Poynings was sent to Ireland with a small military force, and a crowd of the most eminent English lawyers. He was a resolute and severe man. The restrictions on the parliaments of the Pale formed a part of a great and well considered scheme of national reduction. The duties of Poynings, who was appointed Lord Deputy, were to destroy the power of the great lords, to introduce English habits and English laws amongst the inhabitants within the English borders, to put an end to the local quarrels which distracted the district nominally acknowledging the power of England, to substitute an equitable system of taxation for the extortions practised by the retainers of the Barons, and having effected the preliminary settlement of the Pale to proceed to the reduction of the native inhabitants. The latter portion of his appointed duty was reserved for sterner and bloodier hands. But he did not leave unfulfilled the previous and necessary mission of extinguishing the power of the Lords and the Parliament.

In the month of November, 1494, the Parliament of Drogheda was held.

It is celebrated above all other parliaments of times preceding its session or following it, for legislation which controlled the constitutional powers of Irish parliaments, up to the period of which this book treats. For though bold and virtuous opposition was given, from time to time, to the usurpation of England, it was not until the Declaration of Legislative Independence in 1782, that the Parliament of Ireland was perfectly emancipated from the restrictions which the legislation of Drogheda imposed, and which was subsequently either repeated or explained by the acts of Philip and Mary, and the 6th George the First.

The legislation of the Parliament of Drogheda was of a very beneficial nature, as far as the Pale was concerned. One of its first acts was the abolition of the practices of coign and livery, and the preamble to the act is so illustrative of that district, that it is here presented to the reader : —

"At the request and supplication of the commons of this land of Ireland, that where of long time there hath been used and exacted by the lords and gentlemen of this land many and divers damnable customs and usages, called coign and livery, and pay, that is horse meat and man's meat ; besides many murders, robberies, rapes, and other manifold extortions and oppressions, by the said horsemen and footmen, daily and nightly committed and done, which being the principal causes of the desolation and destruction of the said land, hath brought the same into ruin and decay, so as the most part of the English freeholders and tenants of this land be departed out thereof, some into the realm of England, and other some into other strange lands; whereupon the aforesaid lords and gentlemen of this said land have intruded into the said freeholders' and tenants' inheritance, and the same keep and occupy as their own, and setten under them to the king's Irish enemies, to the diminishing of holy Church's rites, the disherison of the king and his obedient subjects, and the utter ruin and desolation of the land."

The preamble of another act of this session, is fully explanatory of the relations existing between the English settlers and the Irish natives, and indicative of the action of what were called Irish Parliaments on the people of the country. It recites: —

" As the marches of four shires lie open, and not fensible in fastness of ditches and castles, by which Irishmen do great hurt in preying the same, it is enacted, that every inhabitant, earth-tiller, and occupier in said marches, i. e., in the county of Dublin, from the water of Annaliffey to the mountain of Kildare, from the water of AnnalifFey to Trim, and soforth to Meath and Uriel, as said marches are made and limited by an act of parliament, held by William, Bishop of Meath, do buiid and make a double ditch of six feet high above ground at one side or part which meareth next unto Irishmen, betwixt this and next Lammas, the said ditches to be kept up and repaired as long as they shall occupy said land, under pain of forty shillings, the lord of said lands to allow the old rent of said lands to the builder for one year, under said penalty. The Archbishop of Dublin, and the Sheriff of the county of Dublin, the Bishop and Sheriff of Kildare, the Bishop and Sheriff of Meath, the Primate of Armagh, and the Sheriff of Uriel (county Louth), to be commissioners within their respective shires, with full power to call the inhabitants of said four shires to make ditches in the waste or fasagh lands without the said marches." To fence out the Irishmen was a great step of practical civilization in those good old times ; and even to the present day, but in a different fashion, it is considered excellent policy.

But the statute with which we have peculiarly to do, in a history of the Volunteers of Ireland, is that which defines and limits the power of Irish Parliaments, and the doctrines of which — when these bodies became to some degree representative of the people of Ireland — continued to retain them within the restrictive limits which were destroyed by the virtue and valour of the National Army of '82. The law of Poynings enacted, that " all acts made as well by his majesty as by his royal progenitors late kings of England, concerning the common and public weal of the same, were accepted and confirmed to be used in Ireland according to the tenor and effect thereof." And by another act of the same legislation, it was provided that " no parliament should be held in Ireland until the causes and considerations for holding it were first certified by the deputy and council to the king, with the scope and intention of the acts proposed to be passed. The clause is as follows : —

" Item, at the request of the commons of the land of Ireland, be it ordained, enacted, and established, that at the next parliamSnt that there shall be holden by the king's commandment and license, wherein amongst other the king's grace entendeth to have a general resumption of his whole revenues, sith the last day of the reign of King Edward the Second, no parliament be holden hereafter in the said land, but at such season as the king's lieutenant and council there first do certify the king under the great seal of that land, the causes and considerations and all such acts as to them seemeth should pass in the same parliament, and such causes, considerations, and acts, affirmed by the king and his council, to be good and expedient for that land, and his license thereupon, as well in affirmation of the said causes and acts, as to summon the said parliament under his great seal of England had and obtained : that done, a parliament to be had and holden after the form and effect afore rehearsed : and if any parliament be holden in that land hereafter, contrary to the form and provision aforesaid, it be deemed void and of none effect in law."

Hallam considers that the operation of the first of these acts effected a marked change in Irish jurisprudence, all statutes made previous to the 18th year of Henry VII, being thereby received as Irish law, whilst none of later date were to have any operation unless specially adopted by the Irish Parliament.* But whatever was its effect, there can be no doubt either of the intention or of the results of the last of these statutes, which, in this country, is peculiarly known as Poynings' Law. " Whatever might be its motives," observes the same distinguished writer, " it proved in course of time the great means of preserving the subordination of an island, which, from the similarity of constitution, and the high spirit of its inhabitants, was constantly panting for an independence which her more powerful neighbour neither desired nor dared to concede. "f These laws, originally confined in their operation to the very narrow limits of the English power, extended with its extension, and will be found at a later and more eventful period of our history to be of material influence.^ The law of Poynings, immediately after its enactment, gave rise to a great variety of interpretation. It was thought by some, that the conditions contained in it were only preliminary to holding a parliament, which, when assembled, was competent to treat not alone of the matter certified to the crown, but of all matters concerning the public weal. Others, on the contrary, contended that the parliament was limited to the subjects and acts transmitted from England. The parliament for some time acted on both interpretations, and occasionally passed bills which had. not been transmitted. Such was the looseness with which the celebrated law was interpreted shortly after its enactment. But the doubts to which it gave rise were settled by a declaratory act, the 3d and 4th Philip and Maiy, by which it declared the chief governor and council empowered, during the session, to certify other causes and considerations, &c, as they shall think necessary ; but it is also declared that no other acts but those transmitted either before or during the session could be enacted by parliament ; thus, as Leland says, denying the right the parliaments had pre-

* Hallam's Constitutional History of England, vol. 3, p. 481. t Hallam, vol. 3, p. 482.

X Some other interesting pieces of legislation, not relative to our subject, were passed in Drogheda. The wild war-cries adopted by the English families in imitation of the natives were forbidden ; the statutes of Kilkenny, except as far as the use of the Irish language was concerned, were revived ; the use of bows and arrows enjoined ; to stir up the Irishry to war was declared high treason ; and the lords of Ireland were compelled to wear in parliament the same sort of robes as were worn by the English lords in the parliament of England.