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The native Irish and English law in medieval Ireland

Published online by Cambridge University Press:  28 July 2016

Jocelyn Otway-Ruthven
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Extract

The problems set by the Norman conquest of Ireland which began under Henry II cannot be properly appreciated if they are viewed in isolation. Similar problems had been set by the Norman conquest of England only a hundred years earlier; similar problems existed in Wales. In England, however, the conquest had been both rapid and complete, and problems which were to last throughout the middle ages in Ireland were solved in England by the merging of the two peoples in a relatively short time. Moreover, in England no such clash of laws as was to come about in Ireland had followed the conquest: the Anglo-Saxons had possessed a well-developed system of local administration which was taken over with little or no modification by the Norman kings.

Type
Research Article
Information
Irish Historical Studies , Volume 7 , Issue 25 , March 1950 , pp. 1 - 16
Copyright
Copyright © Irish Historical Studies Publications Ltd 1950

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References

1 See Pollock and Maitland, History of English law.

2 See Powicke, Henry III and the lord Edward, ch. XV

3 J. F. , O'Doherty, ‘St Laurence O'Toole and the Anglo-Norman Invasion’, in I.E.R., series 5, i. 623–4; Dudley Edwards, R., ‘ Anglo-Norman relations with Connacht, 1169–1224', in I.H.S., i. 137, n. 2 (Sept. 1938).Google Scholar

4 See O'Doherty, op. cit., pp. 136–8.

5 See my paper ‘ Anglo-Irish shire government in the thirteenth Century', in I.H.S., v., 1–7 (Mar. 1946).

6 P.R.O., Inquisitions post mortem (chancery) 7 Edward III, file 36, no. 25 (summarized by Orpen, ‘ The earldom of Ulster ’, in R.S.A.I.Jn. 1913–15), and Chancery Miscellanea, bundle 10, file 20, no. 14.

7 See e.g. A.L.C., 1238, 1248; A.U., 1242, 1252. The hostages of Cenél-Conaill were obtained in 1238 and 1242, but there is nothing to suggest that O'Donnell was ever regarded as being in the same position as O'Neill, and though an inquisition in the Public Record Office, London, represents him as having been obliged to maintain 80 ‘ satellites ‘ for the earl of Ulster (Chancery Miscellanea 10/20/14), this Statement does not occur in the inquisitions taken after the murder of William de Burgo in 1333, and may have been made in error.

8 Facs nat. MSS. Ire., ii, plate lxxiii, Davies, Discovery(ed. of 1787), p. 13; Cal. doc. Ire., 1171–1251,no. 2716; Rymer, Foedera.

9 Cal. doc. Ire, 1252-84, no. 929; A.U., 1286, 1291; B.M. Add. MS 4790, f. I44d.

10 See Powicke, op. cit.

11 See below, p. 6.

12 Stat. Ire., John-Hen. V, pp. 21, 23.

13 Facs nat MSS Ire., iii, plate vii.

14 In 1299 a charter of English law granted by William Marshal, lord of Leinster, in 1208-9, was pleaded in the justiciar's court (Cal. justic. rolls Ire., 1295–1303, p. 271.

15 See e.g. Cal. pat. rolls, 1313–17, pp. 563–4; P.R.O., Ancient Petitions 5944 and 8820, cited by H. G. Richardson, ‘ English institutions in medieval Ireland ’, in I.H.S., i. 390–1. It was always, however, possible for any lord to give a charter to an Irishman making him of ‘as free condition as any Englishman among-his tenants ’ as far as the lord himself was concerned, and he could then apparently sue against the lord in the king's court (CaL justic. rolls Ire., 1305–7, pp. 321–3).

16 B.M. Cott. MS Titus B XI, f. 70.

17 B.M. Add. MS 4790, ff. 67d-68; Davies, Discovery (ed. of 1787), pp. 83-4. MS Titus B XI appears to have been used by Davies in writing the Discovery.

l8 Cal. doc. Ire., 1171–1251, no. 1001.

19 The cases in which we have definite evidence are nearly all cases in which unenfranchised Irishmen have sought to merge themselves with the colonists by taking English names—see e.g. Cal. justic. rolls, Ire., 1295-1303,p. 342; 1305-7 P. 520; Liber primus Kilk., pp. 6–9; Davies, Discovery, p. 90; Cambridge University Library, Add. MS 3104, p. 49d.

20 MacCaffrey, The black book of Limerick, p. 27; Caulfield, The pipe roll of Cloyne, pp. 34-5.

21 The earliest document in which I have found the term betagh used is the pipe roll of 14 John (1212); earlier documents speak of nativi.The only instances I have found of the use of the word villein in an explicitly Irish context are in 1341 and 1393 (B.M. Lansd. MS 482, f. 140; Graves, Council in Ireland, pp. 138-40). Occasionally we get hibernicus used with precision : in 1305 we hear of a man who is an hibernicus of the king and his nativus (pal. justic. rolls Ire., 1305-7, p. 150), and in 1273 the countess of Ulster distinguishes between certain hybernienscs liberos and certain others who are called betagii seu nativi of the said countess (P.R.O. Anc. Corr., viii, 149. I am indebted to Mr H. G. Richardson for my knowledge of this document).

22 Caulfield, Pipe roll of Cloyne, pp. 8–9, 26, 38–9.

23 Ibid., pp. 15, 18, 20–21.

24 Ibid., pp. 6, 7, 30–32.

25 Cal. doc. Ire., 1302–7, no. 167.

26 Ibid., 1171–1251, no. 1264.

27 Ibid., no. 120; 1252–84, no. 52; 1285–1292, p. 309; P.R.I. rep. D.K. 39, PP. 53, 69; Cal. justic. rolls Ire., 1305–7, p. 379. A bull of. Pope Urban IV speaks of laymen bound to the soil who are vulgarly called betagii (Reg. All Hallows, pp. 129–31).

28 Cal. justic. rolls. Ire., 1305–7, pp. 326–7

29 Cal. doc. Ire., 1285–92, no. 459.

30 See e.g. ibid., 1293–1301, no. 551 ; Red bk. Ormond, passim. The king's betaghs were paying money rents in the reign of John (Pipe roll 14 John, pp. 7, 10, 12, 20, 30, 44). The whole question of this transition to a money economy deserves separate treatment.

31 Hore, History of Wexford: Old and Neiv Ross, pp. 15, 26.

32 For a full description of typical labour Services, see Curtis, ‘ The manor of Lisronagh with notes on betagh tenure ’, in R.I.A Proc. xliii, sect. Q no. 3.

33 Ormond deeds, 1350–1413, no. 374.

34 Reg. All Hallows, pp. 131–2.

35 White, Extents of Irish monastic possessions passim.

36 See Holdsworth, History of English law (3rd ed.), iii. pp. 198–209. It should be observed that the king's betaghs do not seem to have been excluded from the royal courts–see H. G. Richardson, ‘ English institutions In mediaeval Ireland’, in I.H.S. i. 389.

37 Cal. doc. Ire., 1285–92, no. 591 ; Cal. justic. rolls Ire., 1295-1303, pp. 34, 95, 133, 162, 254–5, 333–4; 1305–7, pp. 67, 405; H. G. Richardson and G. O. Sayles, ‘ The Irish parliaments of Edward I ’, in R.I.A Proc, xxxviii, sect. C, no. 6, p. 143; H. G. Richardson, ‘ English institutions in medieval Ireland’, in LH.S., i. 387–8; Gormanston reg., p. 176.

38 Cal. justic. rolls Ire., 1295–1303, pp. 68, 175, 204.

39 Cal. justic. rolls Ire., 1295–1303, pp. 53, 209, 342. See also Cal. doc. Ire., 1252–84, no. 360, and P.R.I. Rep. D.K. 43, p. 16.

40 H. G. Richardson, ‘ English institutions in medieval Ireland ’, in I.H.S., i. 390–1. See this paper and the references there given for the whole subject. See also Cal. justic rolls Ire., 1295–1303, p. 133.

41 Cal. justic. rolls Ire., passim.

42 Ibid. 1295–1303, pp. 121–3, and cf. p. 336; Cal. doc. Ire., 1285–92, no. 558. A royal letter of 1253 directs that two Irishmen whose petition alleges that they and their ancestors were always faithful to the king's fealty and Service shall be allowed to sell their lands as if they were Englishmen if this be so (Cal. doc. Ire., 1252–84, no. 164).

43 Cal. doc. Ire., 1252-84, no. 460; Cal. papal letters, 1198-1304, PP. 73-5, 283. See also Reg. All Hallows, pp. 129-31.

44 Cal. justic. rolls Ire., 1305-7, p. 352, and of. the cases of Hugh Kent in Galway and Robert of Bray in Dublin (references in I.H.S. iv 363).

45 H. G. Richardson and G. O. Sayles, ‘ The Irish parliaments of Edward I ’, in R.I.A. Proc, xxxviii, sect. C, no. 6, p. 142.

46 See calendars of pipe rolls in P.R.I. Rep. D.K., passim; Cal. justic. rolls Ire., 1305-7, p. 186.

47 Red bk. Ormond, pp. 40-41 The payment was 4d. a year.

48 Cal. justic. rolls Ire., 1295-1303, p. 95, and passim.

49 Stat. Ire., John-Hen. V, pp. 23-4.

50 Ibid., p. 210.

51 It was, of course, his lord who was entitled to the payment. See the writ printed by H. G. Richardson, ‘ English institutions in medieval Ireland ’, in I.H.S.j i. 387, and Cal. justic. rolls Ire., 1295-1303, p. 283, and passim.

52 C. McNeill, ‘ The secular jurisdiction of the archbishops of Dublin ’, in R.S.A.I. Jn. xlv, pp. 93–4, 96, 99, 101–2; Cal. justic. rolls Ire, 1295–1303, pp. 102–3 Prynne, Exact chronological vindication, iii. 775–6.

53 Cal. dose rolls, 1313-18, pp. 358-9.

54 For a discussion of the whole episode in the light of previously unpublished documents, see above, vi. 261-70. C. 1290 it was stated that the king in his great Council at London had declared that all who demanded a grant of English laws should have it, and this may have been the final answer to the bishops in 1280 (Cal. doc. Ire., 1285-92, P. 525).

55 It should, however, be remembered that we do not know whether or not the scheme really had any support among the Irish outside the ecclesiastical province of Cashel. Certainly its Promoters envisaged a certain amount of Opposition to it among the Irish.

56 P.R.O. Ancient Petitions 5944 and 8820, cited by H. G. Richardson, ‘ English institutions in medieval Ireland ’, in I.H.S., i. 390–1.

57 Cal. dose rolls, 1313–18, pp. 358–9.

58 Stat. Ire. John-Hen. V, p. 292.

59 Baldwin, The king's Council, p. 474; Cal. close rolls, 1327-30, p. 312; Foedera, II, ii. 758. I am indebted to Mr H. G. Richardson for drawing my attention to these documents.

60 Stat. Ire. John-Hen. V, p. 325.

61 Betham, Const. Eng. & early parl. Ire., p. 292.

62 I am greatly indebted to Mr H. G. Richardson, who very kindly read the draft of this paper and sent me a number of most helpful suggestions and criticisms.