Gavelkind and tanistry
The Statutes of Kilkenny proscribed Irish names, law and Gaelic language, fosterage of sons and intermarriage of the Irish race. They were renewed in 1468 and supplemented in 1536 by measures against Irish dress and customs within the Pale.
However, the Gaelic Lordships had retained effective sovereignty in their area in that they could make law without reference to the King. The Gaelic areas effectively functioned as autonomous political states.
The leading family was elected by a four generation group descending from a common ancestor. Within the major groupings they were septs or lineages. Beneath the superior lord, there may be a chieftain. The cases on gavelkind and tanistry raised issues generally in relation to the relationship between English law and native law in settled colonies particularly in the new world and elsewhere.
The common law had long since recognised established customs and respected them. In the case of Gaelic succession, they were absolutely basic to the organisation of society for many centuries. Customs in relation to succession had been recognized in other places.
Conflicts with Royal Interests
The Irish Gaelic succession was wholly inimical to certain crown revenues which arose on succession to major lordship. These represented an important and independent source of revenue separate to that raised by parliament. However, gavelkind and tanistry were wholly inconsistent with the theory of feudal tenure under the crown. This issue remained important, even though this tenure was dying out since the middle of the 16th century.
Tanistry refer to a system of succession by which the chief nominated a leader during his lifetime who succeeded him. He was typically the eldest, worthiest or strong man of the clan. In English estates were heritable and passed down through generations. Under the policy of surrender and re-grant (which was far from completed) Gaelic chiefs were re-granted heritable estates in accordance with English law.
The conflicts could be seen in Ulster where Con O’Neil had been created Earl of Tyrone. In the Treaty of Mellifont ending the nine-years war, Hugh O’ Neil agreed to terminate all challenges and claims inconsistent with English common law and titles and to assist in the abolition of “barbarous customs contrary to English law”. Hugh O’Neil and O’Donnell were restored to much of their property and given new titles.
Land Tenure Post-Nine Years War
Complaints were made by those influential in government that the settlements with the leaders of the nine-year war were overly lenient and allowed them to maintain dominion in their earldom. In 1605, a proclamation granted the benefits of English law to all tenants and former freeholders residing in Ulster. This curtailed the powers of the chiefs and reinterpreted the 1603 settlement as excluding the freeholds formerly belonging to various tribal underlords in accordance with Gaelic customs.
In 1605 the government established a commission to investigate land tenure in Ulster. As a result of the commission, the English Privy Council took the view, that it had never been the purpose to grant the whole of Tyrone and Donegal to O’Neill and O’Donnell. The commissions were given power to accept voluntary surrenders of Gaelic estates in return for common law grants.
In Donegal significant lands were granted to a rival of O’Donnell. In 1606 the judges proclaimed by a resolution the customs of gavelkind and tanistry to be void. This coincided with a further commission into allocation of lands to Gaelic chiefs. This was the intended to go in hand with the policy of surrender and re-grant of English titles.
A renewed commission in 1606 used the above principles to divide tribal lands between rival claimants and distribute the remainder to other freeholders. In Cavan and Monaghan there was substantial distribution from the Maguires , McMahons and O’Reilly. The principle which had been undermined by the Treaty of Mellifont that all subordinate septs owe tribute to the Earl was increasingly attacked.
Flight of the Ulster Earls
It was asserted that O’Neill’s titles were defective and limited to much of Tyrone by reason of the attainder of Shane O’Neill by the Irish parliament in 1569/71. Tyrone complained of vexatious proceedings designed to dispossess him of his lands. He claimed that the adjoining O’Cahans were his dependents and the King authorized the matter to be referred to Westminster for sentence by the sovereign,
Apprehending arrest O’Neill, O’Donnell and one hundred of their followers left Ireland in 1607 never to return.
There followed a revolt in 1608 by Cahir O’Doherty which was easily defeated. The departure of the Earls left the whole of Ulster open to confiscation and ultimate plantation. In 1604 some proposals for strategic settlement of planters had been proposed. O’Doherty’s rebellion led to a more comprehensive plan for plantation in six Ulster counties, Tyrone, Armagh, Derry (Coleraine), Donegal, Fermanagh and Cavan.
The Lord Deputy was a supporter of comprehensive plantation. The attainder of O’Neill was said by the judiciary to have established crown title in Armagh, Tyrone, and Derry. To control Donegal, a fiction was created that the Crown had conveyed the whole of Donegal to O’Donnell in fee simple and that it reverted back to the Crown on his attainder.
The freeholders in Cavan and Fermanagh were vulnerable to forfeiture in that many had succeeded to their titles by the custom of tanistry and gavelkind. Others had been attainted. It was argued that the customs of Gaelic landholding and succession were inimical to the King’s peace. By finding tanistry to be invalid, the titles of certain properties held under surrender and re-grant were themselves voided and made insecure.
Freeholders would not be forfeited by the attainder of their chief alone. However, if the freehold estate had been acquired through a course of tanistry which had been judged to be void then the holders would not be freeholders. The absence of freehold estate disentitled the holder to bring action before the assize judges or central common courts. The same techniques were used to recover ecclesiastical lands held under Gaelic tenure. Through these devices, huge amounts of the country lapsed to the Crown.
A commission on titles established in 1606 was used by the planter class to secure titles which had been made unstable by years of war and strife.