Norman Government and Native Irish
At the high point of Norman control, three-quarters of Ireland was at least nominally subject to the control of the Dublin government. Even outside of these areas, most Chiefs had some relationship with the Crown of a quasi-feudal nature.
Later, in the 14th and 15th century the position changed. The Irish rulers obtained far greater independence. Many of the Anglo-Irish rulers adopted Brehon law and customs.
“Irishry” in this context referred to native Irish. Irishmen might enjoy grants of the benefit of English law.
Statutes of Kilkenny
This famous Statute of Kilkenny date from 1366. The statutes consolidated existing statutes dealing with the government of the Lordship of Ireland. They sought to remove a range of abuses from government, some of which were common to England and Ireland.
The statutes did not mark a radical departure. It has been said that the statute did not reflect an attempt to conquer the whole of Ireland but rather consolidate the existing colony/the Pale. Legislation dealt with English laws, and Gaelic Irish had no status. Its culture and customs were essentially proscribed.
The statutes were passed at a time when Gaelic Ireland had reasserted itself and was threatening the shrinking colonial community. The statutes have been argued not to have outlawed Gaelic culture but rather to secure stability and allowing them to live side by side. Despite the apparent stance of statutes, they in practice facilitated a cohabitation of Gaelic and English culture.
The statutes were framed so as to apply to those living amongst the “Englishry”. This was the area held under feudal tenure. It was only in this area that Anglo Norman law provided effective government. The application of the ordinary processes of government, courts parliament and statute and the administration to those who were not subjects (Irishry) was seen as politically and constitutionally unrealistic and inappropriate.
Status Under English Law
The English male settlers were all free men. English law did not extend to the native Irish in the medieval period. The unfree Irish were equivalent to the villeins in England and unfree persons who existed throughout Europe at the time.
Most persons who were free under Irish law were regarded as unfree under Anglo-Norman law. They were not entitled to take cases in the King’s court.
At the bottom of the Brehon law status was a category of serf or villain, who passed with the land . Above them, a category of tenants at will who had to render uncertain services to their lords. They were not bound to the land in the same way as the former category. After nine generations of living on the land, this category could sink to a lower level again.
Amongst free men there was the relationship of clientship. The members of this class received a grant of stock or land and rendered annual food tributes and other fixed services. The nature was similar to a contract relationship.
In a higher form of clientship, there was no honour price payment, but other obligations applied including personal attendance. In the lower level client relationship, the grant of stock received was subject of payment of an honour price to the Lord.
The native unfree classes were betaghs, sometimes referred to as natives or hibernici by the Anglo-Normans. These were unfree native Irish. It is suggested that betagh derives from the expression for a food provider. The betagh was essentially a tenant at will who might lose his right to leave the land by long residence.
The betagh was bound to the land. A creditor of the Lord could, by writ receive the rights of service.It appears that by the 14th century, at least in the vicinity of the pale, that betaghs held their land by fixed rent, laterally not excessive and rendered services by custom, generally nominal in amount.Crimes committed by betaghs were heard in the Lords’ courts.
Many Irishmen were tenants or dependents of Lords without being bound to the soil formally. There existed Irish free tenants who might be survivors of higher classes of Gaelic society or betaghs who had risen in position. There existed a practice of avowres by which men paid their lords sums for their protection.
Access to Courts
Free Irishmen who had not formally been admitted to English law were in much the same position as a betagh. Technically, they were excluded from the English law. A defendant was not bound to answer his claim. He could introduce his Lord into the action.
The legal capacity of Irish within legal proceedings was limited. Injury to them was, both legally and in practice economic injury to their Lords. Therefore, their Lords could take action on account of such injury or damage. A Lord might sue for trespass to the person of his Irishman. He would have to show loss and damage rather than that to the Irishman himself.
A free Irishman might be joined as plaintiff with his Lord. However, an Irishman could not maintain an action by himself. It was a defence to an action that the plaintiff was an Irishman. This might be an issue in the action. An Irish defendant had much fewer disabilities.
The exclusion of unfree tenants from the Kings Courts reflected the position in England and across Europe. Their tenures were matters for the Lords’ courts and the common law did not recognise law held in villenage and other tenures. They themselves were effectively the Lords’ property.
Crime & Homicide
An Irishman was subject to jurisdiction of his Lord’s courts. If he was charged before the Justiciar’s court he could be handed over to his Lord. In certain types of crime, an Irishman could be held accountable in the King’s courts, particularly in the case of Lordless Irish.
The homicide of an Irishman was not subject to criminal law punishment under Anglo-Norman law. Under Brehon / native law, the penalty was a payment, and this was effectively accepted by Anglo-Norman law.
If an Englishman killed a native Irishman, his Lord might sue for compensation. In the case of wrongs such as robbery and burglary where the victims were Irish, the Irishman’s Lord was specified as the wronged party.
An Irishman convicted of the death of an Englishman or arson was customarily hanged. However, this is not necessarily the case. Generally, Lords did not hang Irish felons but provided for a fine or ransom.
Irishmen not admitted to English law were not capable of holding land in fee and inheritance. On their death, their heirs might be denied admission on the grounds they had used Irish law.
In principle, an Irishman’s tenure was a matter for his Lord’s court. His goods and chattels could be the subject of action in those courts only. Very little manorial records survived in Ireland, which make it difficult to know the precise position.
Grant of English Law
The Crown could grant the right to Irish natives to use English Law. Classes of the Irish enjoyed English Law as of right. From the outset after the Norman conquest, the five bloods, the royal families of O’Neill in Ulster, Uí Máeilsheáchlainn in Meath, O’Conchobhair in Connacht, O’Brien in Munster and O’Murchu in Leinster enjoyed these rights.
The King generally reserved the rights to grant charters of English Law. A Lord might enfranchise his own Irishman so that he would become a free man. Large numbers of free men in areas of English settlement obtained grants of English Law became assimilated to the Anglo-Normans.
Within towns burgesses of the borough were largely free. An Irishman made a burgess must by custom of towns in Ireland entitled to English law in relation to the town itself.
Grants of English law were purchased in some cases. Some of these grants were enrolled in the patent rolls, but many were not. Irishmen might be admitted to the benefit of law by grants applicable to a particular class or group. The descendants of the Viking settlers were largely recognised as free men. The Irish bishops enjoyed privileges by reason of their office.
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